On the CPLR front – 3126(3) motion granted when party deponent lies during deposition

Casimir v Ann Bendick Realty, 2011 NY Slip Op 50602(U)(App. Term 2d Dept. 2011)

How many times has the party testified that he has never been involved in a prior accident, only to be later discovered that this person has had a bullseye on his back for 10 years that says hit me?  There is nothing more frustrating than an injured person who lies about his prior medical history at an EBT, and the footwork that is necessary to compel a further deposition based on the lies.

The Appellate Term, in a far reaching decision REVERSED the Civil Court’s order denying a CPLR 3126(3) motion and in substance said the following: “if you perjure yourself, your complaint is dismissed.”  It is nice to see this type of a decision.  Here is the holding:

“While the drastic remedy of striking a pleading for failure to comply with discovery demands is inappropriate absent a clear showing that the failure was willful and contumacious  a motion to strike a party’s pleadings pursuant to CPLR 3126 may be granted because of a party’s submission of false information during the course of discovery. In our opinion, this is one such case, since the documentary evidence submitted by defendant Kone, Inc. clearly demonstrates that plaintiff falsely testified during her deposition regarding her medical history and prior personal injury lawsuits.”

All I can say is think twice before telling a fib under oath.

Hello from China – we can depose you

Yu Hui Chen v Chen Li Zhi, 2011 NY Slip Op 01267 (2d Dept. 2011)

“Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The plaintiff demonstrated that traveling from China to the United States for his deposition would cause undue hardship”

Errata sheet raises a triable issue of fact? Wait a minute.

Yefet v Shalmoni, 2011 NY Slip Op 00677 (2d Dept. 2011)

I haven’t seen this one in awhile and it is noteworthy because the law seems to presume that testimony contradicting a deposition transcript is insufficient to rebut the deficiencies found in the EBT transcript.

“the conflict between the original transcript of the plaintiff’s deposition testimony and the correction she submitted in the errata sheet raised an issue of credibility which could not be resolved on the motion for summary judgment.”

It is facebook – split decision

The Appellate Division, Fourth Department discussed some interesting discovery issues involving Facebook.

Mccann v Harleysville Ins. Co. of N.Y., 2010 NY Slip Op 08181 (4th Dept. 2010)

“defendant appeals from an order denying its motion to compel disclosure of photographs and seeking “an authorization for plaintiff’s Facebook account.” According to defendant, the information sought was relevant with respect to the issue whether plaintiff sustained a serious injury in the accident. We conclude in appeal No. 1 that Supreme Court properly denied defendant’s motion “as overly broad,” without prejudice “to service of new, proper discovery demands” (see generally Slate v State of New York, 267 AD2d 839, 841). In appeal No. 2, defendant appeals from an order denying its subsequent motion seeking to compel plaintiff to produce photographs and an authorization for plaintiff’s Facebook account information and granting plaintiff’s cross motion for a protective order. Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence (Auerbach v Klein, 30 AD3d 451, 452). Nevertheless, although we conclude that the court properly denied defendant’s motion in appeal No. 2, we agree with defendant that the court erred in granting plaintiff’s cross motion for a protective order. Under the circumstances presented here, the court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff’s Facebook account at a future date. We therefore modify the order in appeal No. 2 accordingly.”

My motivation for this post came from here.  To answer the hyperlinked post – yes, these social networking sites might be the end of civilization.  Ever hear the story about the guy who claimed he could not leave his house, could not drive a car or work because of the motor vehicle accident, yet was seen kyaking out on eastern long island hiking in the Berkshires, as well as driving to New York City.  The photos and stories were found on the guy’s Facebook page.  You probably have not heard this story, but I have the EUO transcript to prove it.  The guy’s attorney, when he first heard the story at the EUO, just shook his head.  The attorney did not see it coming.

But my real life case is one of many.  And yes, Facebook has allowed stories like this to torpedo many personal injury cases.

This Appellate Division case is just the first of what we all know will be many discovery battles involving Facebook accounts that will find their way through the Appellate courts.  It is interesting that the first Appellate Facebook case came from the Fourth Department and not the busier and more litigious Second Department.

Dr. Collins again

RLC Med., P.C. v Allstate Ins. Co., 2010 NY Slip Op 51962(U)(App. Term 2d Dept. 2010)

By virtue of reading these opinions, religiously, for about 7 years, it amazes me that I continually see the same names of doctors who the Appellate Term compels to attend depositions on Mallela related issues.  Dr. Collins has lately become a regular, and this case follows every other RLC medical I have come across lately.

