The Appellate Division has held that “Documentary evidence” under CPLR 3211(a)(1) is quite limited

Fontanetta v John Doe 1, 2010 NY Slip Op 02743 (2d Dept. 2010)

“[t]he case law is somewhat more abundant as to what is not “documentary evidence.” As this Court held in Berger v Temple Beth-El of Great Neck (303 AD2d 346, 347), affidavits are not documentary evidence (to the same effect, see Tsimerman v Janoff, 40 AD3d 242 [1st Dept], and Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211.10). In Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. (10 AD3d 267, 271), the Appellate Division, First Department, reversed the trial court’s dismissal [*5]pursuant to CPLR 3211(a)(1), finding that e-mails and deposition and trial testimony were not the types of documents contemplated by the Legislature when it enacted this provision.

In Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (24 Misc 3d 486, 495 n 2), the Supreme Court, New York County, held that affidavits and letters did not constitute documentary evidence under CPLR 3211(a)(1) so as to prove that a lawyer-client relationship had been terminated. Also, in Holman v City of New York (19 Misc 3d 600, 602), the Supreme Court, Kings County, found that medical records containing the notes of a doctor were not “documentary evidence,” as they raised issues of credibility that are for a jury to decide.

Similarly, in Webster Estate of Webster v State of New York (2003 NY Slip Op 50590[U] *5), the Court of Claims held that records maintained by the New York State and United States Departments of Transportation, which provided detailed information about the railroad crossing at issue, were not “documents” within the meaning of CPLR 3211(a)(1). The court reasoned that those records contain information in a summary form and, thus, are not “essentially undeniable.”

In sum, to be considered “documentary,” evidence must be unambiguous and of undisputed authenticity (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).

It must be pointed out that some of the confusion as to what constitutes documentary evidence pursuant to CPLR 3211(a)(1) stems from the fact that various courts appear to refer to any printed materials as “documentary evidence,” particularly in cases not involving CPLR 3211(a)(1). For example, in Gray v South Colonie Cent. School Dist. (64 AD3d 1125), the Appellate Division, Third Department, referred to deposition testimony as “documentary evidence” in discussing a motion for summary judgment. In addressing a motion to change venue in Garced v Clinton Arms Assoc. (58 AD3d 506, 509), the Appellate Division, First Department, referred to affidavits as “documentary evidence.” However, it is clear that affidavits and deposition testimony are not “documentary evidence” within the intendment of a CPLR 3211(a)(1) motion to dismiss.

*                        *                                 *                                *                              *

The essence of the defendants’ contentions, both in their briefs and at oral argument, is the following: first, that their (alleged) “documentary evidence,” i.e., the defendants’ printed materials, demonstrates that a peer review process (as defined by the HCQIA) took place; second, a review of the complaint shows that the claims are all based on the allegedly wrongful termination of the hospital privileges of the individual plaintiff for not providing quality medical care; and, third, under the HCQIA, the defendants have a presumption of immunity for claims resulting from their participation in a peer review process. They maintain that this established the necessary prerequisites for the presumption to apply, and the burden has, therefore, shifted to the plaintiff to demonstrate why the complaint should not be dismissed or, at least, to show the existence of a factual question on that issue. The defendants argue that the plaintiff did not make that showing. Thus, based on the printed materials the defendants submitted, they were entitled to dismissal of the complaint.

We reject the defendants’ position. Their printed materials (with the above-noted possible exception of the clearly insufficient attendance reports) can best be characterized as letters, summaries, opinions, and/or conclusions of the defendants and/or the Hospital’s agents and employees. They clearly do not reflect an out-of-court transaction and are not “essentially undeniable” (see Siegel, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C3211:10 at 22). Thus, they are not “documentary evidence” within the intendment of CPLR 3211(a)(1).

Since the defendants’ printed materials were not “documentary evidence” and they made this motion exclusively under CPLR 3211(a)(1), their submissions were insufficient as a matter of law to grant their motion. In light of that determination, we need not address the parties’ remaining contentions.”

The latest trend out there is to make pre-answer motions based upon EUO and IME no-show defenses.  I was always skeptical about these motions, since I always thought they had to be made as summary judgment motions.  It looks as though the Appellate Division has confirmed my skepticism.

The Appellate Division has held that "Documentary evidence" under CPLR 3211(a)(1) is quite limited

Fontanetta v John Doe 1, 2010 NY Slip Op 02743 (2d Dept. 2010)

“[t]he case law is somewhat more abundant as to what is not “documentary evidence.” As this Court held in Berger v Temple Beth-El of Great Neck (303 AD2d 346, 347), affidavits are not documentary evidence (to the same effect, see Tsimerman v Janoff, 40 AD3d 242 [1st Dept], and Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211.10). In Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. (10 AD3d 267, 271), the Appellate Division, First Department, reversed the trial court’s dismissal [*5]pursuant to CPLR 3211(a)(1), finding that e-mails and deposition and trial testimony were not the types of documents contemplated by the Legislature when it enacted this provision.

In Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (24 Misc 3d 486, 495 n 2), the Supreme Court, New York County, held that affidavits and letters did not constitute documentary evidence under CPLR 3211(a)(1) so as to prove that a lawyer-client relationship had been terminated. Also, in Holman v City of New York (19 Misc 3d 600, 602), the Supreme Court, Kings County, found that medical records containing the notes of a doctor were not “documentary evidence,” as they raised issues of credibility that are for a jury to decide.

Similarly, in Webster Estate of Webster v State of New York (2003 NY Slip Op 50590[U] *5), the Court of Claims held that records maintained by the New York State and United States Departments of Transportation, which provided detailed information about the railroad crossing at issue, were not “documents” within the meaning of CPLR 3211(a)(1). The court reasoned that those records contain information in a summary form and, thus, are not “essentially undeniable.”

In sum, to be considered “documentary,” evidence must be unambiguous and of undisputed authenticity (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).

It must be pointed out that some of the confusion as to what constitutes documentary evidence pursuant to CPLR 3211(a)(1) stems from the fact that various courts appear to refer to any printed materials as “documentary evidence,” particularly in cases not involving CPLR 3211(a)(1). For example, in Gray v South Colonie Cent. School Dist. (64 AD3d 1125), the Appellate Division, Third Department, referred to deposition testimony as “documentary evidence” in discussing a motion for summary judgment. In addressing a motion to change venue in Garced v Clinton Arms Assoc. (58 AD3d 506, 509), the Appellate Division, First Department, referred to affidavits as “documentary evidence.” However, it is clear that affidavits and deposition testimony are not “documentary evidence” within the intendment of a CPLR 3211(a)(1) motion to dismiss.

*                        *                                 *                                *                              *

The essence of the defendants’ contentions, both in their briefs and at oral argument, is the following: first, that their (alleged) “documentary evidence,” i.e., the defendants’ printed materials, demonstrates that a peer review process (as defined by the HCQIA) took place; second, a review of the complaint shows that the claims are all based on the allegedly wrongful termination of the hospital privileges of the individual plaintiff for not providing quality medical care; and, third, under the HCQIA, the defendants have a presumption of immunity for claims resulting from their participation in a peer review process. They maintain that this established the necessary prerequisites for the presumption to apply, and the burden has, therefore, shifted to the plaintiff to demonstrate why the complaint should not be dismissed or, at least, to show the existence of a factual question on that issue. The defendants argue that the plaintiff did not make that showing. Thus, based on the printed materials the defendants submitted, they were entitled to dismissal of the complaint.

We reject the defendants’ position. Their printed materials (with the above-noted possible exception of the clearly insufficient attendance reports) can best be characterized as letters, summaries, opinions, and/or conclusions of the defendants and/or the Hospital’s agents and employees. They clearly do not reflect an out-of-court transaction and are not “essentially undeniable” (see Siegel, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C3211:10 at 22). Thus, they are not “documentary evidence” within the intendment of CPLR 3211(a)(1).

Since the defendants’ printed materials were not “documentary evidence” and they made this motion exclusively under CPLR 3211(a)(1), their submissions were insufficient as a matter of law to grant their motion. In light of that determination, we need not address the parties’ remaining contentions.”

The latest trend out there is to make pre-answer motions based upon EUO and IME no-show defenses.  I was always skeptical about these motions, since I always thought they had to be made as summary judgment motions.  It looks as though the Appellate Division has confirmed my skepticism.

An appeal from a judgment after a trial brings up for review a summary judgment motion that was not previously appealed

Bandler v Liberty Chevrolet, Inc., 2010 NY Slip Op 50475(U)(App. Term 1st Dept. 2010)

Many people, I guess because of the volume of interlocutory appeals that our courts handle, seem to forget that an adverse summary judgment decision may be appealed from the final judgment after trial.  The only caveat is that the motion may not have been appealed and dismissed or perfected and adjudicated.  The Appellate Term, First Department stated the following:

Defendant Liberty Chevrolet, Inc. appeals from a judgment of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered February 3, 2009, after a nonjury trial, in favor of plaintiff and awarding him damages in the principal sum of $23,348.84, which appeal brings up for review (see CPLR 5501[a][1]) an order (same court, Francis M. Alessandro, J.), dated June 3, 2008, which, among other things, denied defendant’s motion for summary judgment dismissing the complaint as against it.

