theCPLRblog

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.

Notice of appeal limits review

State Farm Mut. Auto. Ins. Cos. v Jaenecke, 2011 NY Slip Op 01219 (App. Div., 4th 2011)

Plaintiff commenced this action seeking a declaration that it is not obligated to defend or indemnify Zachary J. Jaenecke and Peter J. Jaenecke (defendants) in the underlying personal injury action commenced by defendants Gary L. Coons and Ann M. Coons. We note at the outset that the challenge by defendants to that part of the order and judgment declaring that "any bodily injury or damage to Gary L. Coons and Ann M. Coons was not caused by an accident resulting from the ownership, maintenance or use of the Jaenecke vehicle" is not properly before us. "An appeal from only part of an order [and judgment] constitutes a waiver of the right to appeal from other parts [thereof]" (Johnson v Transportation Group, Inc., 27 AD3d 1135, 1135). Here, defendants limited their notice of appeal to that part of the order and judgment denying their motion during trial seeking a declaration that plaintiff was obligated to defend and indemnify them based on plaintiff's alleged failure to comply with Insurance Law § 3420 (d), and thus our review is limited to that issue (see Matter of Violet Realty, Inc. v City of Buffalo Planning Bd., 20 AD3d 901, 903-904, lv denied 5 NY3d 713). We conclude that Supreme Court properly denied the motion and determined that plaintiff "was not required by Insurance Law § 3420 (d) to issue a disclaimer in a timely fashion because its denial of coverage was based upon a lack of coverage and not a policy exclusion" (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699).

Supplemental BP is not a disclosure device: CPLR § 3102

CPLR § 3102 Method of obtaining disclosure

Kellerson v Asis, 2011 NY Slip Op 01191 (App. Div., 4th 2011)

We reject defendant's further contention that plaintiffs improperly served a supplemental bill of particulars after the note of issue was filed and defendant had moved for summary judgment dismissing the complaint. "A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than [30] days prior to trial," so long as the continuing damages and disabilities are an anticipated sequelae of the injuries described in the original bill of particulars (CPLR 3043 [b]; see Tate v Colabello, 58 NY2d 84, 86-87). Here, plaintiffs' supplemental bill of particulars merely expanded upon the continuing disabilities alleged in the original bill of particulars and did not set forth a new legal theory of liability or new injuries (see Tate, 58 NY2d at 87). Early on in treatment, plaintiff's orthopedic surgeon specifically mentioned the possibility of a meniscal tear, and plaintiffs disclosed that statement in the original bill of particulars. Defendant contends that plaintiffs were not permitted to serve a supplemental bill of particulars after she had moved for summary judgment because her motion effectively stayed disclosure (see CPLR 3214 [b]). That contention is without merit inasmuch as a supplemental bill of particulars is not a disclosure device pursuant to CPLR 3102 (a).

Lawyer for Non-Party Witnesses? No. (CPLR R. 3113)

CPLR R. 3113. Conduct of the examination

This decision was first posted over at No-Fault Defender, but received more thorough treatment over at the New York Personal Injury Blog.  Head over to both.  Make sure to read the comments at NYPIB.

Thompson v Mather, 2010 NY Slip Op 01239 (App. Div., 4th, 2010)

We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." Although counsel for the physicians correctly conceded at oral argument of plaintiff's motion in Supreme Court that she had no right to object during or to participate in the trial of this action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. We cannot agree that there is such a distinction, based on the express language of CPLR 3113 (c). Indeed, we discern no distinction between trial testimony and pre-trial videotaped deposition testimony presented at trial. We note in addition that 22 NYCRR 202.15, which concerns videotaped recordings of civil depositions, refers only to objections by the parties during the course of the deposition in the subdivision entitled "Filing and objections" (see 22 NYCRR 202.15 [g] [1], [2]). We thus conclude that plaintiff is entitled to take the videotaped depositions of the physicians and that counsel for those physicians is precluded from objecting during or otherwise participating in the videotaped depositions.

