You are here: / FAMILY COURT SHOULD NOT HAVE SUMMARILY DENIED COUNTY’S APPLICATION...

Search Results

/

FAMILY COURT SHOULD NOT HAVE SUMMARILY DENIED COUNTY’S APPLICATION FOR PATERNITY DNA TESTING WITHOUT REQUIRING PUTATIVE FATHER TO RAISE A QUESTION OF FACT TO SUPPORT THE EQUITABLE ESTOPPEL DEFENSE; COUNTY HAS STATUTORY AUTHORITY TO BRING A PATERNITY ACTION WHEN THE MOTHER OR CHILD IS LIKELY TO BECOME A PUBLIC CHARGE.

The Second Department, reversing Family Court, determined Family Court should not have denied, without a hearing, the County’s request for DNA paternity testing. The putative father had not raised a question of fact to support his assertion of the equitable estoppel defense (demonstrating that another had developed a father-child relationship). Only after determining whether equitable estoppel defense applies can the propriety of DNA testing be considered. The County has the statutory authority to bring a paternity proceeding when the mother or child is likely to become a public charge:

… [A]rticle 5 of the Family Court Act still retains as an objective the protection of the public from bearing the cost of supporting . . . children where there exists a viable, legally obligated source of support” … . Accordingly, “section 522 of the Family Court Act provides that, among other persons, a public welfare official of the county, city or town where the mother resides, or the child is found, may originate such proceedings, if the mother or child is or is likely to become a public charge'” … . * * *

… [T]he doctrine of equitable estoppel may be used by a purported biological father to prevent an adverse party from asserting that he is the biological father where the child has developed a close relationship with another father figure such that it would be detrimental to the child’s interests to disrupt that relationship … . Under such circumstances, in order to be entitled to a hearing on the issue of whether equitable estoppel should be applied, a putative father must raise an issue of fact as to whether “a determination that he is in fact the father would disturb any relationship the child[ ] may have had with any other father figure” … . “[W]hether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child” … . …

The Family Court … erred to the extent that it based its order dismissing the petition on its prior determination, in effect, denying the County’s application for DNA testing. The Family Court should not have summarily denied the County’s application without first requiring the putative father to raise an issue of fact with respect to his defense of equitable estoppel … . Matter of Suffolk County Dept. of Social Servs. v James D., 2017 NY Slip Op 01369, 2nd Dept 2-22-17

 

FAMILY LAW (PATERNITY, FAMILY COURT SHOULD NOT HAVE SUMMARILY DENIED COUNTY’S APPLICATION FOR PATERNITY DNA TESTING WITHOUT REQUIRING PUTATIVE FATHER TO RAISE A QUESTION OF FACT TO SUPPORT THE EQUITABLE ESTOPPEL DEFENSE)/PATERNITY (FAMILY COURT SHOULD NOT HAVE SUMMARILY DENIED COUNTY’S APPLICATION FOR PATERNITY DNA TESTING WITHOUT REQUIRING PUTATIVE FATHER TO RAISE A QUESTION OF FACT TO SUPPORT THE EQUITABLE ESTOPPEL DEFENSE)/DNA TESTING (FAMILY LAW, PATERNITY, FAMILY COURT SHOULD NOT HAVE SUMMARILY DENIED COUNTY’S APPLICATION FOR PATERNITY DNA TESTING WITHOUT REQUIRING PUTATIVE FATHER TO RAISE A QUESTION OF FACT TO SUPPORT THE EQUITABLE ESTOPPEL DEFENSE)/FAMILY LAW (PATERNITY, COUNTY HAS THE STATUTORY AUTHORITY TO BRING A PATERNITY ACTION WHEN THE MOTHER OR CHILD IS LIKELYT TO BECOME A PUBLIC CHARGE)/PATERNITY (COUNTY HAS THE STATUTORY AUTHORITY TO BRING A PATERNITY ACTION WHEN THE MOTHER OR CHILD IS LIKELYT TO BECOME A PUBLIC CHARGE)/PUBLIC CHARGE (FAMILY LAW, PATERNITY, COUNTY HAS THE STATUTORY AUTHORITY TO BRING A PATERNITY ACTION WHEN THE MOTHER OR CHILD IS LIKELYT TO BECOME A PUBLIC CHARGE)

/

SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED.

