Privilege – Page 7 – New York Appellate Digest

REMARKS ALLEGED TO BE DEFAMATORY REFLECTED THE RESULTS OF A JUDICIAL PROCEEDING AND WERE THEREFORE PRIVILEGED PURSUANT TO CIVIL RIGHTS LAW 74 (FIRST DEPT).

The First Department determination the complaint alleging defamation causes of action against attorneys who had been interviewed about litigation involving plaintiff and Elizabeth Etling, whom the defendant attorneys represented. The court held that the remarks alleged to be defamatory were either protected descriptions of judicial determinations in the case or were otherwise not actionable. With respect to the Civil Rights Law privilege, the court wrote:

Defendants’ comment about plaintiff’s “massive spoliation” or “spoliation in droves” is protected under Civil Rights Law § 74 as a fair and true report, even if the Delaware Chancery Court did not use defendants’ exact words in its decision… . The court concluded that plaintiff had intended and attempted to destroy “a substantial amount of information,” and detailed plaintiff’s responsibility for the deletion, in violation of court order, of approximately 41,000 files from his computer. Plaintiff argues that defendants overstated the matter, because his spoliation proved largely reversible. Indeed, of the 41,000 files deleted, 1,000 were permanently destroyed. However, plaintiff did not cause the recovery of the data; rather, it occurred in spite of him. Moreover, he lied under oath about his spoliating conduct. As the court observed, an unsuccessful spoliator is still a spoliator… .

Defendants’ comment that plaintiff was “holding Elting hostage” is protected under Civil Rights Law § 74. During the interviews at issue, defendants cited the section of the post-trial decision in which the court used similar language in summarizing Elting’s position … . Defendants’ statement that “no rational person would ever want to partner with [plaintiff],” which is nearly a verbatim quotation from the court’s decision, is protected under the statute. Shawe v Kramer Levin Naftalis & Frankel LLP, 2018 NY Slip Op 08550, First Dept 12-13-18

December 13, 2018

Evidence, Negligence, Privilege

PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPT DECIDED NOT TO FOLLOW THE 2ND DEPT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over an extensive two-justice dissenting opinion, determined that the plaintiff in this traffic accident case did not place her prior knee injuries in controversy and the defendants’ demand for the related medical authorizations should not have been granted. The First Department held plaintiff had not waived her patient-physician privilege regarding the knee injuries. Plaintiff had alleged injury to her back, neck and shoulder, but had also alleged a loss of enjoyment of life, including her inability to wear heels. Defendants argued that her prior knee injury and surgery were relevant to those same issues. The First Department decided not to follow the 2nd Department’s contrary holding:

Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder. Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident. * * *

Defendants cite to [2nd] Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The [2nd] Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries” … .

We are not persuaded by the reasoning of the [2nd] Department. In our view, the [2nd] Department’s precedent cannot be reconciled with the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy. Brito v Gomez, 2018 NY Slip Op 08105, First Dept 11-27-18

NEGLIGENCE (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/TRAFFIC ACCIDENTS (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/EVIDENCE (NEGLIGENCE, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PATIENT-PHYSICIAN PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))

November 27, 2018

Civil Rights Law, Defamation, Privilege

STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT).

The Second Department determined the defamation action against a newspaper was properly dismissed. A newspaper article about plaintiff’s divorce referred to plaintiff’s criminal conviction stemming from a “boiler room” penny-stock operation and stating that plaintiff “tried to use his old tricks to swindle his estranged wife out of millions of dollars…”. Plaintiff stock operation inspired the movie “Boiler Room:”

“Civil Rights Law § 74 is an affirmative defense to a claim of defamation” … . That section provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding” (Civil Rights Law § 74). The privilege afforded by this statute is absolute “and is not defeated by the presence of malice or bad faith” … . “This absolute privilege applies only where the publication is a comment on a judicial, legislative, or other official proceeding . . . and is a fair and true’ report of that proceeding” … .

As to the threshold requirement that the publication purport to comment on a judicial, legislative, or other official proceeding, if the context in which the statements are made makes it impossible for the ordinary viewer, listener, or reader to determine whether the defendant was reporting on a judicial or other official proceeding, the absolute privilege does not apply … .

As to the requirement that the publication be a fair and true report of the official proceeding, the Court of Appeals has recognized that “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality” … . Accordingly, “[w]hen determining whether an article constitutes a fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision”… . Rather, “[f]or a report to be characterized as fair and true’ within the meaning of the statute, thus immunizing its publisher from a civil suit sounding in libel, it is enough that the substance of the article be substantially accurate”… .

