Late Notice to Defendant Prompts Denial of Plaintiff’s Spoliation Motion (NY)

The Suffolk County Supreme Court recently denied plaintiff’s motion seeking sanctions and an adverse inference against a defendant due to spoliation of a videotape of the subject incident in Fischetti v. Savnio’s Hideaway.

The claim arose in November 2014, from a slip and fall at defendant’s restaurant.  Plaintiff, a patron, fell down the front steps while leaving the restaurant and fractured her shin and wrist.  Plaintiff bought suit against defendant, restaurant, alleging that insufficient lighting and signage caused plaintiff falling down the steps.

At the time of plaintiff’s fall, the restaurant had 9 surveillance cameras situated around the premises, one of which captured the accident scene.  Approximately 90 days post incident, plaintiff sent defendant a “notice letter” of the suit, and requested all information be forwarded to defendant’s insurance carrier.

During the course of discovery, plaintiff demanded disclosure of the video footage.  Defendant was unable to provide the surveillance footage as their surveillance system, per its programming, automatically recorded over the incident after two weeks.  Plaintiff then sought sanctions alleging that defendant negligently allowed for the destruction of the video.

The Court found that although the surveillance footage is highly relevant to plaintiff’s case, a defendant who destroys documents in good faith and pursuant to normal business practice should not be sanctioned unless the defendant is on notice that the evidence might be needed for future litigation.  Here, there was insufficient notice, as by the time plaintiff put defendant on notice, the video had already been destroyed. The Court went on to state that the “notice letter” sent by plaintiff, was insufficient as it neither cites the subject video nor requests the video to be preserved.

The Court’s ruling demonstrates the necessity of not only being specific in your demand letters, but of moving as quickly as possible at the inception of a cause of action,  to locate and preserve save any surveillance footage that may exist.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Mental Health and Substance Abuse Records not Always Discoverable in NY

In New York Personal Injury litigation, a plaintiff is said to affirmatively place their health at issue when bringing suit. The defense is entitled to obtain all medical records “material and necessary” to the medical conditions plaintiff claims to have suffered as a result of an accident. As a matter of course, Complaints and Bill of Particulars generally include certain “catch-all” allegations for damages, such as the loss of enjoyment of life, mental anguish, and future pain and suffering. Under New York’s liberal discovery rules, defendants often use these allegations to support demands for a broad range of medical records.

The Appellate Division, First Department recently dealt with the appropriate scope of such discovery with respect to medical records related to substance abuse and mental health treatment in James v. 1620 Westchester Avenue, LLC.

In James, the plaintiff brought an action to recover for personal injuries suffered in a trip and fall. The complaint included allegations of future pain and suffering, general anxiety, mental anguish, and the loss of enjoyment of life – standard fare in a personal injury action. Based on these allegations, the defendant moved to compel production of authorizations to obtain medical records related to treatment the plaintiff received for mental health and substance abuse, and the plaintiff cross-moved for a protective order to prevent discovery of those records. The trial court granted plaintiff’s motion, ruling that records related to plaintiff’s mental health and substance abuse treatment were not at issue in this case, and therefore not discoverable.

On appeal, the First Department affirmed, holding that plaintiff’s broad allegations of general anxiety and mental anguish were not sufficient to place her mental health at issue. Thus, records related to plaintiff’s mental health and substance abuse treatment were not discoverable by the defendant, as the defendant failed to establish that those records were “material and necessary” to the defense of the lawsuit.

In the dissent, Judge Saxe noted that mental health records are certainly useful in evaluating claims of future pain and suffering and the loss of enjoyment of life and such records are often an invaluable source of additional information about the plaintiff. They sometimes include additional information regarding the happening of an accident, subsequent and intervening injuries, and other tertiary information about the post-accident activities of a plaintiff. While mental health and substance abuse records themselves may ultimately prove inadmissible at trial due to their prejudicial nature, they often lead to discovery of valuable information that would otherwise remain concealed.

