Lower Courts are still paper courts?

I read a message that District Courts and Civil Courts (to the extent they are “open”) are accepting new paper filed cases. Now, in the three months the courts have been closed, why hasn’t the e-file system been expanded to the lower courts? It is really aggravating to see just how far behind the 8 ball we are compared to most other states and the federal courts.

I just do not find this acceptable. We are New York tough, but “momma let’s jump in the punch buggie” efficient? OCA knows what it has to do.

Opening Courts with an e-filing system in place? Nope.

The daily news stated something interesting yesterday and I will quote it:

“For the courts, the silver lining to the pandemic may be that it is pushing officials to update an antiquated system that still relies mainly on paper filings and in-person courthouse appearances.

“People can be set in their ways and sort of don’t like change,” said Marks. “If there’s one way to characterize the last few months, it would be change. Necessity is the mother of invention.”

I for one have been a fierce critic of the way the NY court system runs. For 17 years, what I have seen is a system that in part exists to keep people employed. I suppose everyone needs employment and if PCs, CC’s, SC’s and any other type of appearance can achieve that, then I do not want to be the one that prevents new attorneys, per diems and court staff from not earning a living. I for one would rather see the “PC” and “CC” replaced with a case management conference, followed with a conference order if a case does not have sufficient movement in 12 months after an RJI is filed. I tend to think the parties can probably chart their own course based on the premise that we have clients who want “justice”.

Perhaps a 5 minute discovery calendar at 8:30 AM by zoom could handle most rudimentary discovery disputes? Winner uploads the order. Works well in Fla. Motions by appointment in non motion submission jurisdictions? Limit these to 15-30 minutes depending on the complexity.

But what I think is absolutely necessary before we take the re-opening experiment any further is to implement and mandate e-filing. To tell me that we are going to allow 100,000 mailed in covid-filled paper summonses with checks in a litany of actions does not work. It is dangerous and backwards. I harken to say that in the four states I pracitcer in, only NY still uses paper for filings at all. In reality, the paper system stopped working 15 years ago when e-filing debuted federally. OCA did not read the memo and perhaps our stubbornness and lack of imagination allowed this to happen

I would have hoped in the 2-3 months we have been closed, OCA would have been replacing the paper filing of the lower courts with e-filing. At the very least, I would like a press conference that says they are doing this. Lack of a message leads me to believe that that is not happening, and now we have what I fear is a complete mess. How about keep the courts closed until July, get e-filing right and we can probably have a much smoother and healthier court opening? Why rush when we cannot have in person motion conferences and jury trials?

Comparative Negligence not found

Silverio v Ford Motor Co., 2020 NY Slip Op 02892 (1st Dept. 2020)

“The Court also stated that plaintiff did not need to prove that he was not comparatively negligent in order to obtain partial summary judgment on the issue of defendants’ liability, based on Rodriguez v City of New York (31 NY3d 312 [2018]). Plaintiff’s interpretation of this Court’s decision in Silverio (168 AD3d 608) would require finding that he was not comparatively negligent, despite the fact that he never moved for summary judgment on defendant’s affirmative defense of comparative negligence or introduced evidence to support his contention that he did not contribute to the accident (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]; see also Wray v Galella, 172 AD3d 1446, 1448 [2d Dept 2019]).

The issue of comparative fault should have been left to a jury in determining damage”

Yes, please remember that when moving for summary judgment, an application to dismiss the affirmative defense of comparative negligence should be made to completely resolve the issue.

Election to arbitrate

Ellen Sue Ginsberg, D.O., P.C. v New York City Tr. Auth., 2020 NY Slip Op 50431(U)(App. Term 2d Dept. 2020)

Once you make an election to arbitrate with respect to a Assignee/Assignor, you have given up the ability to change or “flit” forums. This election is not carrier specific if more than one carrier is responsible for first party benefits. It makes sense.

“In this action by a provider to recover assigned first-party no-fault benefits, defendant New York City Transit Authority (NYCTA) moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had previously elected to arbitrate its claims arising out of the underlying accident. Insofar as is relevant to this appeal, the District Court denied the motion on the ground that the previously arbitrated claims were against GEICO, not NYCTA.

