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NEGLIGENCE, BREACH OF CONTRACT AND DISCRIMINATION CLAIMS BROUGHT BY A DISABLED FORMER POLICE OFFICER CONCERNING GENERAL MUNICIPAL LAW 207-c BENEFITS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department affirmed the grant of summary judgment to all defendants in this action by a disabled former police officer concerning claims for General Municipal Law 207-c benefits:

With respect to the City defendants, … we conclude that the court properly dismissed the negligence and gross negligence causes of action against them inasmuch as they were entitled to governmental function immunity based on the discretion they are afforded in administering payments of General Municipal Law § 207-c benefits … . Although plaintiff’s negligence and gross negligence causes of action involved the health care services that he was receiving, the City defendants were engaged in a governmental function because they were merely administering the payment of General Municipal Law § 207-c benefits, i.e., they did not actually provide plaintiff with health care services ;;; . Moreover, the City defendants were entitled to immunity inasmuch as the administration of section 207-c benefits involved the exercise of their discretion and the record establishes that the City defendants denied payment of the disputed claims for benefits after actually exercising this discretion … .

… Plaintiff was not a party to the contracts between [the remaining] defendants and City defendants, and therefore liability may be established where, inter alia, “the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Here, the undisputed evidence established that the [defendants] did not have authority to deny payment of plaintiff’s claims for General Municipal Law § 207-c benefits. That authority rested, at all relevant times, with the City defendants. Thus, it cannot be said that these defendants launched any “instrument of harm” because they never made the decision to deny any of plaintiff’s claims for payment of medical care and treatment. …

… [W]e note that plaintiff, as a public employee, may not sue his employer under Title II of the ADA and the Rehabilitation Act, as plaintiff has done here … . Where, as here, plaintiff’s causes of action are “related to the terms, conditions and privileges of his employment[, i.e., his entitlement to benefits under General Municipal Law § 207-c, they] are covered by Title I” and not Title II of the ADA or the Rehabilitation Act … . Vassenelli v City of Syracuse, 2019 NY Slip Op 05878, Fourth Dept 7-31-19

 

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DOCTOR’S REPORTING PLAINTIFFS’ CHILD’S INJURIES TO CHILD PROTECTIVE SERVICES IS PROTECTED BY THE QUALIFIED IMMUNITY PROVISION IN THE SOCIAL SERVICES LAW, PLAINTIFFS’ DEFAMATION ACTION SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant doctor’s (Bludorn’s) and hospital’s motion for summary judgment in this defamation case should have been granted. The injury to plaintiffs’ child had been reported to Child Protective Services which ultimately determined the report to be unfounded:

Social Services Law § 413 requires certain individuals, including physicians like Bludorn, to make a child protective report whenever “they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child.” Where these mandated reporters discharge their reporting duties in good faith, they are accorded qualified immunity from civil liability (see Social Services Law § 419). A mandated reporter’s good faith “shall be presumed, provided [that] such person . . . was acting in the discharge of [his or her] duties and within the scope of [his or her] employment, and . . . such liability did not result from the willful misconduct or gross negligence of such person” … . “The reporting requirements [that] trigger the qualified immunity provision in Social Services Law § 419 are not predicated upon actual or conclusive proof of abuse or maltreatment. Rather, immunity attaches when there is reasonable cause to suspect that the infant might have been abused and when the party so reporting has acted in good faith in discharging the obligations and duties imposed by the statute” … . …

The child’s medical records and the social worker’s written assessment confirmed that plaintiffs had expressed uncertainty as to what had caused the child’s skull fracture and that they had offered two different possible explanations, both of which involved incidents that had occurred several days before they sought medical treatment for the child. Bludorn averred that he made the child protective report in good faith and that, in so reporting, he had no intent other than discharging his statutory duties under Social Services Law § 413 and protecting the interests of his patient. Hunter v Lourdes Hosp., 2019 NY Slip Op 05831, Third Dept 7-25-19

 

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STATEMENTS POSTED ON AN ELECTION-RELATED FACEBOOK PAGE ABOUT THE OPPOSING CANDIDATE ARE NOT SHIELDED BY IMMUNITY AND ARE ACTIONABLE IN THIS DEFAMATION CASE; TO APPEAL THE DENIAL OF A MOTION TO STRIKE PORTIONS OF A COMPLAINT A MOTION FOR LEAVE TO APPEAL MUST BE MADE (THIRD DEPT).

The Third Department determined statements posted on an election-related Facebook page by defendant, a Sheriff running for County Executive, concerning plaintiff, a Deputy County Executive also running for County Executive, were actionable in this defamation case. The court noted that the defendant’s appeal of the denial of his motion to strike certain paragraphs of the complaint (CPLR 3024) was not before the court because a motion for leave to appeal had not been made (CPLR 5701 [b] [3]):

… [W]e reject defendant’s contention that he is shielded from liability due to absolute immunity. This immunity protects government officials, such as defendant, “with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . As such, plaintiff cannot maintain a defamation claim against defendant based upon statements “emanating from official reports and communications” … . Although defendant was commenting about an investigation being conducted by his office, as well as responding to attacks on the credibility of his office, the documentary evidence in the record establishes that the challenged statements were not posted on the official site of the Chemung County Sheriff. Rather, they were posted on defendant’s campaign Facebook page and another Internet website. Under these circumstances, defendant cannot rely on absolute immunity … .

… The statement that plaintiff was “pilfering free gas from taxpayers” is “susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior” … . Such statement also “has a precise meaning that is capable of being proven true or false” … . …

The complaint alleged that defendant published the false statements and that they “were made in bad faith, with reckless disregard for the truth” and “tend[ed] to subject plaintiff to public contempt, ridicule, aversion, and disgrace.” In view of these allegations, as well as the specific statements at issue, we are satisfied that plaintiff sufficiently pleaded malice … . Krusen v Moss, 2019 NY Slip Op 05733, Third Dept 7-18-19

 

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THE CITY’S STUDIES OF THE INTERSECTION WHERE INFANT PLAINTIFF WAS STRUCK BY A CAR WERE DONE IN THE SUMMER WHEN NO SCHOOL CHILDREN USED THE INTERSECTION, THEREFORE THE CITY WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE DOCTRINE OF QUALIFIED IMMUNITY, THE STUDIES HAD CONCLUDED NO TRAFFIC CONTROL DEVICE WAS NECESSARY, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the city’s motion for summary judgment in this intersection pedestrian traffic accident case should not have been granted. Infant plaintiff, the eight years old, attempted to cross the street, Avenue J, to get on his school bus when he was struck by a vehicle. The city submitted evidence that a studies of the intersection had been done which found that no traffic control device was required. Therefore, the city argued, and Supreme Court agreed, it was entitled to qualified immunity precluding suit:

… [I]n the field of traffic design engineering, the [governmental body] is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the doctrine of qualified immunity, a governmental body may not be held liable for a highway safety planning decision unless its study of the traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan . Immunity will apply only “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the City failed to sustain its prima facie burden on the issue of qualified immunity. The City established that, in response to citizen complaints, it had conducted studies of the subject intersection in 2005 and 2007 and concluded that no traffic control device on Avenue J was warranted. However, the City did not establish that those studies, which took place in the summertime, were conducted at times when the subject schools were in session. The City also failed to establish that the studies addressed the specific concern of schoolchildren crossing Avenue J to reach awaiting buses and, thus, did not establish that it had entertained and passed on the very same question of risk that is at issue in this case … . Tyberg v City of New York, 2019 NY Slip Op 05177, Second Dept 6-26-19

 

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INCLUSION OF CLAIMANT’S PHOTOGRAPH ON A WALL OF SHAME DEPICTING PERSONS ARRESTED DURING OPERATION SAFE INTERNET, AN INVESTIGATION INTO THE USE OF THE INTERNET FOR THE SEXUAL EXPLOITATION OF CHILDREN, CONSTITUTED ACTIONABLE DEFAMATION BY IMPLICATION SUPPORTING A $300,000 DAMAGES AWARD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the Court of Claim’s decision awarding claimant $300,000 in this defamation-by-implication action against the state was supported by the evidence. Claimant had been arrested during Operation Safe Internet, but only because of the alleged Internet communication by claimant’s roommate. Claimant was arrested solely for possession of drugs and his case was subsequently adjourned in contemplation of dismissal and ultimately dismissed with the record sealed. In a televised news conference about an initiative to “investigate and prosecute crimes involving the online sexual exploitation of children, ” under a sign saying “Internet Crimes Against Children,” claimant’s photograph was one of 61 on a “wall of shame” depicting those who had been arrested during the investigation:

… [W]e now adopt a two-part test to determine whether the first element is met in causes of action alleging defamation by implication, requiring proof (1) that the language of the communication as a whole reasonably conveys a defamatory inference, and (2) that such language affirmatively and contextually suggests that the declarant either intended or endorsed the inference … . * * *

… [W]ithout providing more information to the public regarding the underlying facts of claimant’s case, to a reasonable viewer, the communication as a whole falsely implied that claimant, whose photograph was on the wall of shame, had engaged in a sexual crime against a child … . * * *

… [W]e find that claimant has established that the context of defendant’s communication as a whole can be reasonably read to affirmatively suggest that defendant intended or endorsed the defamatory inference that claimant was arrested for a crime involving the online sexual exploitation of a child  … . In fact, the very placement of claimant’s photo in the array strongly suggested to the public that defendant intended and endorsed the message that claimant belonged on the “wall of shame” because of his fictional crime against children. Further, the use of a small, unreadable label listing the crime for which claimant was actually arrested, which was the particular manner in which the true facts were conveyed, supplied “additional, affirmative evidence suggesting that the defendant intend[ed] or endorse[d] the defamatory inference” that claimant had been arrested for a crime involving the sexual exploitation of a child … . Partridge v State of New York, 2019 NY Slip Op 03715, Third Dept 5-9-19

 

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QUESTION OF FACT WHETHER THE RECKLESS STANDARD APPLIED IN THIS PEDESTRIAN-POLICE CAR ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact whether the reckless standard applied in this pedestrian-police car traffic accident case. The court noted that the governmental function immunity doctrine does not apply to this scenario:

The governmental function immunity doctrine does not apply in this case where plaintiff pedestrian was injured when she was struck by a police vehicle that was allegedly pursuing a vehicle that had committed a traffic infraction … . Instead, where a plaintiff alleges that a municipality and/or its employees were negligent in the ownership or operation of an authorized emergency vehicle while engaged in one of the activities protected by Vehicle and Traffic Law § 1104(b), the “reckless disregard” standard set forth in Vehicle and Traffic Law § 1104(e) applies … .

Here, a factual issue exists as to whether defendants were engaged in a protected activity under Vehicle and Traffic Law § 1104(b), namely, proceeding past a steady red signal (see Vehicle and Traffic Law § 1104[b][2]), while pursuing a vehicle for a traffic violation so as to apply the reckless standard of care as opposed to ordinary negligence principles … . Santana v City of New York, 2019 NY Slip Op 01348, First Dept 2-26-19

 

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POLICE DOG RELEASED TO TRACK SUSPECTS WENT OUT OF THE HANDLER’S SIGHT AND BIT PLAINTIFF, 42 USC 1983, NEGLIGENCE AND BATTERY ACTIONS SURVIVED SUMMARY JUDGMENT, QUESTION OF FACT WHETHER POLICE OFFICER ENTITLED TO QUALIFIED IMMUNITY, CITY ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE PROFESSIONAL JUDGMENT RULE (THIRD DEPT).

The Third Department determined several causes of action property survived summary judgment in this case where a police officer (Ashe) released his K-9 partner (a trained police dog named Elza) which bit plaintiff as he was walking to his car. After Elza was released she ran out of Ashe’s sight. Ashe was attempting to use Elza to track suspects who had just robbed a gas station. The Third Department held, inter aliia, that the 42 USC 1983 action properly survived summary judgment, Ashe was not entitled to qualified immunity as a matter of law, the battery action properly survived summary judgment, and the city was entitled to summary judgment on the common-law negligence action based on the professional judgment rule:

There is at least a question of fact as to whether a reasonable police officer, aware that the dog could not differentiate a suspect from an innocent bystander, would allow the dog to search off leash and out of sight of the handler. Moreover, the record contains evidence from which a jury could find that the City “fail[ed] to train its employees in a relevant respect [that] evidences a deliberate indifference to the rights of its inhabitants[, which] can . . . be properly thought of as a city policy or custom that is actionable under [42 USC] § 1983” … . …

… [P]laintiffs’ expert … opined in his affidavit that Ashe failed to comply with standard police practice, including keeping the K-9 within visual range and providing audible warnings. Based on the foregoing, there are triable issues of fact that preclude summary judgment on the issue of Ashe’s entitlement to qualified immunity … . …

… [T]he City was entitled to dismissal of the common-law negligence claims based on the professional judgment rule. ” That rule ‘insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions’ … . Relf v City of Troy, 2019 NY Slip Op 01287, Third Dept 2-21-19

 

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STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT’S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the state was entitled to qualified immunity in this motorcycle-car accident case. Claimant's decedent was killed when his motorcycle struck a car, driven by Carranca, as Carranca entered Sunrise Highway and crossed three lanes of traffic. Claimant's decedent alleged negligent design of the roadway. However the state had commissioned a study of the area which found no safety concerns and claimant's decedent's expert did not fault the study:

“To establish its entitlement to qualified immunity, the governmental body must demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process. A municipality is entitled to qualified immunity where a governmental planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the State submitted the Urbitran Report as evidence that it had studied the intersection at issue, as part of a larger study of a 1.2-mile stretch of Sunrise Highway. The Urbitran Report considered safety conditions and accident history, traffic volumes, “speeds and delay studies,” and traffic control devices. The State concluded that no additional safety measures were necessary regarding the right turn from Old Sunrise Highway onto eastbound Sunrise Highway. The claimant's expert conceded that the Urbitran Report found no safety problems with traffic from Old Sunrise Highway merging with eastbound Sunrise Highway, and further conceded that she found no deficiencies with the Urbitran Report. The subsequent placement of a traffic light at the intersection for reasons other than preventing the type of accident that occurred in this case does not affect the State's entitlement to qualified immunity for decisions pertaining to the right turn from Old Sunrise Highway onto eastbound Sunrise Highway. Iovine v State of New York, 2018 NY Slip Op 06723, Second Dept 10-10-18

COURT OF CLAIMS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/IMMUNITY (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/NEGLIGENCE (HIGHWAY DESIGN,  STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/HIGHWAYS AND ROADS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENT HIGHWAY DESIGN, STATE WAS ENTITLED TO QUALIFIED IMMUNITY IN THIS NEGLIGENT HIGHWAY DESIGN CASE, CLAIMANT'S DECEDENT WAS KILLED WHEN HIS MOTORCYCLE STRUCK A CAR WHICH CROSSED THREE LANES OF TRAFFIC (SECOND DEPT))

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ALTHOUGH DISCLOSURE OF INSURER’S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT).

The Fourth Department, reversing Supreme Court, determined that complete disclosure of a supplemental underinsured motorist (SUM) file should not have been ordered in this traffic accident case. The court noted that Lalka v ACA Ins.Co., 128 AD3d 1508 (4th Dept 2015), to the extent that it held that disclosure is allowed only up to the date of commencement of an action, should no longer be followed. However, the proper procedure is the creation of a privilege log followed by in camera review:

… [D]efendant's motion for a protective order was based upon the assertion that any documents contained in the claim file after the date of commencement were materials protected from discovery. Thus, the sole issue on appeal is whether defendant met its burden of establishing that those parts of the claim file withheld from discovery contain material that is protected from discovery. We conclude that defendant did not meet that burden.

To the extent that Lalka … holds that any documents in a claim file created after commencement of an action in a SUM case in which there has been no denial or disclaimer of coverage are per se protected from discovery, it should not be followed. Rather, a party seeking a protective order under any of the categories of protected materials in CPLR 3101 bears “the burden of establishing any right to protection” … . ” [A] court is not required to accept a party's characterization of material as privileged or confidential' “… . Ultimately, “resolution of the issue whether a particular document is . . . protected is necessarily a fact-specific determination . . . , most often requiring in camera review' ” … .

Here, we conclude that defendant failed to meet its burden inasmuch as it relied solely upon the conclusory characterizations of its counsel that those parts of the claim file withheld from discovery contain protected material. We nonetheless further conclude that, under the circumstances of this case, the court abused its discretion by ordering the production of allegedly protected documents and instead should have granted the alternative relief requested by defendant, i.e., allowing it to create a privilege log pursuant to CPLR 3122 (b) followed by an in camera review of the subject documents by the court … . Rickard v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 06333, Fourth Dept 9-27-18

CIVIL PROCEDURE (ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/CPLR 3101, 3122  (ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/INSURANCE LAW (CIVIL PROCEDURE, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/SUPPLEMENTAL UNDERINSURED MOTORIST (SUM)  (CIVIL PROCEDURE, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/TRAFFIC ACCIDENTS (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/PRIVILEGE (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/EVIDENCE (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))/IMMUNITY  (CIVIL PROCEDURE, INSURANCE LAW, ALTHOUGH DISCLOSURE OF INSURER'S SUPPLEMENTAL UNDERINSURED MOTORIST (SUM) FILE IS NOT LIMITED TO THE TIME BEFORE THE COMMENCEMENT OF THE ACTION, THE ORDER TO DISCLOSE THE WHOLE FILE WAS IMPROPER, A PRIVILEGE LOG SHOULD BE CREATED FOLLOWED BY AN IN CAMERA REVIEW (FIRST DEPT))

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LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER’S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that legal documents, bills for legal services, and an insurance carrier's file were not subject to disclosure. All the documents were protected by attorney-client privilege or conditional immunity. The underlying medical malpractice action was against defendant Louis Lasky Memorial Medical and Dental Center and defendant Frederick Ast. The documents were requested by Ast in a proceeding to determine the amount of the settlement to be attributed to Louis Lasky and Ast:

With respect to the files maintained by Louis Lasky's attorneys, the only documents contained therein that have not already been disclosed are absolutely protected by CPLR 3101(b) and (c), as they are “primarily and predominately legal in nature and, in their full content and context, were made to render legal advice or services” to Louis Lasky … . Regarding the legal bills, it was improper for the court to order Louis Lasky to produce unredacted copies because such disclosure would reveal factual investigation and legal work done by counsel, which is privileged material … . As for the insurance carrier's file, the court correctly concluded that this file is protected by a conditional immunity, as it contained material prepared for litigation … . However, the court erred in finding that Ast met his burden of demonstrating that he had a “substantial need” for the materials in the carrier's file, and that he could not obtain their “substantial equivalent” by other means “without undue hardship” (CPLR 3101[d] …). Teran v Ast, 2018 NY Slip Op 06288, Second Dept 9-26-18

CIVIL PROCEDURE (DISCLOSURE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/ATTORNEYS (PRIVILEGE, IMMUNITY, DISCLOSURE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/PRIVILEGE (ATTORNEY-CLIENT, DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/CPLR 3101  (DISCLOSURE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/IMMUNITY (INSURER'S FILE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))/INSURANCE LAW (DISCLOSURE, INSURER'S FILE, ATTORNEYS, LEGAL DOCUMENTS, BILLS FOR LEGAL SERVICES AND AN INSURER'S FILE PROTECTED BY ATTORNEY-CLIENT PRIVILEGE OR CONDITIONAL IMMUNITY, SUPREME COURT SHOULD NOT HAVE ORDERED DISCLOSURE (SECOND DEPT))

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