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In October 2001, defendant and JC got into a fight over a woman, as a result of which defendant’s suffered an injury on his face (a cut from the left ear to his chin). Defendant was treated at ABC Hospital for his wound, which was stitched and bandaged. That incident provided the impetus for a subsequent shooting incident that led to the death of X. The primary issue on appeal from defendant’s conviction for that homicide is his injury claim that certain information provided by a ABC Hospital administrator as to the treatment of a person for a facial wound was obtained in violation of the statutory physician-patient privilege, as it relates to defendant. As a result, he argues, the information obtained from the violation and its fruits-his arrest and identification from a photo array and in a lineup-implicated a constitutionally protected right and must be suppressed.

The suppression hearing adduced the following evidence. Assigned to the shooting death of 16-year-old X, which had occurred at Eastburn Avenue and the service road of the Cross-Bronx Expressway on the morning of October 17, 2001, Detective E learned from the victim’s aunt that the word on the street was that the killing was in revenge for a slashing of a male black at a certain Club several days earlier. JC, the slasher, told Detective E that he had heard that the shooters were some black guys from around 168th Street and College Avenue. Detective E also interviewed C, who related that at about one o’clock on the morning of the shooting, he had heard gunshots and saw a “male black” with a gun pursue a “young Spanish boy” down Weeks Avenue toward the Cross-Bronx Expressway.

On October 18, Detective E went to ABC Hospital and asked an administrator, Ms. BB, “if there were any male blacks that were treated on October 13 for any kind of slash wound to the face” or “if anyone came in for a slashing to the face on that date, October 13th.” Ms. BB gave Detective E an admission slip with defendant’s name and address, xxx Barnes Avenue, and told him that defendant had received stitches on the left side of his face. That same day Detective E showed C a computer-generated black and white photo array containing a “couple of years old” photograph of defendant. C recognized two people in the array, one of whom was defendant, but he “wasn’t too sure” of his identification and “didn’t want to say yes or no” because it was nighttime and the light in the police car was “pretty bad.” C asked to see a more recent photograph or a live person under better lighting conditions.

On October 20, he saw defendant at 168th Street and Findlay Avenue. As the detective approached, defendant removed a silver gun from his waistband and threw it into a garbage can. The detective arrested defendant, who had a “fresh,” “long” scar from below his ear to close to his chin on the left side of his face, and retrieved the gun, a loaded .357 magnum.

The following day, Detective E went to C’s home and showed him a new photo array containing defendant’s arrest photograph, but not the photograph of the other person C had previously recognized in the first array. This time, C recognized defendant’s photograph right away. That same day, four hours later, C viewed a lineup at the Bronx Homicide Task Force. Although the five fillers ranged in age from 30 to 35, and defendant was 23 at the time, Detective E, who would not have conducted the lineup if the fillers had not fit defendant’s description, thought they “all looked similar.” After viewing the lineup for a few seconds, C identified defendant.

In urging suppression of the pretrial identifications as fruit of the poisonous tree, defendant argued that the information obtained from ABC Hospital violated defendant’s physician-patient privilege and his right to privacy under the Fourth Amendment. injury Defendant also argued that the second photo array and lineup were suggestive because only defendant, and not the second person whom C had recognized in the first photo array, appeared in them.

The court, implicitly finding a statutory violation, determined that a breach of the physician-patient privilege does not implicate a constitutional right and that, hence, evidence so obtained need not be suppressed. The court also concluded that the second photo array was not improperly suggestive, noting that C viewed two entirely different photographs of defendant in different positions in the two arrays, one taken approximately two years before the other, and he was unable to make an identification in the first array.

As to defendant’s claim with respect to the information obtained by the police from the administrator at ABC Hospital, the physician-patient privilege, which “generally does not extend to information obtained outside the realms of medical diagnosis and treatment” (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]), was not violated. The privilege is limited to “information acquired by the medical professional `through the application of professional skill or knowledge, and seeks to protect confidential communications, not the mere facts and incidents of a person’s medical history. The privilege is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge.

To Be Cont…
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II. INABILITY TO PERFORM DAILY ACTIVITIES FOR 90 DAYS

At plaintiff’s deposition, when asked what plaintiff, who had been retired since 2004, could not do following the collision, she first listed climbing steps. After the Transit Authority defendants’ attorney questioned further whether she could climb steps before the collision, and plaintiff answered that she had encountered no difficulty, she listed dancing and lifting. After providing examples of household objects she lifted before but could not lift after the collision, the attorney pursued more questions regarding her climbing, dancing, and injury to her leg, hip, and shoulder.

The inquiry never returned to activities during the 180 days after the collision. Plaintiff never was asked whether or when she ever resumed the previous activities she listed, what other activities she could not do, or how long she was confined to her bed or home after the collision. She did offer, however, that her routine was altered to the extent of attending physical therapy three days per week for over three months immediately following the collision.

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Plaintiff sues to recover for personal injury she sustained July 15, 2005, in a car accident between a motor vehicle owned and operated by defendant M and a bus owned by defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority and operated by defendant J, in which plaintiff was a passenger. Defendant M moves, and the Transit Authority defendants cross-move, for summary judgment dismissing the complaint and cross-claims against these defendants, on the ground that plaintiff has not sustained a “serious injury” entitling her to recover for non-economic loss.

For the reasons explained below, the court grants defendants’ motion and cross-motion insofar as they are based on the absence of a serious injury in the categories of a significant limitation or a permanent consequential limitation of functioning. The court denies defendants’ motion and cross-motion as to the category of an impairment that prevented daily activities for 90 of the 180 days after the collision.

I. SIGNIFICANT OR PERMANENT CONSEQUENTIAL LIMITATION
A. DEFENDANTS’ EVIDENCE
Defendants’ physicians examined plaintiff and reviewed her diagnostic studies and other medical records and found full range of motion in her cervical spine, without any neurological or orthopedic abnormalities, obviating a need to comment on her cervical diagnostic studies. While these physicians found restrictions on range of motion in her lumbosacral spine, they concluded those limitations were not attributable to trauma.

Neurologist Dr. RE, MD specifically concludes that the magnetic resonance imaging (MRI) of plaintiff’s lumbar spine conducted August 9, 2005, a few weeks after the collision: Reveals degenerative changes in the lower lumbar area, in keeping with her age, for which there is no traumatic etiology. There is no accident-related neurologic explanation for persistence of her lower back symptoms that are more likely to be related to the presence of preexisting spondylosis of the lower lumbar spine independent of the subject accident.

The combined findings by defendants’ physicians demonstrate plaintiff did not sustain a permanent or significant limitation in functioning of her spine.
B. PLAINTIFF’S REBUTTAL
Plaintiff’s physician, Dr.H, M.D. began treating plaintiff August 31, 2005, when he found weakness, diminished reflexes, spasm, and tenderness in her lumbosacral spine. In a report dated November 20, 2007, Dr. H found a 28% restriction in range of motion in two planes of her lumbosacral spine. Based on review of electrodiagnostic studies of her lumbosacral spine, Dr. H diagnosed plaintiff with a L4–L5 disc herniation and related radiculopathy, which he concluded were caused by the July 2005 collision and permanent.
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With regard to plaintiff’s claim for abuse of process, FVA has demonstrated prima facie entitlement to summary judgment. In order to prevail on a cause of action a plaintiff must demonstrate that defendant: (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; (3) that the process was perverted to obtain a collateral advantage; and (4) that the process unlawfully interfered with plaintiff’s person or property. As discussed above, to the extent that plaintiff must prove all elements, a defendant obtains summary judgment if he negates the existence of any one of the elements.

FVA has demonstrated prima facie entitlement to summary judgment insofar as it has demonstrated that the process herein, namely, the reparation action, was not perverted in any way so as to obtain a collateral advantage. The witness establishes that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which GROWERS felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. To the extent that the purpose of the reparation action was to recover money and the same was GROWERS’s goal, it cannot be said that the process was perverted to obtain a collateral advantage. Based on the foregoing, FVA has demonstrated prima facie entitlement to summary judgment with regard to the abuse of process claim.

FVA has demonstrated prima facie entitlement to summary judgment with regard to plaintiff’s claim asserting fraud. It is worth noting that injury plaintiff never opposes this portion of FVA’s motion and as such, summary judgment is granted on default. Nevertheless it is well settled that a cause of action for fraud or misrepresentation requires proof that defendant misrepresented an existing fact, falsity, scienter, justifiable reliance by the plaintiff and damages. The Court finds that FVA’s evidence demonstrates an absence of misrepresentation, falsity or scienter. As such, FVA has established prima facie entitlement to summary judgment with regard to the cause of action for fraud.

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Within its answer FVA interposes a counterclaim. FVA, in its counterclaim, alleges that in April 2002, GROWERS filed a complaint against plaintiff for reimbursement of unauthorized adjustments. On February 6, 2002, the USDA issued a decision in GROWERS’s favor. Plaintiff filed an appeal in the SDNY. Subsequently, plaintiff and GROWERS reached a settlement and GROWERS withdrew its complaint. Plaintiff commenced the instant action against FVA despite knowledge that FVA was not a party to the actions between GROWERS and plaintiff, despite knowing that it had no viable cause of action and despite knowledge that the Court of Appeals, Second Circuit issued a decision affirming the USDA’s decision in favor of a seller in a case involving identical facts. Plaintiff, knowing that the allegations against FVA were false, willfully and maliciously prayed upon FVA for the sole purpose of extorting and defrauding FVA. FVA seeks punitive damages in the amount of $500,000 and seeks to recover legal fees incurred in connection with the instant action.

Discussion

FVA’s motion seeking summary judgment over plaintiff in the instant injury action is hereby granted. Preliminarily, the Court notes that a review of the pleadings in the instant action evinces that plaintiff have failed to state a cause of action for malicious prosecution, abuse of process, and fraud. Similarly, FVA has also failed to state the very same causes of action in its counterclaim. One need only look at the elements of the aforementioned causes of action, which have been adequately detailed above, and it becomes abundantly clear that the allegations within the pleadings fail to assert the same. Hence, were it not for legal obstacles precluding the same, the plaintiff’s complaint and FVA’s counterclaim would fail pursuant to CPLR §3211(a)(7), inasmuch as they fail to state a cause of action.

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Defendant FRUIT AND VEGETABLE ASSOCIATION (FVA) moves seeking an Order granting it summary judgment over plaintiff in the instant action. FVA avers that summary judgment is warranted for a host of different reasons. With regard to plaintiff’s cause of action for malicious prosecution, FVA avers, inter alia, it had probable cause to initiate the prior proceeding upon which the instant action is premised. With regard to plaintiff’s cause of action for abuse of process, FVA avers, inter alia, that it had no intent to harm plaintiff when it initiated the instant action. With regard to plaintiff’s cause of action for fraud, FVA avers that it did not misrepresent any facts to the plaintiff with an intent to deceive. FVA also seeks summary judgment on its counterclaim against plaintiff for malicious prosecution. FVA avers that summary judgment on its counterclaim is warranted insofar as plaintiff commenced the instant action absent probable cause. For the reasons that follow hereinafter, FVA’s motion is hereby granted in part.

The instant action is for alleged personal injury premised upon malicious prosecution, abuse of process and fraud. The complaint alleges that plaintiff is a buyer, in the business of buying tomatoes from various farmers and shippers which it then sells to consumers and purchasers. Defendant TOMATO GROWERS (GROWERS) is a tomato shipper.

The United States Department of Agriculture (USDA) is mandated by statute to provide produce inspections to both shippers and wholesalers. Said inspections are designed to ensure that the produce meets defined standards. In 1997-1999 plaintiff through a broker contracted to purchase various shipments of tomatoes from GROWERS. When certain shipments were received by the plaintiff they were not of the quality contracted. As a result, GROWERS, knowing that the tomatoes were not of the quality contracted, granted plaintiff a price reduction. In 1999, the United States Government (Government), conducted an investigation called “Operation Forbidden Fruit” (OFF) wherein it undertook to investigate USDA inspectors and shippers at the Hunts Point Market (Market), located in Bronx County, New York. Nine USDA inspectors were indicted for accepting bribes from the buyers and several of the buyer’s employees were indicted for bribing USDA inspectors. One of the employees indicted was S an employee with the injury plaintiff. Eight USDA inspectors pled guilty to the charges and a ninth ultimately pled guilty as well, but not before cooperating with the Government and its investigation.

Plaintiff alleges that on March 27, 2000, FVA filed an informal complaint with the USDA on behalf of GROWERS and against plaintiff. GROWERS, despite knowledge that the adjustments on tomatoes sold to plaintiff were warranted, sought reimbursement for the adjustments. GROWERS sought reimbursement on eight loads of tomatoes despite previously granting plaintiff an adjustment on many other shipments and failed to seek reimbursement on a load of tomatoes which was part of S’s indictment. In April 2001, FVA filed a formal complaint with the USDA on behalf of GROWERS and against plaintiff seeking reimbursement for adjustments granted to plaintiff totaling $38,000 plus interest and costs.

On February 6, 2002, the USDA issued a decision awarding GROWERS the damages it sought. Plaintiff subsequently sought an appeal of the USDA’s decision in the United States District Court, Southern District of New York (SDNY) pursuant to the Perishable Agricultural Commodities Act (PACA). Upon plaintiff’s filing of the appeal, GROWERS discontinued its action with prejudice, withdrew its complaint with the USDA, and executed a stipulation dismissing the action.

Plaintiff’s first cause of action alleges that the stipulation dismissing the action was an adjudication that defendants had no factual or legal basis to file the complaint with the USDA. It is alleged that defendants knew that the allegations in the complaint were false and that they were nonetheless wrongfully and willfully made with the intent to extort and defraud the plaintiff, using OFF and the guilty pleas resulting therefrom as a basis. As a result of defendants’ abuse of process, commencement, and prosecution of the prior actions, accident plaintiff was caused to expend time, energy and $50,000 in defending the action. As a result of defendants’ actions designed to extort and defraud plaintiff, $500,000 in punitive damages is sought. Plaintiff’s second cause of action, albeit in a more brief fashion, reiterates the first cause of action.

To Be Cont…
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The cases to which defendant cites do not warrant a different result (cf. Diamond v Diamond Diamonte, 57 AD3d 826, 869 NYS2d 609 [2d Dept 2007] [plaintiff failed to appear ready to proceed for two successive court dates during the trial-in-chief, when she was scheduled to undergo cross examination; on the second occasion, which was marked “final” by the court, she was outside of the courthouse in her car and refused to enter the building. Although the court directed her husband, the plaintiff , to bring her into the courtroom, and afforded them adequate time to appear in the courtroom, both of the plaintiff’s then failed to appear before the Supreme Court ready to proceed, which conduct evidenced an intent to abandon the action]; Fuchs v Midali America Corp., 260 AD2d 318, 689 NYS2d 80 [1st Dept 1999] [defendants failed to show a reasonable excuse for their failure to appear on two scheduled trial dates; they failed to explain why some indication of their scheduling needs could not have been conveyed to the court]; Teachers Insurance v Code Beta Group, Inc., 204 AD2d 193, 612 NYS2d 124 [1st Dept 1994] [where defendants’ attorney was aware of complications from eye surgery more than a month before trial was set to begin on February 24, 1992, but failed to arrange for substitute counsel as the court had directed two months before, attorney’s failure to seek substitution of other injury counsel was not excusable given these circumstances]).

Here, Mr. D communicated to the Court, with consent from the defendant on both scheduled dates, that he was actually engaged in two other cases. The XX matter in Part 52 was adjourned less than two weeks prior to March 4th for a traverse hearing. And, defendant’s claim, without documentary support, that the records he reviewed failed to show that Mr. D was actually engaged, fail to overcome the submissions by plaintiff indicating that Mr. D was scheduled to appear in ABC Realty in New York County, and XX in Bronx County on the dates this matter was scheduled for jury selection. Further, the instant matter was scheduled for jury selection; a jury trial had not yet been commenced.

Based on the foregoing, it is hereby ORDERED that the motion by plaintiff for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar is granted, and this matter is restored to the active calendar; and it is further ORDERED that the parties shall appear in Part 40 for trial on July 13, 2009, no further adjournments.

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Opposition

Defendant argues that plaintiff has failed to establish a reasonable excuse for the default. Although Mr. D submitted an Affirmation of Engagement noting that he was on trial starting March 4, 2008 on ABC Realty, Mr. D’s office was advised that Supreme Court takes precedence over any Housing Court matters and was granted an adjournment until the following day in order to be present in Court and/or have a personal injury attorney duly licensed in New York to appear on his behalf.

On the following day, instead of sending an attorney admitted to practice in New York, Mr. D again sent his paralegal and an attorney admitted in Florida. Also, although the second Affirmation of Engagement advises that Mr. D was engaged in a Housing Court action in Bronx County, entitled XX Realty v Hanagan, defendant’s counsel personally reviewed the records of the Bronx County Civil Court and found no Index Number and/or case matching the case of XX Realty v H. Furthermore, a review of the records of the New York County Civil Court revealed that there were no records and/or Index Number matching a case entitled WWW v Z referenced in the plaintiff’s counsel’s motion at paragraph 6 wherein he indicates that he was engaged in a Housing Court trial on that matter.

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In this trip and fall personal injury action, plaintiff moves for an order vacating the default judgment dismissing his Complaint for failure to prosecute and placing this matter back on the trial calendar.

Factual Background
Plaintiff claims that on August 28, 2003, he tripped and fell on an defective protruding lip found on the door saddle while entering the premises located at xxx West 59th Street (the “premises”) owned by defendant.

This action was scheduled for jury selection in Part 40 before Judicial Hearing Officer (“JHO”) G on September 25, 2007, but was adjourned to December 4, 2007 for discovery to be held concerning additional injury to and surgery of plaintiff’s right knee. On December 4, 2007, jury selection was further adjourned to a final trial date of March 3, 2008.

According to plaintiff, on February 29, 2008, a few days before the trial selection date, Mrs. H, a paralegal of trial counsel, Mr. D advised the Court that Mr. D was engaged in a different trial before which he was not permitted to adjourn and was required to complete over the next few days. Plaintiff contends that he was unable to participate in the trial at that time due to medical/health reasons. Plaintiff claims that the Court advised Ms. H to submit an Affirmation of Engagement on March 3, 2008 in order to obtain an adjournment. Further, plaintiff claims that defense counsel consented to an adjournment.

On March 3, 2008, Ms. H went to Part 40 and submitted an Affirmation of Engagement concerning a trial entitled ABC Realty v J and S, in Civil Court, New York County. The Affirmation of Engagement requested an adjournment to the last week in March, indicated that defense counsel would consent to a brief adjournment. The case was adjourned to the following day, March 4, 2008 and the Court advised Ms. H that the case was marked “final” and that Mr. D must appear to avoid the case being dismissed.

Mr. D failed to appear on March 4, 2008. However, Ms. H appeared again, this time with counsel admitted only in Florida. According to plaintiff, Ms. H submitted another Affirmation of Engagement stating that (1) Mr. D was actually engaged in a matter entitled XX Realty v H “Part 52” in Civil Court, Bronx County (2) plaintiff underwent a second surgery, was in pain and unable to attend court, and (3) defense counsel “would consent to a brief adjournment.” Although Mr. D was also actually engaged on March 4, 2008 in another matter entitled WWW v Z, Mr. D retained counsel to handle such matter. However, JHO G rejected the Affirmation of Engagement, and dismissed the case with prejudice.

Plaintiff’s Motion
Defendant contends that JHO G’s dismissal was an improvident exercise of discretion. Defendant argues that the First Department has held that a court’s failure to grant an adjournment to permit defense counsel to recover from surgery was an improvident exercise of discretion in the absence of any indication by defendant that it would have been prejudiced by a slight delay in the start of trial. JHO G’s dismissal was unwarranted because (1) opposing counsel consented to the adjournment, (2) Mr. D was actually engaged, (3) plaintiff was ill and medically unable to participate in trial, (4) there was an incomplete exchange of doctors’ reports and defendant’s medical doctor report after plaintiff s second surgery, and (5) there was no prejudice to defendant if a short adjournment was granted.

To Be Cont…
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XYZ previously moved to dismiss the verified complaint against it, together with any cross-claims; or to treat the motion as one for summary judgment and declare that XYZ has no obligation to defend or indemnify Rx or CCI and no obligation to reimburse AAA in connection with the underlying lawsuit or third party personal injury actions.

Under Insurance Law, an insurer wishing to disclaim liability or deny coverage for death or bodily injury must “give written notice as soon as reasonably possible of such disclaimer or denial of coverage.” A failure to give such prompt notice precludes an effective disclaimer or denial. Timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage. Further, an insurer’s explanation is insufficient as a matter of law where the basis for denying coverage was or should have been readily apparent before the onset of the delay.

The Court finds that XYZ’s disclaimer under Insurance Law §3420(d(2) was timely, as the basis for denying personal injury coverage was not readily apparent. The documentation attached to Rx’s Tender Letter did not provide sufficient facts to enable XYZ to disclaim coverage on the grounds of the Employee Exclusion or the Contractual Liability Exclusion provisions of the policy.

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