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Elements of Defamation, Invasion of Privacy and Intentional Infliction of Emotional Distress Explained

Plaintiff, an English professor, brought suit for defamation and invasion of privacy based upon two articles in the defendant New York Post and on the websites of two other defendants.  In affirming the trial court’s grant of summary judgment to the defendants, the First Department applied the facts of the case to the proof requirements for defamation (finding the statements were not false or were expressions of opinion), “invasion of privacy” pursuant to the NY Civil Rights Law sections 50 and 51 (involving the use of plaintiff’s image), prima facie tort and intentional infliction of emotional distress.  The decision briefly but clearly articulates the essential elements of these causes of action and the reasons the elements were not demonstrated.  Fleischer v NYP Holdings, Inc., 2013 NY Slip Op 01784, 150164/10, 9557, 1st Dept. 3-19-13

 

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Flaws in Fraud and Negligent Misrepresentation Allegations in Complaint Explained

The First Department, in affirming the dismissal of fraud and negligent misrepresentation claims in a contract action, described the flaws in the complaint as follows:

The court properly dismissed the fraud claim for failure to plead fraud with the particularity required by CPLR 3016(b) and for failure to plead loss causation … .

The court properly dismissed the negligent misrepresentation claim for failure to plead a special relationship. An arm’s length business relationship, as existed here, is not generally considered to be the sort of confidential or fiduciary relationship that would support a cause of action for negligent misrepresentation … . Nor did [defendants] “possess unique or specialized expertise” … .  Greentech Reasearch LLC v Wissman, 2013 NY Slip Op 01787, 9561, 602477/09, 1st Dept. 3-19-13

 

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Deliberate Avoidance of Service of Process 

The First Department determined the defendants, who deliberately attempted to avoid notice of the summons and complaint, did not raise an issue of fact in the face of the affidavits of the process server:

Relief under CPLR 317 is not warranted where, as here, defendants’ failure to obtain proper notice was the result of a deliberate attempt to avoid such notice … . The individual defendant averred that neither he nor the corporate defendant received actual service of the summons and complaint, or of the supplemental summons and amended complaint, or of any of the notices served by plaintiff following commencement of the action. However, this conclusory denial of receipt is insufficient to raise an issue of fact as to proper service in the face of plaintiff’s submission of affidavits from a process server, which constitute prima facie evidence of proper service … .  Pina v Jobar, USA, LLC, 2013 NY Slip Op 01794, 9570N, 300756/08, 1st Dept. 3-19-13

 

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Sanctions for Discovery Noncompliance and Spoliation

The First Department concluded preclusion and an adverse inference charge were appropriate discovery sanctions for defendant’s failure to produce documents and the apparent destruction of evidence:

Having been conditionally ordered to produce all correspondence …, and the transcripts of the audio tapes of meetings …, in order to successfully oppose plaintiff’s motion for discovery sanctions, defendant had to demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense in order to relieve itself from the dictates of that order … . Defendant did not satisfy these requirements. Defendant’s history of noncompliance with the court’s prior discovery orders supports the motion court’s finding that defendant’s actions were willful and contumacious …. The court providently granted plaintiffs’ motion for an order precluding defendant from offering any evidentiary proof with respect to the transcription of committee meetings and/or correspondence … and defendant in defense and/or opposition to plaintiffs’ prosecution of their bad faith claim at trial … .

Plaintiffs also made a prima facie showing that defendant had either intentionally or negligently disposed of the transcript of the … meeting and that the spoliation of this critical evidence compromised its ability to prosecute their bad faith action against defendant … . The motion court did not abuse its discretion in finding that certain evidence may have existed, but was not produced by defendant either because it was destroyed or withheld. Although plaintiffs moved to strike the answer, the court imposed the reasonable lesser sanction of an adverse inference charge, which will prevent defendant from using the absence of these documents at trial to its tactical advantage … .  General Motors Acceptance Corp. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 01774, 109668/06, 9272, 1st Dept. 3-19-13

 

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Acknowledgment of Debt in Bankruptcy Proceeding Restarted Statute of Limitations 

The First Department, in a full-fledged opinion by Justice Roman, determined the defendant’s acknowledgment of a debt in his bankruptcy petition restarted the 20 statute of limitations for the enforcement of a judgment:

Contrary to defendant’s contention, enforcement of the judgment issued against him is not barred by CPLR 211(b). While [plaintiff] first sought to enforce the judgment in 2011, more than 20 years after the judgment could have first been enforced, defendant acknowledged the judgment in 2005 within his bankruptcy petition, thereby recommencing the statute of limitations from that date. Based on the 2005 acknowledgment, the statute of limitations to enforce the judgment ran anew in 2005 and [plaintiff] has until 2025 to enforce the judgment … . Since a debtor sufficiently acknowledges a debt pursuant to a judgment simply by admitting to the creditor in writing that a debt is owed, here, defendant’s listing of the judgment within his bankruptcy petition constitutes such an admission and is thus, an acknowledgment under the statute. Moreover, insofar as an acknowledgment need not specify the amount nor the character of the debt owed …, defendant’s failure to list the correct amount of the judgment or the court in which it was obtained does not constitute a shortcoming which avails defendant. First NY Bank for Bus. v Alexander, 2013 NY Slip Op 01796, 4800/90, 9377, 1st Dept. 3-19-13

 

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From the Point When a Director’s Position Becomes Adverse to the Corporation, the Director Is Not Entitled to Discovery of the Corporation’s Attorney-Client Communications

Plaintiff was both a shareholder in and a director of defendant corporation. In her role as a shareholder, plaintiff brought a special proceeding to compel the corporation to pay the fair market value of her shares pursuant to Business Corporation Law section 623.  The special proceeding was prompted by the corporation’s sale of a 65% interest in the business to a third-party investor—a sale to which plaintiff objected.  During the course of discovery, the defendant corporation’s lawyers turned over thousands of documents to the plaintiff.  Included in those documents were attorney-client communications which took place after plaintiff had voiced her strong objection to the sale of the 65% interest in the business. The motion court determined that the plaintiff, as a director, was a corporate insider by definition, and was therefore entitled to all the corporation’s attorney-client communications, even those communications which took place after she voiced her opposition to the sale.  The First Department reversed.  The Court determined that, once plaintiff objected to the sale and hired her own attorney, her interests became “adverse” to those of the corporation, and she was not entitled to the attorney-client communications made after that point. [There is a long dissent arguing that, pursuant to CPLR 5511, the appellants were not aggrieved by the ruling appealed from and, therefore, the First Department did not have jurisdiction to entertain the appeal.] Barasch v Williams Real Estate Co. 2013 NY Slip Op 01613, 7405, 500054/09, 1st Dept. 3-14-13

 

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Records Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Unsealed in “Dangerous Sex Offender” Proceeding Pursuant to Mental Health Law

In a proceeding which determined respondent was a dangerous sex offender requiring confinement, the court ordered the unsealing of records related to three rapes and two robberies for which respondent was indicted in 1968.  The convictions of one count of rape and one count of robbery had been overturned because respondent was found to have been incompetent at the time he pled guilty. In finding the records of the overturned convictions were properly unsealed, the First Department determined that Mental Health Law 10.08 (c), which provides that the State is entitled to all records relating to the respondent’s commission or alleged commission of a sex offense, supersedes Criminal Procedure Law 160.50, which requires that the record of a criminal proceeding that is terminated in favor of the accused be sealed.  State v John S., 2013 NY Slip Op 01622, 9530, 30051/09m 1st Dept. 3-14-13

 

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Failure to Instruct Jury that Medical Practice Guidelines Did Not Set Forth the Applicable Standard of Care Required Reversal

The case turned on whether the defendant failed to recommend and perform a timely colonoscopy (the plaintiff, who had a history of colon polyps, contracted colon cancer).  At trial the defendant doctor was allowed to introduce in evidence guidelines published by the American Gastroenterological Association which included the recommended frequency of colonoscopies.  The plaintiff objected and requested a limiting instruction informing the jury that the guidelines “did not set forth the standards of care with regard to the diagnosis and treatment of plaintiff’s colon cancer.” The trial court gave a cursory limiting instruction at the time the guidelines were admitted, and told the jury another instruction would be forthcoming.  The trial court subsequently declined to give any further instructions on the issue.  In reversing the judgment for the defendant and ordering a new trial, the First Department wrote:

The court erred in failing to give the instruction that plaintiff requested. Although the trial court’s instruction informed the jury that it was to make its determination based on “all the evidence,” this instruction was not sufficient to guide the jury on how to apply the Guidelines to the facts before it. The court’s instruction as rendered failed to make clear to the jury that the Guidelines were simply recommendations regarding treatment, and thus, that compliance with the Guidelines did not, in and of itself, constitute good and accepted medical practice … . The trial court should have given the jury an instruction specifically stating that the Guidelines were not the same as standards of care and that the jury was to make its determination based on the particular circumstances of the case, not on the Guidelines alone. Introducing the Guidelines into evidence without the appropriate limiting instruction allowed the jury to infer that a physician need not exercise professional judgment with regard to individual patients, but could simply abide by the recommendations promulgated in the Guidelines.  Hall v Kiyici, 2013 NY Slip Op 01616, 9067, 23531/05, 1st Dept. 3-14-13

 

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Insufficient Proof to Support “Medical Neglect” Finding

The First Department reversed Family Court’s finding of medical neglect related to a five-month-old’s fractured femur.  Family Court accepted the proof that the baby, for the first time in his life, rolled over and fell off a couch when the father left him briefly to throw away a soiled diaper.  Family Court’s medical-neglect determination was based on testimony that the fracture “would cause the child evident pain…” and the length of time between the accident and when medical attention was sought.  The First Department noted the proof that swelling would not be immediately apparent and that a hairline fracture would not cause much pain until it progressed into a full fracture, as well as a video of the child showing no movement problems or signs of pain. In light of proof the child may not have exhibited symptoms of pain, the First Department determined the finding of neglect was not supported by a preponderance of the evidence. In re Amir L., 2013 NY Slip Op 01617, 9277-9278-9279, 1st Dept. 3-14-13

 

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Punitive Damages Award Not Recoverable in Subsequent “Bad Faith Failure to Settle” Case Against Insurer

A judgment which included punitive damages was assessed against an insured.  The insured sued the insurance company for a bad-faith failure to settle the libel and slander claims within policy limits.  The First Department determined the insurance company was entitled to summary judgment because public policy precludes the insured from recovering the punitive damages portion of any judgment resulting from the insurer’s bad faith.  The Court also noted that the public policy argument could be raised for the first time on appeal because no new facts were alleged and only purely legal arguments were made.  Seldon v Allstate Ins. Co., 2013 NY Slip Op 01628, 9542, 116217/08, 1st Dept. 3-14-13

 

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