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THE DEFENSE EXPERT’S AFFIRMATION IN THIS MED MAL CASE DID NOT ADDRESS ALL THE MALPRACTICE ALLEGATIONS IN THE PLEADINGS; DEFENDANTS’ SUMMARY JUDGMENT MOTON SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendants’ medical expert in this medical malpractice case did not address all the malpractice allegations in the pleadings:

“Medical expert affirmations that fail to address the essential factual allegations in the plaintiff’s complaint or bill of particulars fail to establish prima facie entitlement to judgment as a matter of law” … . Bare conclusory assertions that a defendant did not deviate from good and accepted medical practice, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle a defendant to summary judgment … .

Here, the affirmation of the defendants’ fetal medicine expert was insufficient to establish the absence of any departure from good and accepted medical practice by [two defendants].. The affirmation failed to eliminate triable issues of fact as to whether the plaintiff was in preterm labor … , and whether the preterm delivery could have been prevented … . Neumann v Silverstein, 2024 NY Slip Op 02712, Second Dept 5-15-24

Practice Point: In a med mal case, if the defense expert does not address all the allegations of malpractice the defense motion for summary judgment should not be granted.

 

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THE CHILD’S FOSTER PARENTS WERE PERSONS LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND WERE ENTITLED TO A HEARING BEFORE THE CHILD WAS REMOVED FROM THEIR CARE (SECOND DEPT).

The Second Department, reversing Family Court, determined the foster parents, as persons legally responsible for the care of the child, were entitled to a hearing before the child was removed from their care:

Family Court Act § 1028(a) provides that “[u]pon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part . . . , the court shall hold a hearing to determine whether the child should be returned,” with two exceptions not relevant here … . Family Court Act § 1028(a) further provides that “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

The phrase “person legally responsible” “includes the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time” … . “The Court of Appeals, in interpreting Family Court Act § 1012(g), has held that ‘the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents'” … . Further, “a person may act as the functional equivalent of a parent even though that person assumes temporary care or custody of a child,” as long as “the care given the child [is] analogous to parenting and occur[s] in a household or ‘family’ setting” … . “Factors to be considered in determining whether an applicant is a person legally responsible for the care of a child include ‘(1) the frequency and nature of the contact, (2) the nature and extent of the control exercised by the [applicant] over the child’s environment, (3) the duration of the [applicant’s] contact with the child, and (4) the [applicant’s] relationship to the child’s parent(s)'” … .

Here, the evidence in the record was sufficient to support a determination that the foster parents were persons legally responsible for the care of the child. The evidence demonstrated that the child, eight years old at the time of the foster parents’ application, had been under the foster parents’ care for most of his life. . Matter of Samson R. (Christopher R.), 2024 NY Slip Op 02710, Second Dept 5-15-24

Practice Point: Here the foster parents had cared for the eight-year-old for most of his life. They were “persons legally responsible for the care of the child” and therefore were entitled to a hearing before removal of the child.

 

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RESIDENTS WHO DO NOT LIVE IN CLOSE PROXIMITY TO THE CHALLENGED FENCE DO NOT HAVE STANDING TO ASSERT A ZONING VIOLATION; BECAUSE THE NYS DEPARTMENT OF EDUCATION AND THE COMMISSIONER OF EDUCATION APPROVED CONSTRUCTION OF THE FENCE, THEY ARE NECESSARY PARTIES IN THIS ZONING-VIOLATION PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) plaintiff property owners who did not live in close proximity to the proposed fence around school property did not have standing to assert a zoning violation; and (2) the NYS Department of Education (SED) and the Commissioner of Education, which authorized construction of the fence, are necessary parties. The plaintiffs alleged the local school district violated local zoning laws by not seeking approval from the village before starting construction of the fence:

A party seeking standing to challenge an administrative action must establish that the injury it sustained was “different in kind and degree from the community generally” … . A party residing “in the immediate vicinity” of the subject property suffers harm greater than the community at large when the subject property violates a zoning law because “loss of value of individual property may be presumed from depreciation of the character of the immediate neighborhood” … . …

… “[N]ecessary parties are persons who might be inequitably affected by a judgment in the action and must be made plaintiffs or defendants” ( … CPLR 1001[a]). SED and the Commissioner are necessary parties because the Supreme Court’s determination would necessarily determine their rights to set school safety standards and approve plans for school construction … . Matter of Cuomo v East Williston Union Free Sch. Dist., 2024 NY Slip Op 02702, Second Dept 5-15-24

Practice Point: Only residents who live in close proximity to property alleged to violate zoning laws have standing to assert a zoning violation.

Practice Point: When necessary parties have not been included in a lawsuit, the court should try to make them parties.

 

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MOTHER’S INCONSISTENT STATEMENTS AND EVASIVE TESTIMONY DID NOT AMOUNT TO “FRIVOLOUS CONDUCT” WARRANTING THE AWARD OF ATTORNEY’S FEES AS A SANCTION (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have awarded petitioner attorney’s fees as a sanction against mother based on mother’s testimony in the proceedings: Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a):

Pursuant to 22 NYCRR 130-1.1(a), the court is authorized to award a party in a civil action “reasonable attorney’s fees . . . resulting from frivolous conduct.” Conduct is frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule” … .

Here, the petitioner failed to demonstrate that the mother engaged in frivolous conduct within the meaning of the rule. Contrary to the Family Court’s determination, the mother’s inconsistent statements and evasive testimony were not frivolous conduct within the meaning of 22 NYCRR 130-1.1 … . Matter of Edwin C. v Fenny C., 2024 NY Slip Op 02700,, Second Dept 5-15-24

Practice Point: Here in this Family Court proceeding petitioner was awarded attorney’s fees as a sanction pursuant to 22 NYCRR 131-1.1(a) based on mother’s “inconsistent statements” and “evasive testimony.” Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a). The petition should not have been granted.

 

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TENANT’S ATTACK ON PLAINTIFF WAS NOT FORESEEABLE; THEREFORE THE LANDLORD WAS NOT LIABLE IN NEGLIGENCE FOR FAILING TO EVICT THE TENANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined a tenant’s (Girard’s) attack on plaintiff was not foreseeable. Therefore the negligence action against the landlord for failing to evict Girard was dismissed:

Defendant demonstrated … that it was not liable for third-party defendant Girard’s attack on plaintiff because it was not reasonably foreseeable … . No evidence was presented that Girard had engaged in criminal conduct prior to the attack or that he was violent, had a propensity toward violence, or had threatened any tenants of the building. Inconsiderate behavior, such as playing loud music at all hours, engaging in loud arguments with his sister in the apartment, and banging on the apartment walls, is insufficient to have placed defendant on notice that Girard would stab plaintiff in response to plaintiff’s noise complaints … . While it was conceivable that the dispute might escalate into violence, “conceivability is not the equivalent of foreseeability” … . Plaintiff failed to present evidence sufficient to raise a triable issue of fact concerning whether defendant was negligent in not taking steps to evict Girard prior to the attack…. . Goris v New York City Hous. Auth., 2024 NY Slip Op 02661, First Dept 5-14-24

Practice Point: Here the tenant who attacked plaintiff, although loud and argumentative, had never been violent. Therefore the tenant’s attack was not foreseeable and the landlord could not be held liable in negligence for failing to evict the tenant.

 

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THE INSURER’S OBLIGATION TO INDEMNIFY SHOULD NOT HAVE BEEN DETERMINED BASED UPON THE ALLEGATIONS IN THE PLEADINGS (FIRST DEPT).

The First Department, reversing Supreme Court, determined that although the insurer (Everest) was required to defend the plaintiff (CCM) in the underlying action, the ruling that Everest must indemnify CCM was premature:

Supreme Court should not have found that Everest was required to indemnify CCM. Although Everest concedes that it must defend CCM, “the duty to defend is broader than the duty to indemnify,” because only the latter “is determined by the actual basis for the insured’s liability to a third person and is not measured by the allegations of the pleadings” … . In the underlying action, there has been no determination whether the plaintiff’s injury was “caused, in whole or in part, by” the acts or omissions of the named insured or of those acting on its behalf … . Therefore, any declaration of the duty to indemnify was premature ( … see … Axis Surplus Ins. Co. v GTJ Co., Inc., 139 AD3d 604, 605 [1st Dept 2016] [“It is after the resolution of that action where the extent of plaintiff’s indemnification obligations can be fully determined”]). Harleysville Ins. Co. v United Fire Protection, Inc., 2024 NY Slip Op 02663, First Dept 5-14-24

Practice Point: An insurer’s obligation to indemnify cannot be determined based on the allegations in the pleadings.

 

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ALTHOUGH THE PIPE WAS A DANGEROUS CONDITION INHERENT IN THE WORK, IT WAS AN AVOIDABLE DANGEROUS CONDITION AND THERE REMAIN QUESTIONS ABOUT MEASURES TAKEN TO MINIMIZE THE TRIPPING HAZARD (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact which rendered the summary judgment motion premature in this Labor Law 241(6) action. A pipe 5-12 inches above the floor, although a dangerous condition inherent in the work, was an “avoidable dangerous condition.”  There remain questions of fact about preventative measures taken to minimize the tripping hazard:

Plaintiff, a welder, tripped over electrical conduit piping that rose vertically 5-12 inches in height from the floor surface in the lobby of a new building under construction and was injured. While the presence of the electrical conduit piping was a “dangerous condition” “inherent to the task at hand,” the risk of tripping over the conduit was an “avoidable dangerous condition” for which defendants could have utilized preventative measures that would not have made it impossible to complete the work … . Indeed, it is undisputed that plywood boxes ordinarily were placed on the protruding conduit piping, which mitigated the risk of tripping without rendering the overall work impossible to complete. The plywood boxes, however, were removed at the time of plaintiff’s accident. Issues of fact remain regarding the preventative measures taken to mitigate the risks associated with the dangerous condition. Accordingly, summary judgment on the Labor Law § 241 (6) is premature and the claim is reinstated to resolve the issues of fact detailed above. Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC, 2024 NY Slip Op 02666, First Dept 5-14-24

Practice Point: In the context of a Labor Law 241(6) cause of action, even though a dangerous condition is inherent in the work, it may be an avoidable dangerous condition requiring measures to mitigate the risk.

 

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PLAINTIFF RAISED A QUESTION OF FACT RE: THE NEGLIGENT APPLICATION OF FLOOR WAX IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised a question of fact whether the area where she slipped and fell was excessively waxed:

… [P]laintiff raised an issue of fact as to “the negligent application of wax . . . by evidence that a dangerous residue of wax was present” … . Plaintiff testified that the waxy substance on the floor was on the side of her clothing and that where she fell there was an indentation into the substance. This testimony is sufficient to establish an issue of fact as to whether wax was negligently applied … . This evidence “conflicted with [defendants’] assertions that the area was never waxed, creating triable issues of fact precluding the grant of summary judgment” … . Scaccia v Brookfield Props. One WFC Co., LLC, 2024 NY Slip Op 02677, First Dept 5-14-23

Practice Point: The negligent application of floor wax can result in liability for a slip and fall.

 

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FORMER PRESIDENT TRUMP’S PETITION FOR A WRIT OF PROHIBITION CHALLENGING A RESTRAINING ORDER RESTRICTING HIS ABILITY TO MAKE STATEMENTS DIRECTED AT POTENTIAL WITNESSES IN A CRIMINAL TRIAL DENIED (FIRST DEPT). ​

The First Department determined the restraining order restricting former President Donald Trump’s speech during his criminal trial was valid. Trump’s petition for a writ of prohibition was denied:

The Federal Restraining Order is nearly identical to the Restraining Order issued against petitioner in the underlying criminal case … .

Petitioner brings this petition because he disagrees with where the circuit court drew the line in balancing the competing considerations of his First Amendment rights to free expression and the effective functioning of the judicial, prosecutorial and defense processes … . Weighing these concerns, the circuit court ultimately concluded that, given the record, the court had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process” … . This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.

The Federal Restraining Order Decision properly found that the order was necessary under the circumstances, holding that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process” … . First, the circuit court concluded that petitioner’s directed statements at potential witnesses concerning their participation in the criminal proceeding posed a significant and imminent threat to their willingness to participate fully and candidly, and that courts have a duty to shield witnesses from influences that could affect their testimony and undermine the integrity of the trial process … . Justice Merchan properly determined that petitioner’s public statements posed a significant threat to the integrity of the testimony of witnesses and potential witnesses in this case as well. Matter of Trump v Merchan, 2024 NY Slip Op 02680, First Dept 5-14-24

Practice Point: A court has the power to restrict speech by a defendant in a criminal trial which is directed at potential trial witnesses and which could threaten the witnesses’ willingness to testify.

 

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