iNews from Picciano & Scahill

gavel The admissibility of impeachment evidence is key to the defense of any personal injury claim. CPLR section 3101(e) requires disclosure of a party statement and every plaintiff in New York makes a routine demand for statements made by the plaintiff in the possession of the defendant in pre-trial disclosure.

Is the defendant required to disclose statements made by the plaintiff contained in medical records in response to a 3101(e) demand? The defendant did not create or maintain the record, nor was the defendant under a business duty to store the record. Why would the defendant be forced to disclose a statement made by the plaintiff to her own physician as a "party statement" in their possession?

In Vaz v. New York City Transit Authority, decided by the Appellate Division, Second Department on June 14, 2011 (952 N.Y.S. 2d 587), the Appellate Court reversed the order of Judge Hart of Queens County which denied the plaintiff's motion to set a aside a defense verdict dismissing the action of Marlene Vaz. The plaintiff claimed injuries as a result of an incident on a City Bus at Kennedy Airport. She claimed the driver stopped suddenly, throwing her off her seat to the ground. In a Motor Vehicle Accident form prepared by the plaintiff at her doctor's office, she gave an inconsistent version of the events of the accident. The Transit Authority cross-examined the plaintiff on the statement during the course of the trial. Fair Game say we all? Not so, says the Appellate Division.

"The Supreme Court improvidently exercised its discretion in permitting the defendant to introduce the MVA form into evidence. Although a party may not be compelled to produce or sanctioned for failing to produce information which he does not possess (see Sagiv v. Gamache, 26 A.D.3d 368, 810 N.Y.S.2d 481; Gatz v Layburn, 9 AD3d 348, 350, 780 N.Y.S.2d 157; Corriel v Volkswagen of Am., 127 AD2d 729, 731, 512 N.Y.S.2d 126), the failure to provide information in its possession will, however, preclude it from later offering proof regarding that information at trial (see Bivona v Trump Mar. Casino Hotel Resort, 11 AD3d 574, 575, 782 N.Y.S.2d 667; Kontos v Koakos Syllogos "Ippocrates," Inc., 11 A.D.3d 661, 783 N.Y.S.2d 653; Corriel v Volkswagen of Am., 127 AD2d at 731).

The record reveals that the defendant came into possession of the MVA form on November 21, 2002, prior to the commencement of the action. Accordingly, contrary to the Supreme Court's conclusion, the defendant was required to disclose the MVA form, which constituted the plaintiff's "own statement" (CPLR 3101[e]), upon the plaintiff's demand prior to trial (see CPLR 3101[a], [e]). The defendant, however, withheld the document until the midst of trial, and proffered no excuse for its failure to produce the document earlier (see Moog v City of New York, 30 A.D.3d 490, 820 N.Y.S.2d 593; Assael v Metropolitan Tr. Auth., 4 AD3d 443, 772 N.Y.S.2d 364; Mingo v Manhattan & Bronx Surface Tr. Operating Auth., 302 AD2d 274, 756 N.Y.S.2d 13; Pryzant v City of New York, 300 AD2d 383, 750 N.Y.S.2d 779). Where, as here, the central issue is the parties' credibility; such error cannot be considered harmless (see CPLR 2002; Caplan v City of New York, 34 AD2d 549, 309 N.Y.S.2d 859; cf. Coopersmith v Gold, 89 NY2d 957, 959, 678 N.E.2d 469, 655 N.Y.S.2d 857). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to set aside the verdict on the issue of liability and for a new trial."

See full decision here .

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new_york_palace_hotel What does the Archdiocese of New York and the Sultan of Brunei have in common? The answer is a "ground lease" to the Palace Hotel.

The New York Palace Hotel at 50th and Madison was originally built in 1882 by Henry Villard and modeled after the Palazzo della Cancellaria in Rome. Harry Helmsley built a 55-story hotel on the site across the street from St. Patrick's Cathedral, which operated from 1981-1992. The Sultan of Brunei bought the property after the Hotel was forced into Bankruptcy Court. In 2007 Fatima De La Cruz claimed injuries at the hotel when a freight elevator door closed striking her in the head. She sued Amadeo Hotels, Ltd., the Sultan's Development Company, the owner of the Hotel, and the Archdiocese who owns the land upon which the Hotel is located. The Archdiocese moved for summary judgment claiming they were the owner of the land and had nothing to do with the operation of the Hotel. No one in the case opposed the motion. Judge Eileen Rakower, of New York County Supreme Court, saw the case differently than the Sultan and the Archdiocese.

In Fatima De La Cruz v. The New York Palace Hotel 2011 NY Slip Op 31937U (decided July 11, 2011), Judge Rakower indicated Section 78 of the New York City Multiple Dwelling Law states that "every multiple dwelling...shall be kept in good repair...[t]he owner shall be responsible for compliance with the provisions of this section..." The responsibility to ensure that a building is kept in good repair is non-delegable. (Bonifacio v. 910-930 Southern Boulevard, LLC, 295 AD2d 86 [1st Dept. 2002]). Here the Archdiocese would revert to the "owner" of the building when the lease ended in 2022. Judge Rakower stated, "Even if it can be considered an owner for purposes of Multiple Dwelling Law §78, the Archdiocese contends that it has transferred all responsibility for maintenance and repair to the Tenant. However, an out of possession landlord may only escape its duty if it "completely parted with possession and control" of the premises. (Worth Distributers, Inc. V. Latham, 59 NY2d 231[1983]). Where the landlord reserves a right to re-enter the premises for inspection and repairs, it constitutes "a sufficient retention of control to subject the owners to liability." Here, Article 13 of the lease states, in relevant part: "Tenant will permit Landlord...to enter the demised premises at all reasonable times for the purpose of (a) inspecting the same, (b) making any necessary repairs thereto and performing any work therein that may be necessary by reason of Tenant's failure to make any such repairs or perform such work or to commence the same for 10 days after written notice form Landlord...In light of its reservation of the right to re-enter for purposes of inspection and repair, the Archdiocese has failed to establish, as a matter of law, that it did not owe plaintiff a duty to maintain the building, including the elevator, in a safe condition." (See Mas v. Two Bridges Associates by Nat. Kinney Corp., 75 NY2d 680)."

Read full decision here.

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cow A fire at a dairy farm in St. Lawrence County in 2004 provides for the backdrop for a July 7, 2011 decision by the Appellate Division, Third Department discussing the obligations of a mortgage holder under New York Real Property Law, section 254. In Philip D. Fonda v. First Pioneer Farm Credit (2011 NY Slip Op 5843) the owner of the farm sued the mortgage company for failing to release the insurance proceeds to repair the damaged building on the farm.

"Real Property Law §254 (4) (a) states that a mortgagee holding the proceeds of a fire insurance policy pursuant to a mortgage provision ......must retain the funds in trust until, among other things, the mortgagor "make[s] good the damage by means of such repairs, restoration or rebuilding as may be necessary to restore the buildings to their condition prior to the damage," and submits proof to the mortgagee that "the damage has been fully made good". The Appellate Court upheld the dismissal of the claim under Real Property Law 254 indicating the mortgage company was under no obligation to release the funds for repairs, but rather, the insured must provide, "proof to the mortgagee that the damage has been fully made good".

The plaintiff's claim that the mortgage company "committed anticipatory repudiation and breached the implied covenant of good faith and fair dealing" survived a dismissal motion. Apparently the mortgage company had pressured the farmer into reducing his debt and wanted him to scale back the rebuilding of the farm in favor of reducing the principal on the loan. The Court stated, " Plaintiffs thereby established the existence of triable issues of fact barring summary judgment as to whether defendant unequivocally communicated its intent to require plaintiffs to comply with an extra contractual condition before it would reimburse them for repairs (see O'Connor v. Sleasman, 14 AD3d at 987-988; see also Highbridge Dev. BR, LLC v. Diamond Dev., LLC, 67 AD3d 1112, 1115 [2009]). Issues of fact arising out of the same alleged conduct also support plaintiffs' claim that defendants breached the implied covenant of good faith and fair dealing (see SPI Communications v. WTZA-TV Assoc. Ltd. Partnership, 229 AD2d at 645)."

Score one for the dairy farmer here.

Read here for full decision.

