202.48 – settle an order

Solomon v Burden, 2018 NY Slip Op 07480 (2d Dept. 2018)

I have always been intrigued, interested or mystified by how the Courts have treated the 60-day rule to settle or submit an order.  This case from today adds more questions than answers to the overall calculus.  I seem to remember the same analysis applied to CPLR 3212(b) pre-Brill.

“Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.”

An unsigned OSC on appeal – procedure.

Gluck v Hirsch, 2018 NY Slip Op 05828 (2d Dept. 2018)

“After oral argument, the court declined to sign the proposed order to show cause, with a handwritten notation that the Hirsches failed to demonstrate a meritorious defense to the action and that the Hirsches failed to submit proof of misconduct by the plaintiff’s attorney.

By decision and order on motion dated December 22, 2015, this Court granted the Hirsches leave to appeal from the Supreme Court’s order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject premises pending the hearing and determination of the appeal (see Gluck v Hirsch, 2015 NY Slip Op 94403[U]).

“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214[d]). Whether the circumstances constitute a “proper case” for the use of an order to show cause instead of a notice of motion is a matter within the discretion of the court to which the proposed order is presented (see [*2]Siegel, NY Prac § 248 [5th ed, 2011]). Here, under the particular circumstances of this case, this was a proper case for the use of an order to show cause, and the Supreme Court improvidently exercised its discretion in declining to sign the proposed order to show cause (see Matter of Georghakis v Matarazzo, 123 AD3d 711, 711).”

I post this because generally, the remedy for an unsigned OSC is to bring the application to the Appellate Division (CPLR 5704[a]) or Appellate Term (CPLR 5704[b]).  Here, because the Court ruled on the merits of the OSC without any responsive papers, the declined OSC became an order on motion not on notice, requiring leave.


New evidence used in reply – an angry court appears

Matter of Hereford Ins. Co. v Vazquez,  2018 NY Slip Op 00909 (1st Dept. 2018)

“In reply, Hereford submitted documents demonstrating that the Mercedes had been sold to Lyons three days before the accident, and insured by State Farm under the same policy number previously identified, effective the same date.

Absent any surprise or prejudice to State Farm, which was aware that Hereford alleged that it had insured the Mercedes under a specified policy and which did not seek to submit a surreply, the motion court providently exercised its discretion in considering the documents submitted by Hereford in reply (see Matter of Kennelly v Mobius Realty Holdings, LLC, 33 AD3d 380, 381-382 [1st Dept 2006]; Kelsol Diamond Co. v Stuart Lerner, Inc., 286 AD2d 586, 587 [1st Dept 2001]; Jones v Geoghan, 61 AD3d 638, 640 [2d Dept 2009]). Notably, Hereford could have sought leave to amend the petition based on the same documents, leading to the same outcome (see Matter of Allcity Ins. Co. [Russo], 199 AD2d 88 [1st Dept 1993]; see also Matter of Government Empls. Ins. Co. v Albino, 91 AD3d 870, 871 [2d Dept 2012]).

Since Hereford met its burden of showing “sufficient evidentiary facts” to establish a “genuine preliminary issue” justifying the stay, the motion court properly stayed arbitration [*2]pending a trial of the threshold issue of coverage”

This is the definition of the “I got you appeal” because you missed something in your moving papers that were remedied in your reply papers which the movant knew about.  On a more wholesale level, this type of case bespeaks how uncivilized the practice of law has become.  It has become more about trying to hurt your opponent on procedural niceties (thereby winning) than resolving cases on the merits.  As people, we should evolve.  I was going through an opp that violated 2106 a few months ago.  you know what I did?  Emailed the plaintiff and told him to fix it.

I am sad the carrier is going to pay counsel for this appeal or even allowed this appeal to go forward.  Hereford is not an evil or malicious carrier.  Anyway, this type of win at all costs brought us Unitrin v. NY Medical.  Same firm on both cases – anomaly?  Karma has a way of catching up with us.



Motion to dismiss not dispositive of summary judgment application

Alvarado v City of New York, 2017 NY Slip Op 03890 (1st Dept. 2017)

“As plaintiff now concedes, this Court’s decision on a prior appeal, denying defendants’ motion to dismiss (see Alvarado v City of New York, 60 AD3d 427 [1st Dept 2009]), is not dispositive of the instant motion, as “[t]he law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss'” (191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 [1st Dept 2011]).”

Another lesson that absent a 3212(g) order, a prior order from a prior application has no effect.

Intersection between collateral source hearing and no-fault


Having been involved in the thicket of the collateral source hearing, it can be very frustrating to obtain the information and evidence necessary to oftentimes reduce the medical and wage portion of a verdict that is being compensated through another source.


Here, contrary to the plaintiff’s contention, the Workers’ Compensation and Social Security benefits that she was receiving as a result of the 2002 accident constitute a collateral source that could potentially offset her award from this action to recover damages in connection with the 2010 accident. Both the plaintiff and her vocational rehabilitation specialist testified that the plaintiff’s benefits would have ceased if she had begun to work again. Therefore, although the

(1) “plaintiff was not receiving Workers’ Compensation and Social Security benefits as a result of the 2010 accident, under the unique circumstances of this case, those benefits constituted collateral sources that could potentially offset her award”

(2) “However, the defendants, who did not submit any documentation from the Social Security Administration and who elicited the plaintiff’s inconsistent testimony as to the amounts she was receiving per month in Social Security disability benefits, failed to establish with reasonable certainty that the plaintiff had been receiving, or would continue to receive, Social Security disability payments”

(3) “Additionally, the defendants failed to establish with reasonable certainty that they paid for some of the plaintiff’s past medical bills through no-fault insurance. At the collateral source hearing, the plaintiff testified that she had taken out a loan of approximately $60,000 to pay for some of her treatment, and that some of her treating physicians had taken liens against her. Further, the defendants offered only copies of the plaintiff’s medical bills without any testimony from an expert or no-fault insurance adjuster to explain them (see Lahren v Boehmer Transp. Corp., 49 AD3d 1186, 1188). This evidence was insufficient to establish with reasonable certainty which portions, if any, of the plaintiff’s bills the defendants had paid”

Here, the Defendant’s failed to obtain the SSD records and therefore could not reduce past wages.  More problematic, Defendant failed to subpoena that no-fault carrier in order to obtain the proofs necessary to show the portions of the past medical billings that were paid or should have been paid under the PIP policy.

The issue in collateral source hearings is that you are attempting to obtain evidence, never received in disclosure after you got the hell beaten out of you at trial.  In addition, you need to prove the issue through clear and convincing evidence.  Not an easy task.

Renewal and vacatur in interest of justice granted upon a release

Gentle Care Med. Servs., P.C. v Country Wide Ins. Co., 2017 NY Slip Op 50487(U)(App. Term 2d Dept. 2017)

Leave to renew

(1) In support of its motion, defendant submitted a general release, executed by plaintiff’s sole officer and shareholder. Defendant’s counsel stated that he had been unaware of the release at the time the prior motions had been decided. The release, dated before plaintiff had made its motion for summary judgment, essentially releases all pending no-fault claims against any insurance provider. It further states: “Presentment of a copy of this Release shall serve to advise any forum in which a claim for benefits is pending or subsequently filed on behalf of any of the Entities that such claim(s) has been withdrawn with prejudice.” In opposition, plaintiff’s counsel did not challenge the validity, authenticity or applicability of the release. In fact, plaintiff’s counsel did not discuss the release

(2) ” Here, defendant proffered a release, the authenticity of which plaintiff has not challenged, which released the no-fault claims underlying this action. The release constitutes a complete bar to the instant action (see Warmhold v Zagarino, 144 AD3d 672 [2016]; Powell v Adler, 128 AD3d 1039 [2015]). Moreover, defendant’s counsel alleged that he had been unaware of the release when the prior motions had been decided”

Motion granted.

Gentle Care Med. Servs., P.C. v Country Wide Ins. Co., 2017 NY Slip Op 50488(U)(App. Term 2d Dept. 2017)

Vacatur of order in the Interest of Justice 

(1) On appeal, defendant concedes that it did not timely submit the combined cross motion and opposition to plaintiff’s motion, and, indeed, the record establishes that the papers were late by one business day.

(2) “In the circumstances presented, we find that the Civil Court improvidently exercised its discretion in allowing the May 20, 2014 order to stand. Rather, “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]), the May 20, 2014 order should be vacated and, upon such vacatur, plaintiff’s motion for summary judgment should be denied and defendant’s cross motion for summary judgment dismissing the complaint should be granted”

It is so rare to see an appellate court in the Second Department affirm a lower court vacating a default based upon the Court’s interest of justice jurisdiction.  It is even rarer to see an appeals court vacate a default on its own based upon the Appellate Court’s own interest of justice jurisdiction.  This is really an amazing procedural decision.  The Court may limit how far they will apply interest of justice jurisdiction in certain instances where coverage is stripped.

E-filing and its perils

Woodward v Millbrook Ventures LLC 2017 NY Slip Op 02522 (1st Dept. 2017)

“Supreme Court properly concluded that defendants’ motion was untimely. Having consented to electronic filing, defendants were required to serve their papers electronically (Uniform Rules for Trial Cts [22 NYCRR] § 202.5-b[d][1]), and indeed served their demand for change of venue, together with their answer, by e-filing the documents on July 14, 2015 (22 NYCRR 202.5-b[f][2][ii]). Having served their demand, defendants were required to bring their motion to change venue within 15 days, or by July 29, 2015 (CPLR 511). However, defendants did not bring their motion until July 31, 2015, rendering it untimely. That defendants also elected to serve their demand via United States mail did not extend the deadline for their motion under CPLR 2103(b)(2). Because they consented to participate in Supreme Court’s e-filing system, defendants were bound by the applicable rules governing service”

The e-filing world is the present and the future.  At some point, OCA or the Legislature will mandate e-filing state-wide for all courts of record.  I doubt village courts will ever become e-filing courts, but they are not courts of record and exist in their own sordid manner.

The point here is that unless you perform an act on the e-filing system, it never happened.

The Respondent in this case is a no-fault legend emeritus  and someone I consider a friend, Amos Weinberg, Esq.  While I did email you privately, I will publicly state you did a good job on this one Amos.


Affidavit of errors

This is an unfortunate case in the criminal arena.  One of the great advances that the Jonathan Lippman administration made within our Town and Village Courts is to require that all proceedings be tape recorded should the town or village not want to incur the expense of a stenographer.   “In 2008, the Chief Administrative Judge of the State of New York issued a directive requiring the mechanical recording of all town and village court proceedings (Administrative Order of Chief Admin Judge of Cts AO/245/08 [May 21, 2008]).”

Should you appear in town or village courts or at the traffic tribunals, you will see a mixture of tape recorded proceedings and stenographic proceedings.

This case only applies the CPL and not the CPLR.  I am unaware of an analogue to the CPLR so those of us who practice in the Civil arena are safe.  But the case states the following:

(1)  “[A] defendant’s right to appeal within the criminal procedure universe is purely statutory” (People v Stevens, 91 NY2d 270, 278 [1998]). CPL 460.10 contains the procedural requirements for the taking of a criminal appeal, and adherence to those requirements is a jurisdictional prerequisite for the taking of an appeal (see People v Duggan, 69 NY2d 931, 932 [1987]). CPL 460.10 provides two different procedures for “appeal[s] taken as of right to a county court or to an appellate term.” Where “the underlying proceedings were recorded by a court stenographer,” an appellant is required to file a notice of appeal, and “the appeal is deemed to have been taken” “[u]pon {**27 NY3d at 648}filing and service of the notice of appeal” in the manner prescribed by the statute (see CPL 460.10 [1], [2]). Where “the underlying proceedings were not recorded by a court stenographer[,] . . . the appellant must file,” within 30 days, “either (i) an affidavit of errors, setting forth alleged errors or defects in the proceedings which are the subjects of the appeal, or (ii) a notice of appeal” (CPL 460.10 [3] [a]). If the appellant chooses to file a notice of appeal, he or she must then file an affidavit of errors within 30 days of the filing of that notice (see CPL 460.10 [3] [a]).[FN*] “[T]he appeal is deemed to have been taken” “[u]pon filing and service of the affidavit of errors as prescribed” (CPL 460.10 [3] [c]).

