The New York Law Journal by Mark Fass - September 27, 2010
A judge's finding that an attorney in a wrongful-death action intentionally slipped his summation notes to the jury by including them within medical records did not constitute grounds for throwing out a $1.1 million settlement agreement that was reached as the jury deliberated, a state appeals court has ruled. A unanimous Appellate Division, Second Department, panel found that stipulations of settlement should be "not lightly set aside" and that defendant North Shore University Hospital failed to establish sufficient cause—such as fraud or mistake—to do so here. "The record does not establish that the defendants entered into the stipulation because they were aware that the plaintiff's attorney's typewritten summation notes had been made available to the jury," the panel held in its unsigned decision, Singh v. North Shore University Hospital, 2009-10708. The panel also threw out fines and sanctions levied by the trial judge, Queens Supreme Court Justice Peter J. O'Donoghue, against the plaintiff's attorney, Andrew Rosner, totalling more than $60,000. Mr. Rosner, the principal of a three-attorney firm in Garden City, filed the underlying wrongful-death action in 2006 on behalf of the family of Dolly Singh, a 53-year-old mother who died of myocarditis—inflammation of the heart muscle—at Long Island's North Shore University Hospital. A jury trial was held before Justice O'Donoghue in July 2009, at which Mr. Rosner argued that Ms. Singh's death could have been prevented had the hospital performed an echocardiogram. After the case went to the jury, but before it reached a decision, the two sides agreed to a $1.1 million settlement. As the attorneys later collected the exhibits that had been marked into evidence, a court officer noticed that Mr. Rosner's typewritten summation notes, which had not been admitted into evidence, were inside a hospital chart that had been reviewed by the jury. Citing those notes, the hospital moved to set aside the agreement on the grounds of mistake or fraud.
Justice O'Donoghue granted that motion and ordered a new trial, finding that Mr. Rosner "intentionally included" his notes with the medical records. The judge also, sua sponte, sanctioned Mr. Rosner $10,000, ordered him to pay the defense's trial costs, which totalled more than $52,175, and referred the matter to the Grievance Committee for the Eleventh Judicial District. Mr. Rosner appealed, vehemently denying that he intentionally passed his notes to the jury. "I have said before, and I now say again, I did not intentionally submit my summation notes to the jury," Mr. Rosner wrote in an appellate brief. "I have no personal knowledge whether my notes were actually received by the jury, and if they were, how. The only plausible explanation is that in gathering up the evidence after my summation, the Court Officer mixed up my notes with it, and did not check the evidence before he gave it to the jury. That is not fraud." Mr. Rosner also contended that accidentally passing the notes was not the type of mistake that invalidates a settlement. In its decision last week, the appeals court sided with Mr. Rosner and reinstated the agreement.The panel remitted the matter to a new Queens Supreme Court justice to determine whether Mr. Rosner should be sanctioned."Here, the defendants failed to establish a basis for the vacatur of the stipulation of settlement," the panel concluded. "Regarding the imposition of a sanction in the sum of $10,000 upon the plaintiff's attorney, the defendants did not request that relief. Furthermore, the plaintiff's attorney, who was never notified that the Supreme Court was considering granting that relief, was not afforded a reasonable opportunity to be heard on the issue of sanctions. Accordingly, the sanction must be vacated. However, since, on this record, we cannot conclude that a sanction is unwarranted, we remit the matter to the Supreme Court, Queens County, for a hearing on that issue." Justices Mark C. Dillon, Joseph Covello, Daniel D. Angiolillo and Sandra L. Sgroi sat on the panel. Mr. Rosner called Justice O'Donoghue's decision "insane" and "irrational." He said the judge, who is blind, "thinks he has the same superhero abilities" as the blind superhero Daredevil. "I don't think we should have a blind judge who is drunk with power and doesn't have the abilities he thinks he does," Mr. Rosner said. "The irrational statements he has made and the irrational conclusions he made in this case are very strong indications that he should not be on the bench." Mr. Rosner said he intended to pursue a complaint with the Commission on Judicial Conduct. The Office of Court Administration declined to respond to Mr. Rosner's comments. Justice O'Donoghue was elected to the Civil Court in 1992 and the Queens Supreme Court in 2002. Christopher Simone and Robert M. Ortiz of Shaub, Ahmuty, Citrin & Spratt in Lake Success appeared on behalf of North Shore University Hospital. Mr. Ortiz declined to comment; Mr. Simone did not return a call for comment. Mark Fass can be reached at email@example.com.