December 2018 iNews Issue 94

Trial Tips I

Target Fixation

Frank Scahill, Esq.
You own a home in Orange County in a new development, with well-kept homes and tidy lawns, no crime, good schools and pleasant neighbors. You and your spouse work hard, and do all you can for your family, community and your neighbors. Life is good. One day in June 2013 you come home, park in your own driveway, go in your house and go about your business. A while later you look out your door and the police are in front of your house. When you go outside to find out what happened, you learn that two young kids on a bicycle with bad brakes - one 5 years old on the handlebars, and one 9 years old pedaling the bike - crashed into your jeep in your driveway after riding down the hill. You learn neither had helmets on, and that they both suffered serious injuries with skull fractures. You pray for the children and hope they recover quickly. You find out that they were visiting their aunt and uncle who live on the other side of your development. Then you get sued. The summons and complaint claim you were negligent in parking your own car in your own driveway. Your learn from your attorney about a case called  Boehm V. Telfer, 250 A.D.2d 975 (NYAD 3 Dept. 1998), where the Court stated, "It is well settled that the owners of improperly parked vehicles may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the Trier of Fact of the issues of foreseeability and proximate cause unique to the particular case." You keep repeating that you parked in your own driveway, "How can I be at fault?" Then you learn the Plaintiff's lawyer suing you is claiming the two young kids were the victims of "Target Fixation" and they claim it's your fault because of how you parked your car.
Charles Mailloux of our office faced this scenario in September in Orange County in Letitia Beckles, as parent of D.A.W and D.W. v. Erik and Sarah Fred (Index No. 1460/14). In a case tried before Hon. Craig Brown, plaintiff's counsel called Gregory Witte, the owner of Forensic Crash Consultants who propounded his theory of Target Fixation to the jury:
"It's very common with children only because they lack life lessons. So you see it a lot. Examples of it are seen on TV or reality TV shows like America's Funniest Video. It's simply a person sees something and they identify that it as a hazard or overly obsessed with whatever that may be. It's more susceptible to people riding two wheel vehicles, such as bikes or motorcycles, because they can lean and change your direction on a motorcycle or bicycle where in a car it's actually putting your hands to the steering wheel. We see it more often there. For example, you can watch a little boy going down the road and he sees a tree or something and there is nothing else out there and he crashes right into that tree. My own son did it, crashed right into a mailbox. He had a whole thirty foot wide open road, found the mailbox. Laws have been enacted now because of this phenomenon. You may have seen it  recently, the move over law. That law is simply -- all it is people are so obsessed with what they are seeing that when they are looking, they don't realize that their eyes are steering to they are looking at which is a  natural human response. We are not picking up that this is what we are doing. The next thing you know they go off the road and crash right into the police car. Across the country hundreds of these accidents have occurred resulting in the death of many officers. That law has been expanded now because of what it is to protect the fire department, tow operators, police vehicles, anybody who is operating on the side of the road to make you think you should move over and give them space."
In a masterful cross examination Charles Mailloux, won the case on his pointed questioning of Mr. Witte. The jury deliberated for an hour before dismissing the case. The transcript is attached and worth a quick read. Some highlights on cross examination are below.
Q. You know that someone claimed that the bicycle was repaired, correct?
A. Counselor, I don't know how to answer this. My understanding is there was work done on the bicycle. They tried repairing the brakes. Apparently they didn't repair them very well.

Q. I want you to assume that there has been testimony that the individual who was responsible for repairing the brakes never repaired the brakes. Would that affect the conclusions that you came to in this case?
A. Not really, because we know that she was able to maintain her speed. She said herself that she was slowing -- not slowing. She was holding her speed. Then they tried  making this turn. Like I laid out before, she had many places to go. She could have gone right in the front yard and didn't.

Q. I want you to assume there has been testimony that the point where Dominique began to maintain speed at the bicycle was the point where the ground leveled. Knowing that, would your opinion be affected in any way in connection with this manner?
A. If I understand your question, if she stated that she was at a level location where she was maintaining speed, yes, it's just telling me that the brakes aren't working all that great, but it doesn't change all the other issues involved here.

Q. One of the conclusions that you drew in connection with this matter is that the brakes weren't a factor when the accident happened; is that correct? 
A. I mean, not the sole factor, no. I think I said this earlier. It was a combination of the brakes, the issue with the Jeep sticking out, fixation issues. All of them is like the perfect storm for this to happen.

