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Conclusory Affidavit Insufficient to Meet Burden of Demonstrating Documents Were Privileged Because the Documents Were Prepared Solely In Anticipation of Litigation—Motion for a Protective Order Limiting Discovery Properly Denied

The Second Department determined the appellants were not entitled to a protective order precluding discovery of documents pursuant to CPLR 3103.  The appellants argued the documents were privileged because they were prepared in anticipation of litigation.  However, the conclusory attorney affidavit offered in support of the protective order did not meet the appellants’ burden to demonstrate the specific documents sought were “prepared solely in anticipation of litigation or trial…”:

CPLR 3101(a) mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Unlimited disclosure is not mandated, however, and a court may issue a protective order pursuant to CPLR 3103 denying, limiting, conditioning or regulating the use of any disclosure device “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103[a]…). “The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” … .

In support of that branch of their motion which was pursuant to CPLR 3103 for a protective order preventing the disclosure of certain witness statements and certain investigation and inspection reports, the appellants contended that such evidence was privileged as it was prepared in anticipation of litigation (see CPLR 3101[d][2]). “The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . Such burden is met “by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … .

Here, the appellants failed to meet their burden of establishing that the requested material was prepared solely in anticipation of litigation and, therefore, is protected from disclosure by the qualified immunity privilege of CPLR 3101(d)(2). An attorney’s affirmation containing conclusory assertions that requested materials are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain a party’s burden of demonstrating that the materials were prepared exclusively for litigation … . Ligoure v City of New York, 2015 NY Slip Op 04456, 2nd Dept 5-27-15

 

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Circumstances Warranted Overcoming Physician-Patient Privilege—Substantive Explanation of the Privilege and Its Application (Including When a Court May Decline to Enforce It)

In a medical malpractice case, the plaintiff sought logs from the defendant-hospital which described the surgical procedures done by defendant surgeon during the times of plaintiff’s surgeries. The plaintiff sought to demonstrate the surgeon was doing too many procedures in too short a time to have properly performed them.  Although the hospital produced the logs, the information describing each procedure was redacted. Plaintiff’s motion to compel was denied by Supreme Court, which held the information about surgeries on non-party patients was privileged. The Second Department reversed.  Although the information was deemed privileged by the Second Department, the information could properly be discovered because it was “material and necessary” to the plaintiffs’ case and the privacy of the non-party patients could be protected by redaction.  The facts presented a situation where the court could properly decline to enforce the privilege. The Second Department provided a substantive explanation of the physician-patient privilege and its application:

… CPLR 4504(a) … provides that “[u]nless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity” (CPLR 4504[a]…).

The enactment of the statutory physician-patient privilege “was based on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment” … . “The privilege applies not only to information communicated orally by the patient, but also to information obtained from observation of the patient’s appearance and symptoms” …. “Moreover, the form in which the information is sought to be introduced is irrelevant, as the privilege operates whether the information is contained in a patient’s medical files or is sought to be introduced at trial in the form of expert testimony” … .

“That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person’s medical history” … . The statute “is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge” … . Accordingly, although the privilege protects a patient from the disclosure of a communication made to a doctor, “a witness may not refuse to answer questions regarding matters of fact . . . merely because those topics relate to events that required medical care or advice from a physician” … .

Furthermore, “where the application of a privilege will not serve to further the legitimate purposes for which it was created, there is little reason to permit its invocation” … . Accordingly, “courts may properly decline to enforce the physician-patient privilege where its invocation does not serve its policy objectives” … .

However, even where redaction of identifying information will ensure that the policy objectives of CPLR 4504(a) are not subverted, disclosure of otherwise privileged information should not be permitted where it is not “material and necessary in the prosecution or defense of [the] action” (CPLR 3101[a][1]…). Here, although the listing of each surgical procedure … was privileged under CPLR 4504(a) …, the plaintiff established that the subject information is indeed “material and necessary” (CPLR 3101[a]) in the prosecution of the action, and that the circumstances warrant overcoming the privilege … .Cole v Panos, 2015 NY Slip Op 04269, 2nd Dept 5-20-15

 

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Sua Sponte Dismissal for Lack of Standing Improper—Defense Waived by Failure to Answer—Lack of Standing is Not a Jurisdictional Defect

The Second Department, in a mortgage foreclosure proceeding where defendants did not answer, determined the complaint should not have been dismissed sua sponte for lack of standing.  Because the complaint was not answered, the lack-of-standing defense was waived.  In addition, lack-of-standing is not a jurisdictional defect warranting sua sponte dismissal:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint and the cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . In any event, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . US Bank Natl. Assn. v Flowers, 2015 NY Slip Op 04308, 2nd Dept 5-20-15

 

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Foreign Corporation’s Sole Residence for Venue Purposes Is the County Designated In Its Filed Application to Conduct Business in New York State

In the context of a dispute over proper venue, the Second Department determined that plaintiff foreign corporation’s sole residence in New York State is the county designated in its application for authority to conduct business in New York State as filed with the State. Therefore plaintiff’s bringing the action in Nassau County, where it alleged its principal place of business is located, as opposed to New York County, the county designated in its filed application, was improper:

…[T]he law is clear that “[f]or purposes of venue, the sole residence of a foreign corporation is the county in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York” …, regardless of where it transacts business or maintains its actual principal office (see CPLR 503[c]; Business Corporation Law § 102[a][10]…). We note that, since the plaintiff’s response to the defendants’ demand to change venue failed to set forth factual averments that were prima facie sufficient to show that its designation of Nassau County for trial of the action was proper, the defendants were authorized to notice their motion to change venue to be heard in Saratoga County (see CPLR 511[b]…). Further, the defendants are not responsible for the delay occasioned by the denial of their motion by the Supreme Court, Saratoga County.

In view of the foregoing circumstances, the Supreme Court should have granted the defendants’ motion to change the venue of the action from Nassau County to Saratoga County, despite the fact that an order granting class certification had already been issued in the action. American Bldrs. & Contrs. Supply Co., Inc. v Capitaland Home Improvement Showroom, LLC, 2015 NY Slip Op 04262, 2nd Dept 5-20-15

 

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Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained—Criteria for Motion to Dismiss Based on Documentary Evidence Explained—Pleading Requirements for Legal Malpractice Explained

In finding the legal malpractice complaint properly survived motions to dismiss, the Second Department explained the criteria for a motion to dismiss for failure to state a cause of action where documentary evidence is submitted (question is whether plaintiff has a cause of action, not whether one has been stated, affidavits considered to remedy defects in complaint), the criteria for a motion to dismiss founded on documentary evidence (documents must utterly refute allegations in complaint), the elements of legal malpractice, and the adequacy of damages allegations in a legal malpractice complaint (cannot be conclusory or speculative but plaintiff not obligated to show it actually sustained damages) :

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026…). Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … .

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law… .

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained … . A plaintiff must plead “actual[,] ascertainable damages” resulting from the attorney’s negligence … . Conclusory or speculative allegations of damages are insufficient… . However, “[a] plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred” … . Randazzo v Nelson, 2015 NY Slip Op 04299, 2nd Dept 5-20-15

 

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Release Null and Void Under the General Obligations Law–Plaintiff Paid a Fee to Participate in the Basketball Game In Which He Was Injured

Plaintiff paid a fee to participate in a basketball league and signed a release of liability.  He was injured during a game when his hand went through the glass of a door behind a basketball hoop. The defendants sought permission to amend their answer to assert the defense of release and Supreme Court allowed the amendment. The Second Department determined the motion for leave to amend the answer should have been denied because the affirmative defense was “patently devoid of merit.” General Obligations Law 5-326 nullifies any such release where the owner or operator of a sports facility charges a fee for use of the facility. Falzone v City of New York, 2015 NY Slip Op 04273, 2nd Dept 5-20-15

[General Obligations Law 5-326 provides: “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”]

 

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Deliberate Joinder of Claims for Legal and Equitable Relief Arising from the Same Transaction Constitutes a Waiver of the Right to Demand a Jury Trial

The Second Department noted that the deliberate joinder of claims for legal and equitable relief arising from the same transaction constitutes a waiver of the right to demand a jury trial. In addition, the court dismissed the aspect of the appeal for which the relevant portions of the record were omitted from the appendix. With respect to the contents of the appendix submitted on appeal, the Second Department wrote:

” An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal'” … . “The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 670.10-b[c][1]; see CPLR 5528[a][5]). Here, the plaintiff omitted material excerpts from the transcripts of trial testimony and critical exhibits she relies on in seeking review of the dismissal of her disability discrimination cause of action. These omissions inhibit this Court’s ability to render an informed decision on the merits of the appeal … . Accordingly, the appeal from so much of the judgment as is in favor of the defendants and against the plaintiff, in effect, dismissing the second cause of action must be dismissed. Zutrau v ICE Sys., Inc., 2015 NY Slip Op 04479, 2nd Dept 5-1715

 

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Excessive Intervention and Improper Conduct of Judge Required New Trial in Medical Malpractice Case

The Second Department reversed and sent a medical malpractice case back for retrial on liability because of the excessive intervention and improper conduct by the trial judge.  The Second Department wrote:

…[T]he trial justice’s excessive intervention in the proceedings, as well as the cumulative effect of the trial court’s improper conduct, deprived the plaintiff of her right to a fair trial (see CPLR 5501[a][1]; 4017…). “[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” …. A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” …. Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance’ “…. Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial-and often times in the presence of the jury-unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. *  *  *

Under the circumstances of this case, by virtue of the cumulative effect of the improper conduct of the trial justice, the plaintiff was deprived of a fair trial. As a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner ….  Porcelli v Northern Westchester Hosp, 2013 NY Slip Op 03467, 2nd Dept 5-15-13

 

 

 

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In Extraordinary Circumstances, Testimony by Two-Way Video Conference Can Be Used In Mental Hygiene Law Article 10 Proceedings

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the judge in a Mental Hygiene Law article 10 proceeding has the discretion, in extraordinary circumstances, to allow testimony by electronic appearance (live two-way video conference). Here, however, the respondent objected to the procedure and the State did not demonstrate the requisite extraordinary circumstances.  The error  was deemed harmless however:

…[W]e hold that permitting the two-way, live video testimony … was within the discretion of the court. As we have previously explained, “[l]ive televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances” … . … [Here} [p]ermitting [the witness] to deliver her testimony via video conference over respondent's objection without requiring a proper showing of exceptional circumstances was error. Matter of State of New York v Robert F., 2015 NY Slip Op 04162, CtApp 5-14-15

 

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For Purposes of CPLR 205 (a) (Allowing the Commencement of a New Action within Six Months of the Termination of a Prior Action) a Prior Action Terminates When a Nondiscretionary Appeal Is “Exhausted,” Even If the Appeal Is Dismissed As Abandoned

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that the six-month period for commencing a new action after the termination of a prior action afforded by CPLR 205 (a) runs from the termination of an appeal, even if the appeal is dismissed as abandoned. Here the plaintiff started an action in federal court which was dismissed by District Court.  Plaintiff then appealed as of right to the Second Circuit.  The appeal was dismissed for failure to file the brief and appendix.  Plaintiff, before the federal appeal was dismissed, started an action in state court. The state court action was started more than six months after the District Court had dismissed the federal action and defendants moved to dismiss the state action under CPLR 205 (a).  The Court of Appeals held that the CPLR 205 (a) six-month period did not start running until the federal appeal was dismissed.  Therefore the state action was timely commenced:

In its current form, CPLR 205 (a) provides:

“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.” * * *

… [T]his Court has not addressed the issue of when a prior action terminates for purposes of CPLR 205 (a) where, as here, an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect. We resolve that question now by … holding that, where an appeal is taken as of right, the prior action terminates for purposes of CPLR 205 (a) when the nondiscretionary appeal is truly “exhausted,” either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned. Malay v City of Syracuse, 2015 NY Slip Op 04164, CtApp 5-14-15

 

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