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CPLR 3211(a) – you may cure pleadings in opposition to a preanswer motion January 25, 2009

Haire v Bonelli
2008 NY Slip Op 10250 (3d Dept. 2008)

“When courts consider a motion under CPLR 3211, pleadings are afforded a liberal construction, with all alleged facts accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The court may consider affidavits submitted to remedy any defects in the complaint in determining whether plaintiff has a cause of action, per CPLR 3211 (a) (7), not whether he has stated one (see id. at 88). Under CPLR 3211 (a) (1), dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; Leon v Martinez, 84 NY2d at 88).”

Med Mal and Procedural case December 28, 2008

This is similar to the cases where a peer doctor fails to review sufficient documentation before arriving at an opinion.

“Lack of Foundation to form an expert opinion”

Luu v Paskowski
2008 NY Slip Op 10135 (2d Dept. 2008)

The pertinent portion of this case is as follows:

“[Plaintiff’s expert] Zola did not refer to any part of the hospital records, and did not state when the blood loss occurred or how it caused the small bowel obstruction and hematoma. Zola made no reference to any of the hospital records in his affidavit, and did not state that he had reviewed the pleadings and depositions. Zola’s affidavit was conclusory and lacked a foundation (see Thompson v Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d at 418).

Procedural – default viz a vi failure to obtain an adjournment on the record

Diamond v Diamante
2008 NY Slip Op 10117 (2d Dept. 2008)

“plaintiffs and their attorney, nonparty James D. Reddy, appeal from a judgmentwhich, inter alia, upon the denial of the plaintiffs’ application for an adjournment, is in favor of the defendants and against the plaintiff, dismissing the complaint, and against the nonparty James D. Reddy awarding costs and imposing sanctions.”

“Where, as here, the order appealed from was made upon the plaintiffs’ default, “review is limited to matters which were the subject of contest below” (Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [internal quotations marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Wexler v Wexler, 34 AD3d 458, 459; Brown v Data Communications, 236 AD2d 499). [*2]Accordingly, in this case, review is limited to the denial of the plaintiffs’ request for an adjournment, on the appeal by the plaintiffs, and the award of costs and imposition of sanctions against nonparty James D. Reddy, on the appeal by the nonparty (see Matter of Paulino v Camacho, 36 AD3d 821, 822; Tun v Aw, 10 AD3d 651, 652).

Turning to the merits, “[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Steven B., 6 NY3d 888, 889; Matter of Sicurella v Embro, 31 AD3d 651, lv denied 7 NY3d 717), and its determination will not be disturbed absent an improvident exercise of that discretion (see Davidson v Davidson, 54 AD3d 988). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v Embro, 31 AD3d at 651), including “the merit or lack of merit of the action, extent of the delay,” the number of adjournments granted, the “lack of intent to deliberately default or abandon the action” and the length of the pendency of the proceeding (Belsky v Lowell, 117 AD2d 575, 576; see Matter of Claburn v Claburn, 128 AD2d 937, 938).”

The future is bright for medical necessity msj's December 28, 2008

Again, this is not necessarily a pure no-fault post. However, this is a no-fault post by analogy. I came across a doosy of a decision and order from the Appellate Division, Second Department. It kind of cuts both ways on two different issues. Hopefully you will see where I am going with this, after you see the excepts I am publishing.

Geffner v North Shore Univ. Hosp.
2008 NY Slip Op 10124 (2d Dept. 2008)

To support her allegations [of medical malpractice and in opposition to Defendant’s motion for summary judgment], the plaintiff submitted the expert affidavit of Charles Phillips, a physician certified in emergency medicine. Dr. Phillips’ affidavit was of no probative value, however, as it contained opinions outside his area of expertise and did not establish a foundation for his opinions (see Glazer v Choong-Hee Lee, 51 AD3d 970; Mustello v Berg, 44 AD3d 1018, 1018-1019; Behar v Coren, 21 AD3d 1045, 1046-1047)….