Lastly, we note that the practice of conditioning the videotaping of depositions of nonparty witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents' contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.
The bold is mine.

While you are here, here are some blogs that I like.  You might like them too, unless you are a commie.

• Nobody’s Business
• The Rut
• Failbooking (You might find some of the stuff offensive.  Don’t say you weren’t warned.)
• Section 1983 Blog
• Popehat
• Courtoons
• Mr. Self Development (Yes I read this stuff.  It doesn’t work.  I read it anyway.)
• The (new) legal writer
• Photography Is Not A Crime
• New York Personal Injury Blog (great set of posts on Scalia and secession)
• Very Demotivational (Might be offensive like Failbooking.  Stop being a baby.)

CPLR R. 3025 Amend and Conform--Not Too Difficult

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Schuyler v Perry, 2009 NY Slip Op 06825 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting Perry's motion for leave to serve an amended answer, as the first proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff's active or primary negligence or the plaintiff's vicarious liability for DiMicco's conduct, and the second proposed amended answer was palpably insufficient and patently devoid of merit, insofar as the counterclaim contained therein was based on allegations of the plaintiff's vicarious liability for DiMicco's conduct.

Moyse v Wagner, 2009 NY Slip Op 07808 (App. Div., 2nd, 2009)

Leave to amend a pleading "shall be freely given upon such terms as may be just" (CPLR 3025[b]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959) as long as the proposed amendment is not palpably insufficient or devoid of merit (see Bolanowski v Trustees of Columbia Univ. In City of N.Y., 21 AD3d 340, 341; Glaser v County of Orange, 20 AD3d 506; Ortega v Bisogno & Meyerson, 2 AD3d 607, 609). Accordingly, in considering a motion for leave to amend, it is incumbent upon the court to examine the sufficiency and merits of the proposed amendment (see Hill v 2016 Realty Assoc., 42 AD3d 432, 433; see e.g. Abrahamian v Tak Chan, 33 AD3d 947, 949; Fisher v Braun, 227 AD2d 586, 587).

Matter of Simonds v Kirkland, 2009 NY Slip Op 08662 (App. Div., 4th, 2009)

The mother also will not be heard to contend that the court erred in permitting the amendment of the pleadings to conform to the evidence presented at the hearing on the petition, inasmuch as the record establishes that the mother's attorney consented to that amendment (see McLaughlin v City of New York, 294 AD2d 136; see also Atweh v Hashem, 284 AD2d 216, 217). In any event, "[t]he court has discretion to permit an amendment to conform the pleadings to the proof . . . [and i]t is an abuse of discretion to [withhold such permission] unless the opposing party can allege demonstrable and real surprise or prejudice" (General Elec. Co. v A. C. Towne Corp., 144 AD2d 1003, 1004, lv dismissed 73 NY2d 994; see CPLR 3025 [c]). Even assuming, arguendo, that the mother was in fact "an opposing party," we conclude that she failed to demonstrate that she sustained any "real surprise or prejudice" arising from the amendment (General Elec. Co., 144 AD2d at 1004).

The bold is mine.

CPLR R. 4518 -- Foundation (including "electronic records")

CPLR R. 4518 Business records

People v Manges, 2009 NY Slip Op 08258 (App. Div., 4th, 2009)

Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and attempted grand larceny in the third degree (§§ 110.00, 155.35). We agree with defendant that County Court erred in admitting in evidence a printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that "anyone [at the bank] can sit down at a computer and enter information." Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495). In the absence of the printout, the People failed to establish an essential element of the crime of criminal possession of a forged instrument, i.e., defendant's knowledge that the check presented to the bank teller was forged (see People v Johnson, 65 NY2d 556, 560, rearg denied 66 NY2d 759; cf. People v Shabazz, 226 AD2d 290, lv denied 88 NY2d 994) and, thus, they also failed to establish an essential element of the remaining crime of attempted grand larceny in the third degree, i.e., that the property was stolen.

