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ORDERS COMPELLING ANSWERS TO DEPOSITION QUESTIONS OR PRECLUDING QUESTIONING ARE NOT APPEALABLE AS OF RIGHT; A REQUEST FOR PERMISSION TO APPEAL AFTER THE APPEAL IS PERFECTED IS GENERALLY DENIED; THE HOSPITAL DID NOT DEMONSTRATE THE SUBJECT MEDICAL RECORDS WERE PRIVILEGED AS PART OF A QUALITY ASSURANCE REVIEW (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined (1) there is no appeal as of right from the denial of a motion to compel a witness to answer deposition questions, (2) there is no appeal as of right from a protective order precluding certain questioning, (3) an appellate court will generally not consider a request for permission to appeal made after the appeal is perfected, (4) the hospital did not demonstrate certain medical records were privileged as part of a quality assurance review:

… [T]he plaintiffs sought leave to appeal after their appeal was perfected. As this Court has repeatedly observed under comparable circumstances, “‘we are disinclined to grant leave to parties who have taken it upon themselves to perfect an appeal without leave to appeal'” … . * * *

Pursuant to Education Law § 6527(3), certain documents generated in connection with the “performance of a medical or a quality assurance review function,” or reports “required by the department of health pursuant to [Public Health Law § 2805-l],” are generally not discoverable … . Nyack Hospital, as the party seeking to invoke the privilege, had the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes … . Nyack Hospital merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached. Martino v Jae Ho Lee, 2023 NY Slip Op 03915, Second Dept 7-26-23

Practice Point: If an order is not appealable as of right (here orders re: compelling answers or precluding questions during deposition), the appellate court will not generally grant permission to appeal after the appeal is perfected.

Practice Point:  Here in this med mal case the hospital did not demonstrate the medical records were privileged as part of a quality assurance review.

 

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AN ATTORNEY’S REFERENCE IN AN EMAIL TO A NONPARTY AS A “WIFE BEATER” WAS ABSOLUTELY PRIVILEGED AS PERTINENT TO THE DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a statement in an email written by an attorney in a divorce action, referring to plaintiff as a wife beater, was pertinent to the divorce action and was absolutely privileged:

The defendant Dina S. Kaplan is an attorney who represented the defendant Eric Dorfman in a divorce action (hereinafter the divorce action). Kaplan allegedly represented to the court in the divorce action, including court personnel, that the plaintiff, an attorney and a nonparty to the divorce action, was the boyfriend of Dorfman’s wife. In an email exchange between Kaplan and Herbert Adler, an attorney representing Dorfman’s wife in the divorce action, Kaplan allegedly made a defamatory statement about the plaintiff, referring to him as a “wife beater . . . who is in criminal prosecution.” In addition to Adler, the email was sent to court personnel and other attorneys. * * *

… [U]nder the extremely liberal test of pertinency, Kaplan’s statement allegedly referring to the plaintiff as a “wife beater . . . who is in criminal prosecution” was pertinent to the divorce action and, thus, is absolutely privileged. The email exchange between Kaplan and Adler was initially focused on a dispute over Dorfman’s financial ability to pay his wife maintenance and child support. The conversation turned, however, to the behavior of the parties to the divorce action while caring for their children, and Kaplan’s statement that the plaintiff is a “wife beater . . . who is in criminal prosecution” was responsive and therefore relevant to the issue of the parties’ behavior … . Under the circumstances, it cannot be said that the statement was “so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” the plaintiff, who was not among the participants in the conversation, was not otherwise mentioned in the email exchange, and was not even directly identified in the statement … . Davidoff v Kaplan, 2023 NY Slip Op 03450, Second Dept 6-28-23

Practice Point: If a defamatory statement made by a divorce attorney is pertinent to the divorce action, the statement is absolutely privileged.

 

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IN THIS DEFAMATION ACTION (1) PLAINTIFF WAS DEEMED A LIMITED PUBLIC FIGURE REQUIRING PROOF OF MALICE; (2) SOME STATEMENTS PROTECTED BY LITIGATION PRIVILEGE, QUESTIONS OF FACT WHETHER OTHER STATEMENTS PROTECTED BY PRE-LITIGATION AND FAIR REPORT PRIVILEGES; (3) AMENDMENTS TO THE ANTI-SLAPP STATUTE APPLY ONLY TO CONDUCT AFTER THE AMENDMENTS WENT INTO EFFECT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissent, reversing the appellate division in this defamation action, determined: (1) plaintiff music producer (Gottwald) is a limited public figure who must prove defendant singer-songwriter (Sebert) was motivated by malice when claiming Gottwald raped her; (2) whether 20 alleged statements are subject to the pre-litigation privilege must be determined by the jury; and (3) the amendments to the anti-SLAPP statute which went into effect during the course of the lawsuit apply only to conduct after the amendments went into effect (the amendments allow certain damages and attorney’s fees). The opinion is far to comprehensive to fairly summarize here:

[Re: plaintiff’s public-figure status:] By 2014, when Gottwald initiated this defamation action, he was, by his own account, a celebrity—an acclaimed music producer who had achieved enormous success in a high-profile career. As self-described in the complaint, he “has written the most Number One songs of any songwriter ever” and “was named by Billboard as one of the top ten producers of the decade in 2009.” … . * * *

[Re: privilege:] Sebert identifies 25 allegedly defamatory statements that she contends cannot serve as the basis for liability because they are protected by one or more of three privileges: the litigation privilege, the pre-litigation privilege, and the statutory fair report privilege under Civil Rights Law § 74.  * * * We agree that questions of fact exist as to the application of the pre-litigation and fair report privileges—those issues must go to a jury—but disagree as to application of the absolute litigation privilege. * * * Because … five statements fall squarely within the purview of the absolute litigation privilege, they ” ‘cannot serve as the basis for the imposition of liability in a defamation action’ ” … . * * *

[Re: anti-SLAPP statute:] Because Gottwald’s liability attached, if at all, when he chose to continue the defamation suit after the effective date of the statute, any potential calculation of attorney’s fees or other damages begins at the statute’s effective date …”. Gottwald v Sebert, 2023 NY Slip Op 03183, CtApp 6-13-23

​Practice Point: In this defamation opinion, the concepts of “limited public figure,” “litigation, pre-litigation and fair report privilege.” and the application of the amendments to the anti-SLAPP statute are discussed in great detail.

 

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THE CAUSES OF ACTION FOR A STIGMA-PLUS 43 USC 1983 VIOLATION AND DEFAMATION SHOULD HAVE BEEN DISMISSED; THE CAUSES OF ACTION WERE BASED UPON A STATEMENT BY THE SCHOOL DISTRICT ACCUSING PLAINTIFF OF DISREGARDING COVID POLICY AND ENDANGERING STUDENTS; PLAINTIFF DID NOT SUFFER ECONOMIC HARM AND THE STATEMENT WAS PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the stigma-plus 42 USC 1983 cause of action and the defamation cause of action should have been dismissed. The action was brought by plaintiff, a school football coach, based upon a letter circulated by the school district accusing plaintiff of disregarding COVID precautions and recklessly exposing students to the virus. Initially the district was not going to renew plaintiff’s contract but ultimately plaintiff was not terminated:

A stigma-plus cause of action requires a plaintiff to establish “(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s status or rights” … . Because a defamatory statement, standing alone, does not amount to a constitutional deprivation, “the ‘plus’ imposed by the defendant[s] must be  specific and adverse action clearly restricting the plaintiff’s liberty—for example, the loss of employment” … . * * *

… [T]he complaint alleges that the District superintendent, whose role included termination of employees like plaintiff, circulated the allegedly defamatory letter. A school superintendent is a principal executive whose statements may be protected by absolute privilege … . Further, based on the allegations in the complaint, we conclude that “the [superintendent] was acting wholly within the scope of his duties” when making the relevant statements  … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2023 NY Slip Op 03102, Fourth Dept 6-9-23

Practice Point: Here a statement that plaintiff school football coach disregarded COVID policy and endangered students did not support the stigma-plus 42 USC 1983 cause of action because plaintiff did not suffer economic harm and did not support the defamation cause of action because the statement was privileged.

 

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DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT PROTECTED BY THE LITIGATION PRIVILEGE IN THIS RELATED ACTION ALLEGING DEFENDANT’S BREACHED A CONFIDENTIALITY AND NONDISPARAGEMENT AGREEMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined defendant’s motion to dismiss the complaint for failure to state a cause of action should not have been granted. The complaint alleged breach of a confidentiality and nondisparagement agreement (TRB Agreement) which stemmed from a trademark infringement and unfair competition action brought by nonparty Reebok. “… [D]efendant and his attorneys allegedly caused anonymous phone calls to be made to Reebok’s counsel stating that defendant possessed information that TRB [plaintiff] ‘intended to copy Reebok from the get-go.’ Defendant’s attorneys also notified Reebok’s counsel that defendant would comply with a subpoena issued to him. Reebok listed defendant as a witness before trial and detailed defendant’s expected testimony, including allegedly false testimony that TRB intended to create a ‘knockoff’ brand infringing on Reebok’s marks. The description of expected testimony also made clear that defendant had breached the TRB Agreement by disclosing information concerning TRB’s operations and information concerning the Reebok litigation:”

The main issue presented on this appeal is whether plaintiffs’ complaint alleges conduct upon which invocation of the absolute litigation privilege would constitute abuse of the privilege such that its protections should not apply or be withdrawn.

