| S.M.F. v SLS Residential, Inc. |
| 2010 NY Slip Op 03403 [72 AD3d 1014] |
| April 27, 2010 |
| Appellate Division, Second Department |
| S.M.F. et al., Respondents, v SLS Residential, Inc., et al.,Appellants. |
—[*1] Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A. Cheverko ofcounsel), for respondents.
In an action, inter alia, to permanently enjoin the defendants from disclosing confidentialmental 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 submittedin connection with that branch of the motion of the plaintiff G.S.F. which was to dismiss thecounterclaim asserted against him and those branches of the plaintiffs' motion which were forsummary 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 bytheir brief, from so much of an order of the same court dated February 18, 2009, as, upon adecision dated January 27, 2009, granted those branches of the plaintiffs' motion which were forsummary judgment on the first and second causes of action, and denied the defendants' crossmotion for summary judgment dismissing the first cause of action insofar as asserted against thedefendants Joseph Santoro and Alfred Bergman, and dismissing the second and third causes ofaction 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 andagainst them on the first and second causes of action, (4) from an order of the same court datedMarch 9, 2009, which granted the plaintiffs' motion to permanently enjoin them from disclosingconfidential 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 inconnection with that motion and cross motion, (6) from a judgment of the same court, also datedMarch 27, 2009, which, upon the first order dated March 9, 2009, permanently enjoined thedefendants from disclosing confidential mental health [*2]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 bytheir brief, from so much of an order of the same court dated June 10, 2009, as denied theirsecond cross motion to impose sanctions, and (9) from an order of the same court also dated June10, 2009, which sealed the papers submitted in connection with the plaintiffs' motion for leave todiscontinue the third cause of action and their second cross motion to impose sanctions.
Motion by the respondents on appeals from seven orders of the Supreme Court, WestchesterCounty, 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 datedMarch 27, 2009, to dismiss certain appeals on the ground that review of the issues raised onthose appeals is barred by the dismissal of prior appeals for failure to timely perfect (seeBray v Cox, 38 NY2d 350 [1976]), and to strike stated portions of the record on appeal andthe 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 fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that those branches of the motion which were to dismiss the appeals from the orderdated January 27, 2009, the second order dated March 9, 2009, the order dated May 5, 2009, andthe second order dated June 10, 2009, are granted, and those appeals are dismissed; and it isfurther,
Ordered that the branch of the motion which was to strike stated portions of the record onappeal and the appellants' brief is granted to the extent that page xii, question four; the first fullparagraph of page three; the words "without engaging in the analysis required by 22 NYCRR§ 216.1" in the first paragraph of page six, point V; the last sentence of point V.F. of thestatement 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 ofthe record on appeal are stricken and have not been considered in the determination of theappeals; and it is further,
Ordered that the appeals from the order dated February 18, 2009, and the first order datedMarch 9, 2009, are dismissed; and it is further,
Ordered that the first order dated June 10, 2009, is affirmed insofar as appealed from; and itis 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 wasraised, 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, 94NY2d 772 [1999]; Bray v Cox, 38 NY2d 350 [1976]). The defendants appealed fromorders 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 containedconfidential information be filed under seal. Those appeals were dismissed for failure to timelyperfect. The dismissals constituted an adjudication on the merits with respect to all issues whichcould have been reviewed on those appeals. We decline to exercise our discretion to determinethe merits of the present appeals from the order dated January 27, 2009, the second order datedMarch 9, 2009, the order dated May 5, 2009, and the second order dated June 10, 2009, to theextent that they raise issues that could have been raised on the appeals from the prior orders thatwere dismissed for failure to perfect (see Bray v Cox, 38 NY2d 350 [1976]; Spiritis v Village of HempsteadCommunity Dev. Agency, 63 AD3d 907 [2009]).[*3]
We also grant that branch of the plaintiffs' motion whichwas to strike those portions of the record on appeal and the appellants' brief which concern theappeals that we are dismissing under the authority of Bray v Cox (38 NY2d 350 [1976]).
The appeals from the intermediate order dated February 18, 2009, and the first intermediateorder dated March 9, 2009, must be dismissed because the right of direct appeal therefromterminated with the entry of the judgments in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeals from those orders are brought up for reviewand have been considered on the appeals from the judgments (see CPLR 5501 [a] [1]).
The defendants Joseph Santoro and Alfred Bergman operated two community residences andone outpatient clinic, all licensed by the New York State Office of Mental Health. The plaintiffS.M.F. (hereinafter the patient) was a patient at the defendant SLS Residential, Inc. (hereinafterSLS), a mental health community residence operated by Santoro and Bergman, and was also apatient of their outpatient clinic. After the patient was released from SLS to the outpatient clinic,his father, the plaintiff G.S.F. (hereinafter the father), wrote a letter to Santoro, praising Santorofor the treatment the patient received at SLS. The letter detailed the patient's neurologicalproblems and emotional issues. Subsequent to writing the letter, the father learned that SLSemployed practices which he believed to be abusive. As a result, the father initiated a picketingcampaign outside of SLS's facilities to inform the public about SLS's practices. In response to thefather's picketing, an SLS employee, authorized by Bergman, disseminated copies of the father'sletter to individuals on the street in front of SLS's facilities. In addition, the father's letter wasposted on SLS's Web site.
The father's letter was written and received during the course of the patient's treatment, andcontained confidential mental health information (see Mental Hygiene Law §33.13 [a]). The defendants, therefore, had a duty to keep the letter confidential, and breached thatduty by distributing it to individuals on the street and posting it on the internet (seeMental Hygiene Law § 33.13 [a], [e]). The plaintiffs established, prima facie, theirentitlement to judgment as a matter of law on the causes of action alleging a violation of MentalHygiene Law § 33.13 and breach of fiduciary duty since the dissemination of the letter bythe defendants constituted a violation of Mental Hygiene Law § 33.13 and also a breach offiduciary duty (see Mental Hygiene Law § 33.13 [a], [e]; Doe v CommunityHealth Plan—Kaiser Corp., 268 AD2d 183, 186 [2000]; MacDonald vClinger, 84 AD2d 482 [1982]). In opposition, the defendants failed to raise a triable issue offact as to whether the plaintiffs waived confidentiality of the letter, or whether they should bebarred from receiving equitable relief based on the doctrine of unclean hands. Accordingly, theplaintiffs were properly awarded summary judgment on their causes of action alleging aviolation of Mental Hygiene Law § 33.13 and breach of fiduciary duty, and the SupremeCourt properly issued a permanent injunction prohibiting the defendants from disclosing thepatient's confidential mental health information.
The defendants' remaining contentions are without merit. Skelos, J.P., Austin, Roman andSgroi, JJ., concur.