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A plaintiff may voluntary discontinue an action on motion absent prejudice to the defendant November 26, 2009

The Appellate Division, in Expedite Video Conferencing Servs., Inc. v Botello, 2009 NY Slip Op 08781 (2d Dept. 2009), held the following:

“The determination of a motion for leave to voluntarily discontinue an action, without prejudice, pursuant to CPLR 3217(b), rests within the sound discretion of the court (see Tucker v Tucker, 55 NY2d 378, 383). In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted (see Tucker v Tucker, 55 NY2d 378; Eugenia VI Venture Holdings, Ltd. v Maplewood Equity Partners, L.P., 38 AD3d 264; Parraguierre v 27th St. Harding, LLC, 37 AD3d 793; Mathias v Daily News, 301 AD2d 503; Urbonowicz v Yarinsky, 290 AD2d 922, 923; County of Westchester v Welton Becket Assoc., 102 AD2d 34. Here, the Supreme Court properly exercised its discretion in granting the plaintiff’s motion to voluntarily discontinue the action, as there was no showing of special circumstances.” It thus follows that should a plaintiff or counterclaimant see thinks going bad pretty quickly, they can unilaterally decide to abort the mission without prejudice and try again at a later date, provided there is no statute of limitations issue.”

It thus follows that should a plaintiff or counterclaimant see things going badly, he or she may abort the mission on motion and get a second chance at a later date.

A civil court judge correctly rejects a so-called Wagman based peer hearsay challenge November 26, 2009

While I do not generally discuss Civil Court decisions, the one of Judge Levine in the matter of Popular Imaging, P.C. v State Farm Ins. Co., 2009 NY Slip Op 52355(U)(Civ. Ct. Richmond Co. 2009) is interesting in that it describes how a peer hearsay challenge at trial is lodged, presented, adjudicated and defeated.

“At the outset of Dr. Sarno’s testimony, plaintiff refused to stipulate into evidence the peer review report prepared by and medical records reviewed by Dr. Sarno, contending that this court should not consider Dr. Sarno’s opinion since it was based upon medical records and reports that were not in evidence and for which no evidence was submitted as to their reliability. pursuant to the leading case of Wagman v. Bradshaw, 292 AD2d 84 ( 2d Dpt 2002). The court reserved decision on this objection to Dr. Sarno’s testimony.”

“Here, the assignor’s physician, Dr. Fleisher , recommended that a MRI be performed; this is confirmed by Dr. Fleisher’s records. Dr. Sarno testified that in formulating an opinion he relied primarily upon Dr. Fleisher’s August 23, 2002 report of his neurological consultation with the assignor and Dr. Fleisher’s EMG/NCV testing of September 13, 2002. Since plaintiff performed the MRI based upon the records and referral from the assignor’s treating physician, who apparently deemed the test to be medically necessary, and since plaintiff sent the results and explanation of the MRI back to Fleisher, plaintiff cannot now be heard to challenge the reliability and authenticity of Dr. Fleisher’s records.

As to the requirement that the material be generally accepted in the profession as reliable and there be evidence establishing its reliability, Dr. Sarno testified that these are the types of reports that a doctor would review to offer an opinion on the necessity of a lumbar MRI. Dr. Sarno uses other doctors’ reports in formulating a medical opinion about his own patients and that it is a generally accepted standard in the medical profession to form an opinion based in part on other doctors reports. He testified that he takes these reports at face value. Dr. Sarno’s testimony is consistent with set precedent that a physician’s office records are admissible as evidence at trial to the extent they are germane to diagnosis and treatment.”

I would even opine that based upon Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, all that needs to be proved is that the Plaintiff Assignor who is described on the medical documents has the same name as the assignor who is the subject of the lawsuit. Upon this minimal showing, Plaintiff would then be estopped from challenging the reliability of the assignor’s medical records that the peer or ime doctor reviewed.  This should end the peer hearsay challenge at that point.

Of course, Plaintiff could always make an offer of proof, through the introduction of extrinsic evidence, to show that the records are not what they purport to be.  I am not sure how this showing would realistically be met in an assigned first-party case.

If you detail a procedure, you must make sure you demonstrate that it was followed November 26, 2009

When vacating a default in the Second Department based upon law office failure, the proponent of the motion must produce admissible evidence explaining the nature and extent of the law office failure.  What is important to appreciate is that if a procedure is in place to assure that a default will not occur, then it must be explained why the procedure was not followed.  This is what the Appellate Term stated in A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 2009 NY Slip Op 52322(U)(App. Term 2d Dept. 2009):

“Plaintiffs’ allegation of law office failure is factually insufficient (see Robinson v New York  City Tr. Auth., 203 AD2d 351 [1994]), in that they failed to explain whether the normal two-part procedure for assigning a per diem attorney to cover a court appearance, as outlined in their submission to the court, was followed in its entirety. Accordingly, plaintiffs’ motion to vacate the prior order was properly denied. in a particular case.”

An account stated cause of action is defeated through proof that the service was never rendered November 26, 2009

The Appellate Term, six years ago, analogized an action sounding in no-fault benefits to one for an account stated.  An account stated cause of action is satisfied through proof that a bill was mailed, retained and not promptly objected to.  While we do not know if there was a prompt objection to the bill, we do know that in opposition to a summary judgment motion in the matter of Good Samaritan Hosp. v Parim 2009 NY Slip Op 52376(U)(App. Term 2d Dept. 2009), “defendant raised a triable issue of fact since he alleged in his verified answer, which may be used in lieu of a sworn statement (CPLR 105 [u]), that he was billed for a hospital room which plaintiff never provided to him.”

This case is interesting in that it once again stresses that a verified pleading may be used in the place of an affidavit.  From a no fault perspective, this case reminds us that that the failure to promptly object to a bill for a service that was never rendered is of no consequence outside the realm of seeking reimbursement of no-fault benefits.

An allegation of a staged accident will not result in the granting of an insurance carrier’s summary judgment motion November 26, 2009

There have been numerous cases where the Appellate Term, Second Department, has refused to grant an insurance carrier summary judgment based upon proof that a motor vehicle accident was intentional.  So, the matter of A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U)(App. Term 2d Dept. 2009), is really of limited precedential value.  I would normally not post a case like this except I like how the Appellate Term quoted the decision of the District Court, that it was modifying:

“The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that'[t]his has all the indicia of a staged accident.’  The instant appeal by plaintiff ensued.”

“Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint.”