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JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET.

The First Department, over a dissent, determined the driver who caused the injury to plaintiff’s leg was properly excluded from the verdict sheet in this medical malpractice action. Only the treatment of the leg injury (amputation) was before the jury, not the original injury:

[T]he court [did not] err in denying defendants’ request to place the driver of the vehicle that struck plaintiff, who settled prior to institution of the instant action, on the verdict sheet. Defendants are subsequent tortfeasors, and the jury was correctly charged that its award was to be limited to the exacerbation of the original injury caused by malpractice … . Defendants’ argument that plaintiff’s original injury and subsequent amputation were indivisible is without merit, in that the experts testified as to what the condition of the leg would have been if it had been saved … . Defendants’ arguments concerning General Obligations Law § 15-108 are academic, given that the court reduced the judgment based upon the settlement received by the settling driver. Marin v New York City Health & Hosps. Corp., 2016 NY Slip Op 08294, 1st Dept 12-8-16

NEGLIGENCE (MEDICAL MALPRACTICE, JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET)/MEDICAL MALPRACTICE (JURY ONLY CONSIDERED THE TREATMENT OF PLAINTIFF’S LEG AFTER IT HAD BEEN INJURED BY A DRIVER, THE DRIVER WAS PROPERLY NOT INCLUDED IN THE MALPRACTICE VERDICT SHEET)

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TRANSFERS MADE WITHIN FIVE YEARS JUSTIFIED FIVE MONTH PERIOD OF INELIGIBILITY FOR MEDICAID BENEFITS.

The Third Department confirmed the determination of the Department of Health that petitioner was ineligible for Medicaid coverage for a period of five months based upon transfers of property made during the five-year look-back period:

“In reviewing a Medicaid eligibility determination rendered after a hearing, this Court must review the record, as a whole, to determine if the agency’s decisions are supported by substantial evidence and are not affected by an error of law” … . For purposes of determining Medicaid eligibility, “any transfer of an asset by the individual or the individual’s spouse for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services” for a period of time based on the amount transferred … . Such a transfer will not result in a penalty period where the applicant has made a satisfactory showing that the individual intended to dispose of the assets at fair market value or the assets were transferred exclusively for a purpose other than to qualify for medical assistance … . The burden is on the applicant to demonstrate his or her eligibility for Medicaid by rebutting the “presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of a future need to qualify for medical assistance” … . …

Substantial evidence is “less than a preponderance of the evidence” and “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . * * * We cannot say that respondents erred in rejecting [the] proof as inadequate and note that the Department of Social Services duly credited petitioner for expenses in which receipts were provided. Matter of Krajewski v Zucker, 2016 NY Slip Op 08287, 3rd Dept 12-8-16

MEDICAID (TRANSFERS MADE WITHIN FIVE YEARS JUSTIFIED FIVE MONTH PERIOD OF INELIGIBILITY FOR MEDICAID BENEFITS)

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RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD.

The Third Department determined the rules promulgated by respondent NY Public High School Athletic Association concerning restrictions on the eligibility of transfer students to participate in school sports were valid:

… [I]t is settled that “courts should not interfere with the internal affairs, proceedings, rules and orders of a high school athletic association unless there is evidence of acts which are arbitrary, capricious or an abuse of discretion” … . Such “determination rests on whether the athletic association’s actions have a sound basis in reason and a foundation in fact” … .

We find that petitioners have failed to demonstrate that the actions taken by respondent warrant our interference. The purpose of the transfer rule, which was promulgated by respondent pursuant to its constitution and by authority delegated to it through the regulations of the Commissioner of Education … , is to deter athletic school-shopping and the recruitment of high school athletes by schools. By establishing an objective standard for eligibility that prohibits, with certain limited exceptions, immediate eligibility upon a transfer not accompanied by a parental change of residence, the transfer rule reasonably and rationally furthers these legitimate goals. Indeed, “[t]he absence of such a rule might reasonably invite strategically motivated transfers thinly disguised as transfers in the best (nonathletic) interest of the student” … . Matter of Albany Academies v New York State Pub. High Sch. Athletic Assn., 2016 NY Slip Op 08290, 3rd Dept 12-8-16

 

EDUCATION-SCHOOL LAW (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)/TRANSFER STUDENTS (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)

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STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE.

The First Department determined that a statement by an unidentified bystander, audible on the 911 call, was properly admitted as an excited utterance. The court noted that another judge, who became ill, had ruled the statement inadmissible. Because it was an evidentiary ruling, it was not subject to the law of the case doctrine:

The court providently admitted, as an excited utterance, the statement of an unidentified bystander, audible on the 911 call made by one of the victims, that implicated defendant. All of the circumstances — most significantly that the statement was made immediately after the shooting — established a strong likelihood that the declarant observed the shooting … .

Although a contrary ruling on the excited utterance issue had been made by a previous judge, who presided over part of jury selection but was unable to continue because of illness, this circumstance did not foreclose the successor judge’s ruling by operation of the law of the case doctrine. The ruling was evidentiary and did not fall within the ambit of that doctrine (see People v Evans , 94 NY2d 499 [2000]). Defendant does not dispute that this was the type of ruling that, under Evans , may be revisited by a successor judge in a retrial. We see no reason to apply a different rule where there are successive judges in the same trial … . People v Cummings, 2016 NY Slip Op 08298, 1st Dept 12-8-16

CRIMINAL LAW (STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/EVIDENCE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/EXCITED UTTERANCE  (STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/HEARSAY (EXCITED UTTERANCE, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/LAW OF THE CASE DOCTRINE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/CIVIL PROCEDURE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)

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TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL.

The Third Department, over a two-justice dissent, determined the probation violation petition gave sufficient notice of the charges and a woman (Nichols) who had been convicted of misdemeanor DWI was a “convicted criminal” within the meaning of a condition of probation (prohibiting association with convicted criminals). The court held that it was not necessary to prove petitioner knew of the DWI conviction. The probationer apparently went to the Nichol’s apartment for the purpose of taking a dog for a walk. The dissent argued that simply taking a dog for a walk  was not “contact” or “association” with a convicted criminal:

Special condition No. 17 required defendant to refrain from associating with “convicted criminals” — as opposed to “known criminals.” Accordingly, defendant cannot avoid a violation of the subject condition simply by claiming either that he did not know that a particular individual had been convicted of a crime or that he believed that said individual was guilty of only a traffic violation. …

With respect to the issue of whether defendant “associate[d]” with Nichols within the meaning of special condition No. 17, the testimony at the hearing further demonstrated that, on approximately four occasions … , defendant called either Nichols or her daughter and thereafter went to Nichols’ apartment for the purpose of picking up and walking the dog that defendant and Nichols once shared. Notably, Nichols confirmed that she spoke with defendant, with whom she remained friends, on the telephone to make arrangements regarding the dog and testified that she personally exchanged the dog with defendant “[a]bout four times,” stating, “I would hand him the dog and he would take the dog and go down the street.” People v Kislowski, 2016 NY Slip Op 08261, 3rd Dept 12-8-16

 

CRIMINAL LAW (TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/EVIDENCE (CRIMINAL LAW, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/PROBATION (VIOLATION, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)

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FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, TRIAL JUDGE DID NOT MAKE A SUFFICIENT INQUIRY WHEN THE JUROR EXPRESSED DOUBT SHE COULD BE FAIR.

The First Department, over a two-justice dissent, determined defense counsel’s “for cause” challenge to a juror (Ms. J) should have been granted. Two of the juror’s siblings had been the victims of serious crimes. Although the juror, at one point, indicated she could be fair, she subsequently expressed doubt and the trial judge did not make any further inquiry at that point:

 

While it is true that the trial judge in this case asked Ms. J. on October 5, 2011 whether the crimes suffered by her siblings would affect her ability to be fair, the judge did not repeat this inquiry the next day when Ms. J. repeated her belief that her siblings’ experience might affect her ability to be fair. Defense counsel’s general inquiry into whether Ms. J. would have difficulty returning a not guilty verdict if she had a reasonable doubt was insufficient to elicit an unequivocal assurance of her impartiality, as this questioning failed to confront the very issue she had raised: that her siblings’ experiences would affect her, thus making it less likely that she might have any reasonable doubt. Just as defense counsel’s venire-wide inquiry in Arnold did not directly address a prospective juror’s personal bias, in this case, defense counsel’s general inquiry about reasonable doubt did not directly address the concerns of bias raised by Ms. J. on October 6, 2011.

…[W]e [also] find that the totality of Ms. J.’s responses did not indicate that she could set aside what happened to her brother and sister. People v Small, 2016 NY Slip Op 08293, 1st Dept 12-8-16

 

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, TRIAL JUDGE DID NOT MAKE A SUFFICIENT INQUIRY WHEN THE JUROR EXPRESSED DOUBT SHE COULD BE FAIR)/JURORS (CRIMINAL, FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED, TRIAL JUDGE DID NOT MAKE A SUFFICIENT INQUIRY WHEN THE JUROR EXPRESSED DOUBT SHE COULD BE FAIR)

 

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STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY.

The Third Department affirmed the Court of Claim’s determination that the absence of a guide rail was not the proximate cause of claimant’s injuries, and the state was entitled to qualified immunity because it had reasonably concluded after a study that a guide rail was not necessary. Claimant was injured when the ambulance in which he was riding struck a stone wall near the roadway:

Defendant’s duty to maintain roads in a reasonably safe condition includes the installation of guide rails when necessary … . With respect to highway safety and design, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . “Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” … . Schroeder v State of New York, 2016 NY Slip Op 08263, 3rd Dept 12-8-16

COURT OF CLAIMS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/QUALIFIED IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/HIGHWAYS AND ROADS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUIDE RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUARD RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)

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WRITTEN AGREEMENT REQUIREMENT IN POLICY FOR ADDITIONAL INSUREDS DID NOT REQUIRE AN EXECUTED AGREEMENT.

The First Department determined the “written agreement” requirement in an insurance policy did not mean a “signed agreement.” Here a purchase order required that the owner’s property manager, Newmark, be named as an additional insured. The purchase order did not have signature lines and was not signed. The court held the unsigned purchase order was a “written agreement” within the meaning of the policy language:

Defendant contends that Newmark and the owner are not additional insureds because the purchase order/agreement was unsigned. However, defendant’s policy merely requires a “written” contract, not a “signed” one. By contrast, in Cusumano v Extell Rock, LLC (86 AD3d 448 [1st Dept 2011]), the policy said, “The following are also an insured when you … have agreed, in writing, in a contract or agreement that another person or organization be added as an additional insured on your policy, provided the injury or damage occurs subsequent to the execution of the contract or agreement” … . As the motion court in Cusumano found, the insurer analogous to defendant in the case at bar “expressly included the word executed’ in[] its Policy, thereby requiring that any agreement by Regions to add a person/organization as an additional insured be memorialized in a signed contract” … . * * *

Under the circumstances, the court did not err by finding that the unsigned purchase order constituted a written contract for purposes of the additional insured endorsement … . Zurich Am. Ins. Co. v Endurance Am. Speciality Ins. Co., 2016 NY Slip Op 08313, 1st Dept 12-8-16

 

CONTRACT LAW (INSURANCE POLICY, WRITTEN AGREEMENT REQUIRED BY POLICY FOR ADDITIONAL INSUREDS DID NOT REQUIRE AN EXECUTED AGREEMENT)/INSURANCE LAW (WRITTEN AGREEMENT REQUIRED BY POLICY FOR ADDITIONAL INSUREDS DID NOT REQUIRE AN EXECUTED AGREEMENT)/ADDITIONAL INSUREDS (WRITTEN AGREEMENT REQUIRED BY POLICY FOR ADDITIONAL INSUREDS DID NOT REQUIRE AN EXECUTED AGREEMENT)

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ZONING BOARD’S DENIAL OF APPLICATION FOR SITE PLAN APPROVAL ANNULLED, BOARD’S DETERMINATION BASED SOLELY ON GENERALIZED COMMUNITY OPPOSITION.

The Second Department, reversing the zoning board, determined that the denial of petitioner’s application for site plan approval was improperly based solely on generalized community opposition. The village consultants and the negative State Environmental Quality Review Act (SEQRA) declaration did not support the board’s determination:

“Although scientific or other expert testimony is not required in every case to support a zoning board’s determination, the board may not base its decision on generalized community objections” … . In contrast, a zoning board’s reliance upon specific, detailed testimony of neighbors based on personal knowledge does not render a variance determination the product of generalized and conclusory community opposition … .

