The admission of an assignor against the assignee is sufficient to conditionally dismiss plainitiff's action

Ortho Pro Labs, Inc. v American Tr. Ins. Co., 2009 NY Slip Op 52693(U)(App. Term 2d Dept. 2009)

“In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board”

According to this opinion, the admission of of an assignor is imputable to the assignee.  Furthermore, this admission  may be used as prima facie evidence in support of a motion for summary judgment.  Compare, CPT Medical Service, P.C. v. Utica Insurance Company, 12 Misc.3d 237 (Civ. Ct. Queens Co. 2006).  Very interesting.

The admission of an assignor against the assignee is sufficient to conditionally dismiss plainitiff’s action

Ortho Pro Labs, Inc. v American Tr. Ins. Co., 2009 NY Slip Op 52693(U)(App. Term 2d Dept. 2009)

“In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board”

According to this opinion, the admission of of an assignor is imputable to the assignee.  Furthermore, this admission  may be used as prima facie evidence in support of a motion for summary judgment.  Compare, CPT Medical Service, P.C. v. Utica Insurance Company, 12 Misc.3d 237 (Civ. Ct. Queens Co. 2006).  Very interesting.

The admissibility of an EUO and the applicability of CPLR 3212(f)

RLC Med., P.C. v Allstate Prop. & Cas. Ins. Co., 2009 NY Slip Op 52691(U)(App. Term 2d Dept. 2009)

“Defendant denied Craigg’s $269.60 claim based upon the assignor’s EUO testimony. Since the purported EUO transcript annexed to defendant’s opposition papers is not in admissible form, we decline to consider it. Accordingly, Craigg was entitled to summary judgment upon said claim.”

Question: Why was it not in admissible form?  My thought is that Defendant annexed to her papers the condensed EUO  that was not certified by the stenographer.  Not good.

Same case:

“In opposition to plaintiffs’ motion, defendant established that while facts may exist that are essential to justify denial of the branch of the summary judgment motion seeking to recover upon claims submitted by RLC, defendant was unable to set forth sufficient facts to establish the defense of fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) since such information was within RLC’s possession and RLC had not complied with defendant’s discovery demands therefor (see CPLR 3212 [f]). Consequently, the District Court properly denied the branch of the motion for summary judgment upon the claims submitted by RLC….”

CPLR 3212(f) again.  Dave Gottlieb over at NFP and on his CPLR blog has detailed this subdivision of the summary disposition statute for some time.  In New York practice, it usually takes a really good reason to deny a summary judgment motion without prejudice, in accordance with subdivision (f) of Rule 3212 of the CPLR.  In no-fault and 5102(d) threshold practice, subdivision (f) is successfully invoked as a matter of course in the case of a Mallela violation or when a Plaintiff moves on the basis that he or she sustained a serious injury prior to the performance of Defendant’s IME’s.

Outside of these two situations, the usual trend is to deny a CPLR 3212(f) application.  Here is a prime example – Delta Radiology, P.C. v. Interboro Insurance Company, 25 Misc.3d 134(A)(App. Term 2d Dept. 2009):

“Contrary to defendant’s contention, although plaintiff’s claim was submitted more than 45 days after the services at issue were rendered, defendant waived its reliance on the 45-day rule (Insurance Department Regulations [11 NYCRR] § 65-1.1) as a basis to deny the claim because defendant had failed to communicate to plaintiff, as required by the No-Fault Regulations, that late submission of the proof of claim will be excused where the applicant can provide a reasonable justification for the late submission ( see Insurance Department Regulations [11 NYCRR] § 65-3.3[e]; SZ Med. P.C. v. Country-Wide Ins. Co., 12 Misc.3d 52 [App Term, 2d & 11th Jud Dists 2006] ). Further, defendant failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact ( see CPLR 3212[f] ).”

Affirmation of opposing expert sufficient to thwart summary judgment in a malpractice case

Plourd v Sidoti, 2010 NY Slip Op 00056 (3d Dept. 2010)

“Plaintiff thereafter commenced this action, alleging that the failure of the emergency room [*2]physician, defendant Louis Sidoti, to diagnose the fracture caused her unnecessary pain and led to the need for surgery….”

“[d]efendants met their initial burden of demonstrating a prima facie entitlement to summary judgment as a matter of law…. plaintiff submitted the affidavit of G. Richard Braen, a physician licensed to practice in New York who is board certified in internal medicine and currently employed in the field of emergency medicine. Initially, given that the alleged malpractice occurred in the context of emergency medicine, Braen’s board certification and his employment support an inference that his expert opinion was a reliable one, “and any alleged lack of skill or experience goes to the weight to be given to the opinion, not its admissibility” (Bell v Ellis Hosp., 50 AD3d at 1242; see Borawski v Huang, 34 AD3d 409, 410 [2006]).”

So in another case, an opposing expert’s affirmation will be sufficient to raise an issue of fact when the expert is of the same specialty as that of the moving expert.  Of course, the moving expert has to be of the correct specialty otherwise the burden will never shift to the non-movant to raise an issue of fact.

And, the lack of skill and experience merely goes to the weight of the evidence, provided a threshold showing is made that the expert is appropriately credentialed.

Proof that the physician was an internist is sufficient to allow the affirmation to be considered in oppposition to a summary judgment motion

One of the issues that regular readers of the blog know that I discuss is whether an affirmation or affidavit of a physician is sufficient to support or defeat a summary judgment motion.  The general rule is that an expert must be of the same specialty as the physician who performed the treatment being commented upon, or have a sufficient background or knowledge that would allow a court to infer that the affiant’s affirmation or affidavit should be accepted.

This appears to be the case in Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (1st Dept. 2010), where the court observed the following:

“The trial court should not have rejected the expert’s opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert’s affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert’s specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion.”

Dave Gottlieb over at the CPLR blog also discusses this issue.

Proving standing without an assignment?

Since proof of standing is generally not an affirmative part of a no-fault claimant’s prima facie case, this case from the First Department might be of minimal importance to the no-fault bar.  For those of us who are called to help friends, loved ones and members of the armed services avoid foreclosures, the “assignment” defense has scored major victories at the Appellate Division, Second Department.

The matter of IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 2009 NY Slip Op 09395 (1st Dept. 2009), takes away some steam from this defense as set forth herein:

“Plaintiff’s original motion for summary judgment was denied because of the court’s concern that the Euroclear statement and other documents suggested that BB Securities, rather than plaintiff, may have been the true holder under the terms of the note. Plaintiff moved to renew, submitting an affidavit by BB’s managing director, clearly averring that it held the note solely as custodian for plaintiff, as well as an assignment agreement between BB and plaintiff, establishing the latter’s exclusive entitlement to sue under the note. Under these circumstances, the court providently exercised its discretion in granting renewal in the interest of justice (see Garner v Latimer, 306 AD2d 209 [2003]). The additional affidavit by an officer familiar with the corporate records, accompanying a true copy of the assignment agreement, was admissible (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]), and established plaintiff’s entitlement to summary judgment.

In view of our finding that summary judgment was correctly granted upon renewal, we dismiss plaintiff’s appeal of the denial of its original motion for summary judgment as academic. However, had we not done so, we would hold that plaintiff met its prima facie burden on the initial motion for summary judgment by submitting evidence of defendant Eldorado Trading’s promise to pay under the note, the guarantee by defendants Eldorado S.A. and Verpar, and nonpayment (see Eastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lv denied 86 NY2d 711 [1995]). Plaintiff also submitted evidence demonstrating it had purchased the note, which was held by BB Securities on its behalf in a secure account at Euroclear. Contrary to defendants’ contention, the affidavit of a corporate officer with personal knowledge, together with [*2]authenticated business records, is admissible in support of a motion for summary judgment (see First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]).”

This case also has a rare appearance of the “interest of justice” exception to the general rule that renewal is not allowed unless new facts are presented.  It also has a standard business records discussion.  I will cross-link this on the evidence blog.

The Appellate Division discusses how an expert becomes comptent to testify about the standard of care in a specific area of practice

The Appellate Division, Second Department, in Shectman v Wilson 2009 NY Slip Op 09208 (2d Dept. 2009), observed the following:

“Here, the defendant physicians established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that their care and treatment of the plaintiffs did not depart from good and accepted medical practices. In opposition, the plaintiffs came forward with the affidavit of a physician, specializing in the fields of obstetrics and gynecology, who contested the opinions of the defendants’ respective experts concerning the proximate cause of the infant plaintiff’s developmental disabilities. The affidavit of the plaintiffs’ expert did not mention whether the physician had any specific training or expertise in pediatrics, psychiatry, or particularized knowledge as to the relevant disabilities of the infant plaintiff. Moreover, the affidavit did not indicate that the physician had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895). Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Geffner v North Shore Univ. Hosp., 57 AD3d 839, 841; Bjorke v Rubenstein, 53 AD3d 519, 520; Glazer v Lee, 51 AD3d 970, 971; Mustello v Berg, 44 AD3d 1018, 1019; Behar v Coren, 21 AD3d at 1046-1047; Nangano v Mount Sinai Hosp., 305 AD2d 473, 474). In the circumstances of this case, as the plaintiffs’ expert failed to lay the requisite foundation for his asserted familiarity with pediatric developmental disabilities, his affidavit was of no probative value. Accordingly, the plaintiffs failed to raise a triable issue of fact, and the Supreme Court improperly denied that branch of Wilson’s motion which was for summary judgment dismissing the complaint insofar as asserted against him and Duncan’s motion for summary judgment dismissing the complaint insofar as asserted against her.”

