The marathon runner

Heywood v New York City Tr. Auth, 2018 NY Slip Op 06318 (1st Dept. 2018)

“Plaintiff’s own deposition testimony showed that she had resumed running within months after the accident and completed a marathon years later, indicating an absence of any significant or permanent injury to her ankles or knees ”

(1) the running after the accident knocked out the “signification limitation”; and

(2) the marathon years later knocked out the “permanent consequential” injury

The Court later said that the full range of motion knocked out the case.  This case goes to show how ADL’s (even if there was diminished ROM) could cause a staturoty threshold case to sail away into the sunset.

Texting your friend who kills someone: Are you liable?

Vega v Crane, 2018 NY Slip Op 03262 (4th Dept, 2018)

(1) “There is, however, a significant distinction between the distracting passenger and the remote sender of text messages. Unlike the passenger, the remote sender is not present in the vehicle and thus “lacks the first-hand knowledge of the circumstances attendant to the driver’s operation of the vehicle that a passenger possesses and has even less ability to control the actions of the driver” (Kubert v Best, 432 NJ Super 495, 521, 75 A3d 1214, 1230 [Super Ct, App Div 2013] [Espinosa, J., concurring]). The driver cannot prevent the passenger, who is actually present inside the vehicle, from creating a distraction by suddenly and unnecessarily calling out at an imprudent moment. The same driver, on the other hand, has complete control over whether to allow the conduct of the remote sender to create a distraction. Although the remote sender has the ability to refrain from sending the driver a text message, he or she is powerless to compel the driver to read such a text message at an imprudent moment, and has no duty to prevent the driver from doing so.”

(2) “If a person were to be held liable for communicating a text message to another person whom he or she knows or reasonably should know is operating a vehicle, such a holding could logically be expanded to encompass all manner of heretofore innocuous activities. A billboard, a sign outside a church, or a child’s lemonade stand could all become a potential source of liability in a negligence action. Each of the foregoing examples is a communication directed specifically at passing motorists and intended to divert their attention from the highway.”

(3) “We conclude that defendant owed no duty to plaintiff to refrain from the conduct alleged, and therefore that she cannot be held liable for such conduct. Accordingly, we conclude that the order should be affirmed.”

I think this is a really interesting issue.  What if you give a gun to someone who you know will shoot it?  Are you liable for negligent entrustment?  If you serve alcohol to a minor and they get into an accident, you’re liable.  Yes, there is no statute or common law principle here, and the negligent entrustment analogy is a bit outside the bounds of this discussion.  But I do not see this debate ending here in 4th Department precedent.

What is this about?

Matter of Allstate Ins. Co. v Travelers Cos., Inc., 2018 NY Slip Op 02163 (1st Dept. 2018)

“Here, the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage was not arbitrary and capricious. Rather, it was rationally based on the relevant statutes and regulations (see Insurance Law § 5102[a], [b]; 11 NYCRR 65-1.1, 65-1.2).”


I wish everyone who reads this blog a Happy, Healthy and prosperous New Year.  I promise some interesting appeals from me will find their way at the First and Second Departments in 2018.  We have avoided the Third and Fourth Departments lol.

There is a doozy that will be decided at the NJ Appellate Division later in 2018 involving constitutional issues which I supposed I invited.   We look forward to a good year and hopefully good health and cheer to everybody.

Fee schedule defense: Court separates 97811, 97813, 97814 from remainder of case

Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co., 2017 NY Slip Op 51891(U)(App. Term 2d Dept. 2017)

(1) ” Defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.”

(2) “Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff [*2]Apr. 1, 2013]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]).”


Jacobus v Trump, 2017 NY Slip Op 08625 (1st Dept. 2017)

“The challenged statements made orally and by Twitter by defendants were nonactionable (see Silsdorf v Levine , 59 NY2d 8 [1983], cert denied 464 US 831 [1983]).

Whether alleged statements are susceptible of a defamatory meaning imputed to them is, in the first instance, a question of law for the courts to decide (see Aronson v Wiersma , 65 NY2d 592, 593 [1985]; Silsdorf , 52 NY2d at 13). The alleged defamatory statements are too vague, subjective, and lacking in precise meaning (i.e., unable to be proven true or false) to be actionable. The immediate context in which the statements were made would signal to the reasonable reader or listener that they were opinion and not fact (see generally Gross v New York Times Co. , 82 NY2d 146 [1993]).”

Those liberal First Department Justices gave Trump a pass.  Who could’ve though (sarcasm intended)

Did his veteran status influence this decision?