The Second Department determined a waiver of maintenance, equitable distribution and an award of attorney’s fees included in the prenuptial agreement did not preclude Supreme Court from awarding temporary relief prior to termination of the marriage. The Second Department also held that Supreme Court’s pendente lite child support deviated from the criteria of the Child Support Standards Act (CSSA) and therefore an explanation for the deviation was required:

Although the prenuptial agreement contains a waiver of maintenance, equitable distribution, and an award of attorney’s fees in the event of termination of the marriage, it does not bar temporary relief, including pendente lite maintenance and attorney’s fees during the pendency of this litigation … . While the Supreme Court properly awarded the plaintiff interim attorney’s fees, the court, without explanation, improvidently denied that branch of the plaintiff’s motion which was for an award of pendente lite maintenance. Accordingly, we remit the matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff’s motion … .

In determining an award of pendente lite child support, courts may, in their discretion, apply the Child Support Standards Act (hereinafter CSSA) standards and guidelines, but they are not required to do so … . “However, under some circumstances, particularly where sufficient economic data is available, an award of temporary child support that deviates from the level that would result if the provisions of the CSSA were applied may constitute an improvident exercise of discretion, absent the existence of an adequate reason for the deviation” … . Here, the court failed to provide any explanation as to how it determined the amount of the award of pendente lite child support. Under the circumstances of this case, the matter must be remitted to the Supreme Court … . Kashman v Kashman, 2017 NY Slip Op 01343, 2nd Dept 2-22-17

 

FAMILY LAW (SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED)/PRENUPTIAL AGREEMENT (SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED)/PENDENTE LITE MAINTENANCE (SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED)/PENDENTE LITE CHILD SUPPORT (SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED)/MAINTENANCE (SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED)CHILD SUPPORT (SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED)/CHILD SUPPORT STANDARDS ACT (CSSA) (SUPREME COURT SHOULD HAVE ORDERED PENDENTE LITE MAINTENANCE DESPITE WAIVER OF MAINTENANCE UPON TERMINATION OF THE MARRIAGE IN THE PRENUPTIAL AGREEMENT, SUPREME COURT FAILED TO EXPLAIN THE DEVIATION FROM THE CHILD SUPPORT STANDARDS ACT IN ITS AWARD OF PENDENTE LITE CHILD SUPPORT, CASE REMITTED)

/ ,

REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff’s request for leave to file a late notice of claim should have been denied. Plaintiff student was allegedly injured at school in a collision with another student at recess. The Second Department held that plaintiff (1) did not demonstrate the school’s timely awareness of the negligent supervision allegations (knowledge of plaintiff’s injury not enough), (2) did not present a reasonable excuse for the failure to timely file, and (3) did not demonstrate the school was not prejudiced by the delay (therefore the burden did not shift to the school to demonstrate prejudice):

… [A]s to the issue of substantial prejudice, the petitioners presented no “evidence or plausible argument” that their delay in serving a notice of claim did not substantially prejudice the appellant in defending on the merits … . The petitioners contend that the appellant has not been substantially prejudiced in its defense because the condition of the accident location has not changed. The condition of the accident location is irrelevant, however, to the petitioners’ claim of negligence—that the appellant was negligent in its supervision of students during a noon recess— and, thus, to the issue of substantial prejudice as well. The petitioners also assert that there were no known witnesses to the incident and, therefore, their delay in filing a notice of claim did not substantially prejudice the appellant in its ability to investigate. This contention runs counter to the petitioners’ allegation that the incident, a collision between the infant petitioner and another student, occurred during a group activity. Lastly, the petitioners contend that the availability of records as to the infant petitioner’s injuries establishes a lack of substantial prejudice. The medical records, however relevant to the issue of damages, have little, if anything, to do with the appellant’s ability to conduct an investigation as to its liability … . Thus, their availability does not support the petitioners’ argument that the appellant has not been substantially prejudiced. Inasmuch as the petitioners failed to present any evidence or plausible argument that the appellant has not been substantially prejudiced by the delay, the appellant never became required to make “a particularized evidentiary showing” that they were substantially prejudiced … . Matter of A.C. v West Babylon Union Free School Dist., 2017 NY Slip Op 01351, 2nd Dept 2-22-17

