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MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE.

The First Department, over a two-justice dissent, determined the defendants in this personal injury case did not demonstrate a need for plaintiff’s mental health, alcohol abuse, substance abuse and HIV-related medical records. Supreme Court properly issued a protective order to that effect:

Defendants did not meet their burden of showing a “compelling need” for medical records concerning HIV; they failed to submit evidence that would establish a connection between plaintiff’s claimed HIV status and her future enjoyment of life (Public Health Law § 2785[2][a]…). Similarly, defendants failed to meet their burden of showing that “the interests of justice significantly outweigh the need for confidentiality” such to permit discovery of mental health, alcohol abuse, or substance abuse records (Mental Hygiene Law § 33.13[c][1]; Mental Hygiene Law § 22.05 [b] …).

As the dissent notes, as a rule, “all matter material and necessary in the prosecution or defense of an action” should be fully disclosed (CPLR 3101[a] …). However, plaintiff’s alleged general anxiety and mental anguish from back and leg injuries do not place her entire mental and physical health into contention … . She has not, as argued by the dissent, waived any protection applicable to such records. James v 1620 Westchester Ave. LLC, 2017 NY Slip Op 01303, 1st Dept 2-21-17

 

CIVIL PROCEDURE (MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/NEGLIGENCE (CIVIL PROCEDURE, (MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/DISCOVERY (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/MEDICAL RECORDS (MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/HIV (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/MENTAL HEALTH (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/SUBSTANCE ABUSE (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/ALCOHOL ABUSE (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)/PRIVILEGE (MEDICAL RECORDS, MENTAL HEALTH, HIV, SUBSTANCE ABUSE AND ALCOHOL ABUSE MEDICAL RECORDS NOT DISCOVERABLE IN THIS PERSONAL INJURY CASE)

ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, HE WAS INJURED IN A TEMPORARY FACILITY DOING WORK FOR THE CONSTRUCTION SITE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, over a dissent, determined defendants’ motion for summary judgment in this Labor Law 241 (6) action should not have been granted on the ground plaintiff was not injured on a construction site. Plaintiff was not where the construction was being done, but was on a “temporary facility” (Bronx Yard) preparing rebar for the construction site:

Collavino [superstructure concrete contractor], subcontracted by Lend Lease [property owner], which was hired by 56 Leonard [construction manager], was responsible for furnishing “[a]ll temporary Project site facilities” and agreed “to place its Temporary Facilities in locations designated by Owner or Construction Manager.” Additionally, the Temporary License for the Bronx Yard was secured solely by Collavino, and for the purpose of completing work to be “forwarded directly to a construction site in Manhattan.”  Gerrish v 56 Leonard LLC, 2017 NY Slip Op 01262, 1st Dept 2-16-17

LABOR LAW-CONSTRUCTIION LAW (ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, HE WAS INJURED IN A TEMPORARY FACILITY DOING WORK FOR THE CONSTRUCTION SITE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CONSTRUCTION SITE (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, HE WAS INJURED IN A TEMPORARY FACILITY DOING WORK FOR THE CONSTRUCTION SITE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED.

The First Department, over an extensive dissent, determined the NYC Water Board’s issuance of a one-time credit of $183 to Class 1 property owners coupled with a 2.1% increase in NYC water rates was not supported by a rational basis. Class 1 property owners are owners of one, two and three family residences:

Although the Water Board claims that the credit would be more financially meaningful for class one property owners, the credit is not in any way tied to financial need. There is no rational basis for the conclusion that class one ratepayers have traditionally borne a disproportionate burden of water and sewage fees. While the Water Board argues that some members of class one rate payers experience financial hardship in paying for water, the application of the credit does not in any manner take into consideration an owner’s ability to pay or customers’ need for this benefit, solely relying on the classification of the property for tax purposes, which bears little relation to the stated objective. …

The Water Board’s justification for the increase as necessary to ensure funding for the costs of repairing or replacing existing portions of the City’s water and sewer system, while consistent with its mission statement and statutory mandate, is irreconcilable with the Water Board’s implementation of a credit if, the Water Board still needed funds to balance its books for the year. The action seems inconsistent with the Water Board’s statutory mandate to make the water system self sustaining. Matter of Prometheus Realty Corp. v New York City Water Bd., 2017 NY Slip Op 01263, 1st Dept 2-16-17

 

MUNICIPAL LAW (NYC) (NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED)/WATER BOARD (NYC) (NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED)/WATER RATES (NYC) (NYC WATER BOARD’S ONE-TIME CREDIT TO CLASS 1 PROPERTY OWNERS COUPLED WITH A 2.1% RATE INCREASE DID NOT HAVE A RATIONAL BASIS AND WAS PROPERLY ANNULLED AND VACATED)

UNCONTESTED TESTIMONY A WHEEL ON A HAND-PROPELLED DEBRIS CONTAINER STOPPED TURNING FREELY AS PLAINTIFF WAS MOVING IT (CAUSING INJURY) REQUIRED DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 241 (6) ACTION.

