Improvident to examine papers

Elusma v Jackson, 2020 NY Slip Op 04920 (2d Dept. 2020)

“The Supreme Court improvidently exercised its discretion in considering the plaintiffs’ opposition papers, which were submitted after the return date of the motion. The plaintiffs’ vague and unsubstantiated proffered excuse of law office failure did not constitute a reasonable excuse for the late service of their opposition papers (see CPLR 2214[b], [c]; Nakollofski v Kingsway Props., LLC, 157 AD3d 960, 961; Taylor Appraisals v Prokop, 99 AD3d 985, 985). Nevertheless, the court’s consideration of the opposition papers is of no moment since the defendants failed to establish their prima facie entitlement to summary judgment on the issue of liability.”

Who is the attorney?

City Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51981(U)(App. Term 2d Dept. 2019)

This only happens in Civil Kings. I think one attorney in particular really wanted to play this argument all the way to the end. My only thought was to do what you want, I will eventually win. It was one of the sleazier arguments i have endured in my 17 years of practice. The effort I personally went through to stop the insanity was herculean. Sadly, it took the wisdom of several Supreme Court Justices at the Appellate Term to see what Civil Court Special Term and Trial Judges got wrong.

“In this no-fault action, a default was taken against defendant on April 28, 2017, because counsel appearing on defendant’s behalf, The Law Office of Jason Tenenbaum, P.C., was not the attorney of record and the court determined that counsel had not established “that it represents the [defendant] pursuant to the CPLR,” and, thus, that defendant had failed to appear. Defendant, represented by the same counsel, subsequently moved to open the default. It submitted, among [*2]other things, a Supreme Court order of substitution entered May 4, 2017 and a notice of appearance dated April 24, 2017, which lists The Law Office of Jason Tenenbaum, P.C. as the attorney appearing for defendant. By order entered May 8, 2018, the Civil Court (Rosemarie Montalbano, J.) denied defendant’s motion, stating that defendant had “failed to establish a reasonable excuse for failing to have its incoming counsel produce for the court proper proof of its legal representation of defendant.” A judgment was entered on May 24, 2018, awarding plaintiff the principal sum of $4,319.29.

Although no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 [1967]), which, in this case, was the order entered May 8, 2018 denying defendant’s motion.

Prior to the April 28, 2017 court date, on which the trial was scheduled to begin, defendant had made two different attempts to effect a substitution of counsel. It filed an application in the Supreme Court to have an order of substitution executed. It also attempted to move in the Civil Court, by order to show cause (OSC), to stay the trial pending the determination of the Supreme Court application or, in the alternative, for the Civil Court to make the substitution. Defendant submitted, in support of each application, a November 14, 2016 affidavit executed by Richard Dowd, who identified himself therein as defendant’s claim manager. Dowd listed four firms, including defendant’s former counsel of record in this case, that had previously handled no-fault cases for defendant. Dowd stated that those firms had all been disbanded prior to January of 2016 and that the files previously handled by those firms were all being handled by The Law Office of Jason Tenenbaum, P.C. and another named firm. He further stated that “[w]e hereby consent to The Law Office of Jason Tenenbaum, P.C. and [the other firm] to handle all of the files that above counsel handled, where a Notice of Appearance is filed with the Court.” Defendant also submitted, in support of its Civil Court motion, the April 24, 2017 notice of appearance.

The Civil Court refused to sign the OSC. In court on April 28, 2017, an associate with The Law Office of Jason Tenenbaum, P.C. sought an adjournment or a substitution on the same grounds laid out in the proposed motion, which oral application was denied. However, the Supreme Court granted defendant the requested relief by order entered May 4, 2017. The order of substitution, the validity of which has not been questioned, states that it is “ordered and adjudged that [T]he Law Office of Jason Tenenbaum, P.C. or [the other firm], upon Filing a Notice of Appearance is substituted in the stead” of [the disbanded firms] for all no-fault cases involving Global Liberty Insurance Co. of New York.”

CPLR 321 (b) permits the change or withdrawal of an attorney, insofar as is relevant here, by the filing of a consent to change attorney signed by the retiring attorney or by motion on such notice as the court may direct. Defendant did not strictly comply with CPLR 321 (b) (1), regarding a consent to change attorney, because the retiring attorney was a firm that no longer existed. Defendant was unable to comply with CPLR 321 (b) (2), regarding a motion, because [*3]the Civil Court declined to sign its OSC prior to the trial. Under the circumstances, including the presentation of the Dowd affidavit and notice of appearance to the court before defendant was held to be in default, and the order of substitution entered by the Supreme Court soon after defendant was held to be in default, defendant’s failure to comply with CPLR 321 (b) does not justify the entry of a default judgment (cf. EIFS, Inc. v Morie Co.,298 AD2d 548 [2002]; Tillman v Mason,193 AD2d 666 [1993]; Juers v Barry, 114 AD2d 1009 [1985]). Thus, we grant defendant’s motion to open its default in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith,20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment, insofar as reviewed, is reversed, the order entered May 8, 2018 is vacated and defendant’s motion to open its default in appearing for trial is granted.”


