You are here: / CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF.

Search Results

/ ,

CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF.

The First Department, in a full-fledged opinion by Justice Webber, determined two chimpanzees. Tommy and Kiko, were not entitled to orders transferring them from cages to a sanctuary, using the rationale behind habeas corpus. The main reason underlying the decision is the fact that similar requests for relief had been denied by other courts and nothing new was presented in support of the instant requests for relief. The court, however, did run through the arguments in support of the applicability of habeas corpus criteria in this context (not all of which are summarized here):

​

“The common law writ of habeas corpus, as codified by CPLR article 70, provides a summary procedure by which a person’ who has been illegally imprisoned or otherwise restrained in his or her liberty can challenge the legality of the detention” … . While the word “person” is not defined in the statute, there is no support for the conclusion that the definition includes nonhumans, i.e., chimpanzees. While petitioner’s cited studies attest to the intelligence and social capabilities of chimpanzees, petitioner does not cite any sources indicating that the United States or New York Constitutions were intended to protect nonhuman animals’ rights to liberty, or that the Legislature intended the term “person” in CPLR article 70 to expand the availability of habeas protection beyond humans. No precedent exists, under New York law, or English common law, for a finding that a chimpanzee could be considered a “person” and entitled to habeas relief. In fact, habeas relief has never been found applicable to any animal… .

The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions. Petitioner does not suggest that any chimpanzee charged with a crime in New York could be deemed fit to proceed, i.e., to have the “capacity to understand the proceedings against him or to assist in his own defense” (CPL 730.10[1]). While in an amicus brief filed by Professor Laurence H. Tribe of Harvard Law School, it is suggested that it is possible to impose legal duties on nonhuman animals, noting the “long history, mainly from the medieval and early modern periods, of animals being tried for offenses such as attacking human beings and eating crops,” none of the cases cited took place in modern times or in New York. Moreover, as noted in an amicus brief submitted by Professor Richard Cupp, nonhumans lack sufficient responsibility to have any legal standing, which, according to Cupp is why even chimpanzees who have caused death or serious injury to human beings have not been prosecuted. Matter of Nonhuman Rights Project, Inc. v Lavery, 2017 NY Slip Op 04574, 1st Dept  6-8-17

 

ANIMAL LAW (CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/CIVIL PROCEDURE (ANIMAL LAW, HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/ANIMAL LAW (HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/HABEAS CORPUS (CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/CHIMPANZEES (HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)

/ ,

UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion by Judge Garcia, determined two nurses facing disciplinary action for alleged time-card irregularities were entitled to some of the information upon which the charges were based. The nurses were employed by New York City’s Human Resources Administration (HRA). When the request for the information was denied, the “New York State Nurses Association (NYSNA, or the Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to information, under New York City Collective Bargaining Law (NYCCBL) … “. The Board found most of the requested information should be turned over to the NYSNA and the Court of Appeals agreed:

​

The Board held that section 12-306 (c) (4) [of the NYCCBL] extended to information “relevant to and reasonably necessary for the administration of the parties’ agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining,” citing several decisions of PERB [Public Employees Relations Board], the Board’s analogue for state employees … . As noted by the Board, PERB “has consistently upheld the right of a union to seek information for contract administration in the context of disciplinary grievances” … .

* * * Article VI, section 1.D. of the CBA [Collective Bargaining Agreement] defines “grievance” to include: “a claimed wrongful disciplinary action taken against an employee.” Thus, by defining “grievance” to include disciplinary action, the CBA, has, as a matter of contract, incorporated as to disciplinary actions the information requirements applicable to grievances. Matter of City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, CtApp 6-8-17

MUNICIPAL LAW (EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/EMPLOYMENT LAW (MUNICIPAL EMPLOYEES, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/DISCIPLINARY PROCEEDINGS (MUNICIPAL LAW, EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)

/ , ,

CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that a contempt order in a civil proceeding involving the same funds defendant was accused of stealing in the criminal action: (1) was not Molineux evidence because it involved the same subject matter as did the criminal action; and (2) the probative value of the order on the question of intent outweighed its prejudicial effect:

“When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury’s human tendency to more readily believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” … . In other words, the courts limit the admission of Molineux evidence because of the danger that the jury might conclude that if the defendant did it once, he or she likely did it again.

