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One too many DWIs may cost you more than your no-fault benefits or a short stint in prison November 27, 2009

Should you violate any portion of the DWI statute (except VTL Section 1192.1) and get into an accident where there is evidence that the alcohol impariment was a proximate cause of the accident, then you may lose your no-fault benefits, provided the bills are timely denied.  11 NYCRR 65-1.1; 11 NYCRR 65-3.8.

Get caught 8 times while driving drunk, six of them being felonies under New York’s DWI recidivist statute (VTL Section 1193), and you have a lot more to worry about then losing your no-fault benefits or even doing a small jail or prison stint.

While People v Travis 2009 NY Slip Op 08851 (2d Dept. 2009)  is also a business record case, the following is what caused me to post this decision.

“We also reject the defendant’s contentions that he was denied equal protection regarding his sentence, and that the sentence was an abuse of discretion and constituted cruel and unusual punishment. A sentence imposed within the statutory limits ordinarily is not cruel and unusual punishment in the constitutional sense (see People v Jones, 39 NY2d 694, 697). In our view, the imposition of the enhanced sentence in the instant case corresponds to defendant’s long and unwavering criminal history. A sentence of 15 years to life for a persistent felony offender convicted of operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(3) [driving while intoxicated] and aggravated unlicensed operation of a vehicle in the first degree has previously been upheld (see People v Turner, 234 AD2d 704; People v Bowers, 201 AD2d 830). Here, the County Court noted the defendant’s extensive criminal background. In the 23 years prior to sentencing, the defendant had been arrested and convicted of eight previous charges of operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192(3) [driving while intoxicated], six of which were felonies. Based upon the defendant’s continued drinking and his continued failure to refrain from mixing alcohol and the privilege of driving an automobile, we find no reason to disturb the County Court’s treatment of the defendant as a persistent felony offender. The sentence imposed was not excessive (see People v Adams, 55 AD3d 616; People v Suitte, 90 AD2d 80).”

There was a dissent as to the sentence:

“I highlight the facts that struck me as particularly significant and that distinguish this case from People v Bowers (201 AD2d 830) and People v Turner (234 AD2d 704), the Appellate Division, Third Department, cases on which my colleagues rely.

Unlike in Bowers, the defendant here, who has a record of alcohol-related offenses, has no history of violence and has never caused physical injury or property damage through these accidents. [*3]His most recent felony conviction for driving while intoxicated was 10 years ago, in 1999, for which he received an indeterminate sentence of 1½ to 4½ years of imprisonment. In Bowers, the Court affirmed the defendant’s sentence of 15 years to life based on the defendant’s 50-year criminal history, 13 previous alcohol-related driving offenses, at least one of which occurred after his arrest on the current charge, and the fact that the defendant was involved in an accident.

This case also may be distinguished from Turner, in which the defendant was observed driving erratically and repeatedly crossing the yellow lines on the roadway.

With respect to the underlying incident, the defendant was not observed driving recklessly, erratically, or otherwise. The defendant was observed while parking his vehicle, which he drove less than 100 feet. He was traveling at the posted speed limit of 30 miles per hour, and the arresting officer did not observe a moving violation. The defendant was approached by police officers on the basis that one of the headlights of his truck was not working. The arresting officer testified that the vehicle came to a stop in a normal fashion.

In my estimation, the facts of this case demonstrate that, while the defendant is certainly suffering from long-term alcoholism, he did not possess the requisite culpability to warrant a sentence of incarceration of 15 years to life. This Court should exercise its discretion by reducing the defendant’s sentence and imposing the maximum sentence for a class E felony (see Vehicle and Traffic Law § 1193[1][c]), an indeterminate sentence of 1 to 4 years of imprisonment (see Penal Law § 70.00[2][e]). On the basis of the sentence alone, I respectfully dissent in part.”

There is no need to grant an adjournment should the opposing party not have answering papers on the second motion return date. November 26, 2009

The Fourth Department, in Counsel Fin. Servs., LLC v David Mcquade Leibowitz, P.C., 2009 NY Slip Op 08663 (4th Dept. 2009), observed the following:

We note at the outset that the contentions of defendants are properly before us despite the fact that the order and judgment was entered upon their default. Although defendants did not move to vacate the order and judgment, they appeared in court on the adjourned return date of the motion and contested the entry of a default judgment (see Spano v Kline, 50 AD3d 1499, lv denied 11 NY3d 702, 12 NY3d 704; Jann v Cassidy, 265 AD2d 873, 874; Spatz v Bajramoski, 214 AD2d 436). Nevertheless, we conclude that the court properly granted the motion.”

“The record establishes that only plaintiff’s counsel appeared in court on the initial return date of the motion but that the court thereafter granted defendants additional time in which to submit papers in opposition to the motion and adjourned the matter to a date subsequent thereto. The court stated that, in the event that defendant failed to appear on the adjourned return date, “the matter will be deemed submitted.” Defendants failed to submit any opposing papers by the date specified by the court and, although defendant appeared in court on the adjourned return date, he requested a second adjournment at that time, in which to prepare opposing papers. The court determined that defendants already were in default at that time, inasmuch as they had failed to submit opposing papers.”

A few things are noteworthy here.  First, it seems that Defendant should have probably moved on notice to vacate the default as opposed to attempting to vacate the default through appealing the order that resulted from the hearing.  Second, it seems that the Fourth Department really has taken, at least in this case, a really tough line on parties who are not ready on motion return dates.

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.”