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What happens to the Provider's No-Fault suit when the sole shareholder of the plaintiff medical corporation dies Painless Medical, P.C.,v. Geico (2011 NY Slip Op 21228), decided on July 1, 2011 by Judge Peter Sweeney gives an in depth analysis of this situation and can be considered a "must read" if you are ever faced with this situation. In this case, an attorney, Anna Val, was appointed administrator of the deceased's Doctor's Estate. Here the Court denied the dismissal application, however, the actions were not allowed to proceed, "By denying Geico's motion to dismiss and the cross-motion for substitution, the Court is not suggesting that the actions may proceed. The fact of the matter is that the actions cannot go forward because there is no one who can now act on behalf of the plaintiff corporations in the actions. While it is true that Dr. Collins' shares in the three professional corporations vested in his estate at the time of his death (see In re Michael Bernfeld, D.D.S., A.D.3d, 2011 NY Slip Op. 5071[2nd Dep't]; Fromcheck v. Brentwood Pain & Medical Services, P.C., 254 AD2d 485, 486, 679 N.Y.S.2d 632 [2nd Dep't 1998]; Ocean Diagnostic Imaging, P.C., 15 Misc 3d at 10) and that the fiduciary of an estate can normally vote the decedent's shares in a corporation for any purposes (EPTL § 11-1.1[b][14] ), this is not the case with respect to professional corporations. Only an individual authorized by law to practice in this state a profession in which the professional corporation is authorized to practice may own, direct or control a professional corporation (Business Corporation Law §§ 1507 and 1508). Further, only such individuals may generally come into possession of shares in a professional corporation (Business Corporation Law §§ 1511) . Here, the profession in which the three plaintiff professional corporations are authorized to practice is medicine."

Full decision can be read here.

Jack Growney worked in New York for Knorr Brake Corporation, a Maryland-based company. Utica Mutual Insurance Company provided a worker's compensation policy to Knorr Brake Corporation. When Mr. Growney was injured in New York while driving in the course of his employment, he received worker's compensation benefits from Utica. The benefits were originally administered through the Corporation's home office in Maryland. However, Jack lived in New Jersey and his claim was administered by the New Jersey Division of Workers' Compensation. Utica filed a subrogation claim in New York County Civil Court against Rhondi Bleeker to recover the worker's compensation benefits paid. New Jersey and New York Law bar this subrogation claim, however, under the Maryland's Workers' Compensation Act, an insurer is entitled to assert a subrogation claim for reimbursement of benefits paid.

In Utica Mutual v. Bleeker (2011 NY Slip Op 51076(U)), decided on June 10, 2011, the Appellate Term, First Department, agreed with our argument that the Civil Court Judge (Manuel Mendez, J.C.C.) erred in deciding Maryland was the jurisdiction whose law would govern. Rising like a Phoenix from the ashes of defeat, New Jersey law allowed us to prevail on behalf of the defendant and the insurer, "Applying New Jersey law to the instant matter, most of plaintiff's subrogation claims fail. Although New Jersey law authorizes an employer to institute an action against a responsible tortfeasor if the injured person does not do so, "the third party shall be liable only to the same extent as he would have been liable had the employee himself instituted suit within a year of the accident" (Patterson v Adventure Trails, 364 NJ Super 444, 447 [NJ Super 2003], quoting Continental Ins. Co. v McClelland, 288 NJ Super 185, 189-190 [NJ App Div 1996]). As such, plaintiff's subrogation claim for medical expenses in the principal sum of $7,884.97, and workers' compensation payments up to the sum of $5,200, that would otherwise have been collectible under a standard personal injury protection endorsement covering the subject loss (see NJSA 39:6A-4; see also Rutgers Cas. Ins. Co. v Ohio Cas. Ins. Co., 153 NJ 205, 210 [NJ 1998]), cannot be recovered against defendant (see Patterson v Adventure Trails, 364 NJ Super at 447)."

I doubt Jack Growney knows his case will be a bar exam question in the future. Many an hour was spent on this appeal Jack, please be careful out there.

Read full decision here.

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In First party PIP litigation, frequently the providers' law firm is also the "collection agency" for the client, processing the bills and sending out the provider's bills to the Carrier for payment. In the event of a denial of benefits and subsequent litigation, how can the provider prove the bills were sent timely?

In Bath Med. Supply, Inc. v Utica Mutual Ins. Co. 2009 NY Slip Op 51030(U) [23 Misc 3d 141(A)] decided on May 22, 2009 Appellate Term, Second Department, the Court held admission of the Insurance carrier's denial of claim form on the plaintiff's case in chief to prove timely receipt of the medical provider's bills was impermissible, "it remained plaintiff's burden to proffer evidence in admissible form, i.e., by introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff's failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint"