EDUCATION-SCHOOL LAW (REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED) /NEGLIGENCE (EDUCATION-SCHOOL LAW, REQUEST TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)

/ ,

TRIAL JUDGE’S EXTENSIVE QUESTIONING OF WITNESSES DEPRIVED DEFENDANT OF A FAIR TRIAL.

The Second Department ordered a new trial because the trial judge conducted extensive questioning of witnesses:

Supreme Court conducted excessive and prejudicial questioning of trial witnesses, warranting a new trial. Although defense counsel did not object to the questioning of witnesses by the court, we reach this contention in the exercise of our interest of justice jurisdiction …. . “[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on the function or appearance of an advocate'” … . “In last analysis, [the trial judge] should be guided by the principle that his [or her] function is to protect the record, not to make it” … . “[T]he line is crossed when the judge takes on either the function or appearance of an advocate at trial” … . Indeed, “even proper questions from trial judges present significant risks of prejudicial unfairness, particularly when the trial judge indulge[s] in an extended questioning’ of witnesses” … .

* * * …[T]he court’s improper interference with the conduct of the trial deprived the defendant of a fair trial, and a new trial is warranted … . People v Davis, 2017 NY Slip Op 01381, 2nd Dept 2-22-17

 

CRIMINAL LAW (TRIAL JUDGE’S EXTENSIVE QUESTIONING OF WITNESSES DEPRIVED DEFENDANT OF A FAIR TRIAL)/JUDGES (CRIMINAL LAW, TRIAL JUDGE’S EXTENSIVE QUESTIONING OF WITNESSES DEPRIVED DEFENDANT OF A FAIR TRIAL)

/ ,

NO PROOF DEFENDANT INTENDED TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED.

The Second Department reversed defendant’s attempted robbery convictions as against the weight of the evidence. Defendant, covered in blood, approached the complainant’s car, asked to be taken to the hospital, and then tried to open the car door. That proof was insufficient to demonstrate larcenous intent, which is the intent to permanently deprive someone of his or her property:

“In order to sustain a conviction for robbery . . . the People must establish that defendant had the requisite intent—that is, larcenous intent. Larcenous intent means the intent to deprive another of property or to appropriate the same to himself or to a third person'” … . The terms “deprive” and “appropriate” are specifically defined in Penal Law § 155.00(3) and (4), respectively, and connote a purpose “to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof” … . Thus, “[t]he mens rea element of larceny . . . is simply not satisfied by an intent temporarily to use property without the owner’s permission, or even an intent to appropriate outright the benefits of the property’s short-term use” … . People v Terranova, 2017 NY Slip Op 01390, 2nd Dept 2-22-17

CRIMINAL LAW (NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, ROBBERY, NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/LARCENOUS INTENT (CRIMINAL LAW, ROBBERY, NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/ROBBERY (NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)

/ ,

QUESTION OF FACT WHETHER LANDLORD’S AGENTS WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, LANDLORD’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court in this dog-bite case, determined there was a question of fact whether the landlord’s (Fowler LLC’s) agents knew of the vicious propensities of a dog on the premises:

“To recover against a landlord for injuries caused by a tenant’s dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog” … . “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others” … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” … .

