NY Governor Suspends Statute of Limitations

NY Governor Suspends Statute of Limitations

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...
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. ...
Changes in Kings County As To Jury Selection and New Mandatory Alternative Dispute Resolution

Changes in Kings County As To Jury Selection and New Mandatory Alternative Dispute Resolution

By Marc H. Pillinger. New trial procedures will be going into effect on January 1, 2020, in Kings County.  When you select a jury after January 1, 2020, when you finish picking, you will immediately report for assignment and be sent out for trial on that day.  Under the new system, “cases will be assigned to a trial judge immediately upon selection of the jury.”  There will no longer be a pick and pass system for Supreme Court, Kings County.  So, hypothetically, if thirty cases are sent out to pick, Administrative Judge Knipel assures the Bar that he will have rooms to pick in the jury selection area.  Judge Knipel also stated that there should not be any “serious problem in terms of a backlog.”  This change was objected to by both the plaintiffs’ and the defendants’ bar. Furthermore, going forward, the “pick date” will be two weeks before Standards & Goals is reached instead of the current three. This change will require earlier planning for witnesses and experts.  It appears that Affidavits of Engagement will not be honored. Kings County has also started a new mandatory Alternative Dispute Resolution (ADR) Plan.  This new procedure is to expedite the early resolution of civil litigation.  In the new system, according to Judge Knipel, approximately 45 to 60 cases will be randomly selected for ADR on a daily basis.  Many of these cases will be chosen for ADR 45 days after a Preliminary Conference is held.  This will result in ADR being held, in most cases, prior to depositions being conducted. This new program went into effect on November 12, 2019. ...