Another Discovery
Appellate Term ruling on discovery objections shows courts won't disturb trial court discretion when defendants fail to timely object within CPLR's 20-day period.
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97 articles by Jason Tenenbaum, Esq.
Deposition rulings
New York appellate court clarifies that deposition rulings cannot be appealed as of right, even when made through formal motion practice rather than during examination.
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Conditional Order of preclusion substitutes for willfulness
New York court ruling clarifies that willfulness is not required for preclusion sanctions when parties violate conditional orders of preclusion in discovery disputes.
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Waiting can cost you
NY appellate court upholds trial court's refusal to vacate note of issue when defendants waited too long to seek discovery, including tax returns and social media data.
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The conditional order of dismissal
New York's First Department issued a conditional order of dismissal for discovery noncompliance, but the two-step process raises doctrinal concerns about court consistency.
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Discovery of the first-party file
New York court clarifies when first-party insurance claim files are discoverable, distinguishing between litigation prep and routine business investigations.
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Move quickly or do not move at all
Learn critical New York discovery rules for personal injury cases. Cashbamba case analysis on good faith affirmations. Call 516-750-0595 for help.
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Discovery penalty: dismissal
NY court dismisses medical provider's no-fault case for discovery violations and refusal to answer deposition questions about doctor's business interests
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Discovery
New York no-fault insurance discovery rules and deposition requirements in PIP litigation, including procedural requirements and cost implications for legal strategy.
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Understanding Discovery Rules and Summary Judgment Timing in NY Personal Injury Cases
Learn NY discovery rules and summary judgment timing in personal injury cases. Corvino decision warns against premature motions. Call 516-750-0595.
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Discovery – what is material and necessary
Court ruling on physician-patient privilege waiver in personal injury discovery - what medical records are material and necessary when claiming lost earnings.
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Waiting to conduct discovery fatal to 3212(f) claim
Court rules plaintiff's 3-year delay in discovery fatal to CPLR 3212(f) motion - inaction constitutes acquiescence to summary judgment timing.
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Cart before the horse
Court ruling establishes that parties cannot use discovery to fix defective pleadings in no-fault insurance cases, reinforcing proper procedural requirements.
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Facebook is discoverable upon a proper foundation
New York court establishes proper foundation requirements for Facebook discovery in personal injury cases, rejecting automatic disclosure of entire accounts.
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Dismissed due to discovery violation
NY court dismisses no-fault insurance case due to plaintiff's willful discovery violations after repeated court orders and warnings of dismissal.
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Limitations on medical record discovery
Court limits medical record discovery in slip and fall case to injuries actually claimed, rejecting 20+ years of disability records for unrelated conditions.
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Discovery of the claims file – some limitations
Court rules on discovery limitations in no-fault insurance claims files, covering pre-disclaimer notes, attorney work product, and investigation manuals.
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Was there a basis for detailed disclosure?
Court rules plaintiff must comply with discovery demands after failing to timely object, absent showing information sought is palpably improper or privileged.
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Discovery granted/ Owner hailed into an EBT
Court rules insurance company entitled to examine healthcare provider's owner under oath in no-fault benefits case, demonstrating broad discovery rights in medical provider litigation.
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Special Referee cannot determine BP issues
Court rules special referees lack authority to determine bill of particulars disputes, clarifying the distinction between disclosure procedures and pleading amplification.
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Hello Mrs. Collins
Court denies deposition request in no-fault insurance case due to insufficient showing that administrator's testimony would yield relevant evidence.
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Correct Note of issue asserting discovery is outstanding not basis for striking Note
Queens Supreme Court ruling allows Note of Issue to stand despite outstanding discovery, raising concerns about proper case management procedures.
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Post note of issue discovery granted
Court allows post-note of issue discovery without vacating the note, clarifying when additional discovery is appropriate after filing the note of issue.
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Ralph Medical modified
NY appellate court allows depositions in no-fault case, stepping back from restrictive Ralph Medical precedent that limited discovery in insurance disputes.
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Dismissal for failure to comply with one discovery order
Court dismisses personal injury complaint after plaintiff fails to comply with single discovery order, despite belated compliance - analysis of CPLR 3126 sanctions.
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The missing video
NY court case where plaintiff's belated video disclosure during trial led to complaint dismissal, later reversed on appeal for lack of willful conduct evidence.
