Andrea Ferrucci manages our Summary Judgment division and has a very impressive track record of success. She recently obtained two favorable Appellate Decisions in October regarding the serious injury threshold under Insurance Law 5102(d). 

In Maksim Krasnyuk v . Jennifer L. Cocchi, decided on October 16, 2013 (973 N.Y.S.2d 562); the Court reversed the order of Judge Fusco from Richmond County and dismissed the action holding, "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 plaintiff's knees 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). 

The defendant also submitted evidence establishing, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Richards v Tyson, 64 AD3d 760, 761)."

In David Irizarry v Tamara Lindor (973 N.Y.S.2d 296), also decided on October 16, 2013, the court reversed Judge Kramer from Kings County. The issue in this proceeding was the admissibility of medical reports the plaintiff attempted to use to defeat a serious injury threshold motion. 

Defense counsel should keep this quote for future use when the need arises:
 

"The certification of the medical records and reports by the records custodian of the subject  medical facility was not sufficient to properly place the medical conclusions and opinions contained in those records and reports before the court, since those opinions must be sworn to or affirmed under the penalties for perjury (see McLoud v Reyes, 82 AD3d 848, 919 N.Y.S.2d 32; Buntin v Rene, 71 AD3d 938, 896 N.Y.S.2d 894; Pagano v Kingsbury, 182 AD2d 268, 270, 587 N.Y.S.2d 692). Consequently, the various unaffirmed conclusions and opinions of the plaintiff's treating physicians were not submitted in a form necessary to oppose the motion (see Grasso v Angerami, 79 NY2d 813, 588 N.E.2d 76, 580 N.Y.S.2d 178; Balducci v Velasquez, 92 AD3d 626, 627-628, 938 N.Y.S.2d 178; Scheker v Brown, 91 AD3d 751, 751-752, 936 N.Y.S.2d 283). The plaintiff's claim that these documents should nevertheless be considered is without merit, since the plaintiff demonstrated no excuse whatsoever for failing to meet the 'strict requirement of tender in admissible form' (Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595; see Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897, 899, 922 N.Y.S.2d 562)."

Read Krasnyuk decision here and the Irizarry decision here.

You are not feeling well to begin with; you have a brief due at 5 pm; you cannot miss your daughter's 7:30 pm recital; and, you hit an hour and a half of traffic on the BQE on the way to the deposition. When you arrive you discover your adversary is possibly the biggest jerk you have ever met in your life. 

At some point in your career you are bound to face an impossible adversary during a deposition. Constant interruptions with the caveat to the party being deposed, "If you remember"; lengthy objections to questions without any basis; rude; nasty; and obnoxious. 

What do you do? Well for starters, stand your ground and do not take the abuse; make a record; haul the miscreant before the assigned Judge if possible; and, make the necessary motion.

DFB Sales, Inc. v. Captains Neck Development, LLC, published on October 15, 2013, (7079/12) authored by Judge Feinman from Nassau County Supreme Court provides some solace to those battered and bruised by contentious depositions. Here the court sanctioned counsel for directing a witness not to answer a question and leave the deposition. The court cited two rules which were implemented to eliminate this bad behavior.

Part 221.2 of the Uniform Rules for the New York State Trial Courts provides that a deponent shall answer all questions at a deposition except those preserved by privilege or right of confidentiality, questions limited by order of the Court, or a question plainly improper which if answered, would cause significant prejudice to any person (emphasis added). A direction not to answer shall be accompanied by a succinct and clear statement of the basis thereof. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition.

Part 221.3 of the Uniform Rules for the New York State Trial Courts provides that an attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication was made for the purpose of determining whether the question should not be answered on the grounds set forth in Section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.

Yes it creates more work to make the motion, however, if you are right, you cannot let the "Deposition Bully" get away with bad behavior. Cite this case and make the motion.

On November 13, 2013, Governor Cuomo signed New York's newest, "Anti-Subrogation" legislation into law. This new bill eliminates federal preemption of New York's General Obligations Law §§ 5-101; 5-335 that prevents health insurers from seeking reimbursement from plaintiffs on settlements reached in personal injury claims. 

