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.”


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.


Another 3101(d) case

Matter of Western Ramapo Sewer Extension Project, 2014 NY Slip Op 05889 (2d Dept. 2014)

“The Supreme Court providently exercised its discretion in precluding two of the Sewer District’s witnesses from testifying at trial as experts, based upon its noncompliance with CPLR 3101(d)(1)(i) (see Rivers v Birnbaum, 102 AD3d 26; Sushchenko v Dyker Emergency Physicians Serv., P.C., 86 AD3d 638, 639; Mohamed v New York City Tr. Auth., 80 AD3d 677, 678; Parlante v Cavallero, 73 AD3d 1001, 1003). In this regard, the Sewer District did not disclose or identify either witness until after the trial had begun, and provided no explanation for that failure.”

Preclusion seems to be waning as to 3101(d) violations unless it occurs after the trial commenced.

CPLR 3101(d) not violated

Matter of Matter of State of New York v Dennis K., 2014 NY Slip Op 05884 (2d Dept. 2014

“The Supreme Court did not err in denying the appellant’s application to preclude certain expert testimony at the dispositional hearing, based on the State’s failure to comply with CPLR 3101(d), as no wilfulness or significant prejudice was demonstrated (see Ocampo v Pagan, 68 AD3d 1077, 1078; Shopsin v Siben & Siben, 289 AD2d 220, 221).”

A wholesale violation of the statute does not require preclusion.

Jules said he is not bound by the Appellate Term’s holdings

Quality Health Prods., Inc. v Travelers Indem. Co., 2014 NY Slip Op 51231(U)(App. Term 2d Dept. 2014)

“At the trial, the judicial hearing officer refused to allow defendant’s expert witnesses to testify as to their opinions of the medical necessity of the supplies at issue on the ground that the underlying medical records of plaintiff’s assignors that the witnesses had reviewed were hearsay, explicitly stating that he did not “follow” Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”

“As this court has previously held, defendant’s witnesses should have been permitted to testify as to their opinions regarding the medical necessity of the supplies at issue, and it was error to preclude their testimony on hearsay grounds”

“We note that, contrary to the belief of the judicial hearing officer in this case, the Civil [*2]Court is bound by the decisions of this court (see 28 NY Jur 2d, Courts and Judges § 220).”

*I recall a “trial” with Judge Ingrid Joseph where this occurred because the carrier presented a substitute peer review.  Plaintiff made a frivolous peer hearsay objection, which was sustained.  If I were a judge and I really believed that peer hearsay and substitute peer testimony was not admissible, I would allow it, make factual findings adverse to the proponent of the evidence and render a judgment that would be less likely to be reversed on appeal.  See e.g. PSW Chiropractic v. Maryland Insruance Co.   In all seriousness, it is embarrassing when you as a judge “westlaw yourself” and you get reversed on this basis.

Now, will this prevent a judge from being elevated to 360 Adams Street (this is a Brooklyn phenomenon by the way)?  Probably not.  But from an integrity standpoint, it is problematic.

The absence of an expert is fatal to prove causation

Donoso v Motor Veh. Acc. Indem. Corp., 2014 NY Slip Op 04071 (1st Dept 2014)

Plaintiff claims that she suffered permanent consequential and significant limitations of use of her lumbar spine as a result of an accident involving a motor vehicle (see Insurance Law § 5102[d]). At trial, she testified that she was knocked over by a car and thereafter suffered back pain and injuries for which she received physical therapy and epidural injections, and that she underwent surgery four years later. Ambulance and emergency room records admitted into evidence show that the then 65-year-old plaintiff complained of back pain following the accident, and medical records of the treatment about which plaintiff testified show, inter alia, that the surgical procedure was a laminectomy to address spinal stenosis. Plaintiff did not call any treating physician or medical expert to testify.

Defendant moved for a directed verdict at the close of plaintiff’s evidence, arguing that plaintiff could not prove causation without a doctor’s testimony (see CPLR 4401). Contrary to plaintiff’s contention, since defendant’s argument constituted a challenge to the sufficiency of the evidence, and indeed plaintiff opposed defendant’s motion on the ground that her medical records were sufficient, the issue whether plaintiff established prima facie that she suffered a serious injury causally related to the motor vehicle accident is preserved for review (see Geraci v Probst, 15 NY3d 336, 342 [2010]).

