CPLR § 3101 – Page 2

Motion to strike. Motion to quash

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101 Scope of disclosure

Jacobs v Johnston, 2012 NY Slip Op 05390 (2nd Dept. 2012)

Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and clearly demonstrated that the case was not ready for trial, that branch of the defendant's motion which was to vacate the note of issue and, in effect, to compel the deposition of a nonparty witness should have been granted (see CPLR 2103[b][2]; Gallo v SCG Select Carrier Group, L.P., 91 AD3d 714; Tirado v Miller, 75 AD3d 153, 157). Furthermore, since the defendant timely moved to vacate the note of issue, he was required only to demonstrate why the case was not ready for trial, and was not required to establish that additional discovery was necessary because unusual or unanticipated circumstances had developed subsequent to the filing of the note of issue (see 22 NYCRR 202.21[d], [e]; Mosley v Flavius, 13 AD3d 346; Rizzo v DeSimone, 287 AD2d 609, 610; Perla v Wilson, 287 AD2d 606; Audiovox Corp. v Benyamini, 265 AD2d 135, 139).

In opposition to the plaintiff's cross motion to quash the subpoena served by the defendant upon the nonparty witness, the defendant demonstrated, inter alia, that the disclosure sought was relevant, material, and necessary to the defense of the action (see CPLR 3101[a][4]; Kondratick v Orthodox Church in Am., 73 AD3d 708, 709; Tenore v Tenore, 45 AD3d 571, 571-572; [*2]Thorson v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper, Inc., 249 AD2d 374). Contrary to the plaintiff's contention, the defendant did not waive his right to seek discovery from the nonparty witness by failing to raise an objection with respect thereto at the certification conference. Since the identity of the nonparty witness was not made known to the defendant until after the date of the certification conference, and the defendant timely moved to vacate the note of issue, the defendant could not be deemed to have waived his right to compel the nonparty witness to comply with the subpoena and to appear for a deposition (cf. Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; James v New York City Tr. Auth., 294 AD2d 471, 472). Accordingly, the plaintiff's cross motion to quash the subpoena should have been denied.

Discovery of claims file CPLR 3101

CPLR § 3101 Scope of disclosure

Ural v Encompass Ins. Co. of Am, 2012 NY Slip Op 05407 (2nd Dept. 2012)

With respect to the parties' discovery issues, CPLR 3101(a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; Matter of Skolinsky, 70 AD3d 845; Riverside Capital Advisors, Inc. v First Secured Capital Corp., 292 AD2d 515). However, the discovery sought must be relevant to the issues at bar, with the test employed being "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). Regarding an entire set of discovery demands which are "palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" (id. at 621 [internal quotation marks omitted]).

Here, the plaintiff's discovery demands included production of Encompass's entire claim file for the subject water damage. The plaintiff asserts that Encompass only produced part of the claim file. In response, Encompass asserts that it withheld only those parts of the claim file that were produced in anticipation of litigation and thus were protected by work product privilege (see Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370). However, the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294) by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402). Here, Encompass's attorney's conclusory assertions were insufficient to satisfy this burden (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648; see also Agovino v Taco Bell 5083, 225 AD2d 569). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to compel Encompass to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a detailed privilege log (see CPLR 3122; Clark v Clark, 93 AD3d 812), and the matter must be remitted to the Supreme Court, Nassau County, for an in camera review of the allegedly privileged documents.

Although Encompass also failed to meet its burden of demonstrating that certain discovery demands involved undiscoverable trade secrets (see Hunt v Odd Job Trading, 44 AD3d 714, 716), aside from the claim file, the remaining discovery demands were nevertheless palpably improper in that they were overbroad, lacked specificity, or sought irrelevant information. Accordingly, the Supreme Court correctly denied that branch of the plaintiff's motion which was to compel Encompass to comply with these discovery demands (see Bell v Cobble Hill Health Ctr., Inc., 22 AD3d at 621).

Under the circumstances of this case, Encompass was not entitled to a protective order (see CPLR 3103).

Stipulations

Albert Jacobs, LLP v Parker, 2012 NY Slip Op 02819 (2nd Dept., 2012)

"[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569; see MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645). Here, the parties' written escrow agreement clearly enumerates certain conditions to the release of escrow funds. None of those conditions was met.

Altonen v Kmart of NY Holdings, Inc., 2012 NY Slip Op 02820 (2nd Dept., 2012)

The Supreme Court providently exercised its discretion in denying the defendants' cross motion to compel production of a confidential settlement agreement from certain prior personal injury actions unrelated to this action, as the settlement agreement is not material and necessary to their defense of this action (see CPLR 3101[a]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 70 AD3d 530; Matter of New York County Data Entry Worker Prod. Liab. Litig., 222 AD2d 381).

Experts

3101

2106

Rojas v Palese, 2012 NY Slip Op 02790 (1st Dept., 2012)

The jury's finding that defendant Palese deviated from the standard of care in causing plaintiff's aorta to tear during a laparoscopic donor nephrectomy was based on legally sufficient evidence and was not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]). Defendants' objections to the qualifications of plaintiff's vascular surgery expert go to the weight and not the admissibility of the expert's testimony (Williams v Halpern, 25 AD3d 467, 468 [2006]); the weight to be accorded to conflicting expert testimony is a matter for the jury (see Torricelli v Pisacano, 9 AD3d 291 [2004], lv denied 3 NY3d 612 [2004]).

Plaintiff's expert was properly allowed to testify as to future damages since there was no showing of a willful failure to disclose this testimony or of resulting prejudice to defendants (see CPLR 3101[d][1][i]; Colome v Grand Concourse 2075, 302 AD2d 251 [2003]). The videotape and photographs proffered by defendants were properly excluded; the limited probative value of a demonstration of Palese's performance of the same procedure on another patient was outweighed by the prejudicial effect of showing the jury the complexity of the surgery and the level of skill exhibited by Palese (see Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203, 205-206 [1989]).

Cruz v Rivera, 2012 NY Slip Op 02811 (1st Dept., 2012)

The unaffirmed MRI reports, which were referred to and not disputed by defendant's medical expert, and were relied upon by plaintiff's physician, were properly considered in opposition to the motion since they were not the sole basis for the findings of plaintiff's physician (see Rubencamp v Arrow Exterminating Co., Inc., 79 AD3d 509 [2010]).

