Sullivan Papain Block McGrath & Cannavo P.C.

SPBMC Newsletter Summer 2013	Personal Injury	Medical Malpractice
40 attorneys with offices in New York, Long Island and New Jersey www.TrialLaw1.com

Second Department Clarifies Deadline for

Expert Disclosure ... Sort of

by Brian J. Shoot, Esq.

Can the plaintiff oppose a motion Shoot for summary judgment with the affidavit of a previously undisclosed expert? The general rule in the Second Department was, until very recently, no, plaintiff could not do

that. Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dept. 2008).

Of course, this was kind of crazy. It meant that the plaintiff could probably call the expert at trial if the expert had been disclosed, say, a month before trial. Yet, plaintiff would have to serve an expert exchange prior to placing the case on the calendar if plaintiff wanted to use the expert to defeat summary judgment.

Well, we now have a new Second Department rule courtesy

of Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd

Dept. 2012). The Rivers Court said:

(1) "[A] trial court, under its general authority to supervise

disclosure deadlines, and consistent with its discretion to supervise the substance of discovery, may impose a specific deadline (for example, prior to the filing of the note of issue and certificate of readiness or prior to the making of a motion for summary judgment), for the disclosure of experts to be used in support of a motion for summary judgment or who

are expected to testify at trial, or both";

(2) "[T]he fact that the disclosure of an expert pursuant

to CPLR �3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely";

(3) "Precluding an expert's affidavit solely on the ground

that the offering party did not disclose the expert's identity pursuant to CPLR �3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness is not consistent with the purpose and procedural posture of a motion for summary judgment"; and

(4) "[W]here a trial court has set a specific deadline for

expert disclosure, it has the discretion, pursuant to CPLR �3126, to impose appropriate sanctions if a party fails to comply with the deadline."

Translation: the trial court does not have to reject the affidavit of the undisclosed expert and probably should think

about imposing some lesser sanction.

Immigration Rights and the Courts

by Marie Ng, Esq

Since at least 9/11, a hotly debated

topic in this country has been the

enforcement of our immigration laws

and restriction on immigration. The

debate stems from two primary concerns:

national security and economic impact. Both are legitimate and have prompted Congress to debate pending legislation aimed to address these concerns without infringing upon rights protected by our Constitution.

Among those constitutionally protected rights provided to all persons within the jurisdiction of the United States without limitation is equal access to and protection by the courts.

Due process rights are not limited to citizens and immigrants

who have documentation. Whether "documented" or "undocumented" the Supreme Court of the United States has

repeatedly upheld that all persons within the jurisdiction of the United States are entitled to the same fundamental constitutional rights as all other American citizens (with the major exceptions being the right to vote and the right to bear firearms).

As early as 1886, the United States Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356, 368-369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) held that, "The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens...the fourteenth amendment to the constitution is not confined to the protection of citizens."

In Plyer v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L.Ed.2d 786 (1982), the United States Supreme Court erased any ambiguity and made it clear that the protection of fundamental rights of "aliens" included "undocumented aliens." In that case, a state statute which called for state funds to be withheld from schools that provided education to children of undocumented aliens and gave public schools the right to deny enrollment of undocumented children was held to be in violation of the Fourteenth Amendment and, thus, unconstitutional.

Simply put, the Constitution provides rights to all people in the U.S., whether documented or undocumented. Not only do these rights include a speedy trial, freedom from unjust incarceration and constitutional protections in the criminal arena, but they also include rights in civil cases involving negligence, faulty products, Labor Law violations and medical malpractice. Either because they do not know they have the right, or because they are afraid that they will be deported if they try, many undocumented aliens do not use the courts to enforce their rights. In an attempt to prevent legitimately injured people from being intimidated due to their immigration status, courts have put a limitation on what should be disclosed during discovery in litigation.

To preserve the constitutionally protected rights of an injured

person, and simultaneously enforce the laws prohibiting

employers from knowingly employing undocumented workers,

courts have limited inquiry as to immigration status to

situations only where it is clearly relevant, i.e., where false

documentation has been submitted by the worker to obtain

employment.1

In the construction industry, even though it is prohibited, many employers hire undocumented workers because they tend to work for less pay and are often afraid to seek enforcement of heir rights if they are injured on the job. In Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 812 N.Y.S.2d 416 (2006), injured undocumented construction workers brought personal injury actions that included claims for loss of past and future earnings.

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1 Gomez v. F & T Int'l (Flushing, NY) LLC, 16 Misc.3d 867, 869, 842 N.Y.S.2d 298 (NY Sup. Ct., 2007); Angamarca v. New York City Partnership Housing Development Fund, Inc., 87 A.D.3d 206, 209, 927

N.Y.S.2d 2 (1st Dept. 2011).

Spoliation: Sanctions Imposed for

Unintentional Conduct

by Frank V. Floriani, Esq.

Often when lawyers hear the word

"spoliation," they may recall some

decisions on this subject which discuss

"intentional destruction of evidence

arising out of a party's bad faith" such

as I wrote about in my last article,

where severe sanctions were imposed

on a lawyer who advised his client to

delete social media postings. However,

the law concerning spoliation has

been extended to the non-intentional

destruction of evidence. In fact, under

New York law, spoliation sanctions can be imposed where a litigant, intentionally or negligently, disposes of crucial

items of evidence before the adverse party has an opportunity

to inspect them.

One court recently dismissed a plaintiff's case where the

plaintiff alleged property damage but failed to produce, or

preserve, the property. Plaintiff's counsel never informed the

defendant or the court, until it was too late, that the damaged

property, the subject of the lawsuit, had been disposed of. The plaintiff did not offer any explanation for why the property was destroyed, and there was no evidence to show the plaintiff's actions were willful and contumacious. Why dismissal? The

court ruled that even if the plaintiff failed to preserve the property because of mere negligence, he had to know that the allegedly damaged property was integral to the prosecution of his action when he filed the lawsuit and did not need to wait for

a discovery request from the defendant to know that crucial evidence should have been preserved. Verizon New York, Inc. v. Elq Industries, Inc., 2013 WL 139989.

While dismissal of a case is extreme, one of the more

common, but still very damaging spoliation sanctions, is the

preclusion of evidence. Very recently a court granted defendant's

motion for spoliation sanctions to the extent of precluding

the plaintiff from offering any evidence and/or testimony

at trial in opposition to the defendant's defenses and counterclaims where even though hard copies of files were printed, the plaintiff disposed of a computer that contained electronic files which were created to track the defendant's commissions. In that case, the plaintiff, a diamond dealer, alleged that the defendant, its broker, never intended to pay for diamonds it acquired from the plaintiff. The plaintiff claimed that the computer subsequently "broke" and, accordingly, threw it away. While plaintiff's bookkeeper testified that the electronic files were deleted and plaintiff produced hard copies of non-deleted files, the disposal of the computer prevented the defendant from

conducting a forensic examination of the hard drive to locate

other discoverable "metadata." A confluence of factors compelled

the court to issue its sanction of preclusion including the

violation of numerous court orders, plaintiff's failure to notify

the defendant that the computer was discarded for nearly two

(2) years, and the bookkeeper's testimony that he was never

told, either in writing or orally, to preserve electronic data.

Harry Weiss, Inc. v. Moskowitz, 2013 WL 2341806.