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PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE.

The Third Department determined defendant was not provided effective assistance of counsel. Defense counsel permitted lengthy, unresponsive answers from the People’s witnesses and failed to address in any way the People’s failure to present the confidential informant (CI) as a witness in this “buy and bust” case:

 

Although defense counsel lodged some successful objections at trial, he largely permitted the People’s police witnesses to provide lengthy, nonresponsive answers to questions asked on both direct and cross-examination, even after County Court commented on his failure to object or request that the nonresponsive testimony be stricken from the record. …

Even more perplexing, however, was defense counsel’s absolute failure to address the absence of the CI, a pivotal player in the “buy and bust” operation. Initially, the record is devoid of any indication that defense counsel recognized the possibility of requesting a missing witness charge … . It is difficult to imagine any legitimate trial tactic for not requesting such a charge under the particular circumstances of this case … . People v Smith, 2016 NY Slip Op 04745, 3rd Dept 6-16-16

 

CRIMINAL LAW (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE

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CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED.

The Third Department, reversing County Court, determined plaintiff was not required to file a notice of claim because the action against the city sounded in contract, not tort. Plaintiff alleged the city violated an easement when work was done on plaintiff’s property:

General Municipal Law § 50-e (1) (a) provides that a party seeking to bring a tort action against a municipality must file a notice of claim within 90 days of the date that the claim arises … . A similar provision is contained in Charter of the City of Glens Falls § 10.14.5. The notice of claim provisions of General Municipal Law § 50-e, however, apply only to actions sounding in tort, not to those premised upon breach of contract … . The same is true of City of Glens Falls City Charter § 10.14.5, as its terms make clear. Here, plaintiff’s small claims action is premised upon defendant’s alleged failure to comply with the provisions of the easement agreement resulting in damage to his property in the amount of $5,000. Inasmuch as plaintiff’s action sounds in breach of contract, not tort, the notice of claim provisions of General Municipal Law § 50-e and Charter of the City of Glens Falls § 10.14.5 are inapplicable. Strauss v City of Glens Falls, 2016 NY Slip Op 04750, 3rd Dept 6-16-16

 

MUNICPAL LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/REAL PROPERTY (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/CONTRACT LAW (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/EASEMENTS (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)/NOTICE OF CLAIM (CITY’S ALLEGED VIOLATION OF AN EASEMENT SOUNDS IN CONTRACT, NOT TORT, NOTICE OF CLAIM NOT REQUIRED)

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PHYSICIAN’S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM.

The Second Department determined the actions against two physicians tasked with reading plaintiff's spinal MRI should have been dismissed. There was unrefuted evidence the MRI's were read correctly and the doctors' duties did not extend beyond the interpretation of the MRI:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, both West and Davis established, prima facie, that they discharged their respective duties to the injured plaintiff in accordance with accepted practices. West's expert concluded that West's interpretation of the … MRI film was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, but instead opined that West should have ordered a diffusion MRI to look for evidence of the injured plaintiff's condition. However, as West correctly contends, he had no such duty to do so. West's role was to interpret the MRI film and document his findings. He did not assume a general duty of care to independently diagnose the injured plaintiff's medical condition … .

Similarly, the plaintiffs' argument that Davis had a duty to examine the injured plaintiff in person and to ensure that high-dose steroids were properly administered also is without merit. Davis's duty as a neurosurgical consultant was to determine whether neurosurgery was necessary. He determined that it was not. His expert stated that this conclusion was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, and did not argue that neurosurgery was necessary. Meade v Yland, 2016 NY Slip Op 04697, 2nd Dept 6-15-16

NEGLIGENCE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/MEDICAL MALPRACTICE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/DUTY OF CARE (PHYSICIANS, PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)

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COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY.

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for aiding and abetting the breach of a fiduciary duty. Plaintiff’s former partner left the partnership and joined defendant accounting firm, taking a client with him. Partners owe one another a fiduciary duty. The complaint alleged the defendant firm aided and abetted the former partner in breaching that duty. The court outlined the relevant law:

To recover damages for aiding and abetting a breach of fiduciary duty, a plaintiff must plead and prove that a fiduciary duty owed to the plaintiff was breached, that the defendant knowingly induced or participated in the breach, and that the plaintiff was damaged as a result of the breach … . Knowing participation in a breach of fiduciary duty occurs when the defendant provides substantial assistance to the primary violator … . ” Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur . . . . However, the mere inaction of an alleged aider or abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff'” … . Smallberg v Raich Ende Malter & Co., LLP, 2016 NY Slip Op 04704, 2nd Dept 6-15-16

 

PARTNERSHIP LAW (COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY)/FIDUCIARY DUTY (PARTNERSHIP LAW, COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY)

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PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT.

The Second Department determined plaintiff created an issue of fact in this rear-end collision case by submitting a police report indicating defendant driver slid on snow and ice. The court noted plaintiff waived any objection to the admissibility of the report by submitting it in support of plaintiff's motion for summary judgment:

In support of the motion, the plaintiff submitted, inter alia, a copy of the police accident report. The police accident report indicated that the defendant driver stated that snow and ice on the road caused him to hit the plaintiff's vehicle, which demonstrated the existence of a triable issue of fact as to whether the defendant driver had a nonnegligent explanation for his actions … . Since the plaintiff submitted the police report in support of his motion, he waived any objection to its admissibility … . Orcel v Haber, 2016 NY Slip Op 04700, 2nd Dept 6-15-16

NEGLIGENCE (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/EVIDENCE (POLICE REPORT, SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/SUMMARY JUDGMENT (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/CIVIL PROCEDURE (SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)

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OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant out-of-possession landlord did not demonstrate it did not cause the alleged radiator-defect which injured plaintiff. Therefore the landlord's motion for summary judgment was properly denied:

“[A]n out-of-possession landowner is generally not responsible for injuries that occur on its premises unless the landowner has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . However, ” liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect'” … .

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. Although the defendant demonstrated that it did not owe a duty to provide the plaintiff with a radiator cover …, the defendant failed to establish that it did not cause the radiator to become and remain in a defective, broken, and overheated condition. Gowen v Gabrielle Realty Holdings, LLC, 2016 NY Slip Op 04695, 2nd Dept 6-15-16

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)

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OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES.

The Second Department determined defendant out-of-possession landlord was entitled to summary judgment in this slip and fall case. Plaintiff, in a bar on leased premises, fell on a bathroom floor alleged to have been wet with cleaning solution and water:

“An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . Here, [the landlord] established, prima facie, that he was an out-of-possession landlord with no contractual obligation to maintain the premises, and that he neither endeavored to perform such maintenance nor owed any duty to the plaintiff by virtue of any statute upon which the plaintiff relies … . Mendoza v Manila Bar & Rest. Corp., 2016 NY Slip Op 04698, 2nd Dept 6-15-16

 

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES)

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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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