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DEFENDANT IN THIS PERSONAL INJURY CASE DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE BY SUBMITTING MENTAL HEALTH RECORDS TO THE SENTENCING COURT IN THE RELATED CRIMINAL CASE; THE RECORDS WERE SUBMITTED AS PART OF A MITIGATION REPORT WHICH IS DEEMED “CONFIDENTIAL” PURSUANT TO THE CRIMINAL PROCEDURE LAW; TWO-JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant in this pedestrian-vehicle-accident case was not required to disclose privileged medical (mental health) information which was provided to the sentencing court in the related criminal case as a “mitigation report:”

“CPLR 3121 (a) authorizes discovery of a party’s mental or physical condition when that party’s condition has been placed in controversy” … . Nevertheless, even where a defendant’s mental or physical condition is in controversy, discovery will be precluded if the information falls within the physician-patient privilege and the defendant has not waived that privilege … . Where the physician-patient privilege has not been waived, the party asserting the privilege may “avoid revealing the substance of confidential communications made to [his or] her physician, but may not refuse to testify as to relevant medical incidents or facts concerning [himself or] herself” … .

We agree with defendant that he did not waive the physician-patient privilege by disclosing his mental health information in the sentencing phase of the related criminal proceeding. Here, defendant submitted the mitigation report in the criminal proceeding for the court’s consideration in the determination of an appropriate sentence. Thus, this is not a case where a criminal defendant waived any privilege applicable to that defendant’s mental health records by raising a justification or other affirmative defense to be litigated in the criminal proceeding … . Instead, the mitigation report was prepared for and “submitted directly to the court[] in connection with the question of sentence” and, as a result, the mitigation report is “confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court” (CPL 390.50 [1] …). Johnson v Amadorzabala,, 2022 NY Slip Op 07355, Fourth Dept 12-23-22

Practice Point: The defendant in this personal injury case did not waive the physician-patient privilege by submitting mental health records to the sentencing court in the related criminal case. Under the Criminal Procedure Law, the mitigation report was for the judge’s eyes only and was confidential.

 

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BOTH PLAINTIFF BUS DRIVER AND THE DRIVER OF THE CAR WHICH STRUCK PLAINTIFF’S BUS WERE DEEMED COUNTY EMPLOYEES IN A RELATED PROCEEDING; THEREFORE, PURSUANT TO THE COLLATERAL ESTOPPEL DOCTRINE, WORKERS’ COMPENSATION WAS PLAINTIFF’S EXCLUSIVE REMEDY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the doctrine of collateral estoppel required the dismissal of plaintiff bus-driver’s causes of action against the estate of driver of the car which struck plaintiff’s county bus, and against Jewish Family Services (JFS) for whom the decedent-driver was volunteering at the time of the accident. JFS and the county collaborated on a program to drive senior citizens to medical appointments. Plaintiff sued JFS under a respondeat superior theory. Pursuant to the Workers’ Compensation Law, workers’ compensation benefits were plaintiff’s exclusive remedy because both she and the driver of the car had been deemed county employees in a related action:

A review of the papers supporting [the county’s] cross motion [in the related proceeding] establishes, however, that [the county] focused upon the provisions of Workers’ Compensation Law § 29 (6). Plaintiff thereafter had a full and fair opportunity to respond to that issue, which was discussed at length in the 2019 order. Indeed, Supreme Court … expressly held that the provisions of that statute applied because “both [plaintiff] and Hyde were within the same employ and acting within the scope of employment at the time the alleged injuries occurred, therefore rendering them co-employees which results in workers’ compensation being the exclusive remedy.” Accordingly, under the circumstances of this case, the issue of whether plaintiff and Hyde were coemployees was “actually litigated, squarely addressed and specifically decided” against plaintiff … .

Plaintiff’s claim against JFS is premised upon the theory that JFS exercised sufficient control over Hyde to render it vicariously liable for her negligence. The issue of whether plaintiff and Hyde are coemployees has been resolved against plaintiff with preclusive effect, however, and plaintiff’s exclusive remedy for the negligence of Hyde is therefore workers’ compensation benefits. As noted above, as Workers’ Compensation Law § 29 (6) “deprive[s] the injured employee of a right to maintain an action against a negligent coemployee, [it also] bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided” … . Thus, as “plaintiff[] did not assert any allegation that [JFS] had committed an act constituting affirmative negligence,” the cross motion of JFS for summary judgment dismissing the complaint against it should have been granted … . Bryant v Gulnick, 2022 NY Slip Op 07284, Third Dept 12-22-22

Practice Point: In a related proceeding it was determined that both plaintiff bus driver and the driver of the car which struck plaintiff’s bus were county employees. Therefore, pursuant to the doctrine of collateral estoppel, Workers’ Compensation was plaintiff’s exclusive remedy.