Where, as here, the evidence at issue is relevant to the very same crime for which the defendant is on trial, there is no danger that the jury will draw an improper inference of propensity because no separate crime or bad act committed by the defendant has been placed before the jury. * * *

The Appellate Division correctly concluded that the contempt order was relevant to prove defendant’s larcenous intent because “it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive [the business entity] of the diverted money permanently” … . People v Frumusa, 2017 NY Slip Op 04495, CtApp 6-8-17

CRIMINAL LAW (EVIDENCE, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, MOLINEUX, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/MOLINEUX EVIDENCE (CRIMINAL LAW, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)

/ ,

TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, with two concurring opinions, determined the trial judge properly resettled the record of the trial without holding a hearing. The original transcript indicated the jury was instructed the defendant was charged with “unintentional” murder. The prosecutor submitted an affirmation based upon a conversation with the court stenographer stating that the word “unintentional” was a typographical error and the stenographic notes reflected the word “intentional” was actually used. The stenographer submitted a certified corrected transcript:

​

Several factors support the Appellate Division’s conclusion that Supreme Court acted within its discretion to resettle the transcript on the basis of the information before it. The trial judge could rely not only on the reporter’s certification of the corrected transcript, but also on undisputed portions of that transcript, including: the accurate balance of the charge; the fact that two of the five alleged misstatements were attributed to defense counsel, not the court; and, most significantly, the repeated failure of any party to object to what would have been prominent misstatements of the law. Furthermore, as there was no suggestion during oral argument on the motion that any person present at the trial five years earlier could recollect what words were spoken, it is not clear what evidence beyond the reporter’s original stenographic notes might have been obtained through a hearing.

Although it would have been preferable for the court to have received an affidavit from the court reporter, rather than an affidavit of counsel recounting a conversation with that reporter, we cannot say that Supreme Court acted outside its discretion to resettle the transcript without a hearing. People v Bethune, 2017 NY Slip Op 04493, CtApp 6-8-17

 

CRIMINAL LAW (RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)/APPEALS (CRIMINAL LAW, RESETTLING THE RECORD, TRIAL JUDGE PROPERLY RESETTLED THE RECORD OF THE TRIAL BY CORRECTING TYPOGRAPHICAL ERRORS IN THE TRANSCRIPT WITHOUT A HEARING)

/ , ,

DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined defense counsel was not ineffective for failing to object to evidence the complainant, who alleged she was sexually abused by the defendant many years earlier, disclosed the abuse to friends three years after the abuse ceased and again four years later. Defense counsel’s strategy was to show the complainant was a “troubled teen” and inconsistencies in the statements were part of a “recent fabrication” defense:

​

Here, defendant argues that counsel’s failure to object to the testimony regarding the victim’s disclosures must have arisen from his ignorance or misunderstanding of the law on prompt outcry testimony and, thus, cannot be considered a matter of strategy. We disagree. While “it is generally improper to introduce testimony that the witness had previously made prior consistent statements” to bolster the witness’s credibility, the use of prior consistent statements is permitted to demonstrate a prompt outcry, rebut a charge of recent fabrication, or “to assist in ‘explaining the investigative process and completing the narrative of events leading to defendant’s arrest'” … . “‘New York courts have routinely recognized that nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'”… .

A conclusion that the fact of the victim’s disclosures herein to the school counselor and detective would likely be admissible to “complete the narrative” was “consistent with [a conclusion that] a reasonably competent attorney” could make  … . … [C}ounsel was not ineffective for failure to make a motion that had little chance of success …. Instead of objecting to that testimony, counsel strategically chose to use the evidence to defendant’s advantage by exploring the substance of, and the circumstances surrounding, the disclosure in depth to support the defense of recent fabrication. People v Honghirun, 2017 NY Slip Op 04496, CtApp 6-8-17

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, EVIDENCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)EVIDENCE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DELAYED DISCLOSURE OF SEXUAL ABUSE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)

/

ALTHOUGH PLAINTIFF AND DEFENDANT ARE SPANISH COMPANIES OPERATING IN SPAIN, DEFENDANT IS SUBJECT TO NEW YORK’S LONG-ARM JURISDICTION.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the appellate division, determined that, although both plaintiff and defendant are businesses based in Spain, there were sufficient contacts with New York to support long-arm jurisdiction. Defendant’s wine was distributed by a New York company, Kobrand. “Through November 2006, defendant paid commissions to plaintiff in Spain on wine defendant sold to Kobrand. In or around January 2007, defendant stopped paying commissions to plaintiff even as defendant continued to sell wine to Kobrand. Defendant contends that its obligation to pay commissions under the oral agreement expired after one year:”

… [N]ot only was defendant physically present in New York on several occasions, but its activities here resulted in “‘the purposeful creation of a continuing relationship with a New York corporation'”… . Defendant’s contacts with New York establish that defendant purposefully availed itself of “the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws”… . …

* * * … [T]he parties’ oral agreement was not performed “wholly in Spain” … . Rather … both sides engaged in activities in New York in furtherance of their agreement. There is an articulable nexus or substantial relationship between defendant’s New York activities and the parties’ contract, defendant’s alleged breach thereof, and potential damages. Accordingly, we hold that plaintiff’s claim arises from defendant’s transaction of business in New York. …

… [D]efendant has established minimum contacts with New York by visiting the state on multiple occasions to promote its wine with the purpose of finding a United States distributor and thereafter selling wine to a New York-based distributor. … Having done so, defendant could reasonably foresee having to defend a lawsuit in New York. D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 2017 NY Slip Op 04494, CtApp 6-8-17

CIVIL PROCEDURE (LONG-ARM JURISDICTION, ALTHOUGH PLAINTIFF AND DEFENDANT ARE SPANISH COMPANIES, DEFENDANT IS SUBJECT TO NEW YORK’S LONG-ARM JURISDICTION)/LONG-ARM JURISDICTION (ALTHOUGH PLAINTIFF AND DEFENDANT ARE TWO SPANISH COMPANIES, DEFENDANT IS SUBJECT TO NEW YORK’S LONG-ARM JURISDICTION)

/ ,

WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY.

The Second Department, reversing Supreme Court, determined the defendant church’s motion for summary judgment in this slip and fall case should have been granted. The Workers’ Compensation insurance covered volunteers. The Workers’ Compensation Board (WBC), with no participation by plaintiff, determined plaintiff was a covered volunteer and was entitled to benefits. Plaintiff then sued the church. The Second Department noted that the Workers’ Compensation Board’s finding plaintiff was a covered volunteer entitled to benefits was final because it was not appealed. The suit was therefore precluded:

​

“[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” … . “[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” … . “[A] plaintiff has no choice but to litigate this issue before the Board” … . Thus, the question of whether a particular person is an employee within the meaning of the Workers’ Compensation Law is for the WCB to determine in the first instance … . The findings of the WCB are final and conclusive unless reversed on direct appeal … , and are not subject to collateral attack in a plenary action … . This is so even where, as here, the employer has filed a compensation claim on the employee’s behalf and the employee did not herself apply for or accept benefits … . …

Here, the church established its prima facie entitlement to judgment as a matter of law by demonstrating that the WCB rendered a final determination that the injured plaintiff was eligible for Workers’ Compensation benefits under the Diocese’s policy, thereby precluding a personal injury action against it … . In opposition, the plaintiffs failed to raise a triable issue of fact. The coverage eligibility issue was necessarily determined by the WCB in a proceeding in which the injured plaintiff had the required notice and opportunity to be heard … . Moreover, a plaintiff cannot elect to waive benefits under the Workers’ Compensation Law and proceed on a tort cause of action … . Aprile-Sci v St. Raymond of Penyafort R.C. Church, 2017 NY Slip Op 04412, 2nd Dept 6-7-17

WORKERS’ COMPENSATION LAW (EXCLUSIVE REMEDY, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)/NEGLIGENCE (WORKERS’ COMPENSATION LAW, SLIP AND FALL, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)/SLIP AND FALL (WORKERS’ COMPENSATION, NEGLIGENCE, WORKERS’ COMPENSATION BOARD’S DETERMINATION PLAINTIFF WAS ENTITLED TO BENEFITS IN THIS SLIP AND FALL CASE WAS FINAL DESPITE HER LACK OF PARTICIPATION IN THE PROCEEDINGS, PLAINTIFF CANNOT BRING A LAWSUIT, WORKERS’ COMPENSATION BENEFITS ARE HER ONLY REMEDY)

/ ,

THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE.

The Second Department, reversing (modifying) Supreme Court, determined the exchange of emails concerning the sale of defendant’s property did not satisfy the statute of frauds. Plaintiff’s complaint seeking specific performance should have been dismissed. After defendant agreed via email on a purchase price he learned he could get substantially more for the property and he put the brakes on the sale to plaintiff:

​

… [T]he defendant was informed by a real estate broker that the property could be sold for a significantly higher amount; accordingly, the defendant asked the plaintiff to “wait” on moving forward with the execution of a formal contract. The plaintiff insisted that the parties were already bound by their emails, commenced this action for specific performance of the alleged agreement, and filed a notice of pendency on the property. The defendant moved (1) to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7), on the ground that the emails failed to satisfy the statute of frauds, (2) to cancel the notice of pendency pursuant to CPLR 6514(a), (3) for an award of costs and expenses pursuant to CPLR 6514(c), and (4) for an award of sanctions and attorney’s fees pursuant to 22 NYCRR 130-1.1. The Supreme Court denied that branch of the defendant’s motion which was to dismiss the complaint, and, in effect, denied the remainder of the relief sought. We modify.

The emails relied upon by the plaintiff to establish the alleged agreement among the parties for the purchase of the defendant’s apartment were insufficient to satisfy the statute of frauds, as they left for future negotiations essential terms of the contemplated contract, such as a down payment, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities, and were subject to the execution of a more formal contract of sale… . Contrary to the plaintiff’s contention, in the emails exchanged by and between the parties and the defendant’s attorney, the parties expressly anticipated the execution of a formal contract … . Saul v Vidokle, 2017 NY Slip Op 04485, 2nd Dept 6-7-17

 

REAL ESTATE (CONTRACT LAW, STATUTE OF FRAUDS, THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)/STATUTE OF FRAUDS (REAL ESTATE, HE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)/CONTRACT LAW (REAL ESTATE, STATUTE OF FRAUDS, THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE)

/ , ,

CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED.

The Second Department determined a capsule camera swallowed by plaintiff to facilitate an intestinal examination was not a foreign object for purposes of the statute of limitations. The statute runs from discovery of a foreign object which has been left in the body during surgery. However, the capsule camera was not part of a surgical procedure and it was designed to pass out of the body normally. The plaintiff alleged that the failure to call plaintiff’s attention to a 2009 CT scan on which the capsule camera was visible constituted negligence. The Second Department found that the cause of action was really “misdiagnosis” for which the foreign-object toll of the statute of limitations is not available. The action was therefore time-barred:

​

Generally, “[a]n action for medical . . . malpractice must be commenced within two years and six months of the act, omission or failure complained of” (CPLR 214-a). However, “where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier” (CPLR 214-a). The statute provides that a “fixation device” is not a “foreign object” (CPLR 214-a).

” [I]n determining whether an object which remains in the patient constitutes a “foreign object,” [courts] should consider the nature of the materials implanted in a patient, as well as their intended function'” … . “In short, every fixation device is intentionally placed for a continuing (even if temporary) treatment purpose, but it does not follow that everything that is intentionally placed for a continuing treatment purpose is a fixation device”… . Thus, in determining whether objects are foreign objects pursuant to CPLR 214-a, “[t]he question then becomes whether . . . [the objects] are analogous to tangible items like . . . [surgical] clamps . . . or other surgical paraphernalia (e.g., scalpels, sponges, drains) likewise introduced into a patient’s body solely to carry out or facilitate a surgical procedure” … .

The capsule camera at issue herein was used diagnostically to visualize the condition of the plaintiff’s intestines. It was not used or even introduced into the plaintiff’s body in the course of a surgical procedure. Rather, the capsule camera was knowingly and intentionally swallowed by the plaintiff with the expectation that it would travel through her digestive system until eliminated in the regular course of digestion. Thus, the malpractice alleged against the moving defendants, the failure to recognize from the 2009 CT scan that the observed metallic object was a retained endoscopic capsule camera, and to advise the plaintiff of such, ” is most logically classified as one involving misdiagnosis—a category for which the benefits of the “foreign object” discovery rule have routinely been denied'”  … . Leace v Kohlroser, 2017 NY Slip Op 04429, 2nd Dept 6-7-17

NEGLIGENCE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/MEDICAL MALPRACTICE (STATUTE OF LIMITATIONS, FOREIGN OBJECTS, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE, FOREIGN OBJECT, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)/CAPSULE CAMERA (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, FOREIGN OBJECT, CAPSULE CAMERA SWALLOWED TO VISUALIZE A PATIENT’S INTESTINES IS NOT A FOREIGN OBJECT WITHIN THE MEANING OF THE STATUTE OF LIMITATIONS, THE LIMITATIONS PERIOD IS THEREFORE NOT TOLLED UNTIL DISCOVERY OF THE CAPSULE, MEDICAL MALPRACTICE ACTION TIME-BARRED)

/

THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM.

The Second Department, in affirming defendants’ motions for summary judgment in this slip and fall case, noted, with respect to the snow removal contractor, the failure to salt an icy area is not a ground for liability to a third party, failure to salt does not “launch an instrument of harm:”

​

A snow removal contractor cannot be held liable for personal injuries “on the ground that the snow removal contractor’s passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition” … . For example, “a failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a preexisting ice condition from improving” … . Moreover, the exception for launching a force or instrument of harm “cannot be triggered where . . . there is only speculation and conjecture regarding whether the contractor created or exacerbated an icy condition” … .

Here, the plaintiff alleged that [the contractor] should have cleared snow and ice from the bank’s roof and awnings to prevent melting and refreezing such as that which allegedly caused his fall. However, such service was not encompassed by its contract. In any event, in failing to provide services beyond those included in its contract, [the contractor] at most failed to guard against a future possibility of ice formation. This is insufficient to support liability … . Somekh v Valley Natl. Bank, 2017 NY Slip Op 04487, 2nd Dept 6-7-17

 

NEGLIGENCE (SLIP AND FALL SNOW REMOVAL CONTRACTOR, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/SNOW REMOVAL CONTRACTOR (SLIP AND FALL, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)/LAUNCH AN INSTRUMENT OF HARM (SLIP AND FALL, SNOW REMOVAL CONTRACTOR, THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM)

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