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Thursday, November 12, 2015

2d Judicial Department, Appellate Division Roundup: November 4, 2015 Edition

In this edition of the Roundup, we have a number of auto accident cases and some interesting, run-of-the-mill, bread-and-butter practice tips for proper timing. In general, nothing to be too excited over, but there are several decisions regarding practice that help the plaintiff's bar. More, after the jump . . . 

Rashree Singh v. City Limousine Transport, Inc.

In this threshold motion, two of the plaintiffs succeeded because the defendant failed to meet the 90/180-day category of Insurance Law 5102(d). Furthermore, the plaintiff also demonstrated that a dismissal of a comparative negligence claim was also appropriate because, even though the plaintiff’s vehicle came to a sudden stop, since it was at a stop prior to being impacted in the rear by the defendant’s vehicle, the defendant could not defeat the presumption that they were the sole negligent cause of the accident.

Shannon Green v. Canada Dry Bottling Company of New York, L.P.

In this threshold motion, the plaintiff failed to offer, for the first round of argument, a defense to the motion as its expert affirmation from the treating orthopedist was deficient under the CPLR. The plaintiff moved to renew with a supplemental affirmation from the orthopedist that showed that there may be a permanent consequential limitation of use and significant limitation of use of the plaintiff’s right shoulder.

William Hawkins v. Stewart & Clinton, Co., LLC

On January 28, 2012, Mr. Hawkins was a Fed Ex driver when he was hit by a truck in a parking lot. The parking lot was owned by Stewart & Clinton Co., LLP and leased to Fed Ex. Since the lease was put into evidence and it unequivocally placed the ongoing obligation to repair and maintain the subject parking area and the exterior lighting solely on FedEx, it was clear that Stewart had no obligation to repair or maintain the area where the accident occurred and they were an out-of-possession landlord. Therefore, only Fed Ex was a proper defendant in the case.

AMENDING ANSWER Adentuji Jeboda v. Steven Danza

The defendant sought leave to amend his answer, 1 and a half years later, to assert the affirmative defense that, at the time of the subject accident, the vehicle was being operated without his permission. And since there was no showing of prejudice, the amendment was permitted since discovery is ongoing.

PERSONAL JURISDICTION: Soichi Kuwana v. Vincent Linares

In this case, the plaintiff’s motion to extend the time to serve the defendant with copies of the summons and complaint was permitted. There was sufficient information to demonstrate that the plaintiff’s attorney had a reasonable belief that service had been effectuated. Furthermore, the motion was submitted prior to the expiration of the statute of limitations. And the defendant also had a letter within 50 days of the subject accident which requested the defendant contact his insurance company, thus showing that the defendant had notice of the action.

IME WAIVER: Dmitira Giancopolous v. Maria Corona

In personal injury cases where medical injury is plead, a common right of the defendants is for the plaintiff to submit to what is called an “independent medical examination” or IME. These doctors, paid by insurance lawyers, assist the defendants in defending their cases by examining plaintiffs and writing reports in support of summary judgment and threshold motions. In this case, the defendant, by failing to designate a physician to conduct an examination, and failing to vacate the note of issue within twenty days after service of the note of issue and certificate of readiness, waived the right to this type of examination.


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