Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

S. M. F. v. SLS Residential

April 27, 2010

S. M. F. (ANONYMOUS), ET AL., RESPONDENTS,
v.
SLS RESIDENTIAL, INC., ET AL., APPELLANTS.



In an action, inter alia, to permanently enjoin the defendants from disclosing confidential mental health information, the defendants appeal (1) from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated January 27, 2009, which sealed the papers submitted in connection with that branch of the motion of the plaintiff G. S. F. which was to dismiss the counterclaim asserted against him and those branches of the plaintiffs' motion which were for summary judgment on the first cause of action alleging a violation of Mental Hygiene Law § 33.13 and the second cause of action alleging breach of fiduciary duty, (2), as limited by their brief, from so much of an order of the same court dated February 18, 2009, as, upon a decision dated January 27, 2009, granted those branches of the plaintiffs' motion which were for summary judgment on the first and second causes of action, and denied the defendants' cross motion for summary judgment dismissing the first cause of action insofar as asserted against the defendants Joseph Santoro and Alfred Bergman, and dismissing the second and third causes of action asserted against all of them, (3) from a judgment of the same court dated March 27, 2009, which, upon the decision and the order dated February 18, 2009, is in favor of the plaintiffs and against them on the first and second causes of action, (4) from an order of the same court dated March 9, 2009, which granted the plaintiffs' motion to permanently enjoin them from disclosing confidential mental health information and denied their cross motion to impose sanctions, (5) from an order of the same court also dated March 9, 2009, which sealed the papers submitted in connection with that motion and cross motion, (6) from a judgment of the same court, also dated March 27, 2009, which, upon the first order dated March 9, 2009, permanently enjoined the defendants from disclosing confidential mental health information, (7) from an order of the same court dated May 5, 2009, inter alia, limiting access to the case file in this action to certain persons, (8), as limited by their brief, from so much of an order of the same court dated June 10, 2009, as denied their second cross motion to impose sanctions, and (9) from an order of the same court also dated June 10, 2009, which sealed the papers submitted in connection with the plaintiffs' motion for leave to discontinue the third cause of action and their second cross motion to impose sanctions.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN and SANDRA L. SGROI, JJ.

(Index No. 13007/07)

DECISION & ORDER

Motion by the respondents on appeals from seven orders of the Supreme Court, Westchester County, dated January 27, 2009, February 18, 2009, March 9, 2009 (two orders), May 5, 2009, and June 10, 2009 (two orders), respectively, and two judgments of the same court, both dated March 27, 2009, to dismiss certain appeals on the ground that review of the issues raised on those appeals is barred by the dismissal of prior appeals for failure to timely perfect (see Bray v Cox, 38 NY2d 350), and to strike stated portions of the record on appeal and the appellants' brief. By decision and order on motion of this Court dated September 25, 2009, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that those branches of the motion which were to dismiss the appeals from the order dated January 27, 2009, the second order dated March 9, 2009, the order dated May 5, 2009, and the second order dated June 10, 2009, are granted, and those appeals are dismissed; and it is further,

ORDERED that the branch of the motion which was to strike stated portions of the record on appeal and the appellants' brief is granted to the extent that page xii, question 4; the first full paragraph of page three; the words "without engaging in the analysis required by 22 N.Y.C.R.R. § 216.1" in the first paragraph of page 6, Point V; the last sentence of Point V.F. of the Statement of Facts; the last sentence of footnote 25 on page 84; and paragraphs 5 and 7 (a) through (c) on pages 100-101 of the appellants' brief; and pages 3-4, 19-20, 34-35, and 38-39 of the record on appeal are stricken and have not been considered in the determination of the appeals; and it is further,

ORDERED that the appeals from the order dated February 18, 2009, and the first order dated March 9, 2009, are dismissed; and it is further,

ORDERED that the first order dated June 10, 2009, is affirmed insofar as appealed from; and it is further,

ORDERED that the judgments are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see Faricelli v TSS Seedman's, 94 NY2d 772; Bray v Cox, 38 NY2d 350). The defendants appealed from orders dated January 15, 2008, and February 13, 2008, which, respectively, granted the plaintiffs' motion for a protective order and directed that all documents which referenced or contained confidential information be filed under seal. Those appeals were dismissed for failure to timely perfect. The dismissals constituted an adjudication on the merits with respect to all issues which could have been reviewed on those appeals. We decline to exercise our discretion to determine the merits of the present appeals from the order dated January 27, 2009, the second order dated March 9, 2009, the order dated May 5, 2009, and the second order dated June ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.