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this Labor Law 241 (6) action should not have been granted. Plaintiff was using a hand propelled wheeled container containing 500 to 800 pounds of construction debris when, it is alleged, one of the wheels allegedly stopped turning intermittently. When plaintiff pulled hard the container came to rest on his foot. The Industrial Code requires such containers to have “free-running” wheels:

Plaintiff testified that immediately before the alleged accident, he struggled to move the mini-container after the wheel apparently became stuck, and that as a result, he was injured when the mini-container rolled onto his foot when he forcefully pulled it in an attempt to move it. This uncontradicted testimony presents a question of fact on whether the wheels on the mini-container were “free-running” as required by 12 NYCRR 23-1.28(b) … . Ahern v NYU Langone Med. Ctr., 2017 NY Slip Op 01264, 1st Dept 2-16-17

LABOR LAW-CONSTRUCTION LAW (UNCONTESTED TESTIMONY A WHEEL ON A HAND-PROPELLED DEBRIS CONTAINER STOPPED TURNING FREELY AS PLAINTIFF WAS MOVING IT (CAUSING INJURY) REQUIRED DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 241 (6) ACTION)/INDUSTRIAL CODE (LABOR LAW-CONSTRUCTION LAW, UNCONTESTED TESTIMONY A WHEEL ON A HAND-PROPELLED DEBRIS CONTAINER STOPPED TURNING FREELY AS PLAINTIFF WAS MOVING IT (CAUSING INJURY) REQUIRED DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 241 (6) ACTION)

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THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY.

The First Department, in a full-fledged opinion by Justice Acosta, determined the evidence was sufficient to support defendant’s robbery second and grand larceny fourth convictions. Defendant told the victim (Diaz) she would have him beaten up if he didn’t give her $20. The court held the victim had been threatened with immediate use of force within the meaning of the statute:

With respect to defendant’s robbery conviction, the evidence demonstrates that defendant threatened Diaz with the immediate use of physical force. Pursuant to Penal Law § 160.00(1), a person is guilty of robbery “when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking.” However, “[t]he statute does not require the use of any words whatsoever, but merely that there be a threat, whatever its nature, of the immediate use of physical force” … . There is also no requirement that a weapon be displayed or that the victim be physically injured to demonstrate that there was a threat of immediate physical force … . Further, the threat of the immediate use of force may be demonstrated by “a chain of actions on the part of [the] defendant” … .

Diaz testified that he gave defendant the $20 because he was “scared” after defendant … prevented him from leaving and defendant explicitly threatened him that if he did not comply, her boyfriend would beat him up. Defendant then went to speak to a man who gestured that he was going to call someone … . People v Villanueva, 2017 NY Slip Op 01299, 1st Dept 2-16-17

 

CRIMINAL LAW (THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/EVIDENCE (CRIMINAL LAW, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/ROBBERY (THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/THREAT (ROBBERY, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)/IMMEDIATE USE OF PHYSICAL FORCE (ROBBERY, THREATENING TO CALL SOMEONE TO HAVE VICTIM BEATEN UP MET THE THREAT OF IMMEDIATE USE OF PHYSICAL FORCE ELEMENT OF ROBBERY)

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VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES.

The First Department, over an extensive dissent, determined the identification testimony by the assault victim was credible, despite a period of unconsciousness, dizziness and inconsistencies:

[The] grounds for undercutting one-witness identifications [in other cases] are not comparable to the dizziness and loss of consciousness caused by the subject assault, and the limited nature of the complainant’s two opportunities to look directly at his attacker. Our system of criminal justice relies on victims of violence identifying their attackers when they are able to do so. It would be ironic indeed if the severity of an attack and the resulting injuries were to prompt courts to treat the subsequent identification as unworthy of belief, despite the complainant’s certainty. Of course, the defense is entitled to question an identification based on the complainant’s compromised condition caused by the attack. However, that argument did not sway the jury here, and upon our review of the evidence at trial, it does not appear that the complainant was unable to make an identification.

Any inconsistencies in the complainant’s testimony were minor, possibly due to limitations in his English skills, and did not undermine his overall credibility. People v Kahson B., 2017 NY Slip Op 01265, 1st Dept 2-16-17

 

CRIMINAL LAW (VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)/EVIDENCE (CRIMINAL LAW, VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)/IDENTIFICATION (CRIMINAL LAW, EVIDENCE, VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES)

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STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE.

The First Department determined the striking of defendants’ answers was the proper remedy for spoliation of evidence. Plaintiff was injured on a staircase. The staircase was removed and destroyed days before a scheduled inspection:

Plaintiffs’ pre-action service of preservation letters on the daycare, the initiation of this action, and the issuance of the preliminary conference order, placed defendants on notice of the need to preserve the staircase. The staircase was removed and destroyed in November 2013, days before the scheduled court-ordered inspection. As found by the motion court, “[I]t is clear that the individual defendants destroyed the stairs in question in violation of the order of th[e] court, knowing that plaintiff’s inspection was to take place a few days later.”

The intentional destruction of the staircase, key physical evidence, severely prejudices plaintiffs’ ability to prove their case, and warrants the extreme sanction of striking defendants’ answers … . The record contains no evidence that photographs depicting the staircase exist. Nor is this a case where plaintiffs sat on their rights … . Rookwood v Busy B’s Child Care Daycare Inc., 2017 NY Slip Op 01281, 1st Dept 2-16-17

 

CIVIL PROCEDURE (SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/EVIDENCE (SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/SPOLIATION (STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)/NEGLIGENCE (EVIDENCE, SPOLIATION, STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE)

SURROGATE’S COURT HAD JURISDICTION TO ISSUE ANCILLARY LETTERS ALLOWING THE NONDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING.

The First Department, in a full-fledged opinion by Justice Tom, determined Surrogate’s Court had jurisdiction to issue ancillary letters allowing the heir of the owner of a painting confiscated by the Nazis to sue to recover the painting. The International Art Center (IAC), which allegedly has possession of the painting in Switzerland, did not have standing to challenge the ancillary letters. The painting, “Seated Man with a Cane” by Modigliani, may be worth $25 million:

… [A]lthough the authority of the Surrogate’s Court over a nondomiciliary’s estate in an ancillary proceeding is generally limited to estate assets within New York … , property includes a “chose in action,” e.g. a cause of action in New York ,,, .

Accordingly, contrary to IAC’s contention, SCPA 206(1) does not require the physical presence of the subject property in New York at the time the proceeding for ancillary letters was commenced. It is sufficient that the Estate had a valid “chose in action” against two New York domiciliaries (the Nahmads), a New York corporation (the Gallery), and IAC, a foreign entity alleged to be owned and controlled by New York residents and doing business in New York.

In this case, personal jurisdiction [over IAC] was acquired based on IAC’s admitted agreement with Sotheby’s to act as its agent to sell the painting in New York in 2008. Further, personal jurisdiction over IAC may be based on respondents’ allegations that IAC transacted business in New York through the Nahmads at the Gallery’s office in Manhattan. Matter of Stettiner, 2017 NY Slip Op 01168, 1st Dept 2-14-17

 

TRUSTS AND ESTATES (SURROGATE’S COURT HAD JURISDICTON TO ISSUE ANCILLARY LETTERS ALLOWING THE NONDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING)/ANCILLARY LETTERS (SURROGATE’S COURT HAD JURISDICTON TO ISSUE ANCILLARY LETTERS ALLOWING THE NONNDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING)/PAINTINGS (SURROGATE’S COURT HAD JURISDICTON TO ISSUE ANCILLARY LETTERS ALLOWING THE NONDOMICILIARY HEIR OF THE OWNER OF A $25 MILLION PAINTING CONFISCATED BY THE NAZIS TO SUE TO RECOVER THE PAINTING)

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PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED.

The First Department held determination of the meaning of the payment guarantees at issue required reference to other documents. Therefore the guarantees were not entitled to expedited treatment pursuant to CPLR 3213 as instruments for the payment of money only:

“The prototypical example of an instrument within the ambit of [CPLR 3213] is of course a negotiable instrument for the payment of money—an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time” … . CPLR 3213 is generally used to enforce “some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness,” so that “a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms” … . A document does not qualify for CPLR 3213 treatment if the court must consult other materials besides the bare document and proof of nonpayment, or if it must make a more than de minimis deviation from the face of the document … . PDL Biopharma, Inc. v Wohlstadter, 2017 NY Slip Op 01151, 1st Dept 2-14-17

CIVIL PROCEDURE (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/DEBTOR-CREDITOR (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/GUARANTEES (CPLR 3213, PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/CPLR 3213 (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)

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WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED.

The First Department determined the city’s summary judgment motion was properly granted in this bicycle accident case. Plaintiff was injured when his bicycle struck a pile of gravel near a manhole that was being accessed for sewer maintenance. Because sewer maintenance is a governmental function, the written notice requirement applies. Without written notice of the condition, the city cannot be held liable:

This action seeks recovery for injuries allegedly sustained by plaintiff Daniel Chambers when the front wheel of the bicycle he was riding came into contact with gravel located around a large hole, near a manhole cover. …

The court properly dismissed the action as plaintiff failed to establish that an exception to the prior written notice requirement of Administrative Code of the City of New York § 7-201(c)(2) is at issue here … . The City’s ownership of a manhole cover, which allows the City to access the sewer system and water pipes in order to perform maintenance and repairs, does not provide the City with “a special benefit from that property unrelated to the public use” … . Accordingly, it does not fall within the “special use” exception … . Chambers v City of New York, 2017 NY Slip Op 01120, 1st Dept 2-10-17

 

MUNICIPAL LAW (WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/NEGLIGENCE (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)/BICYCLE ACCIDENTS (MUNICIPAL LAW, WRITTEN NOTICE REQUIREMENT APPLIED TO GRAVEL PILED NEAR A MANHOLE, ACTION BY BICYCLIST INJURED WHEN HIS WHEEL STRUCK THE GRAVEL PROPERLY DISMISSED)

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