Here, we agree with the petitioner that the record lacks sufficient evidence to support the rationality of the Board’s determinations denying the petitioner’s application for site plan approval … . The only evidence in the record concerning the traffic and safety issues cited by the Board in the determinations was the conclusory opposition of neighboring residents, which was not supported by any of the Village’s consultants and was contradicted by the negative SEQRA declaration adopted by the Board … . Under the circumstances, the Board’s determinations were improperly based on generalized community opposition and should have been annulled … . Matter of Ramapo Pinnacle Props., LLC v Village of Airmont Planning Bd., 2016 NY Slip Op 08238, 2nd Dept 12-7-16

ZONING (ZONING BOARD’S DENIAL OF APPLICATION FOR SITE PLAN APPROVAL ANNULLED, BOARD’S DETERMINATION BASED SOLELY ON GENERALIZED COMMUNITY OPPOSITION)

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QUESTIONS OF FACT WHETHER DEFENDANT SUPERVISED AND DIRECTED PLAINTIFF’S WORK AND WHETHER PLAINTIFF WAS A SPECIAL EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, DEFENDANT’S MOTION TO DISMISS THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DENIED.

With respect to one of the defendants (Irwin) the Second Department determined Supreme Court should have denied the defendant’s motion for summary judgment on the Labor Law 200 and common-law negligence claims. Plaintiff injured his knee carrying a 200 pound, 30 foot beam. The defendant’s own submission raised questions of fact about whether defendant supervised and directed plaintiff’s work, and whether plaintiff was a “special employee” such that his only remedy was Workers’ Compensation benefits:

The Supreme Court erred, however, in determining that Irwin was entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. The evidence submitted by Irwin in support of its summary judgment motion demonstrated that Irwin supervisors were present at the construction site every day supervising the work, and that these supervisors gave the plaintiff his daily work assignments. The plaintiff testified at his deposition, a transcript of which was submitted in support of Irwin’s motion, that on the date of the accident, an Irwin supervisor assigned him to the task of moving the rafters, unassisted, and instructed the plaintiff to retrieve specific equipment in furtherance of the task. When the plaintiff complained to the supervisor about the manner in which the work was to be performed, the supervisor told him to “just do it.” …

Pursuant to Workers’ Compensation Law §§ 11 and 29(6), an employee injured during the course of his employment is limited to recovering Workers’ Compensation benefits, and is not entitled to bring an action against the employer. This exclusive remedy rule also applies to a “special employee,” defined as “one who is transferred for a limited time of whatever duration to the service[s] of another”… . Whether a special employment relationship exists is generally an issue of fact … , and requires consideration of many factors, the most of important of which is who directs and controls the manner, details, and ultimate result of the employee’s work … . Additionally, the employee must have had knowledge of, and consented to, the special employment relationship … . As discussed above, the evidence submitted by Irwin raised a triable issue of fact as to whether Irwin had the authority to supervise and control the manner in which the plaintiff performed his work. Likewise, the evidence submitted by Irwin raised a triable issue of fact as to whether Irwin had the “exclusive right to control and direct the manner, details, and ultimate result” of the plaintiff’s work, such that a special employment relationship was created … . Additionally, Irwin failed to submit evidence demonstrating that the plaintiff had knowledge of, and consented to, a special employment relationship … . Zupan v Irwin Contr., Inc., 2016 NY Slip Op 08229, 2nd Dept 12-7-16

 

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER DEFENDANT SUPERVISED AND DIRECTED PLAINTIFF’S WORK AND WHETHER PLAINTIFF WAS A SPECIAL EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, DEFENDANT’S MOTION TO DISMISS THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DENIED)/WORKERS’ COMPENSATION LAW (QUESTIONS OF FACT WHETHER DEFENDANT SUPERVISED AND DIRECTED PLAINTIFF’S WORK AND WHETHER PLAINTIFF WAS A SPECIAL EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, DEFENDANT’S MOTION TO DISMISS THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DENIED)

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