Q. It's your professional opinion that the primary cause of this accident was how Mr. Fred parked his vehicle?
A. I would say it's significant if you look at the whole thing. If you take one of the issues out, the accident doesn't happen; but put it all together, I think it's a fair statement.

Q. So you are changing the opinion that you gave at the time that you rendered this report, correct?
A. Yes, I think the word "primary" is a little severe. Substantial would be a better word.

Q. Would your opinion had been better informed if you had more information as to whether or not the brakes were repaired at the time of this incident?
A. No, if they were actually working, again as I said the accident wouldn't happen. She could have stopped. They were dragged maintaining the speed and we have the Jeep in the wrong location. Then we have fixation taking over. Again if you were there, if you look at it, gosh, she could have gone anywhere. She crashed into the one thing that  was a problem and that is the location of the Jeep.

Read the transcript here.

Results That Matter

Congratulations to Andrea Ferrucci for a decisive win in the Appellate Division in Kimberly M. Perez v. Jacqueline M. Dixon. (2018 NY Slip Op 08045) decided on November 21, 2018 by the Appellate Division, Second Department. Here the Appellate Division reversed Judge Thomas Feinman from Nassau Supreme Court who denied our motion for summary judgment on threshold grounds of serious injury under Insurance Law section 5102(d).
In dismissing the case, the Appellate Division, in a unanimous decision stated: "The defendant met her 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). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the injured plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614), and that the alleged injury to the cervical region of the injured plaintiff's spine was not caused by the subject accident (see Gouvea v Lesende, 127 AD3d 811; Fontana v Aamaar & Maani Karan Tr. Corp., 124 AD3d 579; Jilani v Palmer, 83 AD3d 786, 787). In addition, the defendant submitted competent medical evidence establishing, prima facie, that the injured plaintiff did not sustain a psychological injury as a result of the accident (see Dziuma v Jet Taxi, Inc., 148 AD3d 573, 573-574; Diaz v Barimah, 144 AD3d 497; Krivit v Pitula, 79 AD3d 1432, 1432-1433; cf. Haque v City of New York, 97 AD3d 636, 636-637). In opposition, the plaintiffs failed to raise a triable issue of fact (see Perl v Meher, 18 NY3d 208, 217-218; Grasso v Angerami, 79 NY2d 813, 814-815; John v Linden, 124 AD3d 598, 599).
Nice win here on a case where we had a $250,000/$500,000 primary policy with a $5,000,000 Umbrella Policy. In opposition to our motion, plaintiff's counsel argued the defendant's motion was "ill-conceived" noting, "One can only speculate why defendant moved for summary judgment in light of the inarguable factual conflict as to the injury and causation." Read the decision   here

Congratulations to Keri Wehrheim for victory in the Appellate Division Second Department on November 28, 2018 in  Skotnik v St. Frances De Chantal R.C. Church (2018 NY Slip Op 08169). On December 20, 2013, the plaintiff allegedly slipped and fell on an interior set of stairs near the front altar inside premises known as St. Frances De Chantal R.C. Church located in Brooklyn. The Supreme Court, Judge Paul Wooten, dismissed the case in June of 2017. As many plaintiffs have learned on slip and fall cases, the failure to identify the cause of the fall may be fatal. In sustaining the dismissal the Court stated "In support of the motion, the defendant church established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her fall (see Gani v Avenue R Sephardic Congregation, 159 AD3d 873, 874; Priola v Herrill Bowling Corp., 150 AD3d 1163, 1164; Califano v Maple Lanes, 91 AD3d 896, 897-898; McFadden v 726 Liberty Corp., 89 AD3d 1067, 1068; Capasso v Capasso, 84 AD3d 997, 998; Patrick v Costco Wholesale Corp., 77 AD3d 810, 811). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)." Read the decision here.

