Dismissal for failure to comply with one discovery order

Renelique v Lancer Ins. Co., 2016 NY Slip Op 51596(U)(App. Term 2d Dept. 2016)

(1) By order entered March 31, 2014, the Civil Court granted defendant’s unopposed motion and directed plaintiff to “provide discovery responses to outstanding discovery demands within 60 days.”

(2) When plaintiff’s time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the March 31, 2014 order. On September 9, 2014, plaintiff served its opposition to the motion along with written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court, entered December 11, 2014, which, among other things, granted defendant’s motion and dismissed the complaint.

(3) “Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it 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]). In the case at bar, that plaintiff’s conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply”

The Plaintiff missed one order without any conditional language.  Civil Court dismissed the complaint -which they wouldn’t even do in Federal Court – and the Appellate Term affirmed despite belated compliance.

Unless I am missing something, the Appellate Term plainly got this wrong.

Here is PI case from the Second Department (2 weeks subsequent) that required more than one ignored order:

Bruno v Flip Cab Corp., 2016 NY Slip Op 07617 (2d Dept. 2016)

“Here, Livoti twice failed to appear for depositions in violation of two court orders and never responded to a demand for a bill of particulars. Livoti’s failures to comply with court-ordered discovery coupled with her failure to provide any excuse therefor supports an inference that her conduct was willful and contumacious”

 

The missing video

Fox v Grand Slam Banquet Hall, 2016 NY Slip Op 05897 (1st Dept. 2016)

(1) “Under the particular circumstances of this case, the court abused its discretion in [*2]dismissing the complaint due to plaintiff’s belated disclosure of a video. Although CPLR 3101(i) requires disclosure of “any films, photographs, video tapes or audio tapes” of a party upon demand (see Falk v Inzinna , 299 AD2d 120 [2d Dept 2002]), there was insufficient evidence of willful or contumacious conduct on plaintiff’s part, or prejudice to Grand Slam, to warrant the dismissal of her complaint in the midst of the jury trial (see Colome v Grand Concourse 2075 , 302 AD2d 251 [1st Dept 2003]; Ahroni v City of New York , 175 AD2d 789 [2d Dept 1991]), even if the dismissal was without prejudice.”

(2) “There was no court order directing plaintiff to produce the video, and Grand Slam’s discovery demands only requested that she produce photographs. Furthermore, plaintiff, who claimed to have misplaced the video, did not seek to introduce the edited video, which did not show her fall, into evidence at trial, and was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of Grand Slam’s principals standing in the vicinity.”

This literally was the trial surprise and the court was not going to entertain it.  I can see Judge Gonzalez striking the complaint.  Calmer minds in downtown Manhattan gave the plaintiff a break.  I am unsure I would have been so generous to the plaintiff.

Conditional order striking answer trumps cross-motion for summary judgment

Cps 227 LLC v Brody, 2016 NY Slip Op 00446 (1st Dept. 2016)

“Supreme Court properly struck defendant’s answer based on its finding that he failed to comply with a conditional order requiring compliance with discovery demands, and his pattern of disobeying discovery orders (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [1st Dept 2010]). It also properly awarded plaintiff its attorneys’ fees and costs as a result of defendant’s discovery abuses. As plaintiff was entitled to have the answer struck and a default judgment entered on the complaint, the court properly awarded the sum alleged in the complaint without ordering an inquest, and correctly declined to consider the merits of defendant’s cross motion for summary judgment (see AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904 [1st Dept 2009]).”

How much is enough to satisfy 3101(d)?

Conway v Elite Towing & Flatbedding Corp. 2016 NY Slip Op 00470 (2d Dept. 2016)

Generally in personal injury and no-fault litigation, the report of the exert is annexed to the 3101(d) disclosure, and this is sufficient.  Parenthetically, this is usually an IME report that the uniform rules require be exchanged.

Yet, a statement from the attorney as to the substance of the facts and opinions is sufficient should an expert who did not prepare an IME be called.  The Court said the following:

“The defendants’ expert disclosure statements sufficiently disclosed in reasonable detail the subject matter and the substance of the facts and opinions on which the experts were expected to testify, and a summary of the grounds for their opinions (see CPLR 3101[d][1][i]; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032; Cocca v Conway, 283 AD2d 787, 788; see also Hoberg v Shree Granesh, LLC, 85 AD3d 965; Gagliardotto v Huntington Hosp., 25 AD3d 758, 759). Contrary to the plaintiff’s contention, there is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but rather only the substance of those facts and opinions”

Depositions granted – First department precedent eschewed

Huntington Regional Chiropractic, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51900(U)(App. Term 2d Dept. 2015)

“With respect to the branch of defendant’s motion seeking to compel a deposition of plaintiff, CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are [*2]entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Here, the deposition of plaintiff was material and necessary to defendant’s defense of the action (see Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 48 Misc 3d 136[A], 2015 NY Slip Op 51133[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). We note that plaintiff’s contention that a deposition was unnecessary because plaintiff had served written responses to defendant’s discovery demands lacks merit (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]; cf. Ralph Med. Diagnostics, PC v Mercury Cas. Co., 43 Misc 3d 65 [App Term, 1st Dept 2014]).”

