Page 24 - WCBA CLE 6-14-2022

22

and all peer-review reports. The defendant hospital moved for a protective order based upon the

quality-assurance privileges set forth in Education Law § 6527(3) and Public Health Law § 2805-m. The
hospital sought to protect the peer-review meeting minutes from disclosure, and to limit the portions of
the meeting minutes that constituted statements made by an individually named defendant concerning
the care and treatment of the decedent.

The Supreme Court determined that statements contained in the peer-review committee meeting
minutes that were attributed to the “committee” or where the speaker was not identified, were not
entitled to the quality-assurance privilege. The Second Department affirmed, and found that a party
asserting the quality-assurance privilege pursuant to Education Law § 6527(3) and Public Health Law §
2805-m(2) with regard to medical peer-review committee meetings has the burden of demonstrating
that any statements made at such a meeting that are claimed to be privileged were made by a nonparty.
Where the meeting’s minutes do not identify the speaker, the party-statement exception to the quality-
assurance privilege applies.
PISULA v ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, 200 AD3d 88 (December 2021) by Dillon, J.

In an action brought under the Child Victims Act (CPLR 214-g) for damages from alleged sexual abuse,
the plaintiff filed an amended complaint alleging various causes of action sounding in negligence. The
defendant moved pursuant to CPLR 3024 (b) to strike scandalous or prejudicial matter from the
amended complaint. The Supreme Court denied the defendant’s motion, finding that the purported
prejudicial information was all relevant to the plaintiff’s claims of abuse.

The Second Department clarified bright line rules regarding the interplay of CPLR 214-g and the pleading
requirements of CPLR 3013 and 3024(b), which included, inter alia, (1) factual allegations about a
plaintiff’s own alleged sexual abuse will not be stricken from the complaint under CPLR 3024(b), as they
are central and necessary to giving notice of the occurrence; (2) factual allegations about a defendant’s
subsequent relevant statements or conduct that specifically relate back to the sexual abuse of the
plaintiff will not be stricken from the complaint under CPLR 3024(b); and (3) factual allegations about a
defendant’s statements or conduct regarding a subsequent sexual abuse survivor, other than the
plaintiff, may be stricken from the complaint under CPLR 3024(b) on the ground that they are
scandalous or prejudicial.

CALDWELL v NEW YORK CITY TRANSIT AUTHORITY, 203 AD3d 6 (December 2021) by Barros, J.
This case presents the issue of whether the 2013 amendments to CPLR 4106, which changed the statute
to allow trial courts to substitute a regular juror with an alternate juror even after deliberations have
begun, may be reconciled with the constitutional right to a trial by a six-member jury wherein each juror
deliberates on all issues.

The Second Department held that to reconcile CPLR 4106 with the constitutional and statutory
requirements for a civil jury verdict, upon substituting an alternate juror in place of a regular juror after
deliberations have begun, the trial court must provide an instruction to the jury directing them to restart
their deliberations from the beginning with the substituted juror and disregard and set aside all prior
deliberations.