Here, the subject newspaper article explicitly stated that it was describing the divorce action commenced against the plaintiff by his former wife … . Furthermore, the defendants’ documentary evidence established, as a matter of law, that the disputed language in the newspaper article was a “fair and true” report of the factual findings made in the divorce action … . Contrary to the plaintiff’s contention, “the inaccuracies cited by the plaintiff were not so egregious as to remove the article from the protection of Civil Rights Law § 74” … . Gillings v New York Post, 2018 NY Slip Op 07413, Second Dept 11-7-18

DEFAMATION (STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))/CIVIL RIGHTS LAW (DEFAMATION, STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))/PRIVILEGE (DEFAMATION, STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))/NEWSPAPER (DEFAMATION, STATEMENTS IN A NEWSPAPER ARTICLE ABOUT PLAINTIFF’S DIVORCE WHICH REFERRED TO PLAINTIFF’S CONVICTION STEMMING FROM A BOILER ROOM PENNY STOCK OPERATION WERE ABSOLUTELY PRIVILEGED UNDER THE CIVIL RIGHTS LAW (SECOND DEPT))

November 7, 2018

Attorneys, Civil Procedure, Evidence, Immunity, Insurance Law, Privilege

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))

September 28, 2018

Attorneys, Civil Procedure, Immunity, Insurance Law, Privilege

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))

September 26, 2018

Defamation, Privilege

STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants' motion for summary judgment in this defamation and injurious falsehood action should have been granted. The allegedly defamatory statements were made by defendant Dimino who was hired to assess the reasons for gas leaks at a school. The defendant concluded the gas leaks were the result of improper installation of the gas lines by plaintiff. Plaintiff was thereafter prohibited from doing any further school-related work for five years. The statements made about plaintiff's work were deemed protected by qualified common-interest privilege:

… [T]he defendants made a prima facie showing that the challenged statements were protected by the qualified common-interest privilege … . The evidence in the record demonstrated that the letter, which does not reference the plaintiff by name, was written by Dimino at the request of the DOE [Department of Education], and that the defendants did not identify the plumbing company that installed the gas piping at the school. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements were motivated solely by malice … . ” Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege'”… . Although the plaintiff disputes that its workmanship was poor and that it used lamp wick in the gas pipes at the school, the plaintiff failed to submit sufficient evidence to support its claims that the defendants made the statements for the purposes of justifying the cost of their repair work and eliminating the plaintiff as a competitor.

For these same reasons, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging injurious falsehood. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants made false statements, maliciously and with the intent to harm it, or recklessly and without regard to their consequences … . In addition, the defendants established, prima facie, that they did not tortiously interfere with the plaintiff's business relations. In opposition, the plaintiff failed to raise a triable issue of fact as to whether Dimino made the alleged defamatory statements in the letter for the sole purpose of harming the plaintiff or by using unlawful means … . Franco Belli Plumbing & Heating & Sons, Inc. v Dimino, 2018 NY Slip Op 06083, Second Dept 9-19-18

DEFAMATION (STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))/PRIVILEGE (DEFAMATION, STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))/QUALIFIED PRIVILEGE (DEFAMATION, STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, STATEMENTS ABOUT PROBLEMS WITH THE INSTALLATION OF GAS LINES MADE BY DEFENDANT WHO WAS HIRED TO FIND THE CAUSE OF THE GAS LEAKS PROTECTED BY QUALIFIED COMMON-INTEREST PRIVILEGE (SECOND DEPT))

September 19, 2018

Civil Procedure, Defamation, Privilege

DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT).

The Second Department determined the defamation action, based upon a complaint made to the Society for the Prevention of Cruelty to Animals (SPCA) was properly dismissed. The complaint did not include the allegedly defamatory statement (a pleading failure) and the statement enjoyed qualified privilege. A remark posted on the Internet, which stated that defendant (Studer) had “seen and heard” horror stories about plaintiffs' treatment of animals, was nonactionable opinion:

… [W]ith respect to the plaintiffs' contention that Studer was liable for defamation based on the statements she made to the SPCA, since the amended complaint failed to set forth “the particular words complained of,” that branch of Studer's motion which was for summary judgment dismissing so much of the defamation cause of action as was based on those statements should have been granted (CPLR 3016[a]…). In any event, the record supports the Supreme Court's determination that Studer demonstrated, prima facie, that the allegedly defamatory statements enjoyed a qualified privilege. Protection from defamation is afforded where the person making the statements does so fairly “in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned” … Here, since the evidence establishes that Studer made the statements to the SPCA in a good faith effort to obtain the aid of a law enforcement agency in addressing a potentially unsafe environment which children in her community frequented, the statements are subject to a qualified privilege … . …

We also agree with the Supreme Court's determination to reject the plaintiffs' contention that Studer was liable for defamation based on the Internet post. Studer established, prima facie, that this post constituted a nonactionable expression of opinion inasmuch as it consisted of imprecise, subjective characterizations which could not be objectively verified … . New York Horse Rescue Corp. v Suffolk County Socy. for the Prevention of Cruelty to Animals, 2018 NY Slip Op 05934, Second Dept 8-29-18

DEFAMATION (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/CIVIL PROCEDURE (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/CPLR 3016 (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))/PRIVILEGE (DEFAMATION PLEADING INSUFFICIENT, STATEMENT ENJOYED QUALIFIED PRIVILEGE, INTERNET POST WAS NONACTIONABLE OPINION (SECOND DEPT))

August 29, 2018

Attorneys, Civil Procedure, Privilege

CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT).

