January 7, 2020 | Vol. 192

(2 summaries)

Med Mal   Motion to Dismiss   Personal Juridiction  

First Department
Based on jurisdictional discovery ordered after it was found that plaintiff made a good start at showing long arm jurisdiction, reported in NYTW Vol. #: 91, the affirmative defense of lack of jurisdiction for 2 proton therapy groups in New Jersey was reinstated and 2-physicians found not to have personally projected themselves into New York, where their videos promoting center were after plaintiff’s treatment and their treatment was wholly within NJ, granted dismissal on lack of personal jurisdiction. Robins v Procure Treatment Ctrs., Inc.

Discovery   HIPAA   Note of Issue   Preexisting   Degenerative   Raised For First Time  

First Department
Defendants entitled to post Note of Issue discovery including authorizations and further deposition where plaintiff raised significant lumbar injuries for first time after Note of Issue and defendants were entitled to authorizations unrestricted by date based on claim of aggravation of pre-existing, latent, asymptomatic degenerative condition. Rom v Eurostruct, Inc.

(4 summaries)

Med Mal   Discovery   Renew   Reasonable Excuse  

First Department
Plaintiff’s motion to renew opposition to defendants’ motion to produce records from NJ case also involving psychiatric treatment denied where no new facts were offered and plaintiff failed to give reasonable excuse for not including facts on original motion. Claim that administrator was unaware of decedent’s confidentiality agreement in NJ action was not a reasonable excuse and the psychiatric records were relevant to similar claims of psychiatric malpractice leading to decedent’s suicide in the present case and financial records relevant on damages. Arena v Shaw

Motion to Dismiss   Settlement   General Release  

First Department
Defendant’s motion to dismiss based on settlement granted where release clearly listed defendant as insured being released, check cashed by plaintiff had the same claim number, and letter sent by plaintiff’s counsel days after release was signed trying to resend the settlement referred to defendant as the insured. Sandomirsky v Velasquez


First Department
Defendant’s request for plaintiff’s entire employment file for 3-years before accident denied as overbroad and not materially necessary to claim of traumatic brain injury where employer told plaintiff she was not improperly performing work duties after accident but 2-knee replacements prior to the accident were relevant where plaintiff claimed impaired stability and balance. Wilson v Simpson W. Realty, LLC

Strike Answer   Discovery   Preclusion   Willful/Contumacious   Prejudice  

First Department
Plaintiff’s motion to strike Answer for failing to timely comply with discovery granted to the extent of directing defendant to appear for deposition on a date certain or be precluded from testifying or providing an affidavit for any purpose where defendant’s delays were not willful/contumacious and plaintiff was not prejudiced by delays. Aquino v Taylor

Comment: When writing or requesting conditional orders of preclusion the language should always include “precluded from offering an affidavit for any purpose” in addition to precluding testimony.
(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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