Wednesday, November 18, 2015

A motion to vacate a self-executing preclusion order.

Practice point:  The Appellate Division affirmed the denial of plaintiff's cross motion to vacate the self-executing preclusion order, as plaintiff failed to provide a reasonable excuse for his failure to appear at defendant's five separately scheduled medical examinations, two of which occurred after the issuance of the preclusion order.  Plaintiff's claimed lack of knowledge of the scheduled medical examinations is unreasonable, especially since he failed to indicate any efforts he made to stay in contact with his counsel, despite the fact that there were two court orders directing that he appear for his medical examination. Plaintiff does not deny that he was aware of those orders. His counsel also failed to confirm his assertions that he had no contact with his counsel, or that they mailed medical examination notices to plaintiff's mother's address.

Plaintiff also failed to show that his was a meritorious claim.  He failed to submit an affidavit of merit, and the only evidence he submitted as proof of defendant's liability was a police accident report containing his hearsay statement as to how the accident happened. This is insufficient to demonstrate a meritorious cause of action.

Student note:  The preclusion of any testimony as to plaintiff's medical condition rendered him unable to establish a prima facie case.

Case:  Arzuaga v. Tejada, NY Slip Op 08108 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  An injury resulting from an elevation-related risk.