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STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined Section 61 of the Executive Budget Law, which cut-off counties’ ability to seek Medicaid “overburden expenses” as of January 1, 2006, is constitutional. The State Executive Budget Memorandum explained that the purpose of Section 61 was to “to clarify that local governments cannot claim for overburden expenses incurred prior to January 1, 2006 when the ‘local cap’ statute that limited local contributions to Medicaid expenditures took effect. This is necessary to address adverse court decisions that have resulted in State costs paid to local districts for pre-cap periods, which conflict with the original intent of the local cap statute:”

Once the State complied with its statutory obligation under Social Services Law § 368-a (1) (h) (i) to pay the counties for overburden reimbursements, it was fully consistent with the prior mandatory reimbursement scheme for the Legislature to impose a deadline on claims for unpaid funds. That deadline was neither in conflict with a fundamental law nor our constitutional principles. Just as the Counties cannot be heard to complain that the Legislature replaced one Medicaid allocation scheme with another, thus redefining the counties’ expense burden, so too are the counties without recourse when the Legislature imposes a deadline on the counties’ submission of claims for overburden reimbursements, thereby closing the door on pre-2006 claims. Matter of County of Chemung v Shah, 2016 NY Slip Op 07043, CtApp 10-27-16

 

MEDICAID (STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)/MUNICIPAL LAW (COUNTIES, MEDICAID REIMBURSEMENT, STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)/COUNTIES (MEDICAID REIMBURSEMENT, STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)

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SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Pigott, over a three-judge dissent, determined the search of a juvenile’s shoe at the police station was reasonable. Therefore, the weapon found in the shoe was admissible. The dissent argued the Court of Appeals did not have jurisdiction to hear the appeal because the dissent below did not present a question of law, but rather a mixed question of law and fact:

Respondent initially told police on the street that he was 16 years old. Because he lacked identification, the police transported him to the precinct, where, nearly an hour later, he told them that he was only 15 years old. Thereafter, the officers treated respondent as a juvenile, placing him in a juvenile room and making him remove his belt, shoelaces and shoes as a protective measure until his parents were notified and he could be picked up from the precinct. Based on respondent’s representation that he was 16 years old and the officers’ observations of him in the street, the officers had probable cause to arrest respondent for disorderly conduct.

We also conclude that the limited search of respondent’s shoes was reasonable. The majority found no fault with the request that respondent remove his belt and shoelaces as a safety precaution; rather it was the request to remove his shoes that the majority held to be “far more intrusive than a frisk or patdown” … . However, the officers were not first required to suspect that respondent either possessed contraband or posed a danger to himself or officers before being directed to remove his shoes. In that regard, the limited search of respondent’s shoes while he was temporarily detained and awaiting the notification of his parents was a reasonable protective measure employed by police to ensure both the safety of respondent and the officers, and the intrusion was minimal … . Matter of Jamal S., 2016 NY Slip Op 07045, CtApp 10-27-16

 

CRIMINAL LAW (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/SEARCH AND SEIZURE (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/FAMILY LAW (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/JUVENILE DELINQUENCY (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)

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PLAINTIFF’S PURCHASE OF NOTES WAS FOR THE PRIMARY PURPOSE OF BRINGING A LAWSUIT IN VIOLATION OF THE JUDICIARY LAW (CHAMPERTY STATUTE).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined plaintiff Jusitian Capital’s purchase of notes from DPAG was champertous (purchased for the primary purpose of bringing a lawsuit), and further determined Justinian was not entitled to the “safe harbor” provision of the champerty statute (which exempts securities purchased for “an aggregate purchase price of at least five hundred thousand dollars”):

… DPAG and Justinian entered into a sale and purchase agreement (the Agreement). Pursuant to the Agreement, DPAG would assign the Notes to Justinian and Justinian would agree to pay DPAG a base purchase price of $1,000,000 … . The Notes were assigned to Justinian shortly after execution of the Agreement. The assignment, however, was not contingent on Justinian’s payment of the $1,000,000. Nor did Justinian’s failure to pay the $1,000,000 constitute an Event of Default under section 9 of the Agreement. * * *

…[T]he impetus for the assignment of the Notes to Justinian was DPAG’s desire to sue [defendant] for causing the Notes’ decline in value and not be named as the plaintiff in the lawsuit. Justinian’s business plan, in turn, was acquiring investments that suffered major losses in order to sue on them, and it did so here within days after it was assigned the Notes. … [T]here was no evidence, even following completion of champerty-related discovery, that Justinian’s acquisition of the Notes was for any purpose other than the lawsuit it commenced almost immediately after acquiring the Notes … . * * *