Underbruckner Realty Corp. v Tax Commn. of the City of N.Y., 2012 NY Slip Op 02767 (1st Dept., 2012)

Petitioners rebutted the presumption of validity as to the existing tax assessments by presenting "substantial evidence" demonstrating "the existence of a valid and credible dispute regarding valuation" (see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 187-188 [1998]). The trial court's determination that petitioners' property has been overvalued is supported by a preponderance of the evidence (see id. at 188). Looking to the Medicaid reimbursement rate as a means to assess the value of a nursing home has been judicially recognized (see e.g. Tarrytown Hall Care Ctr. v Board of Assessors, Sup Ct, Westchester County, Mar. 4, 2004, Rosato, J., Index No. 14267/98).

Respondents' expert's assertion that the methodology he employed is the only way to assess the value of a nursing home's real estate runs afoul of the principle that "there is no fixed method for determining that value" (see Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992]). Courts are "under no compunction to . . . confine[] assessors to any one course" (see Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538, 541 [1978]). Furthermore, both the experts used the income capitalization approach, which calls for "the exercise of judgment by the appraiser," because the approach yields, "at best, no more than an estimate of the present worth of the benefits to be reaped from the property at issue" (id., 45 NY2d at 542). In addition, whether the apartment buildings relied upon by petitioners were valid "comparables" was a question of fact to be resolved by the trial court (see Matter of Miriam Osborn Mem. Home Assn. v Assessor of City of Rye, 80 AD3d 118, 144 [2010]).

It is true that respondents presented evidence upon which the court could reasonably have [*2]found that the Medicaid reimbursement rate (even as amended upward by non-Medicaid patient data) was not an accurate measure of market rent. However, in reducing the existing assessments in half, the court implicitly found that the market value numbers proffered by petitioners were below market and partially credited respondents' methodology, finding, however, that it produced above-market values for the respective tax years. Contrary to respondents' contention, the court did not improperly "split the difference." The court's valuations were "within the range of the trial evidence" (see Matter of Kips Bays Towers Condominium v Commissioner of Fin., 66 AD3d 506, 506-507 [2009], lv denied 14 NY3d 708 [2010]).

We also reject respondents' contention that the court failed to set forth "the essential facts found upon which the ultimate finding of facts [was] made" (RPTL 720[2]). While the court might have addressed the respective methodologies and calculations of the parties more specifically, it did state the essential fact: that both sides presented cogent arguments and that "the true valuation of the property is greater than that proposed by the Petitioner[s] and less than that proposed by the Respondents" (cf. Matter of Trinity Place Co. v Finance Adm'r of City of N.Y., 72 AD2d 274, 275 [1980], affd 51 NY2d 890 [1980]).

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept., 2012) (note the dissent)

Defendants made a prima facie showing of entitlement to judgment as a matter of law. The differences in the defense experts' range-of-motion findings are minor and both doctors concluded that plaintiff's range of motion is normal (see Feliz v Fragosa, 85 AD3d 417, 418 [2011]).

In opposing defendants' motions, plaintiff failed to offer a reasonable explanation for a significant gap in his medical treatment that was raised by the Bissessar defendants when they cross-moved for summary judgment. As the Court of Appeals held in Pommells v Perez (4 NY3d 566 [2005]), "a plaintiff who terminates therapeutic measures following the accident, [*2]while claiming serious injury,' must offer some reasonable explanation for having done so" (id. at 574).

Plaintiff's accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff's orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was "cut off" five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants' motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent's theory that "[i]njuries are not always treatable by physical therapy" is speculative and finds no support in the record.

Barry v Arias, 2012 NY Slip Op 02606 (1st Dept., 2012)

Plaintiffs Danielle Barry and Cherlynn Reeves allege that they sustained serious injuries as a result of their car being rear-ended by defendants' livery cab in July 2008. Defendants made a prima facie showing that neither plaintiff sustained a permanent or significant injury by submitting the affirmed reports of a neurologist and orthopedist who, based upon examinations of plaintiffs in November 2009 and February 2010, found no neurological deficits and full ranges of motion in both plaintiffs' cervical and lumbar spines, and in Barry's right knee, and concluded that any alleged injuries had resolved. Further, the affirmed MRI reports of defendants' radiologist noted an absence of evidence of recent trauma or acute injuries to the spines (see Porter v Bajana, 82 AD3d 488 [2011]; Amamedi v Archibala, 70 AD3d 449, 449 [2010], lv denied 15 NY3d 713 [2010]). The physicians' failure to review plaintiffs' medical records does not require denial of defendants' motion, as the doctors detailed the objective tests they employed during the examinations to find full ranges of motion, and the radiologist's finding of absence of recent trauma was based on an independent review of the MRI films (see Canelo v Genolg Tr. Inc., 82 AD3d 584 [2011]; Clemmer v Drah Cab Corp., 74 AD3d 660, 660-661 [2010]; DeJesus v Paulino, 61 AD3d 605, 607 [2009]).

Neither plaintiff raised a triable issue of fact to defeat summary judgment, as none of their medical evidence was submitted in admissible form. Their radiologists' and physiatrist's reports were unaffirmed (see CPLR 2106; Lazu v Harlem Group, Inc., 89 AD3d 435 [2011]; Pinkhasov v Weaver, 57 AD3d 334 [2008]). Although their chiropractor affirmed his reports, reports of chiropractors must be subscribed before a notary or other authorized official (see Shinn v Catanzaro, 1 AD3d 195, 197-198 [2003]; see also CPLR 2106).

Jean-Louis v Gueye, 2012 NY Slip Op 02612 (1st Dept., 2012)

Defendants met their prima facie burden with respect to the permanent consequential and significant limitation categories by offering the affirmation of an orthopedic surgeon who found normal ranges of motion for plaintiff's cervical spine, lumbar spine, left and right hips, and left and right knees (see Insurance Law § 5102[d]; Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Plaintiff raised an issue of fact in opposition by submitting the MRI reports of her lumbar spine showing bulges at L4-5 and L5-S1, of her cervical spine showing disc bulges at C5-C6, and a grade II tear of the MCL of plaintiff's right knee, along with the affirmation of her orthopedic surgeon stating that such injuries were caused by the accident or had been exacerbated thereby, and that each of those body parts suffered losses in their range of motion as a result of the accident.

We reject defendants' argument that the affirmation of plaintiff's orthopedic surgeon is rendered speculative because of his failure to reconcile the notation made on plaintiff's emergency room records indicating a full range of motion of her cervical spine. Those records are unaffirmed, fail to indicate any objective instruments or criteria used to make such a finding, and fail to compare normal values (see Pommells v Perez, 4 NY3d 566, 573-574 [2005]; Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [2010]; DeJesus v Paulino, 61 AD3d 605 [2009]). Further, contrary to defendants' arguments, plaintiff's orthopedic surgeon set forth an adequate basis for relating the accident as the cause of plaintiff's injuries or the exacerbation [*2]thereof (see Perl v Meher, 18 NY3d 208 [2011]). We also reject defendants' arguments pertaining to plaintiff's alleged gap in treatment because it is adequately explained by her orthopedic surgeon's finding that her improvement plateaued (see Pommells v Perez, 4 NY3d at 574; Mercado-Arif v Garcia, 74 AD3d 446 [2010]).

