A day at the beach.

Starkman v City of Long Beach, 2017 NY Slip Op 02077 (2d Dept. 2017)

This one is scary.  You are sitting at a beach and you get run over and end up with two cervical fusion surgeries.  Here are the facts:


“On May 26, 2010, the defendant Paul DeMarco, a City of Long Beach Police Officer, was patrolling the beach in a patrol car when he struck and ran over the plaintiff, who was lying on the beach in a lounge chair. The plaintiff was taken to the hospital where imaging tests revealed that he had sustained three broken ribs and fractures of the transverse processes of the C6, C7, and T1 vertebrae. The imaging also revealed what was described as “degenerative changes” of the spine including herniations of the cervical discs at the C5-C6 and C6-C7 levels along with osteophysis, [*2]disc space narrowing, and narrowing of the spinal canal.

The plaintiff subsequently was examined by an orthopedic surgeon and 17 months after the accident he underwent a multi-level cervical fusion surgery to treat the disc herniations that were believed to be causing continued neurological pain. When the bone failed to properly fuse, a second surgery was performed 15 months later which successfully fused the vertebrae. The plaintiff, however, continued to experience neck and back pain.”


“The jury returned a verdict finding that the plaintiff had sustained damages consisting of $100,000 for past medical expenses, $200,000 for past loss of earnings, $500,000 for past pain and suffering, $200,000 for future medical expenses over 18 years, $450,000 for future loss of earnings over 14 years, and $750,000 for future pain and suffering over 35 years.”


“a written stipulation consenting to increase the verdict as to damages for past pain and suffering from the principal sum of $500,000 to the principal sum of $750,000, and for future pain and suffering from the principal sum of $750,000 to the principal sum of $1,500,000, and to the entry of an appropriate amended judgment accordingly; in the event that the defendants so stipulate, then the judgment, as so increased and amended, is affirmed, without costs or disbursements.”


I will never look at a day out on the beach again.


Employee of Defendant is allowed to remain in court room

Perry v Kone, Inc., 2017 NY Slip Op 01395

“However, a new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639; American Print. Converters v JES Label & Tape, 103 AD2d 787; Carlisle v County of Nassau, 64 AD2d 15, 18-19). Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense (see People v Santana, 80 NY2d 92, 99; Carlisle v County of Nassau, 64 AD2d at 20). Accordingly, a new trial should have been granted in the interest of justice (see CPLR [*3]4404[a]).”

Must the claim rep be relegated to the benches in Civil Kings?  I have seen this line of cases previously and it makes sense.

The wrong way to evict a tenant

People v Grohoske, 2017 NY Slip Op 00617 (1st Dept. 2017)

I get it: the rent is too damn high.  That does not mean you can engage in self-help.  The opinion started with the line: “It also provides a lesson to those who believe that the summary proceedings available under the Real Property Actions and Proceedings Law to lawfully evict tenants are not summary enough.”

“[C]alvin replied quickly, advising Lawson that his failure to pay the rent resulted in a termination of the agreement. He advised Lawson to be out of the apartment by the end of October and said that he was going to submit a wage garnishment for Lawson’s unpaid rent. Calvin said he arranged with another person to rent the room as of the end of October.

According to Calvin, to clean and prepare the apartment for the new tenant’s occupancy at the end of October, Calvin and his mother (both then in Texas) decided to come to New York. On October 29, 2013, the two of them flew from Texas to New York. Upon arrival, they purchased a new door lock at a Home Depot for the room that he had rented to Lawson, with the hope of changing the lock while Lawson was out of the apartment.

At about 10:30 p.m. that day, Calvin and his mother, defendant Diann Grohoske (Diann), arrived at the apartment. Lawson testified that he was in bed, naked, with the lights off, watching Downton Abbey on his computer, when Calvin charged into the room, straddled Lawson on the bed and began punching him in the face; there was also testimony that Calvin “kneed” Lawson in the face. Lawson testified that Diann walked into the room carrying a gun; Diann denied having a gun at any time. According to Lawson, Diann instructed Lawson to get dressed and then to get down on the floor on his knees where Calvin applied duct tape to his wrists so that they would be bound behind his back like handcuffs. Duct tape was also placed around his chest so that his arms were held to his side. Calvin secured Lawson’s cat Pookie in a cardboard box, securing it with duct tape. Lawson said that they also took his cell phone and wallet, which assertion Calvin and Diann denied. Lawson protested to these events by stating to Calvin and Diann that he had “squatter’s rights” to the room, and that Calvin had to proceed to landlord-tenant court to obtain an order of eviction before throwing him out. To this, Lawson asserts that Calvin responded, “That’s not how we do it in Texas.”

Calvin and Diann led Lawson downstairs. He was placed in the front passenger seat of Calvin’s rental car, with Diann sitting behind him and Calvin in the driver’s seat. Calvin put the duct-taped box containing the cat into the trunk of the car. According to Calvin, he had offered to drop Lawson at a shelter, but Lawson refused because a shelter would not be able to accommodate both him and Pookie the cat. According to Lawson, they proceeded onto the New Jersey Turnpike with Calvin driving and Diann sitting behind him with a gun to the back of his head. At about 12:50 a.m. the car left the New Jersey Turnpike and traveled across the Betsy Ross Bridge into Philadelphia. They eventually arrived at a deserted area in Philadelphia, where Calvin pulled over, and together Calvin and Diann forced Lawson out of the car and threw the cat box out on the street from the trunk. According to Lawson, he was shoved against a fence, and Diann cut some of the duct tape off him and told him, “[I]f you ever come back you are dead.” Calvin and his mother then drove away.

