Sanctions and a very annoyed court

I guess when you write many briefs, you forgot to change your template to accord your legal arguments to the actual facts.

Ultimate Health Prods., Inc. v MVAIC, 2015 NY Slip Op 51446(U)(App. Term 2d Dept. 2015)

“ORDERED that, on the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against plaintiff’s counsel pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate”

“To the extent Defendant proffered a purported police report, within Exhibit G’ to its motion, same was inadmissible. In particular, the document was not certified. Moreover, Defendant did not proffer an affidavit to set forth a foundation for its admissibility, authenticity or accuracy.”  NOT TRUE – It was certified

“Moreover, the appellant’s brief further asserts that the transcript of the examination under oath of plaintiff’s assignor did not demonstrate the existence of potential insurance coverage because it was not in admissible form as it was “unsigned and unsworn.” In fact, the transcript states, at the beginning and at the end, directly above the court reporter’s signature, that plaintiff’s assignor was duly sworn by a notary public.”

“Accordingly, we direct counsel for the respective parties to show cause why sanctions should or should not be imposed against plaintiff’s counsel”

My guess: $500.00

T & J Chiropractic, P.C. v MVAIC, 2015 NY Slip Op 51445(U)(App. Term 2d Dept. 2015)

“ORDERED that, on the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against plaintiff’s counsel pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate,”

Counsel for plaintiff asserts in the appellant’s brief submitted to this court that “To the extent Defendant proffered a purported police report, within Exhibit F’ to its motion, same was inadmissible. In particular, the document was not certified. Moreover, Defendant did not proffer an affidavit to set forth a foundation for its admissibility, authenticity or accuracy.”  NOT TRUE – it was certified

My guess: $500.00.

 

The Reply that introduced a proper reply was itself proper

SAL Med., P.C. v Clarendon Natl. Ins. Co., 2015 NY Slip Op 51449(U)(App. Term 2d Dept. 2015)

“The defect in one of the peer review reports submitted by defendant with its original motion papers, in that it did not bear a signature, was properly and timely remedied when the identical peer review report, this time bearing a signature, was submitted by defendant in its reply papers, and there is no indication that plaintiff was prejudiced in opposing defendant’s motion by this defect in form”

Unsworn letters not enough

Innovative MR Imaging, P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51402(U)(App. Term 1st Dept. 2015)

“In opposition to defendant’s motion, plaintiff submitted two letters of medical necessity. However, as neither letter of medical necessity was sworn or even signed, they were of no probative value (see Rivers v Birnbaum, 102 AD3d 26, 45 [2012]). As a result, defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff.”

Civil judgments cannot be used to question a party’s credibility

Quiroz v Zottola, 2015 NY Slip Op 04627 (2d Dept. 2015)

“Moreover, the trial court did not improvidently exercise its discretion in limiting the cross-examination of Zottola. The court properly limited the plaintiffs’ cross-examination of Zottola regarding his prior employment and negative credit history, due to the collateral nature of these issues (see Badr v Hogan, 75 NY2d 629, 635; Parsons v 218 E. Main St. Corp., 1 AD3d 420). We also note that, with respect to Zottola’s credit history, “civil judgments cannot be characterized as bad or immoral . . . acts involving moral turpitude that would allow them to be used to question the defendant’s credibility” (People v Heiss, 221 AD2d 562, 563).”

The Arbitrator Charles Sloane 2106 rule: deemed arbitrary.

Auto One Ins. Co. v Hillside Chiropractic, P.C., 2015 NY Slip Op 01750 (1st Dept. 2015)(1st Dept 2015)

“We find that the no-fault arbitrator’s decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106, although such conformity is not required (see 11 NYCRR § 65-4.5[o] [1] [“The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary.”], was arbitrary. Accordingly, the award must be vacated (see In re Petrofsky [Allstate Ins. Co.] , 54 NY2d 207, 211 [1981]). We note that since no substantive determination regarding the weight of the IME report was ever made, the Master Arbitrator and the IAS court erred in deferring to the no-fault arbitrator’s determination.”

