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QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY.

The Second Department determined plaintiffs raised a question of fact in this medical malpractice action under the doctrine of res ipsa loquitur. Plaintiff contracted hepatitis C after a colonoscopy. There was evidence the patient defendant performed the procedure upon just before plaintiff’s procedure had hepatitis C, the disease is only transferred by contact with infected blood, and plaintiff was diagnosed after six weeks, the usual incubation period:

… [P]laintiffs relied on the doctrine of res ipsa loquitur, which is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Gonzalez v Arya, 2016 NY Slip Op 04693, 2nd Dept 6-15-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/MEDICAL MALPRACTICE (RES IPSA LOQUITUR, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)

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HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE.

The Second Department determined husband’s contribution to wife’s master’s degree was minimal. Therefore the award to the husband of 5% of the wife’s increased earning capacity was proper. The court explained the relevant law:

While the enhanced earnings of the defendant resulting from the Master’s degree and advanced certification she obtained during the marriage are marital property subject to equitable distribution … , ” it is . . . incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate that [he or she] made a substantial contribution to the titled party’s acquisition of that marital asset [and], [w]here only modest contributions are made by the nontitled spouse toward the other spouse’s attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse’s own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity'” … . Here, since the plaintiff’s contributions to the defendant’s acquisition of her degree and advanced certification were minimal, the Supreme Court providently exercised its discretion in awarding him only five percent of the value of the defendant’s enhanced earning capacity … . Taylor v Taylor, 2016 NY Slip Op 04705, 2nd Dept 6-15-16

 

FAMILY LAW (HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE)/EQUITABLE DISTRIBUTION (HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE)/ENHANCED EARNING CAPACITY (HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE)

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MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE.

The Second Department, exercising its interest of justice jurisdiction, determined a new custody hearing was necessary because Family Court instructed mother not to speak to her attorney during recesses:

… [T]he mother’s hearing testimony spanned several court dates and took place over a period of months. At the end of four hearing dates, while the mother’s testimony was continuing, the Family Court instructed the mother not to discuss her testimony with her attorney during the recess. One of these recesses was overnight, two recesses were for approximately one week, and one recess was, because of adjournments, for more than three months. …

The Family Court violated the mother’s fundamental due process rights when it instructed her not to consult with her attorney during recesses, which resulted in her being unable to speak to her attorney over extended periods of time … . Matter of Turner v Valdespino, 2016 NY Slip Op 04724, 2nd Dept 6-15-16

 

FAMILY LAW (MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE)/ATTORNEYS (MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED BY FAMILY COURT NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE)/DUE PROCESS  (MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED BY FAMILY COURT NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE)

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POLICY EXCLUSION WAS AMBIGUOUS, INSURER HAD A DUTY TO DEFEND.

The Second Department determined the “insured versus insured” policy exclusion was ambiguous and therefore could not be the basis for declaring the insurer, Princeton, did not have a duty to defend in this slip and fall case. Here an employee of one insured sued the company which owned the land, which was also insured by Princeton. The Second Department held it was not clear whether the plaintiff employee was an “insured” within the meaning of the exclusion:

“To be relieved of its duty to defend on the basis of a policy exclusion, the insurer bears the heavy burden of demonstrating that the allegations of the complaint [in the underlying action] cast the pleadings wholly within that exclusion, that the exclusion is subject to no other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer may eventually be held obligated to indemnify the insured under any policy provision” … . “[I]f the language is doubtful or uncertain in its meaning, any ambiguity will be construed in favor of the insured and against the insurer”… .

Here, Princeton disclaimed coverage based upon the “Insured Versus Insured” exclusion, which excluded “[a]ny claim’ made by or for the benefit of, or in the name or right of, one current or former insured against another current or former insured.” As it is not clear from the language of the exclusion at issue whether [plaintiff], as an employee, was an “insured” as that term was defined in the policy … , the provisions are ambiguous and subject to more than one interpretation … . Boro Park Land Co., LLC v Princeton Excess Surplus Lines Ins. Co., 2016 NY Slip Op 04684, 2nd Dept 6-15-16

 

INSURANCE LAW (POLICY EXCLUSION WAS AMBIGUOUS, INSURER HAD A DUTY TO DEFEND)/EXCLUSION, POLICY (INSURANCE LAW, POLICY EXCLUSION WAS AMBIGUOUS, INSURER HAD A DUTY TO DEFEND)/DUTY TO DEFEND (INSURANCE LAW, POLICY EXCLUSION WAS AMBIGUOUS, INSURER HAD A DUTY TO DEFEND)

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U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED.

The Second Department determined, in a vehicle-accident case, defendant U-Haul did not demonstrate it was free from negligence in maintaining its rental truck. Therefore U-Haul's motion to dismiss was properly denied. The court explained the criteria for liability on the part of companies in the business of renting vehicles:

49 USC § 30106(a), also known as the Graves Amendment, provides that “the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles, and (ii) engaged in no negligence or criminal wrongdoing” … . “The legislative history of the Graves Amendment indicates that it was intended to protect the vehicle rental and leasing industry against claims for vicarious liability where the leasing or rental company's only relation to the claim was that it was the technical owner of the [vehicle]'” … .

With respect to that branch of U-Haul's motion which was pursuant to CPLR 3211(a)(1), although U-Haul submitted documentary evidence establishing that it was engaged in the business of renting vehicles and that the subject vehicle had been rented … at the time of the accident, U-Haul failed to conclusively establish that it was not negligent in the maintenance of the vehicle, as alleged … . Anglero v Hanif, 2016 NY Slip Op 04682, 2nd Dept 6-15-16

NEGLIGENCE (U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED)/RENTAL VEHICLES (U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED)/GRAVES AMENDMENT (U-HAUL DID NOT DEMONSTRATE IT WAS FREE FROM NEGLIGENCE IN MAINTAINING ITS TRUCK IN THIS VEHICLE-ACCIDENT CASE, MOTION TO DISMISS PROPERLY DENIED)

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED.

The Second Department determined County Court should have honored defendant’s request to represent himself. Neither defendant’s mental health nor his responses to questions about legal terms was a valid reason for denying the request:

“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . * * *

To the extent that the County Court based its denial of the defendant’s application on the ground that he had a history of mental illness, this was error. “New York courts can, in appropriate circumstances, deny a self-representation request if a severely-mentally-ill defendant who is competent to stand trial otherwise lacks the mental capacity to waive counsel and proceed pro se” … . This is not such a case. While the defendant acknowledged prior hospitalizations for mental illness, there is no indication in the record that the defendant was severely mentally ill at the time he made his requests to proceed pro se, or that any mental condition at that time rendered him incapable of intelligently and voluntarily waiving his right to counsel and representing himself.

To the extent that the County Court based its denial of the defendant’s application on his failure to correctly answer the prior Judge’s questions about certain legal terms, the Court of Appeals has pointed out that “[t]o accept a defendant’s lack of knowledge of legal principles and rules of law or his unfamiliarity with courtroom procedures as the ground for concluding that he is not qualified to represent himself would in effect be to eviscerate the constitutional right of self-representation; such limitations could confidently be said to exist in nearly every criminal case in which the defendant had not received legal training”… . People v Paulin, 2016 NY Slip Op 04735, 2nd Dept 6-15-16

 

CRIMINAL LAW (DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED)/PRO SE (CRIMINAL LAW, DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED)

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DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT’S REQUEST TO WITHDRAW HIS PLEA.

The Second Department determined defendant's right to counsel was compromised when his attorney to a position adverse to defendant's request to withdraw his plea:

At sentencing, defense counsel informed the Supreme Court that the defendant wanted to withdraw his plea of guilty. Defense counsel stated, among other things, that he did not “believe there's a basis to withdraw the plea.” As the People correctly concede, the defendant's right to counsel was adversely affected when his attorney took a position adverse to his … . The Supreme Court should have assigned a different attorney to represent the defendant on the plea withdrawal motion … . People v Ferguson, 2016 NY Slip Op 04728, 2nd Dept 6-15-16

CRIMINAL LAW (DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA)/ATTORNEYS (DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA)/RIGHT TO COUNSEL (DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA)

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UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED.

The Second Department, over a dissent, determined an 8 to 16 year sentence for criminal sale of a controlled substance in the third degree was unduly harsh and reduced the sentence to 5 to 10 years. Defendant had absconded in 1992 and was sentenced in absentia:

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” … . Our sentencing review power “may be exercised, if the interest of justice warrants, without deference to the sentencing court” … . In considering whether a sentence is unduly harsh or severe under the circumstances, we exercise our discretion giving consideration to, “among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation, and deterrence” … .

Here, taking into account the circumstances of the defendant's nonviolent felony drug conviction, which involved the sale of a relatively small amount of cocaine for the sum of $60, the defendant's prior nonviolent felony drug offense, the probation department's finding that the then 22-year-old defendant had a $100 per day drug addiction at the time, and that the People recommended a lower sentence than what was imposed, we find that, even considering that the defendant absconded, the sentence of 8 to 16 years imprisonment was unduly harsh and severe. People v Kordish, 2016 NY Slip Op 04733, 2nd Dept 6-15-16

CRIMINAL LAW (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED)/SENTENCING (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED)/UNDULY HARSH AND SEVERE SENTENCE (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED)/CONTROLLED SUBSTANCE, SALE OF (UNDULY HARSH AND SEVERE SENTENCE FOR SALE OF A CONTROLLED SUBSTANCE REDUCED

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QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW.

The Second Department determined plaintiff special guardian had raised a question of fact about whether the fiduciary tolling rule applied to this breach of fiduciary duty action brought on behalf of her mentally ill brother, thereby rendering the action timely. The court explained the rule and why the issue can be raised for the first time on appeal:

… [T]he plaintiff raised a question of fact as to whether the statute of limitations was tolled pursuant to the fiduciary tolling rule or the “repudiation rule,” under which the “applicable statutory period . . . does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated” … . Although the plaintiff raises the issue for the first time on appeal, the issue of whether the fiduciary tolling rules applies to the facts as alleged may be reached, since it involves a question of law which appears on the face of the record and which could not have been avoided if raised at the proper juncture … . Franklin v Hafftka, 2016 NY Slip Op 04692, 2nd Dept 6-15-16

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)/STATUTE OF LIMITATIONS (QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)/FIDUCIARY TOLLING RULE (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)FIDUCIARY DUTY, BREACH OF (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)/APPEALS (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)

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ARBITRATION HEARING HELD ON A SUNDAY VIOLATED THE JUDICIARY LAW, AWARD VACATED.

The Second Department determined an arbitration award had to be vacated because the proceedings were held on a Sunday in violation of the Judiciary Law:

Since the arbitration hearing was conducted on a Sunday in violation of Judiciary Law § 5, which “expresses the public policy of the State, and cannot be waived,” the arbitration award is illegal and void … . Accordingly, the award is vacated and the proceeding is dismissed. Matter of Leifer v Gross, 2016 NY Slip Op 04715, 2nd Dept 6-15-16

ARBITRATION (ARBITRATION HEARING HELD ON A SUNDAY VIOLATED THE JUDICIARY LAW, AWARD VACATED)/JUDICIARY LAW (ARBITRATION HEARING HELD ON A SUNDAY VIOLATED THE JUDICIARY LAW, AWARD VACATED)/SUNDAYS (ARBITRATION HEARING HELD ON A SUNDAY VIOLATED THE JUDICIARY LAW, AWARD VACATED)

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