August 2010 – Page 2

CPLR R. 3212(f)

CPLR R. 3212(f)

Anne Koplick Designs, Inc. v Lite, 2010 NY Slip Op 06356 (App. Div., 2nd, 2010)

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212[b]; Yiouti Rest. v Sotiriou, 151 AD2d 744, 745). In support of their motion, the plaintiffs submitted an expert affirmation of an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, among other things, advising the plaintiffs to default in a lawsuit commenced against them in California and advising them that a default judgment obtained in California would not be enforceable in New York, a clearly incorrect statement of the law (see Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511; Yiouti Rest. v Sotiriou, 151 AD2d at 745). The plaintiffs' submissions also established that, but for the defendants' malpractice, they would have succeeded in defending the underlying claim. In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). [*2]

Moreover, while determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Williams v D & J School Bus, Inc., 69 AD3d 617, 619; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). The defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).

Also interesting was the portion of about out-of-state default judgments. I checked the two sites that the Court cites to, but neither appear to say anything about out-of-state default judgments. Compare Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20130 (App. Term, 2nd, 11th and 13th, Jud. Dists., 2010), which cites to Zimmerman v Tower Ins. Co. of N.Y., 13 AD3d 137 (App. Div., 1st, 2004)

CPLR R. 5015: Can’t require a bond to vacate a judgment that doesn’t exist

CPLR R. 5015 Relief from judgment or order

Doris v Lewis, 2010 NY Slip Op 06357 (App. Div., 2nd, 2010)

The Supreme Court erred in requiring the defendant to post a bond. A court which renders a "judgment or order may relieve a party from it upon such terms as may be just" (CPLR 5015[a]), including the imposition of a bond or undertaking (see Yadid, LLC v GCW Bell Corp., 48 [*2]AD3d 799, 800; Civil Serv. Empls. Assn. v County of Nassau, 296 AD2d 474, 475; Testwell Craig Labs. v Charles Assoc., 264 AD2d 836; Harp v Tednick Corp., 256 AD2d 904, 905; F & K Supply v Balbec Corp., 182 AD2d 911). However, in the instant case, the Supreme Court did not issue an order granting the plaintiffs' motion for leave to enter judgment upon the defendant's default and did not render a default judgment. Thus, there was no judgment or order from which the defendant was seeking to be relieved.

It's pretty rare that you find a decision where the court requires a bond as a condition of vacatur. Even with the facts as they are in this case, it's still an interesting decision.

Pardon this brief interruption for no-fault

From time to time I'm going to post no-fault cases. Not because anyone cares, but so that I will have a place to find them. Nothing to see here.

John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 2010 NY Slip Op 20308 (Civ Ct City NY, Kings County, 2010)

It should be noted that the surgery section of the Fee Schedule denotes different percentages of payment based on whether a participating surgeon is acting as a "Surgical Assistant" or a "Co-Surgeon". A Surgical Assistant bills at 16%, while Co-Surgeons are directed to apportion billing in relation to the responsibility and work done. (See New York Workers' Compensation Fee Schedule, Surgery, page 4). Defendant's witness did not offer testimony regarding whether Plaintiff should have billed as a Surgical Assistant or a Co-Surgeon. Plaintiff's rebuttal witness, Dr. Giugliano , testified that the classifications are interchangeable and he was entitled to bill as a co-surgeon. Absent proof to the contrary, the Court finds that Plaintiff was entitled to bill as a Co-Surgeon under the Fee Schedule.

With respect to Plaintiff utilizing the surgery CPT codes, the Court finds that Plaintiff successfully rebutted Defendant's testimony and Plaintiff was entitled to use these CPT codes as the procedures were not listed under the chiropractic fee schedule. When a charge for a reimbursable service has not been scheduled by the superintendent, then the provider shall establish a fee consistent with other fees for comparable procedures shown in such schedule subject to review by the insurer. Id; See also Studin v. Allstate Ins. Co., 152 Misc 2d 221 (NY Dist. Ct. 1991). Therefore, the Court finds that Plaintiff established that the procedures were properly billed pursuant to the Fee Schedule and Plaintiff is entitled to be reimbursed for the services performed.

Family Care Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 51414(U) (Civ Ct City NY, NY County)

As MVAIC has submitted an affidavit swearing that plaintiff's assignor did not file a notice of intention to make a claim, police report or household affidavit, defendant's moving papers make a prima facie showing that plaintiff's assignor is not a "qualified person" (Insurance Law § 5202[b]) and, thus, that he is not a "covered person" (Insurance Law § 5221[b][2]).^[FN1] Plaintiff's first argument in opposition is that defendant may not raise this "issue" to "obviate the 30-day requirement which would frustrate the purpose and objective of the No-Fault Law" (aff. in opp., para. 4).Plaintiff is incorrect.

In Hospital for Joint Diseases v Travelers Property Cas. Ins. Co., 9 NY3d 312, 849 NYS2d 473 (2007), the Court of Appeals recognized "a narrow exception to this preclusion remedy for situations where an insurance company raises a defense of lack of coverage (citation omitted). In such cases, an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed' (citation omitted)".The Appellate Division, First Department recently held that, like insurers raising lack of coverage, MVAIC may raise the issue of lack of qualification at any time, and this issue is not subject to the thirty-day preclusion rule. MVAIC v Interboro Medical Care & Diagnostic PC, 73 AD23d 667, 902 NYS2d 45 (1st Dept 2010). [*3]Plaintiff's second argument in opposition is that defendant improperly sent verification requests to plaintiff and its attorneys, rather than to plaintiff's assignor Mr. Shalina. This argument ignores the documents submitted on the motion. Plaintiff's NF-3 lists only "N/A, N/A, NY 11235" as Mr. Shalina's address. As defendant claims there was no record of Mr. Shalina in its files, it would have been impossible for defendant to send anything to Mr. Shalina without having been given his address by plaintiff.

In this case, plaintiff apparently rendered services to "Mr. Shalina" (assuming that was his real name) on five separate occasions without ever obtaining any identification or proof of address. Perhaps because plaintiff had no other place to send the bill, it sent the bill to MVAIC. Because plaintiff's assignor, Mr. Shalina, never qualified for benefits from MVAIC, his assignee, plaintiff, who stands in his shoes, is not entitled to benefits from defendant either.

The bold is mine. Nevermind, no bold.

One more thing. Roy Mura posted about a new circular letter re: cancellation for lack of payment.

Reconcile This: Hearsay

LaVecchia v Bilello, 2010 NY Slip Op 06363 (App. Div., 2nd, 2010)

The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and evidence that such departure was a proximate cause of the plaintiff's injury (see Koi Hou Chan v Yeung, 66 AD3d 642; Terranova v Finklea, 45 AD3d 572; Clarke v Limone, 40 AD3d 571). Therefore, on a motion for summary judgment, the defendant dentist has the initial burden of establishing the absence of any departure from good and accepted practice, or that the plaintiff was not injured thereby (see Koi Hou Chan v Yeung, 66 AD3d at 642; Terranova v Finklea, 45 AD3d at 572; Williams v Sahay, 12 AD3d 366, 368). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (Koi Hou Chan v Yeung, 66 AD3d at 643; see Ward v Engel, 33 AD3d 790, 791; Johnson v Ladin, 18 AD3d 439).

Here, as the Supreme Court correctly determined, the defendant Raphaelson Dental Associates (hereinafter RDA) failed to make a prima facie showing of its entitlement to judgment as a matter of law. RDA's dental expert relied upon, inter alia, an unsworn dental report by Dr. Jenal and dental records that were not annexed to the motion (see Farmer v City of New York, 25 AD3d 649, 650). Moreover, the affidavit of RDA's dental expert was conclusory, and failed to rebut all of the specific allegations of dental malpractice set forth in the plaintiff's verified bill of particulars (see Terranova v Finklea, 45 AD3d at 572; Ward v Engel, 33 AD3d at 791). The expert affirmation submitted by the defendant Rita Marie Bilello likewise was insufficient to establish RDA's prima facie entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied [*2]RDA's motion, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Koi Hou Chan v Yeung, 66 AD3d at 644).

