Davis v Regan

[*1] Davis v Regan 2013 NY Slip Op 50798(U) Decided on May 15, 2013 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 15, 2013
Supreme Court, Kings County

Tarah Davis and Ian Kyle Rivero, Plaintiffs,

against

Dorothy Regan, Brooklyn Public Library Foundation, Inc. and the City of New York, Defendants.



17816/09



Plaintiff Attorney: Avanzino & Moreno, P.C., 26 Court Street, Suite 2015, Brooklyn, NY 11242

Defendant Attorney: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 150 East 42nd Street, New York, NY 10017

David I. Schmidt, J.

The following papers numbered 1 to 5 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 - 23 - 4

Opposing Affidavits (Affirmations)45

Reply Affidavits (Affirmations)5

Affidavit (Affirmation)

Other Papers:

Upon the foregoing papers, defendants Dorothy Regan and the Brooklyn Public Library Foundation (collectively BPL)[FN1] move for an order, pursuant to CPLR 3211, [*2]General Municipal Law (GML) §§ 50 - E and 50 - I, dismissing plaintiffs' action for failing to serve a notice of claim or, in the alternative, pursuant to CPLR 3124, compelling plaintiffs to provide outstanding discovery. Plaintiffs Tarah Davis (Davis) and Ian Kyle Rivero (Rivero) cross-move for an order dismissing BPL's motion and, pursuant to CPLR 8106 and the Rules of the Chief Administrative Judge § 130 - 1.1, awarding plaintiffs costs and sanctions as against BPL.

Background

The underlying action involves a motor vehicle accident wherein a vehicle owned and operated by BPL struck plaintiffs' vehicle in the rear. By stipulation dated June 20, 2011, plaintiffs withdrew a motion for summary judgment and BPL admitted liability for causing the motor vehicle accident. Additionally, BPL waived the defense of comparative negligence but reserved all other defenses. Discovery commenced and, on September 15, 2011, plaintiffs filed a note of issue indicating that discovery was complete and the action was ready for trial. Shortly thereafter, BPL moved by order to show cause seeking, among other things, to vacate plaintiffs' note of issue arguing that, among other things, outstanding discovery had yet to be completed. By order dated November 17, 2011, Justice Lawrence S. Knipel denied BPL's request, stating clearly on said order, "This case will remain on the trial calendar."

BPL now moves this court for an order dismissing plaintiffs' action alleging that BPL is a public entity that was entitled to service of a notice of claim, pursuant to GML §§ 50 - E and 50 - I, prior to Davis and Rivero initiating the instant suit. BPL further alleges that, as plaintiffs have neither served a notice of claim, nor moved for late service prior to expiration of the statute of limitations, plaintiffs' action must be dismissed as of law. In the alternative, BPL seeks an order compelling plaintiffs to provide discovery that it alleges to be outstanding.

In opposition, plaintiffs cross-move to dismiss BPL's motion as well as for costs and sanctions against BPL. Plaintiffs contend that BPL was fully aware that the Brooklyn Public Library Foundation was not entitled to a notice of claim - and by extension, neither was its employee and vehicle's operator, Davis - yet filed its motion nonetheless. As a result of BPL's alleged "lack of candor," plaintiffs seek costs and sanctions for having to defend against the allegedly frivolous motion. With regard to BPL's request for additional discovery, plaintiffs aver that both Davis and Rivero have acted in good faith in responding to all of BPL's demands. Plaintiffs contend that since BPL was unsuccessful in vacating the note of issue, to now obtain post-note of issue discovery, defendants must satisfy the "unusual or unanticipated circumstances" requirement of 22 NYCRR 202.21 (d). In seeking dismissal of defendants' motion, plaintiffs proffer that BPL has not only failed to meet this standard, it has not even made the argument within the instant motion.

Discussion

I. Branch of Motion and Cross Motion regarding the "Notice of Claim" issue

BPL has alleged that the Brooklyn Public Library is a public entity entitled to the [*3]protections of the notice of claim requirement. In support, BPL relies on the decision in Bovich v East Meadow Pub. Lib., 16 AD3d 11 [2005], an appellate division, second department, case wherein the court held that the East Meadow Public Library was entitled to notice of claim protection. In further support, BPL cites from Rosemarie Stephen v Brooklyn Public Library and the City of New York, an ongoing Supreme Court action, as follows:

"[T]his Court has already recognized the Second Department's decision in Bovich as being controlling and applicable to the Brooklyn Public Library. In the matter of Rosemarie Stephen v Brooklyn Public Library and the City of New York, this Court affirmed that the Brooklyn Public Library is a public corporation entitled to a notice of claim. (Copies of the relevant transcript pages are annexed hereto as (exhibit omitted)."

As an initial matter, the court points out that BPL's reliance on the Stephen case is misplaced and lends no support for its position. When citing to Stephen, BPL draws language, not from a written decision on the matter, but from a trial transcript of proceedings involving the adjudication of in limine motions, prior to beginning the trial. In fact, no written decision including BPL is forthcoming as BPL was dismissed as a party defendant. "The general rule is that [a] decision or verdict upon which no formal judgment has been entered has no conclusive character and is ineffective as a bar to subsequent proceedings' (9 Carmody—Wait 2d, NY Prac § 63.455, at 191; see, Rudd v. Cornell, 171 NY 114, 128—129, 63 N.E. 823; Denike v. Denike, 44 App.Div. 621, 60 N.Y.S. 110, aff'd 167 NY 585, 60 N.E. 1110; see also, Berkshire Nursing Center v. Len Realty Co., 168 AD2d 475, 562 N.Y.S.2d 716; Ott v. Barash, 109 AD2d 254, 491 N.Y.S.2d 661; Peterson v. Forkey, 50 AD2d 774, 775, 376 N.Y.S.2d 560; Wiederhorn v. Karlan, 267 App.Div. 163, 45 N.Y.S.2d 109; Pinkus v. Pinkus, 230 App.Div. 791, 244 N.Y.S. 652; Mandracchia v. Russo, 53 Misc 2d 1018, 280 N.Y.S.2d 429; Restatement [Second] of Judgments § 13; 73 NY Jur 2d, Judgments, § 354, at 436—437; 5 Weinstein—Korn—Miller, NY Civ Prac ¶ 5011.10)"

(Begelman v Begelman, 170 AD2d 562, 563 [1991]).

In sum, there will be no decision rendered, nor judgment entered, in Stephen, incorporating a "finding," that the Brooklyn Public Library is an entity entitled to service of a notice of claim. Just as such an oral determination fails to constitute res judicata to subsequent actions (Id.), so too such oral determinations lack the persuasive authority of a formal written decision rendered by the court.

Raised in plaintiffs' opposition, and discussed, for the first time by BPL, in its reply to same, is such a formal decision, to wit, Rodriguez v Brooklyn Public Library, 34 Misc 3d 310 [2011]. As opposed to a verbal discussion recorded in an in limine motion transcript, the written decision in Rodriguez discusses the gravamen of BPL's instant motion at great length, distinguishing BPL from the East Meadow Public Library in [*4]Bovich and holding that BPL is not an entity entitled to the protections of the notice of claim requirement.[FN2] In contravention of BPL's contentions, this courts finds persuasive the authority set forth in Rodriguez wherein the trial reasoned as follows:

"[T]he Appellate Division, Second Department, in Brooklyn Public

Library v Craig, held, at 723, "The library is not a branch of the city government, but is a distinct and separate corporation, receiving budgetary contribution from the city, like other educational agencies such as the various museums of art and of natural history and the College of the City of New York" [Emphasis added in original]. (See Flawless Realty, Co. v Brooklyn Public Library, 48 AD2d 891 [2d Dept. 19751; La Marca v Brooklyn Public Library, 256 AD 954 [2d Dept 1939]).

With regard to BPL's employees, the court opined:

"Moreover, employees of the various public libraries in the City of New York are not employees of the City of New York for purposes of the Taylor Law. (New York Public Library v New York State Public Employment Relations Bd., 45 AD2d 271 [lst Dept 1974]). In the above PERB case, the Court held, at 280, that the strong financial dependence of the Library upon the City, in and of itself, does not transform the Library personnel into city employees under the Taylor Act and it does no make the City a joint employer.'"

In further distinguishing BPL (and its employees) the Rodriguez court continued:

"Further, [within New York Public Library] at 533, the Court instructed:

In considering the meaning of public corporation' PERB has previously followed the definition of that term as set forth in Van Campen v Olean GeneralHospital, 210 App. Div. 204, 206 [4th Dept 1924], as follows: Public corporations are the instrumentalities of the State, founded and owned by it in the public interest, supported by public funds and governed by managers deriving their authority from the State.' (See Matter of Nassau Library System, 1 PERB 3171; Matter of North Country Library System, 1 PERB 3173.)

[BPL], as noted earlier, is a private, separate legal entity controlled by an [*5]independent Board of Trustees and it certainly does not come within the above definition. Nor can we conclude that [BPL] is any other agency or instrumentality or unit of government.

In the North Country Library System case (supra) PERB noted that the Library therein was not an agency of government since its board of trustees was not appointed by any government and the Library existed separate and apart from any governmental agency.

And, PERB also stated with respect to the phrase instrumentality or unit of government which exercises governmental powers' as follows:

Such powers are those which may be exercised only by the state (in contradistinction to proprietary powers, which are exercisable by individuals or the state) or by a lesser governmental body to which such powers have been delegated by the state. By way of example, they would include the power to tax, to enact general legislation which is judicially enforceable, to take by eminent domain, and to exercise police powers,' (North Country Library System, supra, p. 3175.)

Neither [BPL] nor its trustees are possessed of such powers, but merely provide a service, which although of public interest and benefit, is not the equivalent of the exercise of governmental powers.

We conclude that the city is neither the employer of [BPL] personnel nor a joint employer with [BPL] for the purposes of the Taylor Act and farther, that [BPL] is not a government or public employer within the meaning of the Act. [Emphasis added in original].

While BPL is dependent upon the City of New York for its existence, it does not receive all of its financial support from the City of New York. The East Meadow School District, in Bovich, provided all the finding for the East Meadow Public Library. In the notes to BPL's June 30, 2010 and 2009 Financial Statements, prepared by Eisner Amper LLP, BPL's independent auditor, it states in Note A [1] that [t]he Library receives significant support through government appropriations (primarily New York City and New York State), and its continuing operations are dependent upon such government support.' Further, it states that [t]he Library is exempt from federal income taxes under Section 501 (c) (3) of the U.S. Internal Revenue Code and from state and local taxes under comparable laws.' The latest Federal Income Tax Form 990 available for the BPL, for fiscal 2010, prepared by Eisner Amper, LLP, states on the first page that BPL is a § 501 (c) (3) corporation, with total revenues of $105,810,068 for the fiscal year ending on June 30, 2010. A municipal corporation' would not be a tax-exempt charitable [*6]corporation. Also, according to p. 14 of BPL's 2010 Annual Report, the City of New York provides only 62% of BPL's revenue and support. . .

Thus it is clear that defendant BPL is not a municipal corporation' and its status is very different from that of the East Meadow Public Library. BPL is wholly different from the libraries covered by Bovich and BPL is not subject to the notice of claim requirements of GML §50 - I . . . [T]he City of New York did not create BPL. While the East Meadow Public Library receives all its funding from the Fast Meadow School District, BPL is funded from a variety of sources and, unlike the East Meadow Public Library, does not depend exclusively upon a municipal corporation, the City of New York, for its existence. . .

Moreover, BPL is insured by One Beacon Insurance Company for $1,000,000 in combined single limit coverage.' If BPL was actually an entity of the City of New York, it would not have private insurance, but would be covered under the self-insurance of the City of New York. The fact that BPL is privately insured is further evidence that BPL is a corporation, distinct and separate from the City of New York. Thus, there is no need for plaintiff . . . to have served a notice of claim upon BPL."

Accordingly, persuaded by the above rationale, this court finds that BPL is not an entity entitled to service of a notice of claim thus, that branch of BPL's motion seeking dismissal of plaintiff's action for failing to serve same is denied.

II. Branch of Motion and Cross Motion regarding the "Post-Note of Issue Discovery" issue

"After the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The first, pursuant to the Uniform Rules for Trial Courts (hereinafter the Uniform Rules) (22 NYCRR) § 202.21 (d), provides, in pertinent part: "Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings." The second, pursuant to 22 NYCRR 202.21(e), provides, in pertinent part: [w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.'" (Audiovox Corp. v Benyamini, 265 AD2d 135, 141 [2000])

Plaintiffs filed a note of issue on September 15, 2011. BPL then timely moved, by order [*7]to show cause to, among other things, vacate the plaintiffs' note of issue. In an order dated November 17, 2011, after hearing oral argument on the motion, the court denied such request, reciting specifically that, "[t]he case will remain on the trial calendar." Since "the party seeking discovery moves to compel such discovery after the 20-day period provided by 22 NYCRR 202.21 (e) has expired, the more stringent standard under 22 NYCRR 202.21 (d) must be met" (Audioxoc Corp., at 140).

For purposes of clarity, the court will address BPL's request for post - note of issue discovery in the same order each demand appears within its instant motion at paragraph "26c", sub-paragraphs "a" through "e",[FN3] to wit: I.Paragraph "26a," sub-paragraph "a": Defendants demand "[c]opies of any transcripts from plaintiffs' 50-h hearings." Pursuant to plaintiffs' November 20, 2009 response, "[p]laintiffs did not submit to a 50-h hearing," therefore, BPL's demand is denied.

II.Paragraph "26a," sub-paragraph "b": Defendants demand "[d]uly executed and acknowledged HIPAA-compliant authorizations (expiring at the end of litigation) for trial subpoena purposes for plaintiff Tarah Davis's [sic] complete records from 1) Dr. David Adin, 2) Dr. Charles Kaplan, 3) Thomas A. Scilaris, M.D., 4) Lenox Hill Radiology, 5) Beth Israel Petrie Division, 6) Downstate Medical Center, 7) All County Open MRI & Diagnostic Radiology, 8) Orthopaedic Specialists of Greater New York, P.C., 9) Health East Ambulatory Surgical Center, 10) New York Orthopaedic & Rehabilitation, 11) The Hartford Insurance, 12) plaintiffs workers' compensation carrier, 13) the New York State Workers' Compensation Board, 14) plaintiffs pharmacies since January 20, 2009, 15) Urban Organic (employment records), 16) U.S. Department of Treasury/IRS and 17) New York State Department of Finance."

A.Regarding demands 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15:[FN4]

i.Plaintiff shall provide fresh HIPAA-compliant authorizations for any and all authorizations that were provided to BPL prior to its instant motion. Such authorizations shall not expire until 60 days after the conclusion of litigation. Plaintiff to provide such authorizations within 45 days of service [*8]of this decision with notice of entry.

ii.Any remaining demands are denied as BPL has not made a showing of "unusual or unanticipated circumstances" sufficient to support such post - note of issue demands (see 22 NYCRR 202.21 (d); Audiovox Corp. v Benyamini, 265 AD2d 135, 141 [2000]). We need not address the second prong of the standard under 22 NYCRR 202.21 (d), i.e., substantial prejudice to the movant, because BPL has not established the first prong, that "unusual or unanticipated circumstances" developed subsequent to the filing of the note of issue (see Id.).

B.Regarding demand 14:

i.Defendants allege that these records were demanded within BPL's August 12, 2009 combined demands. Reviewing such demand, included as Exhibit "J" to BPL's motion, the court finds no such language, therefore, this demand is denied as BPL has not made a showing of "unusual or unanticipated circumstances" sufficient to support such post - note of issue demands (see 22 NYCRR 202.21 (d); Audiovox Corp. v Benyamini, 265 AD2d 135, 141 [2000]). We need not address the second prong of the standard under 22 NYCRR 202.21 (d), i.e., substantial prejudice to the movant, because BPL has not established the first prong, that "unusual or unanticipated circumstances" developed subsequent to the filing of the note of issue (see Id.).

C.Regarding demands 16 and 17:

i.To the extent plaintiff, Davis, makes a loss of earnings claim as an employee of Urban Organic, plaintiff shall provide fresh authorizations for her W-2 records in accordance with the October 1, 2009 preliminary conference order. Such authorizations shall not expire until 60 days after the conclusion of litigation. Plaintiff to provide such authorizations within 45 days of service of this decision with notice of entry.

III.Paragraph "26a," sub-paragraph "c": Defendants demand "[d]uly executed and acknowledged HIPAA-compliant authorizations (expiring at the end of litigation) for trial subpoena purposes for plaintiff Ian Kyle Rivero's complete records from: 1) Dr. Christopher Kyriakides, 2) Dr. David Adin, 3) Dr. Michael Gerling, 4) All County Open MRI & Diagnostic Radiology, 5) Endo/Surgical Center of North [*9]Jersey, 6) New York Orthopaedic & Rehabilitation, 6) The Hartford Insurance, 7) Kings County Hospital (from the 2006 accident), 8) Kings Highway Chiropractic Office (from the 2006 accident)[FN5], 9) All County Open MRI & Diagnostic Radiology, 10) Port Rehab Medical, P.C. (from the 2006 accident), 11) Health East Ambulatory Surgical Center, 12) Northeast Anasthesia & Pain Management, 13) Maria Audrey DeJesus, M.D., 14) Jane Kei-Yun, L.Ac., and 15) Raghava R. Polavarapu, M.D.

A.Plaintiff shall provide fresh HIPAA-compliant authorizations for any and all authorizations that were provided to BPL prior to its instant motion. Such authorizations shall not expire until 60 days after the conclusion of litigation. Plaintiff to provide such authorizations within 45 days of service of this decision with notice of entry.

B.Any remaining demands are denied as BPL has not made a showing of "unusual or unanticipated circumstances" sufficient to support such post - note of issue demands (see 22 NYCRR 202.21 (d); Audiovox Corp. v Benyamini, 265 AD2d 135, 141 [2000]). We need not address the second prong of the standard under 22 NYCRR 202.21 (d), i.e., substantial prejudice to the movant, because BPL has not established the first prong, that "unusual or unanticipated circumstances" developed subsequent to the filing of the note of issue (see Id.).

IV.Paragraph "26a," sub-paragraph "d": These demands are substantially similar to those itemized within BPL's motion at paragraph "26a", sub-paragraph "b" and have previously been addressed by the court in section "II" above.

V.Paragraph "26a," sub-paragraph "e": These demands are substantially similar to those itemized within BPL's motion at paragraph "26a", sub-paragraph "c" and [*10]have previously been addressed by the court in section "III" above.

III. Branch of Cross Motion regarding the "Sanctions" issue

The court is authorized to impose financial sanctions for frivolous conduct pursuant to 22 NYCRR 130-1.1(a):

"Among the types of conduct which will be considered frivolous are those determined to be completely without merit in law' or undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another' (22 NYCRR 130-1.1[c][1], [2]; see Ofman v Campos, 12 AD3d 581; Stow v Stow, 262 AD2d 550. In making that determination, the court must consider the circumstances under which the conduct took place' and whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent' (22 NYCRR 130-1.1[c])" (Glenn v Annunziata, 53 AD3d 565 [2008]).

BPL's attempt to assert the same legal theory before varied Justices of the Supreme Court in separate, unrelated actions can not be deemed frivolous in light of the foregoing discussion. Similarly, in reviewing the length of the record in this matter, including the volume of authorizations produced, the presence of duplicate requests, while unfortunate, fails to rise to the level of sanctionable conduct. While the court notes that improper conduct will not be countenanced, based upon the circumstances herein, it declines to award costs and sanctions at this time, reserving the right to revisit this issue should the parties' conduct warrant same.

Conclusion

To recapitulate, that branch of BPL's motion seeking dismissal of plaintiffs' action is dismissed in its entirety. That branch of BPL's motion for post-note of issue discovery is granted only to the extent consistent with section "II" above.

That branch of plaintiffs' cross motion seeking dismissal of BPL's motion is granted except that plaintiffs must provide updated authorizations consistent with section "II" above. That branch of plaintiffs' cross motion seeking costs and sanctions is denied in its entirety, at this time.

The court, having considered the parties' remaining contentions, finds them to be without merit. All relief not expressly granted herein is denied.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:BPL alleges that this action was discontinued by stipulation as against the City of New York, however, the record indicates that the City of New York was granted summary judgment and released from this matter by order dated November 20, 2009.

Footnote 2:The court notes that the Stephen transcript, cited by BPL herein, was recorded on May 27, 2011. The Rodriguez decision was rendered afterward on November 29, 2011. BPL's instant motion was served August 21, 2012, nearly eight months after Rodriguez. BPL's current counsel herein also represented BPL in both the Stephen and Rodriguez Kings County Supreme Court actions discussed above. For this reason it is unclear why BPL relies heavily on the in limine transcript, characterizing it as a "prior ruling," wherein the judge "adopted the second department's standard" in making her "decision," while simultaneously reminding the court that the later Rodriguez written decision "does not constitute binding precedent on this issue." As a final note, there is no evidence that the decision in Rodriguez was appealed.

Footnote 3:Defendants' motion contains three paragraphs numbered "26". As a result, the court denotes each as "26a", "26b" and "26c" in the order same appears on the motion page.

Footnote 4:In contravention of BPL's allegation, authorizations for 12, 13 and 15 were provided previously in plaintiffs' November 20, 2009 response as same appears within the County Clerk's minutes.

Footnote 5:Defendants have served demands with regard to "two" separate prior motor vehicle accidents involving Rivero. According to the October 1, 2009 preliminary conference order, completed by the parties, the dates for each of these were September 14, 2006 and January 26, 2008 respectively. However, according to the plaintiffs' December 28, 2009 response, Rivero provided medical authorizations for the September 14, 2006 accident and alleged that he "denies an accident on December 26, 2008 which required hospital or medical care" (emphasis added). BPL's instant motion does not clarify the correct date of the second accident, nor does it assert any demands in connection therewith. Consequently, the court takes the position that the preliminary conference order incorrectly stated the date of the second accident as occurring in "January" and plaintiffs' December 28, 2009 response settles this issue as between the parties.