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DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion for a judgment as a matter of law should not have been granted. The five-inch-long, three-inch-wide and two-inch-deep defect in the step which caused plaintiff to fall was not trivial as a matter of law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects which, considering “all the specific facts and circumstances of the case, not size alone,” do not “unreasonably imperil[ ]” the safety of a pedestrian … . In other words, physically small defects are actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . * * *

Here, [defendant] failed to show that there was no rational process by which the jury could have found in favor of the plaintiff and against it … . Accepting the plaintiff’s evidence as true, and giving him every favorable inference which can be reasonably drawn from that evidence, [defendant] failed to establish that the defect was trivial as a matter of law. … [Defendant] relied on the plaintiff’s photograph of the defect and the testimony of his witness … who testified that the photograph showed “minor wear” to the stair. The dimensions of the defect cannot be ascertained from that one indistinct photograph … . The location of the chip on the walking surface of a stair also figures into the analysis of whether the defect was trivial … . Accordingly, under the circumstances, a rational jury could have concluded that the defect was not trivial. Pitt v New York City Tr. Auth., 2017 NY Slip Op 00203, 2nd Dept 1-11-17

 

NEGLIGENCE (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/TRIVIAL DEFECT (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)

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DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION.

The Second Department, reversing Supreme Court, determined that the defendant department store’s (Macy’s) motion for summary judgment in this escalator slip and fall case should have been granted. Apparently plaintiff’s purse strap caught on a broken or protruding piece of metal on the escalator. Macy’s demonstrated it did not have actual or constructive notice of the condition:

Here, Macy’s submitted evidence demonstrating, prima facie, that it did not create or have actual or constructive notice of the alleged defective and dangerous condition of the escalator —i.e., a broken and protruding piece of metal which caught the strap of the plaintiff’s pocketbook and caused her to fall. Through the deposition testimony of its employees and a technician employed by [the escalator company] as well as escalator inspection logs, Macy’s established that the escalator was regularly inspected and maintained, and that it had not received any prior complaints about the escalator before the accident … . Among other things, a Macy’s employee testified at a deposition that he inspected the escalator on the morning of the accident and that it was in working order … . Isaacs v Federated Dept. Stores, Inc., 2017 NY Slip Op 00156, 2nd Dept 1-11-17

NEGLIGENCE (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)/SLIP AND FALL (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)/ESCALATORS (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)

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MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined mother’s motion to relocate with the children should not have been granted. Father argued relocation would limit his involvement with the children to only weekends:

Here, the Supreme Court’s determination that the plaintiff could relocate with the children was not supported by a sound and substantial basis in the record … , as the plaintiff did not establish by a preponderance of the evidence that the proposed relocation would serve the children’s best interests … . The plaintiff’s evidence that relocating would enhance her life and the children’s lives economically was tenuous at best … , and the court’s finding that the plaintiff could become self-supporting and contribute to the children financially if she relocated was thus speculative and not supported by a sound and substantial basis in the record … . Moreover, the relocation would negatively impact the quantity and quality of the children’s future contact with the defendant, which weighs against granting relocation in this case … . The defendant presented evidence of his involvement in the children’s daily lives, school, and extracurricular activities. If the plaintiff was permitted to relocate with the children to East Hampton, the defendant would no longer be able to see the children midweek or remain involved in their many activities … . Finally, the plaintiff did not establish by a preponderance of the evidence that her proposed relocation would enhance the children’s lives emotionally or educationally … . DeFilippis v DeFilippis, 2017 NY Slip Op 00147, 2nd Dept 1-11-17

FAMILY LAW (MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED)/RELOCATE (FAMILY LAW, MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED)

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WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR.

The Second Department determined the waiver of indictment, which included an A-1 felony, was invalid. The guilty plea, the waiver of the right to appeal and/or the failure to preserve the error did not preclude appeal of the issue:

CPL 195.10 provides, in relevant part, that “[a] defendant may waive indictment and consent to be prosecuted by superior court information when . . . the defendant is not charged with a class A felony punishable by death or life imprisonment.” Thus, the Court of Appeals has held: “[W]hen an accused is held for Grand Jury action upon a felony complaint that charges a class A felony . . . a waiver of indictment with respect to that felony complaint is unauthorized” … . Here, the felony complaint charged the defendant with criminal possession of a controlled substance in the first degree. That crime is a class A-I felony (see Penal Law § 220.21), which is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment (see Penal Law § 70.00[2][a]). Accordingly, the defendant could not waive indictment and agree to be prosecuted by superior court information … . People v Janelle,2017 NY Slip Op 00188, 2nd Dept 1-11-17

CRIMINAL LAW (WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR)/INDICTMENT, WAIVER OF (WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR)/APPEALS (CRIMINAL LAW, WAIVER OF A-1 FELONY INDICTMENT INVALID, DESPITE GUILTY PLEA, WAIVER OF APPEAL AND FAILURE TO PRESERVE THE ERROR)

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NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED.

The Second Department determined defendant’s motion to suppress the results of the blood-alcohol test and his statement should not have been granted. Although the police learned the name and phone number of defendant’s counsel before the test was administered, there was no evidence of the source of that information and no evidence counsel “entered” the case such that defendant should have been allowed to talk to his attorney before taking the test. The Second Department offered a concise explanation of the applicable law:

In People v Gursey (22 NY2d 224), the Court of Appeals held in this context that the police “may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand” (id. at 227…). The police have no duty to warn a defendant of this limited right before asking the defendant to submit to a blood alcohol test … . Violation of the limited right to consult with counsel will result in suppression of the test results … . * * *

“[A]n attorney enters’ a criminal matter and triggers the indelible right to counsel when the attorney or a professional associate of the attorney notifies the police that the suspect is represented by counsel” (People v Grice, 100 NY2d 318, 324). Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case (see id. at 322 …). Although the holding in Grice related to the triggering of the indelible constitutional right to counsel, we see no reason to apply a less stringent rule for triggering the more limited right to consult with counsel before deciding whether to refuse a blood alcohol test. Indeed, the reasons for applying this clear rule as to entry of counsel for purposes of the constitutional right to counsel …, apply with equal force to the more limited Gursey right. People v Lucifero, 2017 NY Slip Op 00190, 2nd Dept 1-11-17

 

CRIMINAL LAW (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/DRIVING WHILE INTOXICATED (NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/ATTORNEYS (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/RIGHT TO COUNSEL (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/BLOOD ALCOHOL TEST (DWI, (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/SUPPRESS, MOTION TO (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)

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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED.

The First Department, partially reversing Supreme Court, determined defendants demonstrated they did not have constructive notice of a wet condition where plaintiff fell, but the cause of action based on the absence of a handrail should not have been dismissed:

Defendants established their prima facie entitlement to summary judgment by demonstrating that it had rained shortly before or at the time of plaintiff’s accident and continued shortly afterward, that they did not have constructive notice of the wet condition, as defendants’ porter averred that he had inspected the stairs 15 minutes prior to plaintiff’s fall and did not observe any wet condition, and they had no complaints of wetness prior to plaintiff’s fall. Moreover, defendants had a doormat in the vestibule to permit people to wipe their feet as they entered … .  In opposition, plaintiff did not submit any evidence as to the time elapsed between the cessation of the rain and his accident, and thus failed to raise an issue of fact as to whether defendants had a reasonable amount of time to remedy the wet condition … .

The court, however, improperly dismissed plaintiff’s claim that defendants failed to install handrails on the subject staircase. The stairs which led to the door providing egress from the building to the outside were interior stairs requiring handrails (Administrative Code §§ 27-232, 27-375 …). Plaintiff raised an issue of fact as to whether the absence of handrails was a proximate cause of his fall by submitting his expert’s affidavit stating that the absence of handrails was a dangerous departure from accepted standards and the applicable building code … . Lee v Alma Realty Corp., 2017 NY Slip Op 00101, 1jst Dept 1-10-17

 

NEGLIGENCE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/EVIDENCE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/STORM IN PROGRESS (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/ADMINISTRATIVE CODE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/SLIP AND FALL (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/HANDRAILS (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/NOTICE (SLIP AND FALL, (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)

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SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he fell from an unsecured ladder while attempting to move to a baker’s scaffold. Unverified documents contesting plaintiff’s allegations were not sufficient to defeat summary judgment:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability under Labor Law § 240(1), through his affidavit stating that he was not provided with any safety equipment that could have protected him while performing his work alone on the ladder and scaffold … . Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker “proper protection,” absolute liability is inescapable under Labor Law § 240(1) … . Thus, in opposition, defendants were required to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact to preclude summary judgment … . * * *

Records without proper certification may be considered in opposition to a motion for summary judgment, but only when they are not the sole basis for the court’s determination … . Here, the unverified documents and unsworn statement are the only evidence to challenge details of plaintiff’s version of the accident and therefore should not be considered. Erkan v McDonald’s Corp., 2017 NY Slip Op 00099, 1st Dept 1-10-17

 

LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)/EVIDENCE (SUMMARY JUDGMENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)/SUMMARY JUDGMENT (EVIDENCE, UMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)

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DEFENDANT CON EDISION EXERCISED SUFFICIENT CONTROL OVER THE MANNER OF PLAINTIFF’S WORK TO SUPPORT THE LABOR LAW 200 VERDICT, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, over an extensive dissent, determined defendant Con Edison’s motion to set aside the verdict in this asbestos-injury case should not have been granted. Con Edison was deemed to have sufficient control over the manner of plaintiff’s work (applying concrete mixed with asbestos) to support the Labor Law 200 cause of action:

The evidence at trial demonstrated that Con Edison had the “authority to control the activity bringing about the injury” … . “[A]n implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” … . * * *

Con Edison had the ability to prevent the hazard ultimately causing the plaintiff’s injury, namely, the application of asbestos-containing materials. Indeed, Con Edison’s specifications affirmatively required the use of hazardous asbestos-containing insulation materials, and Con Edison monitored work for compliance with those specifications. Matter of New York Asbestos Litig., 2017 NY Slip Op 00098, 1st Dept 1-10-17

 

LABOR LAW-CONSTRUCTION LAW (DEFENDANT CON EDISION EXERCISED SUFFICIENT CONTROL OVER THE MANNER OF PLAINTIFF’S WORK TO SUPPORT THE LABOR LAW 200 VERDICT, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN DENIED)

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PLAINTIFF’S EMPLOYMENT DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED, QUESTIONS OF FACT ABOUT WHETHER ACCOMMODATIONS FOR DISABLING ANXIETY SHOULD HAVE BEEN MADE.

The First Department, reversing Supreme Court, determined plaintiff’s employment discrimination suit should go forward. Questions of fact had been raised about whether plaintiff’s employer was made sufficiently aware of plaintiff’s disabling anxiety and whether reasonable accommodations should have been made pursuant to the Administrative Code (NYC):

Under these circumstances, issues of fact exist as to whether, based on plaintiff’s disclosures, defendant reasonably “should have known” that plaintiff was suffering from a disabling anxiety condition (Administrative Code of City of NY § 8-107[15][a]…). Issues of fact likewise exist as to whether defendant should have entered into a good faith interactive dialogue with plaintiff, inquiring into the nature of her disabling condition and exploring what sorts of accommodations might reasonably be required, and whether reasonable accommodations would have enabled her to perform the “essential requisites of [her] job” (Administrative Code § 8-107[15][b]), without causing defendant “undue hardship in the conduct of . . . [its] business” (id. § 8-102[18]…).

Issues of fact also exist as to whether plaintiff’s alleged disabling anxiety condition caused the poor performance (i.e., absenteeism and unresponsiveness) that defendant pointed to as the reason for her termination … , and, if so, whether plaintiff could have performed the essential requisites of her job with reasonable accommodation (see Administrative Code §§ 8-107[15][b]; 8-102[18]). Chernov v Securities Training Corp., 2017 NY Slip Op 00126, 1st Dept 1-10-17

EMPLOYMENT LAW (PLAINTIFF’S DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED, QUESTIONS OF FACT ABOUT WHETHER ACCOMMODATIONS FOR DISABLING ANXIETY SHOULD HAVE BEEN MADE)/DISCRIMINATION (PLAINTIFF’S EMPLOYMENT DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED, QUESTIONS OF FACT ABOUT WHETHER ACCOMMODATIONS FOR DISABLING ANXIETY SHOULD HAVE BEEN MADE)/ADMINISTRATIVE CODE (NYC) (EMPLOYMENT LAW, DISCRIMINATION, PLAINTIFF’S DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED, QUESTIONS OF FACT ABOUT WHETHER ACCOMMODATIONS FOR DISABLING ANXIETY SHOULD HAVE BEEN MADE)/ANXIETY (EMPLOYMENT LAW, DISCRIMINATION, PLAINTIFF’S DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED, QUESTIONS OF FACT ABOUT WHETHER ACCOMMODATIONS FOR DISABLING ANXIETY SHOULD HAVE BEEN MADE)/ACCOMMODATIONS (EMPLOYMENT LAW, DISCRIMINATION, PLAINTIFF’S DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED, QUESTIONS OF FACT ABOUT WHETHER ACCOMMODATIONS FOR DISABLING ANXIETY SHOULD HAVE BEEN MADE)

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PROCEEDINGS BEFORE THE FOOD AND DRUG ADMINISTRATION ARE QUASI-JUDICIAL IN NATURE, STATEMENTS PROTECTED BY ABSOLUTE PRIVILEGE.

The First Department, in a full-fledged opinion by Justice Saxe, over a dissenting opinion, reversing Supreme Court, determined proceedings before the FDA (US Food and Drug Administration) are quasi-judicial in nature and statements made during the proceedings are therefore protected by absolute, not qualified, privilege. The defamation cause of action should have been dismissed:

The statements that form the basis of the defamation claim at issue here were made to a U.S. Food and Drug Administration (FDA) investigator in the course of an investigation. … Given both the nature of an FDA investigation into the propriety of the hospital’s research protocols and the importance of the unimpeded flow of thoughts and information in this investigative context, as a matter of law and public policy, statements to such an investigator must be protected by an absolute privilege, not merely a qualified privilege. * * *

The statements at issue here were made to an FDA investigator looking into accusations that IRB (hospital Institutional Review Board) protocols at NYDH (New York Downtown Hospital) might not be properly handled. The FDA is an administrative agency of the federal government, charged with many responsibilities, including ensuring that new drug trials are handled properly. The complicated regulatory scheme for oversight by the FDA over the operation of IRBs in conducting new drug protocols, controlled by 21 CFR part 56, includes provision for procedures where an FDA investigator observes apparent noncompliance with these regulations in the operation of an IRB. Under these regulations, the IRB and parent institution are informed of those observations, and a response describing the corrective actions to be taken is required (see 21 CFR 56.120[a]). If it is determined that the IRB or the institution has failed to take adequate steps to correct the noncompliance, and the FDA Commissioner determines that this noncompliance may justify the disqualification of the IRB or of the parent institution, “the Commissioner will institute proceedings in accordance with the requirements for a regulatory hearing set forth in part 16” (21 CFR 56.121). Of course, the regulatory scheme explicitly provides for court review of final administrative actions taken by the Commissioner (see 21 CFR 10.45[a]).

It is therefore clear that the procedures created by these regulations of IRBs, which include the possibilities of an adversarial regulatory hearing before the FDA (see 27 CFR 156.121[a]) and subsequent judicial review (see 21 CFR 10.45), qualify as a quasi-judicial process by an administrative agency, Stega v New York Downtown Hosp., 2017 NY Slip Op 00139, 1st Dept 1-10-17

 

DEFAMATION (PROCEEDINGS BEFORE THE FOOD AND DRUG ADMINISTRATION ARE QUASI-JUDICIAL IN NATURE, STATEMENTS PROTECTED BY ABSOLUTE PRIVILEGE)/PRIVILEGE (DEFAMATION, PROCEEDINGS BEFORE THE FOOD AND DRUG ADMINISTRATION ARE QUASI-JUDICIAL IN NATURE, STATEMENTS PROTECTED BY ABSOLUTE PRIVILEGE)/ABSOLUTE PRIVILEGE (DEFAMATION, QUASI-JUDICIAL PROCEEDINGS, PROCEEDINGS BEFORE THE FOOD AND DRUG ADMINISTRATION ARE QUASI-JUDICIAL IN NATURE, STATEMENTS PROTECTED BY ABSOLUTE PRIVILEGE)/QUASI-JUDICIAL PROCEEDINGS (DEFAMATION, FOOD AND DRUG ADMINISTRATION, PROCEEDINGS BEFORE THE FOOD AND DRUG ADMINISTRATION ARE QUASI-JUDICIAL IN NATURE, STATEMENTS PROTECTED BY ABSOLUTE PRIVILEGE)

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