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.