People v Rogers, 2017 NY Slip Op 07889 (3d Dept, 2017)

(1) Defendant, an army veteran, admitted to unlawfully entering a residence and taking a bottle of wine, claiming that he heard a voice telling him to do so. Following his arrest, he waived indictment and agreed to be prosecuted by a superior court information charging him with attempted burglary in the third degree. He pleaded guilty to this crime and waived his right to appeal, both orally and in writing. Under the terms of the plea agreement, he was to be sentenced to 1⅓ to 4 years in prison; however, if he successfully completed the alternative treatment

(2)  Significantly, defendant acknowledged during the plea colloquy that he had mental health problems, including posttraumatic stress disorder that caused him to experience hallucinations, that he heard a voice telling him to commit the crime at issue and that he was taking multiple medications, including Zoloft, to address his mental health problems. Although County Court observed that defendant appeared coherent and responsive during the plea proceedings, it did not ascertain if he was aware that a possible defense, emanating from his mental state at the time that he committed the crime, was available and that he was waiving it by pleading guilty. Inasmuch as an essential element of attempted burglary in the third degree is the intent to commit a crime inside a building that one has unlawfully entered (see Penal Law § 140.20), and defendant’s mental state potentially negated such intent, County Court should have conducted a further inquiry before accepting defendant’s guilty plea (see People v Mox, 20 NY3d 936, 938-939 [2012]; People v Green, 141 AD3d at 838-839; People v Wolcott, 27 AD3d 774, 775-776 [2006]). Accordingly, under the circumstances presented, we find that the guilty plea was not knowing, voluntary and intelligent and must be vacated. In view of our disposition, we need not address defendant’s remaining claim.

** I post this because judges are humans and sometimes they make blatant value judgments.  Take away the veteran status, and the felon conviction is affirmed.  I am not saying this is wrong, but it does not get more blatant than this.  I would have voted with the majority, if that means anything.

Repriced CPT Code 64550

Compas Med., P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51228(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s further argument, defendant’s proof was sufficient to demonstrate, prima facie, that defendant had fully paid for the services charged under code 64550 of the workers’ compensation fee schedule”

I am sure the carrier repriced 64550 to 97014.  The Court held, with an affidavit, the repricing was proper.

Arrest warrant not issued

Cadlerock Joint Venture, L.P. v Forde, 2017 NY Slip Op 05416 (2d Dept. 2017)

“Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 2308(a), in effect, for the issuance of a warrant of arrest to bring the defendant before the Supreme Court, upon his alleged failure to comply with a postjudgment judicial subpoena duces tecum dated October 23, 2013, and an order of contempt of that court dated March 6, 2014 (see Rackowicz v Feldman, 22 AD3d 553, 553-554). CPLR 2308(a) sets forth the penalties applicable to the disobedience of a judicial subpoena. The available penalties include the issuance of “a warrant directing a sheriff to bring the witness into court” (CPLR 2308[a]). Here, the court declined to issue such a warrant, finding that the plaintiff could avail itself of “all other remedies pursuant to the CPLR to collect” a judgment in favor of the plaintiff and against the defendant. We find no basis in the record to disturb that determination.”

I am clearly no fan of debtors prisons and “locking up” people who simply cannot afford to pay their debts.  Yet, when someone wilfully ignores legal process, is held in contempt of court and fails to purge or attempt to purge, why is arrest not unreasonable?  All the Court did here is insulate a certain lack of respect that the debtors-bar have to the court system.

Plaintiff is now supposed to continuously issue information subpoenas and subpoena duce tecums, while Defendant knows there is minimal penalty for not responding.  It does not seem right.

Failure to file the affidavit of service not jurisdictional

Buist v Bromley Co., LLC, 2017 NY Slip Op 04417 (2d Dept. 2017)

” The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion'” (Matter of Meighan v Ponte, 144 AD3d 917, 918, quoting Khan v Hernandez, 122 AD3d 802, 803; see CPLR 2001, 2004). Here, there is no reason to believe that the defendants did not properly and timely serve Minard in compliance with the so-ordered stipulation dated December 8, 2014. Moreover, the defendants promptly requested permission to correct the irregularity in filing the affidavit of service after learning that it was filed in the wrong office, and there was no allegation or indication of prejudice to the plaintiff as a result of the requested correction. Under these circumstances, the Supreme Court improvidently exercised its discretion in denying the defendants’ application for an extension of time to file the affidavit of service in the Clerk’s office, and thereupon denying their motion for summary judgment on the ground that they failed to file proof of service in that office

The reasons some Brooklyn Judges will come up with to avoid deciding a motion