Move quickly or do not move at all

Cashbamba v 1056 Bedford LLC, 2019 NY Slip Op 03456 (1st Dept. 2019)

(1)”Defendants failed to comply with the requirement of 22 NYCRR 202.7 to submit an affirmation of good faith in support of their disclosure-related motion. Contrary to their contention, their counsel’s affirmations are insufficient, because they do not include the time, place, and nature of the consultations that counsel had with plaintiff’s counsel to try to resolve the issues raised by the motion (22 NYCRR 202.7[c]; see 241 Fifth Ave. Hotel, LLC v GSY Corp., 110 AD3d 470, 471-472 [1st Dept 2013]; see also Loeb v Assara N.Y. I, L.P., 118 AD3d 457, 457-458 [1st Dept 2014]). To the extent defendants rely on letters exchanged between their counsel and plaintiff’s counsel, the letters are insufficient, because they relate to only one of the items sought by defendants and do not reference any discussions between counsel. Moreover, the record does not support defendants’ contention that the parties have historically been unable to resolve discovery disputes without court intervention.”

(2) “Furthermore, defendants failed to provide an adequate explanation for their delay in seeking to compel the examination after plaintiff failed to appear. They also failed to explain why they did not move to reargue and/or appeal the court’s decision of June 15, 2017, wherein it denied defendants’ motion to vacate the note of issue. In its decision, the court stated that the motion was denied as moot as “[a]ll discovery sought in the motion has now been provided.” Instead, defendants waited until August 27, 2018, to move to strike the complaint or to preclude plaintiff from providing evidence of his neurological injuries or for an order compelling plaintiff to appear for an independent neurological examination and to provide authorizations.”

The lesson here is once that Note of Issue is thrown down, you need to act expeditiously, whether to reargue or to appeal. Defendant fell asleep here and got severely punished.

Discovery penalty: dismissal

Queens-Roosevelt Med. Rehabilitation, P.C. v Response Ins. Co., 2019 NY Slip Op 50608(U)(App. Term 2d Dept. 2019)

“Contrary to the finding of the Civil Court, the questions at issue were “designed to elicit information which was material and necessary to the appellant’s defense of this action” (Parker v Ollivierre, 60 AD3d 1023, 1024 [2009]), as Dr. McGee’s involvement in other medical service corporations, including how much time he spent at those entities, could necessarily affect his involvement in the daily activities and management of plaintiff, and were relevant to whether Dr. McGee was plaintiff’s “bona fide owner [and] operator.” Moreover, counsel’s “directions not to answer [the questions at issue] were not otherwise authorized by [Uniform Rules for the Conduct of Depositions] 22 NYCRR [§] 221.2” (id. at 1024). In light of plaintiff’s failure to fully comply with discovery over many years, plaintiff’s refusal to answer the questions at issue may be presumed to be willful and contumacious (see e.g. Honghui Kuang v MetLife, 159 AD3d 878 [2018]); therefore, a sanction is warranted. Given that certain of plaintiff’s claims have already been struck based upon its noncompliance with discovery and that Dr. McGee has already been deposed twice, we find that striking plaintiff’s complaint is the appropriate sanction (see id.).”

This case is interesting for a bunch of reasons. First, Dr. McGee should have had shells on his payroll to administer the tests and treatments at his facility, so he could account for his large practice. Second, the direction not to answer a question is just dangerous unless the question is palpably improper. Example: “What’s her motivation for saying that you lied”. Clearly palpably improper. Better question: “Are you aware of why she said you lied?” But, I suppose McGee asked for this outcome.

Yet, don’t you think in light of Dr. McGee appearing twice – a remedy short of dismissal with prejudice (SOL makes it with prejudice) – perhaps a third deposition or preclusion might be a proper remedy?


Fu-Qi Acupuncture, P.C. v Travelers Ins. Co., 2019 NY Slip Op 50273(U)(App. Term 2d Dept. 2019)

“Defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, the notice of trial and certificate of readiness should be vacated (see Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).”

