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Why are beaches still open? March 23, 2020

The epidemiologists are telling us to socially distance. For the introverts among the readers, that is perhaps too easy. For others, it is clearly a challenge. At this moment, the statistics say “34,407” total cases. They also say “414” deaths. That skews at 1.5%. The experts tell us that 20-30 percent of survivors will suffer significant permanent lung damage.

Common notion is that this disease spreads easier than the common flu and the standard cold. This asks the next question – why would people, otherwise presumed sane and competent, expose themselves to such grave harm?

It also calls into question why an epidemic is being treated on a state level. When was the last war that was left to the individual sates to fight? That was the Civil War. It did not go too well.

How do we only have regional lock downs? How is that medically necessary? Without a collective game plan, we cannot move forward.

Handling a pandemic March 19, 2020

My friends in Miami-Dade apparently see no problem with the pendamic. While Courts in Palm Beach, Broward and Dade are closed, the streets from what I hear are lined with people and the beaches are occupied. It is as if nothing is wrong.

One of the things I like about our State is that we take things seriously. When there is a crime spree, a natural catastrophe or a pandemic, New Yorkers by and far handle these situations comparatively better than their out of state compatriots. One of the things we take for granted here is our education system.

I for one am not a fan of the tax burden in this state and most of you would agree. Perhaps is reeks of waste and inefficiency? I will leave that to better minds. But even at its worst, the children and teenagers who finish school within this state have a basic understanding of morality and common sense. When you live in a state (i) without a state income tax; (ii) pay teachers $40,000 a year; and (iii) have “countywide” school districts, the result is paragraph 1 supra.

While my first post in this series chided OCA for what I think are institutional inefficiencies in our court system, I truly believe that our populace is better suited to handle this disaster than many others.

I am told that as of tomorrow (3-20-20), 75% of each office must work from home. We will heed this advice and eventually the storm will pass. I finally must commend Dr. Fauci, a Geico no-fault attorney’s lost lost cousin, for the calmness he has brought to what are uncharted waters.

A true test of what kind of employer you are March 18, 2020

I am transitioning the blog slightly for the next few months into what I think are life observations. There is more to life than motions, appeals, trials and orders to show cause. Yes, I just said that.

There is no “tag” to these and once we are back to 10 posts a month on cases, these posts will disappear through attrition and my life lesson posts will also dissolve. I read something today about employees taking notice of how they are treated during this crisis. This has caused me prepare the following missive for you to read.

My thoughts once I saw the handwriting on the wall was nuanced. The first thing I did was tell everyone to work from home if they wanted. The second thing I did was tell people if you are even the slightest bit sick you MUST work from home. After that, my commitment to the extent possible is to try to conserve resources so we do not add to the unemployment pool. Nobody that works here asked for this and I wish not to add to the recession.

The final thing I did was cancel all my business in the sunshine state. If you have seen the photos of people hanging out at beaches, you know Florida is probably a really good place not to be absent a death wish or pulmonary malfunction. I cannot stress this enough – everyone’s safety, health and well being must come first. Work, whether it be a no-fault motion, a personal injury deposition, an FLSA settlement, a medical malpractice motion or whatever is you are doing can and must wait. Yes, I know a delay on the 440 motion will hinder your client’s ability to leave an upstate home, but I think those homes are safer right now than here.

A society is often judged on how it treats its most vulnerable members. And I tend to think, right now, we are all vulnerable. A little decency is not too much to expect. Stay safe.

The Cornona Virus March 18, 2020

Because of what is going on in the world and our collective practices, I want to halt, for a second, the sporadic rolling debate I have here – often with myself – regarding fee schedules, conditions precedent to coverage, policy deductibles, NF-10s, 5102(d) – among other things. The more pressing issue we probably have is where do we go from here.

I am writing this essay more as to give my thought process of what happens occupationally when life resumes. First, we need to conquer this monster that I think has enveloped this country and the world. We can leave Washington’s response and the Trump administration’s initial indifference to the annals of history and for my Facebook feed – although I am done there even trying to cull fact from fiction. As our governor said today, and he is right, that is behind us.

We will get through the panicking, the short term food shortages, the massive drop in the stock market, the impending quarantine, the collective suffering and the drop in committed torts, which “employs” everyone (to some extent) who reads this blog.