Congratulations to 
Tim Jones 
for a defense verdict on December 3, 2018 in Bronx County before Judge Hubert in Bronx County on Michelle Perez v. Homero E. Carrera, Tarkeshat Brown and Celeste J. Allred (Index No.: 305587/2014)

Congratulations to Paul Duer for a Defense verdict on Tiffany Mattocks v. Jospeh Hana and Juanita Tatum (Index No.: 700091/16) on November 2, 2018 in Queens County before Judge Joseph Esposito on the issue of liability .
Congratulations to Gil Hardy for a Defense verdict on November 2, 2018 in Jose Roberto Rivas Perez v. Giuseppe Dileone and Meir Korkus (Index No.: 604110/15) in Nassau County before Judge Thomas Feinman on the issue of liability.
Congratulations to Jesse Squier for a Defense verdict on October 30, 2018 in wrongful death claim in Kings County in Cheung v. Rivas (Index No.  502423/15) before Judge Marsha Steinhart. The jury found no damages were appropriate as there was no conscious pain and suffering, no pecuniary loss, and no loss of parental guidance.
Congratulations to Al Galatan for prevailing on a Framed Issue Hearing on October 22, 2018 before Judge Parga in Nassau County in Simone Wilson Adv. Progressive Casualty Inusrance Company (Index No.: 605932/18).

Trial Tips II

Casting Doubt On The Expert Witness

Dr. Vadim Lerman is a name we often see on spinal surgical reports and for good reason. When asked during cross examination on November 5 th, 2018 in Kings County on the case of Oscar Torres v. Zhila Rastegamehr (Index no. 505461/16) before Judge Cohen, Dr. Lerman admitted the following:
Q. Now, what's the percentage of the patients at your facility that have personal injury cases pending in court?
A.  Roughly, about fifty percent.
The goal of cross examination is to cast doubt on the veracity of the witness, and with an expert witness, to cast doubt upon the foundation for the opinion the witness is offering to the jury. The sole reason a spinal surgeon is called to testify is usually the trauma for which the lawsuit was brought was the competent producing cause of the injury for which the surgery was performed. Categories for cross examination can be a collateral attack; prior inconsistent testimony; a direct assault on the medical opinion; and, an attack on the foundation for the opinion. A jury will most likely accept the surgeon's testimony that the condition he or she saw in the operating room was trauma related unless defense counsel can attack the foundation of the testimony. In our case, the plaintiff had a prior accident in 2013 and was diagnosed, post MRI, with disc herniations of the cervical spine at C4/5 and C5/6. In 2016 Dr. Lerman performed an anterior cervical discectomy at C5-C6 for a diagnosis of C5-C6 disc herniation with central foraminal stenosis. The plaintiff denied a prior history of trauma to Dr. Lerman although he had extensive treatment from the 2013 accident and a prior lawsuit. On cross examination  Bob Brown from our office set the table for an attack on the plaintiff's veracity by first discussing with Dr. Lerman the importance of a proper history.
Q. Now, during the visit on April 4th of 2016 --
A. Mm-hmm.
Q. -- you indicated that you took a history; correct?
A. Correct.
Q. And do you agree, Doctor, that if you did not take a proper history, your opinion would be less than valid?
A. Yes, I agree.
Q. And you do take that history so that you can be accurate in your diagnosis; correct?
A. Yes.
Q. And did all the information that you got from that history come from the plaintiff himself?
A. Correct.
Q. And did you call or speak to any of his doctors?
A. No, I did not.
Q. And you consider, like you said on direct, Mr. Torres to be your patient; correct?
A. Correct.
Q. Did you conduct an extensive interview with him when you met with him for the first time?
A. Yes.
Q. And did you ask him about his medical history?
A. Yes.
Q. Do you think you obtained an accurate medical history from the plaintiff?
A. Everything that this patient provided, we have it here, yes.
Q. And you also gave an opinion that the plaintiff's neck and back injuries, and the surgery, are related to the plaintiff's accident on February 25, 2015; correct?
A. Correct.
Q. Now, in order to give that opinion, do you agree that you would need an accurate history from the plaintiff?
A. Correct.
Q. And if you didn't have an accurate history, could you be mistaken in your opinion on causation of those injuries?
A. I cannot answer yes or no on this one.
Q. And in that report dated April 4, 2016, did you ask  the plaintiff about his medical history?
A Yes.
Q. And did the plaintiff deny any history of trauma?
A. Patient said he did not have any trauma, correct.
Q. And did the plaintiff also tell you that he had never been diagnosed with a significant problem?
A. Correct. But, actually, the patient bought the previous M.R.I. and --
Q. Doctor, you answered the question. Thank you.
After discussing the importance of history, the jury is now made aware the plaintiff failed to reveal the prior accident, seriously compromising the opinions of this surgeon.
Q. Now, after the first visit on April 4th of 2016, you go to complete your report; correct?
A. Correct.
Q. And that's part of your chart; correct?
A. Correct.
Q And in that report dated April 4, 2016, did you ask the plaintiff about his medical history?
A. Yes.
Q. And did the plaintiff deny any history of trauma?
A. The patient said he did not have any trauma, correct.
Effective cross examination rarely ends in a knockout ten count, rather, the task for defense counsel is to undermine the opinion of the witness. Here the stage was set to deliver a summation on the veracity of the plaintiff who concealed a prior accident, and prior complaints to his own surgeon.

Read the rules  here.

Trial Tips III

Review The Expert's Web Site

Another important point on cross-examination of the plaintiff's expert witness, is to look to their own website for information you can use in cross examination. In our case,  Oscar Torres v. Zhila Rastegamehr, Dr. Lerman first testified that Degenerative Disc disease occurs at the age of 45 or 46:
Q. Now, are you familiar with the term degenerative disc disease?
A. Yes.
Q. And does degenerative disc disease occur when a person's intervertebral discs begin a natural degeneration?
A. Yes. At forty-five, forty-six years old.
Upon cross examination on the information set forth on his own website, this surgeon backtracked a mile:
Q. Does that website discuss a different age that degenerative disc disease can come into play?
A. Yes. Because of previous trauma, it can happen at different ages.
Q. Does it say it can happen in your thirties and forties?
A. Yes, it does
Q. Do many acquire disc disease in their thirties and forties?
A. You can acquire it at fifteen, sixteen. It's a gray line; there is no definitive age.
This is the information we used from the website:
Degenerative Disc Disease (DDD) occurs when a patient's intervertebral disc begins a natural degeneration, meaning there was loss of fluid in a given disc. This process flattens the disc, therefore bringing the vertebra closer together. This makes it harder for it to act as a cushion and less likely to absorb shock. This disease, also called Degenerative Disc Disorder, is one that many will acquire as they get into their 30's and 40's. In some cases, a patient will not feel any pain when contracting this disease, but if left untreated it could result in chronic pain.

It is possible for Degenerative Disc Disease to impact any part of the spine but it would be most commonly found in the neck or lower back area.

If a patient has DDD they may have one or more of these conditions:
·        Cervical Disc Herniation
·        Lumbar Disc Herniation
·        Sciatica
·        Nerve Impingement
·        Spinal Stenosis
·        Spondylosis
·        Spinal Stenosis
·        Spondylolisthesis
·        Scoliosis
·        Spondylitis
·        Osteoarthritis
·        Spinal Fracture

Symptoms would include:
·        Pain in neck, thighs or lower back area
·        Feeling the need to switch positions constantly
·        Pain coming "in and out" for different lengths of time
·        Pain while: bending down, sitting down and/or twisting body
·        Anxious to lie down to subside the pain
·        A tingling sensation in all extremities

It is worth noting that some people who have DDD will not show any symptoms.

·        Loss of fluid in the disc- A normal, healthy disc would consist of about 85% fluid. As we age it is known to lose a bit from time to time.
·        Minuscule cracks in the outer structure of the disc- It is possible for tears or cracks to form on the outer structure of the disc, which allows the fluid to make its way out quickly. This is in essence, a ruptured disc.

The disease originates from:
·        Natural wear and tear
·        Minor Injuries from the past
·        Undetected or Untreated Injuries
·       Obesity
·        Heavy Smokers

Read the transcript  

Wrongful Death Claims - Loss Of Perental Guidance

Jesse Squire from our firm was forced to take a  verdict in a wrongful death action in Brooklyn on  October 30, 2018 in Cheung v. Rivas (Index Number: 502423/15) , tried before Judge Marsha Steinhardt. This was a tragic case involving the death of a 90 year old woman who was struck by a vehicle in Lower Manhattan at 4:00 a.m. in October of 2014. The defendant's policy limits had been offered in settlement for several years. There was no pecuniary loss, questionable conscious pain and suffering and an adamant refusal by the family of the decedent to accept the policy offer. The only avenue to recovery for the plaintiff was the loss of parental guidance to four adult children of the decedent.
In this case, the jury decided no award was warranted. When was the last time you heard a wrongful death verdict in Kings County with a zero award? I must commend the attorneys for the plaintiff and Jesse Squire from our office on an excellent presentation in light of the tragic circumstances of the case. After the verdict, the policy limit offer was not withdrawn and the family of the decedent finally accepted the settlement offer.
The loss of parental guidance can be the sole avenue for recovery in a wrongful death case with no pecuniary loss or proof of conscious pain and suffering. "In a wrongful death action, an award of damages is limited to the fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought." ( Plotkin v. New York City Health & Hosps. Corp., 221 A.D.2d 425, 426, 633 N.Y.S.2d 585; see EPTL 5-4.3[a]). The loss of parental nurture and care, as well as physical, moral, and intellectual training, is a proper component of pecuniary injury and may be considered by the jury in determining damages. (See Zygmunt v. Berkowitz, 301 A.D.2d 593, 594, 754 N.Y.S.2d 313; Plotkin v. New York City Health & Hosps. Corp., 221 A.D.2d 425, 633 N.Y.S.2d 585). Leger v. Chasky, 55 A.D.3d 564, 565, 865 N.Y.S.2d 616, 618 (2008).
In 1991, the Court of Appeals addressed the issue of whether adult grandchildren could seek recovery for loss of parental guidance in Gonzalez v. New York City Housing Authorithy, 77 N.Y.2d 663,(1991), "Nor is recovery barred solely because plaintiffs were self-supporting adults at the time of their grandmother's death. The argument that an adult distributee cannot state a claim for pecuniary injuries based on the loss of a parent's guidance was long ago rejected by this court. In Tilley v. Hudson Riv. R.R. Co., 29 N.Y. 252, a wrongful death action brought on behalf of the decedent's five surviving children, the oldest child was 23 and married at the time of her mother's death, and the next oldest 21. We held that the Trial Judge properly declined to limit damages to the minority of the children, finding in the wrongful death statute no "peremptory injunction to confine the damages absolutely to the minority of the children" (id., at 288; see also, McIntyre v. New York Cent. R.R. Co., 37 N.Y. 287, 295-296 [whether three adult, self-supporting children sustained pecuniary injuries from their mother's death was a question for the jury]; Countryman v. Fonda, Johnstown & Gloversville R.R. Co., 166 N.Y. 201, 209-210, 59 N.E. 822 [whether a 25-year-old son and 22-year-old daughter sustained pecuniary injuries from mother's death was a jury question]; and Gross v. Abraham, 306 N.Y. 525, 529-531, 119 N.E.2d 370 [an adult, self-supporting son who provided a home for his father could recover for the father's wrongful death] )."
See also the opinion of Judge Sarah Netburn in Dershowitz v. United States, No. 12-CV-08634 (S.D.N.Y. Apr. 8, 2015), "Out of recognition for the realities of an increasingly complex society where children rely more heavily, and for a greater number of years, on the guidance of their parents, there is no prohibition barring recovery by an adult child. McKee, 849 F.2d at 52; Gonzalez, 77 N.Y.2d at 668-69, 569 N.Y.S.2d 915, 572 N.E.2d 598 (explaining that financially independent adult grandchildren constitute "distributees" entitled to recover under the EPTL). The key requirement for recovery is proof of pecuniary loss. "[F]ixing the proper amount for this award" is inherently "problematic, sometimes arbitrary and often speculative." Ferrarelli, 1992 WL 893461, (citing Shu-Tao Lin, 742 F.2d at 52). "[B]ecause direct evidence of pecuniary injury is often unavailable," a court should consider, in part, "the degree of dependency of the distributees upon the decedent and the probable benefits they would have received but for the untimely death." McKee, 849 F.2d at 52.

No Fault Appelate Decision of Note

In the world of No-Fault Insurance, the failure to timely deny a claim within 30 days precludes an insurer from raising a viable defense to the claim. In 2015, the Court of Appeals in Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 498, (2015) stated, "Where an insurer fails to pay or deny a claim within the requisite 30 days under the statute and regulations following its receipt of the proof of claim, the insurer is subject to "substantial consequences," namely, preclusion "from asserting a defense against payment of the claim" ( Fair Price, 10 N.Y.3d at 563, [internal quotation marks omitted] ). The only exception to preclusion recognized by this Court arises where an insurer raises lack of coverage as a defense (see id.; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d at 318,; Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997] ). This Court has recognized that preclusion may require an insurer to pay a no-fault claim it might not have had to honor if it had timely denied the claim (see  Presbyterian Hosp., 90 N.Y.2d at 285, 660 N.Y.S.2d 536, 683 N.E.2d 1). Nonetheless, we emphasized that the great convenience of "prompt uncontested, first-party insurance benefits" is "part of the price paid to eliminate common-law contested lawsuits" (id.; see Fair Price, 10 N.Y.3d at 565-566, 860 N.Y.S.2d 471, 890 N.E.2d 233).
The Appellate Division Fourth Department in Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C., (2018 NY Slip Op 07850) decided on November 16th, 2018, addressed the issue of whether the failure to appear at an Examination Under Oath, a condition precedent for a claim to be filed, )"[n]o action shall lie against the [insurer] unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage" (11 NYCRR 65-1.1 [d])."fits squarely into the exception of lack of coverage defense."
In a considerable reach, proving once again the torturous machinations of  No-Fault decisions have no bounds, the Appellate Division stated: "We conclude that a defense premised upon nonappearance at an EUO is "more like a normal" exception from coverage (e.g., a policy exclusion)" than one involving "a lack of coverage in the first instance (i.e., a defense implicat[ing] a coverage matter')" ( Fair Price Med. Supply Corp., 10 NY3d at 565; see also Hospital for Joint Diseases, 9 NY3d at 319-320; Presbyterian Hosp. in City of N.Y., 90 NY2d at 281-286; see generally Central Gen. Hosp., 90 NY2d at 199). Unlike defenses where preclusion thereof would result in coverage where it never existed, such as those premised upon the lack of a contract with the person claiming coverage or for the vehicle involved in the accident, the termination of the contract prior to the accident, or the cause of the purported injuries being something other than a vehicular accident (see Hospital for Joint Diseases, 9 NY3d at 319; Central Gen. Hosp., 90 NY2d at 200; Zappone v Home Ins. Co., 55 NY2d 131, 136-138 [1982]), the EUO nonappearance defense allows the insurer to avoid liability for the payment of no-fault benefits where the insured or assignee has breached a condition in an existing policy providing coverage (see IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]). In other words, "coverage legitimately . . . exist[s]" where there is a valid, unexpired policy under which a covered person seeks recovery following "an actual accident" involving a covered vehicle that results in the person sustaining "actual injuries" ( Fair Price Med. Supply Corp., 10 NY3d at 565). In that event, the insured or assignee must meet certain obligations to the insurer to receive payment, including submitting to reasonably requested EUOs, and the insurer must meet certain obligations to the insured or assignee, including making timely payment of benefits that are supported by the requisite proof (see Insurance Law § 5106 [a]; 11 NYCRR 65-1.1 [d]). Thus, coverage under the policy exists in the first instance, but the failure of the insured or assignee to comply with the provision requiring submission to reasonably requested EUOs allows the insurer to deny payment of a claim based on such a material breach of the policy and thus relieves the insurer of liability for the payment of policy proceeds (see 11 NYCRR 65-1.1 [d]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047 [2d Dept 2009], lv denied 13 NY3d 714 [2009])."

Read the decision here


Amendment to CPLR Section 2305

Effective August 24, 2018, CPLR § 2305 was amended to add Subsection "(d)" "Subpoena duces  tecum for a trial; service of subpoena and delivery for records. Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith."
This new section allows service of a subpoena for trial with the requested documents to be sent to counsel; rather that the subpoenaed records room in the Courthouse. Together with CPLR § 3122(a), set forth below, this new amendment should alleviate the angst of placing business records from plaintiff's treating physicians into evidence on prior claims for pre-accident treatment under the business record exception found in CPLR Rule 4518.

CPLR § 3122(a):

(a) Business records produced pursuant to a subpoena duces tecum under rule 3120 shall be accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other qualified witness charged with responsibility of maintaining the records, stating in substance each of the following:

1. The affiant is the duly authorized custodian or other qualified witness and has authority to make the certification;

2. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum that are in the possession, custody, or control of the person receiving the subpoena;

3. To the best of the affiant's knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum, or if they do not represent a complete set of the documents subpoenaed, an explanation of which documents are missing and a reason for their absence is provided; and

4. The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.
(b) A certification made in compliance with subdivision (a) is admissible as to the matters set forth therein and as to such matters shall be presumed true. When more than one person has knowledge of the facts, more than one certification may be made.
(c) A party intending to offer at a trial or hearing business records authenticated by certification subscribed pursuant to this rule shall, at least thirty days before the trial or hearing, give notice of such intent and specify the place where such records may be inspected at reasonable times. No later than ten days before the trial or hearing, a party upon whom such notice is served may object to the offer of business records by certification stating the grounds for the objection. Such objection may be asserted in any instance and shall not be subject to imposition of any penalty or sanction. Unless objection is made pursuant to this subdivision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this subdivision, business records certified in accordance with this rule shall be deemed to have satisfied the requirements of subdivision (a) of rule 4518. Notwithstanding the issuance of such notice or objection to same, a party may subpoena the custodian to appear and testify and require the production of original business records at the trial or hearing.
(d) The certification authorized by this rule may be used as to business records produced by non-parties whether or not pursuant to a subpoena so long as the custodian or other qualified witness attests to the facts set forth in paragraphs one, two and four of subdivision (a) of this rule.

