[App Div 2d Dept]

The Court’s inherent power to vacate shouldnt be invoked all willy nilly like

CPLR R. 5015

Galasso, Langione & Botter, LLP v Liotti, 2011 NY Slip Op 01432 (App. Div., 2nd 2011)

Although the court has an inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68; Katz v Marra, 74 AD3d 888; see generally Selinger v Selinger, 250 AD2d 752, 753), the invocation of the court's inherent power to vacate its judgment or order was not warranted herein. Thus, the Supreme Court properly denied the appellant's motion to vacate the judgment, and properly denied his motion for leave to renew his motion to vacate the judgment. Moreover, the Supreme Court also providently exercised its discretion, upon granting the third-party defendant's motion for sanctions, in imposing a sanction in the sum of $1,000 on the appellant (see 22 NYCRR 130-1.1 [c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749).

Indeed, the conduct of the pro se appellant attorney in pursuing the instant appeal appears to be completely without merit in law or fact and unsupported by a reasonable argument for an extension, modification, or reversal of existing law, or undertaken primarily to delay or prolong the resolution of litigation or to harass or maliciously injure another (see 22 NYCRR 130-1.1[c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749; Weinstock v Weinstock, 253 AD2d 873, 874, cert denied 526 US 1088).

The no-fault

Appellate Division

M.N. Dental Diagnostics, P.C. v Government Employees Ins. Co., 2011 NY Slip Op 01333 (App. Div., 1st 2011)

Insurance Law § 5105(b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12(b) provides that "[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part."

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not "otherwise [] liable" for the payment of first-party benefits. However, 11 NYCRR 65-4.11(a)(6) provides that "any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section." Thus, as "the first insurer to whom notice of claim [was] given" (11 NYCRR 65-3.12[b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff's claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which "[c]learly . . . is an inter-company dispute subject to mandatory arbitration" (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]).

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (App. Div., 2nd 2011)

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).

In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff's claim. The defendant's denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint and should have denied the defendant's cross motion for summary judgment dismissing the complaint.

Appellate Term

Edison Med. Servs., P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 50193(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In the case at bar, defendant proffered no reasonable excuse as to why it served its answer late. Defendant merely asserted that, due to a clerical error, the caption of the answer it ultimately served was incorrect. However, the purported document, which listed the wrong assignor, could not properly be characterized as an answer to the complaint. Moreover, the foregoing error did not establish an excuse for the untimely service of the answer. According to a paralegal employed by defendant's law firm, the answer was served on August 2, 2007, almost four months after the default judgment had been entered. In view of the lack of a reasonable excuse for defendant's default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, as the Civil Court did not improvidently exercise its discretion in denying defendant's motion, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

There is a Golia dissent.

GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50194(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant established that the EUO scheduling letters were timely mailed in accordance with the affiants' employers' standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of its attorneys, who was responsible for conducting the EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear at counsel's former law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an appearance at an EUO is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Further, contrary to the Civil Court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.

Infinity Health Prods., Ltd. v American Tr. Ins. Co., 2011 NY Slip Op 50195(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator's affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50184(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50188(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The papers submitted in support of defendant's cross motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the peer reviewers' opinions that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's cross motion, plaintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the existence of a triable issue of fact as to the medical necessity of the medical supplies in question, defendant's cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

3101; 3103; Common Interest Priv.

CPLR 3101 Scope of disclosure

Ford v Rector, Church-Wardens, Vestrymen of Trinity Church in the City of New York, 2011 NY Slip Op 01064 (App. Div., 1st 2011)

While defendants' discovery request for all plaintiff's home and cellular telephone records dating from six years before the sending of the anonymous faxes that purportedly led to her termination was overly broad and unnecessarily burdensome, the denial of the request in its entirety was inappropriate, given defendants' showing of the need for the discovery. Defendants allege that plaintiff was terminated not in retaliation for commencing a discrimination suit but because of her involvement in the sending of certain anonymous faxes and her dishonesty during the investigation into the sending of the faxes. Plaintiff asserts that she does not know the person who allegedly caused the faxes to be sent. However, there is documentary evidence suggesting that he is her brother-in-law. Thus, we conclude that plaintiff's telephone records, as circumscribed above, for the year preceding the sending of the faxes are "material and necessary" to the defense of this action (CPLR 3101[a]; see Anonymous v High School for Envtl. Studies, 32 AD3d 353, 358 [2006]).