Compare this with Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in Rafailova's records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Can these two decisions be reconciled? For those of you that don't practice in the Civil Court, this might not mean anything to you. But you never know if and when this issue will creep into Supreme Court. For more background on the issue, read THIS, THIS, and THIS.¹

Also of interest is the fact that the Urban decision is an unreported decision, which could be the Appellate Term's way of saying, "hey, this is only for no fault."

Finally, I'm by the time you all got to this point in the post you were wondering whether you have been using "i.e." or "e.g." appropriately. Here you go:

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1. The last one is a NYLJ article and you need to pay to play, however, if the authors woudl post the article on their website, I could put a link to it and make everyone look smart.

Oh the places you’ll think

I had a case in the NYLJ the other day. I think it was June 13. Myrtle Ave. Chiropractic Pc v. Allstate Ins. Co., 056130/04. Up until now, I've only had articles there, so, it's pretty cool. Sure, it's nothing fancy like all you biglaw types deal with, but it's better than a kick to the balls.

Nothing particulary interesting has happened since my last post, at least as far as the CPLR goes. I noticed that the New York Courts Reporter site now has RSS feeds. But when I tried to subscribe, it got all screwed up. Until they straighten it out, its easier to just use the site.

I got a new phone; the HTC incredible. I'm torn between it and the iphone, but I'm edging towards the HTC. They keyboard is kind of crappy and it doesn't handle emails as well as the iphone or blackberry. The Maps/ Directions app is great. If you spend a lot of time emailing, go with a blackberry. For everything else, go with an iphone or the HTC. Personally, like I said, I edge towards the HTC.

Here is a gratuitious picture of my dog, Marvin. In the picture he is looking up at my youngest daughter, hoping that she will give him some of the slurpee that she stole from my wife's friend.

It's been awhile since I did my whole writing and motivational roundup.

If the whole, sunshine up your ass thing, thing isn't for you, head over to Failblog, but make sure to click the link to Very Demotivational. Not quite along the same lines is Crime & Federalism, where, after reading for a while, you will realize that you are a fat stupid hypocrite.

Should you want to help me, while you help yourself, get yourself a Dropbox account. For each of you who opens an account (completely free, unless you want to pay for more storage) I get some extra space. It's a really cool thing to have. You can store a bunch of crap on the interwebs and access it from anywhere. It comes in handy, trust me.

While I wrote this, I ate an entire box of maple cookies. I felt that you need to know that. Butterfly effect and all.

Hopefully some new and interesting decisions will come out this week. Otherwise, you will just get more of this.

Finally, if you are reading this, and you just graduated law school, you are screwed. Not because you are reading this, though, it probably doesn't help.

Defaults and legal (as opposed to factual) conclusions to be drawn by the Court.

CPLR � 3215 Default Judgment
(a) Default and Entry
(b) Procedure before court

McGee v Dunn, 2010 NY Slip Op 06233 (App. Div., 2nd, 2010)

The defendant was personally served with the summons and verified complaint on July 23, 2008, and failed to answer the complaint, appear, or move with respect thereto within the 20-day statutory period (see CPLR 320[a]). In late August 2008 the plaintiff moved for leave to enter a judgment against the defendant upon his default in answering and for an inquest on the issue of damages. The defendant cross-moved to dismiss the complaint pursuant to CPLR 3211(a). The Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss the complaint. We modify.

Although a defaulting defendant is deemed to have admitted all the allegations in the complaint, "the legal conclusions to be drawn from such proof are reserved for the Supreme Court's determination" (Venturella-Ferretti v Ferretti,AD3d, 2010 NY Slip Op 04777, *1 [2d Dept 2010]; see CPLR 3215[b]; Green v Dolphy Constr. Co., 187 AD2d 635, 636). There is no " mandatory ministerial duty'" to enter a default judgment against a defaulting party (Resnick v Lebovitz, 28 AD3d 533, 534, quoting Gagen v Kipany Prods., 289 AD2d 844, 846 [internal quotation marks omitted]). Instead, the court must determine whether the motion was supported with "enough facts to enable [the] court to determine that a viable cause of action exists" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; see Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 29 AD3d 930, 932; Beaton v Transit Facility Corp., 14 AD3d 637). "In determining whether the plaintiff has a viable cause of action, the court may consider the complaint, affidavits, and affirmations submitted by the plaintiff" (Litvinskiy v May Entertainment Group, Inc., 44 AD3d 627, [*2]627).

The Supreme Court properly denied the plaintiff's motion for leave to enter judgment upon the defendant's default in answering and for an assessment of damages, as the plaintiff's motion papers failed to set forth sufficient facts to enable the court to determine that there exists a viable cause of action to recover damages for either libel (see Rosenberg v MetLife, Inc., 8 NY3d 359, 365; Rufeh v Schwartz, 50 AD3d 1002, 1004) or malicious prosecution (see Baker v City of New York, 44 AD3d 977, 979; Paisley v Coin Device Corp., 5 AD3d 748, 749-750). However, the Supreme Court should not have granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint as it was not made prior to the time by which the defendant was required to serve an answer or notice of appearance (see CPLR 320[a]; 3211[e]). Furthermore, the defendant's motion failed to request an extension of time to answer or appear (see CPLR 2004). In addition, the defendant's motion to dismiss the complaint failed to set forth a reasonable excuse for the default, which, along with a showing of a potentially meritorious defense, is generally necessary to avoid the entry of a default judgment (see DeStaso v Bottiglieri, 52 AD3d 453, 454; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355-356).

Under such circumstances, the Supreme Court improvidently exercised its discretion in granting the defendant's untimely motion to dismiss the complaint, as it, in effect, excused the defendant's default in the absence of a request for such relief (see May v Hartsdale Manor Owners Corp., 73 AD3d 713; Zino v Joab Taxi, Inc., 20 AD3d 521, 522; see also Tirado v Miller,AD3d, 2010 NY Slip Op 04364 [2d Dept 2010]).

Compare Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010). Read more about it at JT.

Something that everyone knows, but is constantly ignored

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

Associates First Capital Corp. v Wiggins, 2010 NY Slip Op 06225 (App. Div., 2nd, 2010)

The Supreme Court properly denied, without a hearing, inter alia, that branch of the defendants' motion which was to dismiss the complaint for lack of personal jurisdiction. "A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370). Here, since the defendants' affidavits amounted to no more than bare and conclusory denials of service which were insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(1) and (2) created by the process server's affidavit, no hearing was required (see City of New York v Miller, 72 AD3d 726; Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370).

By "defendant's sworn denial of receipt" the Court does not mean that just anyone can deny receipt. The person who was served has to do it or a person with sufficient knowledge. "I checked the file" is not sufficient. But, like anything else, there are exceptions.

For some crazy reason, typepad decided to get rid of the justify button. Posts will take longer because of this.

CPLR R. 327 and the borrowing statute (CPLR § 202 )

Patriot Exploration, LLC v Thompson & Knight LLP, 2010 NY Slip Op 06217 (App. Div., 1st, 2010)

In this legal malpractice action, the motion court did not abuse its discretion in declining to dismiss this action on forum non conveniens grounds (see Shin-Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171, 175-77 [2004]). Since the court may grant a forum non conveniens motion "on any conditions that may be just" (CPLR 327[a]), which includes the power to impose "reasonable conditions designed to protect plaintiffs' interests" (Chawafaty v Chase Manhattan Bank, 288 AD2d 58, 58 [2001], lv denied 98 NY2d 607 [2002]), the court could properly condition an inconvenient-forum dismissal on a waiver of the foreign forum's
two-year statute of limitation (see e.g. Healy v Renaissance Hotel Operating Co., 282 AD2d 363, 364 [2001]; Seung-Min Oh v Gelco Corp., 257 AD2d 385, 387 [1999]; Highgate Pictures v De Paul, 153 AD2d 126, 129 [1990]).

Nor can defendant prevail on its belated offer, made in its motion for reargument, to waive its potential statute of limitations defense, since the court had also properly found that defendant had not met its burden of establishing that New York was an inconvenient forum and that the matter should be tried in Texas based upon a consideration of factors including potential hardship to proposed witnesses, the location of records and files, the residency of the parties, and the burden imposed upon the New York courts (see Gulf Oil Corp. v Gilbert, 330 US 501, 508 [1947]; Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied, 469 US 1108 [1985]).

Read the dissent. You don't see it here? Click the link, stupid.