You are here: / Admissions In Hospital Records Which Contradicted Plaintiff’s Trial...

Search Results

/ , , ,

Admissions In Hospital Records Which Contradicted Plaintiff’s Trial Testimony Properly Admitted/Seat Belt Defense Should Not Have Been Submitted to the Jury—Insufficient Foundation/”Missing Witness” Jury-Instruction Request Not Supported by a Showing the Testimony Would Be “Material” and “Noncumulative”

The Second Department determined the plaintiff’s admission, contained in the hospital records, that he was not wearing a seat belt at the time of the collision was properly admitted at trial.  Although the statement was not relevant to diagnosis or treatment, it was admissible because it contradicted plaintiff’s trial testimony (plaintiff testified he was wearing a seat belt at the time of the accident). However, Supreme Court should not have submitted the seat belt defense to the jury because there was no foundational testimony explaining precisely how wearing a seat belt would have minimized plaintiff’s injuries.  The Second Department also noted plaintiff’s request for a missing witness jury instruction was properly denied because there was no showing the witness would have provided material, noncumulative testimony:

A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule only if the entry is germane to the diagnosis or treatment of the patient … . However, if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is “evidence connecting the party to the entry” … . At trial, the plaintiff testified that he was using a seat belt at the time of the accident. The hospital records containing the challenged entries clearly indicated that the plaintiff was the source of the information contained therein … . Accordingly, the challenged entries were properly admitted into evidence.

Although the Supreme Court properly declined to redact the hospital record as requested by the plaintiff, the court nonetheless erred in submitting the seat belt defense to the jury, since the defendants failed to demonstrate, by competent evidence, that the plaintiff’s injuries would have been minimized had he been wearing a seat belt at the time of the accident … . At trial, both of the plaintiff’s treating physicians testified in general terms that use of a seat belt can reduce the risk of injury. This evidence was insufficient to satisfy the defendants’ burden of proof … . Robles v Polytemp, Inc., 2015 NY Slip Op 03341, 2nd Dept 4-22-15

 

 

/ ,

Landlord Failed to Demonstrate Assault on Tenant Was Not Foreseeable—Landlord’s Summary Judgment Motion Properly Denied

The Second Department determined Supreme Court properly denied landlord’s motion for summary judgment in an action stemming from an assault on a tenant at the landlord’s premises.  The assault took place when the lone security guard took his regular lunch break, leaving the premises unguarded. The defendant did not demonstrate a lack of notice of the same or similar criminal conduct and therefore failed to demonstrate the assault was not foreseeable:

A landlord is not the insurer of the safety of its tenants … . Nevertheless, landlords have a duty to take reasonable precautions to protect tenants and visitors from foreseeable harm, including foreseeable criminal conduct by third parties … . To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location … .

Here, on its motion for summary judgment, [the landlord] failed to establish, prima facie, that it lacked notice of the same or similar criminal activity occurring on the premises. Karim v 89th Jamaica Realty Co., L.P., 2015 NY Slip Op 03329, 2nd Dept 4-22-15

 

/ ,

Declaratory Judgment Action Is the Appropriate Vehicle for Challenging a County Law—The Legislative Body Which Enacted the Law Is a Necessary Party

In the course of determining an Article 78 petition which, in part, alleged that the Westchester County Human Rights Law violated state law, the Second Department noted that the challenge must be made in a declaratory judgment proceeding.  The court could not convert the proceeding to one for a declaratory judgment because it did not have jurisdiction over all of the necessary parties—specifically the legislative body which enacted the challenged law:

…[T]he petitioners are, in effect, seeking a declaration that certain sections of the Westchester County Human Rights Law violate State law. However, the petitioners are not entitled to such relief. “A declaratory judgment action is the proper vehicle for challenging the validity of a legislative enactment” … . Pursuant to CPLR 103(c), this Court has the power to convert a proceeding into an action. However, that power is conditioned upon this Court having jurisdiction over all of the necessary parties … . “In a declaratory judgment action challenging a local law or ordinance, the legislative body that enacted the challenged local law or ordinance is a necessary party” … . Since the Westchester County Board of Legislators was not named as a party or joined in this proceeding, this Court cannot exercise its authority pursuant to CPLR 103(c) … . Matter of Hoffmann Invs. Corp. v Ruderman, 2015 NY Slip Op 03361, 2nd Dept 4-22-15

 

/ ,

Hospital Employees, Working With a Non-Employee Attending Physician, Were Not Independently Negligent and Were Not Asked to Follow Orders Which Were Contrary to Normal Practice—Summary Judgment Dismissing Complaint Against Hospital Should Have Been Granted

The Second Department determined defendant hospital (Good Samaritan) was entitled to summary judgment dismissing the complaint. The hospital was not concurrently liable re: conduct of a non-employee attending physician (Schneider) because there was no showing hospital employees acted negligently independently or followed orders made by the attending physician which were contrary to normal practice:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence” … . “However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” … . Here, the evidence submitted by Good Samaritan established, prima facie, that there were no independent acts of medical judgment on the part of Good Samaritan or its employees apart from following the orders of Schneider, who was the plaintiff’s private attending physician. Nor were Schneider’s orders contraindicated by normal practice, such that ordinary prudence required inquiry into the correctness of those orders. Tomeo v Beccia, 2015 NY Slip Op 03350, 2nd Dept 4-22-15

 

/

Providing 9000 Documents Without Indicating the Specific Discovery Demands to Which the Documents Related Was Improper

The Second Department determined Supreme Court upheld the Court Referee’s determination that the plaintiff’s response to discovery demands were not adequate.  Plaintiffs had provided a flash drive with 9000 documents and without any indication which of the documents related to the various demands.  The Court Referee ordered the plaintiffs to “provide their discovery responses in a manner that allows the defendants ‘to know and understand’ which documents apply to their separate discovery demands.” H.P.S. Mgt. Co., Inc. v St. Paul Surplus Lines Ins. Co., 2015 NY Slip Op 03320, 2nd Dept 4-22-15

 

/

Statutory Three-Year Moratorium on Seeking a Lower Tax Assessment Applies to New Owner of the Property

The Second Department, in a full-fledged opinion by Justice Dillon, determined that the three-year moratorium on tax certiorari proceedings following a reduced assessment applied to a subsequent purchaser of the land. The seller of the land successfully won a reduced assessment of the land due to chemical contamination.  The purchaser of the land then sought a further reduction, based upon a much lower appraisal of the value of the land, within the three-year statutory moratorium period:

Central to this appeal is the language, purpose, and legislative intent of RPTL 727(1), which states, in relevant part, that

“where an assessment being reviewed pursuant to this article is found to be unlawful, unequal, excessive or misclassified by final court order or judgment, the assessed valuation so determined shall not be changed for such property for the next three succeeding assessment rolls prepared on the basis of the three taxable status dates next occurring on or after the taxable status date of the most recent assessment under review in the proceeding subject to such final order or judgment” (RPTL 727[1]). * * *

What distinguishes these matters from many tax certiorari proceedings is the change in the property’s ownership … . RPTL 727(2) sets forth certain circumstances under which property assessments may be challenged despite the three-year moratorium, mainly involving revaluations of all properties on a municipal entity’s assessment rolls, physical changes to the property, zoning changes, and other recognized exceptions not relevant here (see RPTL 727[2][a-I]…). These recognized exceptions address situations where changes in circumstances defeat the statute’s purpose of locking in judicially settled assessments to maintain the status quo, because the changed circumstances themselves upset the status quo … .

A change in a property’s ownership is not listed in the statute as an exception to the three-year moratorium of RPTL 727(1). Under the doctrine of expressio unius est exclusio alterius, the presence of exceptions in RPTL 727(2), without inclusion of a property sale exception among them, must be inferentially construed as the Legislature’s intent not to except from the three-year moratorium circumstances where property is sold to a new owner… . Matter of ELT Harriman, LLC v Assessor of Town of Woodbury, 2015 NY Slip Op 03356, 2nd Dept 4-22-15

 

/ , ,

Defendant’s Hospital Records Properly Admitted—Physician-Patient Privilege Waived by Defense Counsel’s Attempt to Show (During Cross-Examination of Police Officers) that Defendant’s Conduct Was Related to a Medical Condition, Not Intoxication

The Second Department determined defendant’s hospital records were properly admitted into evidence because the defendant waived the physician-patient privilege by placing his medical condition in issue.  During cross-examination of the police officers, defense counsel attempted to show defendant’s conduct was the result of a medical condition, not intoxication. People v Williams, 2015 NY Slip Op 03391, 2nd Dept 4-22-15

 

/

A Party Which Is Merely a Possible Beneficiary of a Charitable Trust Does Not Have Standing to Bring an Action to Enforce the Trust

The Second Department reversed Supreme Court finding that the plaintiff Historical Society did not have standing to bring an action seeking a declaratory judgment re: the intent of the grantor of a charitable trust.  At stake are trust assets of $81 million distributed to a charitable foundation (Foundation) set up by the grantor.  The Foundation was set up to sponsor and encourage historical societies. Plaintiff Historical Society sought a declaratory judgment that it was a beneficiary of the trust. The Second Department held that Supreme Court should have dismissed the complaint, explaining that the attorney general is responsible for representing charitable trust beneficiaries and there was no indication the plaintiff Historical Society was a party with a “special interest” entitling it to sue for enforcement on its own behalf:

In an action for the enforcement of a charitable trust, EPTL 8-1.1(f) provides that “[t]he attorney general shall represent the beneficiaries of such dispositions for religious, charitable, educational or benevolent purposes and it shall be his [or her] duty to enforce the rights of such beneficiaries by appropriate proceedings in the courts.” A party with a special interest in the enforcement of the trust may have standing to commence such an action; however, “one who is merely a possible beneficiary of a charitable trust, or a member of a class of possible beneficiaries, is not entitled to sue for enforcement of the trust” … . This “special interest” is found by looking to the trust’s chartering documents to discern the purpose of the trust, and whether there is a class of intended beneficiaries that is entitled to a preference and is sharply defined and limited in number … .

