iNews June 2014 - In This Issue:
Trial Tips
How to Use Surprises at Trial to Your Advantage
by Frank Scahill

 

Even after 30-years in the business, there are always "Surprises" on trial. 

This month found us in Nassau County with a three-week trial that had a host of surprises. First, the case went much longer than expected starting on May 20th and ending June 9thThe Plaintiff was a 44-year old plumber who claimed a back injury from a car accident in 2006, forcing him out of work and ultimately to lumbar disc surgery in 2013 by 

Dr. Richard Radna. The Plaintiff was on permanent SSI Disability and claimed $1.4 million in lost earnings and another $1 million in future medical expenses. 

 

Plaintiff''s experts included Dr. Radna, who brought his own 3-D video of the surgery. During his testimony, 3-D glasses were provided by Dr. Radna for all of the jurors, the Judge and counsel, allowing all of us to watch his 3-D video of the surgery. This was a first for me, and for the Court. The jurors were stunned by the spectacle of this show. Needless to say, this did not go over too well in Nassau and I had a field day on summation commenting on the 3-D video and Dr. Radna's testimony. 

 

The Plaintiff took out a $75,000 cash loan from "Case Cash Funding" (great name) to pay 

Dr. Radna for the surgery, all orchestrated by Plaintiff's counsel. That did not go over too well in Nassau either. I had a feeling things were going my way when the jurors reacted to those comments. Attached is a copy the direct and cross of this Neurosurgeon, who we have seen on hundreds of files over the years. 

 

The 3-D video was just one of the surprises encountered in this trial. The other was what I thought to be a fatal error on the Plaintiff's part, which was the failure to air the Plaintiff's "dirty laundry" in jury selection. Here, five women were chosen for the main panel of jurors, ranging in age from 

35 to 65. All were working mothers who spent their lives working hard and caring for their families. The Plaintiff in this case did two stints in jail, one prior to the accident with our client, and one after on Family Court warrants. Why a Plaintiff would not bring that up in jury selection is beyond me. Waiting for me to ask the questions on cross-examination is never a good thing for the Plaintiff. If you are going on the chance that defense counsel will not check it out, especially on a heavy case, that is an error. In summation, Plaintiff's counsel tried to paint his client as an "imperfect person" who was severely harmed by the Defendant's negligence. It was too late at that point. The jury deliberation took about 40 minutes before a defense verdict was reached.

 

So the takeaways on this trial were many; thankfully the jury saw things our way. What works for the defense in Nassau, does not go over well in Kings or the Bronx, and the same holds true for the plaintiff. Ultimately you have to know your audience.

 


Results that Matter


 Congratulations to Rich Brown for a great result on June 10, 2014 in the case of Opal Stevens v. Absolute Trucking, Inc. in Kings Co. (Index No; 14869/11). The case was tried with "high/low" parameters of $25,000 - $225,000 in a Summary Jury Trial before Judge Solomon. The Jury verdict was $0 for pain and suffering (past and future) and $9,000 for lost wages. And, we were only found 60% at fault. Absent the "high/low", our client's share would have been $5,400. Great result Rich!

 

 

Congratulations to Lester Rodriguez for his verdict in Kings County before Judge Spodek on May 30th in the case of NOILYA AHADOVA v. NER BRESLER and MARK LOVY, Index No.: 20241/2011. The jury awarded the Plaintiff $56,000 for past lost earnings and $50,000 for past pain and suffering with no award for suture alleged damages. The Plaintiff, a pedestrian, sustained fractures of the ulnar and radius bones in the right arm. She underwent open reduction internal fixation on August 30, 2011. In addition, her scalp was lacerated and was stapled closed. She was discharged from the hospital three days post accident. Among other challenges, our client was not present; suffering from Bi-Polar disorder; and on suicide watch at Staten Island Hospital. Despite a finding of 100% liability against our client, the award was less than our stipulated "high/low" agreement of $150,000. Great Result Lester!

 

 

 

Congratulations to Al Galatan for a great result in the Appellate Division, Second Department in the matter of State Farm Ins. Co. v Kathleen Walker-Pinckney (2014 NY Slip Op 04018) decided on June 4, 2014. Here, the Appellate Division reversed the decision of J.H.O. Colabella of Westchester County and granted a permanent Stay of Arbitration. The Lower Court accepted testimony that the insured vehicle was stolen at the time of the accident, triggering the injured party's right to Supplementary Uninsured Motorist Coverage. The Appellate Division agreed with our argument, that under the facts presented, the Vehicle and Traffic Law Section 388's "presumption" of permissive use was not overcome by the testimony of the vehicle owner. Way to Go Al! Read the decision here.

