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SUBPOENA SEEKING 1099 FORMS SHOWING THE INSURER’S PAYMENTS TO TWO DOCTORS WHO PERFORM MEDICAL EXAMS FOR THE INSURER IN PERSONAL INJURY CASES SHOULD NOT HAVE BEEN QUASHED; WITH RESPECT TO THE SUBPOENA FOR THE MEDICAL RECORDS ASSOCIATED WITH THE EXAMS, THAT ISSUE WAS NOT ADDRESSED BY SUPREME COURT AND CAN NOT, THEREFORE, BE ADDRESSED ON APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry addressing a matter of first impression in the Third Department, determined the plaintiffs’ subpoena seeking 1099 forms (encompassing several years) issued by the insurer to the two doctors (Seigel and Hughes) who performed the medical examination of the plaintiff in this traffic accident case should not have been quashed. The payment records may provide information relevant to the doctors’ bias in favor of denying coverage. However the subpoena for the medical records for the examinations conducted by the two doctors was not addressed by the motion court and therefore could not be addressed on appeal:

The CPLR extends “full disclosure of all matters material and necessary in the prosecution or defense of an action” to nonparties (CPLR 3101 [a] [4] …). “The words, ‘material and necessary,’ are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … . “A subpoena will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry” … . …

… [T]he 1099 forms that plaintiffs seek would disclose the amount of compensation that Siegel and Hughes received for performing evaluations on defendant’s behalf and, with questioning, may reveal a financial incentive that the physicians have in testifying. A financial incentive is a relevant consideration in “ascertain[ing] any possible bias or interest on the part of [the physicians]” … . Given the liberal interpretation afforded the terms “material and … necessary” used in the CPLR … , and the general acceptance of testing a witness for bias and interest , we thus find that the financial records are discoverable … . Loiselle v Progressive Cas. Ins. Co., 2020 NY Slip Op 06325, Third Dept 11-5-20

 

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THE DENIAL OF A MOTION TO RESETTLE WHICH IMPROPERLY SOUGHT THE MODIFICATION OF A SUBSTANTIVE PART OF AN ORDER, AS OPPOSED TO MERELY THE CORRECTION OF A MISTAKE, IS NOT APPEALABLE (THIRD DEPT).

The Third Department determined the denial of the motion to resettle was not appealable and explained the criteria. The motion sought the modification of a substantive part of an order, which is not available pursuant to a motion to resettle:

“‘Resettlement of an order is a procedure designed solely to correct errors or omissions as to form, or for clarification. It may not be used to effect a substantive change in or to amplify the prior decision of the court'” … . “Under established precedent, no appeal lies from the denial of a motion to resettle or clarify a substantive portion of an order” . [The instant] … motion does not seek to amend or clarify the prior order, but seeks to modify a substantive portion of the prior order….  As such, the denial of said motion is not appealable … . Hutchings v Garrison Lifestyle Pierce Hill, LLC, 2020 NY Slip Op 06327, Third Dept 11-5-20

 

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THE ALLEGATION THAT DEFENDANT SURGEONS PERFORMED A CHIROPRACTIC PROCEDURE DURING SPINAL FUSION SURGERY SOUNDED IN BATTERY, NOT MEDICAL MALPRACTICE, AND WAS TIME-BARRED; PLAINTIFF’S EXPERT, A CHIROPRACTOR, WAS NOT QUALIFIED TO OFFER AN OPINION ABOUT DEFENDANTS’ SURGERY (THIRD DEPT).

The Third Department determined plaintiff’s allegation the defendant doctors derotated her pelvis (a chiropractic procedure) during spine fusion surgery sounded in battery, not medical malpractice, because the claim alleged intentional, not negligent, conduct. Therefore the one-year statute of limitations applied and the action was time-barred. Plaintiff’s expert, a chiropractor, was not qualified to offer an opinion about the surgery performed by the defendants:

… [A]ny claim that defendants derotated plaintiff’s pelvis as a separate procedure from the surgery to which she consented is necessarily an allegation that they acted intentionally. Despite the fact that plaintiff’s complaint alleges only negligence, “when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, there can be no question but that the deviation from the consent given was intentional” … . As such, this claim is subject to the one-year statute of limitations for the intentional tort of battery — that is, “intentional physical contact with another person without that person’s consent” — rather than the 2½-year period applicable to medical malpractice claims … . Young v Sethi, 2020 NY Slip Op 06330, Third Dept 11-5-20

 

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IN A COMPREHENSIVE DECISION ANALYZING THE ELEMENTS OF PROOF IN A SLIP AND FALL CASE, INCLUDING EXPERT OPINION EVIDENCE, THE 1ST DEPARTMENT DETERMINED THE DEFENDANT STORE DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL KNOWLEDGE OF A PUDDLE OF WATER IN FRONT OF AN ICE MACHINE (FIRST DEPT).

