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PLAINTIFF’S KNEE BECAME STIFF AND IMPOSSIBLE TO BEND AFTER SURGERY; PLAINTIFF SUED THE DEFENDANT DOCTOR WHO TREATED HER AT THE POST-SURGERY REHABILITATION CENTER; THE DEFENDANT DOCTOR, WHO DID NOT PERFORM THE SURGERY, HAD CERTIFIED AND RECOMMENDED PHYSICAL AND OCCUPATIONAL THERAPY FOR PLAINTIFF AT THE REHABILITATION CENTER; BECAUSE THE DEFENDANT DOCTOR PLAYED NO ROLE IN THE THERAPY ITSELF, HIS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Raber’s) motion for summary judgment should have been granted. Dr. Raber treated plaintiff at a nursing and rehabilitation center, Glen Cove, where, after knee surgery, plaintiff voluntarily transferred. After about a month at Glen Cove, plaintiff was seen by her orthopedic surgeon who found plaintiff’s knee had become stiff and impossible to bend. Dr. Raber had certified and recommended physical and occupational therapy at Glen Cove, for which Dr. Raber was not responsible. Dr. Raber moved for summary judgment on the ground that any regimen of physical therapy was the responsibility of Glen Cove:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, Raber testified at his deposition that he is trained only in internal medicine, and was the plaintiff’s internist while she was at Glen Cove. Raber established that he was not the plaintiff’s physical or occupational therapist and was not involved in the plaintiff’s physical therapy plan of care. Physical therapists (see Education Law §§ 6731, 6732) must be educated and licensed in that specific field (see Education Law § 6734), and Raber had no such training. Occupational therapists must similarly be educated and licensed in their field (see Education Law § 7904). Raber’s medical expert opined that Raber’s training as an internal medicine specialist did not encompass the skills and knowledge required to assess a patient’s physical therapy needs, create a physical therapy plan of care, or supervise a physical therapy plan of care. …

Raber established that he did not depart from good and accepted medical practice by deferring to the physical and occupational therapy specialists at Glen Cove for the assessment and treatment of the plaintiff’s right knee, and had no duty to evaluate the efficacy of that treatment, since he was not involved in that aspect of the plaintiff’s care … . Aaron v Raber, 2020 NY Slip Op 06738, Second Dept 11-18-20

 

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THE CRACK OVER WHICH INFANT PLAINTIFF ALLEGEDLY TRIPPED WAS DEEMED TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined the crack in the concrete schoolyard where infant plaintiff allegedly tripped and fell was trivial as a matter of law. Infant plaintiff was running a sprint in an after-school program when he fell. The court noted that plaintiffs raised a “feigned issue of fact” in opposition to the defendants’ motion for summary judgment which tried to avoid the consequences of deposition testimony:

… [T]he defendants established, prima facie, that the alleged defective condition was trivial as a matter of law and therefore nonactionable … . The defendants’ expert inspected the crack and determined that it was “from 1/8 of an inch to 7/16 of an inch in width,” and the pavement “on each side of the crack[ ] . . . contained no vertical height differential.” Further, the infant plaintiff’s General Municipal Law § 50-h hearing and deposition testimony established that the accident occurred during daylight hours on a clear day with nothing obstructing his view.

In opposition to the defendants’ prima facie showing that the defect was trivial, the plaintiffs failed to raise a triable issue of fact. The affidavit of the infant plaintiff stating that “[t]he crack was wide enough that part of [his] right foot was able [to] go into it” “‘presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony'” … that his right “heel” stepped “on” the crack, and his General Municipal Law § 50-h hearing testimony that his right “toes” “stopped really hard” on the crack and the crack “wasn’t wide.” Moreover, the affidavit of the plaintiffs’ expert was speculative, unsubstantiated, and conclusory, as the expert neither provided a description of the crack nor took any measurements of it … . K.A. v City of New York, 2020 NY Slip Op 06737, Second Dept 11-18-20

 

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THE DISCONTINUANCE OF THE 2008 FORECLOSURE ACTION DID NOT DE-ACCELERATE THE DEBT SO THE STATUTE OF LIMITATIONS KEPT RUNNING, RENDERING THE INSTANT ACTION UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action should have been dismissed as untimely. The debt was accelerated with the first foreclosure action was commenced in 2008, starting the running of the six-year statute of limitations. The discontinuing of the that action did not revoke the acceleration:

“[A] lender’s mere act of discontinuing an action, without more, does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt” … .

