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Admissibility of Medical Records as Business Records Does Not Preclude Evidentiary Objections to Admission

In the context of a personal injury case, the Fourth Department noted that the failure to object to the admissibility of medical records within 10 days (CPLR 3122-a [c]) did not render the documents automatically admissible:

Defendants contend that the court erred in denying their request at the commencement of trial to admit all of plaintiff’s medical records in evidence pursuant to CPLR 3122-a (c).  According to defendants, the records were automatically admissible because plaintiff raised no objection within 10 days of trial (see id.).  We reject that contention.  Plaintiff’s failure to object within 10 days before the trial waived any objection plaintiff had to the admissibility of the records as business records (see CPLR 3122-a [c]; 4518 [a]), but he did not waive any objection to their admissibility based on other rules of evidence … .  Indeed, plaintiff properly objected at trial on relevancy grounds with respect to the admissibility of some of the records… . Siemucha v Garrison…, 1145, 4th Dept 11-15-13

 

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“Depraved Indifference” Standard Not Met/HIV Positive Defendant Did Not Disclose Status to Victim

The Fourth Department determined the evidence before the grand jury did not demonstrate defendant had acted with “depraved indifference to human life” (Reckless Endangerment, First Degree). The defendant, who was HIV positive, had unprotected sex with the victim without disclosing his HIV status:

…[W]e conclude that the evidence before the grand jury, viewed in the light most favorable to the People …, was legally insufficient to support a finding that defendant acted with depraved indifference to human life (see Penal Law § 120.25…).  Specifically, the evidence established that defendant engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV positive status.

Shortly after their sexual relationship ended, defendant told the victim that a former sexual partner had tested positive for HIV and urged the victim to be tested.  The victim was diagnosed as HIV positive several months later.  We conclude that, although defendant may have acted with indifference to the victim’s health, his conduct lacked the “ ‘wanton cruelty, brutality, or callousness’ ” required for a finding of depraved indifference toward a single victim … .  Defendant told the police that he did not disclose his HIV positive status to the victim because he was “afraid [the victim] would not want to be with” him, and that he “loved [the victim] so very much.”  Defendant wrote a letter apologizing to the victim because he was “so upset” and “felt terrible.”  The fact that defendant encouraged the victim to be tested for HIV indicates that defendant “was trying, however weakly and ineffectively,” to prevent any grave risk that might result from his conduct … .  We thus conclude that, “while the evidence certainly shows that defendant cared much too little about [the victim]’s safety, it cannot support a finding that [he] did not care at all” … .

We further conclude that the grand jury evidence, viewed in the light most favorable to the People …., also did not establish that defendant’s conduct presented a grave risk of death to the victim (see Penal Law § 120.25…).  The victim’s physician, an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different antiviral medications available for treatment.  The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is “outstanding,” particularly when a patient promptly learns that he or she is infected and seeks treatment.  Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a “very healthy, normal lifestyle,” and he expected a similar prognosis for the victim.  We thus conclude that, under the circumstances of this case, the People failed to establish that defendant’s reckless conduct posed a grave or “very substantial” risk of death to the victim… .  People v Williams, 1196, 4th Dept 11-15-13

 

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Failure to Disclose Witness Was a Paid Informant Required Vacation of Conviction

The Fourth Department reversed County Court, finding that defendant’s CPL 440 motion seeking vacation of the conviction should have been granted.  The People failed to disclose that a prosecution witness was a paid informant:

We note at the outset that the following quote from People v Fuentes (12 NY3d 259, 263, rearg denied 13 NY3d 766) is instructive: “[t]he Due Process Clauses of the Federal and State Constitutions both guarantee a criminal defendant the right to discover favorable evidence in the People’s possession material to guilt or punishment .. . [, and i]mpeachment evidence falls within the ambit of a prosecutor’s Brady obligation . . . To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material . . . In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … .

Here, there is no dispute that defendant satisfied the first element of the Fuentes test inasmuch as the People do not dispute that the prosecution witness at issue was a paid informant and do not contend that evidence of the status of that witness is not favorable to defendant.  … “[T]he mandate of Brady extends beyond any particular prosecutor’s actual knowledge” …, and “ ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police’ ” … .

