Katz et al v. Travelers et al

Filing 65

MEMORANDUM OF DECISION & ORDER re 55 Motion for Summary Judgment. For the foregoing reasons, the Court grants Travelers's motion for summary judgment in its entirety and dismisses the Complaint with prejudice. The Clerk of the Court is directed to enter judgment for Travelers and to close this case. SEE ATTACHED DECISION for details. It is So Ordered by Judge Arthur D. Spatt on 9/26/2019. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
MICHAEL J. KATZ, M.D. and MICHAEL
J. KATZ, M.D., P.C.,
MEMORANDUM OF
DECISION & ORDER
2:16-cv-04389 (ADS)(SIL)

Plaintiffs,
-againstTRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, and its
relevant servants, agents or employees and
relevant associated, affiliated or subsidiary
corporations,
Defendant.
---------------------------------------------------------X
APPEARANCES:
Zisholtz & Zisholtz, LLP
Attorneys for the Plaintiffs
170 Old Country Road Suite 300
Mineola, NY 11501
By:
Gerald Zisholtz, Esq.,
Stuart S. Zisholtz, Esq.,
Meng Cheng, Esq., Of Counsel.
DLA Piper US LLP
Attorneys for the Defendant
6225 Smith Avenue
Baltimore, MD 21209
By:
Brett Ingerman , Esq.,
Michael Bakhama, Esq.,

1251 Avenue of The Americas 27th Floor
New York, NY 10020
By:
Colleen Michelle Gulliver, Esq.,
Michael George Lewis, Esq., Of Counsel.
SPATT, District Judge:
Plaintiffs Michael J. Katz, M.D. and Michael J. Katz, M.D., P.C. (the “Plaintiffs” or “Dr.
Katz”) bring this action against defendant Travelers Property Casualty Company of America
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(“Travelers” or the “Defendant”) alleging breach of contract under New York State law
pertaining to Travelers’s retention of Dr. Katz to testify as an independent medical examiner in a
personal injury case in the New York Supreme Court for the County of Queens, Bermejo v.
Amsterdam & 76th Associates, LLC, et al., No. 23985/2009 (“Bermejo”), on behalf of a
Travelers policyholder.
Presently before the Court is a motion by the Defendant for summary judgment pursuant
to Federal Rule of Civil Procedure (“Fed. R. Civ. P.” or “Rule”) 56. For the following reasons,
the Court grants the Defendant’s motion for summary judgment in its entirety.
I. BACKGROUND
Dr. Katz is an orthopedist and former independent medical examiner. The Law Office of
Andrea Sawyers (the “Law Office”), the members of which are employed by Travelers to
represent the interests of its policyholders, engaged Dr. Katz to testify regarding the cause of the
Bermejo plaintiff’s injury. No written agreement existed between Dr. Katz and Travelers or the
Law Office. The central issue is whether certain expenses incurred by Dr. Katz fell within the
scope of an oral agreement between the parties.
It is undisputed that Dr. Katz performed two Independent Medical Examinations
(“IMEs”) of the plaintiff in the state court proceeding, Manuel Bermejo (“Bermejo”). It is also
undisputed that Dr. Katz appeared in court on April 12, 2013 (hereinafter “April 12”), testified as
agreed, and was paid fully by Travelers for the services he provided up to that date. However, the
parties disagree regarding whether the contract required Travelers to pay Dr. Katz for expenses
arising from a number of hearings held subsequent to his testimony on April 12, when the
presiding judge, the late Justice Duane Hart (“Justice Hart”), accused Dr. Katz of perjury.

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Dr. Katz alleges that he continued to assist in Travelers’s defense of the Bermejo action at
the request of Travelers’s trial counsel, Michael T. Reilly (“Reilly”), and thus is entitled to
payment at a daily rate of $14,000 pursuant to his agreement with Travelers. Travelers, on the
other hand, contends that the parties’ agreement only compensated Dr. Katz for his testimony,
thereby excluding any appearances and expenses incurred after April 12, which occurred under
the order of Justice Hart rather than at the request of Travelers.
