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The Appellate Division has given guidance as to certain portions of the EBT venue provisions December 12, 2009

The Appellate Division examined the provision of the CPLR deposition venue statute as it applies to parties who would be significantly inconvenienced in coming to a downstate deposition center, when they reside a lengthy distance from that location.  In Gartner v Unified Windows, Doors & Siding, Inc., 2009 NY Slip Op 09186 (2d Dept. 2009), the Appellate Division observed the following:

“While depositions of the parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see LaRusso v Brookstone, Inc., 52 AD3d 576, 577; Hoffman v Kraus, 260 AD2d 435, 437). Here, the Supreme Court providently exercised its discretion in denying the appellant’s motion to compel Dora Lillian Alvarado Hernandez, a plaintiff in Action No. 1, and the infant children of David Leonard Coy-Sanchez and Elquin Astaiza Ceballos, the decedents in Action Nos. 1 and 2, respectively, to appear in New York for depositions upon oral examination. The Supreme Court further providently exercised its discretion in granting the cross motion of the plaintiffs in Action No. 1 to compel the appellant to take any deposition upon oral examination of Hernandez and Coy-Sanchez’s infant son (hereinafter the infant son) in Colombia, or to take the depositions of those persons upon written questions, when it determined that the infant son and Hernandez, the wife of the decedent in Action No. 1—who are the next of kin and the real parties in interest—were unable to leave Colombia to travel to New York for deposition (see Hoffman v Kraus, 260 AD2d at 437). Given this undue hardship, it was appropriate for the Supreme Court to [*2]find that an exception to the rule articulated in CPLR 3110(1) was warranted.

The Supreme Court proposed three viable, nonexclusive solutions to the appellant with respect to conducting the outstanding depositions of Hernandez and the infant son pursuant to CPLR 3108: (1) flying the appellant’s New York counsel to Bogota, Colombia, to conduct the depositions upon oral examination at the United States Embassy in that city, with the travel costs and cost of translation to be borne by the plaintiffs in Action No. 1, (2) retaining local counsel in Bogota to conduct the depositions upon oral examination at that location, and (3) conducting the depositions upon written questions. We note that, in addition, those depositions may also be conducted via videoconferencing pursuant to CPLR 3113(d), with the deponents remaining at the United States Embassy in Bogota, Colombia (see Rogovin v Rogovin, 3 AD3d 352, 353). If the appellant elects to pursue this option, the cost of such videoconferencing is to be borne by the plaintiffs in Action No. 1 (see CPLR 3113[d]).”

The Appellate Division has now approved the use of a smorgasbord of options in order to alleviate the problem of the deponent who lives a lengthy distance from the county where the action is venued.

Unsubstantiated averments of law office failure will not open a default in the Second Department December 12, 2009

In Chechen v Spencer, 2009 NY Slip Op 09177 (2d Dept. 2009), law office failure (again) was discussed:

“After the plaintiff failed to appear at a scheduled status conference on November 7, 2007, the court scheduled another status conference to be held on December 11, 2007. The action was dismissed when the plaintiff failed to appear at the December 11, 2007, status conference (see 22 NYCRR 202.27[b]). To be relieved of the default in appearing at that conference, the plaintiff was required to show both a reasonable excuse for the default and the existence of a meritorious cause of action (see CPLR 5015[a][1]; Barnave v United Ambulette, Inc., 66 AD3d 620; Brownfield v Ferris, 49 AD3d 790, 791; Zeltser v Sacerdote, 24 AD3d 541, 542). The plaintiff’s counsel’s excuse of law office failure was vague and unsubstantiated and, thus, did not constitute a reasonable excuse for the default.”

Compare this to the First Department’s view on what is sufficient to demonstrate law office failure in order to show a reasonable excuse to open a default.  See, Lamar v City of New York, 2009 NY Slip Op 08974 (1st Dept. 2009)

Leave to amend should not be granted on the eve of trial December 10, 2009

We often see motions to amend being denied because an amendment is palpably devoid of merit.  We rarely see these motions denied because the motion to amend was made too late.  Here is an example: American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 2009 NY Slip Op 09172 (2d Dept. 2009)

“However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'” (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828, quoting Clarkin v Staten Isl. Univ. Hosp., 242 AD2d 552, 552). “Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly” (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d at 828; see Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 525; Rosse-Glickman v Beth Israel Med. Ctr.-Kings Hwy. Div., 309 AD2d 846). “In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom”

Plaintiff’s conclusory affidavit is insufficient to defeat an insurance carrier’s lack of medical necessity motion December 9, 2009

Now, Travelers has joined in the parade to non-suit plaintiffs who put in pro-forma affidavits of medical necessity in an attempt to defeat an insurance carrier’s well support summary judgment motion:

In Innovative Chiropractic, P.C. v Travelers Ins. Co., 2009 NY Slip Op 52447(U)(App. Term 2d Dept. 2009), the following was observed:

“In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff’s $425.44 claim. In opposition thereto, plaintiff’s treating [*2]chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff’s opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]

I end this post with the following thought.  If you are litigating medical necessity cases against an insurance carrier who makes these types of motions and gears their papers to the eventual trip to the Appellate Term, then you had better make sure that your answering papers not only have affidavits of merit, but have affidavits that are factually detailed and contain a valid medical rationale.  The attorney arguments that many times win in Civil Court or District Court, usually do not fly at the Appellate Term.  I think the failure to procure affidavits of a merit is a risk that is not worth taking.  But that is my take and Mercury’s take on these issues.

Plaintiff's conclusory affidavit is insufficient to defeat an insurance carrier's lack of medical necessity motion December 9, 2009

Now, Travelers has joined in the parade to non-suit plaintiffs who put in pro-forma affidavits of medical necessity in an attempt to defeat an insurance carrier’s well support summary judgment motion:

In Innovative Chiropractic, P.C. v Travelers Ins. Co., 2009 NY Slip Op 52447(U)(App. Term 2d Dept. 2009), the following was observed:

“In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff’s $425.44 claim. In opposition thereto, plaintiff’s treating [*2]chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff’s opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]

I end this post with the following thought.  If you are litigating medical necessity cases against an insurance carrier who makes these types of motions and gears their papers to the eventual trip to the Appellate Term, then you had better make sure that your answering papers not only have affidavits of merit, but have affidavits that are factually detailed and contain a valid medical rationale.  The attorney arguments that many times win in Civil Court or District Court, usually do not fly at the Appellate Term.  I think the failure to procure affidavits of a merit is a risk that is not worth taking.  But that is my take and Mercury’s take on these issues.