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April 1, 2014

How To Vacate A Default Judgement In New York: Start At The Beginning

cd-box-1428586-m.jpg How to vacate a default judgement in New York is something every potential litigant should know. It is a topic filled with cautionary tales of second chances, heartache and redemption, as we have talked about in the past. It also demonstrates the importance of thinking outside the box when you try to solve an otherwise intractable problem.

Normally, when a Defendant comes to you for help vacating a default, he is in a state of panic; the only question is how much. Bad things can happen if the default stands; a defendant might have to pay a judgement on a claim that it could have been able to defeat on the merits. There are ways to ameliorate the damage; but the best course is to avoid a default if possible.

Sometimes, the best way to fix a problem is to view it with an open mind and approach it without any preconceived notions. Sometimes the best way to change the end result is to go back to the beginning. Vacating a default judgement is no different. Sometimes the best way to vacate a default judgement is to determine when exactly the Defendant's deadline to answer was, and determine how much he missed it by, if he really missed it at all.

When someone, whether a business or a person, is sued, when does it have to answer the complaint or take some other sort of action to make sure it can defend itself, in court, on the merits? In New York, the answer is, as most answers seem to be, dependent on the circumstances: the method of service or how the Defendant receives the summons and complaint; the court in which it is sued; where the Defendant is when it receives the service of process; and how many copies of the summons and complaint it ultimately receives. Maybe the most surprising of all is that in New York, a Defendant's deadline to answer can depend upon what the Plaintiff does after it serves the summons and complaint on the Defendant.

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March 7, 2014

Hearsay Evidence Can Be Used To Help Defeat A Motion For Summary Judgement In New York

IMG_20140309_191535 - Copy.jpgSometimes you learn something new from unexpected places. Sometimes you have to challenge your assumptions if you want to have any hope of solving an otherwise intractable problem. Sometimes, just because common knowledge is widely accepted, does not mean that it should be. A recent appeal I was working on made this clear.

Every New York attorney knows the test for defeating a motion for summary judgement: a party must offer evidence in admissible form sufficient to create a genuine issue of material fact that requires a trial. Most probably know the citation for the rule by heart. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980), is one of the most frequently cited cases in New York. It is common practice, based on that rule, to disregard inadmissible evidence and, most often, to not even offer it in opposition to a summary judgement motion. After all, why should you offer evidence that will not be considered? There is really only one problem with this idea: it is wrong.

The actual quote from Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720 (1980) is:

We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281-282, 413 N.Y.S.2d 309, 385 N.E.2d 1238; Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258; Platzman v. American Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, 383 N.E.2d 876; Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass'n, 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96).

The rule does not mean that a party should self-edit itself from submitting inadmissible evidence in opposition to a motion for summary judgement. Whereas inadmissible evidence is insufficient on its own, it can help turn mere expressions of hope into genuine issues of fact that require a trial.

The case that made this clear is Gier v. CGF Health Sys., Inc., 307 A.D.2d 729, 762 N.Y.S.2d 472 (4th Dept. 2003). It is a medical malpractice/wrongful death action in which the decedent was admitted to the hospital with a diagnosis of a recurrent abdominal hernia and died four hours later of a ruptured abdominal aortic aneurysm. The central issue was whether the Defendant, who was the on-call attending physician at the time the decedent was admitted to the hospital, was notified of her admission before his shift ended. If he was notified then there was the requisite physician-patient relationship; otherwise, there was not. The Defendant testified at his deposition that he had not been notified and he submitted his deposition testimony in support of his motion for summary judgement to dismiss the complaint against him.

In opposition, Plaintiff submitted affidavits of two doctors, Cheng and Bruce. Neither remembered the specific circumstances of decedent's admission. Instead, they each testified to habit evidence: that it was normal practice and procedure for the attending physician, whoever, that might be, to be notified when a patient is admitted to the hospital. Those two affidavits were insufficient, according to the lower court, to raise a genuine issue of material, triable fact.

Plaintiff also submitted the decedent's hospital chart, which contained numerous references to the Defendant as the decedent's attending physician and, more importantly, the last major piece of evidence: an unsworn memorandum of a Dr. Cudmore, which stated that the chief surgical resident told Dr. Cudmore that the Defendant had been notified of the decedent's admission while he was still on duty. The lower court did not even consider it, because it clearly was inadmissible. It was an unsworn document that relayed two unsworn, hearsay, statements; it was double hearsay, at least.