A. THE PROCEEDINGS BEFORE JUSTICE HART.
1. April 12–13, 2013.
During the April 12 hearing, on cross-examination, Bermejo’s counsel, Patrick J. Hackett
(“Hackett”), questioned Dr. Katz about the length of the second IME. Initially, Dr. Katz stated
that he did not remember the length of the IME, nor could he provide an average amount of time
that an exam of that nature takes based on his usual custom and practice. At the insistence of
Justice Hart, Dr. Katz estimated that the average amount of time he spends on such an
examination to be between ten and twenty minutes. Dr. Katz concluded his testimony that same
day.
After Dr. Katz concluded his testimony and left the courtroom, Hackett called his
paralegal (who had nodded her head in disagreement during Dr. Katz’s testimony) to impeach
Dr. Katz’s testimony. Hackett revealed that his paralegal had secretly recorded a video of Dr.
Katz’s second IME of Bermejo. Justice Hart permitted Hackett to play this recording to the jury.
Hackett contended that the recording proved that the examination lasted less than two minutes,
and that this contradicted Dr. Katz’s testimony that he typically takes ten-to-twenty minutes to
conduct similar examinations.

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On Saturday, April 13, 2013, Justice Hart left Michael T. Reilly (“Reilly”), Travelers’s
trial counsel, a voicemail and told him that he was troubled by Dr. Katz’s testimony. In the
voicemail, Justice Hart told Reilly that Dr. Katz must appear in court on Monday and that he
should bring his own personal attorney. Reilly relayed this order to Dr. Katz by telephone.
2. April 15, 2013.
On Monday, April 15, 2013 (hereinafter “April 15”), Dr. Katz appeared in Court, as
ordered. Justice Hart warned Dr. Katz that he was facing potential criminal charges:
THE COURT: … Okay Doctor, I know you want to say something but I suggest
you not say anything until you are dealing with an attorney. I would strongly
suggest that you wait. You have an attorney coming in today?
[DR. KATZ]: We’re trying.
THE COURT: I would strongly suggest you not do anything because you’re in
more trouble than you think. It’s probably that your career doing IME’s is over.
… If I find out or if I even suspect something is going on I have a duty to get in
touch with the district attorney and getting in touch with the district attorney is not
a good thing for you in this case. Is that understood?
[DR. KATZ]: Yes, sir.
ECF 57-5, Bermejo Apr. 15, 2013 Tr. 1058:5–21.
Almost immediately, Dr. Katz hired an attorney, David Vozza (“Vozza”), who appeared
in court the same day to defend Dr. Katz. When Justice Hart asked Vozza if he would “let [his]
client continue to offer testimony in this trial,” Vozza responded “[a]bsolutely not, Judge.” Id. at
1059:16–19. Justice Hart then considered declaring a mistrial, telling Reilly: “you still have this
doctor who will now not testify. …” Id. at 1059:22–24.
Ultimately, however, Justice Hart did not declare a mistrial on April 15. Instead, he urged
the parties to settle the case, in part “so that the defendant isn’t put in a position where they have
to go forward on the RSD case with no orthopedist …” Id. at 1063:22–1064:5. Justice Hart
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warned the parties and counsel that “[i]f you can’t work it out today I will declare a mistrial
tomorrow and I will take the remedial actions I told you that I was taking.” Id. at 1066:12–20.
When Vozza asked if Dr. Katz was required to appear on April 16, Justice Hart replied:
“I would think you and the doctor would be the first ones to open up this building in the
morning” and instructed Dr. Katz to cancel his calendar of patients. Id. at 1067:10–17.
Elaborating, Justice Hart warned that “if I think there is a hint that [Dr. Katz] was lying I’m
going to be the least of his problems. My friends in my former office in the district attorney they
might have a conversation with you…” Id. at 1067:22–25.
