Category: [App Div 1st Dept]

Inadvertently left out CPLR 2001

Cuthbert v Foreign Dev. Serv., Ltd., 2018 NY Slip Op 03812 [1st Dept. 2018]

The court providently exercised its discretion in granting defendants' motion for renewal and reargument of their prior motion for summary judgment so that they could submit a lease extension to which they had referred in their initial moving papers but which they had inadvertently failed to attach to the papers (see CPLR 2001).

Hernandez v Marcano, 2018 NY Slip Op 03816 [1st Dept. 2018]

The court improvidently exercised its discretion in denying plaintiff's motion to renew, which sought to submit an affirmation by her treating physician that, although referred to in her opposition papers, had been inadvertently omitted from the set of papers filed in court (see CPLR 2221[e]). Plaintiff demonstrated that the omission was the result of law office failure and that consideration of the affirmation would not prejudice defendants (see Cruz v Castanos, 10 AD3d 277 [1st Dept 2004]; Cespedes v McNamee, 308 AD2d 409 [1st Dept 2003]; see also Telep v Republic El. Corp., 267 AD2d 57, 58 [1st Dept 1999]).

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]).

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.

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.

Renewal record: efile

Leary v Bendow, 2018 NY Slip Op 03114 [1st Dept. 2018]

Although plaintiffs failed to include a copy of defendants' original motion to strike with the renewal motion, this did not violate CPLR 2214(c) because the original motion had been electronically filed and therefore was available to the parties and the court (see also Studio A Showroom, LLC v Yoon, 99 AD3d 632 [1st Dept 2012]). There is no evidence that the record was not sufficiently complete to allow the court to render a decision on the renewal motion and to exercise its discretion in considering any improperly submitted document (see Washington Realty Owners, LLC v 260 Wash. St. LLC, 105 AD3d 675 [1st Dept 2013]; Loeb v Tanenbaum, 124 AD2d 941, 942 [3d Dept 1986] ["under CPLR 2214(c), the court may refuse to consider improperly submitted" documents (emphasis added)]).

In any event, the court did not improvidently exercise its discretion in granting renewal (see CPLR 2221[e]). Unbeknownst to the court at the time it decided the original motion, the parties had entered a stipulation agreeing to adjourn the motion. Both parties concede the motion was accidentally submitted to the court in contravention of the stipulation. Thus, the equities of this matter, and the interests of justice, were properly served by permitting renewal, especially because denial would defeat substantial fairness (see Jorge v Conlon, 134 AD3d 480 [1st Dept 2015]; Scott v Brickhouse, 251 AD2d 397 [2d Dept 1998]; Metcalfe v City of New York, 223 AD2d 410, 411 [1st Dept 1996]). Finally, in denying defendants' motion to strike upon renewal, the court was permitted to take judicial notice of the so-ordered stipulations where both parties agreed that discovery had been completed (see Matter of Khatibi v Weill, 8 AD3d 485 [2d Dept 2004] ["this court may take judicial notice of undisputed court records and files"]; Jerome Prince, Richardson on Evidence § 2-209 at 45 [Farrell 11th ed 1995]).

Attorney fees

Matter of R.F. Lafferty & Co., Inc. v Winter, 2018 NY Slip Op 03489 [1st Dept. 2018]

Respondent also argues that the arbitration award should be vacated based on the doctrines of comity and res judicata. However, she waived these arguments by commencing the arbitration proceeding (see e.g. Bortman v Lucander, 150 AD3d 417 [1st Dept 2017]).

Respondent argues that the award of attorneys' fees to petitioner exceeded the arbitrator's power because the arbitration agreement did not expressly provide for attorneys' fees (see CPLR 7513; Kidder, Peabody & Co. v McArtor, 223 AD2d 502, 503 [1st Dept 1996]). However, both parties demanded attorneys' fees, and "mutual demands for counsel fees in an arbitration proceeding constitute, in effect, an agreement to submit the issue to arbitration, with the resultant award being valid and enforceable" (Matter of Goldberg v Thelen Reid Brown Raysman & Steiner LLP, 52 AD3d 392, 392-393 [1st Dept 2008], lv denied 11 NY3d 749 [2008]; see also [*2]Matter of Cantor Fitzgerald & Co. v Pritchard, 107 AD3d 476 [1st Dept 2013]).