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Conditional order striking answer trumps cross-motion for summary judgment
Court properly struck defendant's answer for discovery violations, demonstrating that conditional orders must be followed and cross-motions won't save non-compliant parties.
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How much is enough to satisfy 3101(d)?
Conway v Elite Towing case explains CPLR 3101(d) expert disclosure requirements for personal injury litigation, including sufficient detail standards and IME report exceptions.
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Depositions granted – First department precedent eschewed
Second Department Appellate Term grants depositions in no-fault cases, overruling district court precedent on discovery timing and procedural requirements.
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Why a substitute IME doctor is not allowed
NY courts reject substitute IME doctors after note of issue filing. Learn why expert witness substitutions face strict scrutiny under discovery rules.
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EBT upheld
Court upholds EBT examination order in no-fault case where medical necessity disputed, rejecting provider's resistance to deposition despite summary judgment denial.
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The errant notice to admit
Court rules improper notice to admit cannot establish prima facie case for no-fault insurance EUO nonappearance, highlighting discovery limits in litigation.
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3212(f) – motion denied
Court denies insurer's summary judgment motion after defendant's late discovery responses prevent plaintiff from responding to medical necessity challenge.
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This one makes no sense.
Court decision highlights discovery compliance requirements when amended complaints introduce new facts, even if discovery demands appear identical to previous requests.
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Protection of the MRI facilities on medical necessity motions
New York courts recognize that MRI facilities need discovery to defend against medical necessity challenges, unlike other providers who may not require extensive documentation.
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Difference between condition order and standard order
Learn the crucial difference between conditional and standard discovery orders in NY litigation and how they affect case strategy and deadlines.
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A worthless preclusion order
Court rules discovery preclusion orders are worthless when insurance denials admit receipt of medical bills, allowing no-fault providers to prove their case at trial.
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Disclosure penalties discussed
Court rules on discovery penalties when employees leave and corporate representatives fail to appear for depositions in NY personal injury cases.
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Discovery sanction of dismissal was warranted
New York court upholds dismissal of no-fault insurance case for willful discovery violations under CPLR 3126, demonstrating when drastic sanctions are warranted.
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Stipulation does not serve as collateral estoppel
Court ruling clarifies that stipulations don't create collateral estoppel in NY no-fault insurance cases, plus guidance on SIU file discovery and licensing compliance.
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The articulable need test for a provider EBT on a medical necessity case
New York court ruling shows that provider depositions in no-fault cases require "articulable need" - even minimal disclosure may suffice to block EBT motions.
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Premature summary judgment motion
Court rules defendant's summary judgment motion premature when plaintiff lacks discovery needed to oppose medical necessity denial in no-fault insurance case.
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EBT denied
Appellate Term First Department rules CPLR doesn't apply to no-fault EBTs, reviving Zlatnick precedent that limits insurer discovery rights in medical provider cases.
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Disclosure
Court ruling on discovery scope in personal injury cases, covering physician-patient privilege waiver limits and proper use of reply papers in motion practice.
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Late motion to strike note of issue can be considered
Court rules that late motions to strike note of issue can still be considered when certificate of readiness contains material misstatements or good cause is shown.
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EUO no show substantiated
Natural Therapy Acupuncture v State Farm: Court upholds EUO no-show denial when insurer proves proper notice and attorney confirms plaintiff's failure to appear.
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Notice of Trial stricken
Court strikes Notice of Trial due to false certificate of readiness and denies protective order motion filed after discovery certification was complete.
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A motion for summary judgment is denied pending disclosure
New York court denies summary judgment in no-fault case where plaintiff timely requested but didn't receive peer review reports and medical documentation from defendant insurer.
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EUO preclusion and EBT’s based upon preserved box #18 defense
New York court ruling on EUO preclusion and EBT rights based on preserved box 18 defense in no-fault insurance cases - key timing requirements explained.
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EBT order as an alternative to a denied medical necessity motion
When medical necessity motions are denied, providers can use EBT orders to compel chiropractor depositions in no-fault cases under CPLR 3101(a) discovery rules.
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Mallela based disclosure granted
Court grants discovery motion to determine if medical provider meets licensing requirements under Mallela defense, vacating premature trial notice.