Examination of the applicable law, particularly with respect to plaintiffs’ proposed exception to the privilege, demonstrates that the course of conduct alleged implicates a limited exception analogous to that applied in Posner v Lewis (18 NY3d 566 [2012]) to another absolute privilege. Accordingly, where a party engages in an extortion attempt by threatening to provide false testimony in a separate action if their demands are not accepted, and, following rejection, affirmatively reaches out to the extortion target’s adversaries in the separate litigation, indeed offering to provide false testimony in that action, the absolute litigation privilege will not bar the action. TRB Acquisitions LLC v Yedid, 2023 NY Slip Op 01654, First Dept 3-28-23

Practice Point: Here defendant’s offer to provide false testimony in a separate proceeding was not protected by the litigation privilege in this action alleging defendant’s breach of a confidentiality and nondisparagement agreement.

 

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THE RECORDED CONVERSATION BETWEEN THE 15-YEAR-OLD DEFENDANT AND HIS FATHER IN THE POLICE INTERVIEW ROOM IS PROTECTED BY PARENT-CHILD PRIVILEGE AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder convictions, determined the recorded conversation between the 15-year-old defendant and his father in the interview room at the police station was protected by parent-child privilege and should have been suppressed. The defendant had requested a lawyer and the police had left the interview room at the time the conversation was recorded:

We conclude that a parent-child privilege did arise under the circumstances of this case … . The application of the privilege is not dependent on a finding of police misconduct … . … [W]e recognize, as other courts have, that a young defendant will naturally look to a parent “as a primary source of help and advice” …  The statements defendant now seeks to suppress were made in an attempt to utilize his father as such a source of assistance. “It would not be consistent with basic fairness to exact as a price for that assistance, his acquiescence to the overhearing presence of government agents” … . People v Kemp, 2023 NY Slip Op 00776, Fourth Dept 2-10-23

Practice Point: Here the Fourth Department recognized a parent-child privilege and suppressed a recorded conversation between the 15-year-old defendant and his father which took place in the police interview room. The defendant had just requested a lawyer and the police had left the room. But the recording equipment was still operating.

 

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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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THE ALLEGEDLY DEFAMATORY STATEMENTS MADE IN A KOREAN-LANGUAGE CHAT ROOM WERE PROTECTED BY QUALIFIED PRIVILEGE, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statements alleged to be defamatory were protected by qualified privilege. Plaintiff is an organization established to act as a liaison between the Korean-American community and the NYC Police Department. The statements were made in a Korean language chat group where the management of the organization was discussed:

The defendant established, prima facie, that his alleged statements are subject to a qualified privilege. Qualified privilege applies to a statement “when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned” … . Application of the privilege depends on whether “the relation of the parties [is] such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of others” … . Here, the alleged statements were made in a password-controlled, members-only chat group, and involved the management of the members’ organization. Such circumstances fall within the scope of the qualified privilege … .

A plaintiff may defeat the qualified privilege with a showing of either common-law malice (spite or ill will), or actual malice (knowledge of the falsity of the statement or reckless disregard for the truth) … . Here, the plaintiffs failed to submit any evidence that the defendant was motivated by malice alone in making the alleged statements … . They similarly failed to submit any evidence that the defendant knew the alleged statements were false or acted with a reckless disregard for their truth … . Joo Tae Yoo v Choi, 2022 NY Slip Op 06791, Second Dept 11-30-22

Practice Point:  Qualified privilege applies to  an allegedly defamatory statement “when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned” … . Qualified privilege will be defeated if is demonstrated the statements were made with “common law malice” (ill will or spite) or “actual malice (knowledge of the falsity of the statement or reckless disregard for the truth).

 

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SUPREME COURT PROPERLY REFUSED TO QUASH SUPBOENAS ISSUED BY THE OFFICE OF THE ATTORNEY GENERAL (OAG) TO THE TRUMP ORGANIZATION IN THE OAG’S FRAUD INVESTIGATION; THE FACT THAT THERE IS A RELATED CRIMINAL INVESTIGATION DOES NOT PRECLUDE CIVIL DISCOVERY (FIRST DEPT).

