Author: DMG

Privilege

Gottwald v Sebert, 2018 NY Slip Op 03819 [1st Dept. 2018]

The court properly granted plaintiffs' motion to compel Kesha to produce documents. The communications between her counsel and press agents do not reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy, and are not protected under the attorney-client privilege (see WA Rte. 9, LLC v PAF Capital LLC, 136 AD3d 522 [1st Dept 2016]). Kesha also failed to satisfy her burden to establish that the documents sought were protected work product (see Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005]).

3101

McMahon v New York Organ Donor Network, 2018 NY Slip Op 03820 [1st Dept. 2018]

Disclosure of these records is not prohibited by federal law. Although defendant is not a covered entity under the Health Insurance Portability and Accountability Act (HIPAA) (see 45 CFR 160.102; 160.103), it is authorized to receive medical records from covered entities "for the purpose of facilitating organ, eye or tissue donation and transplantation" (45 CFR 164.512[h]). It is also required to abide by HIPAA's privacy protections pursuant to New York Public Health Law (PHL) § 4351(8), which provides, "Any employee or agent of a federally designated organ procurement organization, eye bank or tissue bank . . . shall be held to the same standard of confidentiality as that imposed on employees of the hospital." However, because the subject disclosure would be made in the course of a judicial proceeding and pursuant to a qualified protective order, it is authorized under HIPAA (see 45 CFR 164.512[e][1][ii][B], [iv], [v]).

Nevertheless, PHL § 4351(8) renders defendant's documents subject to the protections of the physician-patient privilege set forth at CPLR 4504. This privilege is personal to the patient and is not terminated by death (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 53 [2016]). It has not been expressly or implicitly waived in this case by the donors' next of kin (see Perez v Fleischer, 122 AD3d 1157, 1159 [3d Dept 2014], lv dismissed 25 NY3d 985 [2015]). However, plaintiff demonstrated that the information in the medical records is material and necessary to his claim and that "the circumstances warrant overcoming the privilege and permitting discovery of the records with all identifying patient information appropriately redacted to protect patient confidentiality" (see Seaman v Wyckoff Hgts. Med. Ctr., Inc., 25 AD3d 596, 597 [2d Dept 2006]; accord Cole v Panos, 128 AD3d 880, 883 [2d Dept 2015]). Allowing disclosure under these circumstances is consistent with the public policy underlying the whistleblower statute, i.e., to encourage employees to report hazards to supervisors and the public (see Leibowitz v Bank Leumi Trust Co. of N.Y., 152 AD2d 169, 176 [2d Dept 1989]).

3103 (not required to create what does not exist) (ok to watch inspection)

Curran v New York City Tr. Auth., 2018 NY Slip Op 03798 [1st Dept. 2018]

Plaintiff failed to demonstrate that she would be prejudiced by defendants' representatives observing and recording her inspection and photographing of the subject bus. Defendants' representatives may be present during the inspection, provided they do not interfere with the examination.

Defendants are not required to create a document, such as a certification of no changes, if none exists, but plaintiff is entitled to discovery regarding any changes to the subject bus from the date of the accident to the date of the inspection.

Mailing

HSBC Bank USA, N.A. v Gifford, 2018 NY Slip Op 03738 [1st Dept. 2018]

The affidavit of mailing, by a person who did not personally do the mailing but relied on his knowledge of his employer's office practices, does not demonstrate the affiant's familiarity with his employer's mailing practices and procedures with respect to notices of default (see Nationstar Mtge., LLC v Cogen, ___ AD3d ___, 2018 Slip Op 01413 [1st Dept 2018]; U.S. Bank N.A. v Brjimohan, 153 AD3d 1164 [1st Dept 2017]).

3126

Lee v 13th St. Entertainment LLC, 2018 NY Slip Op 03751 [1st Dept. 2018] (note the dissent)

A court may strike an answer only when the moving party establishes "a clear showing that the failure to comply is willful, contumacious or in bad faith" (Palmenta v Columbia Univ., 266 AD2d 90, 91 [1st Dept 1999]). Here, it was improper for the motion court to strike defendants' answer because plaintiff failed to establish that defendants' conduct was willful, contumacious or in bad faith. Although defendants failed to produce deposition witnesses in violation of two court orders, defendants' business was defunct and its former employees and officers were no longer within their control(see Ewadi v City of New York, 66 AD3d 583 [1st Dept 2009]; Schneider v 17 Battery Place N. Assoc. II, 289 AD2d 164, 165 [1st Dept 2001]).

Defendants provided plaintiff with contact information for their employees and plaintiff could have subpoenaed such employees as nonparty witnesses. Furthermore, defendants did not receive prior warning from the court that a failure to comply with the court orders would result in CPLR 3126 sanctions. Accordingly, in light of the strong preference to resolve actions on their merits, plaintiff's motion to strike should have been denied (see e.g. Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]).

Vizcaino v Western Beef, Inc., 2018 NY Slip Op 03752 [1st Dept. 2018]

We see no reason to disturb the motion court's exercise of discretion in declining to strike defendants' answer (seeCPLR 3126[3]). Defendants ultimately provided current contact information for the cashier who assisted plaintiff after her accident at their store, and explained their delay in providing this information as the result of a series of purported good faith mistakes. However, in view of the length of time it took and multiple discovery motions and court orders for defendants finally to provide complete and accurate information, we find that monetary sanctions are warranted. An award of the costs of this motion and appeal is appropriate to compensate plaintiff for the extraordinary time and effort necessitated by defendants' lack of diligence.

Broderick v Edgewater Park Owners Coop., Inc., 2018 NY Slip Op 03924 [1st Dept. 2018]

Plaintiffs' motion to compel the depositions of certain witnesses was properly denied for failure to demonstrate that the witnesses already deposed had insufficient knowledge, and the substantial likelihood that those witnesses they sought to depose possessed information material and necessary to the prosecution of the case (see Colicchio v City of New York , 181 AD2d 528, 529 [1st Dept 1992]). Injured plaintiff's one-page supporting affidavit contradicted his prior deposition testimony and was properly disregarded by the court. Moreover, the affidavit did not address the testimony of the witnesses already deposed, and contained only vague assertions as to the relevant information the named witnesses might likely provide. Accordingly, there is no basis to disturb the court's determination (see generally Allen v Crowell-Collier Publ. Co. , 21 NY2d 403, 406-407 [1968])

CPLR R. 4212

Koch v Sheresky, Aronson & Mayefsky LLP, 2018 NY Slip Op 03769 [1st Dept. 2018]

The court also properly denied plaintiff's motion for a hearing before an advisory jury pursuant to CPLR 4212. Plaintiff failed to explain the necessity for such a hearing or to substantiate her claim of bias on the part of the special referee, who had denied her motion for a protective order and directed her to appear for a deposition. Plaintiff's motion for the appointment of an advisory jury after the special referee denied her motion for a protective order suggests a strategy to avoid the discovery orders entered against her as a result of her willful noncompliance.

Aggrieved / Appealable

Preferred Contrs. Ins. Co. Risk Retention Group, LLC v Nuway Interior Corp., 2018 NY Slip Op 03162 [2d Dept. 2018]

A party is aggrieved "when he or she asks for relief but that relief is denied in whole or in part" or "when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [emphasis omitted]). Here, the order appealed from granted that branch of the plaintiff's motion which sought relief against the defendants Nuway, Antonyshyn, and Mytsyk, but not against the appellants. The order appealed from specifically states that the "plaintiff bears no duty to defend, or to indemnify, Nuway [*2]in the underlying personal injury action." Accordingly, the appellants are not aggrieved by the order appealed from, and their appeal must be dismissed (see Faicco v Mr. Lucky's Pub, Inc., 131 AD3d 920; Soho Plaza Corp. v Birnbaum, 108 AD3d 518, 519).

 

Matter of Wood v Port Wash. Police Dist., 2018 NY Slip Op 03134 [2d Dept. 2018]

The order appealed from is not appealable as a matter of right, as no appeal lies as of right from a nonfinal order in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b][1]; Matter of Scarcella v Village of Scarsdale Bd. of Trustees, 72 AD3d 831). Leave to appeal has not been granted and, under the circumstances of this case, we decline to grant leave to appeal sua sponte (see CPLR 5701[c]; Matter of Young Israel of Merrick v Board of Appeals of Town of Hempstead, 304 AD2d 834).

Daviotis v Kappa Servs. Corp., 2018 NY Slip Op 03121 [2d Dept. 2018]

A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part (see Faicco v Mr. Lucky's Pub, Inc., 131 AD3d 920; Mixon v TBV, Inc., 76 AD3d 144). Here, the defendants moved, inter alia, to impose discovery sanctions against the plaintiff, and the order appealed from denied the defendants' motion as academic. Since the plaintiff is not aggrieved by the order appealed from, his appeal must be dismissed (see CPLR 5511; Fiacco v Mr. Lucky's Pub, Inc., 131 AD3d 920; Edgar S. v Roman, 115 AD3d 931).

Removal from Civil to Supreme and why you should serve with NOE

Hart v New York City Hous. Auth., 2018 NY Slip Op 03123 [2d Dept. 2018]

Since the defendant was not served with a proper notice of entry, the defendant's time to appeal never commenced running, and its notice of appeal was therefore timely filed (see CPLR 5513[a]; Matter of Oliver v City of New York, 76 AD3d 1017, 1018; Nagin v Long Is. Sav. Bank, 94 AD2d 710).

A motion to remove an action from the Civil Court to the Supreme Court pursuant to CPLR 325(b) must be accompanied by a request for leave to amend the ad damnum clause of the complaint pursuant to CPLR 3025(b) (see Martin v Waldbaum's Supermarket, 172 AD2d 804). Here, the amount stated in the ad damnum clause was within the jurisdictional limits of the Civil Court, and no request for leave to amend the ad damnum clause was made. In the absence of an application to increase the ad damnum clause, the plaintiff's motion to remove the action to the Supreme Court should have been denied (see id.; Francilion v Epstein, 144 AD2d 633, 633-634). [*2]Accordingly, we remit the matter to the Supreme Court, Kings County, to restore the matter to the Civil Court, Kings County.

5015

U.S. Bank N.A. v Davis, 2018 NY Slip Op 03166 [2nd Dept. 2018]

A party is precluded from moving to vacate his or her default on grounds asserted in a prior motion to vacate the default that, as here, had been previously denied in an order from which that party took no appeal, or on grounds that were apparent at the time that the party made the prior motion but were not asserted therein (see LaSalle Natl. Bank Assn. v Odato, 126 AD3d 675, 676; Eastern Sav. Bank, FSB v Brown, 112 AD3d 668, 670; Viva Dev. Corp. v United Humanitarian Relief Fund, 108 AD3d 619, 620; JMP Pizza, LLC v 34th St. Pizza, LLC, 104 AD3d 648; Lambert v Schreiber, 95 AD3d 1282, 1283). Accordingly, contrary to the defendants' contention, their cross motion to vacate their default in opposing the plaintiff's prior motion for summary judgment and to dismiss the complaint insofar as asserted against them was properly denied.