3. April 16, 2013.
On April 16, 2013 (hereinafter “April 16”), Dr. Katz again appeared in court, as ordered
by Justice Hart. ECF 57-6, Bermejo Apr. 16, 2013 Tr. At his deposition in this case, Dr. Katz
testified that no one from Travelers requested that he appear in court between April 15 and April
16. Katz Dep. 69:21- 70:2. Dr. Katz provided no testimony on either date. To the contrary, Dr.
Katz testified that, by April 16, he was no longer receiving any instructions from Travelers:
Q. After your attorney had said that he would absolutely not let you testify, what
was the reason for coming to court the next day [i.e., on April 16]?
A. It’s apparent over here that Mr. Reilly needed his witness, but Mr. Reilly was
no longer instructing me. I was being instructed by Mr. Vozza, and that was
through Judge [sic] Hart. …
Katz Dep. 66:10–18.
On April 16, Justice Hart declared a mistrial. Justice Hart also scheduled sanctions and
contempt hearings against plaintiff’s counsel, for secretly recording the IME; the Bermejo
defendants and Travelers, for hiring Dr. Katz; and against Dr. Katz himself, for allegedly
committing perjury. He stated the purpose of the next hearing:

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I want, when you come back for trial, I want the memos of law to try and
convince me first that I shouldn’t have a sanctions hearing at all or in the
alternative if I have the sanctions hearing why your particular client or law firm
shouldn’t be sanctioned for the cost of this trial.
Bermejo Apr. 16, 2013 Tr. 1074:22–1075:2.
On several dates throughout June and July, the court held hearings on a host of issues,
including, inter alia, sanctions; the admissibility of the secret video recording of Dr. Katz’s
second IME; whether Dr. Katz committed perjury; and whether Reilly’s client was entitled to
engage a new expert in light of the unusual circumstances surrounding the impeachment of Dr.
Katz’s testimony.
4. June 12, 2013.
The first such hearing occurred on June 12, 2013 (hereinafter “June 12”). At his
deposition, Dr. Katz testified that he did not appear in court or perform any work for Travelers
on that date. See Katz Dep. 72:11–73:14. Instead, another one of Dr. Katz’s personal lawyers,
Sean Lenihan (“Lenihan”), entered his appearance to represent Dr. Katz’s interests. In Lenihan’s
presence, Justice Hart declared that Dr. Katz “lied about a material fact” and that Dr. Katz’s
perjury was the cause of the mistrial. ECF 57-7, Bermejo June 12, 2013 Tr. 4:22–25. Justice Hart
then expressed to the parties his displeasure regarding Dr. Katz’s failure to appear. Id. at 5:7–12
(“And Dr. Katz, who basically in this matter could be called Typhoid Mary, because it’s his lie
that caused this mistrial and caused this problem, deciding he's got other things to do, which is
not a great thing when I've got a sanctions hearing scheduled as against him in three weeks.”).
At the hearing, Reilly reiterated his request to engage a new expert witness. He contended
that the unusual and unanticipated circumstances leading to the mistrial, including the improper
admission of the video recording of Dr. Katz’s IME and the attempt to impeach Dr. Katz’s
testimony with the recording, justified this relief. Reilly emphasized that he could not and would
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not engage Dr. Katz in any retrial under the circumstances: “The bottom line is this, Judge. I
have now a physician which I stated on my papers and before your Honor now who will not
come in.” Id. at 9:12–14. Indeed, Reilly analogized the situation to Dr. Katz “being legally
dead.” Id. at 10:7–9.
While Dr. Katz was not present in court on June 12, he testified at his deposition in this
case that he was well aware of Reilly’s ongoing efforts to engage a new orthopedist and of his
position that he could not engage Dr. Katz in any retrial under the circumstances. Katz Dep.
83:16–23. A substantial portion of the June 12 hearing consisted of a colloquy between Justice
Hart and Dr. Katz’s counsel regarding whether Dr. Katz committed perjury. Ultimately, Justice
Hart ordered Dr. Katz to return to court for a sanctions hearings in July:
THE COURT: I’m going to sign the order and we’re going to resume this party
July 1st … I suggest that Dr. Katz clear out his schedule.
MR. LENIHAN: I’ll do my best, your Honor.
THE COURT: No, let’s put it this way, he’s ordered here.
MR. LENIHAN: I’ll advise him of such.
Bermejo June 12, 2013 Tr. 29:18–25. Later in the proceeding, Justice Hart repeated: “again, Dr.
Katz better be here.” Id. at 34:12.
5. July 2013.
Dr. Katz testified at his deposition that Travelers did not request his services at the July
sanctions hearings:
Q. On July the 1st did anyone at Travelers ask you to be in court that day?
A. No.
…
Q. Did you appear in court on [July 2]?
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A. No.
Q. And did anyone at Travelers tell you to be on call that day?
A. No.
Q. And July 8th … Did anyone at Travelers specifically ask you to be in court on
that day?
A. No.
Katz Dep. 85:24–86:5; 91:5–22.
At the July 2, 2013 (hereinafter “July 2”) and July 8, 2013 (hereinafter “July 8”) hearings,
to which Dr. Katz made no appearances, Reilly reiterated his objection that he could not use Dr.
Katz as an expert:
MR. REILLY: … [Dr. Katz] won’t come in voluntarily. I am not subpoenaing
him. There is an adverse situation regarding that.
THE COURT: It is not adverse. He lied. He lied. I would imagine to help either
your case or his carrier. I don’t know which one.
MR. REILLY: It is adverse. I can’t have the gentleman come in. Quite frankly
under your Honor’s holding, were I to subpoena him, I could be exposed to a
problem and so could my firm and so could my client.
ECF 57-8, Bermejo July 8, 2013 Tr. 5:10–23. Justice Hart denied Reilly’s motion, and Reilly
appealed.
B. THE APPEAL TO THE SECOND DEPARTMENT.
On appeal, the Second Department reversed Justice Hart’s decision to deny Reilly’s
request to engage a new expert, explaining:
In the present case, unusual and unanticipated circumstances warranting a new
IME abound. Foremost among them is Dr. Katz's unavailability to the appellants
as a witness at a retrial, due to his refusal to appear voluntarily, which, in turn,
resulted from the Supreme Court's repeated accusation that Dr. Katz “lied” or
committed “perjury” at the first damages trial. These extraordinary circumstances
were set in motion when the plaintiff's attorney chose to surreptitiously videotape
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Dr. Katz's second IME of the plaintiff, and chose to withhold that recording from
defense counsel despite the requirements of CPLR 3101 (i).
Bermejo v. New York City Health & Hosps. Corp., 135 A.D.3d 116, 142, 21 N.Y.S.3d 78 (2d
Dep’t 2015) (hereinafter, “Bermejo II”).
The Second Department emphasized several highly “unusual and unanticipated
circumstances” which justified the relief sought by Reilly, including: (1) Hackett’s improper
taking and revelation at trial of the secret recording, (2) Justice Hart’s interference with the
cross-examination of Dr. Katz, and his insistence that Dr. Katz change his testimony, (3) Justice
Hart’s accusations, “repeated more than 60 times on the record,” that Dr. Katz “lied” or
committed “perjury,” and (4) Justice Hart’s “repeated threats to refer Dr. Katz to the District
Attorney’s office with a recommendation that he be prosecuted for perjury, and the court’s
extraordinary efforts to end Dr. Katz’s career…” See id. at 147–49. The Second Department
observed that “[u]nder these conditions, it is not surprising that Dr. Katz refuses to testify
voluntarily at a retrial.” Id. at 149.
C. DR. KATZ’S POST-BERMEJO DEMANDS.
Dr. Katz agreed in his deposition that Travelers paid him in full for his testimony on
April 12. Katz Dep. 6:16–24. Dr. Katz also testified that his normal practice was to send an
invoice to a client within one month of his testimony. Id. at 36:18–24. However, over the course
of several years, Dr. Katz submitted several invoices to Travelers demanding payment for
alleged services rendered during the Bermejo trial:
On June 18, 2014 – more than a year after the Bermejo trial – Dr. Katz claimed that
Travelers owed him $35,000, ostensibly for “additional days of testimony” on April 15, April 16,
and July 1, 2013 (hereinafter “July 1”).

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Almost two years later, on February 26, 2016, Dr. Katz sent Travelers an invoice for
$137,250, but clarified at his deposition that $53,000 of this amount represented fees he paid to
his personal attorney to defend him against Justice Hart’s accusations. Id. at 101:8–102:24. The
February 2016 invoice ostensibly was for Dr. Katz’s “appearances” on April 15, April 16, April
22, July 1, July 2, and July 8.
In his Complaint filed in June 2016, Dr. Katz claimed that Travelers owes him $93,000
for his appearances on April 12, April 15, April 16, June 12, July 1, and July 8.
II. DISCUSSION
A. THE LEGAL STANDARD.
Fed. R. Civ. P. 56(a) provides that a court may grant summary judgment when the
“movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
“A genuine issue of fact means that ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). “Where the moving party demonstrates ‘the absence of a genuine issue of material fact,’
the opposing party must come forward with specific evidence demonstrating the existence of a
genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
“The evidence of the party opposing summary judgment is ‘to be believed, and all justifiable
inferences are to be drawn in [that party's] favor.’” Wright, 554 F.3d at 266 (parenthetically
quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). However, to defeat a motion for
summary judgment, the opposing party “must do more than simply show that there is some
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metaphysical doubt as to the material facts, and may not rely on conclusory allegations or
unsubstantiated speculation.” F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010).
“When no rational jury could find in favor of the nonmoving party because the evidence
to support its case is so slight, there is no genuine issue of material fact and a grant of summary
judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d
Cir. 1994).
B. APPLICATION TO THE FACTS.
Under New York law, there are four elements in a breach of contract claim: “(1) the
existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach
of contract by the defendant, and (4) damages.” Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir.
1996).
The parties agree that a contract between them existed for Dr. Katz to appear and testify
at the Bermejo trial. However, Travelers contends that the agreement concluded upon the
completion of Dr. Katz’s testimony on April 12, meaning that it bore no obligation to further
compensate Dr. Katz for his participation in the Bermejo proceedings after that date because no
contract to that effect existed. The Court finds this to be an odd formulation of the dispute.
Travelers puts forward no evidence regarding the scope of the parties’ agreement, let alone
evidence that the agreement terminated on April 12. Indeed, the only evidence outlining the
nature of the arrangement cited by either party is Dr. Katz’s interrogatory responses, which
indicate that the “services” he provided “were testimony and immediate availability to testify”
with the “terms” of “truthful non-contingent testimony.” ECF 57-11 at 3. Dr. Katz is not
claiming that a separate contract existed governing time spent post-April 12. Instead, he asserts
that the parties’ prior agreement, which indisputably existed, covered that time. Therefore, the
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relevant dispute is not whether the parties agreed to a subsequent contract, but rather whether Dr.
Katz provided “testimony and immediate availability to testify” on behalf of Travelers after
April 12.
In the Court’s view, the undisputed evidence overwhelmingly establishes not only that
Dr. Katz did not testify, but also that he was unavailable to testify after the completion of his
testimony on April 12. All of the subsequent proceedings occurred at the order of Justice Hart in
connection with the allegation that Dr. Katz falsified testimony. To the extent that Dr. Katz
appeared, it was to defend against those charges in his personal capacity, not to provide “truthful
non-contingent testimony” on Travelers’s behalf.
On April 15, Dr. Katz appeared pursuant to instructions from Justice Hart. At the
proceeding, Justice Hart further instructed Dr. Katz not to say anything until dealing with an
attorney. Once Dr. Katz’s attorney appeared, he informed Justice Hart that he would not permit
Dr. Katz to continue to offer testimony in the trial. Thus, it is apparent that Dr. Katz’s
appearance on this day solely pertained to Justice Hart’s accusation that Dr. Katz lied about a
material fact, not to provide testimony.
On April 16, Dr. Katz appeared pursuant to an order by Justice Hart at the end of the
previous day’s proceedings. Dr. Katz provided no testimony at that time. At his deposition in this
case, he testified that no one at Travelers requested that he appear either that day or the previous
day, and that he was receiving his instructions from the judge through his personal attorney.
After declaring a mistrial, Justice Hart scheduled sanctions and contempt hearings on
various dates in June and July. The record reveals that Dr. Katz neither appeared on Travelers’s
behalf nor performed work at Travelers’s request at these hearings. On June 12, he did not
appear or perform work for Travelers on that date. Dr. Katz appeared on July 1, but testified at
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his deposition in this case that he did so at the order of Justice Hart and Travelers did not request
his services. And on July 2 and July 8, Dr. Katz made no appearances and further testified that
no one at Travelers asked him to be in court or on call on those days.
During these hearings, Travelers consistently and unequivocally took the position before
Justice Hart that it could not and would not call on Dr. Katz as a witness in any continued
Bermejo trial. At the hearings on June 12 and July 8, Travelers’s trial counsel sought leave to
engage a new expert witness due to Dr. Katz’s unwillingness to appear voluntarily. Although
Justice Hart denied this request, the Second Department reversed Justice Hart’s decision,
explaining on appeal that Dr. Katz was “unavailab[le] . . . due to his refusal to appear
voluntarily.” Bermejo II, 135 A.D.3d at 142. The Second Department further opined regarding
Dr. Katz’s evident unwillingness to testify and its effect on Travelers:
The appellants have been effectively deprived of their expert orthopedic witness
in the event of a retrial. Indeed, the Supreme Court's conduct toward Dr. Katz was
so thoroughly intimidating, and the manner in which the video recording was
made, concealed, and then revealed to the jury had such a chilling effect, that
regardless of any corrective measures that might be taken at a retrial, it is likely
that Dr. Katz will remain unwilling to testify. Neither the appellants nor their
counsel are in any way responsible for the occurrence of these events, which
could not possibly have been anticipated.
Id. at 149–50.
The aforementioned evidence clearly demonstrates that Dr. Katz performed no services
that would require or justify Travelers compensating him after April 12. Dr. Katz provided no
truthful non-contingent testimony after that date and it was apparent that Dr. Katz was wholly
unwilling, and thus unavailable, to testify. This compels the conclusion that Dr. Katz’s breach of
contract claim fails as a matter of law, because Dr. Katz either (1) seeks compensation for
expenses outside the scope of the parties’ agreement or (2) himself breached the agreement for
refusing to testify voluntarily. Either way, Travelers rightfully refused to pay him for those
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expenses because Dr. Katz failed to establish the second (adequate performance by the plaintiff)
and third (breach by the defendant) elements of a breach of contract action. See Steven Strong
Dev. Corp. v. Washington Med. Assocs., 303 A.D.2d 878, 880, 759 N.Y.S.2d 186, 189 (2003)
(finding developer not entitled to payment of developer’s fee where the evidence
“overwhelmingly established that plaintiff never obtained construction financing, signed
construction contracts, or began construction of any building and, consequently, that by 1995
plaintiff had not substantially completed its obligations outlined in the development agreement
and which were a condition precedent to its entitlement to any developer fee”); First Frontier
Pro Rodeo Circuit Finals LLC v. PRCA First Frontier Circuit, 291 A.D.2d 645, 646, 737
N.Y.S.2d 694, 695 (2002) (“In light of plaintiff's conceded nonperformance of its contract
obligations and the absence of any factor excusing performance, Supreme Court properly granted
summary judgment dismissing plaintiff's breach of contract cause of action.”).
The evidence Dr. Katz puts forward to the contrary is self-serving and equivocal. He
primarily relies on an affidavit submitted in conjunction with his opposition stating:
8. At the Traveler's request, I appeared in court and testified at Bermejo's trial on
April 12, 2013, before the late Justice Duane Hart. However after my appearance
on April 12, 2013, Michael Reilly, the counsel for Travelers defending in
Bermejo matter, contacted me and asked me to appear in court on the following
Monday, April 15, 2013. Subsequently, I appeared on April 15, 2013 and April
16, 2013 where Justice Hart embarked upon and inquired on the length of my
IME conducted on Bermejo and repeatedly falsely accused me of lying under
oath.
9. Thereafter, I spent whole days and cancelled all my work on April 22, 2013,
June 22, 2013, July 1, 2013, July 2, 2013 and July 8, 2013 on Bermejo matter. In
connection with Bermejo case to attempt to facilitate Traveler's defenses, I had
countless conversation with my counsel, David Vozza who appeared in court on
my behalf and had multiple discussions with Mr. Reilly on Bermejo matter. To
the contrary of Travelers's assertion and in fact, on May 8, 2013, I informed Mr.
Reilly and Travelers that I would be willing to testify at Bermejo's retrial if
subpoenaed. (See Exhibit "B" a letter sent by Mr. Vozza on May 8, 2013).
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10. More importantly, at no time was I ever terminated by Travelers. My services
on Bermejo matter were continued on after I provided expert testimony on April
12, 2013.
ECF 60-1 ¶¶ 8–10. These statements directly contradict Dr. Katz’s deposition testimony, which
recounts that he gave no testimony on Travelers’s behalf after April 12; that he appeared in Court
at the direction of Justice Hart, not Reilly; and that he did not perform work for Travelers on the
dates he listed. In the Second Circuit, “a party's affidavit which contradicts his own prior
deposition testimony should be disregarded on a motion for summary judgment.” Mack v. United
States, 814 F.2d 120, 124 (2d Cir. 1987) (collecting cases); Raskin v. Wyatt Co., 125 F.3d 55, 63
(2d Cir. 1997).
Even if the Court considered the allegations raised in Dr. Katz’s affidavit, his claims are
directly contradicted by the record in the Bermejo proceedings. The transcript of the hearings
reveals no relevant testimony by Dr. Katz or his counsel in support of Travelers’s defense postApril 12 and further shows that Travelers strenuously objected to continuing to engage Dr. Katz.
Although courts are to normally avoid assessing the credibility of testimony on summary
judgment motions, they need not adopt wholly self-serving testimony contradicted by the
objective evidence in the case. See Deebs v. Alston Transp., Inc., 346 F. App'x. 654, 656 (2d Cir.
2009) (stating that self-serving deposition testimony, by itself, “is insufficient to defeat summary
judgment” when contradicted by “the hard evidence adduced during discovery”); TufAmerica,
Inc. v. Codigo Music LLC, 162 F. Supp. 3d 295, 324 (S.D.N.Y. 2016) (plaintiff’s “self[-]serving
deposition testimony standing alone is ... not sufficient to create a triable issue of fact” to
contradict documentary evidence). In other words, no reasonable juror could conclude that Dr.
Katz in fact performed the post-trial work the affidavit claims he did.
The other evidence cited by Dr. Katz is equally un-compelling.
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First, Dr. Katz cites his deposition testimony stating that Reilly called him and told him
to appear in Court “in service of an obligation to Travelers” and supposedly directing him to be
available to go back on the stand at a moment’s notice. Katz Dep. at 16:22–17:25. In addition,
Dr. Katz supposedly maintained his availability to help Travelers gain leverage when negotiating
a settlement with Bermejo. Id. at 57:18–58:16. However, these assertions are belied by the actual
record of the Bermejo proceedings showing he refused to voluntarily testify on behalf of
Travelers and that Travelers was actively seeking to replace him. Unsurprisingly, the Second
Department reviewed the same record and reiterated Dr. Katz’s refusal to testify on several
occasions. See Bermejo II, 135 A.D.3d at 119 (“[W]e find that the orthopedist was unwilling to
testify voluntarily”), 142 (describing “ Dr. Katz's unavailability to the appellants as a witness at a
retrial, due to his refusal to appear voluntarily”), 149 (“Dr. Katz refuses to testify voluntarily at a
retrial.”), 150 (“[T]he present case primarily involves the unavailability of Dr. Katz, who has
indicated that he will not voluntarily testify before the court at a retrial.”), 151 (“Although Dr.
Katz is physically available to testify, his unwillingness to testify voluntarily renders him
effectively unavailable to the appellants.”).
Second, Dr. Katz cites a May 3, 2013 letter from his attorney, Vozza, stating: “Please
allow this letter to memorialize our clients’ position regarding his future testimony at the retrial
of the above-referenced matter. Be advised that, should he be subpoenaed to give testimony at a
retrial, Dr. Katz intends to appear and comply.” ECF 60-3. But this letter does not prove his
willingness to assist Travelers. It shows the opposite—that he would only appear on behalf of
Travelers pursuant to a writ commanding him to appear, subject to a penalty for failure to
comply.

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Third, Dr. Katz points to the invoices he sent Travelers, which are little more than post
hoc attempts to demand payment. ECF 57-9; ECF 57-10; ECF 57-11. Dr. Katz submitted the
invoices over the course of several years, contrary to his practice of sending an invoice to a client
within one month of his testimony. The invoices claim that he gave testimony when in fact he
gave none; and made appearances when in fact he made none. Moreover, they are internally
inconsistent in that they all provide different dates upon which Dr. Katz supposedly gave
testimony or made appearances. When asked about these inconsistencies in his deposition, Dr.
Katz failed to provide a coherent explanation. See Katz Dep. 99:8–100:16. Therefore, the
invoices are in no way a contemporaneous reflection of the dates Dr. Katz actually performed
work.
For these reasons, Dr. Katz’s claim that the parties operated under an implied-in-fact
contract after April 12 similarly fails. “[A] contract implied in fact is one where the parties
mutual intention to be bound is manifested not by words, but by actions or conduct.” Bd. of Ed.,
E. Meadow Union Free Sch. Dist. v. Bell, 530 F. Supp. 1130, 1134 (E.D.N.Y. 1982). “[A]n
implied in fact contract requires proof of the same elements to establish an express contract—
mutuality of intent, offer and acceptance, lack of ambiguity, and consideration.” Patsy's Italian
Rest., Inc. v. Banas, 508 F. Supp. 2d 194, 218 (E.D.N.Y. 2007).
Here, Dr. Katz does not appear to be claiming that the parties agreed to a separate implied
in fact contract entitling him to compensation under different terms than the original (i.e., preApril 12) agreement. Rather, he asserts that his supposedly “continued rendition of services” and
Travelers’s “[a]cceptance of those services . . . established[ed] a contract implied in fact with
substantially the same terms and conditions as embodied in the prior contract.” ECF 60-8 at 8;
see also id. at 9 (“It was reasonable for Dr. Katz to believe that his services were continued and
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were no different than the other services rendered with Travelers or with any other insurance
companies where Dr. Katz was retained.”). Because Dr. Katz’s claims fail under the original
agreement, they cannot establish breach of a subsequent agreement with identical terms,
assuming one existed. Cf. Twelve Sixty LLC v. Extreme Music Library Ltd., a division of
Sony/ATV Music Publ'g, No. 17-cv-1479, 2018 WL 369185, at *5 (S.D.N.Y. Jan. 9, 2018)
(“Nevertheless, under New York law, a contract cannot be implied in fact where there is an
express contract governing the subject matter involved.”). What is more, Dr. Katz’s refusal to
voluntarily testify and Travelers’s repudiation of his continued engagement defeat any potential
assertion on his part that he continued providing services to Travelers and that Travelers
accepted those services.
Therefore, the Court finds that no genuine dispute of material fact exists regarding the
Plaintiffs’ breach of contract claim and grants summary judgment in favor of Travelers
dismissing the Complaint.
III. CONCLUSION
For the foregoing reasons, the Court grants Travelers’s motion for summary judgment in
its entirety and dismisses the Complaint with prejudice. The Clerk of the Court is directed to
enter judgment for Travelers and to close this case.

It is SO ORDERED:
Dated: Central Islip, New York
September 26, 2019

__/s/ Arthur D. Spatt____
ARTHUR D. SPATT
United States District Judge

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