 

 

Congratulations to Frank Scahill for a defense verdict on threshold grounds in the case of Byron Kjono v. Barbara Held (Index No 6792/07) on June 9, 2014 before Judge Brown in Nassau County after a three week trial. Despite a finding of 100% liability against our client on damages, the jury found that the Plaintiff failed to sustain a causally related injury. The Plaintiff, a 44-year old plumber, was out of work since 2007 on Social Security Disability for a back injury that required lumbar surgery in 2013 by Dr. Richard Radna. Plaintiff's counsel requested an award of $1,400,000 on lost wages alone. Four experts testified for the defense; three for the plaintiff. Nice result on a trial that went the full 15-rounds.

  

Appellate Decisions of Note


Reasonableness of Two-Year Replacement Cost Provision

 

On a certified question from the Second Circuit, the New York State Court of Appeals, in Executive Plaza v Peerless Insurance Co. (22 N.Y.3rd 511) held that a two-year Statute of Limitations found in a fire insurance policy to be void as a matter of law, where the insured's replacement costs could not be readily ascertainable in the two year period. 

 

The Second Circuit sent the following question to the Court of Appeals:

 

"If a fire insurance policy contains (1) a provision allowing reimbursement of replacement costs only after the property was replaced and requiring the property to be replaced 'as soon as reasonably possible after the loss' and (2) a provision requiring an insured bring suit within two years after the loss, is an insured covered for replacement costs if the insured property cannot reasonably be replaced within two-years?" 

 

Plaintiff owned an office building in Island Park, New York, that was damaged in a fire on February 23, 2007. Plaintiff had $1 million in insurance coverage from Peerless, under a policy that gave the insured a choice between the payment of "actual cash value" and "replacement cost". The policy stated:

 

"We will not pay on a replacement cost basis for any loss or damage (i) until the lost or damaged property is actually repaired or replaced and (ii) unless the repairs or replacement are made as soon as reasonably possible after the loss or damage."

 

The policy also had a "Legal Action Against Us" clause, saying:

 

"No one may bring a legal action against us under this insurance unless: ...b. The action is brought within two-years after the date on which the direct physical loss or damage occurred." 


The replacement building was completed in October 2010 and Plaintiff demanded payment of the unpaid portion of the policy limits. Peerless denied liability on the grounds that the two-year period had expired. Peerless was successful in the Federal District Court and Executive Plaza sought an appeal to the Second Circuit Court of Appeals, who looked to New York's Highest Court for an answer to the certified question above. 

 

The Court of Appeals answered the certified question in the affirmative stating: 

 

"It is neither fair nor reasonable to require a suit within two-years from the date of the loss, while imposing a condition precedent to the suit - in this case, completion of replacement of the property that cannot be met within that two-year period. A 'limitation period' that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim. It is true that nothing required defendant to insure Plaintiff for replacement cost in excess of actual cash value, but having chosen to do so, Defendant may not insist on a 'limitation period' that renders the coverage valueless when the repairs are time-consuming."

 

  Read the decision here.

 


Practice Tip for Anyone Traveling North this Summer - CPLR 3101(d)

 

If you find yourself on a case in the Third Department, know the local rule on expert disclosure:   

 

"Except as otherwise directed by the Court, a party who has the burden of proof on a claim; cause of action; damage or defense; shall serve its response to an expert demand pursuant to CPLR 3101(d) on or before the filing of the Note of Issue. Such party has until the filing of the Note of Issue to serve such response regardless of how early the demand is made. Any opposing party shall serve its answering response pursuant to CPLR 3101(d) within 60 days after the filing of the Note of Issue. Any amended or supplemental expert disclosure shall be allowed only with the permission of the Court. Unless the Court directs otherwise, a party who fails to comply with this rule is precluded from offering the testimony and opinions of the expert for whom a timely response has not been given."

 

Your trip to the Catskills and beyond this Summer may really be spoiled by failure to heed this rule.

 

Read CPLR 3101(d) here.

 

 

 Decision Regarding a Municipality's Liability in a Personal Injury Claim

 

The Denesmouth Arch in Central Park is one of many architectural jewels in New York's premier parkland. One of Vaux's earliest arches, the Denesmouth Arch supports the 65th Street transverse and it is the only transverse arch that is highly ornamented. Its four large posts originally carried ornate bronze lampposts.

