Deposition rulings

Gargano v Langman, 2020 NY Slip Op 04923 (2d Dept. 2020)

“An order denying a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and is not appealable as of right, even where it was made upon a full record and on the plaintiff’s motion to compel responses”

EBT rulings – even if made in the context of a subsequent motion – may only be appealed as of right.

Improvident to examine papers

Elusma v Jackson, 2020 NY Slip Op 04920 (2d Dept. 2020)

“The Supreme Court improvidently exercised its discretion in considering the plaintiffs’ opposition papers, which were submitted after the return date of the motion. The plaintiffs’ vague and unsubstantiated proffered excuse of law office failure did not constitute a reasonable excuse for the late service of their opposition papers (see CPLR 2214[b], [c]; Nakollofski v Kingsway Props., LLC, 157 AD3d 960, 961; Taylor Appraisals v Prokop, 99 AD3d 985, 985). Nevertheless, the court’s consideration of the opposition papers is of no moment since the defendants failed to establish their prima facie entitlement to summary judgment on the issue of liability.”

Discussion on defaults/appearances

Deutsche Bank Natl. Trust Co. v Hall, 2020 NY Slip Op 04292 (2d Dept. 2020)

As relevant here, “[a]n action is commenced by filing a summons and complaint” (CPLR 304[a]). “A plaintiff appears in an action merely by bringing it” (Siegel & Connors, NY Prac § 110 [6th ed Dec. 2019 Update]). “The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR [*2]320[a]). Where, as here, service was effected pursuant to CPLR 308(2), “the [defendant’s] appearance shall be made within thirty days after service is complete” (CPLR 320[a]; see CPLR 3012[c]).

“After having been served with process, the defendant who wants to avoid a default must respond in a proper and timely manner” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). “Subdivision (a) of CPLR 320 specifies three ways by which the defendant can appear in the action: (1) service of an answer; (2) making a motion which has the effect of extending the time to answer; or (3) serving a notice of appearance” (id.).

“The answer, of course, is defendant’s pleading in response to a complaint” (id.see CPLR 3011, 3018). “A defendant who has defaulted in answering admits all traversable allegations in the complaint, including the basic allegation of liability” (Glenwood Mason Supply Co., Inc. v Frantellizzi, 138 AD3d 925, 926; see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Cole-Hatchard v Eggers, 132 AD3d 718, 720).

Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211(a) extends a defendant’s time to answer the complaint (see CPLR 3211[f]). Such a motion must be made “before service of the responsive pleading is required” (CPLR 3211[e]), or it is untimely (see Bennett v Hucke, 64 AD3d 529, 530).

Finally, a notice of appearance is “a simple document that notifies the plaintiff that defendant is appearing in the action” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). A notice of appearance “is the response generally reserved for the situation in which the plaintiff’s process consisted of a summons with notice as authorized by CPLR 305(b)” (id.). “Service of a notice of appearance will avoid a default, at least temporarily, and put the plaintiff to the task of serving a complaint within 20 days” (id.see CPLR 3012[b]). Under those circumstances, “[a]fter the complaint has been served, the defendant, within 20 days, should either serve an answer or make a motion that extends the time to answer” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1; see CPLR 3012[a]).

A defendant’s failure to respond to a summons and complaint within the required time “amounts to what CPLR 3215 . . . calls a failure to appear” (Siegel & Connors, NY Prac § 293; see U.S. Bank N.A. v Gilchrist, 172 AD3d 1425, 1427). “When a defendant has failed to appear . . . the plaintiff may seek a default judgment against him [or her]” (CPLR 3215[a]).

“On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant’s default” (L & Z Masonry Corp. v Mose, 167 AD3d 728, 729; see CPLR 3215[f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785). “To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that [he or she] had a reasonable excuse for [his or her] delay and a potentially meritorious defense” (Liberty County Mut. v Avenue I Med., P.C., 129 AD3d at 785; see Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1195).

In this case, the plaintiff submitted evidence which showed that Hall had been served with the summons and complaint pursuant to CPLR 308(2), and that he failed to appear or answer within the time allowed. In addition, the plaintiff submitted evidence demonstrating that it was entitled to foreclose the subject mortgage due to Hall’s default in repaying the subject loan.

In opposition to the plaintiff’s prima facie showing, Hall first contends that he did not default in appearing. In this regard, Hall asserts that he made an “informal appearance” during the course of this action and was, therefore, not in default. He contends that “even if [an] informal appearance’ is made after the expiration of the time to answer or move specified in CPLR 320(a) . . . judgment by default is precluded.” Hall’s contention is without merit.