Whether it is May or October, this will be over. Rip Van Winkle eventually woke up, right? What I want to write about – and it is more tangential at this moment – is what happens to a sizable piece of our practice. And this does interest me on a few levels. To me, what are we are going to learn is that crowded special term parts, stuffed CCP parts, standing room only IAS parts and cluttered TAP parts are vestiges of a bygone era.

The out of state practitioners or those who have a a multi state practice (outside the northeast) know very well that court cases up until trial are often handled telepathically, through skype or other video-conferencing mediums.

To give you an example, absent a “special set hearing”, Florida courts allow and encourage motions to be handled through telephone appearances. They call that the 8:30 5 minute calendar. California operates similarly.

This crisis has commendably forced Court administrators to require PC’s, CC’s and motions to be handled through telephonic appearance or Skype. In fact, argument on App. Div. First Department matters are now being done through Skype.

I received an elaw update that Civil Queens is looking to handle their motion calendar similarly. In reality, it should not have taken a terrible crisis to force this to occur. New York desperately needs to move out of the 20th century in terms of its appearances and lack of e-filing (especially in the non-superior Courts)

For those who complain that the motion calendars are too long, the simple answer is probably to shorten the calendars out to no more than 20 final motions a day, carry the calendars out 2 or 3 years if necessary and the judges (who will not have too many final motions per day) should either grant, deny, grant in part or deny in part the motion at the hearing and make the winning party e-file an order. (Yes, e-filing is necessary to make sure all papers are properly collated – this cannot work with the problematic 1970s system that represents the Civil Courts paper filing regime)

Some novel cases obviously should be submitted. And of course, courts that do not have large volumes can follow the Nassau, Suffolk, Westchester approach and take everything on submission.

The final trials should be pushed out long enough so all motion practice that is possible has long since passed and a final trial date really does mean that. The court should encourage video depositions also to allow a greater ease of use on medical type cases. Orders of reference should be issued for simple framed issue no fault trials and, while you may not like to hear this, the Civil Court index number fee should probably triple to afford the courts the resources and the ability to implement these solutions.

The point is – and this is just an essay of some thoughts – is that this crisis is forcing us to do better.

I understand there will be those who lose out. Per diems will be less needed. Associates who only exist to adjourn cases and to show their faces in Court and AAA hearings may not be as necessary. But a more fluid system that can work more remotely, more pointedly and which – let’s be honest – is the wave of how law is really practiced and how society works, will help our broken court system. Because, let’s also admit this fact – the Civil Court system is broken. You cannot shoe horn a 1970s methodology into a 2020 practice.

And finally, stay safe. Travel only as needed, and look out for your neighbor – that could be you one day.

Absolutely horrible decision March 8, 2020

New Age Med., P.C. v GEICO Gen. Ins. Co.., 2020 NY Slip Op 50316(U)(App. Term 2d Dept. 2020)

I am not the Gecko’s biggest defender for many reasons, but this takes the prize for what I have to call a bad decision and one that the Second Department might even look at if an application is made. I say might because they hate granting leave to no-fault cases, but this is so ridiculous that I hope they do.

The facts as I can tell (again New York refuses to join every other state and make all their Court’s e-file friendly) is that Geico’s answer was timely but the index number was wrong. Here is irony: before NY moved to file and serve in the lower courts 15 years ago, carriers received summonses without an index number.

Anyway, Plaintiff was looking to score an easy default and rejected the answer because the index number was wrong. Now, if the absence of an out of state certificate of conformity or a caption is a non-actionable defect, why should the wrong index or docket number be treated any differently? It is careless but not enough to put someone into default.

Well Geico waits a year to fix their mistake. The Civil Court and Appellate Term sanction the default and the ensuing clerk’s judgment. I am sorry but this is a crazy decision because I cannot even fathom how Geico, in the first instance, was in default.

“Upon the record presented, we agree with the Civil Court that defendant failed to explain why defendant had waited a year after its initial answer was rejected before serving a new answer bearing the correct index number. Consequently, we find that defendant failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether defendant offered a potentially meritorious defense to the action “

Part of me understands and has fallen victim to what I think is a very tight leash on the vacatur of defaults in no-fault matters. The cases are small, the volume is horrific at times and the cases at best only involve redistribution of wealth. The bigger picture is where is the right balance between mandating procedural regularity and preventing unbridled gamesmanship. This case sadly got it wrong and in a really big way. I could never fathom rejecting papers because someone put the wrong index or docket on the papers. Well, score one for lunacy.