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PLAINTIFF STRUCK HIS HEAD AS HE FELL AND WAS INJURED BY THE ABRUPT STOP OF HIS FALL BY THE SAFETY HARNESS AND LANYARD; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff had a safety harness and a retractable lanyard which were tied off when he fell. Although the harness and lanyard prevented him from hitting the floor, he hit his head as he fell and was injured by the abrupt stop of his fall (by the harness and lanyard):

The record establishes that the safety devices “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity” … . The fact that plaintiff sustained injuries to his right shoulder and back when his body was caused to be pulled back up abruptly by his safety harness and lanyard demonstrates lack of adequate protection … . Arias v 139 E. 56th St. Landlord, LLC, 2023 NY Slip Op 00261, First Dept 1-24-23

Practice Point: Although plaintiff was provided with a safety harness and a lanyard which were tied off, he struck his head when fell and was injured by the abrupt stop of his fall by the harness and lanyard. Plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action.

 

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DEFENDANT SUPERMARKET DID NOT OFFER PROOF OF WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED OR CLEANED PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE GRAPES ON THE FLOOR (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant supermarket’s motion for summary judgment in this slip and fall case should not have been granted; Defendant did not demonstrate it lacked constructive notice of the grapes on the floor because it presented no specific evidence of when the area had last been inspected or cleaned prior to the fall:

While defendant showed that it did not create or have actual notice of loose grapes in the produce aisle at the time of plaintiff’s accident, defendant failed to submit sufficient evidence to show, as a matter of law, that it lacked constructive notice of the condition. Specifically, defendant failed to show that its cleaning routine was followed on the day of the accident … . Its store manager testified generally that an employee was assigned to inspect and clean the produce aisle throughout the day and that he personally walked the aisles during the day, but he did not testify regarding any specific cleaning or inspection of the area in question on the day of plaintiff’s fall. A vice president testified that the cleaning protocols were verbal and were based on “common sense,” but did not offer any information as to what steps were taken during the last cleaning cycle prior to plaintiff’s accident, which also was not sufficient to establish lack of constructive notice on behalf of defendant. Accordingly, the burden did not shift to plaintiff to raise an issue of fact in opposition. Polanco v 756 Jomo Food Corp., 2023 NY Slip Op 00284, First Dept 1-24-23

Practice Point: To prevail on a motion for summary judgment in a slip and fall case the defendant must demonstrate a lack of constructive notice by proof the area was inspected or cleaned close in time to the fall.

 

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ALTHOUGH THE LIMITED LIABILITY COMPANY (LLC) VOTING AGREEMENT CONCERNED THE SALE OF REAL PROPERTY, IT WAS NOT SUBJECT TO THE STATUTE-OF-FRAUDS PROHIBITION OF ORAL AGREEMENTS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the counterclaim adequately alleged breach of contract. The contract was an LLC voting agreement which was not subject to the statute of frauds even though the agreement authorized the sale of real property:

Supreme Court should not have dismissed defendants’ counterclaims for breach of contract and specific performance, which it properly construed as a single claim for breach of contract seeking specific performance and monetary relief. The alleged agreement at issue was not an unenforceable oral contract for the sale of real property, as it did not provide for the sale or transfer of real property or any party’s interest in real property (see General Obligations Law § 5-703[2]). Instead, giving defendants’ allegations every favorable inference, defendants sufficiently pled that the oral agreement was effectively an LLC voting agreement under which plaintiff agreed to vote her membership interest in favor of defendants’ sale of their membership interests or a sale of the property. Tsai v Lo, 2023 NY Slip Op 00291, First Dept 1-24-23

Practice Point: Although the voting agreement concerned the sale of real property by the limited liability company, it was not subject to the statute-of-frauds prohibition of oral agreements.

 

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ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE PROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). ​

The First Department set aside the verdict against the attending physician and found the $3 million damages award excessive in this medical malpractice action. The attending physician, Tigges, could not be held vicariously liable fir the negligence of the physician’s assistant, Caputo, based on Tigges being a shareholder in the professional service corporation which employed Caputo. The First Department held the plaintiff should stipulate to damages in the amount of $500,000:

Dr. Tigges was not involved in plaintiff’s treatment during her admission, notwithstanding that he was often listed as the attending physician on her chart … . He was also not liable for Caputo’s conduct pursuant to Department of Health Regulations (10 NYCRR) § 94.2 or Business Corporation Law § 1505 (a). There is no indication that Dr. Tigges, and not another of the doctors at [defendant] OADC, was the doctor supervising Caputo at the time in question … .

We find that the $3 million jury award deviates materially from what would be reasonable compensation and should be reduced as indicated (see generally CPLR 5501[c] … ). Although none of the cases relied on by the parties are squarely on point, the subject award is well outside the range of awards in all of these cases … . Appleyard v Tigges, 2023 NY Slip Op 00260, First Dept 1-24-23

Practice Point: The attending physician in this medical malpractice case could not be held vicariously liable for the negligence of the physician’s assistant on the ground that the attending physician was a shareholder in the professional service corporation which employed the physician’s assistant.