“Finally, the plaintiff submitted the expert affirmations of Howard C. Adelman, a physician certified in clinical pathology and cytopathology, which alleged that the defendant doctors misdiagnosed the decedent as suffering from myelodysplastic syndrome, acute myeloid leukemia, and adenocarcinoma. Dr. Adelman’s affirmations were insufficient to raise a triable issue of fact with respect to the alleged misdiagnoses since they failed to address the evidence relied upon by North Shore’s experts in rendering their opinions that the diagnoses were correct (see Germaine v Yu, 49 AD3d 685, 687; Fhima v Maimonides Med. Ctr., 269 AD2d 559, 560).

Issue #1: Doctors who give opinions outside their scope of expertise.

This is a problem, however, an accounting of their skills and expertise should get one of the trouble that was wrought in this cae

Issue #2: Failure to address movant’s proof.

Big problem in no-fault litigation.

Accelerated Judgment not availabe in criminal proceedings December 26, 2008

Yes, this is a no fault blog that I maintain, mostly for my own amusement. I take pride in the level of scholarship set forth in this blog. I try to avoid topics that do not apply either directly or tangentially to the arena of PIP issues. This will be a rare exception.

In my daily reading of the App. Term criminal cases, I found an interesting issue that has satisfied my curiosity. Likewise, I find the outcome disturbing.

The case that is interesting is entitled: People v Manupelli (Christine), 2008 NY Slip Op 28520 (App. Term 2d Dept. 9th and 10th Jud. Dis. 2008). It says the following:

In this prosecution based on defendants’ alleged violation of local ordinances requiring landfill permits and barring the diversion of rainwater onto neighboring properties, defendants moved pretrial to dismiss the accusatory instruments pursuant to CPLR 3211 (a) (7). The Justice Court granted the motion, concluding, in essence, that there was a legal impediment to conviction (CPL 170.30 [1] [f]), finding that defendants’ proof in support of the motion established both their entitlement to an exclusion from the permit requirement and the People’s inability to prove, on the facts, that defendants are legally responsible for the alleged illegal diversion of rainwater onto a neighbor’s property.

Defendants’ motion should have been denied. With rare exceptions (e.g. CPL 60.10), the CPLR is inapplicable to criminal proceedings (CPLR 101; CPL 1.10 [1]; People v Knobel, 94 NY2d 226, 230 [1999]; People v Crisp, 268 AD2d 247 [2000]; People v Silva, 122 AD2d 750 [1986]; see generally People ex rel. Hirschberg v Orange County Court, 271 NY 151, 155 [1936]). The authority of a criminal court to dismiss an information pursuant to a pretrial motion (see CPL 170.30) does not include a motion for accelerated judgment available to civil court litigants (see CPLR 3211, 3212), and, in any event, the court had no authority to dismiss an accusatory instrument on the ground that, in its view, the People could not produce sufficient [*2]evidence to prevail at trial (e.g. People v Asher, 16 Misc 3d 89, 91 [App Term, 9th & 10th Jud Dists 2007]). Thus, on this record, there were no grounds to dismiss the accusatory instrument upon defendants’ pretrial motion (see CPL 170.30).

My thought has always been this: why is it that somebody who risks going to prison or ending up with legal impediments attendant to a criminal conviction have markedly less procedural rights than a civil litigant? That has bothered me to no end and, yet in New York, that is the rule. You need not be a criminal attorney to see how wrong this all is. Yet, this is the world we live in.

Food for thought this Christmas.

I was beaten by a fellow blogger on the verification issue… December 26, 2008

I found this story a week before it was brought to life by a fellow blogger, but since the fellow blogger published it first, he gets deserved credit. the name of the case is: Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term. 2d Dept. 2008).

This was the case involving a premature follow-up additional verification and the preclusion sanction due to this occurring. It is interesting to see the Second Dept taking up this issue. The dissenter at the Appellate Term observed other Appellate Division cases that found the sanction of preclusion unwarranted in this factual scenario. This is probably what lead the App. Div to grant leave as to this issue. As I have learned recently through personal experience in two recent matters, the App. Div. does not like to grant leave to no fault matters and does not like motions to reargue when a non-articulated argument, if properly preserved, would reverse their opinion and order.

That is the only case of interest on the horizon that i have seen lately…