Summary judgment in comparative negligence case – Old First Department Standard now controls April 9, 2018

Rodriguez v City of New York, 2018 NY Slip Op 02287 (2018)

(1)  “The motion for summary judgment must also “show that there is no defense to the cause of action” (id.). Further, subsection [c] of the same section sets forth the procedure for obtaining partial summary judgment and states that “[i]f it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion”

(2) “Defendant’s attempts to rely on CPLR 3212’s plain language in support of its preferred approach are also unavailing. Specifically, defendant points to CPLR 3212(b), which provides; “[a] motion for summary judgment shall . . . show that there is no defense to the cause of action.” Defendant’s approach would have us consider comparative fault a defense. But, comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.”

(3)”To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court and the certified question answered in the negative.”

Now, when you move for summary judgment as a plaintiff, you need to: (1) Move for summary judgment in liability; and (2) To dismiss the affirmative defense of comparative negligence.

Otherwise, does summary judgment “on liability” really mean just that?

Not necessarily inconsistent March 30, 2018

Nationstar Mtge. LLC v Accardo, 2018 NY Slip Op 02276 (1st Dept. 2018)

Oh let us say you put the wrong denial date in your motion but correctly set forth the mailing procedure – placed in the bin, postaged, sent out that day or the next day and the affiant has personal knowledge of the mailing procedure.  Bonus points if you say the affiant checked the accuracy of the addresses and (s)he ensured compliance with the procedures and did comply.

Now, you get called out because you made a typographical error.  You fix the affidavit in Reply or make a new motion and someone accuses you of making inconsistent statements.  Now what?

“In opposition, defendant failed to raise an issue of fact. Contrary to his contention, plaintiff’s affidavit and attached documents are not hearsay; the affiant said that he personally reviewed loan records kept in the ordinary course of business and that he was personally familiar with plaintiff’s record-keeping practices (see Bank of Am., N.A. v Brannon, 156 AD3d 1, 8 [1st Dept 2017]). Inconsistent statements in a prior affidavit submitted by plaintiff do not suffice, because they are contradicted by documentary evidence (see Bank of N.Y. v 125-127 Allen St. Assoc., 59 AD3d 220 [1st Dept 2009])”

What is this about? March 29, 2018

Matter of Allstate Ins. Co. v Travelers Cos., Inc., 2018 NY Slip Op 02163 (1st Dept. 2018)

“Here, the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage was not arbitrary and capricious. Rather, it was rationally based on the relevant statutes and regulations (see Insurance Law § 5102[a], [b]; 11 NYCRR 65-1.1, 65-1.2).”

CPLR 3212(g) struck March 29, 2018

TAM Med. Supply Corp. v Travelers Ins. Co., 2018 NY Slip Op 50315(U)(App. Term 2d Dept. 2018)

Sometimes, these orders are written in such a way where the Plaintiff has to actually prove something at trial.  What I find obnoxious is that the proof of submission of the verification in the first instance is a boilerplate affidavit with nothing to substantiate is averments.  Can somebody already take this up?

“Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the [*2]burden at trial of proving its prima facie case (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded (see Presbyterian Hosp. in City of N.Y v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant’s] verification requests.””

Feigned issue of fact coupled with cessation of treatment March 29, 2018

Alston v Elliott, 2018 NY Slip Op 02019  (1st Dept. 2018)

The feigned issue of fact

(1) “In opposition, plaintiffs submitted affidavits that contradicted their sworn deposition testimony concerning the reasons for their cessation of medical treatment. Plaintiff Alston testified that she terminated treatment after about three months because therapy wasn’t “helping” her. Plaintiff Brown testified that he terminated treatment because it made him feel worse afterwards. However, in opposition to defendant’s motion, in near identical affidavits, both plaintiffs asserted that they ceased treatment because no-fault benefits were discontinued, and they could no longer afford to pay “out of pocket.” A party’s affidavit that contradicts his prior sworn testimony “creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment”

Went back to work and did not go for treatment for 7 years.

(2)”Moreover, the evidence that both plaintiffs returned to work shortly after the accident and ceased treatment within three months, demonstrates that their injuries were minor in nature, involving neither “significant” nor “permanent consequential” limitations in use of their spines ”

‘…Moreover, defendant argued that both plaintiffs’ claims of serious injury were belied by their having ceased all treatment about seven years earlier, within three months of the accident, which they were required to explain”