nyph defendant in New York

2026Both Military Law § 304 and 50 USC App § 501 require the NYPH defendants to establish their prima facie entitlement to a stay of proceedings, on the ground that Khan remains in active military service, by making “a showing that the ability to prosecute or defend the action will be materially affected by the military service” (Pinkowski v All-States Sawing & Trenching, Inc., 290 AD2d 873, 873 [3d Dept 2002]; see Guzman v Warenda, 161 AD2d 1017, 1018 [3d Dept 1990]).

2026A stay is not mandated simply because the moving party is in military service, inasmuch as, for a movant to invoke the protection of the aforementioned statutes, he or she must make a showing of his or her actual unavailability, and that his or her rights would be adversely affected by virtue of his or her absence from trial (see Hackman v Postel, 675 F Supp 1132, 1133-1134 [ND Ill. 1988] [“The fact that the movant is insured and is represented by counsel provided by the insured is a factor to be considered”]; M&T Mtge.

2026Both Military Law § 304 and 50 USC App § 501 require the NYPH defendants to establish their prima facie entitlement to a stay of proceedings, on the ground that Khan remains in active military service, by making “a showing that the ability to prosecute or defend the action will be materially affected by the military service” (Pinkowski v All-States Sawing & Trenching, Inc., 290 AD2d 873, 873 [3d Dept 2002]; see Guzman v Warenda, 161 AD2d 1017, 1018 [3d Dept 1990]).

2024The alleged additional material facts upon which plaintiff now relies for his equitable estoppel argument existed at the time of the original motion and could have been ascertained with due diligence ( see Haussmann v Wolf , 187 AD2d 371, 373 [1st Dept 1992]).

2024The branch of plaintiff's motion that sought renewal of his motion to compel Dr. Sublette to produce copies of her records regarding her psychiatric treatment of plaintiff is precluded by the doctrine of law of the case, as a court of coordinate jurisdiction already decided the issue ( see Matter of Dondi v Jones , 40 NY2d 8, 15 [1976]), and the relevant circumstances remain unchanged.

2024A surviving spouse may prosecute a derivative cause of action for loss of consortium, albeit one that is limited to the period of time during which the decedent was alive and suffering from injuries caused by a defendant (see Liff v Schildkrout, 49 NY2d 622, 632 [1980]).

2022Given the allegations in the complaint and the bill of particulars, plaintiff waived his physician-patient privilege in the records sought by the NYPH defendants ( see Koump v Smith , 25 NY2d 287, 294 [1969]; Jones v FEGS-WeCARE/Human Resources, NYC , 139 AD3d 627 [1st Dept 2016]).