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DEFENDANT’S FAMILY MEMBERS SHOULD NOT HAVE BEEN EXCLUDED FROM THE COURTROOM DURING THE TESTIMONY BY THE UNDERCOVER OFFICERS, CONVICTIONS REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the trial court should not have excluded defendant’s family members from the trial during the testimony of the undercover officers:

Following a Hinton hearing at which there was no testimony that defendant or any member of his family threatened or otherwise posed a threat to either of two testifying undercover officers, defense counsel requested that family members be permitted to attend the officers’ trial testimony. Although the prosecutor made no argument in opposition to this application, the court denied it, without making any supporting findings. This was error. “[A]n order of closure that does not make an exception for family members will be considered overbroad, unless the prosecution can show specific reasons why the family members must be excluded” … . We reject the People’s argument that the defense was obligated to identify specific family members who might attend the proceedings, in the absence of any request by the prosecutor or the court that it do so, as incompatible with the “presumption of openness” that applies in this context … . Moreover the court did not ask any questions to clarify which family members wanted to attend before issuing the closure order. People v Rivera, 2020 NY Slip Op 01035, First Dept 2-13-20

 

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QUESTION OF FACT WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIES IN THIS MEDICAL MALPRACTICE CASE; QUESTION OF FACT WHETHER THE MEDICAL CENTER IS LIABLE UNDER THE OSTENSIBLE AGENCY DOCTRINE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined: (1) there is a question of fact whether the doctrine of res ipsa loquitur applied in this medical malpractice action; (2) the lack of informed consent cause of action should be reinstated; (3) there is a question of fact whether the medical center (NYU Langone) is liable for the anesthesiologist (Coopersmith) who performed the pre-surgery nerve block pursuant to the doctrine of ostensible agency; and (4) the action against the doctor who assisted Dr. Coopersmith was properly dismissed because she didn’t exercise any independent judgment in the procedure:

… [W]e agree with plaintiff that she sufficiently established that the doctrine of res ipsa loquitur applies to her cause of action for medical malpractice. The parties’ experts disagreed as to whether plaintiff’s injury ordinarily occurs in the absence of negligence, raising an issue of fact on that point … . Plaintiff also established that defendants were in control of all instruments used in the nerve block, and plaintiff’s actions did not contribute to her injuries … . To the extent that defendants’ expert opined that post-operative symptoms and image studies were not consistent with needle trauma to a nerve, that opinion did not refute plaintiff’s assertion of res ipsa loquitur because it failed to identify any other possible cause of plaintiff’s plexopathy, let alone a more probable cause … . Moreover, defendants’ expert did not dispute that plaintiff sus tained nerve damage and did not opine that the nerve damage pre-existed the surgery. …

We agree with defendants that they were entitled to a determination that no actual agency existed between NYU Langone and Dr. Coopersmith because NYU Langone did not employ or otherwise control Dr. Coopersmith. However, we find that an issue of fact exists as to whether NYU Langone could be held liable for Dr. Coopersmith’s actions in his treatment of plaintiff through ostensible agency. It is undisputed that plaintiff was treated by Dr. Feldman [the surgeon] because she sought out his care. However, Dr. Feldman testified that he did not choose which anesthesiologist at NYU Langone would perform the nerve block on plaintiff, instead an anesthesiologist was assigned by the Department of Anesthesia. A jury could reasonably infer from this testimony that Dr. Coopersmith was provided by NYU Langone and that plaintiff reasonably believed that Dr. Coopersmith was acting on NYU Langone’s behalf … . Sklarova v Coopersmith, 2020 NY Slip Op 01033, First Dept 2-13-20

 

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NEW YORK DOES NOT RECOGNIZE SPOLIATION OF EVIDENCE AS AN INDEPENDENT TORT, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s complaint should have been dismissed for failure to state a cause of action. Plaintiff was injured falling off a forklift platform. Plaintiff alleged defendants negligently destroyed or failed to preserve the forklift platform, thereby making it impossible to sue the manufacturer. The Second Department held that there is no such tort:

Here, the plaintiff’s sole purported cause of action seeks to recover for the negligent impairment of an employee’s right to sue, which is, in effect, an allegation of spoliation … , and New York does not recognize spoliation of evidence as an independent tort. Lopez-Lobo v U.S. Nonwovens Corp., 2020 NY Slip Op 01053, Second Dept 2-13-20

 

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INJURY CAUSED BY CEMENT BOARDS FALLING FROM AN A-FRAME CART COVERED UNDER LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined injury caused by cement boards falling from an A-frame cart was covered under Labor Law 240 (1):

The evidence shows that plaintiff and his coworkers were moving an A-frame cart, loaded with approximately 16 cement boards measuring 4′ x 8′ in dimension and weighing approximately 100 pounds each, when its wheel became stuck and the cart would not move. Plaintiff and his coworkers then pushed and pulled the cart to free it, and, in the process, the cart and the boards suddenly tipped, with the boards landing on plaintiff’s left leg. Given the weight and height of the cement boards on the A-frame cart, the elevation differential was within the purview of the statute … . Touray v HFZ 11 Beach St. LLC, 2020 NY Slip Op 01029, First Dept 2-13-20

 

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MOTIONS FOR SEVERANCE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motions for severance should have been granted. The lawsuit was brought by healthcare employers against several insurance brokers to recover assessments levied by the Workers’ Compensation Board for a $220 million shortfall in a Workers’ Compensation trust:

The Supreme Court improvidently exercised its discretion in denying those branches of the appellants’ motions which were pursuant to CPLR 603 to sever the action insofar as asserted against them. While all of the plaintiffs are seeking to recover damages pursuant to the same theories of liability, each separate plaintiff is asserting causes of action only against its respective broker with which it had a client-broker relationship. The appellants have persuasively argued that individual issues predominate, concerning particular circumstances applicable to each plaintiff and to each appellant … . In addition, a single trial of all the causes of action would prove unwieldy and confuse the trier of fact … . Accordingly, in the interests of convenience and avoidance of prejudice, the court should have granted … . Belair Care Ctr., Inc. v Cool Insuring Agency, Inc., 2020 NY Slip Op 01040, Second Dept 2-13-20

 

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DEFENDANT CONSTRUCTION MANAGER WAS A STATUTORY AGENT OF THE OWNER AND WAS THEREFORE LIABLE FOR PLAINTIFF’S INJURY PURSUANT TO LABOR LAW 240 (1); THE ARTICULATING LIFT USED BY PLAINTIFF WAS A SAFETY DEVICE WHICH FAILED TO ADEQUATELY PROTECT AGAINST AN ELEVATION-RELATED RISK (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant which entered a construction management agreement with the Port Authority was a statutory agent of the Port Authority and was liable for plaintiff’s injury pursuant to Labor Law 240 (1). Plaintiff was injured when he lost control of an articulating lift when backing down a ramp:

Plaintiffs demonstrated that defendants can be held liable as a statutory “agent” of the Port Authority based on the contract documents that they submitted on the motion. Those documents impose not only the responsibility to coordinate the work but also a broad responsibility for “overall job site safety,” including the implementation of the Port Authority’s Safety Health and Environmental Program, as well as measures to ensure worker safety, thereby granting the construction manager “the ability to control the activity which brought about the injury” … .

Moreover, plaintiffs are entitled to summary judgment on the Labor Law § 240(1) claim. As the motion court found, plaintiff’s testimony established prima facie that the articulating lift was a safety device and that it’s failure to protect him from the elevation-related risk that he faced was the proximate cause of his injury. Lind v Tishman Constr. Corp. of N.Y., 2020 NY Slip Op 01026, First Dept 2-13-20

 

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ALTHOUGH DOCUMENTARY EVIDENCE IS ADMISSIBLE NOTWITHSTANDING THE DEAD MAN’S STATUTE, HERE THE DECEDENT’S SIGNATURE ON THE GUARANTY WAS NOT AUTHENTICATED BY SOMEONE OTHER THAN AN INTERESTED WITNESS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE GUARANTY SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the personal guaranty signed by decedent was not authenticated. Therefore plaintiff was not entitled to summary judgment on the guaranty:

We modify, however, with respect to the cause of action under the personal guaranty purportedly signed by the decedent, because although documentary evidence is admissible notwithstanding the dead man’s statute, it must be “authenticated by a source other than an interested witness’s testimony” … . Having failed to authenticate the guaranty through “a source other than an interested witness’s testimony,” plaintiff was not entitled to summary judgment on the guaranty. Galpern v Air Chefs, L.L.C., 2020 NY Slip Op 01021, First Dept 2-13-20

 

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DESPITE THE BRAKE-FAILURE ALLEGATION IN THIS REAR-END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO RAISE A QUESTION OF FACT ABOUT BRAKE FAILURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. Defendant did not raise a question of fact about the brake-failure allegation:

” … [D]efendants’ contention that their vehicle’s brake failure was the cause of the accident was insufficient to raise a triable issue of fact as to liability. Defendants failed to satisfy the two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that they exercised reasonable care to keep the brakes in good working order … .

Summary judgment in plaintiff’s favor is not premature. Both plaintiff and defendant driver had firsthand knowledge of the accident, and submitted affidavits. However, defendants did not submit any evidence concerning maintenance of their vehicle. Defendants only speculate that there may be facts supporting their opposition to plaintiff’s motion which exist but cannot yet be stated … . Quiros v Hawkins, 2020 NY Slip Op 01020, First Dept 2-13-20

 

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ALTHOUGH PLAINTIFF BANK DID NOT PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, THE DEFENDANT DID NOT PROVE PLAINTIFF DID NOT COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department determined that, although plaintiff bank did not prove compliance with the notice requirements of RPAPL 1304, defendant did not prove plaintiff failed to comply with the notice requirements of RPAPL 1304:

“Even in the face of a plaintiff’s failure to establish, prima facie, that a notice was properly mailed on a motion for summary judgment on the complaint, . . . a defendant still has to meet its burden, on a cross motion for summary judgment dismissing the complaint, of establishing that the condition precedent was not fulfilled” … . …

… [W]hile RPAPL 1304 provides that “[t]he notices required by this section shall be sent . . . to the last known address of the borrower, and to the residence that is the subject of the mortgage” (RPAPL 1304[2]), the defendant did not allege, or provide any evidence, that the lender knew her address had changed. Wells Fargo Bank, N.A. v Tricario, 2020 NY Slip Op 01112, Second Dept 2-13-20

 

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MOTION TO EXTEND THE TIME TO SERVE DEFENDANT SHOULD HAVE BEEN GRANTED, DESPITE THE FACTS THAT THE FORECLOSURE ACTION HAD BEEN DISMISSED AND THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT).

The Second Department, in an extensive opinion by Justice Leventhal, over a two-justice dissent, reversing Supreme Court, determined Supreme Court should have granted plaintiff’s motion to extend the time to serve defendant pursuant to CPLR 306-b, despite the facts that the action had been dismissed and the statute of limitations had run. The action had been dismissed after a hearing to determine whether defendant had been served in this foreclosure action. At the time of the hearing the process server had died and plaintiff could not, therefore, meet its burden of proof:

… [W]e agree with the plaintiff that an extension of time to serve the defendant with the summons and complaint was warranted in the interest of justice. The action was timely commenced in December 2009, based on the defendant’s alleged default that year in paying his indebtedness that was secured by the mortgage. The statute of limitations, however, had expired by the time the plaintiff moved pursuant to CPLR 306-b to extend the time for service … . The defendant had actual notice of the controversy. The Supreme Court, in its order dated December 17, 2013, wrote, among other things, that the defendant “is prepared to say anything and to conceal anything to stave off a foreclosure sale” and that “[i]t is clear that [the defendant] has been well-aware that a foreclosure action was pending. (The day before a previously-scheduled foreclosure sale, [the defendant] filed a Chapter 13 bankruptcy petition).” The plaintiff also demonstrated the existence of a potentially meritorious cause of action, and the lack of identifiable prejudice to the defendant attributable to the delay in service … . Moreover, as the interest of justice standard permits consideration of “any other relevant factor” … , we take into account that the process server’s death prior to the hearing on the issue of service hampered the plaintiff’s ability to meet its burden of proof at that hearing. State of New York Mtge. Agency v Braun, 2020 NY Slip Op 01107, Second Dept 2-13-20

 

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