The First Department, in an unusually detailed and comprehensive decision, went through all the factors relevant to slip and fall cases, including expert opinion evidence, and determined defendant store was entitled to summary judgment. Plaintiff allegedly slipped and fell on water in front of an ice machine. The defendant demonstrated the area had been inspected an hour and a half before the fall and no one had complained about water on the floor. Therefore defendant did not have constructive or actual notice of the condition:

Defendants … established that the water was not on the floor for a sufficient period of time to charge them with having constructive notice that it was there. The porter averred that she inspected the area at about 8:23 a.m., or about an hour and a half before the accident and did not record any hazards. The deposition testimony of both plaintiff and his wife establish that the water puddle that caused plaintiff’s fall was clear and without any footprints or marks … . …

Defendants sustained their burden of making a prima facie showing that they had no actual notice of the water on the floor before the accident. Defendant store manager Luisi testified that he was unaware of any complaints about the area which were made before the accident.

Plaintiff’s expert affidavits failed to raise a triable issue of fact as to whether defendants were negligent. First, the standards cited are couched in advisory terms and there is no evidence that they are an adopted and implemented industry standard or a generally accepted safety practice … . Although evidence of industry practice and standards is admissible to establish a duty of care, the expert affidavit fails to raise a triable issue of fact because it contains nothing more than conclusory opinions with respect to a deviation from an alleged industrywide practice of placing cones and absorbent rubber mats or carpets in front of ice freezers … . Velocci v Stop & Shop, 2020 NY Slip Op 06372, First Dept 11-5-20

 

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FAMILY COURT SHOULD NOT HAVE RELIED SOLELY ON THE IN CAMERA INTERVIEW WITH THE EIGHT-YEAR-OLD CHILD IN THIS MODIFICATION OF CUSTODY CASE, MATTER REMITTED (FIRST DEPT). ​

The First Department, reversing Family Court and remanding the case, determined the evidence did not support a finding that there had been a change in circumstance sufficient to warrant awarding sole custody to father. The court noted that Family Court should not have relied solely on the in camera interview with the eight-year-old child:

The court based its finding solely on an in camera interview with the child, then eight years old, and the hearsay testimony of the father. The transcript of the in camera interview shows that the child made inconsistent statements about where he spent the majority of his time. However, even if he had made a definitive declaration, the Court of Appeals has admonished that courts should “not use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing,” because “there are grave risks involved in these private interviews. A child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also, its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given the child’s choice. Without a full background on the family and the child, these interviews can lead the most conscientious Judge astray” … .

In fact, this admonition is well taken in this case, where the record provides a substantial basis for concluding that either or both parents spoke to the child about the proceeding before his interview with the court. Matter of Edwin E.R. v Monique A.-O., 2020 NY Slip Op 06347, First Dept 11-5-20

 

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QUESTIONS OF FACT WHETHER THE BUILDING MANAGEMENT COMPANY WAS LIABLE, PURSUANT TO ESPINAL FACTORS, FOR INFANT PLAINTIFF’S FALL INTO THE ELEVATOR SHAFT (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether the building manager, Synoptic, was liable in this elevator accident case. The elevator was subject to a code violation because a “drop key” was available to tenants which allowed the elevator door to be opened when the elevator cab was not at that floor. Infant plaintiff fell into the open shaft after her nanny opened the door. The contract between Synoptic and the building owner raised questions of fact whether Espinal factors imposed liability on Synoptic:

A contracting party may not be liable in tort to a noncontracting third-party for its negligent performance unless it launches a force or instrument of harm by creating or exacerbating an unreasonable risk of harm, the noncontracting third party detrimentally relies on its performances, or it completely displaces the other party’s duty to maintain premises safely … . …

Whether Synoptic made the repairs itself or was qualified to do so is irrelevant as to whether it owed plaintiff a duty. Rather its duty arises from its contractual obligation under the comprehensive management agreement obligating it to, inter alia, maintain the property and cause needed repairs to the elevator … .

Here, issues of fact exist as to whether plaintiffs detrimentally relied on Synoptic to perform its contractual duties to maintain, cause repairs to be made to, and correct violations regarding the elevator … , and whether Synoptic launched a force of harm by providing residents access to the drop key to use the freight elevator … . According to … deposition, [testimony]  Synoptic had notice that residents were using the drop key to access the freight elevator. Further, at the very least, issues of fact exist as to whether it had notice that the repairs to address the violation were never completed. XX v Dunwell El. Elec. Indus., Inc., 2020 NY Slip Op 06376, First Dept 11-5-20

 

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THE IMPOUNDMENT AND SEARCH OF DEFENDANT’S CAR, WHICH WAS LEGALLY PARKED AT THE TIME OF DEFENDANT’S ARREST, WERE ILLEGAL; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the impoundment of defendant’s car, which was legally parked car at the time of defendant’s arrest, was illegal. The subsequent search of the car was not a valid inventory search. The seized evidence should have been suppressed:

… [T]he Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress the physical evidence recovered from his vehicle. The People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . At the suppression hearing, the arresting officer testified that the defendant’s vehicle was legally parked at the time of the defendant’s arrest, and there was no testimony regarding posted time limits pertaining to the parking space. Further, although the officer testified that he impounded the defendant’s vehicle for “safekeeping,” the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle. Thus, the People failed to establish that the impoundment of the defendant’s vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, while the arresting officer testified that “[t]here is [an] NYPD procedure when someone is arrested and you have to take the car into safekeeping,” the People failed to present evidence of what such a procedure required or whether the arresting officer complied with such a procedure when he impounded the defendant’s vehicle … . People v King, 2020 NY Slip Op 06288, Second Dept 11-4-20

 

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THE FEDERAL OFFENSE DID NOT REQUIRE THAT THE FIREARM BE OPERABLE BUT THE NEW YORK OFFENSE DOES; THEREFORE THE FEDERAL OFFENSE IS NOT A PREDICATE OFFENSE FOR SENTENCING PURPOSES; THE DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the federal felony was not equivalent to a New York felony and therefore could not serve as a predicate offense. Defendant, therefore, should not have been sentenced as a second felony offender. Although the issue was not preserved, it was considered on appeal in the interest of justice:

The defendant’s contention that his prior federal conviction of unlawful possession of a firearm in violation of 18 USC § 922(g)(l) did not qualify as a predicate New York felony pursuant to Penal Law § 70.06 is unpreserved for appellate review … . However, we reach the issue in the exercise of our interest of justice jurisdiction … .

“An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York” … . Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable (see 18 USC § 922[g][1] …) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Cabassa, 2020 NY Slip Op 06282, Second Dept 11-4-20

 

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PETITIONERS, INMATES AT A CORRECTIONAL FACILITY, RAISED ALLEGATIONS COGNIZABLE IN HABEAS CORPUS REGARDING THE FACILITY’S RESPONSE TO COVID-19; SUPREME COURT SHOULD NOT HAVE REFUSED TO ISSUE AN ORDER TO SHOW CAUSE WHY THE PETITIONERS SHOULD NOT BE RELEASED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioners, inmates at Otis Correctional Facility, had made allegations with respect to the facility’s response to COVID-19 which were cognizable in habeas corpus. Therefore Supreme Court should not have refused to issue an order to show cause why the inmates should not be released:

… [T]he petition alleged that the inmates were being unlawfully imprisoned in violation of the Eighth Amendment of the United States Constitution because, in light of certain physical conditions and attributes specific to them as well as unalterable conditions of incarceration at Otisville, there were no measures that could be taken to protect them from the grave risk of death or serious illness posed by the COVID-19 virus while they were incarcerated in that facility. Thus, the petitioner alleged, the only remedy to cure the illegality of the inmates’ detention would be their immediate release. Contrary to the respondents’ contention and the conclusion of the Supreme Court, these allegations are properly cognizable in habeas corpus … . Accordingly, the court should not have refused to issue an order to show cause why the inmates should not be released (see CPLR 7003[a]). People ex rel. Tse v Barometre, 2020 NY Slip Op 06280, Second Dept 11-4-20

 

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IN THIS WRONGFUL DEATH ACTION AGAINST DEFENDANT RESIDENTIAL CARE FACILITY, PLAINTIFF’S DECEDENT DID NOT SIGN THE ADMISSION AGREEMENT AND DECLINED TO HAVE IT READ TO HER; PLAINTIFF’S DECEDENT’S SON, WHO HAD POWER OF ATTORNEY, REFUSED TO SIGN THE AGREEMENT; THE FACILITY CAN NOT ENFORCE THE ARBITRATION CLAUSE IN THE AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration clause in the defendant residential care facility’s (Richmond Center’s) admission agreement could not be enforced on behalf of plaintiff’s decedent. Plaintiff’s decedent was unable to sign the admission agreement and blinked twice for “no” when asked if she wanted the agreement read to her. Her son, William, had power of attorney but refused to sign the agreement. The facility therefore could not enforce the arbitration clause of the admission agreement in this wrongful death action:

“[A]n arbitration clause in a written agreement is enforceable, even if the agreement is not signed, when it is evident that the parties intended to be bound by the contract” … . “‘The manifestation or expression of assent necessary to form a contract may be by word, act, or conduct which evinces the intention of the parties to contract'” … . “A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” … .

Here, Richmond Center failed to demonstrate that the resident, or William as her representative, by word, act, or conduct evinced an intention to be bound by the terms of the arbitration agreement. Since the evidence failed to show a clear, explicit, and unequivocal agreement to arbitrate, the plaintiff may not be compelled to arbitrate … . Pankiv v Richmond Ctr. for Rehabilitation & Specialty Healthcare, 2020 NY Slip Op 06279, Second Dept 11-4-20

 

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