Judge Genine Edwards of Civil Court, Kings County, in Allstate Social Work v. Geico (2011 NY Slip Op 21234), decided on July 7, 2011 was faced with a situation where the plaintiff's witness on their case in chief could not prove the bills from the provider were mailed to GEICO, as the bills were created and given to plaintiff's counsel, Israel and Israel, for mailing. Here the plaintiff also sought to prove receipt of the bills by the carrier based on the receipt by the provider of the denial of claim form. In rejecting this argument and dismissing the complaint the Court stated, " this Court adheres to the Appellate Term's ruling that denial of claim forms shall be admitted into evidence only upon the laying of a business record foundation. Bath Medical Supply, Inc. v. Utica Mutual Ins. Co., 23 Misc 3d 141(A), 889 N.Y.S.2d 881 (App. Term, 2d, 11th & 13th Jud. Dists. 2009); Bajaj v. General Assurance, 18 Misc 3d 25, 852 N.Y.S.2d 576 (App. Term, 2d Dept. 2007). Besides testifying that he received the denial of claim forms."

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blind Is loss of vision to any degree considered a serious injury under the New York Serious Injury Threshold? Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

In Lamana v. Jankowski, 13 A.D.3d 134 (First Department, 2004) a directed verdict in favor of the defendant on the issue was reversed by the Apellate Division, First Department. Here the plaintiff alleged that she suffered a "significant limitation of use of a body function or system" because her right eye functioned at less than 50%, essentially depriving her of binocularity. Plaintiff alternatively asserted that she has "permanent consequential limitation of use of a body organ or member" based upon the evidence that she will never regain vision in the affected eye. The Appellate Court felt that issue should go to the Jury.

Judge Charles Markey of Queens County Supreme Court faced this issue in Wheeler v. Arpi (2011 NY Slip Op 51252U). In his July 6th 2011 order, Judge Markey followed the Lamana Court, holding," the plaintiff's claim of a detached retina and sharply impaired vision that has continued to date is supported, on this motion, by Dr. Pamela A. Weber, a Board certified ophthalmologist. The question of "serious injury" must be submitted to a jury. The motion by defendants on the threshold issue of "serious injury" is, accordingly, denied."

Read full decision here.

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atv Rollover accidents for All Terrain Vehicles (ATVs) result in serious injuries. Between 1995 and 2005, ATV accidents resulted in death for 1,218 children under age 16. These children account for 27 percent of all ATV-related deaths during this period. (Consumer Product Safety Commission, 2005 Annual Report of All-Terrain Vehicle (ATV)-Related Deaths and Injuries). Christopher Mikelinich was injured on May 3, 2008 by his own ATV that he let his friend, Nicholas Caliandro, try in his driveway. Under Vehicle and Traffic Law, § 2411 Negligence in the use of operation of an ATV shall be attributable to the owner. Every owner of an ATV used or operated in this state shall be liable and responsible for death or injury to person or damage to property resulting from negligence in the use or operation of such ATV by any person using or operating the same with the permission, express or implied, of such owner, provided, however, that such operator's negligence shall not be attributed to the owner as to any claim or cause of action accruing to the operator or his legal representative for such injuries or death.

The Appellate Division, Second Department, in a decision dated July 5, 2011, Mikelinich v Caliandro, 2011 NY Slip Op 5800, addressed the question as to whether an owner, who is liable by statute for the actions of the defendant permissive user, can recover against that operator in an action for personal injuries. Rejecting the defendant's claim that the various liability imposed by VTL 2411 is a bar to recovery to the owner injured in an accident with his own ATV, the Court stated, " Contrary to the defendants' contention, we discern no basis for interpreting Vehicle and Traffic Law § 2411 differently from Vehicle and Traffic Law § 388. The interpretation the defendants offer, that an owner is barred from recovering against a permissive operator, was rejected long before Kalechman (see Kleinman v Frank, 34 AD2d at 121; Webb v Elmira Water, Light & R.R. Co., Inc., 144 Misc at 506). The language of the two statutes is nearly identical, and the Legislature has used similar language in defining the vicarious liability of vessel owners and snowmobile owners (see Parks, Recreation and Historic Preservation Law § 25.23; Navigation Law § 48). While the defendants assert that a different interpretation should be given to Vehicle and Traffic Law § 2411 so as to prevent the plaintiff "from profiting by his own actions in causing his alleged injuries," the comparative negligence statute (see CPLR 1411) will ensure that the plaintiff will not recover for damages resulting from his [or her] negligence, if any, in causing the accident. Moreover, the defendants' interpretation would subvert the policy behind statutes such as Vehicle and Traffic Law §§ 388 and 2411 by curtailing liability, when they were designed to broaden it (see Kalechman v Drew Auto Rental, 33 NY2d at 403-404)."

Read full decision here.