 

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DEFENDANT’S RAPE CONVICTION BASED SOLELY ON HIS UNCORROBORATED ADMISSION WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT). ​

he Third Department, reversing defendant’s conviction on one count of rape in the second degree, determined there was no corroboration of defendant’s admission to having sex with the victim. Therefore, the conviction was not supported by legally sufficient evidence:

After reviewing the record, we find no evidence corroborating defendant’s admission that he and the victim engaged in sexual intercourse “a few times” in August 2017. Due to the lack of corroboration, the evidence is legally insufficient to support that conviction, and the charge under count 1 must be dismissed … . People v Bateman, 2023 NY Slip Op 00249, Third Dept 1-19-23

Practice Point: A conviction which rests solely on an uncorroborated admission is not supported by legally sufficient evidence.

 

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CONFLICTING EVIDENCE OF DECEDENT’S TESTAMENTARY CAPACITY AND PETITIONER’S UNDUE INFLUENCE PRECLUDED SUMMARY DISMISSAL OF RESPONDENT’S OBJECTIONS TO THE WILL SUBMITTED FOR PROBATE BY PETITIONER (THIRD DEPT). ​

The Third Department, reversing Surrogate’s Court, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the respondent’s (decedent’s niece’s) objections to the probate of the will submitted by petitioner (decedent’s agent) should not have been dismissed. Decedent, in a 2011 will, made respondent the sole beneficiary of his estate. Subsequently decedent executed a 2015 will making petitioner the sole beneficiary of his estate. The Third Department found summary judgment dismissing respondent’s objections was inappropriate because there was conflicting evidence of decedent’s testamentary capacity and petitioner’s undue influence:

… [T]he witnesses affirmed that beginning in late 2014, decedent’s personal hygiene declined, he acted unusual, was confused and forgetful. The medical records, spanning from the fall of 2014, including a contemporaneous record four days subsequent to the execution of the 2015 will, are replete with observations that decedent refused to care for himself resulting in numerous hospitalizations for hyperglycemia, hypoglycemia and urinary tract infections. The records contain multiple entries that decedent suffered from an altered mental state, confusion and was incoherent. This evidence is sufficient to raise an issue of fact regarding decedent’s testamentary capacity … . * * *

Much of the evidence submitted by respondent on the issue of testamentary capacity is also relevant to the issue of undue influence … . Respondent’s witnesses all affirm that while residing at the assisted living facility, decedent was lethargic, frequently complained of being ill, slept a good deal, was unresponsive and was in a weakened state. Decedent’s closest friend described him as being easily manipulated, and stated that he was especially vulnerable to petitioner, with whom he was infatuated. In presenting evidence demonstrating decedent’s physical decline, coupled with his increasing confusion and personality changes, respondent has raised an issue as to whether decedent was unduly influenced by petitioner … . Matter of Linich, 2023 NY Slip Op 00250, Third Dept 1-19-23

Practice Point: Summary judgment is rarely appropriate in a contested probate proceeding. Here conflicting evidence of decedent’s testamentary capacity and petitioner’s undue influence precluded summary judgment dismissing respondent’s objections to probate.

 

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THE ABANDONMENT PETITION SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE RESPONDENT FATHER INTENDED TO FOREGO HIS PARENTAL RIGHTS AND, IN FACT, PETITIONER AFFIRMATIVELY INTERFERED WITH FATHER’S ATTEMPTS TO MAINTAIN CONTACT WITH THE CHILDREN (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the petitioner (Schenectady County Department of Social Services) did not demonstrate father (respondent) had abandoned the children and, in fact, had improperly prevented father from visiting the children. The abandonment petition should have been dismissed:

… [P]etitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights … . The record demonstrates that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children’s placement. During at least one appearance, respondent remarked that he would continue to “battle” for the return of his children, even prompting Family Court to candidly admit that respondent has been an active participant during the entire proceeding … . Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The record further reflects that respondent made several inquiries to the caseworker and the mother, including during the delay caused by the pandemic.

… There are several troubling instances in the record where the caseworker or the coordinator cancelled respondent’s scheduled visitation with [*3]the children due to his late confirmation of the scheduled visit or arrival — including one egregious incident where respondent was three minutes late to confirm an appointment for later that day. * * *

Notwithstanding the fact that respondent cancelled one visit due to illness, attended five visits and had seven visits cancelled on him in the foregoing manner, the caseworker then reported to Family Court that respondent had only attended 4 out of 20 scheduled visits. Based on the incorrect information presented by the caseworker — who relied on text messages from the coordinator, who did not testify at the hearing — petitioner was successful in obtaining an order suspending respondent’s visitation with the children in December 2019, thereby making it more difficult for respondent to visit and communicate with the children. Matter of Syri’annah PP. (Sayyid PP.), 2023 NY Slip Op 00252, Third Dept 1-19-23

Practice Point: Here the caseworkers took steps to affirmatively prevent father from seeing his children. The abandonment petition should have been dismissed for failure to demonstrate father’s intent to forego his parental rights.

