I have said many times how contentious first party PIP litigation can be in New York. Sometimes, it can also be bizarre. Promed Durable Equipment Inc. v GEICO, was decided by the Appellate Term on August 16, 2013 (2013 NY Slip Op 23283). The decision is worthy of a quick read, not for a new precedent or change of direction by the Appellate Term, but for the inexplicable contents of the Respondent's brief. 

The Court noted:

In the instant case, the brief submitted on respondent's behalf contained, among other things, pages denominated "Table of Authorities" and "Summary of the Argument" that merely state that these pages were "left blank intentionally." The "Question Presented" stated only "WHAT'S A BOY TO DO?" The remainder of the respondent's brief did not address the facts of this case or interpose any specific argument as to why the order from which defendant appealed should be affirmed. Based upon the above, and other statements in the respondent's brief, we order...counsel for defendant, to show cause why an order should or should not be made and entered imposing sanctions and costs..."

Totally bizarre I would say. 

This however, is not the winner of the most shocking submission to the Court I have ever read in a pending case in 30 years. Take a glance at the attached motion submitted to Judge Whelan in Suffolk County in 2006 in the case of Wayne Conlin v. Rob's Towing Service (30163/02). This has to be the winner, hands down!

"What's a boy to do ?"

Read the Geico decision here.

Read the motion in Rob's Towing here.

Your deposition goes very well.  The plaintiff in the slip and fall case you are defending cannot identify the cause of the fall, or in a labor law 241(6) action, the plaintiff could not establish an industrial code violation based on the facts presented. 

In your motor vehicle case, the plaintiff admits to passing a stop sign. Your are convinced a summary judgment motion will be successful and you report to your carrier the likelihood of success of the motion. 

What happens when the deposition transcript is returned to you with a 10 page errata sheet, completely changing the testimony of the plaintiff without an explanation. 

Did your summary judgment victory evaporate in the wind?

Consider Ashford v Tannenhauser (108 AD3d 735) decided on July 31, 2013  by the Appellate Division, Second Department.

"In his post-deposition errata sheet, the injured plaintiff radically changed much of his earlier testimony, with the vague explanation that he had been "nervous" during his deposition. CPLR 3116 (a) provides that a "deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of reasons given by the witness for making them." Since the injured plaintiff failed to offer an adequate reason for materially altering the substance of his deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact as to whether a defect in, or the inadequacy of, the ladder caused his fall (see Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687 [2012]; Shell v Kone El. Co., 90 AD3d 890 [2011]; Thompson v Commack Multiplex Cinemas, 83 AD3d 929 [2011]; Kuzmin v Visiting Nurse Serv. of N.Y., 56 AD3d 438, 439 [2008]). In the absence of the proposed alterations, the injured plaintiff's deposition testimony was insufficient to raise a triable issue of fact with respect to the defectiveness or inadequacy of the ladder so as to warrant the denial of summary judgment."

Keep this case at the ready when substantive changes to the deposition testimony are made by a plaintiff without adequate explanation. A question of fact is not created by post deposition amendments to the testimony unless the Court is convinced the changes were made in good faith and a reasonable explanation is provided.

Read the decision here.

At trial defending a slip and fall case, the plaintiff presents a "Safety Expert" claiming your defendant owner violated regulations promulgated by the American National Standards Institute for "slip resistance on walking and working surfaces". You object, but the jury is very impressed and finds against you. You know the law and you asked the Judge for an offer of proof from this witness. The Court allows the testimony over your objection. Now what?

Consider Gonzalez v City of New York (2013 NY Slip Op 05614) decided on August 14, 2013 by the Appellate Division, Second Department.

New York Law requires that a landowner's property must be maintained in a "reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Peralta v Henriquez, 100 NY2d 139, 144, 790 NE2d 1170, 760 NYS2d 741 [2003] [internal quotation marks and citation omitted]). 

To impose liability on an owner of premises where a slip and fall has occurred there must be proof reflecting a dangerous or defective condition which the owner created or had actual or constructive knowledge about (see Miller v Gimbel Bros., 262 NY 107, 108-109, 186 NE 410 [1933]; Lowrey v Cumberland Farms, 162 AD2d 777, 778, 557 NYS2d 689 [1990]). 

