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Monthly Archives: February 2015

Quinones v Joan & Sanford I. Weill Med. Coll.,

114 A.D.3d 472, 980 N.Y.S.2d 88 [1st Dept., 2014]

When the court sets a deadline for summary judgment motions, shorter than the statutory 120 days, what standard governs applications for extensions of time? Is it the strict “good cause” provided for summary judgment motions generally, or is it the more lenient “procrastinator’s friend” standard of CPLR 2004? The First Department held here that the strict standard applies, no matter how the deadline was set. The purported “good cause” here, which was nothing more than the attorney’s confession of error, did not suffice. Read More

Melcher v Greenberg Traurig, LLP,

23 N.Y.3d 10, 988 N.Y.S.2d 101 [2014]

The Court of Appeals here revisits the ancient history behind the attorney-deceit statute, Judiciary Law § 487, to determine the applicable statute of limitations for claims arising under it. Since that statute imposes treble damages for claims arising out of attorney deceit, one might consider that such claims are to recover on a liability or penalty created or imposed by statute, and hence subject to the three-year limitations period of CPLR 214 (2).

The Court held, however, that the cause arises from New York common law and therefore falls within the six-year catch-all limitations period of CPLR 213 (1). This action, commenced more than three years after the allegedly deceitful acts, but less than six years, was therefore held to be timely.

There is an important caveat for claims asserted as part of legal malpractice actions, which I will discuss at the end. Read More

123 A.D.3d 694, 998 N.Y.S.2d 117 [2d Dept., 2014]
          A defendant against whom no specific claims are made in the complaint need not serve an answer. There is, in fact, nothing in the complaint for him to deny. If he wishes not to default, he may simply serve a notice of appearance and thereby preserve his right to notice of all proceedings in the action. The notice of appearance may simply be served on the plaintiff, and there is no requirement that it be filed with the clerk of the court.
            Here, the action was to foreclose on property owned by the defendant Eriora, and Soo I Young was named in the complaint as the holder of a second mortgage. Young was not required to answer, and his service of a notice of appearance was sufficient. The plaintiff moved for a default judgment without notifying Young, alleging that none of the defendants had appeared or answered. The motion was granted, and the resulting order determined that Young’s second mortgage was invalid and that he was barred from redeeming any interest in the property.
            Since Young had, in fact, appeared via the notice of appearance, the order should have been vacated on his application.

Hamilton v Miller,

23 N.Y.3d 592, 992 N.Y.S.2d 190 [2014]

Disclosure rules in the CPLR and the Uniform Rules for the Trial Courts require disclosure of medical reports accompanying defense physical examinations. (CPLR 3121, 22 NYCRR 202.17) Plaintiffs sometimes balk at the production of reports, claiming that they have not yet retained physicians to testify at trial, and therefore have no reports to produce. Defendants, of course, respond that they cannot reasonably be required to retain examining physicians if they don’t know what they are supposed to look for. The Court of Appeals here considered this problem.

At first blush, the decision favors the plaintiffs’ argument. Closer examination shows that the Court’s interpretation of the rules still places a substantial burden on plaintiffs. The limits of this burden remain to be worked out.

Before the Court were two lead-paint-poisoning cases, and the question in each was whether the plaintiffs could be compelled to produce medical reports detailing each injury claimed by the plaintiffs and causally relating them to exposure to lead-based paint. The Court of Appeals held that it was an abuse of discretion to compel the plaintiff to produce such reports.

Read More

When a non-party witness is deposed, is there any place in the deposition room for the witness’ counsel? In two cases, Thompson v Mather, and Sciara v Surgical Assoc., the Fourth Department took a hard line against any participation by counsel for the witness. The court read CPLR 3113 as denying counsel any right to participate in any way, and as most definitely denying counsel any right to object on any ground, whether based on privilege or otherwise.

Effective September 23, 2014, CPLR 3113 (c) has now been amended so as to overrule this line of cases. A new sentence has been added, allowing counsel for a non-party deponent to participate in the deposition and make objections on behalf of the deponent in the same manner as counsel for a party. Read More

Kneisel v QPH, Inc.,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00503 [2nd Dept., 2015]
The issue here was whether medical privilege blocked the disclosure of the name and address of the plaintiff’s decedent’s fellow patient, who might have witnessed the acts of malpractice and negligence alleged against the defendant hospital.
As a general matter, if disclosure of their names and addresses of fellow patients will not carry with it any information which would also disclose their diagnosis and treatment, the privilege is not violated. So, in Rabinowitz v St. John’s Episcopal Hosp., 24 AD3d 530, the alleged negligence occurred in an emergency room. Plaintiff’s decedent fell from a gurney, leading to his death. Plaintiff sought disclosure of the names and addresses of patients in the treatment area, so as to ascertain whether there were any witnesses to the fall. The court held that disclosure of the names and addresses of non-party patients who may have been eyewitnesses does not violate the doctor-patient privileges of the non-party patients, provided that the demanding party does not seek to identify patients by the treatment they received and provided that the location in the hospital does not itself reveal the non–party’s medical status. Since an emergency room provides a broad range of services, disclosure in Rabinowitz did not violate the privilege.
In Kneisel, by contrast, both the plaintiff’s decedent and the fellow-patient were residents of Holliswood Hospital, in a unit for children from 12 to 15 years of age suffering from specific psychiatric disorders. Disclosure of the roommate’s presence in that unit would necessarily have revealed her medical status, and so disclosure was prohibited by the medical privilege.