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February 13, 2014

The Terms And Conditions Of A Contract For The Sale Of Goods In New York: Do Purchase Orders Really Matter?

garbage can dark - Copy.jpgA contract for the sale of goods: one business, or merchant, buys a part from another. They agree on quantity, price, and delivery. The Seller sends the Buyer a purchase order and delivers the goods, and the Buyer pays. It all sounds easy, but as we previously said, a lot can go wrong in a seemingly simple transaction.

What happens if the Buyer asks the Seller to recommend a part but it doesn't work because it's not the right one? What if the Buyer says he needs a part that meets certain specs, the Seller delivers what the Buyer asks for, but the Buyer asks for the wrong thing? What if the Seller says the part meets the specs but it doesn't? Does the Buyer always have to pay for the part or can he return it, and does the Seller always have to take it back?

Some cases illustrate the complexities involved in a contract for the sale of goods better than others. Many times, you can find the most detailed application of the rules in a lower court opinion. One such case is Kabbalah Jeans, Inc. v. CN USA Int'l Corp., 26 Misc. 3d 1241(A), 907 N.Y.S.2d 438 (Sup. Ct. Kings County 2010). It's instructive because it shows how rules designed to make things simple can sometimes make things difficult.

In a sale of goods dispute between merchants, the two most important, and meaningful, titles, are Buyer and Seller.

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February 10, 2014

How To Win A Trial: Think Like an Outsider; Trust a Juror - Copy.jpgTrial lawyers are problem solvers. That is what they have to do and what their clients expect them to do. The biggest problem they face is how to persuade a jury. After all, the last time a trial went completely as planned was probably the first time one ever did.

Trial attorneys often rely on experts, and expertise, to win their case. The idea is that the average juror will recognize that the experts, whether lawyers or expert witnesses, know best and will follow along. The best way to solve a problem, though, just might be to think outside the box, which is something experts, including trial attorneys, do not always do best.

New research shows that finding creative solutions, from unexpected places, often leads to the best results, and that average people often can solve even complex, highly technical, problems better than experts and computers alike. Though the research has to do with molecular science, it sheds light on how you can win a trial.

Researchers, from Carnegie Mellon and Stanford University, have set out to better understand how RNA, which is one of the three macromolecules essential for human life, is designed. The hope is that this can lead to better ways to treat, or even cure, diseases or, believe it or not, even lead to building better computers, with RNA.

Normally the researchers would have done what they do best: conduct the research themselves. They would have used their knowledge, training, and experience to try to come up with the best designs. This time, however, they did something different: they invited people who had absolutely no special training, to design RNA. Surprisingly, or maybe not, those average people came up with far better designs than the experts.

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November 29, 2013

Do You Need A Reasonable Excuse In Order To Vacate A Default Judgement In New York? Not Always

notepad-1066735-m.jpgVacating a default judgement in New York, as we have previously discussed, is not always easy. Often it is up to the discretion of the trial court. There are certain times, however, when the defaulting party may not need a reasonable excuse for failing to appear, as long as it does not wait too long to ask the court to excuse the default. This can include parties, such as corporate defendants, who have failed to receive a summons and complaint at least partially through their own fault.

CPLR §317 provides in relevant part:

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.

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November 25, 2013

Trials, Motions, Appeals & Persuasion: How Can You Win Your Case?

tranquility-1-998521-m.jpgWe've spent a decent amount of time discussing how lawyers try to persuade people. That, after all, really is their job: to convince a decision maker, be it a judge, jury, or appellate court, that their client is right and should have won, should live to fight another day, or at least should not have lost quite as badly as he did.

Does the way a lawyer persuades depend on the means by which he has to do it? Does it really make a difference if the lawyer is standing up before a jury or a judge at trial; laying out the case for why his client is entitled to judgement as a matter of law on a summary judgement motion; or is writing a brief on appeal? Does the art of persuasion depend on the means of persuasion, or is it more universal than that?

It's not always easy to figure out why one side wins and one side loses. A lawyer can only play the hand he's dealt, but he can do a lot to get everything out of the cards that he's been given. Whether it's Victor Sifuentes, Alicia Florrick, Joyce Davenport, or Jack McCoy, no two attorneys approach the same case the same way, and winning is never as easy as it looks on TV. When real life attorneys try to persuade, though, the successful ones always seem to keep the basics in mind.

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November 20, 2013

How Can You Win A Motion For Summary Judgement In New York? Keep It Simple

harvested-corn-field-1404711-m.jpgSummary judgement motions in New York are strange things. When used in the right way they can bring long, arduous litigation to an end merely by submitting papers to the court, without the need to call messy witnesses, susceptible to skillful cross-examination, to trial to be judged by a jury. They can be a lawyer's best friend, or worst enemy. A lot depends upon the approach a lawyer takes towards them. They can take the place of a trial but how you approach them should be much like a trial. The actual motion depends upon the facts and circumstances of the particular case. There is an acronym that sums it up, one I often say to myself: KISS (as in: keep it simple, stupid). There's also an apt idiom: break it down. Like a trial, it's important to stay focused and to keep the decision makers focused on what you believe is important; because you have to give them a reason to rule in your client's favor.

The legal standard in New York for succeeding on, and for defeating, a motion for summary judgement, is pretty clear. To win a motion for summary judgement, a party has to show that it is entitled to judgement as a matter of law. That sounds right, even if it is kind of a definition without a meaning. What it really means is that there cannot be any material issue of triable fact. That sounds a little more definite; after all, there are more complex, legalistic terms in that definition than in the first. But is it really clear? This is the first place to break it down: it means that there cannot be any real reason to go to trial. If there is something important for the jury to decide, something important enough that the way the jury decides it will go a long way towards determining whether one party or the other will win or lose the case, then that is where you are going: to trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720 (1980).

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November 8, 2013

How Do You Prepare a Witness to Testify? The Art of Listening

carrot-and-potato-726930-m.jpgHow do you prepare a witness to testify at trial? That seems like a fair question; but what's the best way to do it? It seems like there are as many different answers as there are people to answer it.

Everyone knows that when you have a trial, you need witnesses, and, no matter what kind of case, those witnesses need to testify. If a plaintiff sues a defendant, chances are that the plaintiff will testify about how the defendant caused her all sorts of injury, pain and suffering, heartache and grief, and should pay her an awful lot of money as a result. Likewise, the Defendant most likely will testify that he didn't hurt anyone or anything; maybe it was all her fault, and, no matter whose fault it was, she wasn't hurt that badly anyway. The same is pretty much true for any commercial dispute: the buyer will say she bought the part the seller recommended and it didn't work as advertised so she wants her money back. The seller will say he gave the buyer exactly what she asked for and, if the part really didn't work, the buyer must have installed it the wrong way in the wrong application.

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September 30, 2013


hourglass-7-708473-m.jpgIt is not always easy to obtain a default judgement in New York. It is harder, still, to vacate one, especially when the defaulting party has a history of missing deadlines or otherwise not doing what the court wants. A recent case from the Third Department, Wood v. Tuttle, 106 A.D.3d 1393, 968 N.Y.S.2d 613 (3rd Dept. May 30, 2013), shows just how tough it is. The case has everything you could want in a good story: a bouncer, a bar, and a brawl. Evidently everyone showed up for a good fight, just some forgot to fight it out in court, at least until it was too late. No one knows who was right and who was wrong, at least not from the decision; but somebody won and somebody lost, and therein lies the lesson.

Courts, as we previously mentioned, don't like to be ignored; they want their orders, and rules, to be followed. Though they often will give a party the benefit of the doubt, and a second, or even a third, chance, that does not always happen. It is far better to establish a track record of complying with the rules, because then when you do make a mistake it often will be forgiven. It's worse to be known for violating them, because sooner or later the court will penalize you, harshly. It's important to stay in the trial court's good graces. Whether to impose or vacate a default is within its sound discretion, and its decision is difficult to overturn on appeal. See Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 790 N.E.2d 1156, 1160 (2003).

It's really not that hard for a party to default in New York. A court can dismiss a case if the plaintiff fails to appear for a court conference or calendar call. If a defendant fails to appear, it can order an inquest to determine damages or grant the plaintiff a default judgement for everything it asks for in the complaint. See 22 NYCRR 202.27. Perhaps the harshest example is when a defendant is served with a summons and complaint and has only 20 or 30 days to answer or otherwise appear. If he misses the deadline, the plaintiff is well on his way to obtaining a default judgement against him. A court also can grant a motion on default, though it often will closely examine even an unopposed motion before deciding it.

New York courts generally prefer to decide cases on the merits. That, however, does not immunize a party against a history of ignoring rules and foregoing second chances. As the Third Department's decision in Wood v. Tuttle, supra, points out, if you ask a court to bend over backwards one too many times, it will make sure that you lose because you violated the rules, without even considering whether you might win on the merits.

In Wood v. Tuttle, supra, the plaintiff alleged that he had been seriously injured in a bar fight. He sued the bar's bouncer and its owner to recover his damages, reportedly because both took part. Neither, however, seemed all that interested in the court case. The defendants answered the complaint, but apparently did not do much of anything else, at least until it was too late. Due to their decided lack of participation, plaintiff obtained a judgement against them, which was based not on the merits of the case, but on their repeated procedural violations:


September 20, 2013

Business Negotiations: BATNA Beware - Overconfidence Not Allowed

careful-899881-m.jpgWe've spent a lot of time this past summer talking about how important negotiations are to businesses and individuals alike, and how various negotiation strategies work together to produce desired, and sometimes unintended, results. This time, we're coming back to one useful strategy in particular, which is known by the ever impressively indecipherable acronym BATNA, to show how it can be used, abused, and overplayed. Put another way: BATNA Beware.

BATNA is shorthand for Best Alternative to a Negotiated Agreement; i.e., your best fallback position if negotiations fail and you have to walk away from the negotiating table without getting a deal done. Everyone's been involved in that situation before; no negotiator is immune from sometime, someday, someway, simply not being able to reach a deal. For years Verizon Communications and Vodafone could not reach an agreement to end their joint venture in Verizon Wireless. Started in 2000, after Bell Atlantic merged with GTE Corp., both of which had a large East Coast presence, and Vodafone purchased Air Touch Communications, which had a large customer base on the West Coast, Verizon Wireless is the largest cellular service provider in the United States. Verizon Communications reportedly owns 55% and Vodafone 45% of the joint venture. According to those same reports, Verizon Communications had a long standing desire to buy out Vodafone but did not want to pay Vodafone's $130 billion asking price. It instead wanted to pay only $100 billion for the minority stake in the company. As a result, no agreement was reached until earlier this month when Verizon agreed to buy out Vodafone for the $130 billion Vodafone reportedly had been seeking all along. You can learn a lot by looking at the facts behind this apparent change of heart.

You would think that Verizon Communications had the better bargaining position. The way Verizon Wireless reportedly is structured, Vodafone has little say in the day to operations of the company. With effective control over the company, Verizon Communications apparently should have been able to operate the wireless carrier to its benefit with Vodafone having little say, or veto power, over the decisions. What Vodafone apparently had was an investment, with little opportunity to chart the path of the company to maximize the profits in its own interest. That's a lot of trust to place in another company. You would think that Verizon Communications could have held out for as long as it needed to in order to pay what it wanted, $100 billion, to get what it wanted, sole ownership of Verizon Wireless. After all, Verizon Communications' fallback position looked a lot better than Vodafone's; if they couldn't reach a deal, then Vodafone would be left with an investment it had little control over, but Verizon Communications would still have effective operational control over the nation's largest wireless carrier, with its inherent possibilities for growth, marketing, and cross-promotion.

The problem apparently was that Verizon Communications overestimated its bargaining power and underestimated Vodafone's fallback position. If no deal was done, and everything stayed the same, Verizon Communications would still be in charge, but Vodafone would still receive a large share of the wireless company's profits. Reportedly, Verizon Communications wanted those profits on its books, not Vodafone's. When you think about it from Vodafone's point of view, is it really that bad to have a large investment in a profitable company with a good rate of return? Why walk away unless you can cash-out at or close to your asking price? After all, it might be difficult to find another place to put your money that will get you close to the same return. Maybe Vodafone really could afford to hold out longer than Verizon. What reportedly got the deal done was Verizon Communications' concern about the effect rising interest rates will have on the cost of raising the money necessary to finance it. When you're talking about purchases of about $100 billion, even minor fluctuations of bond prices and interest can quickly make a difference.

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August 29, 2013

Enforcing An Injunction In New York: A Matter Of Mutual Contempt

barbed-wire-on-a-stormy-day-1117143-m.jpgWe previously spoke about injunctions; the court orders that most often forbid one party from doing something either temporarily or permanently. They are the subject of often heated controversies, the ones you see on the news where two sides in a passionate dispute go to court to settle their differences in the modern day equivalent of the Roman Coliseum, otherwise known as the courtroom. The losing party never does like it. He's the one with his head slumped as the winner too often, and often too early, gloats over his victory. What happens when the losing party ignores the court order and goes ahead and does what he wants anyway? What happens when he violates the temporary restraining order, the temporary injunction, or the permanent injunction? In New York, the right way to enforce an injunction is for the aggrieved party to make a motion to hold the other in contempt for violating the court order. What everyone should remember is that contempt is a two way street; the rules are fair but the punishment can be harsh.

A recent high profile case here in New York that involves an alleged violation of a temporary restraining order, or TRO, concerns Long Island College Hospital in downtown Brooklyn. It was sold to SUNY Downstate Medical Center in 2011. Instead of keeping it open as it said it would when it bought the hospital, SUNY Downstate reportedly has tried to shut the hospital down. New York City Public Advocate Bill de Blasio obtained a temporary restraining order preventing SUNY Downstate from taking any action which could facilitate the shutdown. According to de Blasio, SUNY Downstate violated that TRO by transferring patients and diverting ambulances from the hospital; the hospital staff went so far as to call the police to prevent their patients from being transferred in violation of the TRO. De Blasio even wrote a letter to the New York City Fire Commissioner, Salvatore J. Cassano, asking him to stop diverting ambulances from the hospital. The state court judge that approved the 2011 sale, the Hon. Carolyn Demarest J.S.C., now has invalidated the sale because she reportedly determined that SUNY Downstate did not buy the hospital in good faith; i.e., it did not really intend to keep the hospital open as it claimed.

The rules for holding a party in civil contempt are simple and fair. A recent case, decided by the New York Appellate Division, Second Department on June 5, 2013, illustrates this. Suiss v. Baron, 107 A.D.3d 690, 966 N.Y.S.2d 481, 482 (2nd Dept. 2013), was an action to partition real property. The court ordered the defendant, who occupied the property, to pay money due for the use and occupancy of the real property to a temporary receiver or to give up possession of the property; i.e., she either had to pay to use the property or get out. The defendant, evidently, did not like the order and refused to obey it. The plaintiff tried to enforce the court order by making a motion to hold the defendant in civil contempt, which the lower court granted. In upholding the civil contempt finding, the Second Department held that:

"To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby *691 prejudicing the movant's rights" (Rubin v. Rubin, 78 A.D.3d 812, 813, 911 N.Y.S.2d 384; see Judiciary Law § 753[A] [3]; McCain v. Dinkins, 84 N.Y.2d 216, 225-226, 616 N.Y.S.2d 335, 639 N.E.2d 1132; McGrath v. McGrath, 85 A.D.3d 742, 924 N.Y.S.2d 805; Matter of Philie v. Singer, 79 A.D.3d 1041, 1042, 913 N.Y.S.2d 745). Additionally, the movant has the burden of proving contempt by clear and convincing evidence (see Matter of Philie v. Singer, 79 A.D.3d at 1042, 913 N.Y.S.2d 745; Vujovic v. Vujovic, 16 A.D.3d 490, 491, 791 N.Y.S.2d 648).

It is only fair that before a court can hold a party in contempt, it has to be certain that the offending party knew what it should not do and went ahead and did it anyway. Putting the order into the party's hands, and making sure the order is clear, normally takes care of this. It also is fair that the offending party has to cause harm before he can be punished; no harm, no foul, is a reasonable rule. The higher burden of proof, that the violation be established by clear and convincing evidence, rather than the normal preponderance of the evidence, is another way to try to ensure that only the truly deserving are held in contempt.

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August 2, 2013


IMG_00000027.jpgThe rules regarding expert's disclosure in New York, concerning when a Plaintiff or Defendant has to disclose to its opponent an expert witness that it intends to testify at trial if it hopes to use the expert's affidavit in support of or opposition to a motion for summary judgement, might seem confusing. The rules have caused so much misunderstanding that the Appellate Division, Second Department, went out of its way to clarify them, in a recent decision, Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). The key to understanding the rules is to understand the decision, both its rationale and the reasons the Second Department went out of its way to explain it in the first place.

As we have previously discussed, if a party serves expert's disclosure after the Note of Issue and Certificate of Readiness has been filed, without moving to vacate the Note of Issue first, the trial court has the discretion to refuse to consider an expert's affidavit served in regard to a timely motion for summary judgement. See Rivers v. Birnbaum, supra,102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012), and Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dept. 2008). In other words, a party might still be able to use the expert's affidavit or it might not; it depends on the trial court and, as long as the trial court does not abuse its discretion, the party has to live with whatever the trial court decides. The real trick is to figure out what constitutes an abuse of discretion.

Before the Second Department decided Rivers v. Birnbaum, supra, last October, there was a widespread, mistaken, belief that a court would not and could not consider an expert's affidavit in conjunction with a summary judgement motion unless the party that wanted to rely on it disclosed the expert before the Note of Issue and Certificate of Readiness were filed. Many read Constr. by Singletree, Inc. v. Lowe, supra, as creating such a hard and fast rule. Whether that was wishful thinking or panic, it was reading something into the court's decision that was not there. As we discussed last time, Constr. by Singletree, Inc. v. Lowe, supra, only held that it was not an abuse of discretion for the trial court to refuse to consider such an expert's affidavit.

Rivers v. Birnbaum, supra, was the perfect vehicle for the Second Department to clarify the rule. It was a medical malpractice action that had a sympathetic plaintiff, a mother who claimed the doctors, hospital, and other health professionals, who cared for her during her pregnancies missed obvious warning signs of gynecological cancer she since has suffered from. At the conclusion of discovery, after the Plaintiff filed the Note of Issue and Certificate of Readiness, many of the defendants moved for summary judgement; they used affidavits from experts, however, that they had not previously disclosed. If there had been a hard and fast rule, as many believed Constr. by Singletree, Inc. v. Lowe, supra, provided, then the defendants would have been precluded from relying on those experts' affidavits. The trial court, however, even though the plaintiff cried foul, considered the defendants' experts' affidavits and granted the defendants summary judgement. The Second Department upheld the decision, and its reasoning is enlightening.

The main point behind the Second Department's decision in Rivers v. Birnbaum, supra, is that the central purpose of a motion for summary judgement is to determine whether there is a genuine issue of material fact that requires a trial; if there is one, the motion must be denied. As the court said, precluding a party from relying on an expert's affidavit merely because it did not disclose the expert prior to the conclusion of discovery, would not necessarily achieve that goal. Rivers v. Birnbaum, supra,102 A.D.3d at 42, 953 N.Y.S.2d at 243 (2nd Dept. 2012). In other words, an arbitrary decision to uphold an unclear deadline, may not be the best way to ensure that justice between the parties to a given lawsuit is done. What makes this guiding principal even clearer is that the Second Department explicitly stated that a trial court could impose strict deadlines for the completion of expert's disclosure and, as long as the deadline was clearly set beforehand, the trial court could sanction a party for violating it. Rivers v. Birnbaum, supra, 102 A.D.3d at 39, 953 N.Y.S.2d at 241 (2nd Dept. 2012).

In Rivers v. Birnbaum, supra, the court found that the defendants, through the use of their experts, had made a prima facie showing, as they were required to in this medical malpractice action, that, in treating plaintiff, they had not deviated from the accepted standard of medical care. It also found that plaintiff had not raised a triable issue of fact about this; it was not even a close call. As the court pointed out in great detail, plaintiff's experts' affidavits were vague, conclusory, and otherwise deficient.

Therein lies the key. Why would the court deny summary judgement, and either require a trial or let plaintiff win, when plaintiff could not establish even the arguable existence of a genuine issue of material triable fact in opposition to the summary judgement motions? Precluding the defendants from relying on their experts' affidavits merely because they had failed to disclose their experts prior to the filing of the Note of Issue and Certificate of Readiness, especially when the trial court had not set that point as the deadline for expert's disclosure, would be a waste of time and a miscarriage of justice.


July 30, 2013


1412838_sundown.jpgThe rules governing the use of expert witness affidavits to oppose, or support, motions for summary judgement in New York, especially in the Appellate Division, Second Department, often are misunderstood. There are cases in which the trial court does not consider an expert's affidavit because the party that tries to use it did not disclose the expert before the Note of Issue and Certificate of Readiness were filed, which is when fact discovery should be completed. See Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dept. 2008). There are other cases, especially more recent ones, in which the trial court considers an expert's affidavit despite the fact that the expert was not disclosed before the Note of Issue and Certificate of Readiness were filed. See Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). There actually is a hard and fast rule as to whether a party will be able to use such an affidavit: It's firmly within the trial court's sound discretion.

As we previously discussed, an expert witness is allowed to provide her opinion at trial when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the experience and understanding of the typical juror. See De Long v. Erie Cnty., 60 N.Y.2d 296, 307, 457 N.E.2d 717, 722 (1983). An expert often also is necessary to oppose, or support, a motion for summary judgement, which is the procedural equivalent of trial. See Rivers v. Birnbaum, supra, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012).

Plaintiffs and defendants both must disclose, prior to trial, the experts they intend to testify on their behalf at trial. The statute that governs expert's disclosure, however, times the disclosure in terms of a trial, not in terms of a motion for summary judgement. CPLR 3101(d)(1) provides, in relevant part:

d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just.

[Emphasis supplied].

The problem comes from the fact that parties often wait until close to trial to disclose to their opponents the experts they intend to call at trial. They do this for many reasons, including the expense involved, since most experts command sizable fees and parties often want to be sure that the case will actually go to trial before they incur the expense of retaining an expert to testify at trial. There also is the very human trait of not doing something until it absolutely has to be done; there truly is nothing more productive than the very last minute.

The confusion comes from how the disclosure requirements of CPLR § 3101(d)(1), apply to motions for summary judgement; in particular, when parties need to disclose their experts, and what penalties they face if they fail to meet the deadline.

In Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702, (2nd Dept. 2008), the Appellate Division Second Department scared all the procrastinators straight. It upheld the lower court's decision to bar the use of experts' affidavits in opposition to a motion for summary judgement because the party that wanted to use them failed to disclose them before the Note of Issue and Certificate of Readiness were filed. Put another way, the parties agreed that all the preliminaries were completed, that the case was ready for trial, and then one of them said, "But wait, there's more." The court, however, did not go along.