A civil court judge correctly rejects a so-called Wagman based peer hearsay challenge

While I do not generally discuss Civil Court decisions, the one of Judge Levine in the matter of Popular Imaging, P.C. v State Farm Ins. Co., 2009 NY Slip Op 52355(U)(Civ. Ct. Richmond Co. 2009) is interesting in that it describes how a peer hearsay challenge at trial is lodged, presented, adjudicated and defeated.

“At the outset of Dr. Sarno’s testimony, plaintiff refused to stipulate into evidence the peer review report prepared by and medical records reviewed by Dr. Sarno, contending that this court should not consider Dr. Sarno’s opinion since it was based upon medical records and reports that were not in evidence and for which no evidence was submitted as to their reliability. pursuant to the leading case of Wagman v. Bradshaw, 292 AD2d 84 ( 2d Dpt 2002). The court reserved decision on this objection to Dr. Sarno’s testimony.”

“Here, the assignor’s physician, Dr. Fleisher , recommended that a MRI be performed; this is confirmed by Dr. Fleisher’s records. Dr. Sarno testified that in formulating an opinion he relied primarily upon Dr. Fleisher’s August 23, 2002 report of his neurological consultation with the assignor and Dr. Fleisher’s EMG/NCV testing of September 13, 2002. Since plaintiff performed the MRI based upon the records and referral from the assignor’s treating physician, who apparently deemed the test to be medically necessary, and since plaintiff sent the results and explanation of the MRI back to Fleisher, plaintiff cannot now be heard to challenge the reliability and authenticity of Dr. Fleisher’s records.

As to the requirement that the material be generally accepted in the profession as reliable and there be evidence establishing its reliability, Dr. Sarno testified that these are the types of reports that a doctor would review to offer an opinion on the necessity of a lumbar MRI. Dr. Sarno uses other doctors’ reports in formulating a medical opinion about his own patients and that it is a generally accepted standard in the medical profession to form an opinion based in part on other doctors reports. He testified that he takes these reports at face value. Dr. Sarno’s testimony is consistent with set precedent that a physician’s office records are admissible as evidence at trial to the extent they are germane to diagnosis and treatment.”

I would even opine that based upon Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, all that needs to be proved is that the Plaintiff Assignor who is described on the medical documents has the same name as the assignor who is the subject of the lawsuit. Upon this minimal showing, Plaintiff would then be estopped from challenging the reliability of the assignor’s medical records that the peer or ime doctor reviewed.  This should end the peer hearsay challenge at that point.

Of course, Plaintiff could always make an offer of proof, through the introduction of extrinsic evidence, to show that the records are not what they purport to be.  I am not sure how this showing would realistically be met in an assigned first-party case.

Business records – when was the data entered and who could enter it?

In another interesting evidentiary based case, the Fourth Department in People v Manges,  2009 NY Slip Op 08258 (4th Dept. 2009) evaluated the “contemporaneous” and “business duty to enter the information” prongs of the business record rule.  As you can see, the People failed miserably in their marshaling of the evidence to prove pivotal elements of the crimes of felony possession of a forged instrument and attempted grand larceny.

“We agree with defendant that County Court erred in admitting in evidence a printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that “anyone [at the bank] can sit down at a computer and enter information.” Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction.”

An affidavit is not be admissible at trial – You knew this already

Matter of New York Rezulin Prods. Liab. Litig. v Pfizer, Inc., 2009 NY Slip Op 07496 (1st Dept. 2009)

“There is no basis to disturb the court’s determination in favor of Duffy ( see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ). At the hearing, Girardi called no witnesses on its own behalf to contradict the testimony of Duffy’s witnesses as to the existence of an oral one-third fee arrangement between the two firms. The court properly declined to consider affidavits by a witness who was not available for cross-examination in court ( see Seinfeld v. Robinson, 300 A.D.2d 208, 755 N.Y.S.2d 69 [2002] ).

I did not post this case not for its precedential value.  It is obvious.  I posted this case because if you recall at the CLE in Brooklyn that we gave, I stated that the reason you as a practitioner should make summary judgment motions is because you cannot cross-examine the underlying affidavits that support the motion.  However, should you be forced to go to trial, you will not be able to rely on an affidavit because it is not subject to cross-examination.  See, id.