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Gap in treatment analyzed November 29, 2018

Lambropoulos v Gomez, 2018 NY Slip Op 08118 (2d Dept. 2018)

In opposition, however, the plaintiff submitted evidence sufficient to raise a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 NY3d 208, 218-219). As the defendants failed to establish, prima facie, a lack of causation, the burden did not shift to the plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Pommells v Perez, 4 NY3d 566, 572; Rivera v Ramos, 132 AD3d 655, 656).

Nice to a gap in treatment is limited to “causation” issues.  This is an interesting wrinkle on gap in treatment law.

Discovery – what is material and necessary November 27, 2018

Brito v Gomez, 2018 NY Slip Op 08105 (2d Dept. 2018)

(1) “We are asked on this appeal to decide whether a litigant in a personal injury action who makes a claim for lost earnings and loss of enjoyment of life waives the physician-patient privilege with respect to prior injuries not raised in the lawsuit. Based on our settled precedent, we find that the privilege is waived only for injuries affirmatively placed in controversy.”

(2) “Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder.  Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident.”

(3) “However, our cases since Caplow has granted discovery of medical records only where the plaintiff has alleged an aggravation or exacerbation of prior injuries.”

(4) “Here, as we noted earlier, plaintiff does not claim that her prior knee injuries were exacerbated or aggravated as a result of the 2014 accident. Accordingly, plaintiff’s claim for lost earnings does not affirmatively place the condition of her knees in controversy ”

(5a) “Defendants cite to Second Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The Second Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries”

(5b) “We are not persuaded by the reasoning of the Second Department. In our view, the Second Department’s precedent cannot be reconciled with the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy.”

And we have a two judge dissent.  The Court of Appeals will tell us next year whether broad based allegations in the bill allow the entire body to be subject to disclosure or the prior injuries alleged as the First Department alleges..

Default vacated November 25, 2018

Government Employees Ins. Co. v Avenue C Med., P.C., 2018 NY Slip Op 08010 (2d Dept. 2018)

(1) “The defendants Salehin Sayeedus, also known as Salehin Sayeedus Suman, Jose Carmen Ma Donna Gloria, also known as Carmen Maria Donna Jose, and Zhi-Yuan Zhong (hereinafter collectively the defaulting defendants) defaulted in appearing and, in April 2014, the plaintiffs filed a motion for leave to enter a default judgment against the defaulting defendants. The motion was unopposed, and was granted on July 23, 2014. In October 2014, the defaulting defendants moved to vacate their default and to compel acceptance of their late answers, asserting that their default was due to law office failure. In support of their motion, the defaulting defendants submitted affidavits from the defendants’ former and present counsel, in which counsel stated that the failure to serve timely answers on behalf of the [*2]defaulting defendants was due to a miscommunication between the defendants’ former and present counsel, upon the transfer of the defendants’ case to their present counsel, regarding the nature of the representation. The Supreme Court denied the motion, and the defaulting defendants appeal.”

(2) “Here, the defaulting defendants demonstrated a reasonable excuse, based upon law office failure arising from a miscommunication between their former counsel and their present counsel, for their default in answering the complaint or otherwise appearing in the action”

(3) “The defaulting defendants submitted affidavits in support of their motion describing their office services and billing practices, in which they stated, among other things, that their patients were required to sign statements acknowledging the treatments that they had received. The defaulting defendants also averred in the affidavits that they did not bill for services that were not rendered”

Now, Avenue C will get its date in Court.

Court approves of service in the court room November 25, 2018

Sandella v Hill, 2018 NY Slip Op 08051 (2d Dept. 2018)

“According to the defendant, as he was waiting for his case to be called, an unknown person came into the courtroom, called out his name, and dropped some papers on the floor. The defendant indicated that he did not pick the papers up because his attorney told him that he could not be served in court. The Supreme Court, without a hearing, denied the defendant’s motion to vacate the default judgment.”

“If a defendant resists service of process, service may be effected pursuant to CPLR 308(1) by leaving a copy of the summons in the defendant’s general vicinity, provided that the defendant is made aware that this is being done”

(This case rested upon the notion that a non-domiciliary could not be served due a special appearance in New York.   The Court held that even if this was true, defendant could have been served outside of New York on a Touza theory pCPLR 302; 313])

Another policy exhaustion case went nowhere November 25, 2018

Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co., 2018 NY Slip Op 51630(U)(App. Term 2d Dept,. 2018)

“Contrary to defendant’s argument, it failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as it did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.”

Nothing new here.