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THE DAMAGES FOR PAIN AND SUFFERING AND DEATH UNDER THE PUBLIC HEALTH LAW PRIVATE RIGHT OF ACTION AGAINST RESIDENTIAL HEALTH CARE FACILITIES ARE NOT LIMITED TO THOSE AVAILABLE FOR WRONGFUL DEATH UNDER THE ESTATES, POWERS AND TRUSTS LAW (EPTL) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, explained the differences between damages available for the private right of action against residential health care facilities under the Public Health Law, and the damages available for wrongful death under the Estates, Powers and Trusts Law (EPTL). (1) Public Health Law 2801-d encompasses compensatory and punitive damages for death; (2) the Public Health Law “death” damages are not limited to the pecuniary loss suffered by surviving family members as they are under the EPTL; and (3) damages under the Public Health Law are not the same as pain and suffering under the EPTL and do not require proof the decedent experienced cognitive awareness of the injury:

The express language of Public Health Law § 2801-d (1) provides that a nursing home facility is liable to a “patient” for “injuries suffered as a result of” the deprivation of a right or benefit conferred by any contract, statute or regulation, expressly defining “injury” to include “death of a patient.” …

… [T]he wrongful death and survivorship statutes do not permit damages to a person for his or her own death. Hence, imposing here [theese] limits … would render meaningless a nursing home’s potential statutory liability to a patient for his or her death. …

Although, at common law, damages for loss of enjoyment of life cannot be awarded to a person whose injuries preclude awareness of the loss as such damages serve no compensatory purpose … , the Legislature chose to allow such damages through the [Public Health Law] statute at issue here to serve a purpose beyond simply compensating the victim, i.e., to deter violations of patient rights. “It is precisely because of the inadequacy of the existing common-law causes of action to redress the abuse of patients in nursing homes that Public Health Law § 2801-d was enacted … . Hauser v Fort Hudson Nursing Ctr., Inc., 2021 NY Slip Op 07325, Third Dept 12-23-21

 

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PLAINTIFF SOUGHT ARREARAGES FOR A PORTION OF DEFENDANT’S PENSION UNDER THE TERMS OF THE STIPULATION OF SETTLEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; THE ACTION WAS THEREFORE IN THE NATURE OF A BREACH OF CONTRACT AND WAS LIMITED BY THE SIX-YEAR STATUTE OF LIMITATIONS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the calculation of the arrearages for plaintiff’s potion of defendant’s pension was restricted by the six-year statute of limitations for contact actions. The stipulation of settlement, which is the basis for plaintiff’s right to a portion of the pension, was incorporated, but not merged, into the judgment of divorce such that a breach of the stipulation is a breach of contract:

It is well settled that “[a] stipulation of settlement that is incorporated, but not merged, into the judgment of divorce is a contract subject to the principles of contract construction and interpretation” … , and an action seeking money damages for violation of a separation agreement is subject to the six-year statute of limitations for breach of contract actions … . Contrary to the court’s determination, it is irrelevant that plaintiff sought the arrearages by way of motion rather than by commencement of a plenary action. Although motions to enforce the terms of a stipulation are not subject to the statute of limitations … , in this case plaintiff was seeking arrearages, or money damages, for the amounts that she did not receive because the QDRO was never received by Niagara Mohawk. When a party is seeking arrearages or a money judgment, the statute of limitations applies whether a party commences a plenary action … or, as here, simply moves for that relief … .

Thus, we conclude that plaintiff’s claim is timely only to the extent that she seeks her share of pension payments made within six years prior to her motion filed on July 29, 2019. Mussmacher v Mussmacher, 2021 NY Slip Op 07413, Fourth Dept 12-23-21

 

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PLAINTIFF ALLEGED A CRACKED WINDOW PANE BROKE AND FELL, INJURING HER HAND; THERE WAS EVIDENCE OF AT LEAST 33 INSTANCES WHERE A WINDOW IN DEFENDANT’S BUILDING WAS IN NEED OF REPAIR (A RECURRING DANGEROUS CONDITION), RAISING A QUESTION OF FACT WHETHER DEFENDANT HAD A DUTY TO INSPECT THE WINDOWS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive notice of a recurring condition, i.e., windows in need repair in defendant’s (Luna’s) building. Plaintiff alleged a cracked window shattered, injuring her hand:

Luna’s submissions, which included a transcript of the deposition testimony of its building superintendent, failed to eliminate all triable issues of fact as to whether it had constructive notice of a recurrent dangerous condition. The superintendent testified that in the period of approximately two years preceding the accident, Luna was made aware of 33 instances in which a window in the building needed to be repaired … . Moreover, the superintendent testified that it was “normal” for windows in the building to break. While “[a] general awareness of a recurring problem is insufficient, without more, to establish constructive notice of the particular condition that caused the accident” …, the superintendent’s testimony regarding the frequency of specific complaints of window damage in the building raised triable issues of fact as to whether Luna had an obligation to inspect the windows … . Butnik v Luna Park Hous. Corp., 2021 NY Slip Op 07314, Second Dept 12-22-21

 

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DEFENDANT’S FORMER APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE DEFENDANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE TIME-BARRED ENDANGERING-THE-WELFARE-OF-A-CHILD COUNTS; WRIT OF CORAM NOBIS GRANTED (SECOND DEPT).

The Second Department determined defendant’s former appellate counsel was ineffective for not arguing defendant’s trial counsel was ineffective for failing to move to dismiss the misdemeanor endangering-the-welfare-of-child charges were time-barred. Therefore the writ of coram nobis was granted and the relevant counts were vacated:

The misdemeanors of which the defendant was convicted, two counts of endangering the welfare of a child, were barred by the statute of limitations. The defendant demonstrated that trial counsel was not seeking a compromise verdict from the jury and thus did not have a strategic reason for failing to move to dismiss the misdemeanor counts as time-barred. The two counts of endangering the welfare of a child were not lesser included offenses of the rape and burglary counts of which the defendant was also convicted. Further, when the Supreme Court told counsel that it was “not going to charge everything,” trial counsel did not request that the misdemeanors be submitted to the jury, and replied that the jury would “either believe that my client is a rapist, or not.” Then, during his summation, trial counsel’s sole argument was that the defendant was misidentified. There was no reasonable explanation for trial counsel’s “failure to raise a defense as clear-cut and completely dispositive as a statute of limitations” … . People v Louis, 2021 NY Slip Op 07307, Second Dept 12-22-21

 

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FOR CAUSE CHALLENGES TO TWO JURORS WHO WERE UNABLE TO UNDERSTAND THE PEOPLE’S BURDEN OF PROOF SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined for cause challenges to three jurors should have been granted:

One of the three prospective jurors demonstrated that he would give more credence to a police officer testifying than to a civilian witness, and the court failed to elicit an unequivocal assurance that the prospective juror could render an impartial verdict based on the evidence … . The other two prospective jurors provided answers that demonstrated an inability to comprehend the People’s burden of proof even after the court provided a straightforward explanation of this principle during voir dire … . People v Wilson, 2021 NY Slip Op 07305, Second Dept 12-22-21

 