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Tax records denied in Mallela based disclosure matter
Court denies insurance company's request for tax records in no-fault case, reinforcing that tax returns require special circumstances to be discoverable in litigation.
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Conditional discovery order vacated upon showing of law office failure
New York courts may vacate discovery sanctions when defendants show reasonable law office failure excuse and meritorious defenses, as demonstrated in Elite Medical case.
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Deposition of own party allowed into evidence
New York court rules that defendants can introduce deposition testimony of unavailable party witness at trial, despite plaintiff's objections and missing witness charge request.
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Court takes judicial notice of Supreme Court declaratory judgment action
Court takes judicial notice of Supreme Court declaratory judgment action with res judicata effect in no-fault insurance dispute (150 chars)
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Discovery disallowed when EUO requests are not responded to by deponent
Court rules that healthcare providers who fail to respond to EUO requests cannot challenge their reasonableness or seek discovery about scheduling letters in no-fault cases.
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Medical provider cannot defeat IME non-cooperation defense through stating “discovery is outstanding”
Medical providers cannot defeat IME non-cooperation defense by claiming outstanding discovery. NY appellate court rules on summary judgment standards.
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The errata sheet is not a do over
Appellate court ruling on CPLR 3116(a) errata sheets: deponents cannot make radical changes without adequate explanations in NY personal injury depositions.
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The SIU file is open for discovery and more
New York court rules SIU files discoverable when insurer fails to prove litigation privilege, plus limits on stipulations in no-fault insurance cases.
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Certificate of readiness that says discovery is outstanding is deemed a nullity
Appellate Division rules certificate of readiness stating discovery is outstanding creates a nullity, allowing unlimited time to strike note of issue in NY courts.
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Discovery not necessary to adjudicate merits of EUO no-show defense
Court rules discovery unnecessary when challenging EUO no-show defense in NY no-fault cases. Appellate Term confirms proper mailing establishes valid denial.
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MSJ + EBT = disaster for plaintiff
Court case analysis showing how failed summary judgment motion led to mandatory EBT order for medical provider in no-fault insurance dispute.
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Please be quiet
Court ruling on attorney participation rights in nonparty witness depositions, clarifying counsel's limited role during EBT proceedings in NY malpractice cases.
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Burden rests on medical provider to show that defense is palpably improper
Court ruling clarifies burden of proof in no-fault discovery disputes - medical providers must demonstrate defense is palpably improper to oppose discovery motions.
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Jumped the gun on preclusion
Appellate Term reverses premature discovery preclusion order, ruling employee with knowledge can verify interrogatories and sanctions require willful misconduct.
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Deposition transcript v. errata sheet
When deposition testimony conflicts with errata sheet corrections, courts must deny summary judgment motions due to unresolved credibility issues requiring trial resolution.
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Final order of preclusion became automatic – no need to move for one
Court rules conditional preclusion order becomes automatic upon non-compliance, but plaintiff still must prove prima facie case for summary judgment
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3101(d) gone awry?
Court strikes expert affidavit when plaintiff failed to identify expert during discovery phase, emphasizing importance of timely disclosure under CPLR 3101(d).
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Requestee pays for discovery
New York court rules on discovery costs burden in litigation - requestee pays first, with limited cost-shifting options available.
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Late Notice of Trial and standard of law as to Malella
Court ruling on late notice of trial motions and Malella defense standards in NY no-fault insurance cases, including timing rules and professional corporation compliance.
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On the CPLR front – 3126(3) motion granted when party deponent lies during deposition
Appellate Term reverses Civil Court, grants CPLR 3126(3) motion to dismiss complaint when plaintiff perjured herself about medical history during EBT deposition.
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Remote Depositions for International Parties: Legal Precedent from Long Island and NYC Courts
Learn when NY courts allow remote depositions for international parties. Key 2011 precedent for Long Island & NYC attorneys handling overseas witnesses.
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Understanding Errata Sheets and Credibility Issues in New York Depositions
Learn how errata sheet corrections impact credibility determinations and summary judgment motions in NY litigation. Expert analysis from Long Island attorney Jason Tenenbaum.
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It is facebook – split decision
Appellate Division ruling on Facebook discovery in personal injury cases - court denies overly broad social media account access requests
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Dr. Collins again
Appellate Term compels Dr. Collins to attend deposition in another RLC Medical case, highlighting recurring patterns in no-fault insurance litigation.
