Discovery not necessary to adjudicate merits of EUO no-show defense

Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co.,  2013 NY Slip Op 50763(U)(App. Term 2d Dept. 2013)

“Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claim based on plaintiff’s [*2]failure to appear, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff does not claim to have responded in any way to the EUO request, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]), and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion (see CPLR 3212 [f]).”

Oh how many times do I see the arguments: Discovery is outstanding – the motion for summary judgment on the declaratory judgment action alleging EUO no shows should be stayed.  While only one Supreme Court Justice out of 20 have bought this argument, it is nice to see the App. Term shut it down.

MSJ + EBT = disaster for plaintiff

Jamaica Med. Plaza, P.C. v Interboro Ins. Co., 2013 NY Slip Op 50475(U)(App. Term 2d Dept. 2013)

“The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an examination before trial and granted the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.”

“ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an  examination before trial is granted and the examination shall be held within 60 days of  the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.”

“Plaintiff submitted an affirmation by its treating physician which was sufficient to raise triable issues of fact as to the medical necessity of the services rendered (see Alur Med. Supply, Inc. v GEICO Ins. Co., 31 Misc 3d 126[A], 2011 NY Slip Op 50438[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and as to whether the fees charged were in accordance with the Workers’ Compensation fee schedule. Consequently, the branch of defendant’s motion seeking summary judgment was properly denied. However, the branch of defendant’s motion seeking an order compelling plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). Defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s defense.

And there you have it.  An aborted summary judgment motion spurns an EBT of a medical provider.


Please be quiet

Sciara v Surgical Assoc. of W. N.Y., P.C.,  2013 NY Slip Op 01741 (4th Dept. 2013)

It is hereby ORDERED that the order so appealed from is modified on the law by denying the cross motion of respondent Usha Chopra, M.D. in its entirety and as modified the order is affirmed without costs in accordance with the following Memorandum: Plaintiffs appeal and Usha Chopra, M.D. (respondent), a nonparty, cross-appealsfrom an order related to the deposition testimony of respondent. Plaintiffs commenced this medical malpractice action alleging, inter alia, that defendant George Blessios, M.D. was negligent with respect to surgery he performed on Renee Sciara (plaintiff). Respondent, a pathologist, examined tissue removed from plaintiff during the surgery. The deposition of respondent was discontinued following a contentious verbal exchange between plaintiffs’ counsel and respondent’s counsel that arose when respondent’s counsel interrupted the deposition to clarify a question asked by plaintiffs’ counsel. Plaintiffs moved, inter alia, for an order precluding respondent’s counsel from participating in any respect in the continued deposition of respondent. Respondent cross-moved, inter alia, for an order permitting her counsel to participate in her deposition. Supreme Court granted the motion in part by directing, inter alia, that respondent was required to complete her [*2]deposition. The court also granted the cross motion in part by permitting respondent’s counsel to participate in the deposition as provided for in 22 NYCRR 221.2 and 221.3. The court erred in granting the cross motion to that extent (see Thompson v Mather, 70 AD3d 1436, 1438), and we therefore modify the order accordingly.

As we stated in Thompson, “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses shall proceed as permitted in the trial of actions in open court’ ” (id. [emphasis added]), and it is axiomatic that counsel for a nonparty witness is not permitted to object or otherwise participate in a trial (see e.g. id.). We recognize that 22 NYCRR 221.2 and 221.3 may be viewed as being in conflict with CPLR 3113 (c) inasmuch as sections 221.2 and 221.3 provide that an “attorney” may not interrupt a deposition except in specified circumstances. Nevertheless, it is well established that, in the event of a conflict between a statute and a regulation, the statute controls (see Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 78 AD3d 1649, 1651).

We also recognize the practical difficulties that may arise in connection with a nonparty deposition, which also have been the subject of legal commentaries (see e.g. 232 Siegel’s Practice Review, Objections by Nonparty Witness? at 4 [Apr. 2011]; Patrick M. Connors, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3313:7, 2013 Pocket Part at 31-33). However, we decline to depart from our conclusion in Thompson (70 AD3d at 1438) that the express language of CPLR 3113 (c) prohibits the participation of the attorney for a nonparty witness during the deposition of his or her client. We further note, however, that the nonparty has the right to seek a protective order (see CPLR 3103 [a]), if necessary.

We have reviewed the remaining contentions of plaintiffs and respondent and conclude that they are without merit. We note that documents included in the appendix to plaintiffs’ brief are outside the record on appeal and therefore have not been considered (see Sanders v Tim Hortons, 57 AD3d 1419, 1420).”

Burden rests on medical provider to show that defense is palpably improper

All Boro Psychological Servs., P.C. v Allstate Ins. Co.,  2013 NY Slip Op 23043 (App. Term 2d Dept. 2013)

“Thus, in the case at bar, defendant was not required to demonstrate that its discovery demands were not palpably improper. Rather, in order to successfully oppose defendant’s cross motion to compel, plaintiff would have had to show that defendant’s defense of billing fraud was precluded because it was not asserted in a timely NF-10 denial of claim form, which plaintiff did not do.”

This is rough.

Jumped the gun on preclusion

Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am., 2012 NY Slip Op 51064(U)(App. Term 2d Dept. 2012)

(1) Preclusion premature

“The Civil Court granted [*2]the branch of defendant’s motion seeking to preclude plaintiff from presenting evidence at trial related to the discovery requested, finding that the responses provided by plaintiff to defendant’s demand for verified written interrogatories were given by an employee of plaintiff’s corporation, not by an owner, officer, or managing individual of the corporation, and, thus, that the responses were insufficient. In our opinion, the Civil Court improvidently exercised its discretion in granting the branch of defendant’s motion, pursuant to CPLR 3126, seeking to preclude plaintiff from offering evidence at trial related to the discovery requested (see Castor Petroleum, Ltd. v Petroterminal de Panama, S.A., 90 AD3d 424 [2011]; Allen v Calleja, 56 AD3d 497 [2008]), particularly in light of the fact that, at the time the motion was heard by the court, plaintiff had already responded to defendant’s discovery requests, which had first been served on plaintiff only six weeks before the motion was brought. The drastic remedy of preclusion is inappropriate absent a clear showing that a party’s failure to comply with discovery demands was willful or contumacious”

(2) An employee with knowledge can verify an interrogatory

“Moreover, with respect to the Civil Court’s determination to preclude plaintiff from presenting evidence at trial related to the discovery requested because a mere employee of plaintiff’s corporation had responded to the discovery requests, we note that it is not improper for an employee who has the requisite knowledge and data to respond on behalf of his or her corporation (see Necchi S.P.A. v Nelco Sewing Mach. Sales Corp., 23 AD2d 543 [1965]; Southbridge Finishing Co. v Golding, 2 AD2d 430 [1956]; Siegel, NY Prac § 345, at 573; § 361, at 613 [5th ed]).”

Deposition transcript v. errata sheet

Pollina v Oakland’s Rest., Inc., 2012 NY Slip Op 03991 (2d Dept. 2012)

“We note that the conflict between the plaintiff’s original deposition testimony and the correction sheet “raises an issue of credibility which may not be resolved on a motion for summary judgment” (Williams v O & Y Concord 60 Broad St. Co., 304 AD2d 570, 571; see Breco Envtl. [*2]Contrs., Inc. v Town of Smithtown, 31 AD3d 359, 360; Surdo v Albany Collision Supply, Inc., 8 AD3d 655).”

Final order of preclusion became automatic – no need to move for one

Ortho-Med Surgical Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 22119 (App. Term 2d Dept. 2012)

The “so-ordered” stipulation functioned as a conditional order of preclusion, which became absolute upon defendant’s failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135[A], 2011 NY Slip Op 52386[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Colonia Med., P.C. v Liberty Mut. Fire Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52283[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Nevertheless, plaintiff moved for a final order of preclusion. Although it was unnecessary for plaintiff to make such further application to the court, in doing so, plaintiff authorized the court to revisit the issue of preclusion and to consider defendant’s opposition thereto.

“A defendant’s preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment or relieve the plaintiff of the burden of proving its case (see Mendoza v Highpoint Associates, IX, LLC, 83 AD3d 1 [2011]). In the instant case, plaintiff’s moving papers failed to establish a prima facie entitlement to summary judgment (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the Civil Court properly denied the branch of plaintiff’s motion seeking summary judgment.”

“On appeal, defendant argues that it was not precluded from offering evidence in support of its cross motion for summary judgment because the so-ordered stipulation barred it only from offering evidence “at trial.” However, to allow defendant to use evidence in support of its cross motion which it is barred from introducing at trial “would perversely undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial”

Perhaps three observations can be divined from this case.  First, there is no need to formally move for a final order of preclusion.  Thus, it would be acceptable for the party who precluded his or her adversary to file a Note of Issue (Notice of Trial) with certificate of readiness and not worry about falsely responding in the affirmative to the statement: “All discovery is complete”.

Second, we already knew that the preclusion to offer evidence at trial carried over to summary judgment.

Third, what did Plaintiff need to show on motion to win?

3101(d) gone awry?

Lombardi v Alpine Overhead Doors, Inc., 2012 NY Slip Op 01590 (2d Dept. 2012)

“In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the Supreme Court properly declined to consider his expert affidavit submitted in opposition to the defendant’s motion. The expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff did not provide any excuse for failing to identify the expert in response to the defendant’s discovery demands (see CPLR 3101[d]; Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891; Ehrenberg v Starbucks Coffee Co., 82 AD3d 829, 830-831; Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961).”

Requestee pays for discovery

U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 2012 NY Slip Op 01515 (1st Dept. 2012)

Cost of discovery.  I sue you.  I demand a lot of discovery.  You bear the burden,in the first instance, to pay the costs of the sought after information.  Then, you are stuck engaging in: “The more prudent course of action [which is] to first make a motion to limit or strike the discovery requests initiated by plaintiff that it found to be overbroad, irrelevant, or unduly burdensome. If, following the resolution of that motion, defendant still believed the costs associated with searching for, retrieving, and producing ESI to be prohibitive, defendant could then file a motion for the costs to be shifted to plaintiff.”

Read the decision.  This is the cliff-notes version.  Perhaps in commercial litigation, this might make sense. But, where you are dealing with parties where the inequities in resources are glaring, this seems to really be unfair.  The bright side is that the winner can tax the costs at the end.  The end, is usually resolved through settlement.  So, this remedy (which you can find in the opinion) is really illusory.  While this case deals with ESI (electronic discovery), its application is probably far beyond the facts of this case.

Late Notice of Trial and standard of law as to Malella

Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 2011 NY Slip Op 51551(U)(App. Term 2d Dept. 2011)

1) the 20-day time period to make a motion to strike is not absolute.

2)”detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws”

3) Why do Dr. McGee facilities seem to have these Malella issues?

Trivia – I subpoenaed Dr. McGee quite a few years ago to come to a trial on an EMG/NCV test he performed.  He actually showed up.  I am not sure what his view on complying with subpoenas is nowadays.

“While defendant’s motion to strike the action from the trial calendar was untimely, under all of the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff’s contention, it cannot be said that the Civil Court’s determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]). Defendant set forth detailed and specific reasons for believing that 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.”