You are here: / THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE...

Search Results

/ , ,

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

​

In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE,  THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

/ , ,

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

​

In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE,  THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

/ , ,

PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED.

The Third Department, affirming Supreme Court, determined the medical malpractice action brought on behalf of a high school student who committed suicide was properly dismissed. The decision lays out in detail the actions of the defendants and the expert affidavits submitted to demonstrate the defendants did not deviate from an appropriate standard of care in assessing plaintiff’s decedent’s mental state or in releasing plaintiff’s decedent to his parents. The plaintiffs’ expert affidavit did not demonstrate any substantive deviation from appropriate care, or any expertise in emergency medicine. Shortly after release from defendants’ care, which related to drug abuse, not suicidal ideation, plaintiff’s decedent shot himself in the head:

The burden … shifted to plaintiffs to raise a triable issue of fact as to whether defendants departed from the accepted standard of care … . To that end, plaintiffs primarily relied on an affirmation of Igor Galynker, a psychiatrist, who opined that Duplan [the psychiatrist] departed from accepted practice in several ways, including by failing to personally evaluate decedent and failing to consider several factors that increased decedent’s risk for suicide. As to CMC [the emergency care provider], Galynker opined that it failed to establish procedures requiring Duplan to personally evaluate decedent and failed to create a “structured interview algorithm” for assessment of acute suicide risk, leading to serious errors on Beeby’s [the psychiatric nurse who interviewed plaintiff’s decedent] part. Yet, Galynker failed to provide any factual basis for his opinions … or point to any medical guidelines indicating that only a psychiatrist may conduct a mental health examination. Furthermore, Galynker’s assertion that Duplan had failed to consider several additional suicide risk factors is belied by Duplan’s testimony and the mental health evaluation, which reveal that Duplan was aware of and weighed such factors. Relatedly, Galynker never articulated how or why, if certain questions were asked or mnemonics/algorithms were used, material information would have been revealed that would have altered the medical decision rendered. Consequently, with regard to Duplan and CMC, Supreme Court properly found Galynker’s affirmation to be conclusory and lacking sufficient detail to raise a triable issue of fact … . With respect to Koch [the emergency medicine physician], Galynker opined that he deviated from accepted practice by, among other things, failing to discuss the case with Duplan and failing to consider the effects of decedent’s drug use. Notably, however, Galynker did not indicate that he had any training or expertise in the field of emergency medicine … . Therefore, plaintiffs’ medical malpractice and wrongful death causes of action were properly dismissed. Gallagher v Cayuga Med. Ctr. 2017 NY Slip Op 04941, 3rd Dept 6-15-17

NEGLIGENCE (PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/MEDICAL MALPRACTICE (SUICIDE, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EXPERT OPINION (MEDICAL MALPRACTICE,  PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/SUICIDE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)

/ , ,

EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion by Justice Andrias, determined plaintiff’s expert affidavit was sufficient to raise a question of fact whether the school nurse’s failure to tell plaintiff to remove a contraceptive device (NuvaRing) was a proximate cause of blood clots which resulted in severe brain damage. The dissent argued plaintiff’s expert affidavit was conclusory and speculative, insufficient to defeat defendant’s expert’s opinion that removing the NuvaRing would not have prevented the blood clots which occurred seven days after plaintiff complained to the nurse practitioner about chest pains:

​

Montefiore [the defendant which employed the nurse practitioner at the school clinic] made a prima facie case through its expert, Dr. Bardack, that it was not the proximate cause of plaintiff’s injuries … . In opposition, plaintiff’s expert raised an issue of fact concerning causation. We disagree with the dissent that the affidavit of Dr. Gold was speculative and conclusory. Dr. Gold specifically opined that if the nurse practitioner had properly assessed plaintiff, instructed her to remove the NuvaRing, and referred her for further assessment, plaintiff’s subsequent injuries and complications would have been avoided. Had the nurse properly assessed plaintiff as suffering from the symptoms of a blood clot, she could have instructed plaintiff to remove the ring immediately, thereby at least beginning to correct any clotting imbalance. As Montefiore’s expert acknowledges, “clot risk is gradually decreased after the ring is removed.” Thus, while the nurse was not in a position to treat clots, she certainly was in a position to make the diagnosis and to direct the plaintiff to remove the likely source of her symptoms, lessening the risk of an adverse outcome.