In support of their motion, the appellants submitted the Foundation’s certificate of incorporation … which states that the Foundation’s purpose includes educating the public about state and local history and encouraging and sponsoring existing and future historical societies. That document does not name the Historical Society as a beneficiary, nor does it name any beneficiary. [The grantor’s] will did not mention the Historical Society. Accordingly, the Historical Society was not part of a class of potential beneficiaries of the Foundation that is sharply defined and limited in number. Therefore, it lacked standing to commence this action … . Sagtikos Manor Historical Socy., Inc. v Robert David Lion Gardiner Found., Inc., 2015 NY Slip Op 03342, 2nd Dept 4-22-15

 

/ ,

Decision Whether to Submit a Lesser Included Offense to the Jury Is for the Attorney, Not the Defendant, to Make—Failure to Grant the Attorney’s Request (Because the Defendant Objected) Reversible Error

The Second Department reversed defendant’s conviction because Supreme Court followed the defendant’s, rather than the defendant’s attorney’s, wishes re: the submission of a lesser included offense (here petit larceny) to the jury. The defendant did not want the lesser included offense submitted to the jury, but his attorney did. The Second Department explained that the decision whether to request a jury charge on a lesser included offense is a strategic one made by the attorney, not the defendant:

…[T]he decision whether to seek a jury charge on a lesser-included offense is a matter of strategy and tactics which is “for the attorney, not the accused to make” … .

Contrary to the People’s contention, the failure to submit the lesser-included offense to the jury constituted reversible error under the circumstances of this case. To be entitled to a charge on a lesser-included offense, a defendant must establish that (1) it was impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct, and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see CPL 300.50[1]…). The crime of petit larceny is a lesser-included offense of robbery in the first degree … . People v Lowery, 2015 NY Slip Op 03385, 2nd Dept 4-22-15

 

/ ,

Court’s Review Powers Re: a Zoning Board’s Interpretation of an Ordinance Explained—Reviewing Court Need Not Defer to the Board’s Ruling on a Purely Legal Issue/Here Zoning Board Properly Interpreted the Ordinance—Criteria Explained

Reversing Supreme Court, the Second Department determined the Zoning Board of Appeals (ZBA) had properly found that a “tire sales and automotive repair” business was a “conditional use,” not a “permitted use,” within the meaning of the Village Code. A “conditional use” requires a conditional use permit and site plan approval.  The court explained its review powers in this context and the statutory interpretation criteria it applied. The reviewing court need not defer to the agency’s ruling on a purely legal question (here the meaning of the applicable code provisions). The ordinance must be read as a whole and no language should be rendered superfluous:

” In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion'” … . “[Z]oning restrictions, being in derogation of common-law property rights, should be strictly construed, and any ambiguities are to be resolved in favor of the property owner” … .

A zoning board’s interpretation of its zoning ordinance is generally entitled to great deference … . However, where, as here, “the issue involves pure legal interpretation of statutory terms, deference is not required” … . Pursuant to our independent review of the law, we conclude that the ZBA’s determination complied with applicable legal principles … .

Under the Zoning Code, uses permitted as of right (hereinafter permitted uses) and conditional uses are set forth in accompanying zoning schedules. The uses listed in column A of the applicable schedules “are permitted by right,” while the uses listed in column C “are permitted only on approval of the Planning Board, and are conditioned to [sic] special requirements that may be imposed to ensure compatibility with neighboring uses” (Code of the Village of Monroe § 200-15[B]). Zoning Schedule I-F is applicable to the GB District. The permitted uses enumerated in column A of the Table of Use Requirements of Zoning Schedule I-F include, among others, “retail sales” (Item 17) and “repair service, including automotive” (Item 16). However, column C lists “tire sales and service” (Item 4) among the conditional uses. Section 200-3 of the Code of the Village of Monroe provides that “[i]n the event of conflict in the terminology of any section or part thereof of this chapter, the more restrictive provisions shall control” … .

“A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance” … . Matter of Robert E. Havell Revocable Trust v Zoning Bd. of Appeals of Vil. of Monroe, 2015 NY Slip Op 03369, 2nd Dept 4-22-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy