"Kids, dont try this at home"

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…

Written opposition – the key to beating people on procedural defects

Perhaps one of the most obnoxious things in this area of law is that firms attempt to “amplify” their respective positions through oral argument. This occurs in two scenarios: (1) A party orally argues a motion without written opposition; and (2) A party amplifies their position during oral argument through raising new objections not raised in their papers.

Dave Barshay said it best in an analogous situation: “Unobjected to hearsay is competent evidence”

Similarly, unobjected to procedural defects render incompetent evidence competent. There are certain courts that routinely entertain these type of oral objections.

With that in mind, let us look at:

Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co.
2009 NYSlipOp 29014 (App. Term 2d Dept. 2009)

The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public’s jurat, on the affidavits of mailing executed by defendant’s claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed. However, this technical [*2]defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto.

I shall say no more.

CPLR 3211(a) – you may cure pleadings in opposition to a preanswer motion

Haire v Bonelli
2008 NY Slip Op 10250 (3d Dept. 2008)

“When courts consider a motion under CPLR 3211, pleadings are afforded a liberal construction, with all alleged facts accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The court may consider affidavits submitted to remedy any defects in the complaint in determining whether plaintiff has a cause of action, per CPLR 3211 (a) (7), not whether he has stated one (see id. at 88). Under CPLR 3211 (a) (1), dismissal is warranted if documentary evidence conclusively establishes a defense as a matter of law (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; Leon v Martinez, 84 NY2d at 88).”

A new day for decisions…

I have an observation here that I want to share with those who read this – which I think consists of me, myself and I. The decisions in the realm of no-fault have been getting quite redundant. We used to always wait for the next big pronouncement from an appellate court, or even an observation from a lower court. Now, we just look to see when the next breaking or shattering of the status quo will occur.

With the above introduction in mind, now to the cases.

A.M. Med., P.C. v State Farm Mut. Ins. Co.
2008 NY Slip Op 28487 (App. Term 2d Dept. 2008)

Failure to properly caption – you better reject that paper within 2-days or you have waived the

Plaintiff argues that the absence of a caption setting forth the name of the court, the venue [*2]and the index number in the 90-day demand rendered it a nullity, as it was not in compliance with CPLR 2101 (c). However, the demand set forth the name of the case, including the name of the assignor, as well as the date of the loss. Consequently, in our opinion, the omissions were merely defects in form to which plaintiff’s counsel could have objected by returning the demand to defendant within two days of its receipt, specifying the nature of the defect (CPLR 2101 [f]). Plaintiff’s failure to do so waived any objection to the defect (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). right to challenge that defect.

Psychmetrics Med., P.C. v Travelers Ins. Co.
2008 NYSlipOp 52466(U)(App. Term 2d Dept. 2008)

This is another notice to admit case. Nothing special, right? Well, this is the first citing of Art of Healing Medicine, P.C. v Traveler’s Home & Mar. Ins. Co., ___ AD3d ___, 2008 NY Slip Op 07846 [2d Dept 2008], the Appellate Division’s affirmance of the Dan Medical “business record foundation” cases in order to establish a prima facie case…. Exciting, right?


My last words of the day…

I love the commentary from the Appellate Term on CPLR 2101. Realistically, how many law practices can realistically reject a non-captioned filing within two days of receipt? A better question – how many law practices can reject a “hidden” affidavit that is not captioned within a properly captioned motion within two days of its receipt? I know I cannot – and my practice pales in comparison to that of the larger firms out there – e.g., Baker, Sanders (among others)…

And then there is Art of Healing – vindication to those who have pushed through Dan Medical and its progeny…