David M. Barshay
David M. Barshay ()

In Metropolitan Diagnostic Med. Care, P.C. v. Erie Ins. Co. of N.Y., 54 Misc.3d 129(A) (App. Term, 2d, 11th & 13th Jud. Dists 2016), the MRIs that were the subject of the suit were prescribed by a physician who specialized in physical medicine and rehabilitation (PMR). The defendant insurer denied the claim based on a peer review report issued by a physician specializing in orthopedic surgery. At trial, defendant’s peer review expert testified to the lack of medical necessity of the MRIs. The trial court ruled for the plaintiff, holding that as the peer review physician practiced in a different specialty than the prescribing physician, he was not competent to testify. The trial court further held that nevertheless, defendant’s expert witness testimony was not credible.

On appeal, the Appellate Term held:

The fact that defendant’s witness was an orthopedic surgeon and the MRIs at issue were prescribed by a doctor whose specialty is physical medicine and rehabilitation goes to the weight to be given to the testimony and not, contrary to the Civil Court’s determination, to the witness’s competency to testify as an expert … However, we find no basis to disturb the Civil Court’s finding that the witness’s testimony was not credible.

Accordingly, while a court may ultimately give little or no weight to a medical expert’s testimony, it will not necessarily preclude the expert from testifying solely because he/she practices outside the specialty of the prescribing or treating physician.

Continuance or Adjournment

In two recent no-fault cases in the Second Department, the defendant insurers requested an adjournment or continuance of the trial due to unavailability of their expert medical witnesses. In both cases, their applications were denied, judgment was rendered in favor of the plaintiff medical providers and the defendants appealed. The results, however, were different.

In Middle Vil. Chiropractic v. GEICO Gen. Ins. Co., 55 Misc.3d 132(A) (App. Term 2d, 11th & 13th Jud. Dists. 2017), the Appellate Term affirmed the trial court’s denial of defendant’s application, finding:

Here, although expert witness testimony was critical, defense counsel made no showing that due diligence had been exercised in attempting to secure the attendance of its witnesses during the six-week period between the filing of the notice of trial and the action’s appearance on the trial calendar. In view of the foregoing, and the fact that this case had been commenced almost five years before it was reached for trial, we find that it was not an improvident exercise of discretion for the trial court to have denied defendant’s request for an adjournment.

In Brooklyn Chiropractic & Sports Therapy, P.C. v. Unitrin Direct Auto Ins. Co., 55 Misc.3d 136(A) (App. Term 9th & 10th Jud. Dists. 2017), the Appellate Term reversed the trial court’s denial of defendant’s application, finding:

The testimony of defendant’s expert “was critical to the sole contested liability issue in the case” (Bronx Expert Radiology, P.C. v. Lumbermens Mut. Cas. Co., 14 Misc.3d 133[A], 2007 NY Slip Op 50113[U], *1 (App Term, 1st Dept 2007)), and there is no evidence in the record that defendant was merely seeking to delay the trial. Moreover, defendant informed the court of its witness’s inability to appear on Mondays and was also willing to try to have its witness appear on a Monday if required. Thus, in the circumstances presented, we find that the district court improvidently exercised its discretion in refusing to grant defendant an adjournment or to reschedule the trial for a day other than a Monday or to a Monday more than eight weeks later [*2](see e.g. Byrnes v. Varlack, 17 A.D.3d 616 [2005]; Canty v. McLoughlin, 16 A.D.3d 449 [2005]; Matter of Shepard, 286 A.D.2d 336 [2001]; Azapinto v. Jamaica Hosp., 297 A.D.2d 301 [2002]; Wai Ming Ng v. Tow, 260 A.D.2d 574 [1999]; Bouima v. Dacomi, Inc., 28 Misc.3d 65 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

As the court in Middle Vil. Chiropractic observed: “An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion” (citing Nieves v. Tomonska, 306 A.D.2d 332, (2d Dept. 2003)); Winfield v. Gammons, 105 A.D.3d 753 (2d Dept. 2013); Diamond v. Diamante, 57 A.D.3d 826 (2d Dept. 2008); Noble Thread v. Noble Group, 46 A.D.3d 778 (2d Dept. 2007)). Moreover, CPLR 4402, provides: “At any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just.” In determining whether the trial court exercised sound discretion in denying a request for an adjournment or continuance due to unavailability of a witness, the appellate courts will generally review whether the testimony of the witness is material, whether the request was made for the purpose of delay and whether the need for an adjournment or continuance results from failure to exercise due diligence in securing the witness. Byrnes v. Varlack, 17 A.D.3d 616 (2d Dept. 2005)). The court may consider the number of previous adjournments granted and the length of the pendency of the proceeding. See, e.g., Diamond v. Diamante, supra. Prejudice to the opposing side may also be a relevant factor. Noble Thread v. Noble Group, supra

In both reported cases, the courts found the testimony of the unavailable witnesses was material. With respect to previous adjournments, interestingly, in Middle Vil. Chiropractic, wherein the Appellate Term affirmed the denial of the defendant’s application, the case appeared on the trial calendar only once, six weeks after the plaintiff filed its notice of trial, while in Brooklyn Chiropractic & Sports Therapy, wherein the Appellate Term reversed, the trial court had previously granted the defendant’s request for a continuance.

The apparent distinction warranting the divergent different results in these two cases was the courts’ finding the presence or absence of due diligence in securing the witnesses’ appearances. In Middle Vil. Chiropractic, the court found defense counsel’s statement, “[s]ix weeks is not a reasonable amount of time … for our offices to book a witness for all these trials” unconvincing. In contrast, in Brooklyn Chiropractic & Sports Therapy, defense counsel advised the court on the first trial date that its witness was not available on Mondays, and when the case was later continued to another Monday date, defense counsel again advised the court that its witness was not available on Mondays, but it would attempt to secure the witness on a Monday with at least eight weeks’ notice. Thus, the Appellate Term found the defendant in Brooklyn Chiropractic & Sports Therapy did exercise due diligence, and was not merely seeking to delay the trial.

Accordingly, a prudent practitioner seeking an adjournment or continuance of a trial due to unavailability of its witness should consider the above standards when communicating its request to the trial court. Moreover, one should familiarize himself/herself with the particular court’s policy on adjournments, as there is no inherent right to an adjournment, even for first-time trials. While certain courts or judges may, as a matter of course, adjourn trials at the request of one or both parties, others may strictly require satisfaction of the above standards before granting an adjournment or continuance.

Non-Involvement in Accident

No-fault insurance benefits are available to, inter alia, “any [] person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle.” 11 NYCRR 65-1.1, Definition of Eligible Injured Person, subsection 3.This necessarily includes occupants of the insured vehicle and pedestrians. Additionally,

(b) An insurer shall pay benefits to an applicant for losses arising out of an accident in the following situations: * * *

(3) where there is no physical contact between the applicant and a motor vehicle or motorcycle which is the proximate cause of the injury.

11 NYCRR 65-3.14(b)(3)

Thus, a pedestrian injured as the result of the use or operation of the insured vehicle may be covered even if there was no direct contact with the insured vehicle, provided the insured vehicle was involved in the incident.

In the recent case of Valentin Avanesov, Physician PC v. Travelers Prop. Cas. Co. of Am., 2017 NY Slip Op 50674(U) (App. Term 1st Dept. 2017), the defendant insurer moved for summary judgment on the ground that its insured was not involved in the underlying motor vehicle accident in which the plaintiff’s assignor was injured as a pedestrian. In support of its motion, defendant submitted an affidavit of its insured in which he denied involvement in the underlying accident, together with a detailed, unsworn statement of the insured in which he alleged that he was at the scene of the alleged accident, making a left turn, when “the next thing I kn[e]w, the person was on the floor,” as well as the examination under oath transcript of the assignor, which indicated that she was struck by a vehicle while crossing an intersection.

The lower court granted the defendant’s motion, dismissing the case, and denied the plaintiff medical provider’s cross-motion for summary judgment. On appeal, the court affirmed the denial of plaintiff’s cross-motion, but reversed and denied the defendant’s motion, finding that triable issues existed as to whether the insured was involved in the accident. Given that the No-Fault regulations provide for coverage even if there is no direct physical contact with the insured vehicle, it would appear that even without the assignor’s testimony that she was struck by a vehicle, there would remain triable issues of fact as to whether the insured vehicle was “the proximate cause of the injury.”