Contrary to defendants' contention, production of the remainder of the information requested should not be compelled, despite plaintiff's untimely objection to the request (Lea v New York City Tr. Auth., 57 AD3d 269 [2008]; Haller v North Riverside Partners, 189 AD2d 615, 616 [1993]).

American Bank Note Corp. v Daniele, 2011 NY Slip Op 01063 (App. Div., 1st 2011)

Finally, there was no error in permitting defendants to testify at the hearing by means of a live video conference link from Argentina. First, the court quashed the subpoena plaintiffs had originally served on defendants and plaintiffs did not challenge this ruling on appeal. Thus, defendants' appearance via video conference was voluntary. Further, plaintiffs fully participated in that hearing.

Pursuant to CPLR 3103(a), the court may regulate "any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. . . " The decision to allow a party or witness to testify via video conference link is left to a trial court's discretion (People v Wrotten, 14 NY3d 33, 37-38 [2009] cert denied __ US __, 130 S Ct 2520 [2010]).

Here, defendant Daniele had not made travel arrangements to come to the United States. There was also a question of whether he could lawfully leave Argentina because of charges plaintiffs filed against him in that country. Thus, coming to New York to testify was "not feasible as a practical matter" (Matter of Singh, 22 Misc 3d 288, 290 (Sup Ct, Bronx County [*2]2008), and would have resulted in hardship (Rogovin v Rogovin, 3 AD3d 352, 353 [2004]). Accordingly it was proper to allow defendants to testify from Argentina via video conferencing.

Mt. McKinley Ins. Co. v Corning Inc., 2011 NY Slip Op 01061 (App. Div., 1st 2011)

In this action seeking a declaratory judgment establishing entitlement to insurance coverage for defense and/or indemnification, the IAS court did not abuse its discretion in ordering the subject documents produced (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). The motion court properly held that Corning failed to establish that the subject documents were protected by the common interest privilege. While Corning asserted that the documents were "generated in furtherance of a common legal interest" between itself and the committees in the bankruptcy action and that the documents included, communications evincing strategy and preparation for an upcoming confirmation hearing, it submitted no evidence in support of these assertions. Moreover, Corning never stated, let alone established, that it or the committees had a reasonable expectation of confidentiality with respect to these communications. Accordingly, Corning failed to establish that the relevant communications with the committees were in furtherance of a common legal interest and that with respect to these communications, Corning and the committees had a reasonable expectation of confidentiality (see United states v Schwimmer, 892 F2d 237, 243-244 [2d Cir 1989]; In re [*2]Quigley Company, Inc., 2009 Bankr LEXIS 1352, 8-9 [Bankr SD NY 2009].

Yu Hui Chen v Chen Li Zhi, 2011 NY Slip Op 01267 (App. Div., 2nd 2011)

While depositions of parties to an action are generally held in the county where the action is pending (see CPLR 3110[1]), if a party demonstrates that conducting his or her deposition in that county would cause undue hardship, the Supreme Court can order the deposition to be held elsewhere (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d 815; LaRusso v Brookstone, Inc., 52 AD3d 576, 577). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff's cross motion for a protective order pursuant to CPLR 3103(a) directing that his deposition be conducted by remote electronic means. The plaintiff demonstrated that traveling from China to the United States for his deposition would cause undue hardship (see Gartner v Unified Windows, Doors & Siding, Inc., 68 AD3d at 815-816; Wygocki v Milford Plaza Hotel, 38 AD3d 237; Rogovin v Rogovin, 3 AD3d 352, 353; Matter of Singh, 22 Misc 3d 288; see also Hoffman v Kraus, 260 AD2d 435, 437; cf. Matter of Albarino, 27 AD3d 556).

In light of our determination that the plaintiff's deposition may be conducted by remote electronic means, the Supreme Court improvidently exercised its discretion in staying all proceedings in the action until the plaintiff could return to the United States for his deposition.

CPLR R. 3025(c): Amend the pleadings to conform to the facts

CPLR R. 3025(c)

Rodriguez v Panjo, 2011 NY Slip Op 01259 (App. Div., 2nd 2011)

In August 2009 the plaintiff moved pursuant to CPLR 3025(c) for leave to amend the complaint to conform to the evidence, and the defendants moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court denied the plaintiff's motion and granted the defendants' motion. We reverse.

"Leave to conform a pleading to the proof pursuant to CPLR 3025(c) should be freely granted absent prejudice or surprise resulting from the delay" (Alomia v New York City Tr. Auth., 292 AD2d 403, 406; see Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d 822). Mere lateness is not a barrier to amendment, but it will preclude amendment if it is coupled with significant prejudice to the other side (Worthen-Caldwell v Special Touch Home Care Serv., Inc., 78 AD3d at 822). Here, the Supreme Court improvidently exercised its discretion by denying the plaintiff's motion for leave to amend the complaint to conform to the evidence as Panjo, having himself been involved in the accident and having spoken to Estaban at the scene, was fully aware of the facts and that the accident involved three vehicles, not two vehicles as originally alleged in the complaint. Furthermore, the details of how the accident occurred, the number of vehicles involved, the make and year of the vehicle which hit the plaintiff's vehicle, and who operated the vehicles, were fully explored at Panjo's deposition. Accordingly, the defendants would not have suffered surprise or prejudice by an amendment of the complaint to conform to the evidence (see Rizzo v Kay, 79 AD3d 1001; Alomia v New York City Tr. Auth., 292 AD2d at 406).

Account (un)Stated

American Express Centurion Bank v Cutler, 2011 NY Slip Op 01227 (App. Div., 2nd 2011)

"An account stated is an agreement between [the] parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance" (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869; see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Citibank [S. D.] v Jones, 272 AD2d 815). An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account (see Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562; Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 52; Jovee Contr. Corp. v AIA Envtl. Corp., 283 AD2d 398, 400; Citibank [S. D.] v Jones, 272 AD2d 815; Schneider Fuel Oil v DeGennaro, 238 AD2d 495, 496).

Here, the plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated. The plaintiff's evidentiary submissions did not include the monthly credit card billing statements which form the basis of its cause of action to recover on an account stated, and the affidavit of the plaintiff's employee contained no facts showing that the defendant retained the subject billing statements for an unreasonable period of time without objecting to them, or that he made partial payment on the billing statements (see Citbank [S.D.] N.A. v Goldberg, 24 Misc 3d 143[A]; Discover Bank v Williamson, 14 Misc 3d 136[A]; cf. American Express Centurion Bank v Williams, 24 AD3d 577). Furthermore, the plaintiff's "prima facie burden cannot be met by evidence submitted for the first time in its reply papers" (Yeum v Clove Lakes Health Care & Rehabilitation Ctr., Inc., 71 AD3d 739, 739; see [*2]Tingling v C.I.N.H.R., Inc., 74 AD3d 954; David v Bryon, 56 AD3d 413, 414-415). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the cause of action to recover on an account stated, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Encarnacion v Smith, 70 AD3d 628, 630; David v Bryon, 56 AD3d at 414).

CPLR R. 4518(a)

CPLR R. 4518 Business records

CPLR § 2002 Error in ruling of court

Rodriguez v New York City Tr. Auth., 2011 NY Slip Op 01258 (App. Div., 2nd 2011)

The defendant's contention that the Supreme Court improperly denied the admission of a certain photograph of the upper landing of the subject stairway taken some five years after the accident is without merit. The defendant failed to establish a proper foundation by showing that it was a fair and accurate representation of the condition of the landing on the date of the accident (see Moore v Leaseway Transp. Corp., 49 NY2d 720, 723; People v Byrnes, 33 NY2d 343, 347-349; Saporito v City of New York, 14 NY2d 474, 476-477; Leven v Tallis Dept. Store, 178 AD2d 466; Prince, Richardson on Evidence § 4-212, at 149 [Farrell 11th ed]).

We agree with the defendant that the Supreme Court erred in precluding it from introducing into evidence two accident reports. The accident reports were made in the regular course of business and were admissible under CPLR 4518(a) (see Galanek v New York City Tr. Auth., 53 AD2d 586; Bracco v MABSTOA, 117 AD2d 273, 277; Klein v Benrubi, 60 AD2d 548, 548; Bishin v New York Cent. R.R. Co., 20 AD2d 921). A business record is admissible even though the person who prepared it is available to testify to the acts or transactions recorded (see Meiselman v Crown Hgts. Hosp., 285 NY 389, 397; Clarke v New York City Tr. Auth., 174 AD2d 268; Napolitano v Branks, 141 AD2d 705, 706). Accordingly, the accident reports should have been admitted (see Klein v Benrubi, 60 AD2d at 548). However, the error does not require reversal since the precluded evidence was cumulative of testimony already adduced before the jury during the defendant's case (see CPLR 2002; Woody v Foot Locker Retail, Inc., 79 AD3d 740; Sweeney v Peterson, 24 AD3d 984; Tannen v Long Is. R.R., 215 AD2d 745).

Experts

Reilly v Ninia, 2011 NY Slip Op 01451 (App. Div., 2nd 2011)

Furthermore, the hospital's expert testified that he "would have to think about" whether the administration of Pitocin should have been discontinued at the time of the three-minute deceleration of the fetal heartbeat, and, responded "maybe" to a similar question as to whether the Pitocin should have been discontinued. Thus, with respect to the claim that the labor and delivery nurse departed from good and accepted practice by failing to discontinue the administration of Pitocin, the hospital's expert credibly testified against the hospital's interest (cf. Cicione v Meyer, 33 AD3d at 646).

As the hospital's case was premised in large measure on opinion evidence which, in turn, was based on allegations of fact that were not supported by the trial record, we must conclude that the evidence preponderated in favor of the plaintiffs, and that their evidentiary position was particularly strong compared to that of the hospital. Therefore, substantial justice has not been done, the jury could not have reached its verdict in favor of the hospital on any fair interpretation of the evidence, and the verdict was, thus, contrary the weight of the evidence.

***

As there will be a new trial with respect to the hospital, we observe that the trial court correctly determined several evidentiary issues that arose during the trial. The trial court correctly determined that the former director of the hospital's Department of Obstetrics and Gynecology could not be compelled to provide expert testimony. That doctor was not named as a defendant, had no role whatsoever in the treatment of the mother and baby in this case, and was not subject to any liability in this case (see Jones v Cummings, 55 AD3d 677, 678-679; Piervinanzi v Bronx Cross County Med. Group, 244 AD2d 396, 396-397; Fristrom v Peekskill Community Hosp., 239 AD2d 315; cf. Latiff v Wyckoff Hgts. Hosp., 144 AD2d 650; Wilson v McCarthy, 57 AD2d 617). The trial court also correctly prohibited the plaintiffs from attempting to impeach the hospital's expert with a medical journal article which the expert had not accepted as authoritative (see People v Rose, 41 AD3d 742, 743; Lipschitz v Stein, 10 AD3d 634, 635; Labate v Plotkin, 195 AD2d 444, 445). Finally, the trial court providently exercised its discretion in permitting the plaintiffs to use one excerpt from the deposition transcript of the labor and delivery nurse, but in precluding the use of an additional excerpt in cross examining the hospital's obstetrical expert, as the plaintiffs could and should have elicited testimony concerning the issue addressed by the precluded excerpt during the direct examination of the plaintiffs' obstetrical expert (see Feldsberg v Nitschke, 49 NY2d 636; Pryce v Gilchrist, 51 AD3d 425, 426).

CPLR § 5511 and CPLR § 5701

CPLR § 5511 Permissible appellant and respondent

Santos v County of Westchester, 2011 NY Slip Op 01013 (App. Div., 2nd 2011)

The appeal by the County defendants must be dismissed. Since they did not oppose the City's cross motion before the Supreme Court, they are not aggrieved by the order appealed from (see CPLR 5511).

CPLR § 5701 Appeals to appellate division from supreme and county courts

Wright v Stam, 2011 NY Slip Op 01020 (App. Div., 2nd 2011)

ORDERED that the appeal from so much of the order as granted that branch of the motion which was to appoint a guardian ad litem on the plaintiff's behalf only to the extent of directing a hearing on that issue is dismissed, as no appeal lies as of right from an order directing a hearing to aid in the determination of a motion, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Zoref v Glassman, 44 AD3d 1036); and it is further,

ORDERED that the appeal from so much of the order as, sua sponte, directed the plaintiff to undergo a psychological evaluation is dismissed, as no appeal lies as of right from an order which does not determine a motion made on notice, and we decline to grant leave to appeal (see CPLR 5701[a][2]; Ciprijan v Stone, 65 AD3d 659); and it is further,

The bold is mine.

CPLR § 5019 and substantive rights

CPLR § 5019 Validity and correction of judgment or order; amendment of docket.

Mount Sinai Hosp. v Country Wide Ins. Co., 2011 NY Slip Op 01008 (App. Div., 2nd 2011)

The hospital then entered judgment against the insurer in satisfaction of that claim in the total sum of $25,327.50. The judgment consisted of benefits due the hospital for services rendered in the sum of $14,105.50, interest in the sum of $9,772, an attorney's fee in the sum of $850, and costs and disbursements in the sum of $600.

Thereafter, the insurer moved pursuant to CPLR 5019(a) to modify the amount of the judgment, belatedly asserting that the judgment exceeded the coverage limit of the subject policy due to payments previously made under the policy to other health care providers. The Supreme Court granted the insurer's motion, and ordered a hearing to determine the amount remaining on the policy. The plaintiffs appeal.

CPLR 5019(a) provides a court with the discretion to correct a technical defect or a ministerial error, and may not be employed as a vehicle to alter the substantive rights of a party (see Kiker v Nassau County, 85 NY2d 879, 880-881; Herpe v Herpe, 225 NY 323, 327; Rotunno v Gruhill Constr. Corp., 29 AD3d 772, 773; Haggerty v Market Basket Enters., Inc., 8 AD3d 618, 618-619; Novak v Novak, 299 AD2d 924, 925; Tait v Lattingtown Harbor Dev. Co., 12 AD2d 966, 967; see also Minnesota Laundry Serv., Inc. v Mellon, 263 App Div 889, 890, affd 289 NY 749; Fleming v Sarva, 15 Misc 3d 892, 895; Matter of Schlossberg v Schlossberg, 62 Misc 2d 699, 701). Here, in seeking to modify the amount of the judgment on the ground that the policy limits were nearly exhausted, the insurer was not seeking to correct a mere clerical error. Rather, it sought to change the judgment with respect to a substantive matter. As such, CPLR 5019(a) was not the proper procedural mechanism by which to seek such modification. Although the hospital raises this issue for the first time on appeal, we may review the issue because it presents a question of law which could not have been avoided if brought to the Supreme Court's attention at the proper juncture (see Gutierrez v State of New York, 58 AD3d 805, 807; Dugan v Crown Broadway, LLC, 33 AD3d 656, 656; Buywise Holding, LLC v Harris, 31 AD3d 681, 682).

The bold is mine.

I was looking around for this and realized that I never posted it.

Westchester Med. Ctr. v Philadelphia Indem. Ins. Co., 69 AD3d 613 (App. Div., 2nd 2010)

A defendant seeking to vacate a judgment entered upon its default in appearing and answering the complaint must demonstrate a reasonable excuse for its delay in appearing and answering, as well as the existence of a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673 [2008]). The Special Deputy Superintendent of the State of New York Insurance Department acknowledged service upon him of the summons and complaint in this matter and notified the defendant, through Debra Sutton at its Pennsylvania office, of service as effected above (see Insurance Law § 1212; Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958, 959 [2008]). In response, the defendant failed to meet its burden of showing a reasonable excuse for its failure to timely appear or answer the complaint and the existence of a meritorious defense. The affidavit of a senior claims examiner employed in the defendant's Texas office averred that there was no record of the summons and complaint in the defendant's computer system, but failed to demonstrate any knowledge of the office procedures employed in the handling of a summons and complaint received at the defendant's Pennsylvania office. Thus, that affidavit was insufficient to show that the failure to timely appear and answer was due to a clerical error which caused the summons and complaint to be overlooked (see Montefiore Med. Ctr. v Auto One Ins. Co., [*2]57 AD3d at 959; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]; Kaperonis v Aetna Cas. & Sur. Co., 254 AD2d 334 [1998]; cf. Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544 [2008]).

Furthermore, the defendant failed to set forth facts from an individual with personal knowledge sufficient to demonstrate the existence of a meritorious defense. The affidavit of the plaintiff's biller showed that the forms N-F5 and UB-92 relating to this matter were mailed on April 23, 2008, and signed for by the defendant on April 28, 2008. At that time, according to the defendant's own records, there were still sufficient funds remaining under the policy to pay this bill (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). In response, the defendant offered only the same aforementioned affidavit, which also averred that there was no record of the bill in question in the defendant's computer system. This was insufficient for a similar reason; that is, the affiant failed to show any knowledge of the office procedures employed in the handling of billing forms received at the defendant's Pennsylvania office (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517 [2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 968; see generally New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]; Peacock v Kalikow, 239 AD2d 188, 190 [1997]; cf. St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Accordingly, the defendant's motion to vacate the judgment entered upon its failure to appear or answer should have been denied.

The Supreme Court, in effect, denied, as academic, the plaintiff's motion to hold the defendant in contempt. In light of our determination, we remit the matter to the Supreme Court, Nassau County, for a determination on the merits of the plaintiff's motion.

The bold is mine.