Martin v Kone, Inc., 2012 NY Slip Op 02564 (1st Dept., 2012)

In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual or constructive notice. There was no evidence that the prior incidents identified in the work tickets "were of a similar nature to the accident giving rise to this lawsuit" or "were caused by the same or similar contributing factors" (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 60-61 [2006]; see Levine v City of New York, 67 AD3d 510, 510-511 [2009]).

Plaintiff also failed to raise an issue of fact as to defendant's negligent maintenance since her expert's affidavit contained mere speculation, unsupported by any evidentiary foundation (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). The expert failed to provide the results of his "examination" of the elevator and elevator room, or identify the basis for his conclusion that plaintiff's accident was caused by defendant's failure to maintain the elevator in accordance with industry standards.

However, defendant's witness testified that he did not know what type of detector edge was on the elevator or whether the detector edge had multiple beams in it. Thus, there was no [*2]evidence in the record that plaintiff had access to the mechanism that would cause the door to retract (see Gutierrez v Broad Fin. Ctr. LLC, 84 AD3d 648 [2011]; Ianotta v Tishman Speyer Props., Inc., (46 AD3d 297, 298 [2007]), Therefore, defendant is not entitled to summary judgment.

Callistro v Bebbington, 2012 NY Slip Op 02423 (1st Dept., 2012)

Contrary to the dissent's contention, neither Dr. Halbridge's nor Dr. Roseman's opinion raises a triable issue as to causation, since each fails to address how the claimed departures could have caused the claimed cognitive delays. Dr. Halbridge failed to rebut Dr. D'Alton's key assertion that the normal values for plaintiff's umbilical cord gas were "entirely inconsistent" with hypoxic injury. Dr. Halbridge did not dispute Dr. D'Alton's opinion that the gas test results completely ruled out hypoxia or the fact that the hospital record attributes the first (low) Apgar score to the nuchal cord. Rather, he ambiguously stated that "loss of beat to beat variability coupled with late decelerations . . . enhance[] the likelihood that the fetus is undergoing significant hypoxia" (emphasis supplied) and that "[t]his occurred in the present case, notwithstanding the normal umbilical cord blood gas values that were obtained." Dr. Halbridge's statement amounted to bare conjecture, which lacks the "reasonable degree of medical certainty" required in an expert affidavit in a medical malpractice case (see Burgos v Rateb, 64 AD3d 530, 530 [2009]). Moreover, Dr. Halbridge ignored Dr. D'Alton's further point that plaintiff's [*3]discharge three days after his birth disproved his claimed injury. Finally, Dr. Halbridge did not explain how the December 11 neurosonogram, which indicated "possible" hemorrhages, could show that the plaintiff suffered permanent brain damage, as Dr. Roseman concluded, since a follow-up neurosonogram performed one month later showed no evidence of hemorrhaging.

Dr. Roseman opined in conclusory fashion that the hypoxic-ischemic stress and other trauma that occurred during the delivery resulted in permanent brain damage, primarily to the neocortex, which in turn caused plaintiff's speech and language disorder. However, Dr. Roseman failed to support this opinion with a radiological study of plaintiff's brain or any other medical record demonstrating brain damage other than language delay. Dr. Roseman's assertions that "[t]here is nothing in [plaintiff's] medical history, other than the abnormal labor and delivery, that would account for his deficits in speech and language" and that the deficits resulted from his permanent brain damage are entirely conclusory. In fact, the record shows that plaintiff's cousins suffer from similar language deficits.

Duran v Kabir, 2012 NY Slip Op 02173 (1st Dept., 2012)

In opposition, plaintiff submitted the affirmed reports of her physicians, who found limitations in the range of motion of plaintiff's cervical and lumbar spine shortly after the accident and approximately two years later. Plaintiff also submitted the MRI reports of a radiologist, who noted disc bulges in both the cervical and lumbar spine. This evidence raises triable issues of fact as to whether plaintiff sustained a "significant limitation of use" and "permanent consequential limitation of use" of the cervical and lumbar spine (Insurance Law § 5102[d]; see Fuentes v Sanchez, 91 AD3d 418 [2012]). While the MRI reports are unsworn, they are admissible, as the reports and MRI films were reviewed by one of plaintiff's physicians and were incorporated into the findings of plaintiff's doctors (see Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [2010]). Plaintiff adequately explained the gap in treatment by submitting the affirmed report of a doctor, who opined that plaintiff had "reached an endpoint" in her physical therapy, and that there was no evidence that she was actively improving therefrom (see Mitchell v Calle, 90 AD3d 584, 585 [2011]).

Experts and CPRL 3101

Jing Xue Jiang v Dollar Rent a Car, Inc., 2012 NY Slip Op 00183 (2nd Dept., 2012)

Contrary to the defendants' contentions, the Supreme Court did not err in declining to strike the testimony of the plaintiff's treating physician, Dr. Jeffrey Klein (see Logan v Roman, 58 AD3d 810; Butler v Grimes, 40 AD3d 569, 570; Krinsky v Rachleff, 276 AD2d 748, 750). A treating physician may give expert opinion testimony and may do so without prior notice pursuant to CPLR 3101(d) (see Hughes v Webb, 40 AD3d 1035, 1037; Hammond v Welsh, 29 AD3d 518, 519; Krinsky v Rachleff, 276 AD2d at 750).

Henry v New York City Tr. Auth., 2012 NY Slip Op 00839 (1st Dept., 2012)

The admission of plaintiff's dental testimony as to causation was proper. While the dentist did not render his opinion with "a reasonable degree of medical certainty," causation was established by his testimony, when considered in its entirety, and plaintiff's history of first noticing the loose teeth in the hospital following the accident (see Matott v Ward, 48 NY2d 455, 460 [1979]). The weight to be accorded to conflicting expert testimony was within the province of the jury (see Torricelli v Pisacano, 9 AD3d 291, 293 [2004], lv denied 3 NY3d 612 [2004]).