(2) “Following the filing of the affidavit of errors, the local criminal “court must file with the clerk of the appellate court to which the appeal has been taken both the affidavit of errors and the court’s return,” which “must set forth or summarize evidence, facts or occurrences in or adduced at the proceedings resulting in the judgment, sentence or order, which constitute the factual foundation for the contentions alleged in the affidavit of errors” (CPL 460.10 [3] [d]). This Court has held that the court’s return can be “satisfied by the transcript of an electronic recording of” the underlying proceeding, where there is no argument that the affidavit of errors contained issues that could not be resolved by reference to the transcript or “that the transcript is in any way incomplete or inaccurate” (People v Robinson, 72 NY2d 989, 990 [1988]).’

(3) “An electronic recording that fully captures the proceedings and is later transcribed may be incorporated in an affidavit of errors, or in the court’s return, and filed as a proposed record on appeal (see Robinson, 72 NY2d at 990). However, the filing of a record on appeal is distinct from the taking of the appeal, and a transcript will not{**27 NY3d at 650} fulfill the jurisdictional requirement of the filing of the affidavit of errors.”

(4) “As a practical matter, the record in Ramsey highlights the problematic aspects of considering the transcription of an electronically recorded proceeding to be equivalent to a real-time stenographic transcription. A court stenographer, present at the time of the proceeding, has the ability to ask a party or the judge to repeat something in order to ensure the completeness and accuracy of the record. By contrast, where an electronic recording fails to record portions of the proceedings, a later transcription—even if performed by a certified court stenographer—cannot cure the omissions.”


A few thoughts here.  First, should there be issues with the electronic recording, then the parties settle the transcript and a judge would invariably sign off on it.  Second, the Court should interpret the statutes in light of common sense and reality.

If it makes anyone feel better, the poor saps who got there appeals dismissed due to the failure to file an affidavit of errors are now successfully bringing writs of coram nobis at the Appellate Term, so you all can sleep easier at night,



Discrepancy between the judgment and the decision – decision controls

DJS Med. Supplies, Inc. v Allstate Ins. Co., 2016 NY Slip Op 51123(U)(App. Term 2d Dept. 2016)

This case was interesting because, as typically happens in volume cases, something is missed.  Plaintiff felt it worth its while to appeal the $181.50 that it was entitled to after trial for the massager that was not opined upon.  My question is why the heck didn’t Allstate just pay the guy the $181.50 plus costs?  On the flip side, if Plaintiff has to file a reproduced record, would he have spent $3,000 to file this appeal?  These are the questions I have reading this case.  The outcome is meaningless.

An unincorporated solo practitioner using his own social security number.

Hu-Nam-Nam v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 26237 (App. Term 2d Dept. 2016)

A billing provider seeking to recover no-fault benefits for services rendered to an assignor must provide, at the bottom of the claim form, a taxpayer identification number either in the form of a social security number or an employer identification number. Social security numbers are used to identify individual persons, while employer identification numbers are used to identify employers (see 26 CFR 301.6109-1 [a] [1] [ii]). “An individual … who is an employer or who is engaged in a trade or business as a sole proprietor should use an employer identification number” (26 CFR 301.6109-1 [a] [1] [ii] [b]), since an employer identification number is required if the taxpayer “[p]ay[s] wages to one or more employees” (IRS Publication No. 334 [Tax Guide for Small Business]). Thus, it is permissible for a billing provider operating as a sole proprietor to use his or her own social security number on the claim form if it is the billing provider who rendered the services in question. However, where, as here, a doctor bills for services rendered by a treating provider in that doctor’s employ, it is impermissible for the doctor to bill using his or her own social security number.

Nothing better than putting your social security number on documents to be distributed to the world.  That is the vehicle for classic fraud.  Legally, this is the type of “technical issue” that the Court of Appeals warned against in Malella.  Yet, this is not  a Malella defense since and is deemed an improper billing defense.  The Court held as follows: “As defendant demonstrated that the claim form submitted by plaintiff was for services performed by plaintiff’s employee, that the claim form was submitted under plaintiff’s social security number, and that the denial of claim form based upon improper billing was mailed within 30 days of defendant’s receipt of the claim form, defendant established its entitlement to summary judgment.”

I am not sold this is a defense, but you do not have to sell me on it.  I am not the court.