Author Archives: Dave Gottlieb

Catchy Title

It’s been an unusually slow, busy week.  It started off with me, my wife, and the 15-month-old, heading to the doctor to see if the kid needs tubes in her ears.  She does.  Those that are familiar with them understand that tubes are relatively routine and non obtrusive.  Me, not being familiar with them, and being too busy/confused/lazy to look it up, was under the impression that they are something different.

Crazy, right?  That’s what I pictured in my head, except the tubes were skin color.  That’s how my week started. [Edit:  That isn't a picture of my kid].

A few cases came out today.  Nothing big.

Alur Med. Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 51053(U) (App. Term, 2nd, 11th and 13th Jud. Dists. 2010)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the claim had been submitted more than 45 days after the date the services had been rendered. The Civil Court granted plaintiff’s motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted to the insurer a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Ordinarily, a provider establishes the submission of the claim form by proof of its proper mailing, which proof gives rise to a presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). [*2]

In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.

If the defense is a 45-day-rule defense, then the defendant must have attached a denial to its motion, because that particular defense requires a timely denial and the denial contain certain ameliorative language.  Otherwise, the defense was entirely unsupported.  My guess is that the defense was unsupported.  However, if the defendant attached a denial, then that would cure the defect in the mailing.  Something is weird here.

Since the court makes much ado of the discrepancy here, a discrepancy between a defendant’s denial and its affidavit should require the same result.  For example, where a denial indicates one return address and the affidavit claims that the denials were mailed from another return address.  What if the addresses are from different states?  Doesn’t that have to be accounted for?

The other decisions are a CPLR 3216[1] decision and a EUO decision[2] with a curious argument.

Man do I love footnotes.

[1] Magnezit Med. Care, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 51054(U) (App. Term, 2nd, 11th and 13th Jud. Dists. 2010)

[2] Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 2010 NY Slip Op 51057(U)  (App. Term, 2nd, 11th and 13th Jud. Dists. 2010)


Thanks to Damin Toell for the title.  Genius.

Those of you that haven’t been living under a rock or lobotomized probably are aware of the recent cases from the Appellate Term. JT wrote about them.  I wasn’t in the mood to read them or write about them.  I’m still not.  But, I’d be remiss if I didn’t.

“An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion,”[1] so says the Appellate Division, Second Department.  In fact, “an expert’s opinion not based on facts is worthless,”[2] so says the Court of Appeals.  Worthless.

The Appellate Term, in Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), on the other hand, held

Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant

So worthless, then, doesn’t have the same definition at the Civil Court and the Appellate Term.[3] Right.

Wait a second.  Hold on. What about Innovative Chiropractic, P.C. v Travelers Ins. Co., 2010 NY Slip Op 50994(U) (App. Term, 2nd, 11th and 13th Jud. Dists. 2010), where the same Appellate Term held that

[D]efendant also submitted, among other things, an affidavit from its peer review chiropractor and a peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue

“Factual basis.”[4]

Assuming that I agree with the Appellate Term’s reasoning as to assignors, namely, “With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor,” doesn’t it matter when the plaintiff’s service were provided in relation to the dates of service for the other providers.  What if the provider performed the services on 1/1/10 and took an assignment on that date, but defendant wanted to have its expert testify as to records from services provided on 1/15/10?

I haven’t pulled the record on this one yet, but I’m willing to bet that no foundation was provided as to where the records came from and the dates that the records were received.  As I’ve said before, if a peer review doctor (let alone a re-peer) receives records to review, the records come from a vendor, who receives the records from the defendant, who receives it from…and so on and so forth.  It is all but certain that no explanation was provided.

Next, steadily moving backwards, the Appellate Term tells us that, if an MRI facility receives a verification request as to the referring doctors’ records, it has to tell the insurance company what it already knows.  But, it isn’t all bad.  If that’s the case, a simple form letter saying, “We are an MRI facility, we don’t have those records,” should be enough to make the insurance company take some other, affirmative, action.  It’s wrong, and silly, but like I said, it’s not all bad.

It doesn’t stop there.  Well, Urban Radiology does, but the Appellatetermageddon doesn’t: Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50990(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).

Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed.