Contrary to the determination of the District Court, since plaintiff’s claims against NYCTA are for treatment of the same assignor, for injuries arising from the same accident, plaintiff is bound [*2]by its initial election to arbitrate these claims, even though asserted against a different entity (see Roggio v Nationwide Mut. Ins. Co.,66 NY2d 260 [1985]; American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 763 [2013]; Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005]; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Cockett v Nationwide Mut. Ins. Co., 143 Misc 2d 249 [App Term, 2d Dept, 2d & 11thJud Dists 1988])”

Covid and the courts

I received an email from someone about my sporadic posts on here and asking if I am alright. To answer, yes, I am alright. I am hunkered here in New York. I have taken to another medium to express my frustrations about what is happening. I never leave home without my N-95 masks. Shout out to my office manager for her foresight on stocking up when this virus initially hit China. She knew what was going to happen. Sadly, I sensed it but only because of what I was seeing in my travelling late last year and earlier this year. Now, you cannot even get bleach or food half the time down here. By the way, please wear the masks if you are around people. It is inconvenient but it is the right thing to do. You do not have the right to get me or anyone else sick.

My favorite topic on here as of late is the Court system. I still cannot fathom how our 1970s model can handle the current reality. Perhaps some of us should sit on a committee and give ideas on how the rules of Court and even the CPLR need to be tweaked to handle the current reality? We can really take lessons from other state systems on how to modernize our systems. The first error I see is using Skype. That is outdated technology: early 2000s.

Send a response – let us know you are alive and well and staying sane.

Working remotely

I start by stating the obvious: None us in this profession are generally “essential workers”. We at best redistribute wealth. What does that mean to you? It means getting behind the laptop, watching Cuomo at 11:30 and DJT at 5:15 or 5:45 PM. For some, it is doing arbitration submissions, which should continue due to the paperless and lack of personal appearances necessary to keep that system going.

For others, it is finishing discovery demands and responding to motions, although it is now illegal to file to any papers. And yet for others, it is putting deals together and drafting contracts. But, the work is all done in seeming isolation.

No-Fault involves small bills and tons of redundancy. Sometimes, there is some very interesting or novel issues within the minutia. I for one am always searching for it. But, with a closed judicial system and plenty of people laid off, this has become a tough road to navigate.

I for one look forward to virtual hearings, virtual court appearances and Skype trials. Robert Frost told us: ” Two roads diverged in a wood, and I—
I took the one less traveled by, And that has made all the difference. “

Why are beaches still open?

The epidemiologists are telling us to socially distance. For the introverts among the readers, that is perhaps too easy. For others, it is clearly a challenge. At this moment, the statistics say “34,407” total cases. They also say “414” deaths. That skews at 1.5%. The experts tell us that 20-30 percent of survivors will suffer significant permanent lung damage.

Common notion is that this disease spreads easier than the common flu and the standard cold. This asks the next question – why would people, otherwise presumed sane and competent, expose themselves to such grave harm?

It also calls into question why an epidemic is being treated on a state level. When was the last war that was left to the individual sates to fight? That was the Civil War. It did not go too well.

How do we only have regional lock downs? How is that medically necessary? Without a collective game plan, we cannot move forward.

Handling a pandemic

My friends in Miami-Dade apparently see no problem with the pendamic. While Courts in Palm Beach, Broward and Dade are closed, the streets from what I hear are lined with people and the beaches are occupied. It is as if nothing is wrong.

One of the things I like about our State is that we take things seriously. When there is a crime spree, a natural catastrophe or a pandemic, New Yorkers by and far handle these situations comparatively better than their out of state compatriots. One of the things we take for granted here is our education system.

I for one am not a fan of the tax burden in this state and most of you would agree. Perhaps is reeks of waste and inefficiency? I will leave that to better minds. But even at its worst, the children and teenagers who finish school within this state have a basic understanding of morality and common sense. When you live in a state (i) without a state income tax; (ii) pay teachers $40,000 a year; and (iii) have “countywide” school districts, the result is paragraph 1 supra.

While my first post in this series chided OCA for what I think are institutional inefficiencies in our court system, I truly believe that our populace is better suited to handle this disaster than many others.

I am told that as of tomorrow (3-20-20), 75% of each office must work from home. We will heed this advice and eventually the storm will pass. I finally must commend Dr. Fauci, a Geico no-fault attorney’s lost lost cousin, for the calmness he has brought to what are uncharted waters.

A true test of what kind of employer you are

I am transitioning the blog slightly for the next few months into what I think are life observations. There is more to life than motions, appeals, trials and orders to show cause. Yes, I just said that.

There is no “tag” to these and once we are back to 10 posts a month on cases, these posts will disappear through attrition and my life lesson posts will also dissolve. I read something today about employees taking notice of how they are treated during this crisis. This has caused me prepare the following missive for you to read.

My thoughts once I saw the handwriting on the wall was nuanced. The first thing I did was tell everyone to work from home if they wanted. The second thing I did was tell people if you are even the slightest bit sick you MUST work from home. After that, my commitment to the extent possible is to try to conserve resources so we do not add to the unemployment pool. Nobody that works here asked for this and I wish not to add to the recession.

The final thing I did was cancel all my business in the sunshine state. If you have seen the photos of people hanging out at beaches, you know Florida is probably a really good place not to be absent a death wish or pulmonary malfunction. I cannot stress this enough – everyone’s safety, health and well being must come first. Work, whether it be a no-fault motion, a personal injury deposition, an FLSA settlement, a medical malpractice motion or whatever is you are doing can and must wait. Yes, I know a delay on the 440 motion will hinder your client’s ability to leave an upstate home, but I think those homes are safer right now than here.

A society is often judged on how it treats its most vulnerable members. And I tend to think, right now, we are all vulnerable. A little decency is not too much to expect. Stay safe.

The Cornona Virus

Because of what is going on in the world and our collective practices, I want to halt, for a second, the sporadic rolling debate I have here – often with myself – regarding fee schedules, conditions precedent to coverage, policy deductibles, NF-10s, 5102(d) – among other things. The more pressing issue we probably have is where do we go from here.

I am writing this essay more as to give my thought process of what happens occupationally when life resumes. First, we need to conquer this monster that I think has enveloped this country and the world. We can leave Washington’s response and the Trump administration’s initial indifference to the annals of history and for my Facebook feed – although I am done there even trying to cull fact from fiction. As our governor said today, and he is right, that is behind us.

We will get through the panicking, the short term food shortages, the massive drop in the stock market, the impending quarantine, the collective suffering and the drop in committed torts, which “employs” everyone (to some extent) who reads this blog.

Whether it is May or October, this will be over. Rip Van Winkle eventually woke up, right? What I want to write about – and it is more tangential at this moment – is what happens to a sizable piece of our practice. And this does interest me on a few levels. To me, what are we are going to learn is that crowded special term parts, stuffed CCP parts, standing room only IAS parts and cluttered TAP parts are vestiges of a bygone era.

The out of state practitioners or those who have a a multi state practice (outside the northeast) know very well that court cases up until trial are often handled telepathically, through skype or other video-conferencing mediums.

To give you an example, absent a “special set hearing”, Florida courts allow and encourage motions to be handled through telephone appearances. They call that the 8:30 5 minute calendar. California operates similarly.

This crisis has commendably forced Court administrators to require PC’s, CC’s and motions to be handled through telephonic appearance or Skype. In fact, argument on App. Div. First Department matters are now being done through Skype.

I received an elaw update that Civil Queens is looking to handle their motion calendar similarly. In reality, it should not have taken a terrible crisis to force this to occur. New York desperately needs to move out of the 20th century in terms of its appearances and lack of e-filing (especially in the non-superior Courts)

For those who complain that the motion calendars are too long, the simple answer is probably to shorten the calendars out to no more than 20 final motions a day, carry the calendars out 2 or 3 years if necessary and the judges (who will not have too many final motions per day) should either grant, deny, grant in part or deny in part the motion at the hearing and make the winning party e-file an order. (Yes, e-filing is necessary to make sure all papers are properly collated – this cannot work with the problematic 1970s system that represents the Civil Courts paper filing regime)

Some novel cases obviously should be submitted. And of course, courts that do not have large volumes can follow the Nassau, Suffolk, Westchester approach and take everything on submission.

The final trials should be pushed out long enough so all motion practice that is possible has long since passed and a final trial date really does mean that. The court should encourage video depositions also to allow a greater ease of use on medical type cases. Orders of reference should be issued for simple framed issue no fault trials and, while you may not like to hear this, the Civil Court index number fee should probably triple to afford the courts the resources and the ability to implement these solutions.

The point is – and this is just an essay of some thoughts – is that this crisis is forcing us to do better.

I understand there will be those who lose out. Per diems will be less needed. Associates who only exist to adjourn cases and to show their faces in Court and AAA hearings may not be as necessary. But a more fluid system that can work more remotely, more pointedly and which – let’s be honest – is the wave of how law is really practiced and how society works, will help our broken court system. Because, let’s also admit this fact – the Civil Court system is broken. You cannot shoe horn a 1970s methodology into a 2020 practice.

And finally, stay safe. Travel only as needed, and look out for your neighbor – that could be you one day.