The First Department’s decision in James reflects that defendants cannot exclusively rely on boilerplate allegations such as mental anguish, general anxiety, and the loss of enjoyment of life to justify a demand for mental health or substance abuse records. Litigants will need to confirm a specific nexus between the accident and the plaintiff’s mental health to support a demand for these records.

And WCM will continue to follow this case to see whether the Court of Appeals shows interest in this decision with two dissents.  Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information.

We Didn’t Start the Fire: First Dept. Reverses Trial Court and Grants Summary Judgement to Landlord

New York City real estate is often a Darwinian landscape with cramped living spaces and high prices.  Despite this, if you are not prepared to deal with the conditions, a hundred other people will gladly stand in line to do so.  However, disputes often arise between a tenant and landlord/management for injuries allegedly sustained within the premises due to appliances, stairways, and/or maintenance.

In the matter of Sandra Kaplan v. Tai Properties, LLC, et al, a tenant plaintiff sustained a burn to her head when she used a match to try to light a burner on the top of her gas stove because the stove’s igniter did not work.  The Supreme court’s denial  the defendants’ motion for summary judgment was unanimously reversed by the First Department Appellate Division.

The plaintiff herself had bought the stove and had it installed.  The lease between the parties required the landlord to repair and maintain any appliance provided by the landlord, but imposed no specific duty to repair or maintain appliances supplied by the tenant.  The Court found that since no duty to repair the appliance was imposed by statute, by regulation or by contract, the defendants were not liable.  Plaintiff’s allegation that the accident was related to a condition created by defendants in the course of a gas pipe replacement project in the building was unsupported by the evidence.  Defendants demonstrated that the project was performed by a licensed contractor, pursuant to permits, and was inspected and certified as safe when it was completed which was two year before the accident.  The property manager also testified that the project did not involve any work on plaintiff’s stove, except to make sure that there was gas service with no leaks.

This case demonstrates that merely because an injury was sustained within the premises is not enough to create fault.  Further, management companies and landlords that follow proper procedures and document the same, can significantly increase their chances of dismissal in an instance when the alleged occurrence was not their creation and fault.   Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Claim File Not Discoverable In Personal Injury Action (NY)

A tactic employed every now and then by plaintiffs’ attorneys is to demand production of the related insurance claim file in a personal injury action. The recent case of Veltre v. Rainbow Convenience Stores reiterated that this is rarely discoverable.

In Veltre, plaintiff sustained personal injuries caused by a slip and fall on snow and ice in front of a Rainbow convenience store in Manhattan. Plaintiff sued the Rainbow convenience store and the building’s owner and during discovery, demanded a copy of the insurance claim file from the date of the accident up to the date of the filing of the lawsuit. Defendant Eureka Realty objected to plaintiff’s demand, and plaintiff filed a motion seeking to compel production. Over Eureka Realty’s objection, the plaintiff obtained an order compelling them to turn over the insurer’s claim file as the trial court determined that Eureka Realty had failed to establish that the claim file documents were privileged.

Eureka appealed the order to the Appellate Division, First Department, who ruled that the claim file was immune from discovery because it was created by Eureka Realty’s liability insurer, and plaintiffs had failed to demonstrate either that they could not otherwise obtain “a substantial equivalent” of the claim file materials without undue hardship, or that the defendant waived the privilege by relying upon the insurance claim file in support of its defense.  As such, it overturned the trial court’s decision.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Michael Bono if you would like more information.

Ignorance is Not Always Bliss – Unprepared Deposition Witness Results in Sanctions (NY)

The Southern District recently sanctioned perfume company Excell Brands, for producing a witness who was unable to answer questions at deposition in Coty v. Excell Brands, LLC.  The Court required Excell to pay attorney’s fees to plaintiffs, Coty, Calvin Klein and Vera Wang after Defendant’s witness proved to be “patently unprepared” at his deposition.

Coty arose in September 2015, from a trademark infringement suit in which fragrance brands, Calvin Klien and Vera Wang, brought suit against Excell for selling low-grade “knock offs” of their fragrances, using similar name, scent and packaging as plaintiffs.

Plaintiffs served Excell with a deposition notice seeking testimony about the ingredients and chemical compositions of Excell’s fragrances. At Exell’s first deposition, Excell produced a retail salesman who was unable to answer questions on the topic.

At the subsequent deposition, Excell produced a board member who when asked what he had done to prepare for deposition, stated “not much.”  When asked about the ingredients of Excell’s perfumes, the board member answered nearly 40 of plaintiffs’ questions with a variation of “I don’t know.”

Plaintiffs successfully moved for sanctions pursuant to Rule 37 of the Federal Civil Procedure Rules.  Judge Furman held that “given that Pfau [board member] lacked a background in chemistry, had no involvement in the day-to-day operations of Excell and is not even an Excell employee, the need for him to gather additional information prior to his deposition was manifest.”

The Judge indicated the board member should have, at a minimum, spoken with the company president who was indicated at the first deposition as having knowledge. The judge found his lack of preparation “egregious and worthy of sanctions.”  Not only did the Judge impose sanctions but also prohibited Excell from introducing any evidence at trial on the ingredients and chemical compositions of the scent of each fragrance.

The Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition but of also sufficiently preparing that witness for the deposition, lest that party be precluded from relying upon such information at trial. Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons for any questions.

Court Says No to Neuropsychiatrist (NY)

In Scariff v Wall St. Mail Pick Up Serv., Inc., the court dealt with whether plaintiff’s expert neuropsychiatrist was able to testify at trial about plaintiff’s injuries. Neuropsychiatry is a branch of medicine that deals with mental disorders attributable to diseases of the nervous system.

The plaintiff was struck by a vehicle driven by the defendant while walking across the street. During the damages phase of a jury trial, the plaintiff did not offer any testimony from her treating physicians. Instead, the plaintiff submitted the testimony of an expert neuropsychiatrist, who testified that the plaintiff had severe major depression as a result of the accident, and that she also had cognitive problems. But the trial court precluded the expert neuropsychiatrist from offering any testimony regarding the plaintiff’s medical complaints or the accident history. The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and a judgment was entered in favor of the defendants and against the plaintiffs dismissing the complaint. The plaintiffs filed an appeal.

The Appellate Division held the trial court’s ruling was proper. “A non-treating physician, retained only as an expert, may not testify regarding the history of an accident as related by the plaintiff or concerning the plaintiff’s medical complaints. The expert may give an opinion based on an examination of the plaintiff.”

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information.

Jury Allowed to Consider Amount of Medicare Payments – not Amount of Provider Bills (NJ)

One of the battles that rages in every personal injury cases is over the “boardables” – which includes the amount of medical expenses that a plaintiff can present to a jury as part of their damage claim.  As anyone who has reviewed an Explanation of Benefits form knows, there is a dramatic difference between the amount a medical provider bills and the amount they are reimbursed by a medical insurer or Medicaid.  So which of those amounts should be presented to a jury?

That issue was at the forefront of Charles v. Thomas, M.D., et al., which involved a cardiopulmonary arrest following a routine ENT procedure which lead to a variety of debilitating conditions. Prior to trial, the defendants moved to limit the plaintiff’s presentation on damages to the amount Medicare actually paid for the plaintiff’s medical treatment – versus the amount the providers billed – arguing that the significantly lower figure properly represented the plaintiff’s incurred loss.

The plaintiff opposed the defendants’ motion on the theory that the amount the medical providers billed reflected the incurred loss and should be admissible to “more fully inform the jury as to the extent of Plaintiff’s injuries resulting from his heartbreaking ordeal.” In siding with the defense, the judge distinguished between insurance payments, which would be deducted from any award consistent with New Jersey’s collateral source rule, and Medicare payments, costs which plaintiffs are required to reimburse. Citing in part to the “made whole” principle, the court determined that the “incurred loss” was the amount the plaintiff actually owed Medicare for his treatment, and the plaintiff was limited to presenting only that figure in support of his damages claim.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.