I know through reading thousands of NF-3’s, EMG reports and other testing data, Dr. Collins seems to have been involved in many of these P.C.’s.  I also recall a case a few years back where Dr. Collins was an independent contractor for the one and only A.B. Medical.

The more things change, the more they stay the same.

Brutal discovery decision from the Appellate Term First Department

Michael Palmeri, M.D., PLLC v General Assur. Co., 2010 NY Slip Op 51879(U)(App. Term 1st Dept. 2010)

I am not even sure this is something you would even see out of the second department.  I am working off the assumption that there were no prior discovery applications in this matter; rather, this was the first discovery motion and it was either first time or second time the motion was on the calendar.

Here is the short discussion from the case:

“Defendant did not present a reasonable excuse for its failure to provide written responses to plaintiff’s disclosure requests or its failure to submit opposition papers to plaintiff’s motion to strike defendant’s answer pursuant to CPLR 3126. Therefore, Civil Court providently exercised its discretion in denying defendant’s motion to vacate a default judgment entered against it following its failure to oppose plaintiff’s motion to strike.

Even assuming that defendant’s argument regarding its request for an adjournment of plaintiff’s motion to strike is properly before us, Civil Court providently exercised its discretion in denying that request (see generally Santora & McKay v Mazzella, 211 AD2d 460, 462 [1995]).”

So this is what the court is telling me: (1) Make a discovery motion on every case; (2) Refuse to consent to any adjournments; (3) Force the court to write an order on all of these motions; and (4) Appeal every case where answering papers were not interposed and the court refuses to strike the complaint.

Query – can it now be argued that in a no-fault matter, it is an abuse of discretion not to strike a plaintiff’s complaint, where the ultimate sanction for failing to respond to a perfunctory disclosure motion is not granted?  Think about it.

Law of the case does not apply to discovery orders

Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 2010 NY Slip Op 51722(U)(App. Term 2d Dept. 2010)

“[d]octrine of law of the case…does not apply to prior discovery orders”  I found that line to be interesting.  Factually, this case involved a plaintiff who could not seem to get his act together, and a court that gave him more chances than you would find in a standard civil action.

The spreadsheet was not in admissible form?

Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U)(App. Term 2d Dept. 2010)

This was another one that did not necessarily go my way.  By way of explanation, this was a complicated case, where the defense was whether plaintiff assignors made or conspired to make material misrepresentations in the procurement of the insurance policy.

The bills were delayed pending EUO’s of the assignors.  The assignors were coy about admitting that Karoy Brown resided with his soon to be bride, Crystal Franklin Brown.  There were four vehicles that were registered and owned by Crystal Franklin.  Evidence was adduced that a trailer was parked in front of the Franklin residence, which contained lawn mowers and other equipment.  Karoy alleged that he commuted from New Jersey to Patchogue to perform landscaping for a man whose name and number he could not remember.  He worked between 3-5 days per week, for 12 hours per day.  He would always go back home to New Jersey at the end of the day.  Both assignors denied using the vehicles for any commercial purposes.  Karoy had a suspended driver’s license during the relevant time period.  Also, Karoy made a pass at the court reporter after the EUO.  Thank goodness Crystal did not see that.

Evidence was also adduced that Crystal kept logs of  the jobs that were performed.  Both Assignors had cellphones.  Crystal had a lease for her place, and had a landlord.  Other material information was in existence.

The bills were delayed following the EUO in order to obtain this information.  Once obtained, a further investigation would be done, which would shed more light on this case.

Nobody ever complied with the verification requests.

Had the supplied information demonstrated that the vehicles were used for commercial purposes or that Karoy was a resident and used the vehicle, then the claims would have most likely been denied due to the making of material misrepresentations in the procurment of the insurance policy.

Dueling motions for summary judgment were made following commencement of this action.  A spreadsheet was used to log all of the pertinent dates for each bill.  This case was pre-LMK so there were tons of bills for $33.70 and $67.40 flying around out there.

The Court said the following: “In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.”