Lawson was able to free himself of the remaining duct tape and began to open the cat box. Apparently Pookie the cat was frightened by the experience of being boxed in an automobile trunk, because as Lawson tried to open the box, the cat jumped out and ran off, never to be seen again.

Ultimately, Lawson located a police station, and reported the unusual events. It was then about 1:20 a.m. The right side of Lawson’s face was red and the right front of his glasses were broken and the right lens of his glasses had popped out. A residue of duct tape was found in the area where he had been dropped off.”

Both landlord and mom were convicted of kidnapping and robbery and were sentenced to very significant prison sentences.

The lesson – Do not rent property in New York City and expect to be able to evict a non-paying tenant for a lengthy period of time.

A gem regarding attorneys fees

CIP Physical Therapy, P.C., et. al. v. Lawsky, et. al., Index #: 3118/15 (Sup. Ct. Kings Co. 2017)

I cannot say how I came across this decision.  I am slightly late in publishing this, but I have been slightly tardy in the updates.  This is another lawsuit brought against the Department of Financial Services regarding the attorney fee regulation.  The jeremiad presented here involves the 20% number, the lack of minimum fee and the arbitrary maximum fee.

My opinion is that an arbitration only system may lend itself to a true hourly attorney fee.  Similarly,  cases where special circumstances exist (current law) can also lend itself to a true hourly attorney fee.  The problem as I see it as that a party that places their dispute in the counties of Richmond, Bronx, or Manhattan – given the administrative backlog and lest I say hatred toward no-fault cases – would easily achieve a $10,000 attorney fee per case given a true hourly attorney fee.  The regulations are looking to avoid this reality.

One only has to look at Florida no-fault practice (either pre or post multiplier) to see the destruction that a true hourly attorney fee in a litigious no-fault state can bring.  Compare that to New Jersey where in the arbitral atmosphere, the hourly attorney fee amounts are limited to about $1500 on the upper end and $500 on the lower end.

My last observation and I have said this before is that challenging DFS’ regulations in the post LMK era is an exercise in futility.  It is suicidal.  Sometimes cases need to be brought to show the powers at be how ridiculous certain regulations and rules of law are.  I did this with the fee schedule preclusion rule and the 3 day late rocket docket preclusion matter.  A point was proven and regulatory actions have been or will be taken.  However, to turn around and to (again) challenge DFS’ regulations as unconstitutional and to expect different result than the last few times, well, is not going to win the day.

Standard for a stay

Tam Med. Supply Corp., As Assignee of Chery Jean v Omni Indem. Co.,  2016 NY Slip Op 94592(U)(App. Term 2d Dept. 2016)

“ORDERED that the motion is denied, as the moving papers do not include the papers submitted on the motion giving rise to the order appealed from, making it impossible for this court to determine if appellant is likely to prevail on this appeal.”

The test for a stay: “likely to prevail on this appeal”.  How many times have you seen those words uttered?

Mallela limitation case not going to the Court of Appeals

Matter of Allstate Prop. & Cas. Ins. Co. v New Way Massage Therapy P.C., as Assignee of Nancy Febus,  2016 NY Slip Op 94294 (2016)

This was not a wise case on which to file an Article 75 , a more perverse case to take to the Appellate Division and, in a fitting farewell, leave has been denied.  My thoughts about this case were noted when the Appellate Division order was published.  I am just shocked the Petitioner was not Ameriprise.

What’s the over under on this appeal scheduled for the December term

Metropolitan Group Prop. & Cas. Ins. Co. v Gonzalez – Active Care Med. Supply Corp.  (Sup, Ct. 151619/12)

I checked the underlying cases because I was curious.  It looks like Metroplitan’s SIU discovery chicanery, sought EUOS and nobody appeared.

A DJ action was interposed, the usual suspects answered and a motion for summary judgment was interposed that was granted.  Missing from the moving papers was evidence as to when the billing was received and whether the EUO’s were scheduled within 30-days of  receipt of the billing.  Rybak appealed and I am sure the order will be reversed.  We saw that play out in National v. Tam and Liberty v. KO Medical.  Why is Plaintiff creating more bad law?  I am confused.

I would call client, let them know the law changed, consent to vacate the order of Supreme Court, and move again.  What’s the definition of insanity?  Doing the same thing over and over again and expecting different results.

Former Judge Michael Ciaffa has been located

People v. Pierre, 142 AD3d 566 (2d Dept. 2016)

First, I hope Judge Ciaffa returns to District Court.  I learned from him about the variable nature of an account stated when a debtor is uninsured or under-insured, and that a credit card interest rate may not be enforceable in certain situations.  Now in private practice, he is either on an 18-B panel or procuring private clients in the criminal defense arena.

I recall that I criticized one of his written no-fault opinions on here and, when I appeared in court one day, he called me up during calendar call and explained the rationale behind his decision.

Anyway, good to see his name again,

Catching up

The blog has been dormant for about 2 months.  As some of you are aware, I suffered tremendous personal issues.  Needless to say, the blog went unattended for a period longer than for what I am comfortable.  I will have this back and running very soon.  For those who offered help and did help me, many thanks.


Failure to preserve argument

Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 51076(U)(App. Term 2d Dept. 2016)

“Island Life’s contention on appeal, in essence, that defendant Unitrin was not in privity with Kemper, and, thus, that the order in the declaratory judgment action in favor of Kemper has no preclusive effect in the instant action against Unitrin, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court”

This case is interesting because the Appellate Term will sometimes allow unpreserved argument to be raised for the first time appeal and, other times, will explicitly disallow unpreserved argument to be raised on appeal.  While I wish I could give a list of unpreserved argument that could be raised on appeal, I cannot.  This is an ad hoc and sui generis determination, and your guess is as good as mine.