 

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ALLEGATIONS FATHER DID NOT ABIDE BY THE VISITATION TERMS AND USED DRUGS DURING VISITATION SUPPORTED MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY BASED UPON CHANGED CIRCUMSTANCES (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s custody modification petition should not have been dismissed. Mother’s allegations that father had not abided by the visitation terms (visits must be in a public place) and father used drugs during visitation adequately alleged a change in circumstances:

To establish a change in circumstances, the party must demonstrate “new developments or changes that have occurred since the previous custody order was entered” … . Testimony at the fact-finding hearing established, by a preponderance of the evidence … that the father was not abiding by the visitation terms as set forth in the prior order…. . Specifically, although the prior order required that the father’s visitation occur in a public place, the preponderance of the proof demonstrated that much of it was occurring in private residences or hotels. Moreover, there was also testimony that the father was using drugs during the child’s visits. Given the circumstances of this case, the father’s failure to comply with the visitation terms as set forth in the prior order constitute a change in circumstances … . Matter of Harvey P. v Contrena Q., 2023 NY Slip Op 00257, Third Dept 1-19-23

Practice Point: Failure to abide by visitation terms can constitute a change in circumstances which will support a modification of custody.

 

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ALTHOUGH THE RECORD SUPPORTED FATHER’S PERMANENT NEGLECT AND THE TERMINATION OF FATHER’S PARENTAL RIGHTS, FAMILY COURT SHOULD NOT HAVE DISPENSED WITH THE DISPOSITIONAL HEARING ABSENT FATHER’S CONSENT; MATTER REMITTED (THIRD DEPT). ​

The Third Department determined that although the record supported terminating father’s parental rights based upon permanent neglect, Family Court should not have dispensed with the dispositional hearing absent the consent of the parties:

Both petitioner and the attorney for the child share the position that Family Court properly dispensed of the matter without a separate dispositional hearing and, alternatively, that there is sufficient evidence in the record for this Court to render a disposition. However, Family Ct Act § 625 (a) expressly provides that, “[u]pon completion of [a] fact-finding hearing, [a] dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing” … . Here, the court stated that there was “no need for a further or separate dispositional hearing” before rendering its determination that respondent had permanently neglected the child and terminating his parental rights. However, there is no indication that respondent affirmatively consented to dispense with the hearing and, “absent consent, the requirement of a dispositional hearing may not be circumvented” … . Matter of Harmony F. (William F.), 2023 NY Slip Op 00259, Third Dept 1-19-23

Practice Point: Here, even though the record supported Family Court’s termination of father’s parental rights, in the absence of father’s consent, Family Court should not have dispensed with the dispositional hearing.

 

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AFTER A JUROR CAME FORWARD DURING DELIBERATIONS TO SAY SHE THOUGHT THE DEFENDANT HAD FOLLOWED HER IN HIS CAR DURING THE TRIAL AND OTHER JURORS EXPRESSED SAFETY CONCERNS WITH RESPECT TO TRIAL SPECTATORS, THE JUDGE INTERVIEWED EACH JUROR AND PROPERLY DENIED DEFENDANT’S MOTION FOR A MISTRIAL BASED ON A GROSSLY-UNQUALIFIED-JUROR ARGUMENT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly denied defendant’s CPL 330.30 motion to set aside the verdict on the ground a juror was grossly unqualified. A juror (No. 6) had come forward during deliberations to say she thought the defendant had followed her in his car during the trial and had concerns for her safety. According to Juror No. 6, other jurors expressed safety concerns with respect to spectators at the trial. The judge interviewed each juror and concluded a mistrial should not be granted:

Upon review of the private colloquy between County Court and juror No. 6, we disagree with the dissent’s view that County Court failed to engage in a probing and tactful inquiry taking into due account the juror’s responses. “The [t]rial [j]udge generally is accorded latitude in making the findings necessary to determine whether a juror is grossly unqualified under CPL 270.35, because that [j]udge is in the best position to assess partiality in an allegedly biased juror”  … .The trial court is tasked with “evaluat[ing] the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case” … . County Court, “[i]n concluding that a juror is grossly unqualified, . . . may not speculate as to possible partiality of the juror based on [his or] her equivocal responses. Instead, it must be convinced that the juror’s knowledge will prevent [him or] her from rendering an impartial verdict” … . This Court likewise should not speculate. People v Fisher, 2023 NY Slip Op 00248, Third Dept 1-19-23

Practice Point: After a juror came forward during deliberations to say he had concerns for her safety because she thought defendant had followed her in his car during the trial, the trial judge interviewed her and the other jurors. The majority concluded defendant’s motion for a mistrial was properly denied. There was a two-justice dissent.

 

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