Tsatskis v Interboro Mut. Ins. Co., 2015 NY Slip Op 51891(U)(App. Term 2d Dept. 2015)

“Contrary to the District Court’s determination, defendant’s service of a notice of deposition together with its other discovery demands did not render the notice “procedurally premature.” Defendant was not required to show, as a prerequisite to a deposition of plaintiff, that plaintiff’s discovery responses were inadequate (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]). Indeed, “defendant is entitled to conduct such [deposition] notwithstanding the fact that it had also served plaintiff with other discovery demands” (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3; see CPLR 3102; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th [*2]Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]; see also 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 [1984]). ” The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them’ ” (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3, quoting Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]; see Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679 [2014]; Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482 [2005]). Here, plaintiff failed to establish that defendant’s notice of deposition and other discovery demands constituted an “unreasonable annoyance,” would cause unnecessary expense or would otherwise prejudice plaintiff (see CPLR 3103). Consequently, the District Court erred in striking defendant’s notice of deposition and denying the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition.”

As to depositions: (1) You can request them with an SJ motion; (2) You do not have to show written discovery is deficient; (3) You do not have to show an articulable need to conduct a deposition.

Why a substitute IME doctor is not allowed

(Editor note: original post said “now” allowed.  I meant “not” allowed)

It always seemed common sense that a substitute IME doctor would not be allowed. This case, through application of the post note of issue regulation,  said the following:

Diagne v J.T.S. Trucking, Inc., 2015 NY Slip Op 09369 (1st Dept. 2015)

While plaintiff has made a minimal showing, we find that the resignation of plaintiff’s expert accident reconstructionist following the filing of the note of issue, due to the breakdown in the relationship between plaintiff’s counsel and the expert, and having nothing to do with the case, is a sufficient demonstration of an unusual or unanticipated circumstance, within the meaning of 22 NYCRR § 202.21(d). As to the showing of substantial prejudice which would arise in the absence of this requested discovery (see generally Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005]), we reject the court’s and defendants’ assertion that plaintiff’s new expert could simply rely on the prior expert’s factual findings, as there is no evidence in the record of what those factual findings might be, or whether they are of the type on which the new expert could form an opinion. In any event, there would need to be evidence demonstrating the reliability of the prior findings (see Wagman v Bradshaw, 292 AD2d 84, 85 [2d Dept 2002], citing Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]), and it is not at all clear that this could be done without the testimony of the prior expert, who will apparently not testify.”

 

EBT upheld

Duke Acupuncture, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51701(U)(App. Term 2d Dept. 2015)

“Defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination was material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]).”

Chiropractic Assoc. of Richmond Hill, P.C. v Mercury Cas. Co.,2015 NY Slip Op 51700(U)(App. Term 2d Dept. 2015)

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51702(U)(App. Term 2d Dept. 2015)

 

The errant notice to admit

Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51451(U)(App. Term 2d Dept. 2015)

“On March 19, 2012, after plaintiff failed to respond to the notice to admit, defendant moved for summary judgment dismissing the complaint on the ground of plaintiff’s nonappearances at the duly scheduled EUOs, relying solely upon its notice to admit to establish plaintiff’s nonappearances”

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” (DeSilva v Rosenberg, 236 AD2d 508, 508 [1997]; see Williams v City of New York, 125 AD3d 767 [2015]; Priceless Custom Homes, Inc. v O’Neill, 104 AD3d 664 [2013]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007]). Contrary to defendant’s assertion, its notice to admit went to the heart of the controversy (see Priceless Custom Homes, Inc., 104 AD3d at 664-665; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770 [2011]). Consequently, plaintiff’s failure to timely respond to the notice to admit should not be deemed an admission of the matters stated therein, since the admissions sought by defendant were improper”

You have to wonder whether the Notice to Admit would still work in the Second Department to make a prima facie case?  I am guessing not.  Yet, if a medical provider puts into evidence a denial (as an admission of receipt) and seeks admission of the corresponding bill to the extent it links up to the denial, that would satisfy a prima facie case, in my opinion.

3212(f) – motion denied

IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51213(U)(App. Term 2d Dept. 2015)

“The Civil Court held that, since defendant had annexed its discovery responses to its reply papers, plaintiff’s cross motion to compel disclosure was moot and that there was an issue of fact as to medical necessity because defendant had failed to provide, in a timely manner, the medical records which plaintiff had sought, so that plaintiff could respond to the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action.”

“In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received in time to oppose defendant’s motion (see CPLR 3212 [f]), the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant’s peer reviewer. In light of the foregoing, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action”

In this case, the penalty for ambushing the Plaintiff with late discovery is to essentially lost the medical necessity branch of the motion.

This one makes no sense.

Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co., 2015 NY Slip Op 51084(U)(App. Term 2d Dept. 2015)

At the end of the day, the insurance carrier received everything that it sought.  The Court really should not have vacated plaintiff’s notice of trial.

“The fact that plaintiffs may have responded to the 2012 discovery demands in 2012 (a claim that defendant denies) did not entitle plaintiffs to ignore defendant’s July 16, 2013 demands, even if they were identical to the 2012 version, since they were now addressed to an amended complaint which contained new facts. Thus, the branch of defendant’s motion seeking to vacate the notice of trial should have been granted as it was timely (see Uniform Rules for the Dist Cts [22 NYCRR] § 212.17 [c]) and was based upon a certificate of readiness which contained the erroneous statement that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]; see also Queens Chiropractic Management, P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

A difference without a distinction.