Palisades Collection, LLC v Kedik, 2009 NY Slip Op 08259 (App. Div., 4th, 2009)

To establish standing to sue, plaintiff was required to submit admissible evidence that Discover assigned its interest in defendant's debt to plaintiff (see generally Rockland Lease Funding Corp. v Waste Mgt. of N.Y., 245 AD2d 779). Here, plaintiff submitted an affidavit from its agent with exhibits, including a printed copy of several pages from an electronic spreadsheet listing defendant's Discover account as one of the accounts sold to plaintiff. Contrary to the contention of plaintiff, the court properly determined that it failed to establish a proper foundation for the admission of the spreadsheet under the business record exception to the hearsay rule (see generally Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531).

A business record is admissible if "it was made in the regular course of any business and . . . it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518 [a]; see generally People v Kennedy, 68 NY2d 569, 579-580). "A proper foundation for the admission of a [*2]business record must be provided by someone with personal knowledge of the maker's business practices and procedures" (West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Although plaintiff's agent averred that the spreadsheet was kept in the regular course of business and that the entries therein were made in the regular course of business, the agent did not establish that he was familiar with plaintiff's business practices or procedures, and he further failed to establish when, how, or by whom the electronic spreadsheet submitted in paper form was made (see CPLR 4518 [a]; West Val. Fire Dist. No. 1, 294 AD2d at 950). Furthermore, although an electronic record "shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record" (id.), plaintiff's agent failed to establish that the printed electronic spreadsheet submitted to the court was a true and accurate representation of the electronic record kept by plaintiff.

Others have posted more thorougly on these cases, so I'll leave it at this.

CPLR § 602(a) Consolidation Not Proper

CPLR § 602 Consolidation
(a) Generally

Johnstone-mann v Stout, 2009 NY Slip Op 04829 (App. Div., 4th, 2009)

Memorandum: In action No. 1, the plaintiffs seek damages for injuries sustained by Kim M. Johnstone-Mann when the vehicle she was driving collided with a vehicle driven by Julie M. Stout, a defendant in action No. 1. Julie Stout in turn commenced action No. 2 against Johnstone-Mann, seeking damages arising from the same collision. Supreme Court did not abuse its discretion in granting that part of the motion of the defendants in action No. 1 and the plaintiff in action No. 2 seeking a joint trial of the two actions (see generally Nationwide Assoc. v Targee St. Internal Med. Group, P.C. Profit Sharing Trust, 286 AD2d 717, 718). "Absent a showing of prejudice, a motion . . . for a joint trial pursuant to CPLR 602 (a) should be granted where common questions of law or fact exist" (Spector v Zuckermann, 287 AD2d 704, 706). We conclude, however, that the court erred in granting that part of the motion seeking to bifurcate the trial. " Separate trials on the issues of liability and damage[s] should not be held where the nature of the injuries has an important bearing on the issue of liability' " (Fox v Frometa, 43 [*2]AD3d 1432). Here, evidence of the injuries and resulting amnesia sustained by Julie Stout is " necessary for the . . . purpose of allowing the [trier of fact] to consider whether [she] should be held to a lesser degree of proof' on the issue of liability" (id.; see Schwartz v Binder, 91 AD2d 660). We therefore modify the order accordingly.

The bold is mine.

CPLR § 3013: No Private Right of Action via Alcoholic Beverage Control Law

CPLR § 3013 Particularity of statements generally

Victoria T. Enters., Inc. v Charmer Indus., Inc., 2009 NY Slip Op 04820 (App. Div., 4th, 2009)

