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.

Reasonable excuse relaxed

P&H Painting, Inc. v Flintlock Constr. Servs., LLC, 2020 NY Slip Op 00603 (2d Dept. 2020)

” Although the general rule is that in order to vacate a default, a party must demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1]), the sufficiency of an excuse is not as significant where the default is only a short period (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d 791, 792-793; Chakmakian v Maroney, 78 AD3d 1103, 1104).”

For every Plaintiff who rejects answers that are less than 2 months late (Arias v First Presbyt. Church in Jamaica, 97 AD3d 712, 712 (2d Dept 2012)(less than two months considered short), be assured the refrain of “failure to establish a reasonable excuse” shall fall on hollow ground, with costs and disbursements.

Statute of limitations

Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co., 2019 NY Slip Op 52028(U)(App. Term 2d Dept. 2019)

I think the standard of law would be the lesser of thirty-days after receipt or the date a denial is issued.

” Defendant demonstrated that plaintiff’s cause of action accrued 30 days after defendant received plaintiff’s claim and plaintiff did not rebut that showing (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s cause of action was not timely commenced (see CPLR 213 [2]; DJS Med. Supplies, Inc., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U]). “

I also liked this line: ” Plaintiff’s contention that defendant should be collaterally estopped from asserting a [*2]statute of limitations defense lacks merit since, among other things, the Civil Court order upon which plaintiff relies denied a motion by defendant and was not a conclusive final determination”

Too many attorneys play “fast and loose” with concepts of law to trick judges and others. This is a prime example. Everyone knows or should know that CE only applies to a final determination. While we are at it, law of the case does not apply to pre-answer motions or applications for an injunction.

The Neptune rule

Wes Psychological Servs., P.C. v Travelers Ins. Co., 2019 NY Slip Op 52029(U)(App. Term 2d Dept. 2019)

“Contrary to defendant’s sole contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims”

The quaint Notice of Trial

BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51887(U)

I never fully agreed with the assertion that CPLR 3212(a) applies to a “Notice of Trial”. The Note of Issue is a mandatory document in Civil Supreme Court and County Court practice, regardless of party status. In the lower courts, a Notice of Trial only kicks in if both sides are attorney represented. To me, that is significant enough to cast doubt on this line of reasoning. But would anyone besides me attempt to have the Appellate Division analyze this discreet issue?

The other issue is sad. I say “sad” because a Notice of motion is made when served. The lower courts are no e-filing courts and service requires mailing. As any practitioner knows, Civil Court Kings County is known for losing, misplacing or conveniently failing to calendar documents. The inefficiency of a uniform statewide lack of e-filing creates these types of cases. So now we are in 2020 and the lower courts STILL do not have mandatory e-filing? Maybe 2021

“It is uncontroverted that plaintiffs filed their notice of trial on July 14, 2016. Unless a court sets another date, a motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]; Boereau v Scott, 140 AD3d 687 [2016]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). “A [*2]motion on notice is made when a notice of the motion . . . is served” (CPLR 2211). Defendant’s affidavit of service states that its summary judgment motion was served on November 23, 2016, which is over 120 days after plaintiffs had filed their notice of trial. Thus, defendant’s summary judgment motion was untimely

Suboptimal effort?

Morales v Cabral, 2019 NY Slip Op 08516 (1st Dept. 2019)

” Defendant Morales established prima facie that plaintiff did not sustain a serious injury to her cervical spine, lumbar spine or left shoulder in the June 2014 automobile accident through the reports of physicians who examined plaintiff and found no indications of limitations in use of the subject body parts. Although one examiner measured limitations in motion, she opined that these were subjective and unrelated to any objective evidence of injury (see Macdelinne F. v Jimenez, 126 AD3d 549, 551 [1st Dept 2015]). Morales also submitted radiologists’ reports finding either no injury or preexisting conditions and an emergency room medical expert’s finding that plaintiff’s post-accident complaints and treatment were inconsistent with her claims (see De La Rosa v Okwan, 146 AD3d 644 [1st Dept 2017], lv denied 29 NY3d 908 [2017]). Morales further relied on records of plaintiff’s primary care physician, which reflect no contemporaneous complaints by plaintiff and show that plaintiff had a normal range of motion a year after the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]). The physician’s records also show that plaintiff ceased treating at that time (see Pommells v Perez, 4 NY3d 566, 574 [2005]).”