Montefiore asserts that even if the NuvaRing had been removed on June 1, thromboembolism was nonetheless likely to ensue, relying on FDA guidelines concerning presurgical protocols; Dr. Gold, however, opined that the risk of blood clotting would have subsided had the ring been removed. At this stage, plaintiff’s expert’s affidavit suffices to raise a factual issue as to the element of causation.

It may well be that the medical professionals who subsequently treated plaintiff are also at fault for failing to work her up for thromboembolism and failing to remove or direct her to remove the NuvaRing. Issues of relative culpability await resolution at trial. Plaintiff’s submissions raise an issue of fact as to the liability of the nurse practitioner sufficient to defeat summary judgment. Adams v Pilarte, 2017 NY Slip Op 04913, 1st Dept 6-15-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/MEDICAL MALPRACTICE (EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EXPERT OPINION (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/NUVARING (MEDICAL MALPRACTICE,  AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)

/ , ,

OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD.

The Third Department determined claimant’s negligence suit against the state Office of Mental Retardation and Developmental Disabilities (OMRDD) was properly dismissed because the OMRDD’s oversight of private companies providing care to the developmentally disabled was a government function and there was no special relationship with the resident, claimant’s daughter. Therefore the state was immune from suti. Claimant alleged the resident was abused while in the care of Camary Statewide Services, a private, nonprofit corporation that was, at that time, certified by the OMRDD:

​

OMRDD conducted annual or biannual reviews, which included a sampling of records and interviews of staff members and residents, to determine whether Camary continued to be eligible for an operating certificate to provide care and treatment to developmentally disabled individuals … . Where noncompliance was discovered, OMRDD could require private service providers to take corrective measures to address the deficiency or, where the noncompliance was severe, revoke, suspend or limit the service provider’s operating certificate … . In the event of noncompliance, OMRDD would provide guidance to the service provider, but it would not take affirmative steps to bring the provider into compliance with the applicable regulations. Moreover, OMRDD’s oversight over, and regulation of, Camary was plainly undertaken to further the general goal of protecting the health and safety of persons with developmental disabilities. Based on the foregoing, we conclude that the actions, or inactions, in question were governmental in nature … . * * *

​

… [C]laimant argues that the requisite special relationship was formed by OMRDD’s violation of Mental Hygiene Law former § 13.07 (c) … , as well as the reporting rules in 14 NYCRR former part 624 … . As relevant here, Mental Hygiene Law former § 13.07 (c) …  charged OMRDD with ensuring that the care and treatment provided to persons with developmental disabilities were of high quality and that the personal and civil rights of persons receiving such care and treatment were protected. As for the reporting rules, OMRDD promulgated detailed regulations requiring that reportable incidents, which included instances in which a resident sustained an injury requiring more than first aid, be recorded and investigated by the service provider under a defined procedure, subject to review by OMRDD. Undoubtedly, these statutory and regulatory provisions were enacted for the benefit of persons with developmental disabilities, a class within which the resident certainly falls.

However, no private right of action is expressly created by the implementing statute and the relevant regulations and, contrary to claimant’s contentions, one may not be fairly implied. T.T. v State of New York, 2017 NY Slip Op 04940, 3rd Dept 6-15-17

​

NEGLIGENCE (GOVERNMENTAL IMMUNITY, DEVELOPMENTALLY DISABLED, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/IMMUNITY (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (IMMUNITY, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/MENTAL HYGIENE LAW (DEVELOPMENTALLY DISABLED, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/DEVELOPMENTALLY DISABLED (NEGLIGENCE, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)

/ ,

CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED.

The Third Department, reversing Family Court, determined the child’s testimony alleged sexual abuse by father was not corroborated:

​

A child’s mere repetition of an accusation to others, “however consistent and believable, is not sufficient to corroborate [his or her] prior out-of-court statements”… . “The corroboration requirement is not demanding and may be satisfied by any other evidence tending to support the reliability of the child’s previous statements” … . Nevertheless, “there is a threshold of reliability that the evidence must meet”… . Here, relative to the allegations that the father had sexual contact with the daughter, that threshold was not met.

