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A 5102(d) case and a jurisdictional riddle of how not to draft a notice of appeal August 26, 2019

Cline v Code, 2019 NY Slip Op 06251 (4th Dept. 2019)

I have always said the Fourth Department has some of the more interesting discussions of everyday legal topics with which we deal.

Here, Plaintiff moved for summary judgment on the serious injury threshold. Defendant moved for summary judgment on lack of serious injury. The parties adduced dueling medical affidavits. Supreme Court granted the Defendant’s threshold motion. But the notice of appeal sought to appeal from the denial of the cross-motion.

Very esoteric debate between the four (4) Justice majority and the one (1) Justice dissent.

The salient portion states: ” I cannot agree with the majority’s reading of the notice of appeal as broadly encompassing both defendant’s motion and plaintiff’s cross motion because it essentially ignores the limiting language quoted above. To reach that conclusion, the majority states that it is construing the words in the notice of appeal, “from each and every part,” to mean that plaintiff is also challenging the grant of defendant’s summary judgment motion. In doing this, however, the majority ignores the specific restricting language that follows the word “order,” i.e., “denying” and “[p]laintiff’s [c]ross[ m]otion.” It is one thing to broadly construe ambiguous language; it is another thing entirely to do so in the face of plain, express limiting language to the contrary. “

Anyway, the Plaintiff should have written in its notice of appeal: “Appeal from the order dated ____, and each and every portion as adversely affected thereby…” Less is more folks.

The expert affidavit August 21, 2019

M.C. v Huntington Hosp., 2019 NY Slip Op 06186 (2d Dept. 2019)

This must be my new favorite topic.

“While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v Coren, 21 AD3d at 1047; see Galluccio v Grossman, 161 AD3d 1049, 1052). The plaintiffs’ expert, who was board certified in pediatric emergency medicine, was qualified to opine as to whether the delays in diagnosing and treating the infant plaintiff’s testicular torsion, an emergent condition, deviated from the accepted standard of care and whether the deviations were a proximate cause of the loss of the infant plaintiff’s testicle (see Simpson v Edghill, 169 AD3d 737, 738-739).”

“The fact that the plaintiffs’ expert is not a urologist or surgeon is not material, as the plaintiffs are not alleging that DiBlasio improperly performed the surgery to treat the testicular torsion. Rather, they allege that the defendants improperly delayed the diagnosis and treatment of the infant plaintiff’s testicular torsion in the emergency room, causing a delay in the surgery and the eventual loss of the testicle. The plaintiffs’ expert laid the requisite foundation for his asserted familiarity with emergency medicine and the treatment of young adolescent males for various conditions, including testicular torsion. As a pediatric emergency physician, he is qualified to render an opinion in this case regarding the defendants’ actions in the emergency room.”

“While the plaintiff’s expert was licensed to practice in Connecticut, rather than in New York State, an expert need not be from the exact same locality as where the occurrence took place. It is sufficient if the expert attests to familiarity with either the standard of care in the locality or to a minimum standard applicable locally, statewide, or nationally (see McCollough v University of Rochester Strong Mem. Hosp., 17 AD3d 1063Hoagland v Kamp, 155 AD2d 148, 150; Payant v Imobersteg, 256 AD2d 702, 705). The affirmation of the plaintiff’s expert sufficiently identified, and assessed the defendants’ conduct against, a relevant standard of care.”

I have yet to see an out of scope provider establish the proper foundation except in my no-fault case where Dr. Tamburro’s (our favorite pediatrician) affidavit would obviously fail these tests. Smh.

No jurisdiction August 18, 2019

EMC Health Prods., Inc. v Maryland Auto. Ins. Fund, 2019 NY Slip Op 51316(U)(App. Term 2d Dept. 2019)

” In support of its motion, defendant alleged that it conducts no business in the State of New York, including that it does not issue insurance policies here, has no sales representative or agent within [*2]the state, and is not licensed to transact business within the State of New York. Plaintiff opposed the motion”

The motion was granted.

This case hearkens back to the bounds of jurisdiction in this State. While a Court may not be able to exercise personal jurisdiction, the deemer provision in the insurance contract combined with the compulsory arbitration law may lead to a different conclusion.

An outstanding verification trial August 18, 2019

Island Life Chiropractic, P.C. v Travelers Ins. Co., 2019 NY Slip Op 51273(U)(App. Term 2d Dept. 2019)

This area of law has contributed much body to the procedural world of 3212(g) and CPLR 3123. We now have another matter that is shaping this issue.

(1) “Where a no-fault insurer is relying on the defense that an action is premature because verification is outstanding, it is the defendant insurer’s prima facie burden at trial to demonstrate (1) that verification requests were timely mailed and (2) that the defendant did not receive the requested verification (see 11 NYCRR 65-3.8 [a]; Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 140[A], 2017 NY Slip Op 51857[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As there was a finding for all purposes in this action that defendant had timely mailed verification requests to plaintiff, defendant did not have to prove this element of its defense at trial. In contrast, there was no finding that defendant had not received the requested verification. If the motion court had also found, for all purposes in the action, that defendant had not received the requested verification, meaning that that fact could no longer be disputed or rebutted, then, rather than denying defendant’s motion for summary judgment and making CPLR 3212 (g) findings, the appropriate course of action in this case would have been to grant summary judgment to defendant (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

(2) Instead, the motion court simply found that plaintiff had raised a triable issue of fact as to that question, the only impact of which was that a trial, limited to the issue of “whether the requested verification remains outstanding,” would take place (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). “

The net effect is for a new trial where Defendant bears the burden of showing lack of receipt of verification. The better question – and one you should opine on – is can this be satisfied through subpoenaing Plaintiff’s deponent in the summary judgment motion and having him/her prove the exact verification was mailed? And assuming this a party witness, the penalty for refusal to obey a subpoena should be striking the pleadings.

EUO bust statement August 10, 2019

Right Aid Med. Supply Corp. v Ameriprise Auto & Home, 2019 NY Slip Op 51270(U)(App. Term 2d Dept. 2019)

They are the best evidence of the no-show. New York considers them business records as well as being an affidavit. Yet, the practitioner who fails to properly utter certain things on the record will doom the no-show case.

“Contrary to the finding of the Civil Court, the transcript of the second EUO does not state that [*2]the EUO, which was scheduled to commence at 10 a.m., “was commenced” at 10:51 a.m. Rather it was at 10:51 a.m. that the attorney began putting his statement on the record, at which point he stated that he had been waiting approximately an hour for plaintiff to appear. As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint. “