You are here: / DEFENDANT DOCTOR WAS PROPERLY ALLOWED TO TESTIFY ABOUT HIS USUAL PRACTICE...

Search Results

/ , ,

DEFENDANT DOCTOR WAS PROPERLY ALLOWED TO TESTIFY ABOUT HIS USUAL PRACTICE OR HABIT IN PERFORMING KNEE REPLACEMENT SURGERY (SECOND DEPT).

The Second Department, affirming the defense verdict in this medical malpractice action, determined that defendant doctor (Baez) was properly allowed to testify about his usual practice or “habit” in performing a knee replacement:

Baez’s habit testimony as to how he performs knee replacement surgeries, including that the methodology for measuring and dissecting 10 millimeters of the patient’s patella did not vary from patient to patient, that the manner in which he performed knee replacement surgeries was done in a deliberate, identical, and repetitive manner on every patient, and that he was in complete control of the circumstances concerning the measuring and dissection of the patient’s patella, was properly admitted by the Supreme Court … . The evidence supported a finding that Baez’s surgical techniques  a deliberate and repetitive practice by a person in complete control of the circumstances … . Heubish v Baez, 2019 NY Slip Op 08826, Second Dept 12-11-19

 

/ , , ,

THE DOCTRINE OF THE LAW OF THE CASE PRECLUDED CONSIDERATION OF WHETHER THE BANK COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304; THE ISSUE HAD BEEN DETERMINED IN THE BANK’S FAVOR AT THE SUMMARY JUDGMENT STAGE AND SHOULD NOT HAVE BEEN RECONSIDERED, SUA SPONTE, WHEN THE BANK MOVED FOR A JUDGMENT OF FORECLOSURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the doctrine of the law of the case precluded the court from sua sponte, considering whether the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 were met by the bank in this foreclosure action. The issue was determined in the bank’s favor in the initial summary judgment proceeding and should not have been considered again when the bank moved to confirm the referee’s report and for a judgment of foreclosure:

… [T]he defendants raised the issue of noncompliance with RPAPL 1304 in their answer, the plaintiff presented evidence of its compliance with the statute on its motion, inter alia, for summary judgment on the complaint, and, in granting that motion, the Supreme Court decided the issue in the plaintiff’s favor. Therefore, pursuant to the doctrine of law of the case … , the court was precluded from reconsidering the issue on the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale … . Moreover, since the defendants did not oppose the plaintiff’s motion to confirm the referee’s report and, therefore, did not raise the issue of the plaintiff’s noncompliance with RPAPL 1304 in opposition to the motion, the court should not have raised the issue sua sponte … . Wells Fargo Bank, N.A. v Morales, 2019 NY Slip Op 08891, Second Dept 12-11-19

 

/

SUPREME COURT SHOULD NOT HAVE DETERMINED THE MERITS OF THIS ACTION FOR A DECLARATORY JUDGMENT ON A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss a declaratory judgment action should have been denied. Supreme Court had issued a declaratory judgment in favor of the moving party (the county). This is a class action contending that the imposition of a driver responsibility fee on red-light camera violations is illegal:

The plaintiff commenced this putative class action against Nassau County and the Nassau County Traffic and Parking Violations Agency (hereinafter together the County) seeking, inter alia, a judgment declaring that the imposition of a driver responsibility fee on a red-light camera violation is “inconsistent with New York’s general law, or is otherwise ultra vires, preempted, unconstitutional, or void as a matter of law.” Prior to interposing an answer, the County moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The Supreme Court, treating that branch of the County’s motion as one for a declaration in the County’s favor with respect to the first cause of action, granted that branch of the motion to the extent of declaring that the imposition of a driver responsibility fee on a red-light camera violation was a proper exercise of the County’s power to charge and collect administrative fees and, based on that declaration, directed dismissal of the remainder of the complaint for failure to state a cause of action. We reverse. …