Discovery, especially depositions, is potent because it can really increase the transactional costs of litigating all types of matters. The current fee structure of handling litigation on all sides makes discovery the exception and not the rule. An in house firm gets a flat rate to handle a file. If more cases go the deposition route, then more labor will be spent on motion practice and conducting depositions. An hourly firm would obviously salivate at this type of strategy but no insurance carrier really wants to pay $7,000-$10,000 in litigation expenses on a PIP case. So, from the defense side, this strategy just cannot work.

The Plaintiffs only lose money since they receive a stat attorney and usually some amount of principle and interest regardless of the amount of work put into a file. Assuming full discovery, their margins are hammered. Point is full court discovery cannot make sense in the current environment.

Court hints at its view towards renewal when discovery is outstanding

Corvino v Schineller, 2019 NY Slip Op 00259 (2d Dept. 2019)

“The defendant’s contention that the plaintiff’s motion should have been denied without leave to renew is not properly before this Court. However, we note our concern that, where a motion for summary judgment has been made prematurely, granting leave to renew upon completion of discovery may only encourage the making of premature motions, resulting in successive motion practice and, in turn, successive appeals, thus increasing the burdens on this Court. Motion courts should therefore exercise their discretion with care in deciding whether to give advance permission to a movant to make a successive motion for summary judgment. “

The Scheinkman Court has been sending out signals that he wants the Second Department to run similar to how Westchester Supreme Court ran when Justice Schneinkman was the administrative judge at that court. We saw an admonition to the trial judges in a criminal case involving involuntariness of pleas. Also, the Court warned us that extensions of time to perfect briefs would not be ripe for the asking.

Personally, they should break up the Second Department into a new Fifth Department for Long Island and Mid-Hudson Valley matters. The Court just hears too many cases, and it is not fair to the Judges or the attorneys to wait 2 years for argument/submission or 3 months following same for an opinion.

Discovery – what is material and necessary

Brito v Gomez, 2018 NY Slip Op 08105 (2d Dept. 2018)

(1) “We are asked on this appeal to decide whether a litigant in a personal injury action who makes a claim for lost earnings and loss of enjoyment of life waives the physician-patient privilege with respect to prior injuries not raised in the lawsuit. Based on our settled precedent, we find that the privilege is waived only for injuries affirmatively placed in controversy.”

(2) “Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder.  Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident.”

(3) “However, our cases since Caplow has granted discovery of medical records only where the plaintiff has alleged an aggravation or exacerbation of prior injuries.”

(4) “Here, as we noted earlier, plaintiff does not claim that her prior knee injuries were exacerbated or aggravated as a result of the 2014 accident. Accordingly, plaintiff’s claim for lost earnings does not affirmatively place the condition of her knees in controversy ”

(5a) “Defendants cite to Second Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The Second Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries”

(5b) “We are not persuaded by the reasoning of the Second Department. In our view, the Second Department’s precedent cannot be reconciled with the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy.”

And we have a two judge dissent.  The Court of Appeals will tell us next year whether broad based allegations in the bill allow the entire body to be subject to disclosure or the prior injuries alleged as the First Department alleges..

Waiting to conduct discovery fatal to 3212(f) claim

Williams v New York City Tr. Auth., 2018 NY Slip Op 51286(U) (App. Term 2d Dept. 2018)

Inaction is acquiescence.

“At the outset, we reject plaintiff’s argument that defendant’s motion should be denied as premature on the ground that discovery was not yet complete (see CPLR 3212 [f]), and that plaintiff should be allowed to depose defendant’s employee and obtain certain documents. ” ‘A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue’ ” (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006], quoting Cruz v Otis El. Co., 238 AD2d 540 [1997]; see also Douglas Manor Assn. v Alimaras, 215 AD2d 522 [1995]; Stevens v Hilmy, 185 AD2d 840 [1992]). Plaintiff did not schedule the deposition or obtain the documents in question in the three years that the action had been pending before defendant made the summary judgment motion. Thus, plaintiff’s “own inaction is responsible for [his] failure to ascertain any facts” necessary to defeat defendant’s motion (Stevens v Hilmy, 185 AD2d at 842).”

Cart before the horse

Wegner v Town of Cheektowaga, 2018 NY Slip Op 01711 (4th Dept. 2018)

I read this order from Supreme Court, New York County involving an argument that discovery can prove the existence of the use of independent contractors, in an attempt to disclaim no-fault coverage.  I knew it was putting the cart before the horse.  Anyway, here is the case that answers my question:

“We also conclude that the court erred in granting plaintiff’s cross motion inasmuch as “he may not use discovery—either pre-action or pretrial—to remedy the defects in his pleading” (Weinstein v City of New York, 103 AD3d 517, 517-518 [1st Dept 2013]; see Naderi v North Shore-Long Is. Jewish Health Sys., 135 AD3d 619, 620 [1st Dept 2016]).”

Facebook is discoverable upon a proper foundation

Forman v Henkin, 2018 NY Slip Op 01015 (2018)

The Court has now laid the proper foundation that is required for Facebook material to be discoverable.  Based upon the below predicate, the following was noted:

(1) “That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable (see e.g. Kregg v Maldonado, 98 AD3d 1289, 1290 [4th Dept 2012] [rejecting motion to compel disclosure of all social media accounts involving injured party without prejudice to narrowly-tailored request seeking only relevant information]; Giacchettosupra, 293 FRD 112, 115; Kennedy v Contract Pharmacal Corp., 2013 WL 1966219, *2 [ED NY 2013]). Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation — such an order would be likely to yield far more nonrelevant than relevant information. Even under our broad disclosure paradigm, litigants are protected from “unnecessarily onerous application of the discovery statutes” (Kavanaughsupra, 92 NY2d at 954).

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules — there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate — for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

– – – – – – – – – –

“At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.”

Assume Plaintiff says she never posts photos.  Then, an offer of proof was be necessary to obtain disclosure – this is what I see here,

Dismissed due to discovery violation

Maria S. Masigla, P.T. v United Servs. Auto. Assn., 2017 NY Slip Op 51664(U)(App. Term 2d Dept. 2017)

“The determination to strike a pleading based on a party’s failure to provide discovery pursuant to a court order lies within the sound discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012]; Giano v Ioannou, 78 AD3d 768, 770 [2010]; Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]). Dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy but is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). Plaintiff’s willful and contumacious conduct can be inferred here from its refusal to respond to defendant’s discovery demands after being directed to do so in the December 18, 2014 order, which order noted that any failure to comply therewith would result in the dismissal of the complaint, and from plaintiff’s failure to provide a reasonable excuse for its failure to comply”

If I am a betting man, Defendant asked for taxes, sign in sheets, banking records, payroll information, billing information, LASA agreements, etc.  Plaintiff argued that Defendant did not articulate a basis for invasive discovery.  The Court disagreed twice.  Plaintiff then fell on the sword.  That’s what I see here.  This then followed with a nicely bound brief from Freemont Payne and the rest, as they say, is history.

I have not seem too many Freemont Payne briefs through this office in about 6 months.  I guess I am finally getting along with Oleg (lol)

Limitations on medical record discovery

Spencer v Willard J. Price Assoc., LLC, 2017 NY Slip Op 08456 (1st Dept. 2017)

“In this slip and fall action, plaintiff seeks to recover for orthopedic injuries allegedly sustained to her knees, neck, back and shoulder. Under the circumstances, the motion court did not improvidently exercise its discretion in denying defendants’ motion to compel discovery of over 20 years of disability records relating to other conditions (see Gumbs v Flushing Town Ctr. III, L.P., 114 AD3d 573 [1st Dept 2014]). By bringing suit to recover for her physical injuries, plaintiff waived the physician-patient privilege as to all medical records relating “to those conditions affirmatively placed in controversy” (Felix v Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012]), but the court reasonably found that she did not place in issue her entire medical condition, including her diabetic condition and high blood pressure (see Kenneh v Jey Livery Serv., 131 AD3d 902 [1st Dept 2015]; Gumbs at 574).”

My question whenever I read these cases is whether the BP pleaded loss of enjoyment of life, which implicitly allows a fishing expedition into the person’s medical history.  I pulled the pertinent part of the BP and it says as follows:

“The plaintiff may permanently suffer from the aforesaid injuries from its effects upon his (sic) nervous system and may limit her activities in his (sic) employment and her life.  Plaintiff may be restricted in her normal life and activities and may permanently require medical and neurological care and attention.”