Carlton v St. Barnabas Hosp., 2012 NY Slip Op 00470 (1st Dept., 2012)

Third-party defendants made a prima facie showing — based on hospital records, deposition testimony and the affirmations of experts — that their treatment of plaintiff's late husband comported with good and accepted medical practice. Contrary to plaintiff's contention, the emergency medical physician's opinions were not conclusory (cf. Wasserman v Carella, 307 AD2d 225, 226 [2003]). In addition, plaintiff failed to preserve her argument that third-party defendants and their experts relied on inadmissible evidence (see Pirraglia v CCC Realty NY Corp., 35 AD3d 234, 235 [2006]), and we decline to review in the interest of justice. Were we to review it, we would reject it. Plaintiff does not challenge the accuracy or veracity of the decedent's uncertified medical records or the transcripts of her testimony. In fact, she relied on the medical records in opposition to the motions. [*2]

Plaintiff failed to raise an issue of fact in response to the motions. The affirmation of plaintiff's expert was conclusory, ignored the bulk of the record of the decedent's treatment in the emergency room, and was insufficient to contradict third-party defendants' expert. The defense offered expert testimony that, in light of decedent's symptoms and complaints, he was appropriately diagnosed with lumbosacral sprain/strain and possible radiculopathy, and referred to a neurologist (see Altmann v Molead, 51 AD3d 482, 483 [2008]). Plaintiff's claim that third-party defendants should have detected decedent's deep vein thrombosis was also conclusory and unsupported by the record (see id.; Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]).

Urbano v Rockefeller Ctr. N., Inc., 2012 NY Slip Op 00419 (1st Dept., 2012)

The affidavit of plaintiff's expert does not support plaintiff's theory since it is based on speculation rather than record facts (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).

Singer v Gae Limo Corp., 2012 NY Slip Op 00303 (1st Dept., 2012)

However, in support of his motion, defendant failed to submit any medical evidence addressing plaintiff's claim of serious injury based on piriformis syndrome and left sacroiliac joint syndrome in her pelvis/left buttock. Further, since defendant's experts examined her more than three years after the accident and did not address those claimed injuries, and defendant submitted no other evidence concerning plaintiff's condition in the 180 days following the accident, defendant also failed to meet his burden on plaintiff's 90/180-day claim (see e.g. Quinones v Ksieniewicz, 80 AD3d 506, 506-507 [2011]; Feaster v Boulabat, 77 AD3d 440, 441 [2010]). Since defendant did not meet his prima facie burden as to those claims, the burden did not shift to plaintiff and it is unnecessary to consider the sufficiency of her evidence in opposition (see Reyes v Diaz, 82 AD3d 484 [2011]; Shumway v Bungeroth, 58 AD3d 431 [2009]). If the trier of fact determines that plaintiff sustained a serious injury, it may award damages for all injuries causally related to the accident, even those that do not meet the threshold (see Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [2010]).

Grant v United Pavers Co., Inc., 2012 NY Slip Op 00239 (1st Dept., 2012)

Although plaintiff's physicians did not expressly address defendants' expert's conclusion that the injuries were degenerative in origin, by relying on the same MRI report as defendants' expert, and attributing plaintiff's injuries to a different, yet equally plausible cause, plaintiffs raised a triable issue of fact (see Lee Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [2011]; Linton v Nawaz, 62 AD3d 434, 440 [2009], affd 14 NY3d 821 [2010]). Although "[a] factfinder could of course reject this opinion" (Perl v Meher, __ NY3d __, 2011 NY Slip Op 08452 [2011]), we cannot say on this record, as a matter of law, that plaintiff's injuries had no causal connection to the accident.

Spagnoli-Scheman v Bellew, 2012 NY Slip Op 00005 (1st Dept., 2012)

The jury's verdict was based upon a fair interpretation of the evidence (see generally McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 205-206 [2004]). There was conflicting expert testimony regarding whether plaintiff Spagnoli-Scheman sustained serious injuries within the meaning of Insurance Law § 5102(d), and the jury was "entitled to accept or reject" the testimony of plaintiffs' experts "in whole or in part" (Crooms v Sauer Bros., Inc., 48 AD3d 380, 382 [2008]; see Crespo v Chan, 54 AD3d 621 [2008]).

Post accident repairs

CPLR § 4545 Admissibility of collateral source of payment

CPLR § 3101 Scope of disclosure

Stolowski v 234 E. 178th St. LLC, 2011 NY Slip Op 08222 (1st Dept., 2011)

Defendant bears the burden of establishing by clear and convincing evidence that it is entitled to an offset for any collateral source payment that represents reimbursement for a category of loss that corresponds to a category of loss for which damages are awarded in this action (see CPLR 4545; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81 [1995]. Thus, disclosure of the death benefits that were or will be received by plaintiffs Bellew and Meyran is material and necessary in defense of this action (see CPLR 3101). The collateral source hearing at which a defendant has the opportunity to make the above showing is held after a verdict has been rendered in the plaintiff's favor. However, "[p]retrial discovery is available so defendants can acquire information and documents that may later be used to support a motion for a collateral source hearing" (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 35 [2008], lv denied 11 NY3d 705 [2008]).

The records of defendant's post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence (see Fernandez v Higdon El. Co., 220 AD2d 293 [1995]). Contrary to plaintiffs' contentions, "general credibility impeachment" is not an exception. Control is not at issue here since defendant concedes that it owns the premises (see Hyman v Aurora Contrs., 294 AD2d 229 [2002]). The fire department's full investigation of the fire, which produced diagrams and photographs, provides evidence of the existence of a defective condition (compare Mercado v St. Andrews Hous. Dev. Fund Co., 289 AD2d 148 [2001] [plaintiff entitled to seek disclosure of post-accident repairs or modifications where defective condition of sidewalk could not be proven otherwise]; Longo v Armor El. Co., 278 AD2d 127 [2000] [same; parts removed during repair of defective elevator were discarded]).

The Facebook case

CPLR § 3101

Patterson v Turner Constr. Co., 2011 NY Slip Op 07572 (1st Dept., 2011)

Plaintiff claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life. Although the motion court's in camera review established that at least some of the discovery sought "will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Abrams v Pecile, 83 AD3d 527, 528 [2011] [internal quotation marks and citation omitted]), it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action (see Offenback v L.M. Bowman, Inc., 2011 WL 2491371, *2, 2011 US Dist LEXIS 66432, *5-8 [MD Pa 2011]). Accordingly, we reverse and remand for a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.

The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access (Romano v Steelcase Inc., 30 Misc 3d 426, 433-434 [2010]), just as relevant matter from a personal diary is discoverable (see Faragiano v Town of Concord, 294 AD2d 893, 894 [2002]).

Dismissal of the appeal from the January 24, 2011 order is warranted because the order does not affect a substantial right and is not otherwise appealable as of right (see Marriott Intl. v Lonny's Hacking Corp., 262 AD2d 10 [1999]; Garcia v Montefiore Med. Ctr., 209 AD2d 208, 209 [1994]; CPLR 5701[a][2][v]).