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Brutal discovery decision from the Appellate Term First Department
Appellate Term First Department issues harsh discovery sanctions ruling, striking defendant's answer for failure to respond to disclosure requests in no-fault case.
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Law of the case does not apply to discovery orders
New York appellate court clarifies that the law of the case doctrine does not apply to prior discovery orders, offering flexibility in litigation management.
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The spreadsheet was not in admissible form?
Court case analysis examining admissibility of business records and material misrepresentation in no-fault insurance policy procurement disputes in New York.
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Amendment of bill of particulars on the eve of trial is allowed
New York Appellate Term rules that amending a bill of particulars on the eve of trial requires judicial discretion exercised in a "discreet, circumspect, prudent and cautious manner."
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Consolidation and belated discovery denied
Court denies consolidation and amendment motions in no-fault insurance case, ruling on discovery procedures and fraudulent incorporation claims.
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EBT in aid of arbitration? No dice.
NY court denies EBT in aid of arbitration, ruling disclosure must be "absolutely necessary" not merely convenient for no-fault insurance disputes.
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Does this make sense?
New York appellate court ruling reveals surprising disparity between complaint dismissal sanctions and preclusion orders under CPLR 3126, raising constitutional questions.
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Miss an EBT deadline – have your answer stricken and go directly to inquest
Court strikes defendant's answer for missing EBT deadline, demonstrating how willful discovery violations can lead to severe sanctions under CPLR 3126.
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Unintentional spoliation leads to adverse inference charge
New York court rules that unintentional destruction of evidence warrants adverse inference jury instruction when opposing party wasn't notified beforehand.
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An interesting discovery case involving the right to obtain alcohol treatment records
Expert analysis of medical records discovery rights in NY personal injury cases. L.T. v Teva Pharms case study. Call (516) 750-0595 for consultation.
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Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
Analysis of Appellate Term decision limiting CPLR 3212(f) relief in three circumstances. Essential guidance for NY civil practice and discovery strategy.
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The fifth discovery default will cause your answer to be stricken
New York court strikes defendant's answer after fifth discovery default - willful failure to comply with successive disclosure orders under CPLR 3126
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Civil Procedure Pitfalls: The High Cost of Improper Note of Issue Filing in New York
Costly consequences of improper Note of Issue filing in NY civil procedure. Expert analysis of Ikeda v Tedesco sanctions. Call (516) 750-0595.
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Note to attorney: resist the urge to object if your client is being deposed as a non-party at a deposition
Learn why attorneys cannot object during non-party depositions in NY personal injury cases. Court ruling explains CPLR 3113(c) applies equally to trial and deposition testimony.
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Court-Ordered Blood Tests and Medical Discovery in NY Personal Injury Cases
Learn when NY courts can compel blood tests and medical exams in personal injury litigation. Expert guidance on CPLR 3121 & medical discovery. Call 516-750-0595
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The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee
Learn why assignor EBT failures don't warrant CPLR 3126 sanctions against assignees in NY no-fault insurance cases. MIA Acupuncture case analysis for providers.
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NY EBT Venue Rules: When Courts Grant Undue Hardship Exceptions for Depositions
Learn when NY courts grant EBT venue exceptions for undue hardship. Expert analysis of deposition alternatives including videoconferencing options. Call 516-750-0595.
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Laches may prove fatal to opposing a summary judgment motion based upon CPLR 3212 (f)
Learn how laches can defeat discovery requests under CPLR 3212(f) in New York summary judgment practice. Expert analysis from experienced litigation attorneys.
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Discovery Violations and Court Sanctions: When New York Courts Strike Back
Learn how New York courts handle discovery violations and impose CPLR 3126 sanctions. Expert analysis of Northfield Ins. Co. v Model Towing & Recovery case.
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EBT's in no fault practice – "laches does not apply"
Queens Chiropractic v Country Wide ruling that time delays don't waive insurance carriers' EBT rights in no-fault cases, contrasting with First Department precedent.
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A plain disaster
Understanding EBT procedural requirements and Fogel decision impacts in no-fault insurance litigation. Expert analysis of A.M. Medical Services v GEICO case.
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Some newer cases
Recent 2008 New York no-fault insurance procedural decisions on stipulations, discovery sanctions, and precluded defenses affecting Nassau, Suffolk, Queens litigation.
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