How many times has an arbitrator declined to accept your proofs because they do not comply with 2106?  In my opinion, one time too many.  The Appellate Division saw the light,

The law on signatures

People v. Haywood, 2015 N.Y. Slip Op. 00555 (2d Dept. 2015)

“The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” (Peoplev Duncan, 46 NY2d 74, 80-81; see People v Weldon, 111 NY 569, 575-576; Richardson, Evidence [Prince 10th ed], § 502). “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” (Larkin v Nassau Elec. R.R. Co., 205 NY 267, 270). Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence”’ (Jerome Prince, Richardson on Evidence § 6-411[b], at 407 [Farrell 11th ed], quoting Larkin v Nassau Elec. R.R. Co., 205 NY at 270; see also People v Lyons, 112 AD3d 849, 850People v Benson, 233 AD2d 749). Accordingly, we decline to disturb the trial court’s determination in this regard.”

This is interesting.

Failed to adduce that (s)he was an expert

Flanger v 2461 Elm Realty Corp., 2014 NY Slip Op 08532 (3d Dept. 2014)

“Defendant also submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott v Ward, 48 NY2d 455, 459 [1979];see Hofmann v Toys “R” Us, NY Ltd. Partnership, 272 AD2d 296, 296 [2000]). Defendant’s proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant’s proffered expert listed the initials “P.E.” after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his “experience as an engineer.” While the “P.E.” would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information (see Bova v County of Saratoga, 258 AD2d 748, 750 [1999]; compare Winney v County of Saratoga, 8 AD3d 944, 945 [2004]).”

This is an interesting case as to what must be included in the expert report or CV.  I am left to assume that a peer report or IME that states the name of the person, that he is a doctor with a specialty OR a chiropractor, acupuncture with a credential should be sufficient.  On the other hand, a nurse, engineer, coder or other person would have to set forth their credentials in the report (or have a CV attached).  An interesting case.

Missing document charge not granted

Knight v M & M Sanitation Corp., 2014 NY Slip Op 07631 (2d Dept. 2014)

This serious injury trial was problem for Plaintiff on may accounts.  But there was discussion on a missing document charge for the failure to obtain photographs:

“Although there was testimony that McCarron took pictures at the accident scene with a disposable camera, the plaintiff failed to establish that any photographs of the accident scene existed, or that he moved to compel their production during discovery (see McGloin v Golbi, 49 AD3d 610Crespo v New York City Hous. Auth., 222 AD2d 300).”

Those tax returns…

Young v Lacy, 2014 NY Slip Op 06417 (4th Dept. 2014)

This is an interesting case on impeaching a witness with improperly filed tax returns.  Looks like Plaintiff was going for lost wages in this 5102(d) claim and the defense attorney knew something was awry.  The judge blocked the defense attorney and now a $330,000 personal injury award has been reversed.   For those who practice outside the five boroughs and northwest of the Hudson, hitting for $330,000 on a PI claim is not an easy feat.

“At trial, defendant’s attorney sought to question plaintiff about information in her federal tax returns that he believed to be inaccurate. Specifically, he wanted to ask plaintiff why she had filed as head of household for four consecutive years when she had been married and living with her husband during that period. He also sought to ask plaintiff how many of her children she had claimed as dependency exemptions. According to defendant’s attorney, plaintiff, as a result of her improper filing as head of household, had received a tax credit to which she would not otherwise have been entitled. The court precluded defendant’s attorney from asking plaintiff any questions about information in her federal tax returns, explaining that, because plaintiff had not been asked about such issues at her deposition, defendant’s attorney was improperly attempting to “ambush” her at trial. Defendant’s attorney objected to the court’s ruling, thereby preserving the issue for our review.

“It is, of course, the general rule that a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness’s credibility . . . While the nature and extent of such cross-examination is discretionary with the trial court . . . , the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue” (Badr v Hogan, 75 NY2d 629, 634). Furthermore, ” cross-examination aimed at establishing a possible reason to fabricate must proceed upon some good-faith basis’ ” (Matter of Michael U. [Marcus U.], 110 AD3d 821, 822).