This Court has found corroboration of a child’s out-of-court statements pertaining to sexual abuse in such evidence as medical indications of abuse … , expert validation testimony … , cross-corroboration by another child’s similar statements … , marked changes in a child’s behavior … , and sexual behavior or knowledge beyond a child’s years … . No such evidence was presented here. Instead, the undisputed testimony of all of the witnesses described the daughter as a social, highly verbal child with no medical evidence of abuse, no significant behavioral alterations, and no indications of inappropriate sexual knowledge or behavior. Matter of Lee-Ann W. (James U.), 2017 NY Slip Op 04920, 3rd Dept 6-15-17

 

FAMILY LAW (EVIDENCE, SEXUAL ABUSE, CORROBORATION, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/SEXUAL ABUSE (FAMILY LAW, CORROBORATION OF CHILD’S TESTIMONY,  CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/EVIDENCE (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/CORROBORATION (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)

/ ,

SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW).

The Third Department, in a full-fledged opinion by Justice Devine, reversing (modifying) Supreme Court, determined the respondent school district’s unilaterally contracting with an outside party for a prekindergarten program, without first negotiating with the teachers’ union, did not constitute an improper practice:

​

Respondent Lawrence Union Free School District (hereinafter the District) implemented a universal prekindergarten program pursuant to Education Law § 3602-e. Program tasks were first performed by employees working in a collective bargaining unit exclusively represented by petitioner [teachers’ union] but, in 2012, the District unilaterally contracted with an outside eligible agency to staff and operate it. Petitioner filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) alleging a violation of the Public Employees’ Fair Employment Act (… the Taylor Law… ), namely, that the District did not negotiate in good faith about outsourcing the work … . * * *

​

The Legislature … created a “comprehensive package for a school district’s decision to” fashion a prekindergarten program plan and “withdr[e]w that decision from the mandatory bargaining process,” crafting a mechanism for public consultations that included affected collective bargaining units and left little time for traditional collective bargaining… . A school district was empowered by Education Law § 3602-e (5) (d) to contract without interference in implementing a plan crafted after that process … .

​

… “[T]here is no absolute bar to collective bargaining over” the outsourcing of prekindergarten work to an outside agency… and, as we have held, an agreement reached after collective bargaining on the subject is enforceable… . Inasmuch as the clear language of Education Law § 3602-e compels the conclusion that negotiation is not required to begin with, however, PERB was right to determine that the absence of negotiation did not constitute an improper practice under the Taylor Law. This does not preclude petitioner from seeking impact negotiations in the future. Matter of Lawrence Teachers’ Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., 2017 NY Slip Op 04944, 3rd Dept 6-15-17

 

EDUCATION-SCHOOL LAW (TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/EMPLOYMENT LAW (TEACHERS’ UNION, TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/COLLECTIVE BARGAINING AGREEMENT (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/PREKINDERGARTEN PROGRAM (EDUCATION-SCHOOL LAW, TAYLOR LAW, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/TAYLOR LAW (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/IMPROPER PRACTICE (EDUCATION-SCHOOL LAW, COLLECTIVE BARGAINING AGREEMENT, TEACHERS’ UNION, PREKINDERGARTEN PROGRAM,  SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))

/

THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED.

The First Department, reversing Supreme Court, determined defense counsel waived the speedy trial (CPL 30.30) rule. In response to the prosecutor’s request that the waiver go back to the date of the arraignment, defense counsel stated a preference that the waiver start at the time of the agreement to it, but “if you insist” waiver from arraignment would be acceptable. Supreme Court reasoned that the phrase “if you insist” required further negotiation (which did not take place). The First Department held that, based on the totality of the record, defense counsel agreed to starting the waiver at the time of arraignment:

​

In assessing whether time is properly excluded, a court should look to the totality of the record … . Here, based on a fair reading of the whole record, we conclude that defense counsel expressly waived inclusion of the 52-day period. Central to the court’s reasoning was that the prosecutor “did not insist’ or otherwise respond” after defense counsel wrote “I’d be inclined to waive from today, but if you insist on 1/24 that’s acceptable.” However, in this exchange, “insistence” was not an eventuality that had to be confirmed by further action of the prosecutor, but an already clearly stated position. The prosecutor had already, in her March 16 email, insisted on a waiver of “all 30.30 time,” extending back to the arraignment — requiring such a total waiver as a condition of negotiations. She had explained that if defendant were not willing to waive all 30.30 time, the case would be presented to the current grand jury.

