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PLAINTIFF WAIVED THE PHYSICIAN-PATIENT PRIVILEGE BY PLACING THE CONDITION OF HER KNEES INTO CONTROVERSY IN THIS ACCIDENT CASE, APPELLATE DIVISION REVERSED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, determined plaintiff had placed the condition of her knees into controversy in this accident case and defendants were therefore entitled to discovery re: prior treatment of her knees. The facts were not discussed:

Plaintiff affirmatively placed the condition of her knees into controversy through allegations that the underlying accident caused difficulties in walking and standing that affect her ambulatory capacity and resultant damages … . Under the particular circumstances of this case, plaintiff therefore waived the physician-patient privilege with respect to the prior treatment of her knees and the discovery sought by authorizations pertaining to the treatment of plaintiff’s knees is “material and necessary” to defendants’ defense of the action (CPLR 3101 [a]). Accordingly, Supreme Court erred in denying defendants’ motion to compel plaintiff to provide discovery related to the prior treatment of her knees. Brito v Gomez, 2019 NY Slip Op 06452, CtApp 9-10-19

 

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COURT DID NOT HAVE AUTHORITY TO DISMISS THE ACTION PURSUANT TO CPLR 3216 BECAUSE NO 90-DAY NOTICE HAD BEEN SERVED; DISMISSAL FOR FAILURE TO COMPLY WITH DISCOVERY DEMANDS WAS NOT WARRANTED, BUT PRECLUSION OF FURTHER DISCOVERY WAS APPROPRIATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the court did not have authority to dismiss the medical malpractice action pursuant to CPLR 3216 for failure to prosecute in the absence of a 90-notice. The court further noted that, although dismissal for failure to comply with discovery demands was not warranted, the preclusion of further discovery was appropriate:

With regard to CPLR 3216, “the courts have no authority to dismiss an action for failure to prosecute, whether on the ground of general delay, or for failure to serve and file a note of issue, unless there has first been served a [90 day notice]” … . Here, it is undisputed that neither the Supreme Court nor the defendant served the requisite 90-day notice upon the plaintiff. …

… . [D]smissal of the complaint pursuant to CPLR 3126(3) was unwarranted as a sanction for the plaintiff’s failure to limit his disclosure demands. The remedy of dismissal is “only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious” … . The sanction of dismissal is available for the willful and contumacious failure to disclose … , which did not occur here. The plaintiff submitted to a deposition by the defendants. However, the lengthy pendency of this action, the dispute over the plaintiff’s overbroad demands for disclosure, and his refusal to tailor those demands in accordance with prior orders of the court, compels the conclusion that further disclosure has been forfeited. Rezk v New York Presbyt. Hospital/N.Y. Weill Cornell Ctr., 2019 NY Slip Op 06426, Second Dept 8-28-19

 

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MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PLAINTIFF HAD NOT YET MOVED TO BE APPOINTED GUARDIAN AD LITEM FOR HER COMATOSE HUSBAND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the motion to dismiss the medical malpractice action should not have been granted on the ground plaintiff had not moved pursuant to CPLR 1202 to be appointed guardian ad litem for her comatose husband (Zheng) prior to commencing the action:

… [T]he mere fact that this action was commenced before the plaintiff moved pursuant to CPLR 1202 to be appointed guardian ad litem of her husband does not provide grounds for dismissal of the complaint pursuant to CPLR 3211(a)(3). An incapacitated individual who has not been judicially declared incompetent may sue or be sued in the same manner as any other person … , and CPLR 1202(a) expressly contemplates that a motion for the appointment of a guardian ad litem may be made “at any stage in the action.” Thus, there is no strict legal requirement that the plaintiff should have been appointed guardian before the commencement of this action. While it would have been better for the action to have been commenced in Zheng’s name, rather than by the plaintiff “as Proposed Guardian Ad Litem of [Zheng],” the defect is not fatal, particularly given the relatively short delay between the commencement of the action and the filing of the plaintiff’s guardianship motion (see CPLR 2001). Linghua Li v Xiao, 2019 NY Slip Op 06388, Second Dept 8-28-19

 

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A JUDGE HAS THE DISCRETION TO EXPUNGE A YOUTHFUL OFFENDER’S DNA RECORDS, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, reversing Supreme Court determined: (1) the Executive Law pertains to the local DNA databank maintained by the Office of the Chief Medical Examiner (OCME); (2) an Article 78 mandamus action seeking the expungement of the petitioner-youthful-offender’s (YO’s) DNA records from the databank was properly brought; and (3) a judge has the discretion to expunge a YO’s DNA records. The petitioner voluntarily provided a DNA sample before he was adjudicated a youthful offender. Supreme Court had held it did not have the discretion to expunge the records:

… [W]e hold that the same discretion afforded to a court under the Executive Law to expunge DNA profiles and related records when a conviction is vacated may also be exercised where, as here, a YO disposition replaces a criminal conviction. The motion court, in finding that, as a matter of law, it had no discretion, failed to fulfill its statutory mandate to consider whether in the exercise of discretion, expungement of petitioner’s DNA records was warranted in this case. * * *

A YO disposition by its very nature is a judgment of conviction that is vacated and then replaced by a YO determination. This conclusion is supported by the mechanics of the YO statute, its salutary goals, and legislative intent. * * *

Petitioner did not, either expressly or by implication, waive the privilege of nondisclosure and confidentiality by providing his DNA before the court made its determination that he was eligible for YO status. Clearly the Executive Law permits an adult who has voluntarily given his or her DNA in connection with a criminal investigation the right to seek discretionary expungement where a conviction had been reversed or vacated. A youthful offender does not have and should not be afforded fewer pre-YO adjudication protections than an adult in the equivalent circumstances. Matter of Samy F. v Fabrizio, 2019 NY Slip Op 06374, First Dept 8-27-19

 

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LETTERS OF ADMINISTRATION WERE ISSUED ON THE LAST DAY OF THE SIX MONTHS ALLOWED BY CPLR 205 (a) TO REFILE A DISMISSED ACTION, THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED; ARGUMENT THAT SUPREME COURT USED THE WRONG DATE TO CALCULATE THE SIX-MONTH PERIOD PROPERLY RAISED AND CONSIDERED FOR THE FIRST TIME ON APPEAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the medical malpractice/wrongful death action should not have been dismissed because the letters of administration were issued within six months of the prior dismissal. The argument that Supreme Court used the wrong date to calculate the six-month period for re-filing a lawsuit pursuant to CPLR 205 (a) could be raised for the first time on appeal:

On appeal, plaintiff argues for the first time that the prior action was finally terminated when the October 2016 order granting the hospital’s motion was issued, so that the court used the wrong date to calculate when the six-month savings period under CPLR 205(a) began to run. We will consider this argument, since it raises a legal question appearing on the face of the record which could not have been avoided … .

While plaintiff, as voluntary administrator, lacked the legal capacity to enforce decedent’s personal injury and wrongful death claims on behalf of the estate in this second action (Surrogate’s Court Procedure Act § 1306[3] … ), he could remedy this defect by obtaining letters of administration within the six-month savings period provided under CPLR 205(a) … . In applying CPLR 205(a), we bear in mind that it is designed to ameliorate the potentially “harsh consequence of applying a limitations period where the defending party has had timely notice of the action” … . Because the first action was finally terminated on October 18, 2016, and the letters of administration were issued on April 18, 2017, on the last day of the six-month savings period (CPLR 205[a]), plaintiff timely obtained legal capacity to pursue the claims in this action … . Rodriguez v River Val. Care Ctr., Inc., 2019 NY Slip Op 06370, First Dept 8-27-19

 

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CRIME VICTIMS DO NOT HAVE STANDING TO CHALLENGE A PRISONER’S RELEASE ON PAROLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, over a concurrence and a dissent, determined that the wife of a police officer murdered in 1971 did not, as a crime victim, have standing to bring an Article 78 proceeding challenging the release on parole of Herman Bell, who was convicted of the murder. Crime victims do not have standing to challenge parole determinations:

As noted by one court that has previously addressed the issue before us: “While a relative of a crime victim may be more emotionally affected by the crime than a member of the general public, that increased emotional effect is not sufficient to confer standing. While statutes have been enacted to permit crime victims the right to be heard at certain proceedings (see [CPL] 380.50), their status as crime victims has not been held to confer standing to them at any proceeding. Executive Law § 259[-]i sets forth the procedures to be followed by the [B]oard of [P]arole. Executive Law § 259[-]i (2) (c) (A) provides that when considering whether or not to grant discretionary parole release, the [B]oard must consider ‘any statement made to the [B]oard by the crime victim or the crime victim’s representative where the crime victim is deceased[.]’ The statute does not authorize any further participation in the process by a crime victim or the representative of a victim. It does not serve to confer standing to a victim who desires to challenge the determination. While the [c]ourt does not question whether the families of the victims of crime continue to suffer real emotional effects, there has not been a showing of any legal right that is affected by the determination which they seek to challenge” … . Matter of Piagentini v New York State Bd. of Parole, 2019 NY Slip Op 06229, Third Dept 8-22-19

 

PLAINTIFF ENTITLED TO JURISDICTIONAL DISCOVERY WITH RESPECT TO DEFENDANT HOSPITAL IN THIS MEDICAL MALPRACTICE ACTION; HOSPITAL DID NOT CONSENT TO JURISDICTION BY REGISTERING AS A FOREIGN CORPORATION; DOCTORS DID NOT CONSENT TO JURISDICTION BY BECOMING LICENSED IN NEW YORK (FOURTH DEPT).

The Fourth Department determined the plaintiff was entitled to jurisdictional discovery with regard to a hospital defendant in this medical malpractice action. The court noted that the hospital did not consent to the general jurisdiction of New York courts by registering as a foreign corporation with the Department of State and the defendant doctors did not consent to New York personal jurisdiction based upon becoming licensed to practice medicine in New York:

… [P]laintiff made a “sufficient start” in establishing personal jurisdiction over the hospital pursuant to CPLR 301 and 302 (a) (1) to be entitled to disclosure pursuant to CPLR 3212 (f)  … . The record “is not clear whether [the hospital’s] affiliations with the State [of New York] are so continuous and systematic as to render [it] essentially at home in the . . . State’ ” as required for general jurisdiction … or whether its activities in New York are ” purposeful and [whether] there is a substantial relationship between the transaction and the claim asserted’ ” as required for long-arm jurisdiction … . However, the record contains evidence that the hospital advertises to prospective New York patients and has at least some relationship with New York providers, New York insurers, and defendant Guthrie Medical Group, P.C., which owns New York offices. The record also contains evidence that the hospital derives substantial revenue from New York residents. Based on that initial showing, we conclude that plaintiff has made a “sufficient start” by establishing that facts “may exist to exercise personal jurisdiction” over the hospital, warranting jurisdictional discovery … . Best v Guthrie Med. Group, P.C., 2019 NY Slip Op 06320, Fourth Dept 8-22-19

 

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COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR PRIMA FACIE TORT, ELEMENTS EXPLAINED (FOURTH DEPT)

The Fourth Department, reversing Supreme Court, determined the complaint did not state a cause of action for prima facie tort:

“Prima facie tort affords a remedy for the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or a series of acts which would otherwise be lawful” … . “The requisite elements of a cause of action for prima facie tort are (1) intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful” … .

Here, the prima facie tort cause of action cannot stand because, although the complaint alleged that defendant “acted maliciously” and “with disinterested malice,” it did not allege that defendant’s “sole motivation was disinterested malevolence’ ” … . In addition, the complaint failed to allege special damages as required … . Finally, the complaint is not “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action” (CPLR 3013 …). “[A] cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations” … . Here, the complaint is devoid of relevant facts, including the time period at issue, the number of forms that defendant requested plaintiff to resubmit, and the number of claims involved. Greater Buffalo Acc. & Injury Chiropractic, P.C. v Geico Cas. Co., 2019 NY Slip Op 06349, Fourth Dept 8-22-19

 

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DEFENDANTS’ ATTORNEYS SHOULD NOT HAVE BEEN DISQUALIFIED BECAUSE THEY HAD REPRESENTED PLAINTIFFS’ TRUSTEE, A NONPARTY, IN AN UNRELATED MATTER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a concurrence, determined that defendants’ attorneys, Rupp Baase, should not have been disqualified because the firm had represented a nonparty trustee of plaintiffs on an unrelated matter. The concurrence argued the matter was not justiciable because the court was asked to decide whether there was a conflict of interest between Rupp Baase and a nonparty. The lawsuit stemmed from a fire at plaintiffs’ Elks Lodge allegedly caused by a boiler installed by defendants:

… [P]laintiffs “had to establish that the issues in the present litigation are identical to or essentially the same as those in the prior representation or that [Rupp Baase] received specific, confidential information substantially related to the present litigation” … . Even assuming, arguendo, that a prior attorney-client relationship existed between Rupp Baase and the Trustee, we conclude that plaintiffs failed to establish that the interests of defendants in this action are materially adverse to the interests of the Trustee individually, who is not a named party and is merely a trustee of the Lodge. Plaintiffs likewise failed to establish that any alleged prior representation involved issues that were “identical to or essentially the same” as those in the instant lawsuit (id.). Although the Trustee asserts that he told Rupp Baase during their alleged representation of him that a fire had occurred on plaintiffs’ property due to defendants’ boiler installation, a claim that Rupp Baase disputes, we conclude that, even if the Trustee provided that information, it was not “specific [and] confidential” and thus does not warrant disqualification … . Because plaintiffs failed to establish that the Trustee’s interests are materially adverse to defendants’ in this lawsuit and that this lawsuit is substantially related to the alleged prior representation, the court abused its discretion in granting that part of plaintiffs’ motion seeking disqualification of Rupp Baase … . Benevolent & Protective Order of Elks of United States of Am. v Creative Comfort Sys., Inc., 2019 NY Slip Op 06246, Fourth Dept 8-22-19

 

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CRITERIA FOR A MOTION TO RENEW WERE NOT MET, DISSENTERS ARGUED THE COURT HAD THE DISCRETION TO CONSIDER THE MOTION AS A MOTION TO REARGUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the motion to renew should not have been granted. The dissenters argued the motion could have been considered a motion to reargue in the exercise of discretion:

It is well settled that “[a] motion for leave to renew must be based upon new facts that were unavailable at the time of the original motion . . . and, inter alia, that would change the prior determination” (… see CPLR 2221 [e] [2]). Further, “[a]lthough a court has discretion to grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ . . . , it may not exercise that discretion unless the movant establishes a reasonable justification for the failure to present such facts on the prior motion’ ” ( …see CPLR 2221 [e] [3]). In particular, “[l]eave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion” … . …

We reject our dissenting colleagues’ conclusion that the court would have been “justified” in exercising discretion to treat the motion to renew as a motion to reargue, and that it effectively did so in granting Camelot’s motion. We disagree. There is no justification in this case to “deem” Camelot’s motion as one seeking reargument and we decline to do so because, in our view, Camelot actively foreclosed that avenue of relief. The Walton & Willet Stone Block, LLC v City of Oswego Community Dev. Off., 2019 NY Slip Op 06245, Fourth Dept 8-22-19

 

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