Example of a tardy CPLR 3101(d) that is unacceptable February 8, 2019

Flowers v Harborcenter Dev., LLC, 2019 NY Slip Op 00749 (4th Dept, 2019)

“Here, the court determined that there was a willful failure to disclose because, prior to jury selection, defendants’ attorneys knew that they intended to present testimony from the psychiatric expert, but they did not disclose the expert until the day after jury selection began, which violated the court’s directive that defendants disclose an expert as soon as they knew of said expert. Although the record establishes that plaintiff was aware of the possibility that defendants would call an expert psychiatrist, he was prejudiced by the tardiness of the disclosure both because it impaired his ability to discuss the relevant issues during jury selection and because it hamstrung his opportunity to retain an expert [*2]psychiatrist of his own. Thus, based on the evidence in the record supporting the court’s determination that defendants had engaged in purposeful gamesmanship by withholding the information, and the resulting prejudice to plaintiff, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony.”

Subpoenas February 3, 2019

Matter of Global Liberty Ins. Co. v Perez, 2019 NY Slip Op 00548 (2d Dept. 2019)

” Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 6, 2018, which denied petitioner Global Liberty Insurance Company’s (Global Liberty) motion, pursuant to CPLR 4404(b), to set aside a prior order (same court and Justice), entered on or about July 12, 2017, denying Global Liberty’s motion for a continuance of the framed-issue hearing after the two witnesses subpoenaed by Global Liberty failed to appear, and dismissing the petition on the ground that Global Liberty failed to present any witnesses or other evidence, unanimously reversed, on the law and the facts, without costs, the CPLR 4404(b) motion granted, the July 12, 2017 order vacated, Global Liberty’s continuance granted, and the court is directed to reschedule the framed issue hearing after Global Liberty has an opportunity to seek to enforce the subpoenas. “

(1) “Here, there is no evidence that petitioner Global Liberty was dilatory in issuing subpoenas to the officer who responded to the scene or to respondent Nestor Ruben Perez, neither of whom appeared at the framed issue hearing. Nor is there any evidence that petitioner was in any way responsible for these witnesses’ failure to appear. The issue about which they would testify, i.e., whether the vehicle involved in the accident, which fled the scene, was a 2003 Subaru or a 2005 Chevrolet, is central to the issue of whether that vehicle was stolen or was driven by Flores’s ex-husband who reported it stolen. “

(2) ” Moreover, while Flores and GEICO claim prejudice on the ground that Flores’s ex-husband has left the country, Global Liberty has made it clear that it would consent to having him testify by electronic means (cf. Yu Hui Chen v Chen Li Zhi, 109 AD3d 815 [2d Dept 2013]), a concession not addressed by Flores and GEICO or the court below. “

This case involved a possibly altered police report and a specious claim that the adverse vehicle was stolen. We just wanted a fair hearing, which we were denied. That said, we gave the IAS judge an opportunity under 4404(b) to follow the law. Deaf ears, closed doors and an ensuing trip to the Appellate Division.

The intersection of Ins Law 5106 and 5102(d) January 31, 2019

Ampofo v Key, 2019 NY Slip Op 00559 (1st Dept. 2019)

“Defendants established prima facie that plaintiff’s claimed right ankle and foot sprains were not serious injuries within the meaning of Insurance Law § 5102(d) through affirmed reports by their orthopedist, who documented normal range of motion (see Hernandez v Adelango Trucking, 89 AD3d 407 [1st Dept 2011]; Whisenant v Farazi, 67 AD3d 535 [1st Dept 2009]). They also submitted an affirmed report by an orthopedic surgeon who performed a no-fault peer review, which noted that plaintiff’s MRI reports showed osteoarthritis and other conditions, and opined that the right ankle arthroscopy performed four months after the collision was not medically necessary or causally related to the accident.

The no-fault peer review: If properly performed and utilized, it is a death trap. So I found the file online. The peer review was performed by Dr. Westerband. (He actually lost a threshold case as a plaintiff on a PI action). It has a Geico claim number and the vendor is my next door neighbor MedSource National. The medical rationale would not suffice for most arbitrators, but alas the Appellate Division found it persuasive. LOL?

Trip and fall to zero January 28, 2019

Rambarran v New York City Tr. Auth., 2019 NY Slip Op 00484 (2d Dept. 2019)

“Here, the plaintiff’s evidence at trial included her own testimony, the testimony of her expert engineer, as well as photographs identified and marked by the plaintiff showing the alleged defect as it existed at the time of the subject accident. Accepting such evidence as true, and affording the plaintiff every favorable inference that may be properly drawn from the facts presented (see Szczerbiak v Pilat, 90 NY2d 553, 556), the alleged defect was not actionable. Considering the appearance and dimensions of the protruding bolt, as well as its location on the sidewall of the staircase, directly underneath a handrail and away from the walking surface of the stairway

This was an interesting case as it involved a trip and fall and a $650,000 jury verdict. The Second Department almost seems to intimate that the plaintiff sought out this defect and non-suited this case.

Medical malpractice burdens January 28, 2019

Wei Lin v Sang Kim, 2019 NY Slip Op 00161 (2d Dept. 2019)

“The defendant’s expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that the defendant’s treatment of the injured plaintiff did not represent a departure from good and accepted medical practice .”

Interesting choice of terms to come up with as to the failure to make a prima facie burden.