by PMT | Sep 4, 2020 | COVID-19, News
By John A. Risi. September 2020 – Update As New York State settles into its “new normal,” Governor Cuomo continues to issue executive orders addressing matters from school openings to procedures for public hearings. His latest Executive Order (EO-260), dated September 4th, 2020, continues the tolling of the Statute of Limitations through October 4th, 2020, with a minor exception lifting the toll relative to the time to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. July 2020 – Update While all regions of New York State are in different phases of the re-opening process, as new COVID-19 cases largely remain at their lowest levels in New York State, Governor Andrew Cuomo continues to take a more cautious approach to re-opening, which can be seen in his most recent Executive Order. The Order (202.48), continues to toll New York’s statute of limitations for the commencement of lawsuits and even the filing of Notices of Claim (a legal pre-requisite to commencing litigation against governmental entities and municipalities) through August 5, 2020. The governor had initially taken this step on March 20, 2020 and signed subsequent orders continuing the toll, including his most recent order of July 6, 2020. Included in the tolling are any specific time limits relating to notices (such as a Notice of Appeal) and motions. PMT will continue to follow important developments such as this most recent Executive Order and keep our valued partners abreast of all matters of significance to our shared business interests as we appreciate the recent...
by PMT | Jul 6, 2020 | News, PMT Wins
By Thomas M. Bona and James C. Miller. Court: Supreme Court of the State of New York – Orange County Judge: Maria S. Vasquez-Doles Case Type: Slip and Fall / Premises Liability Caption: Estelle Brown, Individually, and Estelle Brown as Executrix of the Estate of et al v. Patriot Ridge Condo et al. Index No.: EF002053-2017 Decision Date: May 11, 2020 Decision: Summary Judgment As everyone is reminded during jury selection, there is a difference between making a claim and proving a claim. At PMT, we pride ourselves in every case we defend on putting the plaintiff to their proof and challenging them to prove their case. A recent case in which we won summary judgment for our client illustrates this. In Brown v. Patriot Ridge Condominium, plaintiff fell on black ice near the end of her driveway on December 29, 2016. Plaintiff, a 73-year-old woman, suffered serious physical injuries. The testimony that we developed from the plaintiff, our client and non-party witnesses showed that it had rained earlier in the day and then freezing temperatures descended on the area shortly before the plaintiff fell. We established that in the area where plaintiff fell and throughout the condominium complex, there had been no ice an hour and a half before plaintiff’s fall, but that ice had developed throughout the condominium development during the course of that next hour and a half. We argued that there was no actual or constructive notice of the condition that would have provided sufficient time for our client to remedy the condition. In addition, we argued that there was a storm in progress so...
by PMT | Jun 26, 2020 | Case by Case, News
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...
by PMT | May 5, 2020 | News, PMT Wins
Court: Supreme Court of the State of New York Appellate Division: Second Judicial Department Case Type: Construction Caption: Nazrul Islam, Appellant, v. HPENY Housing Development Fund Company, Inc., et al., Respondents (and a third-party action). Index No.: 501699/15 Decision Date: April 29,2020 Decision: Case Dismissed, Affirmed on Appeal Persistence pays off. A recent case in which the Appellate Court affirmed dismissal of a case demonstrates the advantage that PMT brings to each case. In Nazrul Islam, Appellant, v. HPENY Housing Development Fund Company, Inc., et al., Respondents (and a third-party action), plaintiff brought an action claiming personal injuries as a result of a fall in the basement of a premises at which he was working. Following a number of repeated failures to abide by Court Orders, we served plaintiff with a 90-day Notice. Subsequently, we moved to dismiss all claims for plaintiff’s failure to prosecute. The motion was heard by Judge Larry D. Martin in Supreme Court, Kings County, who granted the motion in its entirety and dismissed the complaint. Plaintiff appealed the lower Court’s dismissal of the case, arguing that “law office failure” should excuse the default in complying with the 90-day Notice. In response, we argued that law office failure is not applicable and/or should not excuse the default in this case because the departing attorney was, in fact, still with the firm during the 90-day period, that one attorney’s failure to properly handle a matter cannot serve to excuse the law firm as a whole and that this is especially so here since this was an e-filing case and the 90-day Notice had been emailed to...
by PMT | Feb 20, 2020 | Case by Case, News
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...