Plaintiff commenced this action seeking damages allegedly "arising out of defendants' long-standing deceptive pricing practices, unfair trade and monopolistic business practices" in the wine and liquor industry. Plaintiff appeals from an order that, inter alia, granted the motion of defendants-respondents (defendants) to dismiss the amended complaint against them. We affirm. Contrary to plaintiff's contention, Supreme Court properly granted that part of the motion to dismiss the causes of action based on alleged violations of the Donnelly Act (General Business Law § 340 et seq.) and the Alcoholic Beverage Control Law for failure to state a cause of action. The majority of the allegations in the amended complaint contain no more than a vague and conclusory repetition of the statutory language without reference to date, time or place, and thus the allegations are insufficiently particular to state a cause of action under either of those statutes (see CPLR 3013; see generally Cole v Mandell Food Stores, 93 NY2d 34, 40; New Dimension Solutions, Inc. v Spearhead Sys. Consultants [US], Ltd., 28 AD3d 260; [*2]Fowler v American Lawyer Media, 306 AD2d 113).

The sole allegation in the amended complaint that refers to a specific defendant and an arguably specific event is that defendant Service-Universal Distributors, Inc. (Service-Universal) "had a virtual monopoly on the sale of Absolut[] vodka, the largest volume vodka import in the United States at the time[, and that Service-Universal] would often tie in the sale of . . . a less popular brand[] to the sale of Absolut[], in violation of New York Law." We conclude however, that plaintiff did not thereby state a cause of action pursuant to the Donnelly Act. Tying arrangements are prohibited "when the seller has some special ability-usually called market power-to force a purchaser to do something that he would not do in a competitive market" (Illinois Tool Works Inc. v Independent Ink, Inc., 547 US 28, 36 [internal quotation marks omitted]). Thus, although "some such arrangements are still unlawful, such as those that are the product of a true monopoly or a marketwide conspiracy . . ., that conclusion must be supported by proof of power in the relevant market rather than by a mere presumption thereof" (id. at 42-43). Allegations that a seller controls a specific brand of a product are insufficient to establish that the seller has market power (see generally Sheridan v Marathon Petroleum Co. LLC, 530 F3d 590, 595; Re-Alco Indus. v National Ctr. for Health Educ., 812 F Supp 387, 392), and the amended complaint otherwise fails to allege that Service-Universal or any defendant had the power to control the wine and liquor market. Indeed, with respect to the alleged causes of action for violation of the Donnelly Act, we conclude that the amended complaint merely alleges, in various forms, that plaintiff's competitors were offered a better wholesale price than that offered to plaintiff. Although "plaintiff may have been deprived of certain [profits] as a result of [defendants'] practice[s], [those] losses are clearly not tantamount to injury to competition in the market as a whole and thus do not constitute a cognizable claim under the Donnelly Act" (Benjamin of Forest Hills Realty, Inc. v Austin Sheppard Realty, Inc., 34 AD3d 91, 97).

We reject the further contention of plaintiff that it has a private right of action pursuant to the Alcoholic Beverage Control Law and the regulations adopted pursuant thereto. The statute and regulations do not expressly provide for a private right of action, and thus a private right of action is permitted only in the event that it may fairly be inferred from the legislative history (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633). In determining whether such a right may be fairly inferred, "the essential factors to be considered are: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" (id.; see CPC Intl. v McKesson Corp., 70 NY2d 268, 276; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 324-325; Niagara Mohawk Power Corp. v Testone, 272 AD2d 910, 911; see also McLean v City of New York, 12 NY3d 194, 200). Contrary to plaintiff's contention, we conclude that no private right of action may be inferred from the legislative history of the Alcoholic Beverage Control Law. "The Legislature enacted the [Alcoholic Beverage Control] Law to promote temperance in the consumption of alcoholic beverages and to advance respect for [the] law' " (DJL Rest. Corp. v City of New York, 96 NY2d 91, 96; see § 2). "[I]t would be inappropriate for [this Court] to find another enforcement mechanism beyond the statute's already comprehensive' scheme . . . [and, c]onsidering that the statute gives no hint of any private enforcement remedy for money damages, we will not impute one to the lawmakers" (Mark G. v Sabol, 93 NY2d 710, 720-721).

The bold is mine.