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REQUESTS FOR RECORDS OF SURGICAL PROCEDURES PERFORMED ON NON-PARTIES AND RECORDS OF COMPLAINTS AGAINST DEFENDANT SURGEON SHOULD NOT HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined certain discovery requests made by plaintiff in a medical malpractice action should not have been denied. Plaintiff alleged defendant surgeon’s (Panos’) and defendant hospital’s (Vassar’s) negligence were related to the unprecedented number of surgeries performed by defendant surgeon. Plaintiff sought all the records re: surgeries performed by defendant surgeon on the days plaintiff was operated on. The Second Department held that those records, with non-party names redacted, should be turned over but should not be disclosed beyond the parties and experts. With respect to requests for disclosure of complaints against defendant surgeon, the Second Department held that the documents should be turned over for in camera review to see if they are immune from discovery under the Public Health Law (quality assurance immunity):

 

Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, to compel Vassar to produce intraoperative records pertaining to all surgical procedures performed by Panos on any nonparty patients on the three dates that he performed surgery on the plaintiff, reflecting every medical procedure performed during those surgical procedures, and should have denied that branch of Vassar’s cross motion which was for a protective order striking the plaintiff’s demand for those records … .

… [T]he plaintiff demanded that Vassar produce copies of any written complaints made to Vassar regarding Panos and any written responses thereto. Contrary to Vassar’s contention, these demands specified the documents to be disclosed with reasonable particularity (see CPLR 3120[2]…). Vassar further contends that these documents are immune from discovery pursuant to the quality assurance privilege (see Education Law § 6527[3], Public Health Law § 2805-m…). “Records generated at the behest of a quality assurance committee for quality assurance purposes . . . should be privileged, whereas records simply duplicated by the committee are not necessarily privileged” … . Since it is impossible on this record to determine whether the subject documents were generated at the behest of a quality assurance committee for quality assurance purposes, we remit the matter for an in camera inspection of the documents requested … .  Gabriels v Vassar Bros. Hosp., 2016 NY Slip Op 00478, 2nd Dept 1-27-16

 

CONVERSION (CAUSE OF ACTION TIME-BARRED)/REPLEVIN (CAUSE OF ACTION TIME-BARRED)/UNJUST ENRICHMENT (CAUSE OF ACTION TIME-BARRED)/CIVIL PROCEDURE (CONVERSION, REPLEVIN AND UNJUST ENRICHMENT CAUSES OF ACTION TIME-BARRED)

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MALPRACTICE COMPLAINT SHOULD HAVE BEEN DISMISSED, ANALYTICAL CRITERIA EXPLAINED.

The Second Department, reversing Supreme Court, determined the attorney-defendants’ motion to dismiss the malpractice complaint should have been granted. The allegations of malpractice were deemed insufficient and were “utterly refuted” by the documentary evidence submitted. The court explained the analytical criteria:

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the lawyer’s negligence” … . “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” … . “[A] plaintiff must plead and prove actual, ascertainable damages as a result of an attorney’s negligence” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … . Janker v Silver, Forrester & Lesser, P.C., 2016 NY Slip Op 00481, 2nd Dept 1-27-16

ATTORNEYS (MALPRACTICE ALLEGATIONS INSUFFICIENT)/NEGLIGENCE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)/LEGAL MALPRACTICE (ALLEGATIONS INSUFFICIENT)/CIVIL PROCEDURE (ALLEGATIONS OF ATTORNEY MALPRACTICE INSUFFICIENT)

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THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION WERE NOT ACCURATELY STATED IN THE JURY INSTRUCTIONS AND VERDICT SHEET; MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department reversed Supreme Court, in the interest of justice, because the jury instructions and verdict sheet did not accurately state the elements of malpractice based upon a lack of informed consent. Plaintiff’s motion to set aside the verdict should have been granted. The elements of a “lack of informed consent” cause of action were explained:

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove “(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … . ” To state it in other terms, the causal connection between a doctor’s failure to perform his [or her] duty to inform and a patient’s right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures actually performed. Once that causal connection has been established, the cause of action in negligent malpractice for failure to inform has been made out and a jury may properly proceed to consider plaintiff’s damages’ ” … . Figueroa-Burgos v Bieniewicz, 2016 NY Slip Op 00329, 2nd Dept 1-20-16

NEGLIGENCE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURIES (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/JURY INSTRUCTIONS (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/VERDICT SHEET (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)/INFORMED CONSENT, LACK OF (JURY INSTRUCTIONS AND VERDICT SHEET DID NOT ACCURATELY STATE THE ELEMENTS OF A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED)

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BANK DID NOT NEGOTIATE IN GOOD FAITH IN THE CPLR 3408 MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, CERTAIN SANCTIONS PROPERLY IMPOSED.