Plaintiff presented no evidence of a causal connection between the motor vehicle accident and her lumbar condition. The medical records do not contain an opinion given by a physician that there was a causal connection between the accident and plaintiff’s disc herniation or the spinal stenosis for which she underwent surgery four years later. Indeed, the impression of one of plaintiff’s treating physicians, according to his medical records, was “[d]egenerative disc disease of the lumbar spine.” However, if the records had contained an opinion, the trial court could not have considered them, because the opining physician was not available for cross-examination (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013] Daniels v Simon, 99 AD3d [*2]658, 660 [2d Dept 2012]). Thus, defendant was correct that plaintiff could not prove causation without a doctor’s testimony, and its motion should have been granted because “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997] see e.g. Ciocca v Park, 21 AD3d 671 [3d Dept 2005], affd 5 NY3d 835 [2005]).”

Reports and treatments notes are insufficient to prove causation and presumably medical necessity.  Alternatively, if the records contain an opinion, they are inadmissible as they are not subject to cross-examination.  A bit of a tongue twister?

Speak your mind in the wrong forum? It will cost you. Fail to supervise your employees? A price will be paid.

Promed Durable Equip., Inc. As Assignee of Shavonne Flinch v Geico Ins., 2014 NY Slip Op 72449(U)(App. Term 2d Dept. 2014)

You can read this.   From the opinion (a quotation from the offending brief): “the recent Park Slope decision is replete with foundationless claims and misunderstandings of both law and argument.  The funny thing is there is nothing to be done about it, except go to the Court of Appeals given the unavailability of the Appellate Division, Second Department. It seems clear from discussion with Plaintiff firms and judges that there is an agreement that this Appellate Term will redefine the laws of evidence in order to suit the insurance company business model, while at the same time the Appellate Division will not accept cases from the Appellate Term.”

While the text of what was said was perhaps overboard, the substance might have merit.  See  Matter of State of New York v Floyd Y., 22 NY3d 95 (2013)

And as an employer, keep your eyes open: “With respect to Ilona Finkelshteyn, Esq., the name of whose law firm appears on each brief submitted by Mr. Vitarelli, the court finds that “in the exercise of reasonable management or supervisory authority, [Ms. Finkelshteyn] knew [as alleged by Mr. Vitarelli] or should have known” of Mr. Vitarelli’s conduct (Matter of Berkman, 55AD3d 114, 117 [2008]) and failed, under the circumstances, to adequately supervise the work submitted by Mr. Vitarelli, which bore Ms. Finkelshteyn’s name (see Matter of Shapiro, 55 AD3d 291 [2008]).”


Plaintiff’s medical records are admissible by defendant absent dispute regarding accuracy or veracity

Ward v Lincoln Elec. Co., 2014 NY Slip Op 02668 (1st Dept. 2014)

I think this might be a way around the Appellate Term peer hearsay paradigm without stating that Assignor’s medical records are not considered for a hearsay purpose.   Assignee is stuck with Assignor’s uncertified records unless Assignor disputes their accuracy.  This seems to be a cleaner approach to allow these records into evidence than our current construct.

“Plaintiff’s uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity  (Carlton v St. Barnabas Hosp., 91 AD3d 561 [1st Dept 2012]; CPLR 4518[c]). He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the limitations period running”

Biomechanical Engineer allowed to testify

Vargas v Sabri, 2014 NY Slip Op 01666 (1st Dept. 2014)

In the world of the use of  bio mechanical engineer issues, this case is actually a watershed case.  Here, the Appellate Division essentially called into question the holding of the Appellate Term 7 years ago in Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.,17 Misc.3d 97 (App. Term 1st Dept. 2007)(“[a]ccident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries”) through holding that a biomechanical expert need not have medical credentials to offer an opinion, within a reasonable degree of engineering certainty, that that motor vehicle accident did not cause the injuries at bar.

The case held as follows:

“The fact that Dr. McRae lacked medical training did not render him unqualified to render an opinion as an expert that the force of the subject motor vehicle accident could not have caused the injuries allegedly sustained (see e.g. Melo v Morm Mgt. Co., 93 AD3d 499, 499-500 [1st Dept 2012]). McRae’s stated education, background, experience, and areas of specialty, rendered him able him to testify as to the mechanics of injury (see Colarossi v C.R. Bard, Inc., 113 AD3d 407 [1st Dept 2014]).

Plaintiffs’ challenge to Dr. McRae’s qualifications and the fact that his opinion conflicted with that of defendant’s orthopedic expert go to the weight and not the admissibility of his testimony (see Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006]). Plaintiffs’ challenge to the basis for Dr. McRae’s opinion addressed only portions of the evidence relied upon by him. Furthermore, the record shows that plaintiffs improperly attempted to put defendant to his proof [*2]by asserting, in the moving papers, that “defendant has not shown that the hearsay studies’ Mr. McRae relies upon are reliable,” without identifying any of the studies referred to or explaining the basis for the belief that the studies were not reliable.”

Another peer hearsay case

Alev Med. Supply, Inc. v Government Employees Ins. Co., 2014 NY Slip Op 50130(U)

“Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).”

Another peer hearsay case.