Judgment (Fernando Tapia, J.), entered February 3, 2009, appeal from which brought up for review an order (same court, Francis M. Alessandro, J.), dated June 3, 2008, reversed, with $30 costs, defendant Liberty Chevrolet’s motion for summary judgment granted and complaint dismissed as against it. The Clerk is directed to enter judgment accordingly.

Therefore, defendant’s motion for summary judgment dismissing the complaint in the within action… should have been granted.

In light of this determination, we need not address defendant’s assignments of trial error.

It takes more than a mere allegation that a signature is not holographic in order to invoke the “stamped signature” rule. Also, a form defect can be fixed in reply.

It looks as if an objector to a stamped signature or a computer generated signature needs to present some evidence that the signature is not holographic in order to raise an issue of fact.  Eden Med., P.C. v Eveready Ins. Co., 2010 NY Slip Op 50265(U)(App. Term 2d Dept. 2010).  Equally as important is that the defect may be cured in a reply.

“When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.”

It takes more than a mere allegation that a signature is not holographic in order to invoke the "stamped signature" rule. Also, a form defect can be fixed in reply.

It looks as if an objector to a stamped signature or a computer generated signature needs to present some evidence that the signature is not holographic in order to raise an issue of fact.  Eden Med., P.C. v Eveready Ins. Co., 2010 NY Slip Op 50265(U)(App. Term 2d Dept. 2010).  Equally as important is that the defect may be cured in a reply.

“When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.”

The first department is out of control

Yes, you read that title correctly.  Three bizarre decisions as of late, one which deals tangentially with no fault (Garcia v Leon, 2010 NY Slip Op 01538 [1st Dept 2010]), one which effects the safety of no-fault attorneys going to court in the bronx (People v Correa, 2010 NY Slip Op 01533 [1st Dept. 2010]) and one which effects the negligence case of a no-fault attorney (Tselebis v Ryder Truck Rental, Inc., 2010 NY Slip Op 01442 [1st Dept 2010]) have been decided by the First Department.

Garcia is completely at odds with conflicting Second Department precedent inasmuch as it affirmatively allows for hearsay evidence to be used to defeat a summary judgment motion as set forth herein: “[t]he affidavit of her treating chiropractor, taken in conjunction with her medical experts’ unsworn statements and her MRI tests, raises questions as to whether her shoulder and cervical and lumbar spinal injuries are permanent or significant, and not merely preexisting, degenerative, or caused by a subsequent 2007 accident (see Liriano v Ostrich Cab Corp., 61 AD3d 543 [2009]; Hammett v Diaz-Frias, 49 AD3d)”

Correa ruled that former Chief Judge Judith Kaye’s creation of a Supreme Court, criminal division, in the Bronx, which had original jurisdiction over both misdemeanor and felony cases, was unconstitutional.  Thus, many violent misdemeanants’ convictions are being vacated.  Look both ways before you cross the street because Rikers is being emptied.  I am being facetious by the way.  Finally, Tselebis takes the notion of summary judgment and I think turns it into an evidentiary fact finding device, contrary to the purpose of the summary disposition statute, but consistent with the modern view of the summary judgment motion, i.e., a trial on papers.

Relief specifically under CPLR 3212(g) is improper

B.Y., M.D., P.C. v Government Empl. Ins. Co., 2010 NY Slip Op 20026 (App. Term 2d Dept. 2010)

This case is weird.  Why would a provider move for summary judgment solely to have the court determine that its prima facie case at the time of trial is established?  Usually, a provider (or insurance carrier) moves for summary judgment for complete relief either as to the entire complaint or as to a particular bill or bills, and as a backup remedy, seeks partial summary judgment seeking certain facts established as a matter of law for purposes of trial.  In the practice commentaries, CPLR 3212(g) is thought of as the provision of the accelerated judgment statute, which salvages an otherwise aborted summary judgment motion.

Just on so many fronts, the litigation strategy involved in this case was bizarre.  I have some other thoughts, but I will not express them on here.

3212(f) does not apply

In a tribute to the CPLR blog, and DG’s CPLR R. 3212(f) quest, vendetta or obsession (you pick the appropriate one), here is another case where the Appellate Division held that the absence of discovery could not save a litigant from the sword of a summary judgment motion.  The common denominator of this and ever 3212 (f) case involves whether the non-moving party has sufficient knowledge of the events so as to provide an affidavit explaining his or her position.  If the non-moving party is alleging not to have sufficient information to properly oppose the summary judgment motion, then that non-moving party better explain with great specificity why he or she does not have enough information to oppose the said motion, lest he or she wants to succumb to the same.