We further conclude that the court should have granted defendant’s CPL 440.10 motion insofar as it sought vacatur of the judgment of conviction on the basis of the Brady issue.  Here, defendant made a specific request for Brady material including agreements between the People and their witnesses, disclosure of whether any information was provided by an informant, and the substance of that informant’s information.  We conclude that “there exists a ‘reasonable possibility’ that [such material] would have changed the result of the proceedings”… .  People v Gayden…, 1095, 4th Dept 11-15-13

 

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Youthful-Offender Sentence In Excess of Four Years (After Probation Violation) Illegal

The Fourth Department wrote:

Defendant … appeals from an adjudication that revoked his probation and sentenced him to three terms of incarceration of 1… to 4 years, two of which were ordered to run consecutively to each other.  Defendant’s sentence thus aggregates to a term of incarceration of 2… to 8 years, and we agree with defendant that the sentence is illegal.  “[H]aving adjudicated defendant a youthful offender, [Supreme C]ourt was without authority to impose consecutive sentences in excess of four years.” We therefore modify the adjudication by directing that all of the sentences shall run concurrently with respect to each other… . People v Tajenee J, 1175, 4th Dept 11-15-13

 

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County Properly Passed Legislation Phasing Out Tax Exemption

The Fourth Department determined the county, by passing legislation, could remove a tax exemption for a municipal water and sewage treatment facility:

…[W]e agree with the court that the County Board’s adoption of the 2011 resolution phasing out all tax exemptions for municipal water and sewage treatment facilities constituted a “legislative change” within the meaning of the Exemption Agreement.  The County Board is a legislative body that exercises defendant’s power “through a local law or resolution duly adopted by the board” (County Law § 153 [1]; see § 150-a [1]), and the Exemption Agreement specifically provides that a legislative change shall modify the obligations of the parties to comply with such legislative change.  Village of Lowville v County of Lewis, 906, 4th Dept 11-15-13

 

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Plaintiff Entitled to Summary Judgment Against Third-Party Defendant Under Doctrine of Collateral Estoppel

The Fourth Department determined plaintiff was entitled to summary judgment against a third-party defendant under the doctrine of collateral estoppel.  Plaintiff was injured in a snowmobile collision.  Plaintiff sued one snowmobile driver and the other snowmobile driver was brought into the case as a third-party defendant. The jury found each driver 50% liable:

…[W]e agree that plaintiff is entitled to summary judgment in the amount sought in the complaint based on the doctrine of collateral estoppel.  We therefore modify the order accordingly.  “The doctrine of collateral estoppel precludes a party from relitigating ‘an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point’ ” … .  “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” … .  Here, the issues are identical because in the prior action defendant was required to defend against the claim that he was negligent in the operation of his snowmobile and that his negligence was a proximate cause of this accident.  Moreover, he had a full and fair opportunity to litigate those issues in the prior action and was in no way limited by virtue of the fact that he was a third-party defendant as opposed to a direct defendant.  Specifically, CPLR 1008 grants to a third-party defendant all of the rights a direct defendant has to defend against a plaintiff’s claims, including the full rights of discovery afforded by CPLR article 31… .  Given that defendant had a full and fair opportunity to litigate the negligence claim against him in the prior action as well as to contest the value of plaintiff’s injuries, plaintiff is entitled to summary judgment… . Ackman v Haberer, 1059, 4th Dept 11-15-13

 

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Relation-Back Doctrine Allowed Amendment of Complaint After S/L Had Run

The Fourth Department determined the relation-back doctrine allowed plaintiff to amend the complaint.  The court noted that the addition of “piercing the corporate veil” allegations in the amended complaint was “of no moment” because no new cause of action was stated thereby:

In order for the relation back doctrine to apply, a plaintiff must establish that “(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits, and (3) the additional party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well” … .

