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Lower Courts are still paper courts? June 8, 2020

I read a message that District Courts and Civil Courts (to the extent they are “open”) are accepting new paper filed cases. Now, in the three months the courts have been closed, why hasn’t the e-file system been expanded to the lower courts? It is really aggravating to see just how far behind the 8 ball we are compared to most other states and the federal courts.

I just do not find this acceptable. We are New York tough, but “momma let’s jump in the punch buggie” efficient? OCA knows what it has to do.

Opening Courts with an e-filing system in place? Nope. May 26, 2020

The daily news stated something interesting yesterday and I will quote it:

“For the courts, the silver lining to the pandemic may be that it is pushing officials to update an antiquated system that still relies mainly on paper filings and in-person courthouse appearances.

“People can be set in their ways and sort of don’t like change,” said Marks. “If there’s one way to characterize the last few months, it would be change. Necessity is the mother of invention.”

I for one have been a fierce critic of the way the NY court system runs. For 17 years, what I have seen is a system that in part exists to keep people employed. I suppose everyone needs employment and if PCs, CC’s, SC’s and any other type of appearance can achieve that, then I do not want to be the one that prevents new attorneys, per diems and court staff from not earning a living. I for one would rather see the “PC” and “CC” replaced with a case management conference, followed with a conference order if a case does not have sufficient movement in 12 months after an RJI is filed. I tend to think the parties can probably chart their own course based on the premise that we have clients who want “justice”.

Perhaps a 5 minute discovery calendar at 8:30 AM by zoom could handle most rudimentary discovery disputes? Winner uploads the order. Works well in Fla. Motions by appointment in non motion submission jurisdictions? Limit these to 15-30 minutes depending on the complexity.

But what I think is absolutely necessary before we take the re-opening experiment any further is to implement and mandate e-filing. To tell me that we are going to allow 100,000 mailed in covid-filled paper summonses with checks in a litany of actions does not work. It is dangerous and backwards. I harken to say that in the four states I pracitcer in, only NY still uses paper for filings at all. In reality, the paper system stopped working 15 years ago when e-filing debuted federally. OCA did not read the memo and perhaps our stubbornness and lack of imagination allowed this to happen

I would have hoped in the 2-3 months we have been closed, OCA would have been replacing the paper filing of the lower courts with e-filing. At the very least, I would like a press conference that says they are doing this. Lack of a message leads me to believe that that is not happening, and now we have what I fear is a complete mess. How about keep the courts closed until July, get e-filing right and we can probably have a much smoother and healthier court opening? Why rush when we cannot have in person motion conferences and jury trials?

EUO Declaratory Judgment May 14, 2020

Nationwide Affinity Ins. Co. of Am. v George, 2020 NY Slip Op 02801 (2d Dept. 2020)

I think you have to read the docket here to understand what happened. It appears the mailing issues involved completion or lack of completion of apartment numbers. The record appears to show that various documents were with and without apartment numbers. The court thus was not going to disturb Supreme Court’s findings on the issues. The proof of no-show was based upon bust statements.

What was interesting is the mutual rescheduling issue. I could not find anything in the record supporting a mutual rescheduling of the first EUO. The Second EUO issue is interested. Defendant presented a bust statement where attorney Diamond was present and never mentioned his client’s were running late. Then, after this litigation was commended, Diamond presented an affirmation that his clients were running late.

The Court properly found an issue of fact was not raised. Had the carrier relief on affidavits (as opposed to bust statements), I think the outcome would differ. This has to be the first time I can state bust statements really made the difference.

Finally, the Court granted judgment despite four bills not being paid or denied – the basis for the disclaimer (besides EUO no show) that the bills were untimely submitted.

I suspect the Court did not like the provider’s hype-technical arguments that, on balance, had minimal record support and opened the Unitrin door, whether inadvertantly or otherwise. Tough loss for the provider, but these things do happen

Comparative Negligence not found May 14, 2020

Silverio v Ford Motor Co., 2020 NY Slip Op 02892 (1st Dept. 2020)

“The Court also stated that plaintiff did not need to prove that he was not comparatively negligent in order to obtain partial summary judgment on the issue of defendants’ liability, based on Rodriguez v City of New York (31 NY3d 312 [2018]). Plaintiff’s interpretation of this Court’s decision in Silverio (168 AD3d 608) would require finding that he was not comparatively negligent, despite the fact that he never moved for summary judgment on defendant’s affirmative defense of comparative negligence or introduced evidence to support his contention that he did not contribute to the accident (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]; see also Wray v Galella, 172 AD3d 1446, 1448 [2d Dept 2019]).

The issue of comparative fault should have been left to a jury in determining damage”

Yes, please remember that when moving for summary judgment, an application to dismiss the affirmative defense of comparative negligence should be made to completely resolve the issue.

Damages – expert witness not necessary May 12, 2020

Zapata v Yugo J & V, LLC, 2020 NY Slip Op 02687 (3d Dept. 2020)

“Turning to the issue of damages, we reject Yugo’s contention that Supreme Court erred in not requiring expert testimony to prove plaintiffs’ damages. Generally speaking, “expert testimony is appropriate when it serves to clarify an issue that is beyond the ken of the lay juror and calls for professional or technical knowledge” (Payette v Rockefeller Univ., 220 AD2d 69, 74 [1996]; see generally De Long v County of Erie, 60 NY2d 296, 307 [1983]).

Here, there is no question that the injuries that plaintiffs’ sustained were a direct result of the fall precipitated by the deck collapse (see Madsen v Merola, 288 AD2d 520, 521 [2001]). Moreover, plaintiffs’ testimony regarding the nature and permanency of their injuries, coupled with the medical records introduced into evidence, were not beyond the competence of plaintiffs or the ordinary experience and knowledge of a lay jury so as to require expert testimony to render an appropriate damages award (see Payette v Rockefeller Univ., 220 AD2d at 74; compare Razzaque v Krakow Taxi, 238 AD2d 161, 162 [1997])”