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Inadvertently Disseminated Investigative Report [Concerning a Doctor’s Conduct With Respect to Plaintiff’s Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable—Matter Must Be Returned to the “Status Quo Prior to the [Inadvertent] Disclosure”

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent’s death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court’s order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

…[W]e conclude that Supreme Court erred in granting defendants’ motion only in part, and should have granted the motion in its entirety. “Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions,” including Public Health Law § 230 (9), which are not applicable here … . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor’s] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the “status quo prior to the[inadvertent] disclosure”… . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14

 

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Complaint Did Not State Causes of Action for Replevin or Conversion Because the Specific Funds Involved Were Not Sufficiently Identified/Fraud Cause of Action Stated—Inference of Fraud Sufficiently Raised from Circumstances Alleged

The Fourth Department determined the complaint did not state causes of action for replevin and conversion, but did state a cause of action for fraud.  The motions to dismiss the replevin and conversion causes of action pursuant to CPLR 3211(a)(7) should therefore have been granted.  The basis of the complaint was the allegation that defendants embezzled as much as $4 million from an incapacitated person (Aida Corey):

Addressing first the replevin cause of action, we note that replevin is a remedy employed to recover a specific, identifiable item of personal property …, and “[o]rdinary currency, as a rule, is not subject to replevin” … . Unless the currency can be specifically identified, i.e., it consists of specific, identifiable bills or coins, replevin does not lie … . Here, the amended complaint alleges that the individual defendants “have used some or all of Aida Corey’s $4 million in cas[h] to purchase real and personal property and other tangible assets” and that they “have taken approximately $4 million of Aida Corey’s cash and/or personal property.” The sole focus of the parties, both in Supreme Court and on appeal, however, has been on the money allegedly taken by the … defendants, and we therefore deem abandoned any allegations by plaintiffs concerning personal property … . We thus conclude that the amended complaint fails to state a cause of action for replevin, because there is no “specifically identified” money that plaintiffs seek to recover … .

With respect to the plaintiff guardians’ cause of action for conversion, the amended complaint likewise alleges that the individual defendants “have taken approximately $4 million of Aida Corey’s cash and/or personal property,” but as with the replevin cause of action we conclude that plaintiffs have abandoned any allegations concerning personal property … . Money may be the subject of a cause of action for conversion only if “it can be identified and segregated as a chattel can be” …, i.e., “where there is a specific, identifiable fund” … . Contrary to the contentions of plaintiff guardians, the sums allegedly converted here do not constitute the type of specific, identifiable fund that would support a conversion cause of action … .

…[T]he court properly refused to dismiss the fraud cause of action against them. A fraud cause of action must allege that the defendant: (1) made a representation to a material fact; (2) the representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied on the statement and in accordance with the statement engaged in a certain course of conduct; and (5) as a result of the reliance, the plaintiff sustained damages … . The allegations in the complaint must set forth the “basic facts constituting the fraud” …, to “inform a defendant of the complained-of incidents” … . The Court of Appeals has “cautioned that [CPLR] 3016 (b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting the fraud” (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [internal quotation marks omitted]). Here, much of the detail surrounding the alleged fraud is ” peculiarly within the knowledge’ ” of the … defendants …, and we agree with plaintiffs that an inference of fraud arises from the circumstances alleged in the amended complaint … . Heckl v Walsh, 2014 NY Slip Op 07787, 4th Dept 11-14-14

 

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Transmission Line from Hydroelectric Power Facility in Canada to Queens Properly Approved

The Third Department determined that the NYS Public Service Commission properly issued a certificate of environmental compatibility and public need (EC & PN) for an electric power transmission line running from a hydroelectric power facility in Canada to Queens.  After the issuance of the EC & PN, the petitioners sought a rehearing pursuant to Public Service Law 22.  The Commission denied the petition on the ground it had been filed and served one day late.  The Third Department held that the failure to timely file was nonprejudicial “law office failure” which should have been excused pursuant to CPLR 2005 and went on to review the Commission’s grant of the EC & PN on the merits, including the economic feasibility of the plan, the public need for the hydropower-produced electricity (reduced carbon emissions),  and the effects of the transmission line on the environment:

We begin by recognizing that, as parties to the proceedings at the agency level, petitioners have standing … . The criteria for authorizing the construction and operation of a major utility transmission facility are set forth in Public Service Law § 126. Under this statute, the Commission may not grant a certificate approving an electric transmission project unless it finds and determines (1) the need for the facility, (2) whether the facility will achieve the minimum adverse environmental impacts, (3) whether the facility will be located underground and comport with the state’s long-range plan to expand the electric power grid, (4) that there has been conformance with applicable state and local laws and regulations, and (5) that the facility promotes the public interest, convenience and necessity (see Public Service Law § 126 [1] [a]-[d], [f], [g]). This project involves the placement of a high voltage, direct current transmission line extending from the Canadian border to a converter station in Queens and, from there, a high voltage, alternating current transmission line to the Rainey Substation. The line will be placed underwater in Lake Champlain and the Hudson River and underground in the upland segments. * * *

Petitioners contend that the Commission failed to adequately consider the potential harm to aquatic species, including the endangered shortnose and atlantic sturgeon, posed by the placement of cables underwater. The plan requires the underwater cables to be buried at least six feet beneath the lake/river bottom, except in areas of utility crossings and hard rock. In these areas, the cable will be covered by concrete mats. The specific risks emanate from the use of the concrete mats as well as magnetic and electromagnetic field impact. The record supports the Commission’s determination that any risk has been minimized by the placement of the cable route utilizing existing habitat information designed to avoid significant coastal fish and wildlife habitat areas designated by the Department of State (see 19 NYCRR part 602) and the exclusion zones identified by the parties in the joint proposal. There is also expert record evidence supporting the Commission’s conclusion that the magnetic fields’ impact on sturgeon and other aquatic species would be minimal. Further, we agree with the Commission’s observation that the July 5, 2011 letter from the Army Corps of Engineers addressing the cable route under Lake Champlain and the Hudson River was a preliminary assessment. Moreover, the certificate is conditioned on the applicants’ procurement of a construction permit from the Army Corps of Engineers, which has jurisdiction over these navigable waterways, prior to commencing construction.  Matter of Entergy Nuclear Power Mktg LLC v New York State Pub Serv Comm, 2014 NY Slip Op 07711, 3rd Dept 11-13-14

 

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Provision of County Charter Requiring a Referendum to Amend the Drinking Water Protection Program Is Valid and Enforceable—Amendment Enacted Without the Referendum Is Null and Void—Both Individual and Organizational Plaintiffs Had Standing to Contest the Amendment

The Second Department reversed Supreme Court findng that: (1) the plaintiffs had standing to contest the amendment of the Suffolk County Drinking Water Protection Program (DWPP) on the ground that the referendum required by the county charter was not held; and (2) the resolution enacted in the absence of a referendum was null and void.  The court noted the fact that the pleadings were not included in plaintiffs’ motion for summary judgment, the reason Supreme Court denied the motion, was not fatal to the motion:

The Supreme Court erred in granting that branch of the defendants’ cross motion which was for summary judgment dismissing the complaint on the ground that the plaintiffs lacked standing. An action commenced by natural persons pursuant to General Municipal Law § 51 “may take the form of [an] action for a declaratory judgment” … . To have standing based upon their status as taxpayers, the individual plaintiffs were required to allege that the challenged act constituted a waste of or injury to public funds or, alternatively, that the challenged act was both illegal and “imperil[ed] the public interests or [was] calculated to work public injury or produce some public mischief” … . Here, the plaintiffs alleged, in detail, that the defendants violated the Suffolk County Charter by enacting the Amendment in the absence of approval pursuant to a public referendum, and that this enactment threatened public funds expressly dedicated to protecting the drinking water supply in the County and lands in the Pine Barrens. Under the circumstances presented here, we conclude that the plaintiffs adequately alleged that the enactment of the challenged amendment without a public referendum is illegal insofar as it violates the Suffolk County Charter, and that this enactment imperiled the public interest or was calculated to work public injury or produce some public mischief… . …

Although the Supreme Court denied the plaintiffs’ motion for summary judgment on the ground that they failed to submit a copy of the pleadings with their motion papers, we nonetheless exercise our discretion to reach the merits. Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to “disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . * * *

[The] provisions of the New York Constitution and the Municipal Home Rule Law do not prevent Suffolk County from adopting a charter provision like the one at issue here, which requires approval by a public referendum in order to amend or repeal the DWPP in the future (see Municipal Home Rule Law § 11[2][a]; § 34[4]…). Although the relevant charter provision requires a public referendum that is denominated as a “mandatory” referendum, that public referendum is not mandated by State law (cf. Municipal Home Rule Law § 23). Rather, the relevant charter provision constitutes the County’s mode of granting permission to the electorate to approve or disapprove, by means of a public referendum, proposed changes to the DWPP. Hence, the public referendum countenanced by the Suffolk County Charter can properly be characterized as a “permissive” referendum within the meaning of the New York Constitution and the Municipal Home Rule Law … . Long Is Pine Barrens Socy Inc v County of Suffolk, 2014 NY Slip Op 07633, 2nd Dept 11-12-14

 

Criteria for a Change of Venue Not Met—Party Seeking Change Must First Demonstrate Existing Venue Is Improper

Reversing Supreme Court, the Second Department held that defendant’s motion to change venue should have been denied.  The court explained the analytical criteria:

“In the context of determining the proper venue of an action, a party may have more than one residence” … . Under CPLR 503(d), the county of an individual’s principal office is a proper venue for claims arising out of that business (see CPLR 503[d]…). Here, the plaintiff seeks to recover damages for medical malpractice allegedly committed by, among others, the defendant Jung Lack Lee in his capacity as a medical doctor. Accordingly, the county in which that defendant maintains his principal office is a proper venue in this case.

To prevail on a CPLR 510(1) motion to transfer venue, a defendant bears the burden of demonstrating that the plaintiff’s choice of venue was improper on the day the action was commenced, and that the defendant’s choice of venue is proper (see CPLR 511[b]…). Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper … . Here, the defendants failed to establish that Kings County was improper … . Accordingly, the Supreme Court should have denied the defendants’ motions to transfer venue and granted that branch of the plaintiff’s cross motion which was to retain venue in Kings County. Young Sun Chung v Kwah, 2014 NY Slip Op 07656, 2nd Dept 11-12-14

 

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Four-Month Statute of Limitations Started When Petitioner’s Attorney Received the Order, Not When the Order Was Served on Petitioner

With respect to an Article 78 proceeding to contest a determination of the Commissioner of the Department of Environmental Conservation, the four-month statute of limitations began when petitioner’s attorney received the Commissioner’s order, not when the order was served on petitioner.  Matter of Sutherland v New York State Dept of Envtl Conservation, 2014 NY Slip Op 07674, 2nd Dept 11-12-14

 

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Procedure for Determining a Pre-Answer Motion to Dismiss a Declaratory Judgment Action Explained

In the context of an action for a declaratory judgment concerning the legality of the collective bargaining agreement (re: the waiver of seniority rights), the Second Department explained how a pre-answer motion to dismiss pursuant to CPLR 3211 (a)(7) [failure to state a cause of action] should be considered:

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . “Thus, where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied'” … . A court may reach “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action where no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly”… .  Bregman v East Ramapo Cent Sch Dist, 2014 NY Slip Op 07610, 2nd Dept 11-12-14

 

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Procedure for Handling a Motion to Dismiss for Failure to State a Cause of Action When Documentary Evidence Is Submitted in Support of the Motion Explained—Attorney Discharged For Cause Is Not Entitled to “Quantum Meruit” Attorney’s Fees

In affirming the dismissal of plaintiff’s complaint, the Second Department explained the relevant analysis when documentary proof is submitted by a defendant in connection with a motion to dismiss for failure to state a cause of action pursunt to CPLR 3211(a)(7).  The action was brought by an attorney who had been discharged for cause by his clients prior to the settlement of a personal injury action:

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Where, however, a defendant has submitted evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, . . . dismissal should not eventuate” … . Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action … . * * *

A client has the right to discharge his or her attorney at any time … . While an attorney who is discharged without cause before the completion of services may recover the reasonable value of his or her services in quantum meruit, an attorney who is discharged for cause is not entitled to any compensation or lien … . Here, the court held a hearing pursuant to 22 NYCRR 603.13(b) with respect to the plaintiff’s cross motion for attorney’s fees. The court determined that the plaintiff was properly discharged for cause, and, therefore, was not entitled to recover in quantum meruit. Siskin v Cassar, 2014 NY Slip Op 07646, 2nd Dept 11-12-14

 

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The Proper Vehicle to Address Fraud Which Is Alleged to Have Tainted a Completed Proceeding Is a Motion to Vacate the Judgment, Not the Institution of a New Plenary Action

The Second Department noted that the remedy for addressing fraud in a completed action is a motion to vacate the judgment in that action, not a new plenary proceeding:

“Generally, a party who has lost a case as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action for damages against the party who adduced the false evidence” … . The “plaintiff’s remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the . . . judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action” … . Stewart v Citimortgage Inc, 2014 NY Slip Op 07648, 2nd Dept 11-12-14

 

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Town Board Is Not a Necessary Party In an Action Against the Town—Acts of the Town Board Under Statutory Authority Are the Acts of the Town—Court’s Power to Join a Necessary Party Sua Sponte Noted (Not Properly Exercised Here)

The Second Department explained that, in a declaratory judgment action against a town challenging a local law, the town board is not a necessary party:

A “court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … . “In a matter seeking a declaratory judgment challenging a legislative act, the legislative body that enacted the challenged law or ordinance is a necessary party” … .

In this declaratory judgment action against the Town of Huntington, challenging a Local Law enacted by the Town Board of the Town of Huntington (hereinafter the Town Board), the Supreme Court, sua sponte, directed the joinder of the Town Board as a defendant on the ground that it is a necessary party without which the action cannot proceed. However, a town board “shall be vested with all the powers of such a town” (Town Law § 60[1]) and “cannot and does not exist separately and independently from the town of which it is the governing body . . . [T]he acts of a town board when performed under statutory authority are the acts of the town” … . Accordingly, as the Town is a party defendant in this action, it was unnecessary for the court to have directed the joinder of the Town Board as a defendant … . Dish Realty LLC v Town of Huntington, 2014 NY Slip Op 07616, 2nd Dept 11-12-14