 

Denesmouth Arch, Central Park, New York

 

So what does that have to do with our practice? Well, on November 5, 2005, Rhonda Wittorf was riding a bicycle at this location, as thousands of people do ever every year. A work crew from the City was also present and was in the process of closing the road to repair a roadway defect. Rhonda asked Donald Bowles, the NYC DOT supervisor on the scene, if she could pedal through even though the City workers were putting up cones to stop traffic. Bowles replied it was "ok to go through". 

 

Of course Rhonda found the defect that the DOT was there to repair and her personal injury claim against the City found its way to the Court of Appeals. On  June 5th, Judge Graffeo, issued a unanimous opinion on the City's negligence in Wittorf v City of New York (2014 NY Slip Op 04037). The City claimed immunity. It did not receive written notice of the condition at least 

15-days prior to the accident, as required by the Pothole Law (Administrative Code of the City of New York Section 7-201 [c]; [2]). 

 

The Plaintiff argued, and the Trial Court jury agreed, that the DOT supervisor was negligent in permitting the Plaintiff and her companion to enter the 65th Street transverse and that such negligence was a substantial factor in causing her injuries. 

 

The Lower Court set aside the verdict, holding that Bowles was performing a governmental function when he closed the transverse to vehicular traffic and the City was, therefore, immune. The Appellate Division affirmed (104 A.D.3d 584) with a dissent by Judge Manzanet-Daniels.

 

Judge Graffeo explained the framework that must be used when a negligence claim is asserted against a municipality, citing Applewhite v Accuhealth, Inc. (21 NY3d 420 [2013]). 

 

"First, a court must decide 'whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose' (id. at 425). If the municipality's actions fall on the proprietary side, 'it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties' (id., citing Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 446-447 [2011]). A governmental entity undertakes a proprietary role when its 'activities essentially substitute for, or supplement, traditionally private enterprises' (id., quoting Sebastian v State of New York, 93 NY2d 790, 793 [1999]). 

 

In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public, pursuant to the general police powers (id. [internal question marks and citation omitted]). 

 

Generally, 'the distinction is that the government will be subject to ordinary tort liability if it negligently provided services that traditionally have been supplied by the private sector' (id. at 426). 

 

In deciding whether a function is proprietary or governmental, a court examines 'the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred' (Miller v State of New York, 62 NY2d 506, 513 [1984])."

 

Under these rules, the Court of Appeals found, 

 

"... that Bowles was engaged in a proprietary function at the time he failed to warn the Plaintiff of the conditions in the transverse. Bowles was in Central Park on the day of the accident specifically to oversee the road maintenance project in his capacity as a NYC DOT supervisor. At the time, he failed to warn the Plaintiff and he was blocking the transverse to vehicular traffic in preparation for that road repair. Although the maintenance work had not yet begun, Bowles and his crew could not have repaired the roadway without having closed the road to traffic. In other words, his act of closing the entry to vehicular travel was integral to the repair job - a proprietary function. Consequently, under the circumstances of this case, we conclude that Bowles was performing a proprietary function and the jury could therefore assess the City's conduct under the ordinary rules of negligence."

 

Read decision here.

 

 

Opposing Plaintiff's Attempts to Supplement a Bill of Particulars

 

We frequently find p\Plaintiffs attempting to supplement their Bill of Particulars in response to our threshold Summary Judgment motions under Insurance Law Section 5102(d). 

 

We have successfully opposed those applications using the March 2014 Appellate Division, First Department decision in Henchy v. Vas Express Corp. (115 A.D.3d 478) in our favor. Here the Appellate Court stated: 

 

"Plaintiff opposed the motion and cross-moved to amend the Bill of Particulars, submitting a proposed 'Amended and Supplemental Bill of Particulars', seeking, inter alia, to assert injuries to the lumbar spine and cervical spine. 

 

The evidence submitted by Plaintiff in opposition to the motion failed to raise an issue of fact as to serious injury to the knee, because her records show that she did not receive treatment for the left knee until October 12, 2009, six months after the accident, and the MRI study showing tears was not performed until November 2009, 7-months after the accident. 