Fowler met its prima facie burden for judgment as a matter of law by demonstrating that it was not aware, nor should it have been aware, that the dog had any vicious propensities … . However, in opposition to the motion, the plaintiff raised a triable issue of fact as to whether nonparties John Martel and Carlos Ortez were Fowler’s agents such that their knowledge of the dog’s alleged vicious propensities could be imputed to Fowler … . Kraycer v Fowler St., LLC, 2017 NY Slip Op 01345, 2nd Dept 2-22-17

 

ANIMAL LAW (DOG-BITE, QUESTION OF FACT WHETHER LANDLORD’S AGENTS WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, LANDLORD’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/DOG-BITE (LANDLORD, QUESTION OF FACT WHETHER LANDLORD’S AGENTS WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, LANDLORD’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/LANDLORD-TENANT (DOG-BITE, QUESTION OF FACT WHETHER LANDLORD’S AGENTS WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, LANDLORD’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/AGENCY (DOG-BITE, QUESTION OF FACT WHETHER LANDLORD’S AGENTS WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG-BITE CASE, LANDLORD’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

/ ,

PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE.

The Second Department determined Supreme Court properly excluded a purported copy of a guaranty from evidence and properly dismissed the complaint which sought enforcement of the guaranty. The purported original guaranty was incomplete and was withdrawn as evidence:

Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . Once the absence of an original document is excused, all competent secondary evidence is generally admissible to prove its contents … . However, the proponent of the secondary evidence has a “heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” … . “Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original’ before ruling on its admissibility” … .

Here, even if the plaintiff sufficiently explained the unavailability of the original guaranty … , it failed to meet its heavy burden of establishing that the proffered copy was a reliable and accurate portrayal of the original … . The plaintiff’s principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a) … . 76-82 St. Marks, LLC v Gluck, 2017 NY Slip Op 01329, 2nd Dept 2-22-17

 

CONTRACT LAW (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/GUARANTY (EVIDENCE, PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/EVIDENCE (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)

/ ,

EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE.

The Second Department ordered a new trial (in the interest of justice) in this elevator accident case because the trial judge excluded a witness representing the elevator company from the courtroom and prohibited any communication between the witness and defense counsel:

… [A] new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial … . Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense … . Perry v Kone, Inc., 2017 NY Slip Op 01395, 2nd Dept 2-22-17

CIVIL PROCEDURE (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/NEGLIGENCE (TRIALS, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/TRIALS (CIVIL, NEGLIGENCE, ELEVATOR ACCIDENT, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE)/ELEVATORS (TRIALS, EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM AND PROHIBITING COMMUNICATION BETWEEN DEFENSE COUNSEL AND THE REPRESENTATIVE REQUIRED A NEW TRIAL IN THE INTEREST OF JUSTICE

/ ,

PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE.

The Second Department, reversing Supreme Court, determined defendants’ motion to strike the note of issue and certificate of readiness should have been granted on the ground discovery was incomplete:

The Supreme Court should have granted the defendants’ motion to strike the note of issue and certificate of readiness and to compel the plaintiff to appear for an independent medical examination … . “While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court” … . Under the circumstances of this case, including the defendants’ prompt motion to strike the note of issue and certificate of readiness on the ground that discovery was incomplete, and the plaintiff’s failure to demonstrate any prejudice in opposition, the note of issue and certificate of readiness should be stricken, and the plaintiff compelled to appear for an independent medical examination so that discovery may be completed. Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01349, 2nd Dept 2-22-17

CIVIL PROCEDURE (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/NOTE OF ISSUE (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/CERTIFICATE OF READINESS (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/STRIKE, MOTION TO (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)/DISCOVERY (PROMPT MOTION TO STRIKE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE BEEN GRANTED, DISCOVERY WAS NOT COMPLETE)

/ , ,

PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION.

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissenting opinion, determined Supreme Court properly denied the defendants’ motion for summary judgment in this medical malpractice action. The dissent found the plaintiffs’ experts’ opinions too speculative to raise a question of fact. The opinion is fact-specific and cannot be fairly summarized here:

In sum, defendants submitted expert affirmations that established prima facie that they did not depart from good and accepted medical practice or that any such departure was not a proximate cause of [plaintiff’s]  injuries … . In opposition, plaintiffs submitted expert opinions that raised issues of fact as to the following alleged departures: the premature release of [plaintiff] from postanesthesia care unit, the failure to identify and treat his overdose or adverse reaction to morphine, and the failure to timely respond to his cardiorespiratory arrest … . Severino v Weller, 2017 NY Slip Op 01325, 1st Dept 2-21-17

NEGLIGENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EVIDENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)

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