The First Department, in this civil investigation by the Office of Attorney General (OAG) into whether the respondent Trump Organization committed fraud in their financial practices and disclosure, Supreme Court properly refused to quash the OAG’s subpoenas seeking depositions and documents. The fact that there is also a criminal investigation does preclude civil discovery:

The existence of a criminal investigation does not preclude civil discovery of related facts, at which a party may exercise the privilege against self-incrimination … .. Individuals have no constitutional or statutory right to be called to testify before a grand jury under circumstances that would give them immunity from prosecution for any matter about which they testify; although subjects of a grand jury proceeding have a statutory right to appear and testify, this right is conditioned upon the witness waiving the right to immunity and giving up the privilege against self-incrimination (CPL 190.50[5] …). The political campaign and other public statements made by OAG about appellants do not support the claim that OAG initiated, or is using, the subpoenas in this civil investigation to obtain testimony solely for use in a criminal proceeding or in a manner that would otherwise improperly undermine appellants’ privilege against self-incrimination … . Neither does the record suggest that, in the absence of a civil investigation, OAG would be likely to grant immunity to appellants — the primary subjects of the criminal investigation — to secure their grand jury testimony. Thus, the subpoenas did not frustrate any right to testify with immunity. Matter of People of the State of New York v Trump Org., Inc., 2022 NY Slip Op 03456, First Dept 5-26-22

Practice Point: This case stems from the Office of Attorney General’s (OAG’s) fraud investigation of the Trump Organization. Supreme Court properly refused to quash the OAG’s subpoenas. The fact that there is a related criminal investigation does not preclude civil discovery. There was no showing the appellants’ privilege against self-incrimination was being undermined by the subpoenas seeking depositions and documents.

 

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PLAINTIFF IN THIS NEGLIGENT-HIRING ACTION AGAINST THE HOSPITAL WHICH EMPLOYED A DOCTOR WHO ALLEGEDLY SEXUALLY ASSAULTED HER AND OTHER PATIENTS SOUGHT DISCOVERY; THE IDENTITIES OF THE OTHER ASSAULTED PATIENTS WERE NOT PROTECTED BY THE DOCTOR-PATIENT PRIVILEGE; PARTY STATEMENTS WERE NOT PROTECTED BY THE QUALITY ASSURANCE PRIVILEGE; AND PLAINTIFF WAS ENTITLED TO THE NAMES OF THE DOCTOR’S COWORKERS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff, who, along with other patients, was allegedly sexually assaulted by a doctor, Newman, employed by defendant hospital (Mount Sinai), was entitled to certain discovery. Plaintiff sought discovery of party statements, incident reports, the identities of the other assaulted patients, and the names of the doctor’s coworkers at the time of each assault. Plaintiff was entitled to documents not protected by the quality assurance privilege. The doctor-patient privilege did not extend to the identities of the other assaulted patients. And the names of the doctor’s coworkers were in a statement prepared by the Health and Human Services Department to which plaintiff was entitled:

We reject Mount Sinai’s assertion that privilege excuses it from complying with plaintiff’s discovery demands regarding the identities of the other three patients that defendant Newman assaulted. The doctor-patient privilege provided for by CPLR 4504(a) protects information relevant to a patient’s medical treatment, but the privilege does not cover incidents of abuse not part of a patient’s treatment … . Moreover, while the court stated that disclosure would violate HIPAA, federal regulations provide for disclosure of HIPAA-protected documents subject to a showing that the party seeking disclosure has made a good faith effort to secure a qualified protective order, and plaintiff has done so in each of her motions (45 CFR 164.512[e][ii], [v] …).

… [T]he identities of defendant Newman’s coworkers at the times of each of the assaults are relevant and must be disclosed, as those coworkers may have information concerning his conduct … . The names of the coworkers were contained in a statement of deficiencies prepared by Department of Health and Human Services, Center for Medicare and Medicaid Services, and plaintiff is entitled to production of that statement, redacted to remove conclusions of law and opinions of the Department of Health and Human Services … . Newman v Mount Sinai Med. Ctr., Inc., 2022 NY Slip Op 03327, First Dept 5-19-22

Practice Point: Here plaintiff was allegedly sexually assaulted by a doctor who pled guilty to assaulting other patients. Plaintiff sued the hospital which employed the doctor under a negligent hiring and retention theory. The names of the other assaulted patients were not protected by the physician-patient privilege. Party statements were not protected by the quality assurance privilege. And plaintiff was entitled to the names of the doctor’s coworkers.

 

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