 

Her failure to provide contemporaneous objective evidence of injury to, or limitations in, the left knee is fatal to her claims concerning the knee (see Perl v. Meher, 18 N.Y.3d 208, 217-218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011]; see also Rosa v. Mejia, 95 A.D.3d 402, 404, 943 N.Y.S.2d 470 [1st Dept. 2012]; Cabrera v. Gilpin, 72 A.D.3d 552, 553, 899 N.Y.S.2d 211 [1st Dept. 2010])

 

In light of this, her physician's conclusory opinion on causation does not sufficiently rebut the detailed findings of degenerative changes made by Defendant's Radiologist (see Soho, 85 A.D.3d at 523, 925 N.Y.S.2d 456; Lopez v. American United Transp., Inc., 66 A.D.3d 407, 886 N.Y.S.2d 157 [1st Dept. 2009] ), and Plaintiff's Physical Therapist's conclusions on permanency, significance, and causation are incompetent evidence (see Tornatore v. Haggerty, 307 A.D.2d 522, 522-523, 763 N.Y.S.2d 344 [3d Dept. 2003]; Evans v. Beebe, 267 A.D.2d 828, 699 N.Y.S.2d 803 [3d Dept. 1999], lv. denied 94 N.Y.2d 762, 708 N.Y.S.2d 51, 729 N.E.2d 708 [2000] )."

 

Read decision here.

 


No-Fault Decision of Note


Arbitration Clause Upheld in Allstate No-Fault Claim

 

Another interesting decision out of the Second Circuit Court of Appeals on No-Fault litigation was issued on May 6, 2014 in the case of Allstate Insurance Co. v. Mun (Docket No. 13-1424). 

 

In this case, Dr. David Mun and Nara Rehab Medical, P.C., billed Allstate about $500,000 for "Electro-diagnostic Testing" purportedly performed on covered persons between October 2007 and October 2011. Allstate relied on Defendants' documentation and reimbursed the claims promptly. 

  

In August 2012, Allstate filed suit against Defendants, alleging that they had fraudulently billed Allstate for testing that was fabricated or, of no diagnostic value, and seeking recovery under theories of common law fraud and unjust enrichment and under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c). The Defendants moved to compel arbitration which was denied by the District Court.  

 

Section 5106 of the New York Insurance Law provides, in relevant part:

 

(a) Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty-days after the claimant supplies proof of the fact and amount of loss sustained.... (b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer's liability to pay first party benefits, or additional first party benefits, the amount thereof, or any other matter which may arise pursuant to subsection (a) of this section, to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. Such simplified procedures shall include an expedited eligibility hearing option, when required, to designate the insurer for first party benefits....

 
N.Y. Ins. Law § 5106(a) (b) (emphases added). "First party benefits" are defined as "payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle." Id. § 5102(b). A regulation implementing § 5106(b) requires that a "policy of liability insurance issued" on a motor vehicle include the following provision:

 

Arbitration. In the event any person making a claim for first-party benefits and the Company do not agree regarding any matter relating to the claim, such person shall have the option of submitting such disagreement to arbitration pursuant to procedures promulgated or approved by the Superintendent of Financial Services. N.Y. Comp.Codes R. & Regs. tit. 11, § 65-1.1(a), (d)

 

In  a victory for the Insurance Industry, the Second Circuit held, 

 

"New York's arbitration process for no-fault coverage is an expedited, simplified affair meant to work as quickly and efficiently as possible. See N.Y. Comp. Codes R. & Regs. tit. 11, § 65-4.5 (setting out "[s]pecial expedited arbitration" procedures). Discovery is limited or non-existent. See id. Complex fraud and RICO claims, maturing years after the initial claimants were fully reimbursed, cannot be shoehorned into this system. Allowing the providers to elect arbitration in these actions would also undercut anti-fraud measures that the New York legislature encouraged. The State requires insurers to file plans 'for the detection, investigation and prevention of fraudulent insurance activities.' N.Y. Ins. Law § 409(a). These plans must provide for the 'coordination with other units of an insurer for the investigation and initiation of civil actions' to recover amounts paid in medical provider frauds. Id. § 409(c)(4) (emphasis added). Our reading of § 5106 allows insurers to actively combat fraud without impairing the system of prompt insurer reimbursement."

  

Read the decision here.

  


STAY CONNECTED

Facebook   Twitter   LinkedIn   Pinterest

Disclaimer:
This newsletter is for education and information purposes only, and is not intended to provide legal advice. No attorney-client relationship exists or is created by the use of this newsletter or the information provided herein. This newsletter should not be used as a substitute for competent legal advice from a professional attorney in your state.

 

Attorney Advertising. Prior results do not guarantee a similar outcome.

Picciano & Scahill, PC

900 Merchants Concourse Suite 310
Westbury, NY 11590
516.294.5200  
For more information 
contact Frank Scahill 

 

 


Copyright © 2014 Picciano & Scahill, P.C.  All Rights Reserved.