The March 17 email repeated, even more explicitly, the prerequisite — to which defendant had already agreed — that defendant waive speedy trial time going back to January 24. There was no need for the People to again insist on this because they had unequivocally insisted on it from the beginning of the conversation. As a realistic matter, the question whether the People insisted on this was not an open one, and defense counsel did not treat it as unresolved. He “accept[ed]” the waiver running back to the time of arraignment and promised to call the prosecutor the following week to make arrangements for a “presentation to you.” People v Lewins, 2017 NY Slip Op 04908, 1st Dept 6-15-17

 

CRIMINAL LAW (THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)/SPEEDY TRIAL (WAIVER, THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)

/

MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST OF DEFENDANT’S BROTHER WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING DEFENDANT WITH RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE.

The First Department, over a dissent, determined the misdemeanor complaint charging resisting arrest and obstructing governmental administration was jurisdictionally defective. The complaint alleged defendant interfered in the arrest of her brother and then herself resisted arrest. But the complaint did not allege the basis for the arrest of defendant’s brother and therefore did not demonstrate the brother’s arrest was “authorized,” an essential element of the offense:

​

The factual part of the complaint merely states that the officer was “attempting to effectuate the arrest of [defendant’s brother].” However, the complaint contains no factual allegations that would establish, if true, that the underlying arrest of defendant’s brother was authorized. Thus, the complaint fails to allege facts sufficient to establish all the essential elements of the crime of obstructing governmental administration in the second degree. Because the information fails to allege sufficient facts supporting the underlying obstructing governmental administration charge, it is also insufficient to allege that defendant’s arrest on that charge was “authorized,” as required by Penal Law § 205.30. Therefore, defendant is also entitled to dismissal of the resisting arrest charge … .

The dissent acknowledges that an element of the crime of obstructing governmental administration is that the underlying arrest was authorized, but nevertheless concludes that this essential element need not be alleged in the factual part of an information. This position, however, cannot be reconciled with the statutory requirement that an information contain “nonhearsay allegations [that] establish, if true, every element of the offense charged”… . People v Sumter, 2017 NY Slip Op 04897, 1st Dept 6-15-17

 

CRIMINAL LAW (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/MISDEMEANOR COMPLAINT  (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/JURISDICTION (CRIMINAL LAW, MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/RESISTING ARREST (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/OBSTRUCTING GOVERNMENTAL ADMINISTRATION  (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)

/ , ,

ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF.

The Third Department, reversing the Court of Claims, determined claimant limited liability company’s (LLC’s) notice of claim could be amended to add an attorney’s signature. The notice of claim was timely filed pro se. The defendant argued that the failure to have the claim filed by an attorney representing the LLC violated CPLR 321 (a) and was a jurisdictional defect. The Third Department disagreed, finding the application of CPLR 321 (a) flexible and the related requirement nonjurisdictional. The court also noted that the claimant’s demand for equitable relief was not incidental to the requested monetary relief and therefore must be dismissed as beyond the jurisdiction of the Court of Claims:

… [D]efendant does not point to any service or filing provision — or any other provision — of the Court of Claims Act that prohibits claimant from pro se representation. Instead, defendant relies on CPLR 321 (a), which provides that, subject to express exceptions, a “corporation or voluntary association shall appear by attorney” to “prosecute or defend a civil action,” and “like a corporation or a voluntary association, [an] LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York” … . Thus, as an initial matter, we conclude that compliance with CPLR 321 (a) does not implicate subject matter jurisdiction, as compliance with that provision is not a prerequisite to the waiver of sovereign immunity pursuant to the Court of Claims Act … . * * *

… [G]iven the flexibility of the prohibition on corporate pro se representation and the Legislature’s express intent that technical irregularities in filing are subject to correction, absent prejudice and upon just terms … we hold that, under these circumstances, the irregularity of claimant’s initial filing was one that the Court of Claims could have disregarded, given counsel’s subsequent appearance on behalf of claimant, by granting so much of claimant’s motion to amend the claim as added counsel’s signature … . Hamilton Livery Leasing, LLC v State of New York, 2017 NY Slip Op 04943, 3rd Dept 6-15-17

COURT OF CLAIMS (LIMITED LIABILITY COMPANY, EQUITABLE RELIEF, ATTORNEYS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CORPORATION LAW (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS,  ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)/ATTORNEYS (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/NOTICE OF CLAIM (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/EQUITABLE RELIEF (COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CIVIL PROCEDURE (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/LIMITED LIABILITY COMPANIES (COURT OF CLAIMS,  ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy