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.

Scope of cross-examination

People v Smith, 2016 NY Slip Op 05061 (2016)

We often cross-examine medical professionals with all sorts of backgrounds.  Some have OPMC issues, some have criminal issues, some have been sued in medical malpractice cases.  The question has always been how much into what could be considered “collateral” matters can an attorney go into with a witness that has the above issues.  My view is as much as the Court allows, and the Court of Appeals has set forth an interesting framework that you should be aware of  when you go head to head with a professional witness.

“Given these central principles, prosecution witnesses — and indeed, even a testifying defendant — may be cross-examined on “prior specific criminal, vicious or immoral [*3]conduct,” provided that “the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility” (People v Sandoval, 34 NY2d 371, 376 [1974]). Of course, where a witness other than the defendant testifies, the court, in considering the parameters of permissible cross-examination, is not focused on protecting the rights of the accused, and on the concern that permitting evidence of bad conduct will serve merely to demonstrate a propensity to commit the crime charged (see People v Ocasio, 47 NY2d 55, 58 [1979]). After all, for a nondefendant witness, “neither conviction nor vindication, imprisonment nor freedom, hangs in the balance” (id. at 59). However, in all cases the trial court retains broad discretion to weigh the probative value of evidence of prior bad acts against the possibility that it “would confuse the main issue and mislead the jury . . . or create substantial danger of undue prejudice to one of the parties”(People v Corby, 6 NY3d 231, 234-235 [2005][internal quotation marks and citation omitted]; see also People v Harrell, 209 AD2d 160, 160 [1st Dept 1994], affd 86 NY2d 806 [1995]; see generally People v Dawson, 50 NY2d 311, 322 [1980]; People v Gissendanner, 48 NY2d at 548 [1979]; Sandoval, 34 NY2d at 374 [“(t)he nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge”]).

In Garrett, we concluded that “civil allegations” of misconduct in a federal lawsuit filed against a law enforcement agent “were favorable to defendant as impeachment evidence” (Garrett, 23 NY3d at 886), thereby necessarily determining that such allegations can bear on a law enforcement officer’s credibility as a witness. The defendant in Garrett argued in his criminal case that one detective in particular “coerced him into making a false confession” and “[t]he federal complaint made similar allegations against [the same detective]: although it did not explicitly allege that the confession [the same detective] procured was false, the complaint described coercive tactics [the same detective] allegedly used to extract a confession against the plaintiff’s will” (id.). This Court noted that the evidence “favored defendant’s false confession theory” in that case (id.). Nonetheless, in Garrett, we noted that the trial judge could have exercised discretion and precluded inquiry into this “favorable” impeachment evidence (id. at 892).

Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proven at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proven at a trial (see People v Sorge, 301 NY 198, 201 [1950]). Likewise, a police witness’s prior bad act that similarly has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination. Nor do allegations of police misconduct lose their relevance to a police witness’s credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral. Indeed, we have approved cross-examination on a defendant’s use of aliases and other suspect, but not criminal, conduct because”even where the proof falls outside the conventional category of immoral, vicious or criminal [*4]acts, it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or significantly reveals a willingness . . . to place the advancement of his individual self-interest ahead of principle or of the interests of society.” Walker, 83 NY2d at 461 [1984][internal quotation marks and citations omitted]).

As we indicated in Garrett, and emphasize here, law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination. The same standard for good faith basis and specific allegations relevant to credibility applies — as does the same broad latitude to preclude or limit cross-examination.

Where a lawsuit has not resulted in an adverse finding against a police officer, as is the case with these three appeals, defendants should not be permitted to ask a witness if he or she has been sued,[FN1] if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court’s discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness.

From the above, the logical framework for analysis of the issue is clear. First, counsel must present a good faith basis for inquiring, namely the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a substantial risk of undue prejudice to the parties (see Delaware v Van Arsdall, 475 US 673, 679 [1986]; see People v Harrell, 209 AD2d 160, 160 [1st Dept 1994]).

A federal lawsuit alleging tortious conduct committed by law enforcement officials testifying as prosecution witnesses, provides an appropriate good faith basis for raising the issue. Even so, the specific allegations must be relevant to that witness’s credibility (see People v Garrett, supra; People v Daley, supra [where defendant was convicted of promoting prison contraband and menacing in the second degree arising out of an altercation with a correction officer, it was error not to permit the defendant to cross-examine the officer about circumstances underlying a federal lawsuit by another inmate accusing him of assault]; People v Jones, supra [where defendant was convicted of criminal possession of a weapon in the third degree, and defendant claimed he had been framed, it was error to prevent cross-examination of [*5]police witness about allegations in lawsuits of police brutality, false arrest and excessive force]); compare Andrew, supra at 618 [court properly exercised discretion not to permit cross-examination of police witness regarding acts alleged in lawsuit where complaint “did not allege, or even support an inference, that [ ] detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers.”]).

Nevertheless, whether to permit inquiry into such prior bad acts for impeachment purposes are discretionary calls “for the trial courts and fact-reviewing intermediate courts, and . . . generally no further review by this Court is warranted” (People v Walker, 83 NY2d at 458 [internal citations omitted]). “Because the trial courts have inherent power to control the scope of cross-examination and the use of prior bad acts is a generically accepted practice in that context, this Court will only intervene where the trial court ha[s] either abused its discretion or exercised none at all (id. at 459 [internal quotation marks and citation omitted]).

Applying those principles to these cases, we hold that the trial courts in Ingram and McGhee abused their discretion and effectively imposed an improper categorical prohibition against permissible cross-examination, although that error was harmless in McGhee. While it is a closer question with respect to Smith, any error in that case was likewise harmless.”

When insanity is more persuasive than reason

Atlantic Radiology Imaging, P.C. v Interboro Mut. Ins. Co., 2016 NY Slip Op 51031(U)(App. Term 2d Dept. 2016)

I admittedly find the extent that the judges and attorneys in the Civil Kings motion part 1) like to take defaults; and 2) refuse to vacate defaults to be alarming.  There is no other Civil Court or District Court that I have practiced in where the court and judges look for reasons to default litigants.

This case and every other case I end up having to bring to the Appellate Term to vacate defaults just proves that insanity trumps reason, and not the Trump that is looking to Make America Great Again.  Defendant moved for summary judgment and ancillary relief.  Court found triable issue of medical necessity.  Plaintiff moved for summary judgment after Defendant moved for summary judgment and received a later adjourn date.  Attorney comes to court on plaintiff’s motion and told judge the issue was resolved in prior motion and there was a calendar issue so “formal” opposition was not interposed.  Brief adjournment please?  Clearly, nobody acted willfully or neglected the file.  Plaintiff meant to make a cross-motion but made it returnable on another day.  In the real world, the motions would have been heard together.  In a surreal world, a one week adjournment would have been granted for a one line opposition with the order and motion papers  from motion sequence number to be attached as an exhibit

Court defaulted defendant instead of adjourning the matter, which was inappropriate because the law of the case was that a triable issue of fact medical necessity.  Again, do not expect anybody to go through a file and say that Plaintiff’s motion lacks merit.  Defendant immediately moved to vacate and the presiding judge on the vacatur application denied the motion.  No comment here.  Off to the Appellate Term which vacated the order.

This paradigm and variants of it represent normal behavior in the Civil Kings motion term.

A solution might be to assign cases to IAS parts, give shorter adjournments, allow 2-3 adjournments and allow greater judicial case management.  The Civil Kings motion term is broken on so many levels.

It really was not on consent

Jamaica Dedicated Med. Care, P.C. v Tri-State Consumer Ins. Co., 2015 NY Slip Op 25458 (App. Term 2d Dept. 2016)

(1) “In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court, entered January 10, 2013, denying defendant’s motion to resettle so much of a prior order of the same court, entered September 15, 2010, which had decided a motion and cross motion for summary judgment, so as to delete a notation on that[*2]order stating that the order was made on “consent” and is “not appealable,” or for alternative relief.”

(2) At the outset, we note that, contrary to plaintiff’s argument on appeal, so much of the January 10, 2013 order as denied resettlement is appealable, as defendant did not seek to change the substantive or decretal portions of the September 15, 2010 order, but rather to, in essence, correct a factual recitation of that order (see Matter of Lewin v New York City Conciliation & Appeals Bd., 88 AD2d 516 [1982]; Bergin v Anderson, 216 App Div 844 [1926]; see also 4 NY Jur 2d, Appellate Review § 57; 10 Carmody-Wait 2d § 70:31).

(3)  “That attorney attested that both he and plaintiff’s attorney had “vigorously argued” the motion and cross motion that day, and explicitly denied that the order had been made on consent. Defendant also submitted a copy of the September 15, 2010 order, apparently handed to the parties on September 15, 2010, the return date, which does not contain the “consent/not appealable” notation. Defendant further noted that all copies of the September 15, 2010 order state that it was made after oral argument.”

(4) “Accordingly, the order entered January 10, 2013 is reversed and the branch of defendant’s motion seeking to resettle the prior order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted.”

Kings County Chicanery.  Civil Kings is a land of its own and to its own.   I cannot say anything beyond that observation.