The First Department, over a concurring memorandum, defined the procedure for determining whether opposing counsel can be deposed. Counsel had requested a protective order prohibiting the deposition. The matter was remanded for a ruling based upon the criteria described as follows:

… [D]efendants’ counsel has made a prima facie showing that the material sought is irrelevant and/or that the process is not calculated to lead to legitimate discovery, whether because the information sought is privileged or because the true purpose of the subpoena is solely to disqualify him. …

… [W]e remand this matter to the motion court for further proceedings to determine whether plaintiffs have shown that the information they seek in deposing defendants’ counsel is material and necessary… , that they have a good faith basis for seeking it … , and that the information is not available from another source. Should the motion court allow the deposition to proceed, it should be without prejudice to counsel’s objection to specific questions to the extent that the answers would reveal information that is privileged or otherwise protected from discovery (CPLR 3101). Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 2018 NY Slip Op 05624, First Dept 8-2-18

CIVIL PROCEDURE (CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/PRIVILEGE (ATTORNEY-CLIENT, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/ATTORNEYS (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/DISCOVERY (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))/PROTECTIVE ORDER (DEPOSITION OF OPPOSING COUNSEL, CRITERIA FOR DETERMINING WHETHER A PROTECTIVE ORDER PROHIBITING THE DEPOSITION OF OPPOSING COUNSEL SHOULD BE GRANTED EXPLAINED, MATTER REMANDED (FIRST DEPT))

August 2, 2018

Civil Rights Law, Defamation, Privilege

DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined defendant publisher (Bloomberg) was not entitled to dismissal of a defamation action based upon the publication of articles about police investigations of a Hong Kong investment company. The court found that the Civil Rights Law privilege for reporting on a judicial proceeding could not be applied as a matter of law at the pre-discovery stage:

New York Civil Rights Law § 74 states, in pertinent part: “A civil action cannot be maintained . . . for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” Here, we disagree with the Supreme Court’s determination that the privilege is inapplicable to reporting on foreign official proceedings … . Nevertheless, we agree with the court’s denial of that branch of Bloomberg’s motion which was to dismiss pursuant to CPLR 3211(a)(7), inasmuch as the challenged statements were not privileged under Civil Rights Law § 74. When the challenged statements are viewed in context, it cannot be said as a matter of law that the statements provide a substantially accurate reporting of the two police investigations … . Moreover, we agree with the court’s determination that the plaintiff, at this pre-discovery stage, adequately alleged the element of gross irresponsibility … . Stone v Bloomberg L.P., 2018 NY Slip Op 05515, Second Dept 7-25-18

DEFAMATION (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))/CIVIL RIGHTS LAW (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))/PRIVILEGE (DEFAMATION ACTION PROPERLY SURVIVED PRE-DISCOVERY MOTION TO DISMISS, APPLICABILITY OF THE CIVIL RIGHTS LAW PRIVILEGE FOR REPORTING ON A JUDICIAL PROCEEDING NOT DEMONSTRATED AS A MATTER OF LAW (SECOND DEPT))

July 25, 2018

Attorneys, Privilege

MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT).

The Third Department determined that a medical journal kept by plaintiff’s decedent after an injury at the direction of her attorney was protected by attorney-client privilege, where as a record of her medications were not:

Upon examination of the notes turned over to Supreme Court for an in camera review, we conclude that they are a mixed collection, some of which are shielded by the attorney-client privilege and some of which are not. The three-page portion labeled “injury journal” is, as described by decedent’s attorney, a seamless report of the incident at the health club and the medical care that decedent received shortly thereafter. The medication log is on a separate page and includes other notes of a personal nature. We agree with Supreme Court that the medication log was made for the purpose of keeping a medical record rather than as a confidential communication made for the purpose of legal services. Accordingly, in the absence of evidence that the medication log constituted a communication of legal character between decedent and [her attorney], plaintiff may not invoke the attorney-client privilege to shield its disclosure … . Wrubleski v Mary Imogene Bassett Hosp., 2018 NY Slip Op 05256, Third Dept 7-12-18

ATTORNEYS (PRIVILEGE, MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT))/PRIVILEGE (ATTORNEY-CLIENT, MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT))/INJURY LOG (ATTORNEY-CLIENT PRIVILEGE, MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT))

July 12, 2018