Some newer cases

It has been a real quiet few months in our world of law. Nothing too substantial has come out recently. There have been some procedural cases, which have an effect on all areas of law. Here are some of the cases I have found which have interesting overtones to them:

Stipulation of discontinuance with prejudice = presumption of res judicata

Support Billing & Mgt. Co. v State Farm Mut. Ins. Co.
2008 NYSlipOp 52226(U)(App. Term 2d Dept. 2008)

“A stipulation of discontinuance which specifies that it is “with prejudice” raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action”

Discovery on a precluded defense requires proof of a timely denial – timely denial means more than it being facially timely…

Corona Hgts. Med., P.C. v State Farm Mut. Auto. Ins. Co.
2008 NYSlipOp 52185(U)(App. Term 2d Dept. 2008)

“Where a discovery demand concerns matters relating to a defense which a defendant is precluded from raising, it is palpably improper, notwithstanding the fact that the plaintiff did not specifically object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). As defendant did not establish that it timely denied plaintiff’s claims, to the extent defendant seeks discovery in support of its defense of lack of medical necessity, discovery of such precluded matter is palpably improper”

Court sanctions more than one discovery device being demanded simulataneously

First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51963(U)(App. Term 2d Dept, 2008).

In addition, defendant is entitled to conduct an EBT of plaintiff notwithstanding the fact that defendant also served a demand for discovery and inspection of documents (see Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]).

CCA 1201 – give us a reason for allowing an extraterritorial subpoena

Bronxborough Med., P.C. v Travelers Ins. Co.
21 Misc.3d 21 (App. Term 2d Dept. 2008)

Inasmuch as plaintiff’s moving papers failed to establish that the interests of justice would be served by permitting plaintiff to serve, outside the City of New York and the adjoining counties, a subpoena which would require defendant’s employee to appear at trial, and, in addition, did not set forth the location at which plaintiff sought to serve the subpoena, plaintiff’s motion was properly denied.

Don’t send the peer or IME upon demand – the courts will forgive you, but the DOI probably will not.

Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

21 Misc.3d 18 (App. Term 2d Dept. 2008)

In response to a provider seeking to preclude an insurance carrier from raising a defense of lack of medical necessity based upon the pre-suit failure to turn over the peer or IME report in accordance with the regulations, the Appellate Term said no so fast…

“The Insurance Department Regulations provide no sanction for an insurer’s failure to provide a peer review report upon the written{**21 Misc 3d at 20}{**21 Misc 3d at 20} request for one by a provider (see e.g. A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co., 12 Misc 3d 143[A], 2006 NY Slip Op 51415[U] [App Term, 2d & 11th Jud Dists 2006]). While plaintiff urges the court to impose the sanction of preclusion here, we decline to do so because “[h]ad it been the intent of the Department of Insurance” to impose such a sanction, “it would have so provided”

Do not file a notice of trial without obtaining a final order of preclusion or dismissal, etc.

Iscowitz v. County of Suffolk
54 A.D.3d 725 (2d Dept. 2008)

“The plaintiffs waived any objection to the adequacy and timeliness of the disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction

Preclusion – The Appellate Division spells out why we should not sign preclusion stipulations.

Allen v Calleja
2008 NY Slip Op 08685 (2d Dept. 2008)

To warrant preclusion, “the Supreme Court must determine that the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious” (Assael v Metropolitan Tr. Auth., 4 AD3d 443, 443; see CPLR 3126[2]; Moog v City of New York, 30 AD3d 490). Such conduct may be found where, for example, a party repeatedly fails to comply with court orders directing it to produce certain discovery without adequate excuses therefor

And when it comes to the inability to invoke “preclusion” based upon a single failure to comply with a conditional order of preclusion (when this was the first discovery order in the case), the Appellate Term, First Department said the following:

Pelham Parkway Neuro & Diagnostic, P.C. v. Liberty Mut. Ins. Co.

16 Misc.3d 130(A)(App. Term 1st Dept. 2007)

In this action to recover assigned first party no-fault benefits, the drastic sanction of precluding defendant from asserting its defense of exhaustion of policy limits was unwarranted in the absence of a showing that defendant’s single failure to comply with the parties’ discovery stipulation was willful and contumacious