The information annexed to the spreadsheets were the dates the bills were received, verifications sent, etc.  All of this information was annexed to the motion itself.  In fact, the motion was about 1000 pages.  The spreadsheet was more or less illustrative.  I mean, I usually put a chart in my motion and put the information in the said chart.  Since there was so much information for each bill, I used a spreadsheet instead of one of my charts in this case.

The affidavit of the claims representative had the standard language that this court previously found to be sufficient to allow the entry of all of the documents into evidence.  The information in the spreadsheet was incorporated by reference.  The case the court cites, Pallisades Collection, involved an assigned credit card debt that Pallisades purchased from Discover.  Pallisades had to establish a business record foundation involving Discover’s business practices, in order to allow the entry of Discover’s data into evidence.

Here, the information was always stored and processed by Mercury.  The affidavit, after laying a foundation for the dates and form of the documents,  said that the spreadhseets annexed to the affidavit memorialized the information pertinent to the claim.  I have to disagree with the court on this one.

Anyway, the moral of the story is this.  If you have information that requires a spreadsheet, make sure you somehow incorporate the actual spreadsheet as part of the affidavit.


“3. The following represents the claims handling in this matter:


4. blah blah.

5. Facsimiles shall be deemed originals.”

On the bright side, the notice of trial was stricken so that Mercury can now search this state to find the Brown family and invite them to come in for an EBT.

Amendment of bill of particulars on the eve of trial is allowed

Finocchiaro v Wall St. Mail Pk-Up Serv., Inc., 2010 NY Slip Op 51255(U)(App. Term 2d Dept. 2010)

I am including this case today, because the Appellate Term (see the bold below) has shared with us something that might have come from a spy novel: “While leave to amend a bill of particulars is ordinarily freely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion should be exercised in a discreet, circumspect, prudent and cautious manner (see Kyong Hi Wohn v County of Suffolk, 237 AD2d 412 [1997]).”

Consolidation and belated discovery denied

SEE COMMENTS FROM DAMIN TOELL, ESQ. – for further explanation of this case.

Kipor Medicine, P.C. v GEICO, 2010 NY Slip Op 51247(U)(App. Term 2d Dept. 2010)

The branch of defendant’s motion seeking consolidation should have been denied since defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact (see CPLR 602 [a]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U] [App Term, 2d & 11th Jud Dists 2008]). In addition, the branch of [*2]defendant’s motion seeking leave to amend the answer should have been denied since defendant’s papers presented no evidence that the proposed amendment might have merit (see CPLR 3025 [b]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). Defendant sought to amend its answer to assert that plaintiff’s certificate of incorporation had been revoked following the surrender, in April 2006, of the medical license of plaintiff’s sole shareholder. Plaintiff, however, is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to April 2006 (see e.g. A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Defendant has not demonstrated that the facts herein are akin to a fraudulent incorporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Moreover, since defendant failed to submit an affidavit specifying that any unusual or unanticipated conditions had developed after the notice of trial had been filed which made it necessary for defendant to engage in further pretrial proceedings (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.17 [d]; S & B Neurocare, P.C. v GEICO Ins. Co., 20 Misc 3d 132[A], 2008 NY Slip Op 51450[U]), the branch of defendant’s motion seeking to compel plaintiff to respond to discovery demands and produce its sole shareholder for an examination before trial should also have been denied.

Two points.  One, consolidation motions seem to have the same rules as severance motions.  While it is easy to sever, it is equally as difficult to consolidate.  Two, belated discovery following the filing of a notice of trial is shunned upon.

A better question is assuming the facts as presented by Justice Golia are accurate (see below), why would anybody prosecute this type of action.  Does this make the law firm prosecuting this action a co-conspirator or accessory after the fact to a fraud?  I am not sure –

“Unlike the majority, I do not find that defendant failed to demonstrate that the actions it sought to consolidate had common questions of law or fact,” or that defendant’s papers presented no evidence that the proposed amendment might have merit,” or that additional discovery should also have been denied.” Notwithstanding the foregoing, I agree with the majority in the ultimate result in that defendant waited nearly two years from the time it knew that Dr. Meisher had committed insurance fraud and was losing his medical license. Indeed, it was this very defendant, GEICO, that was the named victim” in the case to which Dr. Meisher entered his guilty plea. I can find no valid reason for this particular defendant to have ignored these concerns for such an extended period of time. Certainly, if defendant had submitted the same motion within a reasonable time, I would have voted to affirm the order of the Civil Court.”