Can this be reconciled with Cirucci?[5] Can it be reconciled with Zuppa?  Can an insurer show that it denied the correct claim, if it doesn’t offer the denial for its truthiness?  Sure, some of you will say, “well, if the plaintiff established it’s prima facie case, then most of the stuff that would be subject to a hearsay[6] objection will already be in evidence through plaintiff’s bills.”  I’ll answer : (1) all but two or three of you thought about that, and well, you’re ugly and nobody loves you; (2) see (1); and (3), I guarantee you that the lower courts would issue a ruling, misguided as it is, that the plaintiff failed to establish its prima facie case and that the defendant provided a foundation for its denial, or, that defendant established its prima facie case, but plaintiff didn’t.[7]

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2010 NY Slip Op 50991(U) (App. Term, 2nd, 11th &13th Jud. Dists. 2010) doesn’t add anything, other than some talk about EUOs.  There were a few other decisions about stipulations and dismissals, and their consequences, but that stuff is old news.[8] And there was some 3212(f) stuff, that I’m not even going to bother putting in a footnote.

On a final, and positive note, the Appellate Term gave us Excel Imaging, P.C. v MVAIC, 2010 NY Slip Op 50998(U) (App. Term, 2nd, 11th &13th Jud. Dists. 2010) (“[P]laintiff contends that the order, insofar as appealed from, should be affirmed, as triable issues exist regarding, among other things, whether the denial of claim form had been issued in duplicate…Upon a review of the record, we agree with the Civil Court’s determiFnation that MVAIC is not entitled to summary judgment.”)

Continuing on that positive note, it appears as if State Farm, through its counsel, changed it position on what constitutes a claim.  LMwho?

Sometimes I wonder why I don’t write substantive posts.  This is why.

If anyone has more cases to add or some insight, please comment.  I had to rush this through because in an hour or so I have to go watch my daughter’s ballet recital.  That leaves me almost no time to drink in preparation.

[1] Rosato v 2550 Corp., 70 AD3d 803 (App. Div., 2nd, 2010) h/t to Damin Toell for sending the case my way

[2] Caton v. Doug Urban Const. Co., 493 N.Y.S.2d 453 (Ct. App. 1985)

[3] The judicial equivalent of the Bistromathic Drive?

[4] Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2010 NY Slip Op 50997(U) (App. Term, 2nd, 11th &13th Jud. Dists. 2010) said the same thing.

[5] General Acc. Ins. Group v. Cirucci, 414 N.Y.S.2d 512 (Ct. App. 1979).

[6] See generally, Hochhauser v Electric Ins. Co., 46 AD3d 174 (App. Div., 2nd, 2007)

[7] It’s all garbage because, despite what the Appellate Term says, the plaintiff does not need to provide a foundation for the facts contained in the bill; it’s the defense that matters.  See generally, Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 (Ct. App. 2008).

[8] Boris Kleyman, P.C. v General Cas. Ins. Co., 2010 NY Slip Op 50992(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010); Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 2010 NY Slip Op 50993(U)) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010); Ema Acupuncture, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 50995(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 51000(U)) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010) was the only one that was remotely interesting.  In that case, had the plaintiff opposed the original 3216 motion and lost, or waited until it got a determination on the motion, before filing the new lawsuit, it might have benefited from an SOL toll via the (relatively) amended CPLR 205. I probably should have put this in the post and note this footnote.

Not sure how I missed it

I knew of the decision, but the letter missed me. On May 21, 2010, Michael J. Palumbo’s letter to the editor, INSURERS USE CAUTION IN RELYING ON NF-10 FORMS TO DENY CLAIMS, was published.  In it, Mr. Palumbo discusses Sunil Butani a/o George Gilles v. American Independent Insurance, American Arbitration Association Case No.: 4120009045981 (March 18, 2010), a recent arbitration decision.  In that case, despite AII’s claims that it does not transact business in New York, the arbitrator determined that AII waived any defense predicated on personal jurisdiction because AII’s denials contained this language in its denial,

If you wish to submit this claim to arbitration, mail a copy of this denial of claim form along with a complete submission of all other pertinent documents and a table of contents listing your submissions, in duplicate together with a $40.00 filing fee, payable to the American Arbitration Association (AAA) to: New York Insurance Case Management Center, American Arbitration Association, 65 Broadway, New York, N.Y., 10006.

Interesting stuff.

Looks like I picked the wrong week to quit sniffing glue

It’s time for my tri-weekly post of roundups of writing posts, motivational posts, and other assorted things that have piqued my interested.  Most everything is something I found through my RSS reader.



Everything else

A little while ago, on the CPLR blog,  I shared my fascination with books.  Today I found a post on Japanese pens.  Yes, I spent the time to read a post on Japanese pens and then took the time to write about me reading a post on Japanese pens.

The rest of it

I read a lot blogs.  Some I read for the content.  Others I read because I like the way the writers write.  I don’t know why, but from my experience, the best writers are criminal defense attorneys.  Two of the best are Norm Pattis (Norm Pattis blog) and Scott Greenfield (Simple Justice).  For pure writing skill and style, they are way at the top.  I read the blogs for the content too, but that’s not the point here.  And I’m not talking about good writing as in grammar.  Anyone with a handbook can do that.  I’m talking about engaging prose.  Stuff you actually want to read.  Both have different styles.  Both are worth reading, and in my opinion, worth emulating.  Is there something about criminal defense that lends itself to good writing, more so than civil litigation?

Procedural DJ

Kemper Independence Ins. Co. v E&W Acupuncture, P.C., 2010 NY Slip Op 31342(U) (Sup Ct, NY County, 2010)

I’ll write more (than this) later.  It’s a PDF, and it’s long.

MVAIC et. al.

Bath Med. Supply Inc. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 31281(U) (Sup Ct, Nassau County, 2010)

Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 2010 NY Slip Op 04522 (App. Div., 1st, 2010)

MVAIC defended the arbitration on the ground that the police accident report showed that the offending vehicle was registered out-of-state and was insured, but the arbitrator refused to consider that defense on the merits on the ground that MVAIC had failed to pay or deny the claim within 30 days of its submission, as required by the no-fault law (Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; [c]). This was contrary to settled law (see generally Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]) recognizing a narrow exception to the 30-day deadline for defenses based on lack of coverage (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). New York Hosp. Med. Ctr. of Queens v MVAIC (12 AD3d 429 [2d Dept 2004], lv denied 4 NY3d 705 [2005]), relied on by the arbitrator, did not involve a lack of coverage issue. We would add that the burden is on MVAIC to prove its lack-of-coverage defense.

Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 50950(U) (Civ Ct City NY, Kings County, 2010)

In support of its second contention, Plaintiff argues that despite the fact that the accident occurred in Kings County and the Plaintiff resides in Kings County, Defendant scheduled the EUOs to be held at the offices of its counsel located in Westchester County. As such, Plaintiff claims that the EUO notices were defective and unreasonable because it failed to provide that Plaintiff would be paid for her time and travel expenses.

Here, it is undisputed that Plaintiff did not respond to the Verification Request. Plaintiff asserts that it was not required to respond due to the fact that Defendant’s request was defective and unreasonable. The Court disagrees. There is no provision of the No Fault Regulations which allow a claimant or insurance company to ignore a Verification Request or response. In fact, there is ample case law which provides that neither party may ignore communications from the other without risking its chance to prevail in the matter (see, Media Neurology, P.C. v. Countrywide Ins. Co., 21 Misc 3d 1101(A); and Westchester County Medical Center v. NY Central Mutual Fire Ins. Co., 262 AD2d 553). Even when a claimant believes it need not comply with a verification request, the claimant still has a duty to communicate with the insurer regarding the request (see, Dilon Medical Supply Corp. v. Travelers Insurance Co., 7 Misc 3d 927). It is well established that the purpose of the No Fault statute is to ensure prompt resolution of claims by accident victims. The parties’ obligations are centered on good faith and common sense. Any questions concerning a communication should be addressed by further communication, not inaction.(see, Dilon Medical Supply Corp. v. Travelers Insurance Co, supra).

If a Plaintiff deems a Verification Request to be defective and or unreasonable, it is incumbent on that Plaintiff to convey that information to the Defendant and to state the reasons thereof, thereby giving the Defendant the opportunity to respond accordingly. The Defendant should not be put in a position to second guess the reason or reasons why the Plaintiff has failed to respond to the request. In this case, the Plaintiff could have informed the Defendant that given the fact that the Plaintiff resided in Brooklyn, the scheduled location for the EUO was inconvenient, or in the alternative, Plaintiff could have requested reimbursement for time and travel expenses, thereby preserving its defenses concerning the EUO notices (see, Presbyterian v Maryland, 90 NY2d 274). By failing to respond to Defendant’s Verification Request, Plaintiff undermined the purpose of the No Fault Statute, which is to ensure the prompt resolution of claims.

The Court finds that by failing to respond to Defendant’s Verification Request, Plaintiff waived its defense and is therefore estopped from asserting that the EUO notices were defective and unreasonable. Defendant should not be penalized for Plaintiff’s inaction. Accordingly, the Court [*3]need not address Plaintiff’s arguments concerning the sufficiency of Defendant’s EUO requests (see Allstate Social Work and Psychological Svcs. v. Utica Mutual Insurance Co., 22 Misc 3d 723).

By the Court’s rationale, the insurance company could have scheduled the EUO in Riverhead and demanded that the plaintiff wear a pink shirt and plaid socks, and, if plaintiff didn’t respond, defendant gets an automatic victory.  In fact, by the same rationale, an insurance company can request that an assignor provide his or her high school transcript, a DNA sample, an autographed copy of Moby Dick, or any other such nonsense.  If the assignor doesn’t write back, that’s it. Game over.  A verification request that is improper is not a verification request.  It’s nothing.  The assignor doesn’t have to respond so that the insurance company can have a “do over.”  If you think some of the examples I gave are absurd, take a look at some of the things insurance companies have been requesting lately.

This issue was discussed in a comment not too long ago.

Tonight’s No-Fault CLE (continued)

Sorry, the previous post is the end of my pictures.  There are no pictures of the judges, because that would be incredibly stupid.

Pictures aside, the CLE was great.  We learned about jury trials, medical necessity trials, arbitration, independent contractors, and what judges expect of attorneys in the motion part.  Everyone who did not attend is dumber for it.  All those in attendance are now bona fide geniuses.

The Brooklyn Bar Association did a great job putting it together and the presenters did superb job.

Tonight’s No-Fault CLE

I took notes.  But the notes are for me, not you.  You can have the footnotes.

Stuff I should have posted over the weekend

There were a few no-fault cases that were posted this past Friday.  I’m pretty sure JT touched on all of them, so I won’t get into it over here.  And as I was writing this, I found a new case over at the Appellate Term, First Department.

Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 2010 NY Slip Op 50911(U) (App. Term, 1st, 2010)

As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).

A little while ago I went over the to the Appellate Division to pull the briefs on Carothers v. Geico.  You all recall that the Appellate Division granted leave to appeal the Appellate Term’s decision in Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 (App. Term, 2nd 2009).  If you want some background on the case, have a look at my previous post.  Sometime last week I found out that the Appellate Division granted additional time for a reply. In a footnote in my earlier post I noted the ad hominem attacks and hyperbole in one of the briefs.  There was a little in both, but more in the one that had it the first time around.

Geico conceded an awful lot; much more than you would expect.  When concessions and legal argument failed, Geico went straight to its “the other side is bad” arguments, which, I’d like to think, is wasted on the Appellate Division.  And for whatever reason, Geico cited to the Appellate Term, far more than to the Appellate Division, to support it’s arguments.  Finally (sort-of), and I don’t mean to Geico bash, the binding on the Geico brief was annoying as hell.  Geico used the plastic ring binding.  With that binding, turning pages is like listening to someone playing with styrofoam and scratching a chalkboard at the same time.  Carothers made the argument that the bills are medical records and are therefore self-authenticating.

Both sides used FRCP 803(6) to support their position.  Both sides argued that Hochhauser supports their position.  Neither side addressed the possibility that the bills do not need to be in evidence at all.  Neither side discussed the Corsi decision.

I didn’t copy the briefs (35 cents/page).  I thought I was going to take a lot of notes, but I wound up writing two things on a legal pad.  When Carothers puts in the reply brief, I might go back and give everyone an update.

Depositions. Bits and Pieces.

JT wrote about it (Marmer).  I posted it on the CPLR blog.  It’s sort of relevant.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of establishing, by proof in admissible form, their prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d 78, 83). This burden may be satisfied only by the defendant’s affirmative demonstration of the merit of the defense, rather than merely by reliance on gaps in the plaintiffs’ case (see DeFalco v BJ’s Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd. Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637, 638). Here, the defendants submitted [*2]hospital laboratory reports and records of the New York City Department of Health and Mental Hygiene. As the Supreme Court concluded, however, because these documents were neither certified nor authenticated, and thus were not in admissible form, they could not be considered on the motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth., 36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v City of New York, 48 AD3d 798, 799). Moreover, the affirmation of the defendants’ attorney submitted with very brief excerpts of deposition testimony was insufficient to establish the defendants’ entitlement to judgment as a matter of law (see Irving v Great Atl. & Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216 AD2d 434). Inasmuch as the defendants failed to carry their burden, denial of the motion was required without regard to the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the plaintiff did not sustain a serious injury as a result of the subject accident. Specifically, the defendants failed to show that the plaintiff did not sustain a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the subject motor vehicle accident, as articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In the plaintiff’s bill of particulars, she clearly set forth that, as a result of the subject motor vehicle accident, she sustained, inter alia, a serious injury under the 90/180-day category of Insurance Law § 5102(d). The affirmed reports of the defendants’ examining physicians did not specifically relate any of their findings to this 90/180-day category of serious injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned deposition transcript of the plaintiff, which the defendants submitted in support of their motion, did not constitute admissible evidence in light of the defendants’ failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we need not consider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815).

Too many motions rely on “gaps in the plaintiff’s case.”  In most cases, the “gaps” aren’t gaps, they are attempts to move burdens by sleight-of-hand.  Cherry-picking a deposition transcript is a bad idea when you don’t attach the entire transcript.  Attaching the transcript won’t do much unless it is admissible.  And so on and so forth.  Etc. Etc. Etc.