The last time I posted about facebook was in 2010–Romano v Steelcase Inc., 2010 NY Slip Op 06620 (Supreme Court, Suffolk County 2010). It looks like there was an appeal in Romano, but it was dismissed.

Expertly Fryed and a little precluded

Matter of Bausch & Lomb Contact Lens Solution Prod. Liab. Litig., 2011 NY Slip Op 06460 (1st Dept., 2011)

Plaintiffs failed to meet their burden of showing at the Frye hearing (Frye v United States, 293 F 1013 [1923]) that their experts' opinions that defendant's soft contact lens solution ReNu with MoistureLoc (Renu ML) was causally related to a rise in non-Fusarium corneal infections were generally accepted by the relevant medical or scientific community (see Pauling v Orentreich Med. Group., 14 AD3d 357 [2005], lv denied 4 NY3d 710 [2005]; Lara v New York City Health & Hosps. Corp., 305 AD2d 106 [2003]; see also Marso v Novak, 42 AD3d 377 [2007], lv denied 12 NY3d 704 [2009]). They submitted no "controlled studies, clinical data, medical literature, peer review or supporting proof" of their theory (Saulpaugh v Krafte, 5 AD3d 934, 936 [2004], lv denied 3 NY3d 610 [2004]; Lara, 305 AD2d at 106).

Plaintiffs' experts contended that testing showed a reduced biocidal efficacy of ReNu ML under certain conditions. The experts then extrapolated from those results the conclusion that ReNu ML increased the risk of non-Fusarium infections. However, one of the experts stated in a published article that "contamination is not consistently correlated with a higher rate of microbial keratitis" (Levey and Cohen, Methods of Disinfecting Contact Lenses to Avoid Corneal Disorders, Survey of Ophthalmology, Vol. 41, No. 3, at 296 [1996]). In addition, from a certain study in which a film was found to protect Fusarium, plaintiffs' experts concluded that the film similarly would protect other microorganisms. However, plaintiffs' microbiologist conceded that different types of microorganisms have different needs and respond differently to different conditions.

Moreover, despite four studies conducted on keratitis infections during the relevant period, plaintiffs introduced no epidemiological evidence of a rise in non-Fusarium infections. The court properly excluded plaintiffs' epidemiologist from explaining this lack of an epidemiological signal, because the testimony had not been previously disclosed by plaintiffs and would have surprised defendant. Additionally, plaintiffs failed to demonstrate good cause for their failure to disclose the testimony (see CPLR 3101[d]; LaFurge v Cohen, 61 AD3d 426 [2009], lv denied 13 NY3d 701 [2009]; Peguero v 601 Realty Corp., 58 AD3d 556, 564 [2009]).

The court properly quashed plaintiffs' subpoena of defendant's expert and former chief medical officer, because the expert had been deposed on three occasions, and plaintiffs failed to articulate any legitimate need for his live testimony (see Pena v New York City Tr. Auth., 48 AD3d 309 [2008]).

Nonnon v City of New York, 2011 NY Slip Op 06463 (1st Dept., 2011)

The Frye test is not concerned with the reliability of a particular expert's conclusions, but rather, with "whether the expert['s] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable" (Nonnon I, 32 AD3d at 103 [internal quotation marks omitted]). General acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion, but that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in reaching their conclusions.

***

Thus, so long as plaintiffs' experts have provided a "scientific expression" of plaintiff's exposure levels, they will have laid an adequate foundation for their opinions on specific causation (Jackson, 43 AD3d at 602 [internal quotation marks omitted]). For example, in Jackson, the court found that the plaintiffs' expert had laid a sufficient foundation for his opinion on causation where, inter alia, the expert was directly involved in the investigation of the potential health consequences of the underlying incident; co-authored a report based on the investigation and research that had been published in a peer-reviewed medical journal, comparing the facts of the incident to those recorded in other studies; and opined that the manner in which DEAE had been fed into the steam system prior to the leak caused concentrated levels of the toxin to be released and that plaintiffs' symptoms were caused by DEAE exposure in a building.

Salman v Rosario, 2011 NY Slip Op 06323 (1st Dept., 2011)

Most important, plaintiff's orthopedic surgeon, Dr. Ehrlich, who performed arthroscopic surgery on plaintiff's knee only four months after the accident, opined that "to a reasonable degree of medical certainty, the motor vehicle accident of 11/28/05 is the proximate cause of her condition, and not from a pre-existing or long standing degenerative process." Plaintiff's surgeon based this conclusion on his observations of plaintiff's knee during surgery (documented in the operative report plaintiff submitted on the original motion) and because plaintiff's MRI films (plaintiff submitted the MRI report on the original motion) did not depict the existence of osteophytes, show evidence of spondylosis or show other symptoms of degenerative processes. Thus, plaintiff's surgeon countered defendant's orthopedist's observation that plaintiff's injuries had no traumatic basis. Plaintiff's surgeon also documented range-of-motion limitations in the knee. Dr. Mian, who also conducted an orthopedic examination in 2008 and found deficits in plaintiff's range of motion, opined that the right knee tear was causally related to the accident. Thus, the evidence more than amply raised an issue of fact as to whether plaintiff had sustained a "serious injury" of a permanent nature to the right knee within the meaning of Insurance Law Section 5102(d).

Plaintiff's objective evidence of injury, four months post-accident, was sufficiently contemporaneous to establish that plaintiff had suffered a serious injury within the meaning of the statute. Dr. Ehrlich based his conclusions in large part on his actual observations of plaintiff's knee during the surgery he performed. This conclusion is significant because the doctor was able to see exactly what the injuries were. Moreover, in her affidavit, plaintiff stated that, prior to surgery, she had physical therapy five times a week for three months. It is not unreasonable to try to resolve an injury with physical therapy before resorting to surgery. The circumstances, i.e., plaintiff's initial medical exam that was close in time to the accident, her intensive physical therapy, her young age and eventual surgery, make the four months between the accident and plaintiff's objective medical evidence sufficiently contemporanous to withstand a motion for summary judgment (see Gonzalez v Vasquez, 301 AD2d 438 [2003] [examining physician's affirmation correlating motorist's neck and back pain two years after rear-end collision to quantified range of motion limitations found on physical examination and bulging and herniated discs described in MRI reports, and opining that motorist's symptoms were permanent, raised genuine issue of material fact as to whether motorist suffered serious injury]; see also Rosario v Universal Truck & Trailer Serv., 7 AD3d 306, 309 [2004]).

However, defendants did establish, prima facie, that plaintiff did not suffer a 90/180-day injury, and plaintiff failed to raise a triable issue of fact, given her testimony that she was out of work for only three days (see Pou v E & S Wholesale Meats, Inc., 68 AD3d 446, 447 [2009]).

All concur except Román, J. who dissents in a memorandum as follows:

ROMÁN, J. (dissenting)

To the extent that the majority concludes that renewal of the motion court's order granting summary judgment in favor of Kanate was warranted, and that upon renewal Garcia's evidence precluded summary judgment, I dissent. Here, renewal would only have been warranted in the interest of justice, and to the extent that Garcia's evidentiary submission on renewal failed to establish any injury contemporaneous with her accident, renewal should have been denied.

To the extent that Garcia submitted medical evidence failing to establish treatment earlier than January 25, 2006, two months after this accident, Garcia failed to raise a triable issue of fact as to whether she sustained a serious injury because she failed to submit competent and admissible medical evidence of injury contemporaneous with her accident (see Ortega v Maldonado, 38 AD3d 388, 388 [2007]; Toulson v Young Han Pae, 13 AD3d 317, 319 [2004]; Alicea v Troy Trans, Inc., 60 AD3d 521, 522 [2009]; Migliaccio v Miruku, 56 AD3d 393, 394 [2008]). Accordingly, the motion court properly granted Kanate's initial motion for summary judgment with respect to all categories of injury under Insurance Law § 5102.

On her motion to renew, seeking to remedy shortcomings in her prior submission, Garcia tendered, inter alia, medical records, not previously submitted, purportedly evincing medical treatment contemporaneous with her accident. Specifically and to the extent relevant here, on renewal Garcia submitted records evincing a medical examination occurring a month after her accident. Nothing submitted competently evinced medical treatment at anytime prior thereto. A motion to renew "must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court" (Foley v Roche, 68 AD2d 558, 568 [1979]). However, when the proponent of renewal seeks to proffer new evidence of which he/she was previously aware but did not provide to the court on a prior motion, renewal may be granted if the interest of justice so dictate (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376-377 [2001]; Mejia v Nanni, 307 AD2d 870, 871 [2003]). Generally, the interest of justice require renewal when the newly submitted evidence changes the outcome of the prior motion. Here, Garcia sought renewal in order to have the motion court consider evidence previously known to her. Accordingly, renewal would have only been warranted if it served the interest of justice. At best, Garcia's medical evidence of injury on renewal established medical treatment beginning no sooner than a month after her accident. A medical examination occurring a month after an accident is not contemporaneous. Given its plain and ordinary meaning, contemporaneous means "existing, happening in the same period of time" (Webster's New World Dictionary 300 [3rd college ed 2004]). Accordingly, insofar as Garcia's evidence on renewal did not evince medical treatment contemporaneous with the accident, renewal in the interest of justice should have been denied.

The majority takes the untenable position that not only is Garcia's medical examination, occurring a month after the accident, contemporaneous with her accident, but paradoxically that the report of her surgeon, who did not see plaintiff for the first time until four months after her accident, is sufficient to establish the causal link between Garcia's knee injury and her accident such that she raised an issue of fact precluding summary judgment in Kanate's favor. First, if a medical examination occurring one month after an accident is not contemporaneous, then an examination occurring four months after an accident is certainly less so (Mancini v Lali NY, Inc., 77 AD3d 797, 798 [2010] [medical findings made by plaintiff's doctor four months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]); Resek v Morreale, 74 AD3d 1043, 1044-145 [2010] [medical findings made by plaintiff's doctor five months after his accident not sufficiently contemporaneous with the accident to establish a serious injury]). Moreover, even if we assume that this report was temporally contemporaneous with her accident, it was nevertheless bereft of any objective, qualitative, or quantitative evidence of injury to her knee (Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]; Thompson v Abassi, 15 AD3d 95, 98 [2005]). Second, contrary to the majority's assertion, the report of Garcia's orthopedist might have been probative as to her knee injury on the date he performed surgery, but standing alone, his observations on that date could not have been probative as to whether that injury was caused by this accident (see Pommells v Perez, 4 AD3d 101, 101-102 [2004], affd 4 NY3d 566 [2005] [medical opinion as to causation is speculative when the record is bereft of any evidence establishing contemporaneous medical treatment and the doctor proffering opinion sees plaintiff for the first time after a substantial period of time since the accident]; Vaughan v Baez, 305 AD2d 101, 101 (2003); Shinn v Catanzaro, 1 AD3d 195, 198-199 [2003]; Komar v Showers, 227 AD2d 135, 136 [1996]).

The majority relies on two cases in support of its holding, Gonzalez v Vasquez (301 AD2d 438 [2003]) and Rosario v Universal Truck & Trailer Serv., Inc. (7 AD3d 306 [2004]), neither of which bears on the issue of contemporaneous medical treatment and both of which, to the extent that they allow a doctor to establish causation upon an initial examination conducted a substantial time after an accident, are at odds with Vaughan, Shinn, Komar and Pommells.

***

Footnote 1:Although the records from Dr. Cordaro's office are unsworn, it is of no moment. The documents are properly certified as business records (see Mayblum v Schwarzbaum, 253 AD2d 380 [1998]; CPLR 4518[a]), and are referenced only to show plaintiff's complaints and the doctor's referral rather than a medical opinion about a causal relation to the accident.

Matter of New York City 5201-Asbestos Litig., 2011 NY Slip Op 06296 (1st Dept., 2011)

Colgate seeks to question Dr. Sanborn about a hobby allegedly involving asbestos that she mentioned in her consultation note on Karen Tedrick. Dr. Sanborn wrote that "[Tedrick's] father had some sort of hobby activity or other project in the family basement as the patient was growing up, which the patient's brother reports did involve having asbestos in the basement." Tedrick's brother, Richard Konopka, has already been deposed, however, and testified that this hobby referred to a chemistry set that he owned as a teenager. Because the information sought from Dr. Sanborn is available from another source, we agree with the motion court that Dr. Sanborn's deposition should not be compelled (see Ramsey v New York Univ. Hosp. Ctr., 14 AD3d 349 [2005]; CPLR 3101[a][3]; 3101[a][4]).

Lugo v New York City Health & Hosps. Corp., 2011 NY Slip Op 06475 (2nd Dept., 2011)

A running theme throughout the Frye hearing was whether the experts considered the medical literature they had reviewed to be "authoritative." Although both Dr. Katz and Dr. Peyster testified that they did not consider any of the literature they had discussed to be "authoritative," Dr. Katz testified that the Volpe textbook and the articles he had addressed were the sources he would consult for the current science in the areas discussed at the hearing. Dr. Peyster testified that he did not consider any medical literature, including his own book, to be "authoritative" because that term implied that everything in the article or study was correct and was not subject to any further changes. Dr. Peyster's reluctance to apply this label to medical literature was echoed by the defendant's expert Dr. Jahre, who agreed that this term was not used frequently to describe medical literature and that doctors relied upon articles not considered to be "authoritative" to assess the state of the science.

