Mallela based disclosure granted

Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co., 2013 NY Slip Op 51745(U)(App Term 2d Dept. 2013)

“Defendant established that the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed. Moreover, defendant’s outstanding discovery demands seek to ascertain whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, and in light of the fact that defendant set forth specific and detailed reasons for seeking the discovery at issue, the Civil Court properly granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery

Tax records denied in Mallela based disclosure matter

W.W. Med., P.C. v Allstate Ins. Co., 2013 NY Slip Op 51743(U)(App. Term 2d Dept. 2013)

“It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]; see also Benfeld v Fleming Props., LLC, 44 AD3d 599 [2007]). Here, defendant failed to demonstrate that plaintiff’s tax returns were properly discoverable and, as a result, at this juncture, defendant’s request for such documentation should have been denied. Defendant, however, established its [*2]entitlement to depose Dr. Wilkins Williams (see CPLR 3101 [a]; see also All Boro Psychological Servs., P.C., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U]). In light of the foregoing, the Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff’s cross motion seeking a protective order.”

The insurance carrier is not entitled to tax records absent special circumstances, which on this record and at this point were non-existent.

Conditional discovery order vacated upon showing of law office failure

Elite Med. NY, P.C. v American Tr. Ins. Co., 2013 NY Slip Op 51738(U)(App. Term 2d Dept.2013)

“Contrary to plaintiff’s argument, defendant offered a reasonable excuse of law office failure for its three-week delay in complying with the directives of the conditional discovery order (see Rothman v Westfield Group, 101 AD3d 703 [2012]; Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; see also Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51880[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 29 Misc 3d 127[A], 2010 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Defendant also demonstrated meritorious defenses to the action. Accordingly, the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from presenting its evidence.”

Blown discovery stipulation/order granting conditional preclusion relief defeated upon showing of law office failure.

Deposition of own party allowed into evidence

Arad v Hanza, LLC, 2013 NY Slip Op 05786 (2d Dept. 2013)

I would put this in the category of short but potent procedural cases:

“Contrary to the plaintiff’s contentions, the Supreme Court did not err in permitting the defendants to introduce the deposition testimony of the defendant Amadou Bah at trial due to Bah’s unavailability, in light of the diligent but unsuccessful efforts of the defendants to locate him (see CPLR 3117[a][3][iv]; cf. Dailey v Keith, 306 AD2d 815, affd 1 NY3d 586).

The court also properly denied the plaintiff’s request for a missing witness charge as to Bah, as “a genuine inability to locate a witness will foreclose a missing witness instruction”

Can’t locate your client?  No problem.

Court takes judicial notice of Supreme Court declaratory judgment action

Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 2013 NY Slip Op 51441(U)(App. Term 2d Dept. 2013)

“the parties entered into a so-ordered stipulation, dated July 25, 2008, pursuant to which defendant was to provide plaintiff with responses to its interrogatories within 60 days or be precluded from offering evidence at trial.”

“In 2009, defendant commenced a declaratory judgment action in Supreme Court, Nassau County, against, among others, plaintiff and its assignor, in regard to a number of accidents, including the July 2007 accident. The Supreme Court issued a stay of all pending and future actions between the parties in February 2009. On June 15, 2010, a default declaratory judgment was entered in the Supreme Court in favor of defendant, finding, among other things, that the policy in connection with plaintiff’s claim is “null and void,” that defendant had no duty to provide coverage for the subject no-fault claim, and that since plaintiff and its assignor had “violated their respective obligation [sic] to appear for an examination under oath . . . [defendant] has no duty to defend or indemnify [plaintiff and its assignor] . . . for any claims of personal injury, no-fault, UM or SUM benefits.”

“In 2011, plaintiff moved, in the Civil Court action, for a final order of preclusion and summary judgment. Defendant cross-moved for summary judgment dismissing the Civil Court complaint on the ground that the June 15, 2010 declaratory judgment had res judicata effect. Thereafter, by order dated September 16, 2011, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.”

“…It is well settled that default judgments can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).”

“Although the conditional preclusion order contained in the July 2008 so-ordered stipulation became absolute upon defendant’s failure to comply therewith (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Coleman v Thompson, 5 Misc 3d 136[A], 2004 NY Slip Op 51543[U] [App Term, 2d & 11th Jud Dists 2004]), thereby precluding defendant “from offering evidence at trial,” it did not preclude the Civil Court from giving res judicata effect to the June 10, 2010 declaratory judgment (see e.g. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; Ptasznik v Schultz, 47 AD2d 197, 198 [1998]).”

In this case, note that the Court cites to pinpoint citation 61 AD3d 13, 20.  Page 20 of Kingsbrook states that a Court must take judicial notice of: “…undisputed court records and files….  Even material derived from official government Web sites may be the subject of judicial notice…”

Discovery disallowed when EUO requests are not responded to by deponent

Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 51457(U)(App. Term 2d Dept. 2013)

“Plaintiff argues that defendant failed to prove that it had timely mailed its EUO scheduling letters and denial of claim forms, that defendant’s EUO requests were not justified, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f).”