Here, based on his reading of IRS Publication 51 and plaintiff’s federal tax returns, defendant’s attorney had a good faith basis to ask plaintiff about the propriety of her filing status. Moreover, if plaintiff had improperly filed federal tax returns as head of household in order to receive a tax credit to which she was not entitled, it raises the possibility that she may have committed tax fraud. We conclude that evidence that plaintiff may have committed tax fraud has “some tendency to show moral turpitude to be relevant on the credibility issue” (Badr, 75 NY2d at 634; see generally Delgado v Murray, 115 AD3d 417, 418). Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant’s attorney would have been bound by plaintiff’s answers concerning her federal tax returns without “refuting [those] answers by calling other witnesses or by producing extrinsic evidence” (Prince, Richardson on Evidence § 6-305 [Farrell 11th ed]; see also People v Schwartzman, 24 NY2d 241, 245, cert denied 396 US 846; Casa de Meadows Inc. [Cayman Is.] v Zaman, 76 AD3d 917, 924), we nevertheless conclude that defendant’s attorney should have been allowed to ask the questions (see McNeill v LaSalle Partners, 52 AD3d 407, 410).

Plaintiff’s reliance on Badr (75 NY2d 629) is misplaced. In that case, the plaintiff in a personal injury action was asked on cross-examination whether she had committed welfare fraud. After plaintiff answered “[n]o” (id. at 632), the defendant’s attorney marked as an exhibit a confession of judgment wherein plaintiff had admitted that she had improperly received money from the Department of Social Services and had agreed to pay it back. Over plaintiff’s objection, the court allowed defendant’s attorney to use the confession of judgment to impeach plaintiff’s testimony that she had not committed welfare fraud. The Court of Appeals determined that it was reversible error for the trial court to have allowed the defendant’s attorney to useextrinsic evidence, i.e., the confession of judgment, to impeach plaintiff’s credibility (id. at 634-636).

The question presented in the case before us is not whether the court should have allowed defendant’s attorney to impeach plaintiff’s credibility with extrinsic evidence; rather, the question is whether the court should have allowed defendant’s attorney to question plaintiff about information in plaintiff’s federal tax returns that he believed to be inaccurate. Notably, the Court of Appeals in Badr did not suggest that it was error for the defendant’s attorney to ask the plaintiff whether she had committed welfare fraud; the error occurred in allowing the defendant’s attorney to use extrinsic evidence to show that the plaintiff’s answer to the fraud question was false. Here, defendant’s attorney was not permitted even to ask plaintiff his questions, and thus the facts of this case do not come within the holding of Badr. Finally, because plaintiff’s credibility was central to several close issues at trial—including proximate cause, serious injury, and damages—it cannot be said that the error is harmless.”

Hearsay

People v Laracuente, 21 AD3d 1389 (4th Dept. 2005)

“We reject the further contention of defendant that the court abused its discretion in limiting his cross-examination of the Deputy Medical Examiner (see People v Perez, 299 AD2d 427 [2002], lv denied 99 NY2d 618 [2003]; People v Rodriguez, 184 AD2d 599 [1992], lv denied 80 NY2d 933 [1992]). Indeed, the court properly limited the cross-examination in order to prevent questioning with respect to a text that was not established to be authoritative (see People v Feldman, 299 NY 153, [*2]168 [1949]; Prince, Richardson on Evidence § 7-313 [Farrell 11th ed]), and to prevent questioning concerning hearsay information in a report that was not admitted in evidence (see generally People v Jones, 73 NY2d 427, 430 [1989]; People v Kaplan, 167 AD2d 273 [1990], lv denied 77 NY2d 879 [1991]). Furthermore, the court properly limited defendant’s recross-examination of the Deputy Medical Examiner to the scope of the People’s questioning on redirect examination (see e.g. People v Hemphill, 247 AD2d 339 [1998], appeals dismissed 92 NY2d 846 [1998], lv denied 92 NY2d 898 [1998]).”

Use this when the plaintiff attempts to have your expert agree with certain non authorative texts or statements from reports that are not in evidence.