Here, we conclude that the first prong of the relation back doctrine test is satisfied because the claims against DelMonte P.C. arise out of the same occurrence as that alleged against DelMonte, doing business as Niagara Chiropractic Office, i.e., Venne’s treatment of plaintiff … .  We further conclude that plaintiffs satisfied the second prong of that test inasmuch as DelMonte P.C. employed Venne and therefore may be held vicariously liable for his conduct … .  We conclude that plaintiffs also satisfied the third prong of that test inasmuch as they established that their failure to include DelMonte P.C. as a defendant in the original or first amended complaint “ ‘was a mistake and not . . . the result of a strategy to obtain a tactical advantage’ ” … .  Nasca… v Delmonte…, 1191, 4th Dept 11-15-13

 

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Criteria Not Met for “Special Facts” Exception to Rule that the Zoning Law in Effect at the Time a Site Plan Application is Decided Is Controlling

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined that the zoning law in effect at the time the applicant’s (Rocky Point’s) site plan application was decided, as opposed to the zoning law in effect when the application was first submitted, controlled. The criteria for the “special facts” exception to the general rule (general rule = applying the law at the time the application was decided) was not met. The court explained:

In land use cases, the law in effect when the application is decided applies, regardless of any intervening amendments to the zoning law … . Rocky Point seeks to avoid this rule and have the zoning law in effect at the time it submitted its application apply to its request, arguing it falls within the “special facts” exception to the general time of decision rule.Under the special facts exception, where the land owner establishes that they are entitled as a matter of right to the underlying land use application—here, a “site plan”–the application is determined under the zoning law in effect at the time the application is submitted …. In order for a land owner to establish entitlement to the request as a matter of right, the land owner must be in “full compliance with the requirements at the time of the application,” such that “proper action upon the permit would have given [the land owner] time to acquire a vested right” … . In addition to showing entitlement to the request as a matter of right, the land owner must also show “extensive delay indicative of bad faith,” …, “unjustifiable actions” by the municipal officials, …, or “abuse of administrative procedures” ….As the record establishes, Rocky Point fails to meet the threshold requirement that it was entitled to the requested land use permit under the law as it existed when it filed its application. Rocky Point Drive-In LP v Town of Brookhaven, 197, CtApp 11-14-13

 

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Stroke Not Work-Related

The Third Department affirmed the determination that claimant’s stroke was not work-related:

Inasmuch as it is undisputed that claimant’s stroke occurred while he was at work, he was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see Workers’ Compensation Law § 21… ). The employer, however, may rebut that presumption with substantial evidence to the contrary … . Here, the employer’s medical expert opined that claimant’s stroke was not related to his employment, but was directly related to certain preexisting conditions, including cerebral vascular disease, hypertension, diabetes, hypercholesterolemia and a prior transient ischemic attack, which combined to put claimant “at extreme risk for a stroke.”Claimant’s medical expert, although unaware of certain of claimant’s preexisting conditions that he testified may be predisposing factors for a stroke, concluded that claimant’s stroke was caused by job related exertion and fatigue. * * *Inasmuch as the Board is vested with the authority to credit the opinion of one medical expert over another …, its determination that there was no causal relationship between claimant’s stroke and his employment is supported by substantial evidence and will not be disturbed. Matter of Pengal v Chloe Foods Corporation…, 513003, 3rd Dept 11-14-13

 

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Contractor May Be Liable to Noncontracting Third Party If Area Made Less Safe by Contractor’s Work

The Fourth Department reinstated a claim for contribution by the owner of a parking lot (Piedmont) against the contractor (Bach) hired to raze structures and fill in all holes.  Plaintiff was injured when his foot fell through a hole into a hidden vault below:

We conclude that Bach met its initial burden on its motion with respect to the claim for contribution by establishing its entitlement to judgment as a matter of law dismissing that claim … .  Specifically, Bach established as a matter of law “that the injured plaintiff was not a party to [the] contract . . . and that it thus owed no duty of care to the injured plaintiff” … .  In opposition, however, Piedmont raised triable issues of fact to defeat that part of the motion.  Although plaintiff was a noncontracting third party with respect to the construction contract between Bach and Piedmont, Bach may still be liable if, “in failing to exercise reasonable care in the performance of its duties, [it] ‘launche[d] a force or instrument of harm’ ” … , or otherwise made the area “less safe than before the construction project began” … .  Here, there are issues of fact whether Bach negligently filled in the vault only partially, and concealed its existence, thereby creating a force or instrument of harm or otherwise making the area less safe than before the demolition project began … . Paro v Piedmont Land and Cattle, LLC…, 1189, 4th Dept 11-15-13

 

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