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New 1st Dept. Cases of Interest

Posted by Andrew J. Barovick | Mar 20, 2009 | 0 Comments

What you don't know about those status conference orders can really hurt you.  This is illustrated painfully in a March 19, 2009, decision, Regina Carter v. Isabella Geriatric Center, Inc. ,  NY Slip Op 01914 (1st Dept. 2009).  The January 10, 2008 order, issued during a status conference, precluded plaintiff from presenting expert witness testimony at trial due to the insufficiency of her expert witness disclosure.  In light of the preclusion, the complaint was dismissed, all in the same order.

When plaintiff appealed, the First Department found that the order was “not appealable as of right because it did not decide a motion made on notice,” and cited for support to CPLR 5701[a][2] and relevant cases.  The Court would not grant plaintiff leave to appeal pursuant to CPLR 5701[c] because the record was too bare to provide it with anything to review.  However, the appellate judges were not completely without sympathy for the plaintiff.  They held that her remedy was a motion to vacate the lower court's order.

The First Department also addressed the circumstances under which quality assurance reports are discoverable.  In Clement v. Kateri Residence , NY Slip Op 01922 (1st Dept. 2009), the Court affirmed the granting of plaintiff's motion to compel the production of negative outcome and incident reports involving occurrences similar to those in the complaint, finding that such documents were not protected by the quality assurance privilege.  The Court justified its decision by noting that, while the reports were used by the defendant institution's quality assurance committee, they were not prepared at the committee's behest.  Instead, they were routinely prepared and maintained pursuant to 10 NYCRR 415.15(a)[3](i), which made them subject to disclosure.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

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