“… [I]f the record before the motion court is insufficient to resolve all factual issues such as the rights of the parties cannot be determined as a matter of law, a declaration upon a motion to dismiss is not permissible” … . Guthart v Nassau County, 2019 NY Slip Op 08825, Second Dept 12-11-19

 

/ ,

ALTHOUGH DEFENDANT MAY HAVE STOPPED AT A STOP SIGN, HE NEVERTHELESS FAILED TO YIELD; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. The fact that defendant (Maicol) allegedly stopped at a stop sign before pulling out into plaintiff’s path did not raise a question of fact:

… [T]he plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that Maicol’s negligence in failing to yield the right-of-way was a proximate cause of the accident (see Vehicle and Traffic Law §§ 1142[a]; 1172[a] … ). Moreover, the plaintiff’s case was buttressed by Maicol’s admission in the police report to the effect that he failed to see the plaintiff’s vehicle prior to the collision … . …

That Maicol stopped at the stop sign was not dispositive, as he nevertheless failed to yield … . The assertions in the defendants’ counsel’s affirmation that the plaintiff may have been speeding or negligent in failing to take evasive action were speculative … . In any event, to be entitled to summary judgment on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case … . Ashby v Estate of Encarnacion, 2019 NY Slip Op 08815, Second Dept 12-12-19

 

/

THE NURSING HOME SUED BY DECEDENT’S DAUGHTER AS EXECUTOR OF HER MOTHER’S ESTATE BROUGHT A THIRD-PARTY ACTION AGAINST THE DAUGHTER ALLEGING HER MOTHER’S INJURIES DID NOT RESULT FROM A FALL AT THE NURSING HOME BUT RATHER FROM THE DAUGHTER’S NEGLIGENT FAILURE TO FOLLOW THE NURSING HOME’S INSTRUCTIONS FOR THE HOME CARE AND SUPERVISION OF HER MOTHER; UNDER THE FACTS OF THIS CASE THERE EXISTED NO DUTY OF CARE UNDER WHICH THE DAUGHTER COULD BE HELD LIABLE FOR CONTRIBUTION BY THE NURSING HOME (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Hinds-Radix, reversing Supreme Court, determined plaintiff (Santoro), the daughter of the decedent and the executor of her mother’s estate, did not owe a duty of care to her infirm mother such that Santoro could be sued for contribution by the nursing home her mother’s estate was suing. The decedent was released from the nursing home to reside with Santoro. Subsequently Santoro, as executor, sued the nursing home based upon her mother’s fall at the facility. The nursing home then brought a third-party action against Santoro alleging that the decedent’s injuries stemmed from a fall at Santoro’s home resulting from Santoro’s negligent care and supervision of her mother. The opinion discusses contribution versus indemnification and all possible theories which might impose a duty upon Santoro, but ultimately held no extant duty was applicable to these facts:

There is no common-law duty of a child to care for a parent … . While a statutory duty may be imposed in derogation of common law, the defendant here does not rely on any such statute. However, a duty may also be imposed by contract … . “The general rule is that, where the relationship between the parties is that of parent and child, the law presumes that where there is no proof of a contract under which the services were performed . . . they were rendered gratuitously” … .​ …

… [A] party also may assume a duty to a third party based upon gratuitous conduct. …  [T]he question is whether [the] defendant’s conduct placed [the] plaintiff in a more vulnerable position than [the] plaintiff would have been in had [the] defendant done nothing'” … . When determining whether a cause of action exists, the question is whether the alleged wrongdoer has “launched a force or instrument of harm,” not whether the alleged wrongdoer “stopped where inaction is at most a refusal to become an instrument of good” … . In this case, the defendant alleged that Santoro failed to act in accordance with its instructions—which, in its view, would make her an instrument of good—not that she placed the decedent in a more vulnerable position than if she had done nothing.