Appellate Decision of Note

On October 23, 2018, the Court of Appeals sustained a dismissal of 2012 Bronx Supreme Court action in Rosa v Delacruz (2018 NY Slip Op 07040).
The plaintiff, Agripino Rosa, underwent left shoulder surgery allegedly due to a SLAP tear of the labrum diagnosed by Dr. McCullough in 2012. In dismissing the case on a motion for summary judgment, Judge Capella from Bronx County stated: "In opposition, Rosa provides a June 6, 2016-narrative report by orthopedic surgeon, Dr. McCulloch, in which he states that on June 13, 2012, he diagnosed Rosa with a rotator cuff tear, but fails to set forth how he reached this diagnosis. Moreover, this directly contradicts the May 22, 2012-MRI report by Rosa's radiologist, which did not address causation and found no evidence of a tear. ( Santos v Perez, 107 AD3d 572 [1st Dept 213].) This narrative report also reveals that in his most recent exam of Rosa on May 25, 2016, Dr. McCulloch did not examine the cervical, thoracic and lumbar spine. In addition, the "Healthworx" records annexed to the opposition papers, which purport to show Rosa's post-accident medical treatment, were not in admissible form. Given the aforementioned, Rosa has not met her burden on the issues of permanent consequential and significant limitation. As for her 90/180 claim, Rosa indicated on her no-fault application that she did not miss work after the accident. On the other hand, she stated in her deposition that she did, but could not recall the number of days missed. Rosa also testified that she left her employment because she "could not do the job"; however, this occurred some nine months after the accident. And, except for Dr. McCulloch's impression on the last page of his June 6, 2016 narrative report in which he restricted Rosa to working in sedentary capacity, there is no medical proof to show that plaintiff was disabled or unable to work after the accident ( Kauderer v Penta, 261 AD2d 365 [2nd Dept 1999]). Based on the aforementioned, the defendants' motions are granted, and the plaintiff Rosa's first cause of action is dismissed."  Rosa v Delacruz, No. 308543/2012, (Sup. Ct. Oct. 25, 2016).
The First department unanimously affirmed the decision in February 2018 stating, "In opposition, plaintiff failed to raise an issue of fact as to whether his alleged shoulder injuries were causally related to the accident. Plaintiff submitted a report of his radiologist, who affirmed that his MRI findings were true, and of his orthopedic surgeon, who opined that tears found during surgery were causally related to the accident. However, neither the radiologist nor the orthopedic surgeon addressed the findings of degeneration in the radiologist's MRI report, or explained why the tears and physical deficits found by the orthopedic surgeon were not caused by the preexisting degenerative conditions." (See Rivera v Fernandez & Ulloa Auto Group, 123 A.D.3d 509, 999 N.Y.S.2d 37 [1st Dept. 2014], affd 25 N.Y.3d 1222, 16 N.Y.S.3d 515, 37 N.E.3d 1159 [2015]; Marcellus v. Forvarp, 101 A.D.3d 482, 956 N.Y.S.2d 13 [1st Dept. 2012] )." Rosa v. Delacruz, 158 A.D.3d 571, 571-72, 71 N.Y.S.3d 55 (N.Y. App. Div.).
The Court of Appeals sustained the dismissal with a memorandum decision: "In support of their motions for summary judgment, defendants relied on independent physician reports finding that plaintiff had a normal range of motion six months following the accident, with no permanent effects, and on the results of a shoulder MRI performed six weeks after the accident by plaintiff's radiologist, who reported that plaintiff's rotator cuff tendons were intact and there was no MRI evidence of a tear. Plaintiff's responding medical submissions were inadequate to raise a triable issue of fact because they failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tears that he observed (and repaired) during surgery nearly two years after the accident."  Rosa v. Delacruz, (2018 NY Slip Op 07040), (N.Y. Oct. 23, 2018).
Read the decision here

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