***

In addition, we disagree with the Supreme Court's conclusion that the theory of causation espoused by the plaintiffs' experts lacked an adequate foundation for admissibility. "The Frye inquiry is separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case" (Parker v Mobil Oil Corp., 7 NY3d 434, 447; see People v Wesley, 83 NY2d at 428-429; Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 601). "The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial" (People v Wesley, 83 NY2d at 429). "The foundation . . . should not include a determination of the court that such evidence is true. That function should be left to the jury" (id. at 425).

****

The Supreme Court's conclusion that the opinion of the plaintiffs' experts lacked an adequate foundation rested largely on its findings that the evidence presented at the Frye hearing established that perinatal ischemia or hypoxia is the overwhelming cause of PVL and that the testimony of the plaintiffs' experts did not eliminate other "more likely possible causes" of Lugo's PVL. In relying upon such reasoning, the Supreme Court, in effect, rendered an assessment as to the ultimate merit of the opinion testimony of the plaintiffs' experts (see People v Wesley, 83 NY2d at 425). Clearly, numerous factual disagreements between the parties' experts were highlighted at the Frye hearing, including, but not limited to, the specific appearance of Lugo's brain MRI abnormalities and their cause. However, these factual disagreements go to the weight to be accorded to the testimony of the plaintiffs' experts by the trier of fact, and not the admissibility of such testimony (see Jackson v Nutmeg Tech., Inc., 43 AD3d at 602).

Experts Shmexperts

CPLR § 3101(d)

Rost v Stolzman, 81 AD3d 1401 (App. Div. 4^th 2011)

We note that, in reaching our determination, we have disregarded the affidavit of the accident reconstruction expert submitted in support of the motion inasmuch as the conclusions asserted therein "are speculative or unsupported by any evidentiary foundation" (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; see Ciccarelli v Cotira, Inc., 24 AD3d 1276 [2005]). Even assuming, arguendo, that the affidavit was supported by an evidentiary foundation, we conclude that the court properly denied the motion because there is a triable issue of fact whether Martino drove in a lawful and prudent manner immediately before the accident (see Bulls, 71 AD3d at 1409; Fratangelo, 294 AD2d 880; see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784, 829 [1980]).

Jean-Louis v City of New York, 2011 NY Slip Op 06094 (2^nd Dept., 2011)

The Supreme Court properly denied the NYCTA's motion to preclude the testimony of the plaintiff's expert. Generally, the admission of expert testimony is a matter that lies within the sound discretion of the trial court (see Berger v Tarry Fuel Oil Co., 32 AD3d 409, 409). Here, the plaintiff's expert helped clarify the issue of whether the I-beams constituted a dangerous condition, which called "for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (De Long v County of Erie, 60 NY2d 296, 307).

Sushchenko v Dyker Emergency Physicians Serv., P.C., 2011 NY Slip Op 06101 (2^nd Dept., 2011)

The trial court providently exercised its discretion in precluding the plaintiffs' expert witness from testifying regarding causation on the ground that proper CPLR 3101(d) disclosure was not provided (see Schwartzberg v Kingsbridge Hgts. Care Ctr., 28 AD3d 463, 464; Hubbard v Platzer, 260 AD2d 605; Rassaei v Kessler, 252 AD2d 577; cf. McGlauflin v Wadhwa, 265 AD2d 534. Proper disclosure of an expert neurologist who was to testify on the subject of causation was not provided to the respondents until several days after the trial had commenced (see Schwartzberg v Kingsbridge Hgts. Care Ctr., 28 AD3d at 464-465; Hubbard v Platzer, 260 AD2d at 605; Rassaei v Kessler, 252 AD2d at 577). The plaintiffs failed to show good cause for this untimely disclosure (see Quinn v Artcraft Constr., 203 AD2d 444, 445; Corning v Carlin, 178 AD2d 576, 577).

Expert testimony is necessary to prove a deviation from the accepted standard of medical care and to establish proximate cause where, as here, the matter is not within the experience of the ordinary juror (see Lyons v McCauley, 252 AD2d 516, 517). When the testimony of a necessary expert witness is precluded, and it is therefore impossible to make out a prima facie case, it is proper to dismiss the complaint (see Bickford v St. Francis Hosp., 19 AD3d 344, 346; Rossi v Matkovic, 227 AD2d 609; Kalkan v Nyack Hosp., 214 AD2d 538, 539). The complaint was, therefore, properly dismissed insofar as asserted against the respondents pursuant to CPLR 4401 (see Szczerbiak v Pilat, 90 NY2d 553, 556; Godlewska v Niznikiewicz, 8 AD3d 430, 431; Smith v Vosburgh, 176 AD2d 259).

Sparks v Detterline, 2011 NY Slip Op 06025 (2^nd Dept., 2011)

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852; Zuckerman v City of New York, 49 NY2d 557, 559). The conclusion set forth in the affirmed report of the defendant's examining physician, Dr. Jeffrey S. Oppenheim, that the plaintiffs' complaints were subjective in nature and that she had "no objective identifiable neurological deficit, and therefore, no objective neurological disability," was conclusory, speculative, and insufficient to establish the defendants' prima facie entitlement to judgment as a matter of law, as Dr. Oppenheim conducted no objective range-of-motion testing (see Borras v Lewis, 79 AD3d 1084; Powell v Prego, 59 AD3d 417, 418-419; cf. Conder v City of New York, 62 AD3d 743. Further, Dr. Oppenheim's assertion that the plaintiff, during his examination of her, was "essentially unable" to move her neck in any direction "in any significant way that would allow for a definition of range of motion testing" suggests that any limitation was not insignificant (cf. Kharzis v PV Holding Corp., 78 AD3d 1122; Kjono v Fenning, 69 AD3d 581). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

3101, Disclosure, Experts, and Expert rebuttal not required (last decision)

CPLR R. 4401 Motion for judgment during trial

CPLR § 3101 Scope of disclosure

CPLR § 3103

Motion not made on notice

CPLR R. 3108 Written questions; when permitted

Botwinik v Moseson, 2011 NY Slip Op 04809 (App. Div., 1st 2011)

Judgment, Supreme Court, Nassau County (F. Dana Winslow, J.), entered on or about September 28, 2009, in favor of defendants, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about May 18, 2009, which granted defendants' oral motion in limine to preclude the testimony of plaintiff's expert and dismiss this medical malpractice action, unanimously reversed, on the law without costs, the motion denied, and the complaint reinstated.

In making their oral motion, after the jury was empaneled and before opening arguments, defendants argued that plaintiff's proposed expert, though a highly qualified registered nurse, lacked the necessary qualifications to give a medical opinion as to the requisite standard of informed consent (see CPLR 4401-a; Orphan v Pilnik, 15 NY3d 907 [2010]).

In opposition, plaintiff relied partially upon the deposition testimony of the defendant doctor which was not before the court, and the CPLR 3101(d) disclosure of the nurse's opinion. In addition, plaintiff orally cross-moved to substitute the testimony of a medical doctor for the testimony of the nurse, if the court ruled that plaintiff's offer was inadequate to establish the requisite prima facie claim. Apparently the court gave plaintiff's counsel a break to research the issue of the nurse's qualification to give an opinion under New York law, but did not read the deposition testimony. The court granted defendants' in limine motion and sub silentio denied plaintiff's.

CPLR 4401-a states that "[a] motion for judgment at the end of the plaintiff's case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent
if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent" (emphasis added).

The grant of dismissal pursuant to CPLR 4401-a was an abuse of discretion, given that the timing of defendants' oral application was not at the end of plaintiff's case, the record on which the court ruled was sparse and the court failed to consider plaintiff's offer to substitute a medical doctor's opinion for the nurse's (see Jean-Louis v City of New York, 60 AD3d 737, 738 [2009] [court erred in dismissing the complaint before the plaintiff had completed her proof]; Greenbaum v Hershman, 31 AD3d 607 [2006] ["plaintiff should have been afforded the opportunity to conclude her case" and present expert medical testimony regarding the qualitative insufficiency of her consent]).

Because defendants chose to move orally as opposed to making a formal motion on notice, plaintiff had little opportunity to develop a full record and be heard. Moreover, courts favor disposition of cases on the merits rather than on oral application made after a jury is impaneled and waiting (see Murray v Brookhaven Mem. Hosp. Med. Ctr, 73 AD3d 878, 879 [2010]; Williams v Naylor, 64 AD3d 588, 589 [2009]).

Accordingly, we reverse, deny defendants' motion and reinstate the complaint.

Coventry Real Estate Advisors, L.L.C. v Developers Diversified Realty Corp., 2011 NY Slip Op 04750 (App. Div., 1st 2011)

The motion court providently exercised its discretion in denying plaintiffs' motion for the issuance of commissions pursuant to CPLR 3108, since they failed to demonstrate that commissions were "necessary or convenient" (CPLR 3108; Reyes v Riverside Park Community [Stage I], Inc., 59 AD3d 219, 219 [2009]). The motion court stated that plaintiffs could submit new papers if they wanted commissions for out-of-state depositions on a topic other than uncharged crimes; hence, the current appeal concerns only uncharged crimes. Although "a witness may be cross-examined [at trial] with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility" (Badr v Hogan, 75 NY2d 629, 634 [1990]), here, due to the affidavits plaintiffs obtained, they already have a good-faith basis to cross-examine an executive of one of the defendants about an uncharged crime. If the executive denies the uncharged crime, plaintiffs will not be allowed to use extrinsic evidence solely to impeach his credibility (see People v Schwartzman, 24 NY2d 241, 245 [1969], cert denied 396 US 846 [1969]).

We reject plaintiffs' argument that they can use evidence of the uncharged crime and a cover-up thereof to show intent for their fraud claim.

Plaintiffs failed to preserve their argument that the motion court should have considered a protective device pursuant to CPLR 3103, rather than deny its motion in its entirety, and we decline to consider it.

Because the first four pages of the anonymous document concern the uncharged crime, for the reasons stated above, the motion court providently exercised its discretion in denying plaintiff's motion to use those pages in discovery. The pages are also not discoverable because they are privileged (see CPLR 3101[b],[c]; 4503). However, the last page is not privileged, and it has relevance beyond the uncharged crime since it alleges that an executive of one of the defendants ordered a "data dump" on his computer. Indeed, plaintiffs may use the last page to discover if the executive deleted from his computer material relevant to this case. Accordingly, plaintiffs are entitled to use the last page in discovery.

Accent Collections, Inc. v Cappelli Enters., Inc., 2011 NY Slip Op 04609 (App. Div., 2nd 2011)

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" should be interpreted liberally, and the test is one of "usefulness and reason" (Kooper v Kooper, 74 AD3d 6, 10 [internal quotation marks omitted]). Unlimited disclosure, however, is not required (see Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460), and the rules provide that the court may issue a protective order "denying, limiting, conditioning or regulating the use of any disclosure device" to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]).

Generally, the supervision of disclosure is left to the broad discretion of the trial court, which must balance the parties' competing interests (see Kooper v Kooper, 74 AD3d at 17; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460). On appeal, "this Court has the authority to review a discovery order to determine whether the trial court has abused its discretion as a matter of law, or in the absence of abuse, has exercised its discretion improvidently" (Kooper v Kooper, 74 AD3d at 17).

A motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Paradis v F.L. Smithe Mach. Co., Inc., 25 AD3d 594). While the failure of a party to challenge the propriety of a notice for discovery and inspection within the time prescribed by the CPLR forecloses inquiry into the propriety of the information sought, there is an exception with regard to requests that are palpably improper (see Otto v Triangle Aviation Servs., 258 AD2d 448; see also During v City of New Rochelle, N.Y., 55 AD3d 533; Velez v South Nine Realty Corp., 32 AD3d 1017; Cipriano v Righter, 100 AD2d 923).

Here, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff's motion which were to compel the defendants to produce responsive documents and information in response to the plaintiff's interrogatories one through five and demands one through four, and in denying that branch of the motion which sought an order deeming the defendants' objections waived, as the demands and interrogatories at issue were palpably improper, because they sought irrelevant information, or were overbroad and/or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Velez v South Nine Realty Corp., 32 AD3d 1017; Otto v Triangle Aviation Servs., 258 AD2d 448).

The Supreme Court providently denied that branch of the plaintiff's motion which sought costs and attorneys' fees, as the plaintiff failed to demonstrate that the defendants' conduct was frivolous (see 22 NYCRR 130-1.1[c]), and also providently denied those branches of the motion which were to deem the issues resolved in favor of the plaintiff and/or strike the defendants' second amended answer, since there was no showing that the defendant's conduct was willful and contumacious (see Nieves v City of New York, 35 AD3d 557; Brandes v North Shore Univ. Hosp., 22 AD3d 778; Jenkins v City of New York, 13 AD3d 342; Fellin v Sahgal, 268 AD2d 456).

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

Plaintiffs were not required to produce an expert to refute defendant's expert's conclusions (see e.g. Hendricks v Baksh, 46 AD3d 259 [2007]).