“Since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not be heard, and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion (see CPLR 3212 [f]).”

This is the first time that the court has held that the failure to respond to an EUO demand estopps the provider from seeking disclosure as to the reasonableness of the EUO letters.

Medical provider cannot defeat IME non-cooperation defense through stating “discovery is outstanding”

South Nassau Community Hosp. v Kemper Independence Ins. Co., 2013 NY Slip Op 51384(U)(App. Term 2d Dept. 2013)

In support of its motion for summary judgment, defendant submitted an affidavit by the owner of Alternative Consulting and Examinations (ACE), the entity which had scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with ACE’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted an affidavit of its examining chiropractor, who stated that plaintiff’s assignor had failed to appear for the duly scheduled IMEs. As the District Court found, for all purposes in the action, that defendant had timely mailed the denials at issue, and as plaintiff does not challenge that finding, defendant established its prima facie entitlement to summary judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720[2006]).

In opposition to the motion, plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009])

This case is more important in the realm of Unitrin-Solorzano based declaratory judgment actions, when Defendant medical providers argue that the motion for summary judgment seeking a declaration of non-coverage is inappropriate because disclosure is outstanding.  This is the first appellate case that has been presented with this fact pattern.


The errata sheet is not a do over

Oh man, how many times do you get an EBT or EUO transcript that has an errata sheet that actually rewrote the examination?  I will one of these days put on here an EUO I did where EIP admitted that he was a ULD (unlisted driver) and then in his errata sheet changed all of the answers.

Here is the case:   Ashford v Tannenhauser, 2013 NY Slip Op 05508 (2d Dept. 2013)


“In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been “nervous” during his deposition. CPLR 3116(a) provides that a “deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them.” Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall (see Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687Shell v Kone El. Co., 90 AD3d 890Thompson v Commack Multiplex Cinemas, 83 AD3d 929Kuzimin v Visiting Nurse Serv. of N.Y., 56 AD3d 438, 439). In the absence of the proposed alterations, the injured plaintiff’s deposition testimony was insufficient to raise a triable issue of fact with respect to the defectiveness or inadequacy of the ladder so as to warrant the denial of summary judgment. Likewise, in opposition to the defendants’ prima facie showing that the trust was an out-of-possession landlord with no duty to repair or maintain the ladder or the floor, the plaintiffs failed to raise a triable issue of fact. Therefore, the Supreme Court erred in denying the defendants’ motion for summary judgment dismissing the complaint.”

The SIU file is open for discovery and more

All Boro Psychological Servs., P.C. v Allstate Ins. Co., 2013 NY Slip Op 51124(U)(App. Term 2d Dept. 2013)

(1) SIU file is not priveleged

“To avoid having to produce its SIU file, defendant had to establish that its SIU file was prepared solely for litigation (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101 [1986]; see also Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2004]). As defendant failed to demonstrate that it had decided to deny plaintiff’s claims prior to commencing its investigation, the contents of defendant’s SIU file are not privileged and are discoverable (Bombard, 11 AD3d at 648).”

(2) Stipulation regarding global fact not binding in other litigation

“defendant previously entered into stipulations, in unrelated actions, which, among other things, stated that, as of the date the stipulations were entered into, plaintiff was “in full compliance with any licensing requirements affecting its right to obtain reimbursement under the applicable No Fault laws and regulations.” However, as the issue was resolved in a stipulation and not after it was actually litigated, the doctrine of collateral estoppel is inapplicable

So the Mallela compliance stipulation is at best limited to the case where the stipulation is signed.  The only way to achieve what Mr. All Boro is doing appears to be through a declaratory judgment action

(3) Plaintiff bears the burden to show disclosure is palpably improper

“Since plaintiff failed to establish that the requested discovery is privileged or palpably improper, plaintiff is obligated to produce the information sought. Defendant further established its entitlement to depose Vladimir Grinberg and plaintiff’s owner, Dr. John Braun (see CPLR 3101 [a];”

Certificate of readiness that says discovery is outstanding is deemed a nullity

Furrukh v Forest Hills Hosp., 2013 NY Slip Op 03968 (2d Dept. 2013)

“While the filing of a note of issue within 90 days after service upon the plaintiff of a written demand to serve and file the note of issue precludes a court from dismissing the action (see CPLR 3216[c]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503), here, the plaintiffs’ certificate of readiness stated, inter alia, that discovery proceedings now known to be necessary were not completed, that there were outstanding requests for discovery, and that the case was not ready for trial. Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR 202.21, the filing of the note of issue was a nullity, and that branch of the appellant’s motion which was to vacate the note of issue was properly granted

In Supreme Queens and in Supreme Nassau, the Courts force litigants to file a Note of Issue with certificates of readiness stating that discovery is outstanding.  Once that is done, the question becomes whether the other party can move to strike and if so when.  The Appellate Division seems to have really come down hard on this practice, and thankfully so.

If the NOI is a nullity, it follows that the motion to strike can be made at any time.  In other words, the movant would not be constrained by the 20-day period in the Uniform Rules to move to strike.