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SUPREME COURT ERRONEOUSLY PRECLUDED PLAINTIFF’S TREATING PHYSICIAN’S TESTIMONY AND THE ADMISSION OF MEDICAL RECORDS IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this traffic accident case should have been granted. The trial court had erroneously precluded some of the testimony of one of plaintiff’s treating physicians and the admission of another treating physician’s medical records. The defendant had waived any objection to the records by failing to object after service of plaintiff’s notice of intention to enter the documents:

At the trial on the issue of damages, the plaintiff called one of her treating physicians, Irving Friedman, as a witness. The Supreme Court erred in granting the defendant’s application to preclude Friedman’s testimony concerning the cervical and thoracic regions of the plaintiff’s spine based upon a conceded error Friedman made wherein he misidentified the MRI of the plaintiff’s spine … . Under the circumstances of this case, any defects in Friedman’s opinions or the foundations on which those opinions are based “should go to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance” … .

In addition, the Supreme Court erred in precluding Friedman’s testimony regarding future treatment and possible need for future surgery, as Friedman had addressed these issues in his medical reports … .

… [T]he Supreme Court erred in precluding the admission of the medical records of another of the plaintiff’s treating physicians, Rubin Ingber, under the business records exception to the hearsay rule. The defendant waived his right to any objection to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff’s notice of her intention to enter the documents into evidence pursuant to CPLR 3122- … . Benguigui v Racer, 2021 NY Slip Op 05318, Second Dept 10-6-21

 

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THE PURCHASERS BREACHED THE CONTRACT OF SALE BY INFORMING THE SELLER THEY WOULD NOT ATTEND THE “TIME OF THE ESSENCE” CLOSING; THEREFORE THE PURCHASERS ARE ENTITLED TO RETURN OF THEIR DEPOSIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the seller did not breach the contract for sale and the purchasers breached the contract by stating in a letter they would not attend the “time of the essence” closing. Therefore the purchasers were entitled to the return of their deposit:

The Supreme Court erred in determining that the purchasers were entitled to a return of their down payment because the seller breached the contract by failing to “close on the property free of violations.” Instead, the purchasers never placed the seller in default. * * *

… [A]s the purchasers advised by letter prior to the “time of the essence” closing that they would not appear at the closing, they breached the contract and forfeited their down payment, without the necessity of a tender on the part of the seller … . Xelo v Hamilton, 2021 NY Slip Op 05364, Second Dept 10-6-21

 

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THERE WAS A QUESTION OF FACT WHETHER THE PLAINTIFF’S FAILURE TO INCLUDE DEFENDANT IN THE ORIGINAL FORECLOSURE PROCEEDING WAS THE RESULT OF “WILFUL NEGLECT;” THEREFORE, PURSUANT TO RPAPL 1523, DEFENDANT’S “WILFUL-NEGLECT” AFFIRMATIVE DEFENSE IN THIS REFORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s affirmative defense to the reforeclosure should not have been dismissed. Plaintiff had not named defendant in its original foreclosure action, apparently because a quitclaim deed adding defendant to the title was not discovered in the title search. Defendant demonstrated there had been a prior foreclosure action in which defendant had been named as a party. Therefore, there was a question of fact whether the failure to name defendant in the original foreclosure action was the result of “wilful neglect:”

To prevail in a reforeclosure action, the plaintiff must demonstrate that the defect in the original foreclosure action “was not due to fraud or wilful neglect of the plaintiff and that the defendant or the person under whom he claims was not actually prejudiced thereby” (RPAPL 1523[2] [emphasis added]).

Pursuant to the language of RPAPL 1523 … the plaintiff had the burden of demonstrating … both that the defect in the underlying foreclosure action was not the result of fraud or the wilful neglect of the foreclosure plaintiff, and that the defect did not prejudice the defendant (see RPAPL 1523[1], [2]). * * *

Contrary to the plaintiff’s contention, the evidence of the prior foreclosure action in which the defendant was named as a party raised a triable issue of fact as to whether the plaintiff’s failure to name her as a defendant in the underlying foreclosure action was the result of “wilful neglect” (RPAPL 1523[2] …). U.S. Bank N.A. v Lomuto, 2021 NY Slip Op 05363, Second Dept 10-6-21

 

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ALTHOUGH THE DEFENDANTS MAY HAVE BEEN NEGLIGENT IN HIRING THE DEFENDANT WHO SEXUALLY ASSAULTED THE SEVEN-YEAR-OLD PLAINTIFF, THERE WAS NO CONNECTION BETWEEN DEFENDANT’S EMPLOYMENT AND THE PLAINTIFF OR THE OFFENSE, WHICH OCCURRED NEAR PLAINTIFF’S HOME; THEREFORE THE NEGLIGENT HIRING AND RETENTION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent hiring and retention cause of action against the church defendants should have been dismissed. The complaint alleged plaintiff, who was seven years old, was abducted near her home, taken to a secluded area, and sexually assaulted by the defendant. The court noted that the church defendants may have been negligent in hiring the defendant, but there was no connection between the offense committed by the defendant and his employment:

With respect to a cause of action alleging negligent hiring and retention, “[t]he employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of the employee” … . As such, a necessary element of a cause of action to recover damages for negligent hiring and retention is a nexus or connection between the defendant’s negligence in hiring and retaining the offending employee and the plaintiff’s injuries … . Here, the plaintiff failed to allege any such nexus, since the sexual assault occurred far from the Church’s premises, and there is no allegation in the complaint that the plaintiff had any prior contact with the alleged attacker, any prior relationship with any of the defendants, or even any knowledge, at the time of the sexual assault, that the alleged attacker was employed by the defendants. Roe v Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church, 2021 NY Slip Op 05360, Second Dept 10-6-21

 

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BY ARGUING HE DID NOT KNOW THE WEAPON AND AMMUNITION WERE IN THE TRUCK HE WAS DRIVING, DEFENDANT PUT HIS STATE OF MIND IN ISSUE; THEREFORE THE EVIDENCE HE HAD TWICE BEFORE BEEN IN THE POSSESSION OF FIREARMS, ONCE ON A PLANE AND ONCE IN A VEHICLE, WAS ADMISSIBLE UNDER MOLINEUX (SECOND DEPT).

The Second Department determined evidence of two prior incidents (more than a decade before defendant’s arrest) in which defendant had a firearm in his possession was admissible Molineux evidence in this prosecution for weapons and ammunition possession. Defendant argued at trial that he did not know the weapons and ammunition were in the truck he was driving. A strong dissent argued the Molineux evidence should not have been admitted because it was too remote, too prejudicial, and did not fit the state-of-mind exception to the Molineux rule:

“When [the] defendant’s criminal intent cannot be inferred from the commission of the act or when [the] defendant’s intent or mental state in doing the act is placed in issue, . . . proof of other crimes may be admissible under the intent exception to the Molineux rule” … .

Here, the Supreme Court providently exercised its discretion in admitting the proferred Molineux evidence. The evidence was directly relevant and probative of a material element of the crimes charged, namely, the defendant’s knowing possession of the guns … .

Our dissenting colleague’s assertion that the defendant’s criminal intent could be easily inferred from the circumstances of the incident, thus rendering the Molineux evidence unnecessary, ignores the fact that the defendant asserted a lack of criminal intent theory at trial. Contrary to our dissenting colleague’s assertion, the defendant placed his state of mind squarely in issue in his opening statement and throughout the trial, by pursuing the defense that “[h]e didn’t know” the guns were in the truck, and that the People would be unable to prove his intent to possess the guns beyond a reasonable doubt. People v Telfair, 2021 NY Slip Op 05355, Second Dept 10-6-21

 

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THE DNA TEST RESULT GENERATED USING THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE WITHOUT FIRST HOLDING A FRYE HEARING (SECOND DEPT).

The Second Department, reversing defendant conviction, determined the DNA test results using the Forensic Statistical Tool (FST) should not have been admitted without first holding a Frye hearing:

The defendant was convicted, after a jury trial, of murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. Prior to trial, the defendant moved, inter alia, to preclude the People from introducing at trial DNA testing results derived from the use of the Forensic Statistical Tool (hereinafter FST), or alternatively, to conduct a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) to determine the admissibility of the evidence generated by the FST. The Supreme Court denied that branch of the defendant’s motion, finding that FST was generally accepted in the scientific community. We reverse.

The Supreme Court improvidently exercised its discretion in admitting FST evidence without first holding a Frye hearing … . People v Adeyeye, 2021 NY Slip Op 05347, Second Dept 10-6-21

 

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THE EXECUTIVE ORDER TOLLING STATUTES OF LIMITATIONS BECAUSE OF THE COVID PANDEMIC DOES NOT APPLY TO THE TIME LIMITS FOR RESPONSES TO FOIL REQUESTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the district attorney could not use the statutes-of-limitations tolls imposed by executive order because of the COVID pandemic to delay responses to FOIL requests:

By its terms, EO [Executive Order] 202.8 tolls legal “process[es] or proceeding[s] as prescribed by the procedural laws of the state” … . The FOIL framework and deadlines for agency responses to requests are not “prescribed by the procedural laws,” such as the CPLR and CPL. In the context of FOIL requests, legal “proceedings” ensue only when parties are unable to agree on a response to a request, and resort to the courts via CPLR article 78 proceedings. The conduct of article 78 proceedings are “prescribed by the procedural laws” of the CPLR. FOIL requests and responses are not so prescribed … .

Hence, respondents’ position that EO 202.8 tolls their obligation to respond to FOIL requests, is erroneous. Matter of Oustatcher v Clark, 2021 NY Slip Op 05295, First Dept 10-5-21

 

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PLAINTIFF’S LADDER SHIFTED AS HE USED IT TO THROW TRASH INTO A DUMPSTER; THE ALLEGATION HE WAS TOLD NOT TO USE THAT DUMPSTER DID NOT RAISE A SOLE-PROXIMATE-CAUSE OR RECALCITRANT-EMPLOYEE DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was using a closed A-frame ladder propped up against a dumpster as threw debris into it when the ladder shifted and he fell. The defendants’ argument that plaintiff was told not to use that dumpster did not raise a sole-proximate-cause or a recalcitrant-employee defense:

“[I]f a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . A worker’s injury in an area of the work site where the worker was not supposed to be amounts to comparative negligence, which is not a defense to a Labor Law § 240(1) claim … .

To the extent that defendants argue that plaintiff was recalcitrant in ignoring defendants’ alleged instructions not to use the dumpster, this is insufficient to raise an issue of fact. The recalcitrant worker defense “requires a showing that the injured worker refused to use the safety devises that were provided by the owner or employer. It has no application where, as here, no adequate safety devices were provided” … . An employer’s instructions “to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device to allow him to complete his work safely” … . Plaku v 1622 Van Buren LLC, 2021 NY Slip Op 05311, First Dept 10-5-21​

 

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DEFENDANT IN THIS CHILD PORNOGRAPHY CASE DEMONSTRATED MITIGATING FACTORS WARRANTING A DOWNWARD DEPARTURE TO SORA RISK LEVEL ONE (FOURTH DEPT).

The Fourth Department determined defendant in this child pornography case established mitigating circumstances that warranted a downward departure of the risk level to level one:

We agree with defendant … that he established by a preponderance of the evidence that there are other mitigating factors that were “not otherwise adequately taken into account by the guidelines” … . Defendant established that he suffered from a rare, congenital disease that resulted in significant disfigurement and medical issues, requiring numerous surgeries throughout his life. Defendant was bullied as a child, primarily due to his disfigurement and, as a result, was socially isolated, having no significant peer relationships. Defendant has only one prior crime on his record, a misdemeanor for which he was referred to Mental Health Court, and, in the case at hand, the court sentenced him to probation pursuant to the People’s recommendation, thus indicating that defendant does not pose a significant threat to the community. We also note that defendant will be under supervision by the Probation Department for 10 years.

As a result of the depression and related mental health issues that flowed from such a difficult childhood, defendant turned to alcohol and drugs, some of which had been properly prescribed to him following many of his surgeries. Defendant’s use of child pornography generally occurred while he was under the influence of drugs. Inasmuch as defendant was sentenced to a 10-year term of probation, which would ensure that he continued to participate in all of his treatment programs, we conclude that, in light of the totality of the circumstances, a downward departure to risk level one is warranted in the exercise of our discretion … . People v Morana, 2021 NY Slip Op 05188, Fourth Dept 10-1-21

 

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THE CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF OR DEFENDANT WAS RESPONSIBLE FOR PAYING PROPERTY TAXES; THEREFORE THE DEFENDANT’S COUNTERCLAIM, WHICH WAS BASED UPON AN INTERPRETATION OF THE CONTRACT, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the defendant’s third counterclaim seeking reimbursement for property taxes should not have been dismissed because the terms of the related contract were ambiguous. As part of a purchase agreement which never closed, the defendant was allowed to remain in the property in return for paying the property tax for six months. If the defendant remained in the property after six months defendant was to pay $800/month rent. Defendant remained in the property after six months but no one paid the taxes. Eventually defendant paid the accumulated property tax to avoid a tax auction:

Inasmuch as “a contract generally incorporates the state of the law in existence at the time of its formation” ,,, , defendant, as the titled owner, would have been responsible for the property taxes, absent a contractual provision to the contrary. Here, however, the contract was not truly silent on the issue of property taxes. It specifically provided that defendant would pay property taxes in one situation but then failed to address who would pay the property taxes in another situation … . Based on the maxim expressio unius est exclusio alterius, which applies to contracts as well as statutes … , “[w]here a [document] describes the particular situations in which it is to apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Inasmuch as the determination of the intent of the parties depends on a choice among reasonable inferences, we conclude that resolution of the third counterclaim should be left to a trier of fact. Dunn Auto Parts, Inc. v Wells, 2021 NY Slip Op 05185, Fourth Dept 10-1-21

 

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