 

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HYDE, THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, LOST CONTROL AND CROSSED INTO THE PATH OF AN ONCOMING COUNTY BUS; HYDE WAS FATALLY INJURED AND PLAINTIFF HAD NO MEMORY OF THE ACCIDENT; THE COUNTY’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT AGAINST THE BUS DRIVER SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing (modifying) Supreme Court in this traffic accident case, determined the complaint against Bryant, the driver of the county bus involved in the accident, should have been dismissed. The driver of the car in which plaintiff was a passenger, Hyde, lost control of the car and crossed into the path of the oncoming bus. Hyde was fatally injured and plaintiff had no memory of the accident:

Bryant stated in her affidavit and deposition testimony that a mixture of snow and ice was falling in the leadup to the accident and that, although the road was coated in snow, she was still able to see the center line and fog lines. Bryant added that she was travelling two to five miles below the speed limit and was comfortable driving the bus in the weather conditions. As for the accident itself, Bryant stated that Hyde’s vehicle entered her lane about 1½ car lengths in front of the bus and that she had a second to react before striking it, as well as that she had “nowhere to go” to evade Hyde’s vehicle and that she lightly applied her brakes in an effort to slow down without losing control of the bus. Plaintiff had no recollection of the accident, and nothing else in the record, including the police accident report, contradicted Bryant’s version of events. Bryant accordingly established that she reacted reasonably when Hyde’s vehicle entered her lane of traffic, and plaintiff’s speculation that Bryant might have been able to avoid the collision had she been driving even further below the speed limit or taken other evasive action despite having “at most, a few seconds to react,” did not raise a question of fact … . Northacker v County of Ulster, 2022 NY Slip Op 07285, Third dept 12-22-22

Practice Point: The only evidence of the accident was that the driver of the car in which plaintiff was a passenger crossed into the path of the oncoming county bus and the bus driver had only a second to react. The county’s motion for summary judgment dismissing the complaint against the bus driver should have been granted.

 

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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE EMERGENCY DOCTRINE SHOULD HAVE BEEN APPLIED TO DISMISS THE COMPLAINT IN THIS CHAIN-REACTION TRAFFIC ACCIDENT CASE; THE FACT THAT IT WAS SNOWING AND THERE WERE ICY ROAD CONDITIONS DID NOT SUPPORT THE APPLICABILIITY OF THE EMERGENCY DOCTRINE AS A MATTER OF LAW (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this chain-reaction traffic accident case, determined there were questions of fact about the weather (snow and ice) and traffic conditions at the time of the accident. Plaintiff was a passenger in the middle car: Supreme Court had dismissed the complaint pursuant to the emergency doctrine:

Striking a vehicle in the rear is negligence as a matter of law absent a sufficient excuse” … . The excuse proffered by defendants here, and accepted by Supreme Court, was that they were confronted with an emergency in the form of sudden snowfall and icy road conditions such that they could not avoid the respective collisions. “[I]n order for a driver to be entitled to summary judgment based upon the emergency doctrine, he or she must demonstrate, as a matter of law, that the emergency situation with which he or she was confronted was not of his or her own making and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision” … . “Whether [a] defendant was presented with an emergency is generally a question of fact” … . In addition, “the emergency doctrine is inapplicable [where a] defendant driver was aware of . . . icy road conditions and should have accounted for them properly” … . “[A] driver is expected to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with [slowing or] stopped vehicles, taking into account weather and road conditions” … . Williams v Ithaca Dispatch, Inc., 2022 NY Slip Op 07278, Third Dept 12-22-22

Practice Point: Although it was snowing and there were icy road-conditions at the time of this chain-reaction traffic accident, the emergency doctrine should not have been applied to dismiss the complaint as a matter of law.

 

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DEFENDANT OUT-OF-POSSESSION LANDLORD WAS NOT RESPONSIBLE FOR MAINTENANCE OF THE STAIRWAY WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this stairway slip and fall case was an out-of-possession landlord who was not responsible for maintenance of the stairway treads:

Article 7(A)(i) of the lease imposed on Cava [the tenant] the obligation to maintain and repair the nonstructural portions of the demised premises … . The testimonial evidence established that Cava, consistent with its obligations under the lease, assumed responsibility over the subject staircase … . Although the lease granted defendants the right to re-enter to make repairs, the stairway condition was not a significant structural or design defect that was contrary to a specific statutory safety provision … . Kamara v 323 Pas Owner LLC, 2022 NY Slip Op 07296, First Dept 12-22-22

Practice Point: The tenant, pursuant to the lease, had assumed responsibility for maintenance of the stairway where plaintiff fell. The defendant out-of-possession landlord was entitled to summary judgment.

 

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ALTHOUGH THE MEDICAL MALPRACTICE ACTIONS WERE TIME-BARRED, THE RELATED WRONGFUL DEATH ACTION, BROUGHT WITHIN TWO YEARS OF DEATH, WAS NOT (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that, although the medical malpractice actions were time-barred, the related wrongful death action, brought within two years of death, was not:

Although the plaintiff denominated the second cause of action as one for “loss of services,” she alleged all the elements necessary to plead a cause of action for wrongful death, including “(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent’s death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal representative of the decedent” … . … [T]he wrongful death cause of action was timely. EPTL 5-4.1 provides that an action for wrongful death “must be commenced within two years after the decedent’s death.” Here, the decedent died on November 9, 2013, and this action was commenced on November 9, 2015. Thus, “the cause of action alleging wrongful death was timely commenced within two years of the decedent’s death, since, at the time of [his] death, [the] cause of action sounding in medical malpractice was not time-barred” … .Proano v Gutman, 2022 NY Slip Op 07253, Second Dept 12-21-22

Practice Point: Here the medical malpractice actions were time-barred, but the related wrongful death actions, brought within two years of death, were not.

 

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THE CRITERIA FOR PIERCING THE CORPORATE VEIL IN THIS PERSONAL INJURY ACTION AGAINST A BAR OWNED AND OPERATED BY A LIMITED LIABILITY COMPANY WERE NOT MET; THE OVER $2,000,000 JUDGMENT AGAINST THE SOLE MEMBER OF THE LLC REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court after a non-jury trial awarding plaintiff over $2,000,000, determined plaintiff was not entitled to pierce the corporate veil to hold defendant Traina, the sole member of defendant limited liability company (LLC), personally liable. Plaintiff brought a personal injury action against the bar owned and operated by the LLC and was awarded a default judgment:

Generally, a member of a limited liability company cannot personally be held liable for any debts, obligations or liabilities of the limited liability company, “whether arising in tort, contract or otherwise” (Limited Liability Company Law § 609[a]). The concept of piercing the corporate veil is an exception to this general rule, permitting, in certain circumstances, the imposition of personal liability on members for the obligations of the limited liability company … . ” … [G]enerally . . . piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation [or LLC] in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the [party seeking to pierce the corporate veil] which resulted in [the party’s] injury” … . * * *

… [A]lthough Traina did not observe all corporate formalities, the evidence established that he ran a real business, with employees, customers, and vendors, and the petitioner presented no evidence that the LLC was undercapitalized or that Traina commingled the assets of the LLC with his own or used corporate funds for personal use … . … w[W]ile the petitioner demonstrated that Traina exercised complete domination and control over the LLC, he failed to show that Traina’s actions, including abandoning certain fixtures and equipment to his landlord, were for the purpose of leaving the LLC judgment proof or to perpetrate a wrong against the petitioner … .  … [P]etitioner did not meet his burden of proof to establish that there was a basis to pierce the corporate veil … . Matter of DePetris v Traina, 2022 NY Slip Op 07232, Second Dept 12-21-22

Practice Point: The criteria for piercing the corporate veil in this personal injury action against a bar owned and operated by a limited liability company were not met. The over $2,000,000 judgment against the sole member was reversed.

 

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DEFENDANT DID NOT UPDATE ITS ADDRESS FILED WITH THE SECRETARY OF STATE FOR SERVICE OF PROCESS AND DID NOT HAVE A REASONABLE EXCUSE FOR DEFAULT IN THIS SLIP AND FALL CASE; HOWEVER, NO REASONABLE EXCUSE NEED BE SHOWN IN A MOTION TO VACATE A DEFAULT PURSUANT TO CPLR 317; DEFAULT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property-owner’s (St. Andrews’) motion to vacate the default judgment in this slip and fall case should have been granted. St. Andrews had not updated its address with the Secretary of State and did not have a reasonable excuse. However a reasonable excuse is not required by CPLR 317:

St. Andrews’s principal demonstrated that he had received a letter notification of plaintiff’s accident before commencement of the action which he forwarded to his insurance broker, but that he never received any further notice until he received the information subpoena. The principal of DP Realty [designated by St. Andrews to receive service of process] also averred that he was unaware of the summons and complaint ever having been received, and therefore it would not have forwarded any papers to St. Andrews. That evidence was sufficient under CPLR 317 to establish St. Andrews’s lack of personal notice of the summons in time to defend. St. Andrews also demonstrated a meritorious defense in that the Yonkers City Code “does not expressly make the landowner liable for failure to perform” the duty to clean snow and ice from the sidewalk, and an abutting landowner is not liable in the absence of such a statute for failure to clear snow, ice and dirt … .

… [P]laintiff demonstrated that St. Andrews never updated its address with the Secretary of State, and thus could not show a reasonable excuse for its default under CPLR 5015(a)(1). However, no showing of a reasonable excuse is required under CPLR 317 … , and it cannot be inferred solely from the failure to update defendant’s address with the Secretary of State that defendant was deliberately avoiding receiving notice … . In light of the strong public policy favoring resolution of cases on their merits … , we find that St. Andrews demonstrated entitlement to vacatur under CPLR 317… . Gomez v Karyes Realty Corp., 2022 NY Slip Op 07187, First Dept 12-20-22

Practice Point: No reasonable excuse for a default need be shown in a motion the vacate the default pursuant to CPLR 317, Here the defendant’s failure to update its address for the service of process with the Secretary of State was not an attempt to avoid service. The motion to vacate the default should have been granted.

 

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THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice case. determined the motion to set aside the verdict as a matter of law should not have been granted. but the motion to set aside the verdict as against the weight of the evidence should have been granted, explaining the difference:

“‘A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In considering such a motion, the facts must be considered in a light most favorable to the nonmovant” … . …

… “[A] motion to set aside a jury verdict as contrary to the weight of the evidence should be granted ‘[o]nly where the evidence so preponderates in favor of the unsuccessful litigant that the verdict could not have been reached on any fair interpretation of the evidence'” … . … “‘Whether a particular factual determination is against the weight of the evidence is itself a factual question. In reviewing a judgment of the Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case'” … . * * *

As to the weight of the evidence, based on the record, we find that the verdict in favor of the plaintiffs could not have been reached on any fair interpretation of the evidence, and must be set aside (see CPLR 4404[a] …). Accordingly, we reverse the judgment, reinstate the complaint, grant that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, and remit the matter to the Supreme Court, Queens County, for a new trial…. . Osorio v New York City Health & Hosps. Corp., 2022 NY Slip Op 07072, Second Dept 12-14-22

Practice Point: When an appellate court determines the verdict should be set aside as against the weight of the evidence in a jury trial it must order a new trial because an appellate court does not have the authority to make new findings of fact in a jury trial.

 

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ALTHOUGH THE RAISED PORTION OF THE SIDEWALK FLAG OVER WHICH PLAINTIFF TRIPPED DID NOT ABUT DEFENDANTS’ PROPERTY SEVERAL FEET OF THE FLAG EXTENDED IN FRONT OF DEFENDANTS’ PROPERTY; THE VILLAGE CODE MANDATES THAT ABUTTING PROPERTY OWNER’S MAINTAIN SIDEWALKS IN A SAFE CONDITION; DEFENDANTS DID NOT SUBMIT ANY EVIDENCE THAT THEY MAINTAINED THE ABUTTING PORTION OF THE SIDEWALK IN A SAFE CONDITION OR THAT ANY FAILURE TO DO SO WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant homeowners were not entitled to summary judgment in this sidewalk slip and fall case. Apparently the raised part of a sidewalk flag over which plaintiff tripped was not in front of defendants’ property, but much of that same flag abutted defendants’ property. Because the village code placed responsibility on the homeowners to keep the sidewalk in a safe condition, in order to warrant summary judgment, the defendants were required to demonstrate they maintained the portion of the sidewalk in front of their property in a reasonable safe condition or that the failure to do so was not a proximate cause of plaintiff’s fall. Defendants offered no evidence on that issue:

While the homeowners demonstrated that the section of the sidewalk containing the defect on which the plaintiff allegedly tripped did not abut their property, their submissions in support of their motion also included evidence that the sidewalk flag on one side of the defect—which was not level with the adjacent flag, resulting in the height differential on which the plaintiff tripped—extended several feet onto their side of the property line. To meet their prima facie burden, the homeowners were “required to do more than simply demonstrate that the alleged defect was on another landowner’s property” … . They were required to make a prima facie showing that they maintained the portion of the sidewalk abutting their own property in a reasonably safe condition, or that any failure to do so was not a proximate cause of the plaintiff’s injuries … . Kuritsky v Meshenberg, 2022 NY Slip Op 07066, Second Dept 12-14-22

Practice Point: Here the village code placed responsibility for maintaining sidewalks in a reasonably safe condition on the abutting property owners. The raised portion of a sidewalk flag over which plaintiff tripped was not in front of defendants’ property. But several feet of that same sidewalk flag extended in front of defendants’ property. To warrant summary the defendants were required to show either that they maintained the portion of the sidewalk which abutted their property in a reasonably safe condition, or that the failure to do so was not the proximate cause of plaintiff’s fall. The defendants presented no evidence on the issue.

 

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