Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

By Lawrence N. Rogak. Brand Medical Supply v. Unitrin Advantage Ins. Co., 2020 NY Slip Op 50687 (App Term 2d Dept) Many kinds of lawsuits require, or at least employ, expert witnesses on a wide variety of topics, and indeed it seems that for every topic there is an expert somewhere who is willing to testify (and another one willing to refute them). One issue frequently encountered in using experts is the timing of the disclosure to the adverse party of the identity and substance of the expert’s opinion. Very often, courts hold that the expert witness disclosure required by CPLR 3101(d), if demanded by one’s adversary, must be made prior to filing the Note of Issue, with the penalty being preclusion (see, e.g., Kozlowski v. Oana, 102 AD3d 751 (2d Dept 2013 [defendant’s expert precluded in dental malpractice suit]). In the context of New York no-fault litigation, experts (usually employed only by defendants) are often precluded on the grounds of late disclosure as well. But now, the Appellate Term has carved out an exception to the timely disclosure rule where the expert is a peer review doctor upon whose opinion the claim was denied and whose report was annexed to an earlier summary judgment motion. At the trial, defendant’s only defense was the medical necessity of the services at issue (as is often the case in New York no-fault suits). Defense counsel called its expert witness, the peer review doctor, to the stand, and plaintiff’s counsel objected on the grounds that a formal response to its demand for expert witness disclosure had never been served. The trial judge...
Case by Case: Are Social Security Numbers Discoverable?

Case by Case: Are Social Security Numbers Discoverable?

By Peter M. Dunne. A Social Security Number is discoverable in a personal injury case because it is reasonably calculated to lead to admissible evidence. Claims of privacy and concerns for identity theft will not bar discovery of a Social Security Number. Zbigniewiwcz v. Sebzda, 58 Misc 3d 1217(A), 94 NYS3d 541 (Erie County 2018). However, the request should properly be in the form of a discovery demand, preferably attached to a demand for authorizations, and not in a Bill of Particulars. The Courts have held that a demand for a Social Security Number in a Bill of Particulars is improper as it does not serve to amplify the pleadings and, instead, it is evidentiary in nature and, thus, more properly made in a discovery demand.  In Kupferberg v. State, 97 Misc. 2d 519 (Ct Cl 1978) the Court stated that the decedent’s Social Security Number was “not material to any element of the causes of action alleged, and would not serve to amplify any aspect of the pleadings. The primary usefulness of the decedent’s Social Security Number is as a tool for acquiring evidence. Since evidence itself is not the proper subject of a Bill of Particulars, a mere device for its acquisition is a fortiori inappropriately requested. Item 17 is therefore stricken.” That being said, it is clear that a claim of privacy cannot bar the discovery of Social Security Numbers in personal injury cases where defendants are able to show that they are necessary or indispensable for defendant to obtain relevant records such as medical records, perform prior claim searches, determine liens, etc.  Zbigniewiwcz v. Sebzda, 58...
Case by Case: Balance of Power: “Liberal Governor” Vetoes Two Progressive Backed Drastic Tort Bills

Case by Case: Balance of Power: “Liberal Governor” Vetoes Two Progressive Backed Drastic Tort Bills

By Thomas M. Bona. For many years, the balance of power in Albany in the Legislature was that the Democrats controlled the Assembly and the Republicans controlled the State Senate.  Although the Democrats tried many times, they could not get enough votes in the Republican Senate to pass many bills that they sought.  Over the years this was fairly standard.  The Republicans maintained a narrow majority in the Senate which blocked most of the Assembly’s bills where they could not garner Republican support.  Even when the Senate Republicans lost a straight majority, they managed to cobble together a majority by banding together with some breakaway conservative Democrats who were vilified by their own party for handing the balance of power again to the Republicans.  In 2018 that all changed when Democrats won a majority of the Senate seats thus ensuring that they would be able to pass whatever legislation they saw fit.  This past year, they passed two pieces of legislation which would have greatly impacted civil litigation in New York. General Obligations Law §15-108 The first bill would have amended § 15-108 of the General Obligations Law which sets forth how a settling defendant’s share of liability or payment is to be accounted for when there is a verdict.  As you may know, § 15-108 of the General Liability Law allows a non-settling defendant to reduce their liability to the plaintiff by the greater of the amount of the settlement or the equitable share of damages of the settlor by a verdict.  This calculation would be made after the verdict on damages was rendered against the non-settling defendant. ...
Case by Case: Court of Appeals: Out-of-Possession Landlord