If you look at the decision in Constr. by Singletree, Inc. v. Lowe, supra, you can see why the trial court issued such a harsh decision. The case involved a house which one of the defendants, J.C. Construction Management Corp, built for the other defendant, Lowe. The plaintiff, Construction by Singletree, Inc., was a subcontractor on the same job which sued the defendants to recover the money it claimed it was owed for its work. The issue on appeal was Lowe's cross-claims against JC to recover money for what he said was JC's breach of warranty and to collect the liquidated damages called for in the contract between them; i.e., Lowe alleged JC improperly installed the flooring and insulation systems and should pay him as a result. The only problem was, Lowe evidently waited too long to offer any substantial evidence to back up his claims, and then he tried to save the day by labeling that evidence as expert's disclosure.


July 16, 2013

In Negotiations, Can Silence Be Golden?

1241538_calculator.jpgWhen it comes to negotiating the best deal possible most people consider words to be king. If you make an offer there has to be a justification. If you refuse the offer, you immediately have to make a counter-proposal, and justify it. You tout the benefits of your product, justify your asking price, and critique the other side's position; a few well-placed matter-of-fact observations, should do the trick. What most people do not realize, though, is that sometimes certain things, at certain times, are best left unsaid. Sometimes, silence is golden.

Standard negotiating advice to someone making an opening offer is to justify it. If there is something special about the item you are trying to sell, then say it. If there is something below-par about the product or service that you are trying to buy, then mention it. After all, you will be taken more seriously, and your position given more credence, because you have a reason for your offer. This advice is based, in large part, on the 1978 "Copier Machine Study," by Ellen Langer, Arthur Blank, and Benzion Chanowith. In that study, a person waiting to make copies was more likely to let someone cut in front of him to make a small number of copies if the person offered some justification.

Katherine Shonk, Editor of Negotiation, the monthly newsletter of Harvard Law Schools' Program on Negotiation, in an article that first appeared in October, 2011, points out that sometimes it may be wise to not justify an offer, at least not at first. She points out that the "Copy Machine Study" may have more to do with the trivial nature of the request, "Can I make 5 copies?" than with the justification offered for it.

To back up her point, she cites new research, done by Yossi Maaravi, Yoav Ganzach, and Asya Pazy of Tel Aviv University. It found that when the person who makes the initial offer tries to justify it with obvious, readily available information, the other side often will come back with a counter-argument and a tougher, low-ball, counter-offer; i.e., an easy counter-argument equals a lower counter-offer and tougher negotiations. In other words, the person that made the initial offer would have been better off not justifying it. According to the researchers, this could be for the simple reason that the other side does not want to be boxed-in to a bargaining position at the outset; she wants to think for herself rather than merely accept what the other side says as a given.

Katherine Shonk points to one experiment, of someone trying to sell his apartment, that bears this out. The researchers found that if the Seller tries to justify his asking price with obvious facts, such as that the apartment was recently renovated and has an elevator, the potential buyer is more likely to use other obvious facts, such as that it doesn't even have a washer or parking, to justify a lower counter-offer.

This actually makes a lot of sense, though it may seem counter-intuitive at first. Most people, when they negotiate, want to make sure the other side knows they've done their homework. At the same time, each wants to be respected, even when one has an obvious advantage over the other. After all, you always need at least two to make a deal.

Going back to the example of trying to sell an apartment, how smart do you think you'll look if you justify your asking price by pointing out that it was recently renovated, when that point is obvious to anyone who's seen the place, including the potential Buyer? And do you think the potential Buyer will feel that you respect her as an equal or believe that you are condescending?

The moral to the story is, if you have nothing to justify your initial offer other than facts that the other side either has or can easily find out, you probably are better off saying nothing at all; just make the initial offer. This goes along with another human trait that often is overlooked. People very often think they know more than they actually do and will fill in gaps in their knowledge with what they suppose is the correct answer. If you merely state your initial, reasonable offer, and leave it out there for a while, you'll give the other side an opportunity to fill in the blanks. The other side may even come up with a better justification for your asking price than you would have made on your own. Perhaps, in the right place at the right time, silence can be golden after all.

June 11, 2013

The Art of the Interview: Why Investigators Still Count In Investigating Insurance Fraud

827419_fongrafo.jpgTechnology is not the only thing you need to investigate insurance fraud. Technology might tell you who to question, but someone still has to do the questioning. Analysis of big data might give you a lot to talk about, but someone, preferably with a little training and experience, is going to have to have that conversation. Technology might be able to sort through a tremendous amount of otherwise indecipherable data in order to identify, or obtain, clues about possible fraud. No matter how good the technology, no matter how vast the meta-data, no matter how many computers parse the data, a skilled investigator still has to connect the dots, and, eventually, a lawyer still has to convince a jury that those dots create a clear, unmistakable picture of fraud.

The interview, where one real person talks to another, is necessary in all fact-finding, whether it be a fraud investigation, a deposition in litigation, or a criminal prosecution. How to obtain information from people, however, is an art, not a science. There might be rules to follow and methods to learn but, by themselves, they are not enough.

An article in the June 1-2, 2013 Weekend Edition of the Wall Street Journal points out the art, and skill, involved in obtaining information from people who may be reluctant to provide it. The author, Jason Matthews, is an ex-CIA agent with more than 30 years of experience, who worked in what now is known as the National Clandestine Service. He talks about what it takes to convince people to spy against their own country. The key, he argues, is to find out what motivates a person. He describes four basic motivational factors, common to all people, that he used. Known by the acronym MICE, they are: money, ideology, conscience, and ego. According to the author:

Money is the most straightforward motivational factor. It's a business deal: the spy gives you useful information, you give him money. Greed may not be good, but it evidently can get you what you want.

Ideology, or the sudden loss of it, is the most potent factor of all, according to Matthews. The example he uses to prove his point, however, really proves another: sometimes, the most motivated person is the one driven by revenge against someone they trusted who hurt them or their family. Matthews describes one of the best assets in CIA history, Dmitri Polyakov. He was a Soviet military officer stationed in the United States, whose son became fatally ill. Moscow refused to allow his son to be treated by an American doctor. He became one of the best spies in CIA history. Simple.

The most potentially dangerous, is the spy motivated by conscience, especially if he is out to save, or to atone for the sins of, the world. In many ways this could describe the NSA leaker, Edward Snowden. If you read his coming out story in the Guardian newspaper, he justifies his leaks by claiming the American public must be told of the NSA's programs because they simply have gotten too big, with too much room for abuse. He describes how he is a champion of internet freedom and does not want to live in a world in which there is no privacy, where the government knows your every move. He doesn't seem to have been motivated by money since he reportedly earned $200,000 per year as a defense analyst and, as he pointed out, did not sell his secrets. He seemingly wasn't motivated by ego, either, since, according to the Guardian's reports, he was a former staffer for the CIA and had a fairly important job with a contractor within the NSA. In other words, he leaked classified information to atone, in his mind, for what he alleges are the sins of his government.

Ego is a tricky tool to use. If a normally meek person has his ego properly stroked, he'll overcome his fears to provide what he is made to believe is crucial information. Once convinced that he's important, that people depend on him, however, he'll always need to be re-assured.

Importantly, blackmailing potential agents, threatening to expose their sexual or other misconduct, doesn't work too well. The agent you get will be unreliable, and the information he gives won't be much better.

What makes the article interesting is that most everyone likes a good spy novel, and sometimes real life is stranger, and better than, fiction. Learning about how the spy world operates always is intriguing, and enlightening.

What makes the article useful is that it demonstrates some of what goes into the art of persuasion. The same thing does not work with everyone; scripts are no good. You have to pay attention to the person. In many ways it's more difficult to read a person than to read a book, and it requires a lot more thought and experience. In many ways, though, it's the same; the true meaning isn't just in what the words say.

An average person, who, right or wrong, feels stuck in the rut of his everyday life, may jump at the chance to tell what he knows about the accident he witnessed, especially when he finds out that five people claimed they were hurt while in the car in which he saw only two people. The single mother, trying to make ends meet in her low-paying job at the local clinic, may be able to put up with the lies and the cheating; she won't risk her children's welfare just to stop fraudulent billing. She will, however, reluctantly tell what she knows in order to make sure that no one else gets hurt by being put under for a medical procedure they didn't even need. Even the arsonist will tell you, if you'll only understand, that he really thought he could put out the fire, he wanted to be the hero, except that the fire just spread too fast.

The author, Jason Matthews, says that a bond of trust needs to be established. In a way he's right. There has to be a reason the witness wants to give you the information; often you can see it, staring right there at you. It doesn't have to be anything big; nothing grand. You can hear it, if you listen; it may be faint, but it's there. Every person has a different story to tell and a different reason for telling it. You'll never know what it is unless you listen. Listening and trust often go together; maybe they are even the same thing. One thing seems pretty certain, though: you can't have one without the other; and that is a good lesson for every interviewer to learn.