Further, a duty may arise ” where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid'” … . However, the defendant cites no duty imposed in derogation of common law. Further, it is not alleged that Santoro secluded the decedent while she was in a helpless state, preventing others from rendering aid. …

The defendant would impose a new duty on those who live with infirm individuals “to use reasonable care” and “be liable for harm caused by the failure to use reasonable care by affirmative act or omission” … . The imposition of such an obligation carries with it public policy considerations of possible negative consequences, since such a general obligation could discourage persons from residing with the infirm, discourage children and infirm parents from living together, and discourage the infirm from attempting to resume independent living … . The circumstances alleged here “provide no justification for creating” such a duty … . Santoro v Poughkeepsie Crossings, LLC, 2019 NY Slip Op 08883, Second Dept 12-11-19

 

/ , ,

PLAINTIFFS (CUPID AND ROBINSON) DEMONSTRATED DEFENDANT DRIVER WAS NEGLIGENT AND HIS NEGLIGENCE CAUSED THE TRAFFIC ACCIDENT; DEFENDANTS’ ALLEGATION THAT PLAINTIFF CUPID, NOT PLAINTIFF ROBINSON, WAS DRIVING THE CAR DID NOT CREATE A RELEVANT QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this traffic accident case should have been granted. The evidence demonstrated defendant driver (Paul) went through a red light and failed to see what he should have seen. The defendants’ argument that the plaintiffs claimed that Cupid was driving when in fact the other plaintiff, Robinson, was driving was irrelevant:

The evidence submitted in support of Robinson’s motion demonstrated, prima facie, that Paul entered the subject intersection against a red light, in violation of Vehicle and Traffic Law § 1111(d) … . That evidence further showed that Paul failed to see the plaintiffs’ vehicle before colliding with it in the middle of the intersection, thus demonstrating that Paul failed to see that which he should have seen through the proper use of his senses. Contrary to the defendants’ contention in the Supreme Court, Robinson was not required to demonstrate her freedom from comparative fault in order to establish her prima facie entitlement to summary judgment on the issue of liability … .

Thus, Robinson made a prima facie showing of entitlement to judgment as a matter of law on the issue of the defendants’ liability by demonstrating that Paul was negligent and that his negligence was a proximate cause of the subject accident and her resulting injuries … . In opposition, the defendants failed to raise a triable issue of fact. On the facts presented here, whether Robinson or Cupid was driving their vehicle is not germane to the issue of the defendants’ liability. Robinson v City of New York, 2019 NY Slip Op 08881, Second Dept 12-11-19

 

/ , ,

PROSECUTOR’S UNTRUE CLAIM, MADE IN SUMMATION, THAT DEFENDANT’S DNA WAS FOUND ON THE WEAPON USED IN THE SHOOTING REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the prosecutor’s untrue claim, made in summation and immediately objected to, that defendant’s DNA was found on the weapon used to shoot the victim, required a new trial:

… [T]he prosecutor’s comments during summation that the defendant’s DNA was found on the weapon used to shoot the victim had no evidentiary support in the record. The remarks, which were promptly objected to by defense counsel, were highly prejudicial and ultimately deprived the defendant of his right to a fair trial … , particularly as the Supreme Court refused to give any curative instruction or grant a mistrial based upon the prosecutor’s improper comments. People v Day, 2019 NY Slip Op 08858, Second Dept 12-11-19

 

/ , , ,

MALPRACTICE ACTION AGAINST A DOCTOR PROPERLY SEVERED FROM A NEGLIGENT HIRING AND RETENTION ACTION AGAINST THE DOCTOR’S EMPLOYER (SECOND DEPT).

The Second Department determined the action against a doctor (Wishner) for medical malpractice was properly severed from an action against the doctor’s employer (HMG) for negligent training, supervision, hiring and retention. Evidence the doctor had negligently treated another patient would not be admissible in the malpractice action but would be admissible in the action against the employer:

“In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue” (CPLR 603). Here, the Supreme Court providently exercised its discretion in granting that branch of Wishner’s motion which was to sever the causes of action asserted against HMG alleging negligent training, supervision, hiring, and retention from the causes of action premised on medical malpractice. In general, “it is improper to prove that a person did an act on a particular occasion by showing that he or she did a similar act on a different, unrelated occasion” … . Thus, generally, evidence of prior unrelated bad acts of negligent treatment of other patients, even if relevant, constitutes impermissible propensity evidence that lacks probative value and “has the potential to induce the jury to decide the case based on evidence of [a] defendant’s character” … . Mullen v Wishner, 2019 NY Slip Op 08850, Second Dept 12-11-19

 

/ ,

OUT-OF-POSSESSION LANDLORD ONLY RESPONSIBLE FOR STRUCTURAL REPAIRS; THE ONE-STEP RISER WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS NOT A STRUCTURAL ELEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the out-of-possession landlord (Steph-Leigh) was not responsible for the repair of a one-step riser inside a warehouse, which allegedly caused plaintiff’s slip and fall:

“An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct'” … . Here, where the complaint sounds in common-law negligence and the pleadings do not allege the violation of a statute, Steph-Leigh demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it was an out-of-possession landlord that was not bound by contract or course of conduct to repair the allegedly damaged step … . Although the lease obligated Steph-Leigh to make necessary structural repairs to the interior of the premises, contrary to the plaintiff’s contentions, the allegedly cracked and eroded single-step riser was not a structural element of the warehouse for which Steph-Leigh was contractually responsible … . Michaele v Steph-Leigh Assoc., LLC, 2019 NY Slip Op 08844, Second Dept 12-11-19

 

/ , , ,

NEGLIGENT CONCEALMENT CAUSE OF ACTION AGAINST HOSPITAL ALLEGING THE FAILURE TO DISCLOSE BILLING PRACTICES SHOULD HAVE BEEN DISMISSED; GENERAL BUSINESS LAW 349 CAUSE OF ACTION PROPERLY SURVIVED (SECOND DEPT).

The Second Department determined the complaint did not state a cause of action for negligent concealment/misrepresentation, but did state a cause of action for violation of General Business Law 349. The plaintiff alleged defendant hospital failed to to disclose material facts about the hospital’s billing practices for emergency treatment:

As a threshold matter, while the parties appear to dispute whether the first cause of action should be characterized as one sounding in “negligent concealment” or “negligent misrepresentation,” this is a distinction without a difference. The gravamen of the plaintiff’s allegations are that the hospital negligently failed to disclose material facts to him concerning the hospital’s billing practices. This is a species of negligent misrepresentation based on the omission to disclose material facts … . As a general proposition, “a duty to speak with care exists when the relationship of the parties, arising out of contract or otherwise, [is] such that in morals and good conscience the one has the right to rely upon the other for information” … . Thus, “liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified” … . Contrary to the plaintiff’s contention, the fact that the parties are in a contractual relationship, without more, is insufficient to support the imposition of a duty to speak with care … .

While it cannot be doubted that the relationship between a physician and a patient is one of confidence and trust regarding matters of medical treatment … , we decline to hold that such relationship, and any duty to speak with care that may come with it, also extends to matters of billing having nothing to do with the rendition of medical treatment. …

… [W]e agree with the Supreme Court’s determination that the hospital was not entitled to summary judgment dismissing the General Business Law § 349 cause of action insofar as asserted against it. First, contrary to the hospital’s contention, it was engaged in consumer-oriented activity … . Second, it is possible to engage in deceptive trade practices through omissions as well as affirmative representations … , particularly where, as here, it is alleged that “the business alone possesses material information that is relevant to the consumer and fails to provide this information” … . Third, contrary to the hospital’s contention, there is a triable issue of fact as to whether the plaintiff suffered an injury under General Business Law § 349 … . Krobath v South Nassau Communities Hosp., 2019 NY Slip Op 08838, Second Dept 12-11-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy