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USE OF SUBPOENAS AT TRIAL IN NO FAULT
By: Jeffrey S. Siegel, Esq.

FOR THE DEFENSE

USE OF SUBPOENAS AT TRIAL IN NO FAULT

By: Jeffrey S. Siegel, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


The use of the trial subpoena should be no different in a No Fault trial than any other trial. We’ve heard Judges and attorneys frequently say that the CPLR applies to all cases and “No Fault is no different.” Despite the fact that there are separate calendars in each borough for New York with their own rules specifically for No Fault; despite the fact that in at least one borough first time on cases are marked “final;” and despite the fact that even small claims matters are able to be adjourned, I still say that no fault matters ARE different.

We start off with the fact that unlike any other first party matter, Plaintiff does not have to prove coverage. Coverage is presumed. Not a big deal you say. After all, isn’t the purpose behind No Fault to pay what should be paid? And don’t get me started on Plaintiff’s burden of proof. It has been whittled away so much that there is barely a semblance of the need to call a witness. And just to be sure they don’t, Plaintiffs try to prove their case through Notices To Admit , Interrogatories …anything but (dare I say it) call a witness. No, as a defense attorney who tries these matters daily, I admit, I too smell the fragrant odor of sour grapes. True there are several Plaintiffs’ attorneys that do in fact march their witnesses in for trial. And true, there are several attorneys willing to stipulate to get down to the core issues where the case arises. But where things get cloudy are cases involving staged or caused losses. These fall under the misnomer of fraud. But it’s easier to throw the f word around so we all do it. Judge Bluth in V.S. Medical a/a/o Gavira v. Allstate addressed this issue:

But the fraud label is merely a distraction, since the focus for a \"lack of coverage\" defense must always be whether the collision was deliberate or a true accident. That is, the Court must determine whether the incident was unintentional (i.e., a true accident) or whether at least one driver intended to make contact (i.e., a deliberate event).

The question becomes, how does the defendant prove a staged or caused loss? Examinations Under Oath (EUOs) are permitted under the No Fault Regulation and are valuable tools in investigating claims. However, some Judges are reluctant to allow them to be used at trial. To avoid all of this we subpoena the assignors or any other individuals who may be able to offer testimony regarding the validity of the accident itself. Generally, Police Officers appear on a regular basis pursuant to subpoena. However, the assignors are generally reluctant to appear. Could it be because they have no true “interest” in the outcome? Could it be because they don’t want to testify under oath in open Court about the events that occurred? Either way, what does the Court do?

EUOs were specifically added to the Amended No Fault Regulations. They have long been utilized in first party cases and read at trial. But in typical first party cases (Auto theft, Homeowner losses etc.) the transcripts are read into evidence and/or used to cross examine the Plaintiff. However in No Fault cases, the assignors are not “parties” as they assigned their rights. While all agree that the assignee stands in the shoes of the assignor. Yet, despite the fact that the assignee has no greater rights than the assignor, the examination Under Oath should not be used against the assignee? So what happens when the assignor fails to appear pursuant to subpoena?

In jury trials, a missing witness charge is utilized to advise the Jury of a potential witness who failed to appear and what inferences may be drawn. But is that applicable in a No Fault matter? The assignors are not technically “parties” and it is actually the defendant who is trying to call them to prove that these individuals were involved in a staged or caused loss. Judge Fisher Rubin addressed the issue, but unfortunately due to the specific facts of the case, and ultimate ruling was not made on the issue. However, the Court’s analysis of a potential missing witness charge (negative inference by the Court) despite the fact that this was a non-jury case, at least opens the door for future application. Without the admissibility of an EUO transcript or a penalty for the assignors failure to appear pursuant to subpoena a defense attorney continues to push the rock up the hill.

Please be aware as well that the CPLR has been amended with regard to Trial subpoenas. Sec 2303(a) was amended to allow service of a subpoena for a party or a person under the party’s control to be completed by serving the party’s attorney. This becomes effective January 8th of 2008. I am sure this will cause quite a stir when arguments arise as to who is under one’s control.

With the burden of proof so heavily placed on the defense a trial attorney must use every arrow in his or her quiver. A subpoena is the surest way of securing evidence, but only if the subpoenas are obeyed and the Courts enforce them. It is clear that the Courts abhor fraud. It is our responsibility as attorneys to do all we can to expose fraudulent behavior and make it easier for the Courts to use their power to punish those involved.

Editors Note: Jeffrey S. Siegel is a graduate of the University of Dayton, School of Law and is a partner at the law firm of Bruno, Gerbino & Soriano, LLP, located in Melville, New York.



A.B. Medical Services, PLLC v. State Farm Mutual Automobile Ins. Co., 7 Misc. 3d 822, 795 N.Y.S.2d 843 [Civ. Ct. Kings County 2005] citing Gongolewski v. Travelers Ins. Co., 252 A.D.2d 569, 675 N.Y.S.2d 299 [2d Dept. 1998].
PDG Psychological, P.C. v. State Farm Insurance Co. reported at 12 Misc. 3rd 1183(A), 824 N.Y.S.2d 766, 2006 NY Slip Op 51398(U) (N.Y.C. Civ. CT., 2006)
Empire State psychological Services v. Travelers Ins. Co, 2006 NYSlipOp 51869U (App Term 2nd Dep’t 2006)
V.S. Medical a/a/o Gavira v. Allstate 2006 NY Slip Op 26000; 11 Misc. 3d 334; 811 N.Y.S.2d 886; 2006 N.Y. Misc. LEXIS 6 (Civ. Kings 2006)
CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc. 3d 237, 811 N.Y.S.2d 909, 2006 N.Y. Misc. LEXIS 498, 2006 NY Slip Op 26098 (2006)
Error! Main Document Only.Kolbeck v. LIT America Inc., 923 F. Supp. 557 (S.D.N.Y. 1996)
Ultimate Med. Supplies v. Lancer Ins. Co., 313390-03 , CIVIL COURT OF THE CITY OF NEW YORK, KINGS COUNTY, 2004 NY Slip Op 51860U; 7 Misc. 3d 1002A; 801 N.Y.S.2d 243; 2004 N.Y. Misc. LEXIS 3039, December 17, 2004,

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