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.

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.

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];”

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.

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).”

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.