It is true that “[i]n addition to the formal appearances listed in CPLR 320(a), the law [*3]continues to recognize the so-called informal’ appearance” (Siegel & Connors, NY Prac § 112). “It comes about when the defendant, although not having taken any of the steps that would officially constitute an appearance under CPLR 320(a), nevertheless participates in the case in some way relating to the merits” (id.).

Although “an informal appearance can prevent a finding that the defendant is in default, thereby precluding entry of a default judgment” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:4), this is only true when the participation constituting the informal appearance occurred within the time limitations imposed for making a formal appearance (see Taylor v Taylor, 64 AD2d 592, 592; see also Jeffers v Stein, 99 AD3d 970, 971; Stewart v Raymond Corp., 84 AD3d 932, 933; Parrotta v Wolgin, 245 AD2d 872, 873). Indeed, even service of a formal “notice of appearance will not protect the defendant from entry of a default judgment if, after service of the complaint, the defendant does not timely make a CPLR 3211 motion or serve an answer” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). Accordingly, an informal appearance, without more, does not somehow absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211 (see CPLR 3215[a]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167). Contrary to Hall’s contention, this Court has never held otherwise; to do so would effectively eliminate any need for compliance with the time limitations imposed by CPLR 320(a), and render those statutory provisions meaningless for all practical purposes (see City of Newburgh v 96 Broadway LLC, 72 AD3d 632, 633; Carlin v Carlin, 52 AD3d 559, 560-561; cf. CPLR 3215[a]).

Out of scope – the inquiry tightens

Roizman v Stromer, 2020 NY Slip Op 04196 (2d Dept. 2020)

” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v Coren, 21 AD3d at 1047; see DiLorenzo v Zaso, 148 AD3d 1111, 1113). “Where no such foundation is laid, the expert’s opinion is of no probative value,'” and is therefore insufficient to meet a party’s burden on a summary judgment motion (DiLorenzo v Zaso, 148 AD3d at 1115, quoting Feuer v Ng, 136 AD3d 704, 707).

The hospital defendants’ expert, Vincent M. D’Amico, asserted that he had “overseen the labor and delivery of thousands of newborns,” and that “[b]y virtue of [his] experience and training, [he was] familiar with the accepted standards of practice in the fields of obstetrics and gynecology that were in effect at the time of the events at issue herein, including the management of labor and delivery and postpartum and neonatal care.” We reject the hospital defendants’ contention that D’Amico’s professed familiarity with “postpartum and neonatal care,” through his extensive experience delivering newborns, was sufficient, without more, to establish his qualifications to render reliable opinion testimony on issues including, inter alia: (1) whether De Jesus, an orthopedic intern, acted in an appropriate and timely manner in diagnosing and treating Roizman’s pubic bone diastasis; (2) whether Naves-Ruiz, a pediatrician, properly responded to the infant’s neonatal oxygen desaturation, properly ruled out sepsis and treated the infant with antibiotics for presumed pneumonia and infection, and performed all appropriate tests; (3) whether the staff of the Lenox Hill Hospital Department of Anesthesiology properly performed Roizman’s epidural; and, (4) whether the staff of Lenox Hill Hospital was negligent and in any way contributed to the plaintiffs’ alleged injuries (see Shectman v Wilson, 68 AD3d 848). Because D’Amico did not establish his qualifications to opine on these issues, his affirmation was insufficient to carry the hospital defendants’ burden to establish a prima facie case for summary judgment in their favor (see Feuer v Ng, 136 AD3d at 707; Lavi v NYU Hospitals Center, 133 AD3d 830, 831; Behar v Coren, 21 AD3d at 1046-1047).”

My friend who runs the largest Plaintiff no-fault firm will remind me that the Courts held Country-Wide’s nurse reviewers could render an opinion upon an appropriate foundation. But as I have observed over the last five years, is Gary T’s case from 15 years out of the First Department (563 Grand v. C-Wide) good law anymore? Or, is it good law in the Second Department? Of relevance, how can the recently deceased Tamboro or Dr. Drora Hirsch, both pediatricians, opine about anything in NY PIP? These are really good questions.

A declaration later became an affidavit

Bacon & Seiler Constructors, Inc. v Solvay Iron Works, Inc., 2020 NY Slip Op 04020 (4th Dept. 2020)

“Contrary to plaintiff’s further contention, the court did not abuse its discretion in allowing defendants to correct an error in Sheila Maestri’s declaration. While the declaration initially submitted by defendants in support of the motion was defective because the declaration was not in affidavit form (see CPLR 3212 [b]), defendants corrected that technical defect by submitting the identical evidence in proper form in their reply papers. Under these circumstances, the [*2]original defect in form does not require denial of defendants’ motion with respect to Sheila Maestri (see CPLR 2001; Qi Sheng Lu v World Wide Travel of Greater N.Y., Ltd., 111 AD3d 690, 690 [2d Dept 2013]; Matos v Schwartz, 104 AD3d 650, 653 [2d Dept 2013]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700 [1st Dept 1983]).”

EUO no show

Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 2020 NY Slip Op 03876 (1st Dept. 2020)

“The claimants’ failure to subscribe and return the transcripts of their examinations under oath (EUOs) violated a condition precedent to coverage and warranted denial of the claims (see Hereford Ins. Co. v Forest Hills Med., P.C., 172 AD3d 567 [1st Dept 2019]). This is so notwithstanding plaintiff’s failure to present proof of proper delivery of the denials (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

Plaintiff is entitled to summary judgment on the additional ground that defendants failed to appear at two scheduled EUOs (see Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600 [1st Dept 2018]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468 [1st Dept 2016], appeal withdrawn 29 NY3d 995 [2017]). Considering the brevity of the delay and JS’s ultimate failure to appear, we find that plaintiff’s “one-day tardiness in issuing its follow-up request for the EUO scheduled for” JS was “a technical defect excusable under 11 NYCRR 65-3.5(p)” (Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]).”

65-3.5(p) – was this what DFS mean?

Injunction scored on the biggest No-Fault Player out there

Geico v. Moshe, 20-cv-1098 (EDNY 2020)

This probably has to be every medical practice’s worst nightmare. Provide services, send bills to the largest insurance payor, end up with a Rico and find yourself hit with a preliminary injunction. I think what makes it that much worse is that all these cases would settle on average for “85/50” or some variant thereof if the you take 2 I take 1 game is played.

The opinion is short, sweet and to the point

“(1) Yan Moshe (Moshe) has been sued seven times by insurers alleging he previously engaged in similar fraudulent billing activities.

(2) Moshe conspired with individuals, including defendants Leonid Shapiro and Nizar Kifaieh, to run his facilities on paper, while Moshe controlled the facilities without a medical degree. The complaint supports these allegations with specific examples and Kifaieh’s testimony from a prior litigation that he did not pay for ownership of Premier and Moshe provided him with equipment.

(3) Moshe’s facilities, particularly those directed by Shapiro, were repeatedly cited by the New Jersey Department of Health for regulatory violations. In fact, one facility was temporarily closed due to unsanitary conditions.

(4) Defendants unlawfully referred patients to Moshe’s facilities for unnecessary services often without disclosing Moshe’s interest. Defendants subsequently billed GEICO for these unnecessary services.

(5) Defendants prescribed identical treatment for people involved in a single accident despite their varying ages and health conditions. The complaint provides 10 detailed examples of when this occurred.

(6) Regina and Citimedical billed GEICO for services provided in New Jersey even though Citimedical could not lawfully provide services outside New York. The complaint provides 15 detailed examples of when this occurred.

(7) Moshe and Hudson Regional unlawfully requested reimbursement for facility fees that exceeded the limits set by the NJ fee schedule.

(8) Defendants submitted bills purporting that they were in compliance with all laws and regulations while engaging in the above activities.”

What this shows is the power of the Federal Rico statute. There is nothing within the New York State arsenal of common law remedies that comes anywhere close. As a reminder, NY does not have a Civil Rico statute (American Transit’s “DJ’s” appear to believe otherwise).

A very interesting 5102(d) case

Guzman v Cruz, 2020 NY Slip Op 03980 (1st Dept. 2020)

“In opposition, plaintiff raised issues of fact as to his cervical spine claim through the affirmed report of his radiologist, who found multiple bulging discs, and his treating physician, who provided evidence of limited range of motion about a week after the accident and four years later and opined that the cervical spine conditions were causally related to the accident. Since plaintiff’s own medical records did not reveal any degenerative conditions in his spine, he was not required to submit evidence from a medical expert detailing why degenerative conditions were not the cause of the reported symptoms”


“Although plaintiff did not initially complain to his doctor about his shoulder, he testified that his shoulder was bruised after the accident and then sought treatment within a month when pain developed. Such delay does not require a finding of lack of a causal connection, but rather presents an issue of fact”

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?