Oral application granted (untimely papers accepted) and the deeming acceptable of an affirmation of a physician in a different specialty

Payne v Buffalo Gen. Hosp., 2012 NY Slip Op 04901 (4th Dept. 2012)

[Oral application granted and untimely papers deemed accepted]

“With respect to appeal No. 1, we reject defendants’ contention that Supreme Court erred in granting plaintiff’s application and in thus considering plaintiff’s untimely expert affirmation. “While a court can in its discretion accept late papers, CPLR 2214 and [CPLR] 2004 mandate that the delinquent party offer a valid excuse for the delay . . . Additional factors relevant when essentially extending the return day by accepting late papers include, among others, the length of the delay and any prejudice” (Mallards Dairy, LLC v E & M Engrs. & Surveyors, P.C., 71 AD3d 1415, 1416 [internal quotation marks omitted]; see generally Foitl v G.A.F. Corp., 64 NY2d 911, 912-913). Plaintiff’s attorney offered a valid excuse for the delay (see Mallards Dairy, LLC, 71 [*2]AD3d at 1416; Associates First Capital v Crabill, 51 AD3d 1186, 1188, lv denied 11 NY3d 702; cf. Gagnon v St. Joseph’s Hosp., 90 AD3d 1605, 1607), the delay of only several days was minimal (see Associates First Capital, 51 AD3d at 1188), and “any prejudice was alleviated when defendant[s were] permitted to submit . . . reply affidavit[s] in response to plaintiff’s late submission” (Mallards Dairy, LLC, 71 AD3d at 1416).”

[Ability to use a doctor who is outside the specialty as that of the defendant physicians in medical malpractice matter]

“It is well recognized that a plaintiff’s expert need not have practiced in the same speciality as the defendants (see Diel v Bryan, 57 AD3d 1493, 1494). The record includes the redacted affirmation of plaintiff’s expert stating that the expert was a physician duly admitted to practice in New York, had been licensed and had practiced for over 20 years, had a specialty in neurology, and had practiced in emergency room settings in hospitals in Western New York. We conclude that the expert’s affirmation was sufficient to demonstrate that the expert has “the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion rendered [on the issues of negligence and proximate cause] is reliable”

Subsequent MSJ is okay

Valley Natl. Bank v INI Holding, LLC,  2012 NY Slip Op 03830 (2d Dept. 2012)

“Although multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause, a subsequent summary judgment motion may be properly entertained when it is substantively valid and when the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts”

3212(b) motion – affidavit from movant necessary

Maragos v Sakurai, 2012 NY Slip Op 01592 (2d Dept. 2012)

“CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney’s affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion”

There are some courts that will do anything in their power to stave off granting  summary judgment to a movant.  Just recently, a Supreme Court Justice stated that the absence of an original affidavit rendered an otherwise uncontested affidavit to be inadmissible.  The actions of the Supreme Court in this matter are not necessarily shocking.

CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney’s affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion

Amended motion?

Woodward Med. Rehabilitation, P.C. v State Farm Fire & Cas. Co., 2011 NY Slip Op 52442(U)(App. Term 2d Dept. 2011)

In this case, which seems to be one of first impression, the Court held that a motion cannot be withdrawn or amended without leave of court.  Does this mean that a letter carbon copied to the other side requesting that a motion be withdrawn is now invalid?

“Nowhere in the papers in support of defendant’s amended motion did defendant set forth why it concluded that the amended motion was necessary, nor did defendant seek to withdraw the original motion. On the return date, the Civil Court denied both the original motion as defective and the amended motion as having been made “more than one year after the original motion without leave of court.” Defendant’s sole argument on appeal is [*2]that the Civil Court improperly refused to consider its amended motion.”

“A party who concludes that a motion is defective or insufficient should apply for and obtain leave to withdraw or amend it” (60 CJS, Motions and Orders § 41; see generally Hoover v Rochester Print. Co., 2 App Div 11 [1896]). As the record in this case does not indicate that defendant either sought leave to withdraw the original motion or to amend it, and as defendant did not set forth any reason why an amended motion was necessary, the Civil Court did not improvidently exercise its discretion in refusing to entertain the amended motion.”

Punch drunk off CPLR 3212(g)

The 3212(g) effect.  Limiting issues for trial.  According to Professor Siegel, 3212(g) is the remnants of “the aborted motion for summary judgment.”  This provision is a wonderful way to compel, in effect, a framed issue hearing, which is what a no-fault trial generally should be.

Well, a drizzle has just invaded paradise, or maybe a tsunami depending on what the record of appeal says in this case.

Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 20493 (App. Term 2d Dept. 2010).

“Upon a review the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g). First, the record does not demonstrate that there is no dispute, or that it is incontrovertible, that plaintiff had submitted “proof of the fact and amount of loss sustained” to defendant and that defendant had failed to pay the claim within 30 days of receipt of such proof (see Insurance Law § 5106 [a]). Furthermore, the record does not demonstrate that, of the 31 defenses raised by defendant in its answer, none were viable except for the excessiveness of the fee schedule, which is the implication of an order limiting the trial to this defense. Indeed, it is noted that, in opposition to plaintiff’s motion, defendant submitted sufficient evidence to raise a triable issue of fact as to whether plaintiff was certified to practice acupuncture at the time that the acupuncture services at issue were rendered”

By the way, what would happen if instead of having an order (3212[g]) dispose of the underlying motion, a trial stipulation similar to the motion disposition was interposed?

Also, does anyone sense an element of sandbagging here?  Not nice.

3211(a)(1) – does not apply to an EUO no-show defense

VIT Acupuncture, P.C. v State Farm Auto. Ins. Co., 2010 NY Slip Op 51560(U)(Civ. Ct. Kings Co. 2010)

The Civil Court found, not surprisingly, that CPLR 3211(a)(1) cannot be used to establish the bona fides of a policy violation defense.  This result was probably preordained in light of Fontanetta v Doe, 73 AD3d 78 (2d Dept 2010).  Except to prove a point that a pre-answer motion might be inappropriate in this particular type of case, it would seem more logical for the parties to chart a summary judgment course and have the matter adjudicated on the merits.  Now, an answer will be interposed and we will start this charade again.  Perhaps in an upstate court, an additional motion that is added to the calendar is inconsequential.  But, when you have 400 motions a day being calendared in Special Term in Civil Kings, each additional motion that does not need to made puts the attorneys and the staff that much closer to sharing the building with the small claims night-court term.

The destruction of peer hearsay: It is not hearsay – and much more

Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)(App. Term 2d Dept. 2010)

This case really should be in the misc.3d reporter and Habif, the last case we discussed, should have the aforesaid (U) cite.  The predominant issue that is presented in this case involves peer hearsay.  But, there is a subtle jab at how certain Kings County judges adjudicate the mailing issue; a mention of 3212(g) and a way to possibly invoke it; and the duty to communicate when an additional verification request is received.  Now on to the discussion of this case.

1. Peer hearsay – exception to the hearsay rule

The case starts off with the observation that the plaintiff assignor’s medical records are fair game under the standard argument that a medical provider is estopped from challenging medical records that reference or discuss the assignor.  This rule follows the long line of cases, which holds that the plaintiff’s medical records constitute admissions when used by the defendant.  The court was correct in invoking this rule, and should have stopped here in its analysis.

2. Peer hearsay – it is non hearsay

“Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.”

I am not sure that I agree with theabove reasoning.  If a patient’s medical chart shows normal Range of Motion and symmetrical Deep Tendon Reflexes, then of course I as a competent defense attorney am going to use these findings for their truth, to show that certain diagnostic testing was medically unreasonable.  This also runs counter to the Ninth and Tenth Districts’ determination in Progressive Medical Inc. v. Allstate.  Finally, it runs counter to the Second, Eleventh and Thirteenth Districts’ determination in Pan Chiro, P.C. v. Mercury Ins. Co.

But, the real problem with this case is the application it has to personal injury and medical malpractice litigation.  I will let your imagination craft the creative lawyering this case presents.

3. Mailing

The rule in Civil Kings with certain judges is that the affidavit must be specific as to the dates an item is mailed.  It is insufficient, according to these judges, to present an affidavit that discusses the general mailing procedure, which will allow a reader to infer that an annexed denial was mailed on the date of the denial or the next business date.  The fact that certain plaintiff’s prevailed using this argument forever baffled my mind, and was always a key determination as to whether or not I appealed an adverse decision.  Here is an example of case from Kings County where I reversed a judge who said my affidavit was not specific enough: Quality Psychological Services, P.C. v. Mercury Ins. Group, 27 Misc.3d 129(A)(App. Term 2d Dept. 2010).  Here is an example from Queens County where I reversed a judge who said my affidavit was not specific enough : Innovative Chiropractic, P.C. v. Mercury Ins. Co., 25 Misc.3d 137(A)(App. Term 2d Dept. 2010).