Case by Case: Court of Appeals: Out-of-Possession Landlord

By Wendy Eson and Marc H. Pillinger. In a recent decision, He v. Troon Mgmt., Inc., 2019 WL 5429374 (N.Y. Oct. 24, 2019), the Court of Appeals [reversed the First Department and] held that an out-of-possession landlord is liable for a violation of NYC Administrative Code Section 7-210 – failure to maintain the sidewalk and keep it clear of snow and ice. The Court found that “while an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance imposed under section 7-210”. The Court noted that the landlord can still seek indemnification from its tenant, if the tenant has agreed to maintain the property in the landlord’s absence. This case emphasizes the importance of having a lease with contractual indemnification language and insurance requirements between the Landlord and Tenant.  In addition, the Landlord must make sure that the tenant has appropriate insurance in place, because we are now dealing with a non-delegable duty for a Landowner under Section 7-210. Should you have any questions, please call our office at (914) 703-6300 or contact: Marc H. Pillinger, Executive Partner mpillinger@pmtlawfirm.com Jeffrey T. Miller, Executive Partner jmiller@pmtlawfirm.com Thomas M. Bona, Partner tbona@pmtlawfirm.com...
Case by Case: Auto Policy Held Primary in Construction Accident

Case by Case: Auto Policy Held Primary in Construction Accident

By Lawrence N. Rogak. First Mercury Insurance Co. v State Farm Mutual Auto Ins. Co., 2019 NYSlipOp 51773 (Supreme Court, New York County) (Lebovitz, j) (10/29/2019) In this declaratory judgment action arising out of an injury to a construction worker who was unloading pallets of cement from a flatbed truck, his employer’s GL carrier sought an order declaring that his employer’s auto carrier had the primary duty to defend and indemnify the owner, GC and subcontractor on the job. The Court concluded that the auto insurer, State Farm, had a duty to defend and indemnify all parties, except for the breach of contract claim against the employer. DaSilva, a construction worker employed by subcontractor Europa Construction, was injured while he was standing on the flatbed of a truck attempting to unload pallets of cement; he tripped on a pallet and then slipped on cement mixed with stones that had accumulated on the floor of the truck. Europa was insured, under different policies, by plaintiff First Mercury Insurance Company and by defendant State Farm Mutual Automobile Insurance Company. DaSilva, sued the property owner and general contractor, who in turn brought third-party complaints against Europa. First Mercury then brought this DJ against State Farm, seeking a judgment that State Farm owes the primary duty to defend and indemnify Europa, the property owner and the general contractor in the underlying personal-injury action. First Mercury also sought reimbursement of the attorney fees and costs that it expended defending the underlying action. First Mercury then moved for an order declaring that State Farm must: (i) defend and indemnify Europa against the third-party claims brought against it...
Case by Case: Our Clients Speak

Case by Case: Our Clients Speak

By Thomas M. Bona & John J. Tambascia. Sage Advice and Constant Support We who are in this business of defending our clients when they have an accident can become somewhat immune to the reality that when there is an accident and the client is sued, this will be a very stressful, strange and likely long experience.  Here at Pillinger Miller Tarallo, LLP (“PMT”), our experienced lawyers never forget that our clients are just like us and our families who sometimes get thrust into unfortunate situations.  It is always in our uppermost mind to treat our clients with respect, dignity, care, and compassion. A recent case in which we were involved, where we achieved a very good result in a horrific accident, demonstrates how our clients come to rely upon us for sage advice and constant support.  The accident happened in March 2015 when our client was parking their vehicle and crashed through an AT&T store.  The client’s vehicle came to stop well within the confines of the store and in the process, three patrons inside the store were injured, one fatally.  The entire incident was captured on video from multiple angles. The first patron, plaintiff #1, was a woman in her 50’s who was behind the display, knocked over and dragged.  It wasn’t until the client’s vehicle came to a complete stop, that anyone even noticed that she was under the vehicle.  Some 16 patrons and bystanders picked up the vehicle and pulled her from under the vehicle.  She was writhing in pain, and unfortunately, succumbed to her injuries at the ER later that day. The second patron,...