The record establishes, and we conclude as a matter of law, that the $1,000,000 base purchase price listed in the Agreement was not a binding and bona fide obligation to pay the purchase price other than from the proceeds of the lawsuit. The Agreement was structured so that Justinian did not have to pay the purchase price unless the lawsuit was successful, in litigation or in settlement. Justinian Capital SPC v WestLB AG, 2016 NY Slip Op 07047, CtApp 10-27-16

 

DEBTOR-CREDITOR (PLAINTIFF’S PURCHASE OF NOTES WAS FOR THE PRIMARY PURPOSE OF BRINGING A LAWSUIT IN VIOLATION OF THE JUDICIARY LAW (CHAMPERTY STATUTE))/CHAMPERTY (PLAINTIFF’S PURCHASE OF NOTES WAS FOR THE PRIMARY PURPOSE OF BRINGING A LAWSUIT IN VIOLATION OF THE JUDICIARY LAW (CHAMPERTY STATUTE))

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ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion, determined defendants’ challenges to the procedure by which he was indicted were not jurisdictional in nature and, therefore, did not survive his guilty plea. A so-called “DNA indictment” named a John Doe because the DNA from the perpetrator could not be matched to anyone in the DNA database. Years later, DNA taken from the defendant was matched to that in the “John Doe” DNA indictment. The People then moved to add defendant’s name to the indictment based upon hearsay statements in the motion papers. The motion was granted. Defendant argues that he was deprived of his right to indictment by grand jury because his name was added to the “John Doe” indictment in the absence of any additional proceedings in front of a grand jury:

A jurisdictional defect in an indictment may not be waived by a guilty plea and can be raised for the first time on appeal … . “[A]n indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all” … . * * *

Insufficiency of an indictment’s factual allegations … does not constitute a jurisdictional defect that is reviewable by this Court … , and, once a guilty plea has been entered, “the sufficiency of the evidence before the grand jury cannot be challenged” … . Thus, “‘[a] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings'”

Here, the DNA indictment properly charged a person with acts that constitute a crime, albeit identifying the individual by a unique DNA profile rather than by his name. As such, it avoided … jurisdictional infirmities … . Defendant’s challenge to the legal sufficiency of the DNA indictment is based on the failure to identify him as the perpetrator by name, but this alleged defect is not a jurisdictional one, and therefore, does not survive his guilty plea. By pleading guilty, defendant acknowledged that he was the person who committed the offense. Defendant therefore forfeited his challenge and is foreclosed from raising the issue on appeal. Once defendant pleaded guilty, his “‘conviction rest[ed] directly on the sufficiency of the plea, not on the legal or constitutional sufficiency of any proceedings which might have led to a conviction after trial'”… . People v Guerrero, 2016 NY Slip Op 07044, CtApp 10-27-16

 

CRIMINAL LAW (ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)/INDICTMENT (ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)/DNA INDICTMENT (ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)/GRAND JURY (DNA INDICTMENT, ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)

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APPELLATE DIVISION APPLIED THE WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the Appellate Division used the wrong test when it reversed a civil assault verdict and ordered a new trial. The central issue was whether defendant was the initial aggressor. In the first trial, the jury found that the defendant had acted in self-defense. The plaintiff moved to set aside the verdict as a matter of law and, alternatively, to set aside the verdict as against the weight of the evidence. The trial court denied the motion. The Appellate Division, applying a weight of the evidence test, reversed and held ” ‘no fair interpretation of the evidence’ supported ‘the verdict finding that defendant acted in self-defense’ inasmuch as it was predicated upon ‘a conclusion that defendant was not the initial aggressor in the encounter’ .” Based on the Appellate Division’s ruling, at the second trial, the defendant was deemed the initial aggressor as a matter of law and the jury found for the plaintiff. The Court of Appeals held that the test the Appellate Division should have applied on its review of the first trial was the “utterly irrational (matter of law)” test, not the “weight of the evidence” test. Applying the correct test, the Court of Appeals found that the jury’s conclusion the defendant acted in self-defense was not “utterly irrational.” Therefore the Appellate Division should not have set aside defendant’s verdict and then precluded him from presenting the “initial aggressor/self-defense” question to the jury in the second trial:

The question before us is whether the Appellate Division’s legal conclusion in its 2012 order was reached under the proper test. When the Appellate Division reviews a jury determination, it may either examine the facts to determine whether the weight of the evidence comports with the verdict, or the court may determine that the evidence presented was insufficient as a matter of law, rendering the verdict utterly irrational … . Defendant argues that the Appellate Division erred by setting aside the jury verdict in his favor and improperly determining as a matter of law that a justification defense was unavailable to him, without finding the verdict to be utterly irrational. We agree. * * *

In its 2012 order, although the Appellate Division examined the facts and determined that “the jury’s conclusion that defendant was not the first to threaten the immediate use of physical force [wa]s unreachable on any fair interpretation of the evidence” (98 AD3d 830) — ostensibly a weight of the evidence review — the effect of that order was to hold as a matter of law that defendant was the initial aggressor to whom the defense of justification was not available — a determination that could only be reached by concluding that the verdict was “utterly irrational.” Yet, the Appellate Division did not use the utterly irrational test. The Appellate Division’s error in not applying the proper test resulted in defendant being improperly precluded from raising a justification defense on the retrial. Defendant should have been afforded a new trial on all the issues in the case, including consideration of his justification defense by the jury. Despite this error, reversal is only required if we find that the jury verdict was not utterly irrational.

Because determining whether a jury verdict was utterly irrational involves a pure question of law, this Court may look at the trial evidence and make that determination … . We must consider the jury charge as to initial aggressor and self-defense that was given during the first trial because the instruction, submitted without objection, is the law of the case … . Based on that instruction, … we hold that the jury’s determination that defendant acted in self-defense was not utterly irrational. * * *

Accordingly, the order appealed from and the … Appellate Division order insofar as brought up for review should be reversed, with costs, and the matter remitted to Supreme Court for a new trial in accordance with the opinion herein. Killon v Parrotta, 2016 NY Slip Op 07048, CtApp 10-27-16

CIVIL PROCEDURE (APPEALS, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)/APPEALS (CIVIL, MOTION TO SET ASIDE VERDICT AS A MATTER OF LAW, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)/VERDICT, MOTION TO SET ASIDE (APPEALS, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)

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CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW.

The Second Department, applying principles of statutory interpretation, determined that cell phone system equipment owned by T-Mobile was taxable under provisions of the Real Property Tax Law:

… T-Mobile’s fiber optic, T-1, and coaxial cables, as well as the connections between T-Mobile’s equipment and that of the local exchange carrier, are “lines” or “wires” within the meaning of RPTL 102(12)(i) and, thus, are taxable real property.

… [S]ince T-Mobile’s base transceiver station cabinets contain, among other things, primary and battery backup power systems and equipment for “[m]odify[ing] and retransmit[ting] . . . radio signals for landline retransmission via separate electrical conductors or fiber optics,” they can properly be characterized as “inclosures for electrical conductors” within the meaning of RPTL 102(12)(i).

Likewise, while T-Mobile’s rooftop antennas, which are flat and four to five feet in both length and width, cannot be characterized as “poles” within the ordinary understanding of that term, they can be properly characterized as “inclosures for electrical conductors” inasmuch as they are a part to the base transceiver station cabinet.

Further, the contention of the School District and the City that T-Mobile’s rooftop antennas can also be taxed as fixtures pursuant to RPTL 102(12)(b) is correct. Matter of T-Mobile Northeast, LLC v DeBellis, 2016 NY Slip Op 07031, 2nd Dept 10-26-16

 

REAL PROPERTY TAX LAW (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW)/TAX LAW (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW)/CELL PHONE TRANSMISSION EQUIPMENT (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW)/TAX LAW (CELL PHONE TRANSMISSION EQUIPMENT TAXABLE UNDER REAL PROPERTY TAX LAW

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PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiff’s conflicting evidence about how long a puddle of water had been on defendant store’s floor precluded summary judgment, without regard for the sufficiency of defendant’s opposing papers. Plaintiff testified she didn’t see the puddle before she fell and she and her daughter had been shopping for 15 minutes prior to the fall. . Plaintiff’s daughter testified she saw the puddle when they first entered the store and they had been shopping for 45 minutes prior to the fall:

… [T]he plaintiff failed to make a prima facie showing of her entitlement to judgment as a matter of law on the issue of liability. The plaintiff’s submissions provided conflicting evidence with respect to how long the puddle had been on the floor prior to the plaintiff’s accident, and were insufficient to demonstrate, prima facie, that the defendant had actual notice of the puddle, or that it had existed for a sufficient length of time for the defendant’s employees to discover and remedy it. The plaintiff’s submissions also failed to demonstrate, prima facie, that she was free from comparative fault … . Hernandez v Conway Stores, Inc., 2016 NY Slip Op 07001, 2nd Dept 10-26-16

NEGLIGENCE (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)/SLIP AND FALL (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)/SUMMARY JUDGMENT (SLIP AND FALL, (PLAINTIFF’S CONFLICTING EVIDENCE ABOUT WHEN THE PUDDLE WAS FIRST SEEN AND HOW LONG THE PUDDLE HAD BEEN ON THE FLOOR PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE, SUPREME COURT REVERSED)

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FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURES FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED.”