NY Court Quashes Subpoena for Claims Adjuster in Auto Accident Case

Lizardi v. Bogale was a typical New York auto accident case, but an interesting issue arose during discovery.  As often is the case. party depositions revealed significant differences as to how the accident occurred.  During the plaintiff’s deposition, she testified that she spoke over the phone to a GEICO claims representative on the date of the automobile accident and plaintiff made a motion to compel the production of the audiotape or written transcript of that call, and the parties stipulated that GEICO would produce the audiotape/transcript or an affidavit from the GEICO adjuster stating that the requested documents no longer existed. The defendant provided an affidavit from the GEICO adjuster that there was no audiotape or written transcript of plaintiff’s telephone call.  Plaintiff then sought to depose the GEICO adjuster for her non-party testimony and defendant moved to quash the subpoena.

The court recognized that discovery is a very broad tool, and that the term “material and necessary” is mean to be liberally applied, in order to provide plaintiffs with the tools to prosecute their case. However, the court held that discovery is not meant to be unlimited and that the testimony of the GEICO insurance adjuster was not “material and necessary” as her testimony would only be cumulative of the information previously provided by both parties and was intended to be used solely to impeach defendant’s credibility or bolster plaintiff’s credibility.

The court further opined that the purpose of liability insurance is the defense and settlement of claims and that virtually everything an adjuster does is in contemplation and preparation of litigation or settlement. As such, plaintiff would have to demonstrate a substantial need for the testimony of the insurance adjuster and would be unable to obtain the information of the adjuster without establishing undue hardship. Accordingly, the court held that the adjuster’s testimony was not material and necessary to the prosecution of the matter and the adjuster’s testimony would not provide any new information, and the court granted the defendant’s motion to quash the subpoena.

Thanks to Geoffrey Bleau for his contribution to this post and please write to Mike Bono for more information.

Discarded Video Leads to Sanctions (NY)

The common law doctrine of spoliation permits the sanctioning of a party where that party negligently loses or intentionally destroys key evidence. The burden of demonstrating that party’s intentional or negligent disposal rests with the litigant moving for sanctions, who must also demonstrate that the lost evidence was critical and the litigant’s ability to provide its claim or defense was fatally compromised as a result.

The question of what sort of sanction is appropriate was at issue in the case Peters v. Hernandez, in which a tavern disposed of a video recording of the incident in question.  This decision is discretionary based on considerations of fundamental fairness.  The court must evaluate the prejudice that resulted from the spoliation to determine whether the drastic relief of striking a party’s pleading is warranted or if a lesser sanction is more appropriate.

In Peters, the Appellate Divison, Second Department, found that the lower court improvidently exercised its discretion in striking the answer of the appealing defendants. While the plaintiff did demonstrate that the tavern negligently disposed of the video of the subject incident, his ability to prove his case was not fatally compromised. The Court found that the appropriate sanction would have been an adverse inference charge given to the jury at the time of trial.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at

You Get What You Ask For: Trial Dismissal Reversed Based On Discovery Demands (NY)

In Fox v. Grand Slam Banquet Hall, plaintiff’s case was dismissed due to the untimely production of a video of the scene of her accident.  Plaintiff alleged she fell when she tripped over wires when she was attending a party at a banquet hall.  During her deposition, plaintiff provided confusing testimony as to whether the party was videotaped and if she had a copy of any video.  But at trial, she produced the video in the middle of cross-examination and the court dismissed the case.

But the  the First Department reversed the lower court’s dismissal of the plaintiff’s complaint.  Part of the reason was that plaintiff did not seek to enter the video into evidence, that it depicted the wires and not her fall, and that there was no proof that she willfully withheld it.  But one of the main reasons was the fact that the defendants requested production of “any photographs taken at the time of the alleged incident” — and not any videos.  As such, there was no court order directing the production of videos.

The First Department therefore reinstated the plaintiff’s complaint and granted the defendant 60 days to conduct additional discovery of the videographer and the plaintiff regarding the video.

Thanks to Geoffrey Bleau for his contribution to this post and please write to Mike Bono for more information.