The Second Department determined that cleaning out gutters is not work covered under Labor Law 240(1):
Although Labor Law § 240(1) applies to commercial “cleaning” which is not part of construction, demolition, or repair …, such as commercial window washing and sandblasting …, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris … . Hull v Fieldpoint Community Assn Inc, 2013 NY Slip Op 06837, 2nd Dept 10-23-13
In a full-fledged opinion by Justice Roman, the Second Department determined that in order to qualify for the special immigrant juvenile provision of the Immigration and Nationality Act (8 USC 1101), which provides a gateway to permanent residency for undocumented children who have been abused, neglected or abandoned, the juvenile need only demonstrate that reunification with one (not both) of his or her parents “is not viable due to abuse, neglect, abandonment, or a similar basis found under State law…”:
…Susy established that reunification with her father was not viable due to abandonment (see 8 USC § 1101[a][27][J][i]…). The Family Court, as evidenced by its comments at the hearing, denied Susy’s application for a special findings order on the ground that the viability of reunification with Susy’s mother rendered Susy ineligible for SIJS. However, we disagree with the Family Court’s interpretation of the reunification component of the statute.
“To interpret a statute, we first look to its plain language, as that represents the most compelling evidence of the Legislature’s intent” … . Under the plain language of the statute, to be eligible for SIJS, a court must find that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law” (8 USC § 1101[a][27][J][i] [emphasis added]). We interpret the “1 or both” language to provide SIJS eligibility where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar State law basis… . Matter of Marcelina M-Gv Israel S, 2013 NY Slip Op 06868, 2nd Dept 10-23-13
The Second Department determined a cause of action for malpractice in treating plaintiff’s decedent for depression prior to her committing suicide should not have been dismissed:
Here, the complaint sought damages for conscious pain and suffering arising from Family Services’ alleged negligence in treating the decedent’s depression during the period between October 19, 2005, and the time of her death about 10 days later. That cause of action states a cognizable legal theory sounding in professional malpractice … .
Further, EPTL 11-3.2(b), referred to as the “survival statute” …, provides that “[n]o cause of action for injury to person . . . is lost because of the death of the person in whose favor the cause of action existed.” A cause of action based on personal injuries which survives the death of the decedent is distinct from a cause of action to recover damages for wrongful death … . Accordingly, the cause of action to recover damages for conscious pain and suffering predicated on alleged acts of professional malpractice committed between October 19, 2005, and October 28, 2005, survived the decedent’s death, and damages for such pain and suffering may be recoverable by her estate … . Stolarski v Family Servs of Westchester Inc, 2013 NY Slip Op 06850, 2nd Dept 10-23-13
In affirming the denial of the summary judgment motion brought by the defendant abutting landowner in a sidewalk slip and fall case, the Second Department noted that an abutting landowner is not responsible for defects in a tree well, and the allegation that a condition is open and obvious only raises a question of fact about plaintiff’s possible contributory negligence. Vigil v City of New York, 2013 NY Slip Op 06853, 2nd Dept 10-23-13
In a medical malpractice action, the Second Department determined there was a question of fact about whether an implied physician-patient relationship existed:
Liability for medical malpractice may not be imposed in the absence of a physician-patient relationship … . A physician-patient relationship is created when professional services are rendered and accepted for purposes of medical or surgical treatment … . An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional … . Whether a physician’s proffer of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship has arisen is ordinarily a question of fact for a jury … . Thomas v Hermoso, 2013 NY Slip Op 06852, 2nd Dept 10-23-13
n affirming the grant of summary judgment to the defendant, the Second Department explained the standard of care applicable to a train operator. Plaintiff’s decedent was struck by the train:
The complaint in this case alleged that the defendants acted negligently and thereby caused the death of the plaintiff’s decedent, who was struck by a train owned and operated by the defendants. “[A] train operator may be found negligent if he or she sees a person on the tracks from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person” … . In support of their motion for summary judgment dismissing the complaint, the defendants submitted evidence, including the deposition testimony of the operator of the train involved in the subject accident, that he was operating the train at a lawful speed and was approximately one car length away when he first observed the decedent, who was intoxicated, trespassing on the tracks. The train operator immediately applied the emergency brakes and sounded the horn, but at that point, it was impossible to avoid the collision. The evidence submitted by the defendants established, prima facie, that they were not negligent in the happening of the accident as a matter of law … . Neenan v Quinton, 2013 NY Slip Op 06843, 2nd Dept 10-23-13
In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”
In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying. Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.” This provision manifestly does not limit a respondent to expert witnesses. The pertinent question is whether a witness — expert or lay — has material and relevant evidence to offer on the issues to be resolved.
Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS — non-consent. The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct. With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior. Matter of State of New York v Enrique D, 168, CtApp 10-22-13
In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s convictions for reckless manslaughter and reckless assault after defendant’s car struck another car head on. There was evidence defendant was deliberately speeding (134 mph) in an area he knew to include a sharp turn. The court explained the difference between recklessness and criminal negligence in this context:
The mental states of recklessness and criminal negligence share many similarities. Both require that there be a “substantial and unjustifiable risk” that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a “gross deviation” from how a reasonable person would act (compare Penal Law § 15.05 [3] [Recklessly] with Penal Law § 15.05 [4] [Criminal Negligence]). The only distinction between the two mental states is that recklessness requires that the defendant be “aware of” and “consciously disregard” the risk while criminal negligence is met when the defendant negligently fails to perceive the risk … .
In the context of automobile accidents involving speeding, we have held that the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires “some additional affirmative act” aside from “driving faster than the posted speed limit” … . Here, there was ample proof that defendant did more than merely drive faster than the legal limit — indeed, there was eyewitness testimony that he was traveling at more than double the posted speed limit of 55 miles per hour. Moreover, before the collision, defendant stopped his vehicle in the middle of the unlit road and revved the engine. He then hit the gas pedal and accelerated to an extremely high rate of speed before crossing the double line into oncoming traffic. Viewed in the light most favorable to the People, the evidence showed that defendant used a public road as his personal drag strip to showcase the capabilities of his modified sports car. Although the jury acquitted defendant of driving while ability impaired (by alcohol), there was evidence that he had been drinking and smoking marijuana that evening … . The evidence therefore demonstrated that defendant engaged in conduct exhibiting “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” … .
Furthermore, the proof was sufficient to support the jury’s conclusion that defendant acted recklessly — by consciously disregarding the risk he created — as opposed to negligently failing to perceive that risk. Defendant was familiar with the curve in the road …, having driven by there on a number of prior occasions, and he had been warned twice about speeding into that very section of the road. People v Asaro, 158, CtApp 10-22-13
The Court of Appeals, over two dissenters, determined defendant had not been provided with effective assistance counsel with respect to the motion to suppress and suppression hearing. The court sent the matter back to properly consider the suppression issues, stating that if defendant prevailed on suppression the conviction should be vacated and the indictment dismissed:
In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police. At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument. This, coupled with his failure to make appropriate argument in his motion papers or to submit a posthearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant’s attorney made no motion to reargue or otherwise correct the court’s apparent factual error. Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer’s uncontradicted testimony.
And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant. Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects — both before, during and after the proceeding — that defendant was not afforded meaningful representation at a critical stage of this prosecution. People v Clermont, 166, CtApp 10-22-13
In a full-fledged opinion by Judge Read, with two concurring judges, the Court of Appeals determined that the Office of Medicaid Inspector General (OMIG) is authorized to remove a physician from New York’s Medicaid program based on a consent order between the physician and the Bureau of Professional Medical Conduct (BPMC) regardless of whether BPMC chooses to suspend the physician:
In this litigation, Supreme Court annulled OMIG’s determination to terminate petitioner-physician’s participation in the Medicaid program on the basis of a BPMC consent order, and directed his reinstatement. In the consent order, petitioner-physician pleaded no contest to charges of professional misconduct and agreed to 36 months’ probation. Upon OMIG’s appeal, the Appellate Division affirmed, holding that it was arbitrary and capricious for the agency to bar petitioner-physician from treating Medicaid patients when BPMC permitted him to continue to practice; and that OMIG was required to conduct an independent investigation before excluding a physician from Medicaid on the basis of a BPMC consent order … . We subsequently granted OMIG permission to appeal (19 NY3d 813 [2012]).
We disagree with the Appellate Division’s rationale, but affirm because OMIG’s determination was arbitrary and capricious for another reason. Specifically, OMIG did not explain why the BPMC consent order in this case caused it to exercise its discretion pursuant to 18 NYCRR 515.7 (e) to exclude petitioner-physician from the Medicaid program. * * *
When resolving charges of professional misconduct with BPMC, physicians and their attorneys should be mindful that a settlement with BPMC does not bind OMIG, as petitioner-physician discovered in this case. Matter of Koch, DO v Sheehan…, 153, CtApp 10-22-13
Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy