3211(b) motion not subject to 3212(a) time limitations March 25, 2017

Zarnoch v Luckina, 2017 NY Slip Op 02233 (3d Dept. 2017)

“To the extent that the cross motion sought relief pursuant to CPLR 3211 (b), it was not subject to the time limit for summary judgment motions under CPLR 3212 (a) (see Siegel, NY Prac § 272 at 470 [5th ed 2011]). The cross motion was nevertheless properly denied because plaintiff failed to meet his burden of establishing that the affirmative defense was without merit as a matter of law”

**Plaintiff’s can do some real evil with this discrepancy in the 120 day rule

2309 issue March 25, 2017

American Cas. Co. of Reading, Pa. v Motivated Sec. Servs., Inc., 2017 NY Slip Op 01970 (1st Dept. 2017)

“The motion court properly considered the out-of-state affidavit of SBF’s president, even though it lacks a certificate of conformity (CPLR 2309[c]). The lack of such certification is not a fatal defect and the irregularity may be corrected later (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009]; CPLR 2001).”

How not to sum up on a case March 25, 2017

People v Casiano, 2017 NY Slip Op 02053 (2d Dept. 2017)

“The defendant correctly asserts that the cumulative effect of the prosecutor’s improper comments during summation requires a new trial. “[I]n summing up to the jury, [the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” (People v Bartolomeo, 126 AD2d 375, 390, quoting People v Ashwal, 39 NY2d 105, 109). Here, during summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor vouched for the credibility of the People’s witnesses with regard to significant aspects of the People’s case by asserting, inter alia, that “the witnesses who came before you provided truthful testimony that makes sense,” that they gave the “kind of truthful and credible testimony that you can rely on,” and that one witness had “no reason . . . to be anything but truthful with the 911 operator” (see People v Redd, 141 AD3d 546, [*2]548; People v Spence, 92 AD3d 905, 905-906; People v Brown, 26 AD3d 392, 393). In describing a complainant, the prosecutor asserted that he was “exactly what you hoped to see from someone who had troubles with the law in their youth,” but had “changed [his] life” and now worked at an organization that helps “low-income people [obtain] health care,” which was a clear attempt to appeal to the sympathy of the jury (see People v Smith, 288 AD2d 496, 497; see also People v Anderson, 83 AD3d 854, 856). To support the credibility of that same complainant, the prosecutor injected the integrity of the District Attorney’s office into the trial to downplay the severity of a past criminal charge he faced (see People v Carter, 40 NY2d 933, 934; People v Morgan, 111 AD3d 1254, 1256). Further, the prosecutor denigrated the defense and undermined the defendant’s right to confront witnesses by implying that the complainants were victims of an overly long cross-examination and that one was a “saint” for answering so many questions (see generally People v Brisco, 145 AD3d 1028; People v Baum, 54 AD3d 605, 606). Moreover, the prosecutor improperly used the defendant’s right to pretrial silence against him by arguing that he could not be a victim as he did not call 911 (see People v De George, 73 NY2d 614, 618). The cumulative effect of these improper comments deprived the defendant of a fair trial (see People v Calabria, 94 NY2d 519, 522; People v Crimmins, 36 NY2d 230, 237-238; People v Spann, 82 AD3d 1013, 1015).”

**Just read this.  When you hear this type of inflammatory remarks at your next jury trial, object and ask for a mistrial.  This is truly a primer of what NOT to do.

A day at the beach. March 25, 2017

Starkman v City of Long Beach, 2017 NY Slip Op 02077 (2d Dept. 2017)

This one is scary.  You are sitting at a beach and you get run over and end up with two cervical fusion surgeries.  Here are the facts:


“On May 26, 2010, the defendant Paul DeMarco, a City of Long Beach Police Officer, was patrolling the beach in a patrol car when he struck and ran over the plaintiff, who was lying on the beach in a lounge chair. The plaintiff was taken to the hospital where imaging tests revealed that he had sustained three broken ribs and fractures of the transverse processes of the C6, C7, and T1 vertebrae. The imaging also revealed what was described as “degenerative changes” of the spine including herniations of the cervical discs at the C5-C6 and C6-C7 levels along with osteophysis, [*2]disc space narrowing, and narrowing of the spinal canal.

The plaintiff subsequently was examined by an orthopedic surgeon and 17 months after the accident he underwent a multi-level cervical fusion surgery to treat the disc herniations that were believed to be causing continued neurological pain. When the bone failed to properly fuse, a second surgery was performed 15 months later which successfully fused the vertebrae. The plaintiff, however, continued to experience neck and back pain.”


“The jury returned a verdict finding that the plaintiff had sustained damages consisting of $100,000 for past medical expenses, $200,000 for past loss of earnings, $500,000 for past pain and suffering, $200,000 for future medical expenses over 18 years, $450,000 for future loss of earnings over 14 years, and $750,000 for future pain and suffering over 35 years.”


“a written stipulation consenting to increase the verdict as to damages for past pain and suffering from the principal sum of $500,000 to the principal sum of $750,000, and for future pain and suffering from the principal sum of $750,000 to the principal sum of $1,500,000, and to the entry of an appropriate amended judgment accordingly; in the event that the defendants so stipulate, then the judgment, as so increased and amended, is affirmed, without costs or disbursements.”


I will never look at a day out on the beach again.


The Maslow specificity rule went up in a plume of smoke March 16, 2017

Matter of Global Liberty Ins. Co. v Therapeutic Physical Therapy, P.C., 2017 NY Slip Op 01833 (1st Dept. 2017)

“Respondent sought recovery for physical therapy services provided to its assignor before April 1, 2013, and petitioner insurer disclaimed parts of the claim on the ground that it had already reimbursed a different provider for “eight units” for services on some of the same dates. Respondent checked the box on the prescribed disclaimer form indicating that it was relying on a “fee schedule” defense, specifically the “eight unit rule.” The lower arbitrator held that respondent was precluded from asserting its defense because the disclaimer was insufficiently specific in that the other provider was not named. Respondent appealed to the master arbitrator, arguing that it adequately preserved its defense. The master arbitrator, without addressing the issue of preservation, incorrectly found that the lower arbitrator had “considered the fee schedule defense” and “determined that [r]espondent failed to provide evidence as to the other provider.”

The master arbitrator’s award was arbitrary, because it irrationally ignored the controlling law presented on the preservation issue (Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; see generally Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]) — namely, that an insurer adequately preserves its fee schedule defense “by checking box 18 on the NF—10 denial of claim form to assert that plaintiff’s fees [were] not in accordance with the fee schedule” (Megacure Acupuncture PC v Lancer Ins Co., 41 Misc 3d 139[A], 2013 NY Slip Op 51994[U], *3 [App Term, 2d Dept 2013] [internal quotation marks omitted] [alteration in original]; Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736, 745-746 [Civ Ct, Bronx County 2014], affd sub nom. Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]). Accordingly, we remand the matter to the extent indicated.”

So the arbitrator and master arbitrator are nameless, but you can look them up if you are curious – this was an e-filed case.   I  remember this case vividly.  I appeared at the arbitration.  The lower arbitrator told me she follows the Maslow rule which states that the disclaimer must set forth a prima facie defense.  I told the lower arbitrator (who I never met before) that she was wrong, and I remember she was indignant at my comment.  Perhaps I came off too strong.  I was furious and stated that I did not care what she did because I will take the case up to the Appellate Division.  She followed through on her promise and I followed through on mine.  Man did I eat my words because the Master Arbitrator gave me the Petrofsky treatment and Justice Tapia said he thought the lower arbitrator’s analysis was spot on.  I was starting to feel as though I did not understand the law anymore.  Sometimes you read affirmations and opinions and you get the feeling that perhaps it is you, not them.

Again, the loss of Norman Dachs (prior to his illness) could be felt in the master arbitration system, as  the master failed to address controlling case law on the box #18 issue.

As happens all too frequently, it took the Appellate Division to straighten this out   If I only had Geico’s resources and volume, I would probably own half the docket at the Appellate Division, First Department (kidding, well kind of… not really).

The lesson here is that if you feel you have a solid legal argument, do not let AAA or a Supreme Court judge let you down.  You will win some and lose some.  Just make sure your papers are in order.