Doctor Not Defamed by Incorrect Report

            In Rosenthal v. MDX (16519/14, NYLJ 1202794299180, App. Div., 2nd, decided July 26, 2017), a New York doctor brought a lawsuit against an operator of a website after the website repeatedly misidentified him as being deceased.  In the lawsuit, commenced in New York Supreme Court, Kings County, the doctor sought damages for defamation, negligence, and prima facie tort - but the complaint did not allege any special damages.  As a result, the website operator moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.  The Supreme Court granted the motion, and the doctor appealed to the New York Appellate Division, Second Department.

            The Appellate Division affirmed the trial court's decision, thereby dismissing the doctor's lawsuit.  With respect to the defamation claim, the Court held the following: "A false written statement is libelous per se, and thus actionable without allegation or proof of special damage, if it 'tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of rightthinking persons, and to deprive him of their friendly intercourse in society'...A false written statement is also libelous per se if it 'tends to disparage a person in the way of his office, profession or trade'...Contrary to the plaintiff's contention, the defendant's alleged act of misidentifying him as deceased does not fall within these definitions...."

Salvatore R. Marino, Esq.

Destroyed Accident Site Leads to Spoliation Charge

            In Osorio v. Louis Richardt Holdings LLC (21487/12E, NYLJ 1202784005507, Supreme Court, Bronx County, decided March 23, 2017), Bronx Supreme Court Justice Lizbeth González granted a plaintiff an adverse inference jury charge against several defendant property owners and/or operators, after holding that those defendants, during the discovery stage of litigation, wrongfully destroyed the accident location premises in which the plaintiff claims caused him to fall and sustain serious injuries.  

            Particularly, the plaintiff alleges that as a result of the defendants' negligence, he sustained serious injuries when a defective step collapsed as he ascended the basement stairs of premises located in Bronx County, causing him to fall to the ground.  Approximately one year later in June 2013, and after the plaintiff commenced a lawsuit, the defendants replaced and destroyed the basement staircase without prior notice to the plaintiff's counsel - despite the plaintiff's counsel's requests for a site inspection.  As a result, the plaintiff made a motion to strike the defendants' answers, and alternatively sought an adverse inference jury charge based on defendants' spoliation of material evidence.

            The Court granted plaintiff's motion in part, holding as follows: "After careful consideration and review, the court finds that as a matter of law, defendants willfully and deceptively destroyed material evidence - the basement staircase - with notice that the evidence would be needed for litigation.  The court notes that defendants moreover failed to correct their attorney's representation that the staircase remained unchanged post-accident as referenced in [plaintiff's counsel's] email to [defendants' counsel].  Plaintiff's motion is granted to the extent that the sanction of an adverse inference in plaintiff's favor is hereby ordered; this sanction shall be communicated to the jury in the event of trial.  Striking the answers herein, however, is not warranted since the Preliminary Conference Order does not reference any inspections and plaintiff waited more than two years before attempting to schedule an inspection date...."

Salvatore R. Marino, Esq.

Court Strikes Errata Sheet Corrections

            In Murillo v. The City of N.Y. (155467/2014, NYLJ 1202776765237, decided December 16, 2016), a personal injury case, the New York County Supreme Court held that a plaintiff's corrections made on errata sheets for his deposition transcript should be stricken as they were improper.  Particularly, the defendant made a motion requesting the Court to strike the plaintiff's errata sheet corrections, contending the following: that plaintiff failed to provide any explanations for the changes as required by CPLR Rule 3116(a); that the errata sheet corrections were not accompanied by an affidavit from a Spanish translator; and that the changes are so substantive in nature that they materially alter his testimony.  In opposition to the motion, plaintiff submitted two sets of errata sheets, one in Spanish and one in English, each signed and acknowledged by plaintiff; plaintiff's submission was also accompanied by an affidavit from a person who certified that he or she was fluent in Spanish and English, and that the errata sheets were translated from Spanish to English.

            The Court granted the defendant's motion, and held, among other things, the following: "It is undisputed that plaintiff's errata sheets, as initially served, are improper under the statute as none of the changes are accompanied by an explanation or a reason for the change...As for the second submission, the Court notes that it is technically untimely under CPLR Rule 3116(a), which states that '[n]o changes to the transcript may be made by the witness more than sixty days after the submission to the witness for examination.'  Here, the deadline for plaintiff's changes was April 7, 2016, yet the explanations to plaintiff's EBT changes and affidavit of translation were e-filed with his first set of opposition papers on April 12, 2016.  Although the Court may extend time under CPLR Section 2004, such relief is appropriate only upon a showing of good cause...Even though the second submission is untimely by a mere few days, plaintiff failed to give any justification for the delay in providing reasons or explanations for the EBT changes. Therefore, the motions could be granted on this basis alone."

Salvatore R. Marino, Esq.