None of the other facts relied upon by the plaintiff establish that the 2008 acceleration of the loan balance was affirmatively revoked. “[D]e-acceleration notices must . . . be clear and unambiguous to be valid and enforceable” … . While the plaintiff points to the fact that the defendant purportedly received billing statements after the first action was discontinued and that the second complaint alleged a different date of default, these facts do not establish that a clear and unambiguous notice of revocation of the acceleration was given to the defendant. Wells Fargo Bank, N.A. v Islam, 2020 NY Slip Op 06823, Second Dept 11-18-20

 

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT RAISED A QUESTION WHETHER DEFENSE COUNSEL SHOULD HAVE INFORMED HIM OF AN AFFIRMATIVE DEFENSE TO THE ROBBERY FIRST CHARGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea based on ineffective assistance of counsel. Defendant raised a question whether he should have been informed about the an affirmative defense to robbery first degree, i.e., that the object displayed during the crime was not a loaded, operable weapon:

A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty … . That requirement is met under the New York State Constitution when defense counsel provides “meaningful representation” … . In cases asserting ineffective assistance of counsel in the context of a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial, or that the outcome of the proceedings would have been different” … .

It is an affirmative defense to a charge of robbery in the first degree under Penal Law § 160.15(4) that the object displayed during the course of the crime “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” … . The defendant’s averments in his affidavit in support of his motion, along with the PSR, were sufficient to warrant a hearing on the issue of whether his counsel was ineffective for failing to advise him of this potential affirmative defense to the charges to which he pleaded guilty … . People v Flinn, 2020 NY Slip Op 06809, Second Dept 11-18-20

 

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THE CONVICTION FOR GRAND LARCENY BY FALSE REPRESENTATION WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; THERE WAS NO EVIDENCE DEFENDANT RECEIVED ADDITIONAL FUNDS AFTER MAKING THE ALLEGED FALSE REPRESENTATION AND NO EVIDENCE DEFENDANT INTENDED TO APPROPRIATE THE FUNDS AT THE TIME THE ALLEGED FALSE REPRESENTATION WAS MADE (SECOND DEPT).

The Second Department found defendant’s grand-larceny-by-false-representation conviction was against the weight of the evidence. There was no evidence defendant received any additional money after making the alleged false representation and no evidence defendant intended to appropriate the funds at the time the alleged false representation was made:

… [T]he complainant testified that she was unable to send large amounts of money to Peru and had asked the defendant to assist her with sending money to her family in Peru. She testified that on November 3, 2014, she gave the defendant $11,000 to $12,000 to transfer to her family in Peru and approximately $40 for his assistance. She testified that she accompanied the defendant to four different money transfer agencies. However, according to the complainant’s testimony, she learned on November 4, 2014, that the money transfers did not go through due to an error she had made in the recipient’s name. The complainant testified that the defendant was able to fix two of the transactions over the phone and agreed to meet her the next day, November 5, 2014, to go to the other two money transfer agencies (hereinafter the subject money transfer agencies) to correct the mistake in the recipient’s name. She testified that the defendant did not meet her on November 5, 2014, she subsequently learned that her family never received the funds from the subject money transfer agencies, and the defendant had withdrawn the money without her permission. Business records from the subject money transfer agencies indicated that the transactions had been cancelled with the money refunded. Representatives from the subject money transfer agencies testified that their policies required cancellations to be done in person by the person who initiated the transaction.

On appeal, the defendant contends that the evidence was legally insufficient to establish that he obtained the subject funds by means of a false representation and that he had the requisite intent not to perform at the time he made the representation that he would meet the complainant and help her fix the recipient’s name on the transactions at the subject money transfer agencies. People v Bravo, 2020 NY Slip Op 06804, Second Dept 11-18-20

 

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THE CUSTODY ARRANGEMENTS SET FORTH IN A SETTLEMENT AGREEMENT SHOULD NOT HAVE BEEN MODIFIED IN THE ABSENCE OF A HEARING AND FAMILY COURT SHOULD NOT HAVE RELIED ON INADMISSIBLE EVIDENCE UNTESTED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the custody arrangements set forth in the settlement agreement should not have been modified in the absence of a hearing and the modification should not have been based upon inadmissible evidence not tested by either party:

… [T]he Supreme Court should not have granted, without a hearing, that branch of the defendant’s motion which was to modify the terms of the parties’ stipulation of settlement. Custody determinations should generally be made only after a full and plenary hearing … . While the general right to a hearing in custody and visitation cases is not absolute, where “facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,” a hearing is required … . Here, the record shows that there were disputed factual issues regarding the child’s best interests, such that a hearing on the defendant’s petition was necessary … .

In addition, decisions regarding child custody and parental access should be based on admissible evidence … . Here, in making its determination, the Supreme Court improperly relied solely on statements and conclusions of witnesses whose opinions and credibility were untested by either party … . Palazzola v Palazzola, 2020 NY Slip Op 06801, Second Dept 11-18-20

 

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THE FIRE DEPARTMENT BOARD OF WARDENS SHOULD NOT HAVE REMOVED A FIREFIGHTER FROM MEMBERSHIP IN THE VOLUNTEER FIRE DEPARTMENT WITHOUT HOLDING A HEARING PURSUANT TO GENERAL MUNICIPAL LAW 209-L (SECOND DEPT). ​

The Second Department, reversing the Blue Point Fire Department Board of Wardens’ removal from membership of a volunteer firefighter, determined the firefighter should have been afforded a hearing pursuant to General Municipal Law 209-L:

“Pursuant to General Municipal Law § 209-l, volunteer firefighters cannot be removed from office or membership for incompetence or misconduct, except for absenteeism at fires or meetings, unless they are afforded a hearing” … . However, “[t]hat section, by its own terms, does not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company” … .

Here, after a meeting at which the petitioner appeared, the Board of Wardens found that he had violated Article V, Section 1(C), of the bylaws, by donating department property in contravention of an order from the chief of the department. That provision of the bylaws authorized the chief of the department to suspend members of the department for insubordination, refusal to follow orders, and for conduct unbecoming or detrimental to the department, and required the Board of Wardens to review such suspensions. The bylaws did not empower the Board of Wardens to dismiss a member based on a violation of Article V, Section 1(C). Thus, a hearing pursuant to General Municipal Law § 209-l was required … . Matter of McDowell v Blue Point Fire Dept., 2020 NY Slip Op 06793, Second Dept 11-18-20

 

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THE MATERNAL GRANDMOTHER HAD STANDING TO PETITION FOR VISITATION AFTER MOTHER’S DEATH; FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the maternal grandparent had standing to petition for visitation after mother died. Because the grandparent had standing, Family Court should have held a “best interests” hearing rather than precluding the presentation of evidence and granting father’s petition to deny the petition:

… [I]t is undisputed that the maternal grandparents have standing based upon the death of the child’s mother. Since the maternal grandparents have standing, the Family Court should have proceeded to conduct a best interests determination based upon admissible evidence … . Instead, the maternal grandparents were not permitted to present any evidence, no testimony was taken from any of the parties, and no in camera interview with the child was conducted. We disagree with the court’s determination to grant the father’s application, in effect, to deny the petition and dismiss the proceeding without first conducting a hearing … . Matter of Jafer v Marasa, 2020 NY Slip Op 06789, Second Dept 11-18-20

 

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THE ARBITRATOR’S AWARD, REINSTATING NURSING HOME EMPLOYEES WHO WERE FIRED AND INDICTED FOR ALLEGEDLY IGNORING A RESIDENT IN RESPIRATORY DISTRESS, VIOLATED PUBLIC POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitrator’s award, reinstating the employees to their former positions as care providers at a nursing home, violated public policy. The employees were fired and indicted for allegedly ignoring an alarm indicating a resident on a ventilator was in distress:

… [T]he record reflects that after the employees were indicted, inter alia, on felony charges, OMIG [Office of Medicaid Inspector General] notified the employees that they were excluded “from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from,” among other things, “the furnishing of or billing for medical care, services or supplies.” Pursuant to 18 NYCRR 515.5(c), “[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period.” The regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person (see 18 NYCRR 515.5[b]), and the Department of Health’s published Medicaid Update instructs Medicaid providers “to ensure that they do not employ, or are affiliated with, any individual who has been excluded from either the Medicare or the Medicaid program” … . There is no evidence in the record that the exclusion was vacated. Therefore, the final result of the arbitrator’s award, reinstating the employees to their former positions, creates an explicit conflict with the subject regulations and their attendant policy concerns … . Civil Serv. Employees Assn., A.F.S.C.M.E. Local 1000, A.F.L.-C.I.O. by its Local 830 v Nassau Healthcare Corp., 2020 NY Slip Op 06777, Second Dept 11-18-20

 

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