The Second Department determined Supreme Court properly found the bank did not negotiate in a mortgage foreclosure settlement conference (CPLR 3408(f)) in good faith and properly imposed certain sanctions on the bank:

 

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see CPLR 3408[f]…). ” The purpose of the good faith requirement [in CPLR 3408] is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution'” … . To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” … .

Here, contrary to the Bank’s contention, the totality of the circumstances support the Supreme Court’s conclusion that it failed to negotiate in good faith. The homeowner’s submissions demonstrated that the Bank, among other things, engaged in dilatory conduct by “making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided” … . The Bank failed to offer any evidence in opposition to the homeowner’s motion and did not controvert the homeowner’s account of the mandatory settlement negotiations. Accordingly, under the circumstances, the Supreme Court properly concluded that the Bank violated CPLR 3408(f) by failing to negotiate in good faith … . LaSalle Bank, N.A. v Dono, 2016 NY Slip Op 00340, 2nd Dept 1-20-16

 

FORECLOSURE (BANK DID NOT NEGOTIATE IN GOOD FAITH RE: MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (BANK DID NOT NEGOTIATE IN GOOD FAITH IN MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

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AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER THE DOCTRINE OF COMITY.

The Second Department determined an agreement, called a mahr agreement, which was part of a foreign Islamic divorce decree and which called for the payment to the wife of $250,000, was properly enforced by Supreme Court under the doctrine of comity:

 

“Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States” … . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York … . Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy … .

Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby … . Badawi v Alesawy, 2016 NY Slip Op 00317, 2nd Dept 1-20-16

 

FAMILY LAW (AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER DOCTRINE OF COMITY)/COMITY (AGREEMENT WHICH WAS PART OF FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED IN SUPREME COURT)

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JURY CONFUSION, STEMMING FROM THE WORDING OF THE SPECIAL VERDICT SHEET, MANDATED A NEW TRIAL.

The First Department, in three, two-justice concurring opinions, determined plaintiff’s motion to set aside the jury verdict should have granted on “jury confusion” grounds. Plaintiff had a kidney removed for his father’s transplant procedure. A “knot pusher device” was left inside plaintiff, and he underwent a second surgery to remove it. The jury, based on the special verdict sheet, indicated leaving the “knot pusher device” inside plaintiff was not the proximate cause of his injury, but the jury sent out a note stating the plaintiff should be awarded $50,000 for having to undergo the second procedure:

 

An examination of the record reveals that the special verdict sheet was “unclear and confusing” …, because it did not provide for an award of damages caused by the need to undergo a second surgery. The confusing and ambiguous wording of the verdict sheet caused the jurors to experience substantial confusion in reaching their verdict … . While “[t]he ambiguity had been brought to the attention of the trial Justice before the jury was discharged and could have been corrected or at least clarified at that time” …, the court did not do so and a new trial  … is required to prevent a miscarriage of justice. Srikishun v Edye, 2016 NY Slip Op 00315, 1st Dept 1-19-16

 

NEGLIGENCE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/MEDICAL MALPRACTICE (CONFUSION CAUSED BY SPECIAL VERDICT SHEET MANDATED A NEW TRIAL)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT BECAUSE OF JURY CONFUSION STEMMING FROM THE VERDICT SHEET SHOULD HAVE BEEN GRANTED)/JURIES (NEW TRIAL SHOULD HAVE BEEN GRANTED DUE TO CONFUSION STEMMING FROM THE SPECIAL VERDICT SHEET)/VERDICT SHEET (CONFUSING SPECIAL VERDICT SHEET WARRANTED A NEW TRIAL)

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LONG-ARM JURISDICTION DID NOT REACH AN AUDITING FIRM IN THE UK AND CONVERSION CAUSES OF ACTION FAILED BECAUSE THE CONVERTED FUNDS WERE NOT IDENTIFIABLE AFTER THEY HAD BEEN INVESTED.

In affirming Supreme Court’s dismissal of several complaints stemming from the defendants’ alleged involvement with investments managed by Bernard Madoff, the First Department determined New York jurisdiction did not extend to a firm in the UK (KPMG UK) which allegedly negligently audited Madoff Securities, and further determined conversion causes of action failed because the funds allegedly converted were not sufficiently identifiable after they had been invested:

 

The motion court correctly found that New York lacks personal jurisdiction over KPMG UK pursuant to CPLR 302(a)(3)(ii). While plaintiffs allege that KPMG UK committed a tort outside the state (negligently auditing nonparty Madoff Securities International, Ltd. [MSIL] in the United Kingdom), and their causes of action arise out of that tort, KPMG UK’s act did not cause injury to a person or property within the state. “[T]he situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred”… .  * * *

Where, as here, a plaintiff alleges that a defendant converted money, the money “must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a particular manner” … . [Plaintiff] sent her money to Beacon Associates, which sent it to Madoff, who deposited it at JPMorgan. Even if, arguendo, [plaintiff’s] money was specifically identifiable when she sent it to Beacon Associates, there is no indication that Beacon Associates segregated it when it sent investors’ money to Madoff. By the time Madoff deposited investors’ money at JPMorgan, [plaintiff’s] investments would not have been specifically identifiable. McBride v KPMG Intl., 2016 NY Slip Op 00306, 1st Dept 1-19-16

 

CIVIL PROCEDURE (NEW YORK JURISDICTION DID NOT REACH UK FIRM ALLEGED TO HAVE NEGLIGENTLY AUDITED MADOFF SECURITIES)/CONVERSION (ALLEGEDLY CONVERTED FUNDS MUST BE IDENTIFIABLE, FUNDS NO LONGER IDENTIFIABLE AFTER INVESTMENT)

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DEFENDANT, WHICH OPERATED A STUDY-ABROAD PROGRAM, OWED A DUTY OF CARE TO INJURED STUDENT; BECAUSE DEFENDANT PRESENTED NO AFFIRMATIVE PROOF ON CAUSATION IN SUPPORT OF ITS SUMMARY JUDGMENT MOTION, THE BURDEN OF PROOF ON THAT ISSUE NEVER SHIFTED TO PLAINTIFF.

The First Department, over a two-justice dissent, determined defendant synagogue’s motion for summary judgment was properly denied. Plaintiff was a participant in a study-abroad program run by defendant in Israel. She injured her knee and alleged she was prescribed physical therapy but defendant refused to provide it (delaying and compromising recovery). The First Department held defendant owed a duty of care to plaintiff because it had agreed to provide medical care and was in the best position to protect plaintiff from injury. The court noted that defendant’s attempt to place the burden on plaintiff to demonstrate a causal link between her injury and the failure to provide physical therapy must fail in the context of a defense summary judgment motion. The burden never shifted to plaintiff on that issue because the defendant did not demonstrate, through an expert affidavit, the absence of causation. [Yet another example of the need for a defendant to present affirmative proof on every relevant issue when seeking summary judgment. Without affirmative proof on a necessary issue, the burden never shifts to plaintiff.]:

 

The existence of a duty depends on the circumstances, and the issue is one of law for the court; “the court is to apply a broad range of societal and policy factors” … .

In determining the threshold question of whether a defendant owes a plaintiff a duty of care, courts must balance relevant factors, “including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” … . The parties’ relationship may create a duty where it “places the defendant in the best position to protect against the risk of harm [] and [] the specter of limitless liability is not present” … . Thus, where a defendant exercises a sufficient degree of control over an event, a duty of care to plaintiff may arise … .

Here, the parties’ relationship created a duty to provide plaintiff with the necessary medical care because not only did defendant agree to do so, it was in the “best position to protect against the risk of harm” and “the specter of limitless liability [was] not present” … . The program was not an ordinary college or study-abroad program. Indeed, the second “semester” did not take place in a university environment. Rather, it took place in Yerucham, a small town in the Negev desert, involved volunteering, and was supervised by counselors who did “[p]retty much everything,” including responding to medical issues. Under the circumstances, defendant exercised a sufficient degree of control over the program to create a duty of care to plaintiff … . Katz v United Synagogue of Conservative Judaism, 2016 NY Slip Op 00094, 1st Dept 1-12-16

 

NEGLIGENCE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/DUTY OF CARE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/EVIDENCE (DEFENDANT DID NOT PROVIDE AFFIRMATIVE EVIDENCE OF ABSENCE OF CAUSATION IN ITS SUMMARY JUDGMENT MOTION, BURDEN ON THAT ISSUE NEVER SHIFTED TO PLAINTIFF)/SUMMARY JUDGMENT (DEFENSE MOTION FOR SUMMARY JUDGMENT MUST SUBMIT AFFIRMATIVE PROOF ON ISSUE OF CAUSATION OF INJURY, ABSENT AFFIRMATIVE PROOF BURDEN NEVER SHIFTED TO PLAINTIFF ON THAT ISSUE)

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PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENDANT’S VOCATIONAL REHABILITATION EXPERT.

The Third Department, overruling its own precedent, determined plaintiff, in this Labor Law 200, 240(1) and 241(6) action, could properly be compelled to submit to an examination by defendant's vocational rehabilitation expert:

CPLR 3101 “broadly mandates full disclosure of all matter material and necessary in the prosecution and defense of an action” … . “The words 'material and necessary' as used in [CPLR] 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'” … . To properly exercise such discretion, a trial court must balance the need for discovery “against any special burden to be borne by the opposing party” … . If the trial court has engaged in such balancing, its determination will not be disturbed in the absence of an abuse of discretion … .

… While we previously held that there is “no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist” … , the Court of Appeals has since confirmed that the mandate for broad disclosure is not necessarily limited by the more specific provision of the CPLR that allows a defendant to demand that a plaintiff submit to a physical or mental examination “by a designated physician” (CPLR 3121 [a]) where his or her medical condition is at issue … . Accordingly, the circumstances of a case may allow such a demand even in the absence of express statutory authority … . We agree with the conclusion reached by the other Departments that such circumstances are not limited to those cases where a plaintiff has retained a vocational rehabilitation expert to establish damages, although, generally, such testing “might well be unduly burdensome”… .

… [Plaintiff] placed his ability to work in controversy by claiming that, as a result of his injuries, he suffered loss of future wages and reduced earning capacity and by testifying at his examination before trial that his future career opportunities were limited … . Hayes v Bette & Cring, LLC, 2016 NY Slip Op 00090, 3rd Dept 1-7-16

LABOR LAW (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/NEGLIGENCE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPDERT)/CIVIL PROCEDURE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/VOCATIONAL REHABILITATION EXPERT (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/DISCLOSURE (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)

ALTHOUGH VACATUR OF A DEFAULT JUDGMENT WAS NOT AVAILABLE UNDER CPLR 5015, VACATUR WAS AVAILABLE UNDER CPLR 317.

The First Department, reversing Supreme Court, determined defendant’s (the LLC’s) motion to vacate a default judgment should have been granted. Although the LLC did not present a reasonable excuse for default, and therefore vacatur pursuant to CPLR 5015 was not available, the requirements for vacatur pursuant to CPLR 317 were met:

 

Although the LLC is not entitled to vacatur under CPLR 5015(a)(1), as it did not show a reasonable excuse for its default … , it is entitled to vacatur under CPLR 317, as it moved to vacate within a year after it learned of the default and just five months after entry of the default order, it showed that it did not personally receive the summons and complaint in time to defend it, and it presented a meritorious defense to the action (see CPLR 317…). The affidavit the LLC submitted in support of its motion was sufficient to show a meritorious defense … — namely, that it is an out-of-possession landlord that bears no liability for the injuries that allegedly occurred in its tenant’s bar due to the criminal acts of third parties … . Marte v 102-06 43 Ave., LLC, 2016 NY Slip Op 00061, 1st Dept 1-7-16

CIVIL PROCEDURE (VACATUR OF DEFAULT JUDGMENT UNDER CPLR 317 AVAILABLE BUT NOT UNDER CPLR 5015 )/DEFAULT JUDGMENTS, VACATUR (AVAILABLE UNDER CPLR 317 BUT NOT UNDER CPLR 5015)

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