The fact that a surface which is fully or partially exposed to the elements is wet following a recent rainfall is not, by itself, sufficient to establish a triable issue regarding the liability of the owner (see Todt v Schroon Riv. Campsite, 281 AD2d 782, 783, 722 NYS2d 287 [2001]; Wessels v Service Mdse., 187 AD2d 837, 837, 589 NYS2d 971 [1992]).

In this proceeding, the Appellate Division reversed the jury finding and granted a new trial holding, 

"The Supreme Court also erred in allowing the plaintiff's expert to testify, in effect, that the defendants' conduct regarding the placement of mats was negligent because it allegedly did not comply with regulations promulgated by the American National Standards Institute (hereinafter ANSI). "[ANSI] standards do not constitute statutes, ordinances, or regulations" (Rosabella v Metropolitan Transp. Auth., 23 AD3d 365, 366; see Rabinowitz v City of New York, 286 AD2d 724, 724-725). Although the court did not charge the jury regarding ANSI standards, by permitting such testimony, it allowed the jury to improperly speculate that the defendants' conduct should be measured against a higher standard of care than is required under the common law (see Vasquez v County of Nassau, 91 AD3d 855; Conrad v County of Westchester, 259 AD2d 724, 725; see generally Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462)."

Read the decision here.

Social Security Disability records and the plaintiff's treatment records from his or her primary care physician are critical records for the defense. 

Are you entitled to these records if the plaintiff was already on disability at the time of your accident and never treated with the primary care physician for injuries alleged in your case? See Walters v Sallah decided on August 6, 2013 by the Appellate Division, First Department. 

The Appellate Division reversed Judge Douglas of Bronx County, who denied the request for the records. The defendants sought the Social Security Disability records and the plaintiff's treatment records from his primary care physician to determine whether there were any preexisting arthritis or medical disability which would be the cause of plaintiff's inability to perform substantially all of his usual daily activities.

The Appellate Court held, 

"Defendants met their burden of showing that the requested records relating to plaintiff's arthritis and disability are relevant to a physical condition that plaintiff placed "in controversy" through his deposition testimony and bill of particulars, and which he also reported to defendants' examining chiropractor (see Dillenbeck v Hess, 73 NY2d 278, 287 [1989];Pirone v Castro, 82 AD3d 431 [1st Dept 2011]). However, because of the potentially tangential nature of the discovery involved, we remand to Supreme Court for a determination of the nature of  the arthritis and disability plaintiff suffers, and to exercise its discretion to limit the discovery to reasonable parameters, including as to time frame and relevant parts of the body."

Bookmark this case for future discovery motion.

What constitutes "Use and Operation" of  a vehicle to qualify a plaintiff for Supplemental Underinsured Motorist Coverage? 

Consider these facts. On October 16, 2011, Deborah Reyes was walking in front of a Sunoco Mart, located in Poughkeepsie, while carrying two bags. As she passed in front of a vehicle parked just outside the Sunoco Mart, in an area marked "No Parking," a Rottweiler dog extended its head from inside the vehicle and bit her right breast. Ms. Reyes commenced an action against the vehicle owner and settled for the minimum limits of $25,000 from GEICO. She then sought Supplemental Underinsured Motorist Coverage (SUM) from her own carrier, Allstate Insurance Company. Is she entitled to SUM coverage in this circumstance ?

No, says the Appellate Division, Second Department in Matter of Allstate Ins. Co. v Reyes decided on August 7, 2013.

"...as a matter of law, Reyes's injuries did not result from the inherent nature of Kazimer's vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Kazimer's dog, and the vehicle merely contributed to the condition which produced the injury, namely, the location or situs for the injury. 

Allstate established that a causal relationship between the car and the incident was lacking, and Reyes failed to rebut that showing (see Empire Ins. Co. v Schliessman, 306 AD2d at 513; Eagle Ins. Co. v Butts, 269 AD2d at 559; see also Keppler v American Family Mut. Ins. Co., 588 NW2d 105; Sanchez v State Farm Mut. Auto. Ins. Co., 878 P2d 31; Alvarino by Alvarino v Allstate Ins. Co., 370 Pa Super 563; American States Ins. Co. v Allstate Ins. Co., 484 So 2d 1363). Accordingly, since coverage is lacking, the Supreme Court should have granted the petition to permanently stay arbitration."

 Read the decision here.