Here is the language from Urban:

“The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant’s mail clerk regarding mailing of the denial & requests for additional verification.  The instant appeal by defendant ensued. Contrary to the determination of the Civil Court, the affidavits of defendant’s no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants’ personal knowledge, defendant’s standard office practice and procedure designed to ensure that said documents were mailed”

4. Communicate or be estopped

A reoccurring theme in the case law has involved the insurance carrier sending a verification request  to a provider who the insurance carrier knows, or should know, does not have the requested information.  A similar theme involves the sending of verification requests to a provider when they have an attorney submitting their bills.

The Court, in following recent precedent, held that the provider must communicate that it does not have the information in order to stop the tolling of the time to pay or deny the claim.  The Urban court said the following: “While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere.”

5. The door opens up to the invocation of 3212(f)

“Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]).

It looks like the Defendant failed to annex the medical records that its peer review doctor relied upon in its motion for summary judgment.  Interestingly, the court held that if Plaintiff was diligent in seeking discovery, it would have been able to invoke 3212(f).  This is very interesting and it also makes sense.

All that in one case.

An untimely cross-motion will not be forgiven when the sought after relief is based upon a “different” issue than that found in the main motion

Leonardi v Cruz, 2010 NY Slip Op 04257 (1sr Dept. 2010)

“Furthermore, although “[a] cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross motion” (Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [2006], appeal dismissed 9 NY3d 862 [2007] [internal quotation marks and citations omitted]), the issues of liability and serious injury are not so intertwined or nearly identical (see Covert, 53 AD3d at 1148).”

If a defendant moves for summary judgment on the basis that its defense was proved prima facie and Plaintiff untimely cross-moves on the basis that it established its prima face case, then it appears that Plaintiff could be out of the box.  Similarly, if Plaintiff moves for summary judgment on the basis that it established its prima facie case and Defendant untimely cross-moves on the basis that its defense was proved prima facie, then Defendant could also be out of the box.

Or perhaps these issues are “so intertwined or nearly identical.”  I do not have the answer on this one.

An untimely cross-motion will not be forgiven when the sought after relief is based upon a "different" issue than that found in the main motion

Leonardi v Cruz, 2010 NY Slip Op 04257 (1sr Dept. 2010)

“Furthermore, although “[a] cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross motion” (Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [2006], appeal dismissed 9 NY3d 862 [2007] [internal quotation marks and citations omitted]), the issues of liability and serious injury are not so intertwined or nearly identical (see Covert, 53 AD3d at 1148).”

If a defendant moves for summary judgment on the basis that its defense was proved prima facie and Plaintiff untimely cross-moves on the basis that it established its prima face case, then it appears that Plaintiff could be out of the box.  Similarly, if Plaintiff moves for summary judgment on the basis that it established its prima facie case and Defendant untimely cross-moves on the basis that its defense was proved prima facie, then Defendant could also be out of the box.

Or perhaps these issues are “so intertwined or nearly identical.”  I do not have the answer on this one.

The 120 day time period (CPLR 3212[a]) to make a summary judgment motion applies even if an action is marked off the calendar

Rivera v City of New York, 2010 NY Slip Op 03773 (1st Dept. 2010)

“Defendant’s cross motion for summary judgment, which was made in response to a motion by plaintiff characterized by the motion court as one to restore the action to the calendar, should have been denied as untimely, as defendant failed to show good cause for making the cross motion more than 120 days after the filing of the note of issue (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]). At least where, as here, the 120-day time limit had expired before the case was struck from the calendar, we reject defendant’s argument that the 120-day limit does not apply to cases that have been struck from the calendar. We note Brill’s express prohibition against consideration of unexcused, untimely motions no matter how meritorious or nonprejudicial (id. at 653, especially n 4; see Perini Corp. v City of New York, 16 AD3d 37, 39-40 [2005]).”

How does this case comport with the legislative intent behind the creation of the 120 day rule in the 1990s, which was to prevent eve of trial summary judgment motions?