The law was passed in response to a recent federal court decision in Wurtz v. Rawlings Co., LLC, 2013 WL1248631 (E.D.N.Y. Mar. 28, 2013). 

The law is effective immediately and applies to all settlements entered into on or after November 12, 2009. 

2) Except for those payments made by Medicare, Medicaid or an insurer providing Workers' Compensation benefits for which there is a statutory right of reimbursement, no defendant that enters into a settlement with the personal injury or wrongful death plaintiff shall be thereafter subject to any insurers' claim for subrogation or reimbursement.

A copy of the new bill is attached. 

Joan Brumberg was at a fundraising event in New York City for Cornell University. Cipriani  USA was the caterer for the event. At the event Ms. Brumberg had assorted hor d'oeuvres from about 5:45 p.m. to 6:15 p.m. and a half-hour later had a sharp abdominal pain. 

She sought medical advice later in the evening. She continued experiencing pain and sought medical care until, about two weeks later, a wood shard was discovered and removed during an endoscopy. Internal injuries caused by the shard necessitated two surgeries. An obvious questions for the defense of this case, How could the plaintiff prove the wood shard was ingested at the event?

In Brumberg v. Cipriani USA 973 N.Y.S. 2nd 401 decided by the Third Department on October 17, 2013, the Plaintiff successfully invoked Res Ipsa Loquitor. Clearly the plaintiff was given the benefit of the doubt on the "Exclusive Control" issue.

Criteria for res ipsa loquitur to apply are that

"(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;

 

(2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and]

 

(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff" (Morejon v Rais Const. Co., 7 NY3d at 209 [quotation marks and citations omitted]; see James v Wormuth, NY3d, 2013 NY Slip Op 4839, [2013]). The parties dispute the exclusive control element and, to establish that element, plaintiffs were "not obligated to eliminate every alternative explanation for the event, but only to demonstrate  that the likelihood of causes other than the defendant[s'] negligence is so reduced that the greater probability lies at defendant[s'] door, rendering it more likely than not  that the injury was caused by defendant[s'] negligence" (Norton v Albany County Airport Auth., 52 AD3d 871, 875, 859 N.Y.S.2d 296 [2008] [internal quotation marks and citations omitted]; see Corcoran v Banner Super Mkt., 19 NY2d 425, 431-432, 227 N.E.2d 304, 280 N.Y.S.2d 385 [1967])."

Read the decision here.

Judge C. Stephen Hackeling of Suffolk County District Court issued a brutal decision for insurance carriers on a No-Fault issue that is likely to be appealed. 

Doctor of Medicine in the House, P.C., a/a/o Bullen v. Allstate Insur. Co., (3210/11), interpreted the fee schedule proscription on billing for more than eight units per day found in Paragraph 11 of the New York Worker's Compensation Fee Schedule, under Multiple Physical Medicine Procedures and Modalities, "When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less."

The parties stipulated to a framed issue trial and asked the Court to direct judgment resolving the issue of whether paragraph 11 of the New York Compensation Medical Fee Schedule limits claims reimbursement to 8.0 units (codes) per day for each provider individually or for all provider claims cumulatively. 

The Plaintiff provider submitted billing for 10 units. Allstate submitted proof it had already reimbursed other providers for 8 units of service and this claim was properly denied.

Judge Hackeling ruled: 

"It is the Court's determination that the claim benefit exhaustion concept described in regulation 11 NYCRR 65-3.15 is inapplicable to the excessive fee limitations imposed by paragraph 11 of the New York Compensation Medical Fee Schedule.... The purpose of the Workers' Compensation Medical Fee Schedule is to prevent "excessive billing" by each individual provider and not to create an "exhaustion" of benefits competition between claimants as is clearly the intent of Sec. 65-3.15.... The regulating authority could have easily included the phrase "for all claimants", if that was its intent. The interpretation of regulations must be consistent with its authorizing statute."

Keep a close eye on the appeal of this case. 

If the decision is allowed to stand as applicable law, the flood gates, which are already at the breaking point, will surely fail.

Read the decision here .