Did you go to the funeral?

V.S. Med. Servs., P.C. v Allstate Ins. Co., 2018 NY Slip Op 51124(U)(App. Term 2d Dept. 2018)

‘We note that, although no appeal lies from a judgment entered on the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 [1967]), which, in this case, was the Civil Court’s determination that plaintiff had defaulted by failing to satisfy the condition for the granting of an adjournment (see Park Lane N. Owners, Inc. v Gengo, 151 AD3d 874 [2017]; Delijani v Delijani, 100 AD3d 823 [2012]; Matter of Branch v Cole-Lacy, 96 AD3d 741 [2012]; Sarlo-Pinzur v Pinzur, 59 AD3d 607 [2009]).

“The 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 [1984]), and the Civil Court acted within its discretion in conditioning the granting of an adjournment of the trial upon plaintiff’s providing proof of the funeral that its witness had allegedly been attending. However, we find that, in the circumstances presented, the Civil Court improvidently exercised its discretion in not allowing plaintiff’s witness to testify in order to try to provide the required proof. Consequently, we remit the matter to the Civil Court for a hearing to give plaintiff such an opportunity, following which the court shall determine whether it is satisfied with plaintiff’s proof.

Accordingly, the judgment, insofar as reviewed, is reversed, the determination that plaintiff had defaulted by failing to comply with a condition for the granting of an adjournment is vacated, and the matter is remitted to the Civil Court for a new determination, following a hearing, of whether plaintiff had satisfied the condition for the granting of an adjournment and for any and all further proceedings.”

Here’s a first.  A plaintiff could not prove its prima facie case because its biller failed to present proof (s)he had a funeral on the date of the trial.  Should Plaintiff prove its case, can Allstate prove they mailed the documents?

New trial ordered due to physician unavailability

Normandin v Bell, 2018 NY Slip Op 04053 (3d Dept. 2018)

“When the expert eventually arrived in the late morning of December 1, 2016, he did not have his original file with him. (In the Third Department, the local rules require the treating doctor to have the original file with them.)

According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected [*2]to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. Defendant thereafter orally moved to strike the expert’s testimony. The court denied the oral application as premature.

On December 2, 2016, plaintiffs’ expert did not appear. Defendant renewed his motion to strike the expert’s testimony and plaintiffs moved for, among other things, a continuance. Supreme Court, among other things, denied plaintiffs’ motion for a continuance and granted defendant’s motion to strike. After plaintiffs rested, defendant moved to dismiss the complaint based upon plaintiffs’ failure to prove a prima facie case due to the absence of expert testimony. Supreme Court granted the motion and a judgment was subsequently entered thereon. Plaintiffs now appeal. We reverse.

Whether to grant a continuance rests in the sound discretion of the court (see Matter of Anthony M., 63 NY2d 270, 283 [1984]; Stone v Hidle, 266 AD2d 705, 706 [1999]) and, absent an abuse of such discretion, the court’s determination will not be disturbed (see Gutin-Nedo v Marshall, Cheung & Diamond, 301 AD2d 728, 729 [2003]; Gombas v Roberts, 104 AD2d 521, 522 [1984]). “[I]t is an abuse of the court’s discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Cirino v St. John, 146 AD2d 912, 913 [1989] [internal quotation marks and citation omitted]; see Black v St. Luke’s Cornwall Hosp., 112 AD3d 661, 661 [2013]; Brusco v Davis-Klages, 302 AD2d 674, 674 [2003]).

We conclude that plaintiffs’ motion for a continuance should have been granted (see Stevens v Auburn Mem. Hosp., 286 AD2d 965, 966 [2001]; Cirino v St. John, 146 AD2d at 914). The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs (see Brusco v Davis-Klages, 302 AD2d at 674-675; compare McKenna v Connors, 36 AD3d 1062, 1064 [2007], lv dismissed and denied 8 NY3d 969 [2007]). Furthermore, the expert’s testimony was material, plaintiffs requested only a brief adjournment, the court had allotted two weeks for trial and the continuance request was not made for the purpose of delay. Accordingly, Supreme Court abused its discretion in denying plaintiffs’ request for a continuance (see Zysk v Bley, 24 AD3d 757, 758 [2005]; Mura v Gordon, 252 AD2d 485, 485 [1998]; Hoffner v County of Putnam, 167 AD2d 755, 756 [1990]; Gombas v Roberts, 104 AD2d at 522).

In the real world of law, this type of circumstance always calls for a re-trial.  I would say that even in NF provided you get the availability dates of the doctor, this will work also.

The Civil King adjournment stipulation is not sacrosanct

New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51088(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s contention on appeal, the Civil Court did not improvidently exercise its discretion in considering defendant’s late opposition papers (see CPLR 2004), which raised a triable issue of fact as to whether the claims had been timely denied.”

This is a good decision, especially since the Second Department case law (see my post from last month) encourages courts to exercise their discretion to extend the time to serve and file papers in the absence of prejudice.

The doctor is not available on Monday/s, can I have another day please?

Brooklyn Chiropractic & Sports Therapy, P.C. v Unitrin Direct Auto Ins. Co., 2017 NY Slip Op 50494(U)(App. Term 2d Dept. 2017)

(1) “On the first trial date at issue, July 14, 2014, a Monday, defendant requested an adjournment, stating that its witness could not testify on Mondays. After plaintiff’s witness testified, the court agreed to continue the trial, but did not announce a date. The trial was subsequently rescheduled to August 18, 2014, another Monday. At that date, defendant again requested an adjournment, stating that its witness could not testify on Mondays without at least eight weeks’ notice. That request was denied, and a judgment was entered in favor of plaintiff.”

(2) “in the circumstances presented, we find that the District Court improvidently exercised its discretion in refusing to grant defendant an adjournment or to reschedule the trial for a day other than a Monday or to a Monday more than eight weeks later”

Reversed.

Honestly, the best way to attack this issue is to find out what days your expert is available.  you yell the TAP judge or trial court, my expert is available on a series of days.  Make sure you are within 2-8 weeks of trial date as to availability.  Why is my expert not here today?  He is in the Bronx.

A couple of things happened in this exchange.  First, you accounted for your expert on trial day.  Second, you have not told the Court the days your expert is available.  Third, you protected the record.  Contrast this with the Geico cases of the week before where GEICO did not explain to the Court the experts were available on certain days.

Discretion was not abused

Middle Vil. Chiropractic v Geico Gen. Ins. Co., 2017 NY Slip Op 50431(U)(App. Term 2d Dept. 2017)

(1) “Plaintiff filed a notice of trial on February 25, 2015, and the matter appeared on the trial calendar on April 6, 2015. On April 6, 2015, defense counsel made an oral application to adjourn the trial, stating that “[s]ix weeks is not a reasonable amount of time . . . for our offices to book a witness for all these trials.” The Civil Court denied the application. As defendant was unable to proceed to trial in the absence of its expert witnesses, the court ordered that judgment be entered in plaintiff’s favor. A judgment in favor of plaintiff in the principal sum of $1,549.41 was entered on July 27, 2015.”

(2) “”An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion”

(3) “Here, although expert witness testimony was critical, defense counsel made no showing that due diligence had been exercised in attempting to secure the attendance of its witnesses during the six-week period between the filing of the notice of trial and the action’s appearance on the trial calendar. In view of the foregoing, and the fact that this case had been commenced almost five years before it was reached for trial, we find that it was not an improvident exercise of discretion for the trial court to have denied defendant’s request for an adjournment.”

I must disagree with this decision. Whenever the Civil Courts are given carte blanche to exercise their discretion, problems arise.  I generally agree that some type of diligence is necessary in order to adjourn a final trial.  E.g.:

(a) “I tried to get a doctor and two subs and they were booked”

(b) “My witness is in Kings, where all no-fault trials are heard”

Yet, a case that is first time on –  6 weeks after a notice of trial is filed – should never be presumptive final.  The fact that Civil Court, Queens County under various administrative judges made a promise to the Queens County bar that all PIP cases would banish in the doldrums of hell should not inure to the benefit to the plaintiffs who still file there.  That is what I learn from this case.

And again, I know the First Department would have probably reversed had it been presented with the same set of facts.  Shame on the Appellate Term for perpetuating a broken system.

I believe the court rules need to be amended to require a pre-trial conference and mandate that no-final trial (unless on consent) be scheduled less than 6 weeks following the conclusion of any pre-trial conference.  OCA – do not let me down.

Adjournments not granted as a matter of course

Adotey v British Airways, PLC, 2016 NY Slip Op 08341 (2d Dept. 2016)

(1) “The granting of an adjournment for any purpose rests within the sound discretion of the Supreme Court (see Matter of Steven B., 6 NY3d 888, 889), and its determination will not be disturbed absent an improvident exercise of that discretion (see Diamond v Diamante, 57 AD3d 826, 827). In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors (see Hawes v Lewis, 127 AD3d at 922). It is not an improvident exercise of discretion to deny an adjournment where the need for such a request is based on the movant’s failure to exercise due diligence (see Matter of Breaker v ACS-Kings, 129 AD3d 715, 716; see also Armele v Moose Intl., 302 AD2d 986, 986).

(2) In addition, while a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause (see CPLR 2004). The delinquent party must offer a valid excuse for the delay (see Kubicsko v Westchester County Elec., Inc., 116 AD3d 737, 739).”

People do not realize that cases do not get adjourned automatically because the attorney has “more pressing things to do”.  It is up to the sound discretion of the trial court.  I would imagine there is more than meets the eyes here.

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

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.

Med Mal and Procedural case

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).”