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THE EXTENSION OF THE STATUTE OF LIMITATIONS IN CPLR 213-B(1) WHICH ALLOWS A VICTIM OF A CRIME TO SUE THE PERPETRATOR WITHIN SEVEN YEARS OF THE DATE OF CRIME APPLIES ONLY WHERE THE PERPETRATOR HAS BEEN “CONVICTED OF [THE] CRIME;” A PERPETRATOR WHO HAS BEEN ADJUDICATED A YOUTHFUL OFFENDER HAS NOT BEEN “CONVICTED OF A CRIME” WITHIN THE MEANING OF CPLR 213-B(1) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connelly, in a matter of first impression, determined CPLR 213-b(1) does not extend the statute of limitations for civil actions against someone “convicted of a crime” where that person has been adjudicated a youthful offender. Here plaintiff, Anthony Pitt, was accused of rape by Ericka Feagles. The charges against Pitt were resolved in his favor in October 2011. Although Feagles was subsequently charged with falsely reporting an incident and making a false written statement, she was adjudicated a youthful offender in connection with those charges in April 2012. Plaintiff’s August 2016 suit against Feagles would only be timely if the seven-year extension of the statute of limitations in CPLR 213-b(1) applied. The Second Department determined being adjudicated a youthful offender does not equate to being “convicted of a crime.” Therefore the extension in CPLR 213-b(1) did not apply and plaintiff’s suit was time-barred. The court noted the plaintiff could have brought an intentional tort action within the applicable one-year statute of limitations:

CPLR 213-b, entitled “Action by a victim of a criminal offense,” provides, as relevant, that “an action by a crime victim . . . may be commenced to recover damages from a defendant: (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime” … . * * *

… [W]e … must consider the competing legislative purpose of the youthful offender statute. In enacting the youthful offender statute, the legislature sought to relieve youthful offenders of the consequences of a criminal conviction and give them a “second chance” … . It would be inconsistent with that legislative purpose to allow plaintiffs to commence civil actions against youthful offenders long after the conduct underlying the adjudication occurred … .

Our determination does not prohibit civil actions against defendants for the conduct underlying youthful offender adjudications. We simply hold that plaintiffs must commence such actions within the applicable statutes of limitations, without the benefit of the seven-year extension provided in CPLR 213-b(1). We note that here, the plaintiffs commenced the prior action within the applicable one-year statute of limitations for intentional torts and would have had a timely action against Feagles had they properly served her. The plaintiffs did not do so. Pitt v Feagles, 2021 NY Slip Op 07299, Second Dept 12-22-21

 

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WITH RESPECT TO THE IDENTIFICATION OF THE DEFENDANT BY A WITNESS TO THE CRIME: NO HEARING ON THE SUGGESTIVENESS OF COMMENTS MADE TO THE WITNESS BY THE POLICE WAS NECESSARY BECAUSE THE WITNESS WAS A LONG-TIME ACQUAINTANCE OF THE DEFENDANT (SECOND DEPT).

The Second Department noted that where a witness to the crime is a long-time acquaintance of the defendant, a hearing about the suggestiveness of comments made to the witness by the police is not necessary. In addition, any identification of the defendant by the witness from a photo array was “merely confirmatory:”

“‘When a crime has been committed by a . . . long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person'” … . Thus, when “the protagonists are known to one another, suggestiveness is not a concern” and a hearing regarding suggestiveness is not required … . Here, the detective’s testimony at the suppression hearing and the complainant’s testimony at trial demonstrated that the complainant knew the defendant for approximately three years through mutual friends, the complainant knew the defendant by his alias “Kilo,” and the defendant admitted to knowing the complainant. The Supreme Court therefore properly determined that the complainant was impervious to suggestion due to his familiarity with the defendant … . People v Richardson, 2021 NY Slip Op 07287, Second Dept 12-22-21

 

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THE PISTOL LICENSING SERVICE’S DENIAL OF PETITIONER’S APPLICATION FOR A PISTOL LICENSE HAD A RATIONAL BASIS AND SHOULD NOT HAVE BEEN ANNULLED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Pistol License Section’s (PLS’s) denial of petitioner’s application for a pistol licenses had a rational basis and should not have been annulled:

… [T]he denial of the petitioner’s application for a pistol license had a rational basis and was not arbitrary and capricious. The PLS’s investigation of the petitioner’s application revealed a lengthy history of domestic incidents that involved, at various points, the petitioner, the petitioner’s wife, a close family member of the petitioner, and the close family member’s domestic partner. These incidents included heated verbal disputes, arguments where property was damaged, shoving matches, and a situation where the close family member wielded a loaded shotgun in the presence of police officers. During many of these incidents, the close family member was intoxicated; in several others, the close family member threatened suicide. These incidents provided a rational basis for denying the petitioner’s application … . Moreover, the petitioner’s rationale for not disclosing these incidents to the PLS—that the close family member was not a member of the petitioner’s “household” because the close family member lived in an allegedly private basement apartment in the petitioner’s home—was misleading and provided a “rational basis for the [PLS] to conclude that [the] petitioner did not meet the good moral character standard” … . Matter of Franzese v Ryder, 2021 NY Slip Op 07285, Second Dept 12-22-21

 

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PLAINTIFF WAS STRUCK BY A TRAIN; THE “OPEN RUN” DEFENSE ALLOWS A TRAIN OPERATOR TO PROCEED NORMALLY AND ASSUME A PERSON SEEN AHEAD ON THE TRACKS WILL GET OUT OF THE WAY; THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE “OPEN RUN” DEFENSE APPLIES WHETHER THE ACCIDENT HAPPENS IN DAYLIGHT OR, AS HERE, AT NIGHT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the jury instruction for the “open run” defense was proper. Plaintiff was lying near train tracks with one leg over the rails when he was struck by the defendant’s train at night. The “open run” defense allows the train operator to proceed normally when someone is seen ahead on the tracks and assume he or she will get out of the way. The question raised by this case is whether the “open run” defense applies only in the daylight hours. The Second Department held the trial judge properly concluded the defense applied at night because the sound of the train would be heard by, and the light from the train would be seen to, anyone on the tracks. Although the jury was instructed on the “open run” defense, the uncontested evidence at trial demonstrated the train personnel sounded the horn and initiated an emergency stop when plaintiff was first spotted on the tracks. Any error in the jury instruction, therefore, would have been harmless:

… [W]e hold that the open run defense is not exclusively limited to cases involving daytime train accidents, but rather may be applicable under any circumstances in which an oncoming train would be readily observable to a person on or near the tracks making reasonable use of his or her senses. Kunnemeyer v Long Is. R.R., 2021 NY Slip Op 07281, Second Dept 12-22-21

 

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THE FACT THAT COMPLAINANT TURNED 21 DURING THE FAMILY OFFENSE HEARING DID NOT DEPRIVE FAMILY COURT OF JURISDICTION; NOR DID THE INCAPACITY OF THE COMPLAINANT (SECOND DEPT).

The Second Department, reversing Family Court and remitting the matter, determined Family Court did lose jurisdiction over the family offense proceeding when complainant turned 21. The court noted that even if the complainant is incapacitated (but not judicially declared incompetent) Family Court has jurisdiction:

In the context of a family offense proceeding, the question of subject matter jurisdiction is generally confined to whether a qualifying offense has been committed between parties in a qualifying relationship (see Family Ct Act §§ 115[e]; 812[1] … ), irrespective of the complainant’s age. Thus, the fact that the complainant attained the age of 21 during the hearing did not deprive the court of jurisdiction to hear and determine this matter.

To the extent the respondent’s motion may be construed as challenging the petitioner’s ability to prosecute this matter in a representative capacity for the complainant, this does not amount to a jurisdictional defect requiring dismissal of the proceeding … . Indeed, “[a]n incapacitated individual who has not been judicially declared incompetent may sue or be sued in the same manner as any other person” … , and courts must not “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such” … . Rather, insofar as the record raises questions of fact as to whether the complainant may require the assistance of a guardian ad litem to protect her interests, the Family Court should have granted the petitioner’s request to appoint a guardian to the extent of conducting a hearing to determine whether such an appointment was necessary pursuant to CPLR 1201… . Matter of Vellios v Vellios, 2021 NY Slip Op 07276, Second Dept 12-22-21

 

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