The Second Department, reversing Supreme Court, determined the failure to follow the statutory procedures for sentencing a persistent felony offender required that the motion to set aside the sentence be granted:

CPL 400.15 and 400.16 “govern the procedure that must be followed in any case where it appears that a defendant who stands convicted of a violent felony offense . . . has previously been subjected to two or more predicate violent felony convictions . . . and may be a persistent violent felony offender” (CPL 400.16[1]). Here, neither the People nor the Supreme Court complied with that mandatory procedure. Therefore, the sentence was “illegally imposed” (CPL 440.20[1]), regardless of whether the defendant is, in fact, a persistent violent felony offender (see Penal Law § 70.08[1]), and the Supreme Court should have granted the motion to set aside the sentence … . People v Rivera, 2016 NY Slip Op 07036, 2nd Dept 10-26-16

CRIMINAL LAW (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)/SENTENCING (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)/PERSISTENT FELONY OFFENDER (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)

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ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE.

The Second Department, reversing Supreme Court, determined Supreme Court did not have the power to “reinstate” a “verdict” that had not been recorded in open court. When the jury first announced they had a verdict, the court officer, without reporting the verdict to the judge, handed the verdict sheet back to the jurors, pointing to directions on the sheet. After the judge accepted a subsequent verdict, the court officer informed the judge of the prior “verdict” and his interaction with the jurors:

“[A] trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors” … . Here, the Supreme Court providently exercised its discretion in setting aside the jury’s verdict on the basis that it was the product of substantial confusion. However, the court erred in attempting to “reinstate” the jury’s original verdict as reported by the court officer. ” A verdict is not recognized as valid and final until it is pronounced and recorded in open court'” … . Under these circumstances, upon setting aside the verdict, the court should have granted the branch of the defendant’s motion which was for a new trial … . Kitenberg v Gulmatico, 2016 NY Slip Op 07004, 2nd Dept 10-26-16

CIVIL PROCEDURE (ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)/VERDICTS (CIVIL, ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)/JUROR CONFUSION (VERDICTS, CIVIL, ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)

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PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH.

The First Department, over a two justice dissent, determined plaintiffs’ experts had presented sufficient evidence to warrant a Frye hearing in this medical malpractice case. The plaintiffs’ baby suffered neurological damage caused by a rapidly growing tumor. The question tackled by the experts was whether the tumor was detectable prior to birth (ultrasound). The majority concluded plaintiffs’ experts had presented sufficient evidence that the tumor may have been detectable to warrant a hearing. The dissent argued the evidence presented by the plaintiffs’ experts was not sufficient to raise a question of fact:

Defendant’s experts established a prima facie case that the ultrasound studies were properly interpreted and that none of defendant’s acts or omissions caused the infant plaintiff’s alleged injuries. In light of plaintiffs’ expert opinions to the contrary, however, we cannot hold on the record presented to us that the opinions of plaintiffs’ experts are not generally accepted within the medical and scientific communities. Accordingly, the motion court properly set the matter down for a Frye hearing … to determine (1) whether it is generally accepted in the medical and scientific communities that a physician may offer an opinion to a reasonable degree of medical certainty as to when a tumor such as the infant plaintiff’s tumor would have been detectable by ultrasound examination; and (2) whether it was possible to use any formula, including a doubling formula, to assess whether a neuroblastoma would have been detectable at the ultrasound of the infant plaintiff performed at 30.9 weeks … .

The dissent’s assertion that the opinions of plaintiffs’ experts were “speculative” and “unsupported by the record” puts the cart before the horse. As noted above, plaintiffs’ experts based their opinions partially on peer-reviewed, published articles stating that routine prenatal sonography had detected fetal neuroblastomas. Whether the information conveyed in these articles has gained general acceptance in the medical community, and thus provides support for the opinions of plaintiffs’ experts, is precisely the topic of a Frye hearing. Sepulveda v Dayal, 2016 NY Slip Op 06949, 1st Dept 10-25-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH)

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