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MOTHER ENTITLED TO A HEARING ON WHETHER A CHANGE IN HER CIRCUMSTANCES WARRANTED A RETURN OF HER CHILDREN; CUSTODY OF THE CHILDREN HAD PREVIOUSLY BEEN AWARDED TO RESPONDENT (GREAT AUNT) (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother was entitled to a hearing on whether there had been a change of circumstances warranting the return of the custody of the children to her. Custody had previously been awarded to respondent (great aunt):

Inasmuch as there has been a prior judicial determination of extraordinary circumstances supporting the award of custody to respondent, “the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances” warranting an inquiry whether modification of custody or visitation is in the best interests of the children … . We agree with the mother that Family Court erred in granting respondent’s motion to dismiss the petitions at the close of the mother’s case on the ground that the mother failed to establish a sufficient change in circumstances since entry of the stipulated order … . At the time the prior order of custody and visitation was entered, the mother did not have a vehicle or employment, and she lived with a man who was prohibited by court order from having any contact with the subject children. The mother established that, at the time of the hearing, she owned a car, worked full-time, and no longer lived with or had a relationship with the aforementioned man. Indeed, in its oral decision dismissing the petitions, the court noted that the mother had “improved” herself and that it was “impressed” with her progress. Matter of Heinsler v Sero, 2019 NY Slip Op 08052, Fourth Dept 11-8-19

 

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SEIZURE OF DEFENDANT WAS BASED UPON AN ANONYMOUS TIP, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the relevant convictions, determined the police officer effectively seized defendant by blocking defendant’s car based upon an anonymous tip. The evidence seized from the car should have been suppressed:

The conviction of criminal possession of a weapon in the second degree arises from a police encounter during which an officer received information from an anonymous 911 call that drugs were being sold out of a vehicle. The officer arrived on the scene and observed a legally parked vehicle matching the description given by the anonymous caller and further observed defendant in a fully reclined position in the driver’s seat. The officer parked his patrol car alongside defendant’s vehicle in such a manner as to prevent defendant from driving away and, as the People stipulated in their post-hearing memorandum, the officer thereby effectively seized the vehicle. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure, and thus County Court erred in refusing to suppress both the tangible property seized, i.e., the weapon and marihuana found in the vehicle, and the statements defendant made to the police at the time of his arrest … . Based on the anonymous tip and defendant’s otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach the vehicle and make a common-law inquiry of its occupants ,,, . The officer did not make any “confirmatory observations” of the criminal behavior reported by the 911 caller … and therefore did not have “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” to justify the seizure … . People v Williams, 2019 NY Slip Op 08048, Fourth Dept 11-8-19

 

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THE WAIVER OF INDICTMENT IS JURISDICTIONALLY DEFECTIVE FOR FAILURE TO INCLUDE THE APPROXIMATE TIME OF EACH OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the waiver of indictment was jurisdictionally defective for failure state the approximate time of each offense:

A jurisdictionally valid waiver of indictment must contain, inter alia, the “approximate time” of each offense charged in the superior court information (SCI) … . That requirement is strictly enforced … . ” [S]ubstantial compliance will not be tolerated’ ” … . Here, the waiver of indictment does not contain the approximate time of the offense … . Inasmuch as the SCI also does not contain that information, we need not consider whether to adopt the so-called “single document” rule … . We therefore reverse the judgment, vacate the plea and waiver of indictment, and dismiss the SCI … . People v Denis, 2019 NY Slip Op 08047, Fourth Dept 11-8-19

 

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NOTICE OF INTENT WAS TIMELY AND THE CLAIM WAS NOT JURISDICTIONALLY DEFECTIVE, INMATE’S MEDICAL MALPRACTICE ACTION AGAINST THE STATE REINSTATED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined that the notice of intent was timely and the notice of intent and the claim are not jurisdictionally defective in this medical malpractice action against the state. The claimant was an inmate when he underwent hip replacement surgery. The claim alleged inadequate treatment led to infection, requiring further surgeries. The date of the accrual of the action was tolled by continuous treatment, and some mistakes concerning the nature of the injuries (i.e., left hip versus right hip) did not prejudice the defendant:

Generally, a medical malpractice claim accrues on the date of the alleged malpractice, but the statute of limitations is tolled “until the end of the course of continuous treatment” … . That toll likewise applies to the time periods contained in Court of Claims Act § 10 (3)  … . Here, the record establishes that claimant was receiving ongoing treatment for his left hip replacement during postoperative follow-up visits through June 12, 2014, when he was transported to a hospital for treatment of the infection that developed at the incision site, which had not been diagnosed during those follow-up visits. We thus conclude that the notice of intent, filed and served on August 22, 2012, was timely inasmuch as it was filed and served within ninety days of the accrual of the claim. The fact that the claim listed a different date of the alleged injury than the notice of intent is a matter related to the contents of the documents, not their timeliness.

We recognize that, generally, the failure to treat a condition is not considered continuous treatment so as to toll the statute of limitations … . In such cases, however, there is a lack of awareness of a need for further treatment and thus no concern relating to the interruption of corrective medical treatment …  . Here, claimant was already being treated for the surgical incision that eventually became infected and, therefore, “further treatment [was] explicitly anticipated by both [defendant’s medical staff] and [claimant,] as manifested in form of . . . regularly scheduled appointment[s]” to monitor the incision and remove staples … . Moreover, this is not truly a failure-to-treat case inasmuch as defendant’s employees did, in fact, attempt to treat the incision area by applying ointment and dressing the area. Gang v State of New York, 2019 NY Slip Op 08041, Fourth Dept 11-8-19

 

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ALLOWING LOSS PREVENTION OFFICERS TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO MAY HAVE BEEN ERROR BUT WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

The Fourth Department determined defense counsel’s failure to object to testimony of loss prevention officers identifying defendant in a surveillance video was not demonstrated to amount to ineffective assistance:

Although we agree with defendant that there is no basis in the record to conclude that the loss prevention officers who gave testimony identifying defendant as an individual depicted in the surveillance video were more likely to correctly identify defendant from the video than the jury … , we further conclude that defendant failed to “demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcoming[]” in failing to object to the admission of that testimony … . People v Hines, 2019 NY Slip Op 08032, Fourth Dept 11-8-19

 

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PLAINTIFF FELL WHEN HE ATTEMPTED TO LEAVE A TRAILER THROUGH THE EXIT WHICH DID NOT HAVE A STAIRWAY ATTACHED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant’s motion for summary judgment on the Labor Law 240 (1)  and 200 causes of action should not have been granted on the ground plaintiff’s action was the sole proximate cause of his injury. There were two exits to the trailer plaintiff was in, one had a stairway attached and one did not. Plaintiff fell to the ground when he attempted to use the exit with no stairway:

Defendants failed to establish as a matter of law that plaintiff’s actions were the sole proximate cause of the accident, i.e., that there was a staircase by which plaintiff could have exited the trailer, that he knew that a staircase was available and that he was expected to use it, that he chose for “no good reason” not to use it and that, if he had not made that choice, he would not have been injured … . For the same reason, we conclude that the court erred in granting defendants’ motion and cross motion with respect to the claims under Labor Law § 200 and common-law negligence … . Dziadaszek v Legacy Stratford, LLC, 2019 NY Slip Op 08029, Fourth Department 11-8-19

 

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SUPPORT MAGISTRATE SHOULD NOT HAVE ALLOWED FATHER’S ATTORNEY TO WITHDRAW WITHOUT NOTICE TO FATHER AND SHOULD NOT HAVE PROCEEDED IN FATHER’S ABSENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Support Magistrate’s findings should not have been confirmed because the Support Magistrate allowed father’s attorney to withdraw without notice to father and proceeded in father’s absence:

… [T]he Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client . . . [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” … . Here, the father’s attorney did not make a written motion to withdraw; rather, counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321 (b) (2) renders the Support Magistrate’s finding of default improper … . Matter of Gonzalez v Bebee, 2019 NY Slip Op 08027, Fourth Dept 11-8-19

 

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QUESTION OF FACT WHETHER THE “DANGER INVITES RESCUE” DOCTRINE APPLIED; PLAINTIFF ALLEGEDLY HURT HER BACK TRYING TO PREVENT A PATIENT FROM FALLING WHEN DEFENDANT’S EMPLOYEE IMPROPERLY USED A HOYER LIFT TO TRANSFER THE PATIENT FROM A WHEEL CHAIR TO A BED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the “danger invites rescue” doctrine applied. One of defendant’s employees tried to use a Hoyer lift to transfer the patient plaintiff was accompanying from a wheel chair to a bed. The lift began to tip over and plaintiff allegedly hurt her back trying to prevent the patient from falling:

… [T]he court erred in granting the motion with respect to the claim for negligence based on the “danger invites rescue” doctrine (rescue doctrine) … , and we therefore modify the order accordingly. That “doctrine imposes liability upon a party who, by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid’ ” … , on the ground that “[t]he wrong that [*2]imperils life is a wrong to the imperilled victim . . . [and] also to his [or her] rescuer” … . For the rescue doctrine to apply, “it is sufficient that [the] plaintiff held a reasonable belief of imminent peril of serious injury to another, and it matters not that the peril feared did not materialize” … .

Here, in support of its motion, defendant submitted, inter alia, plaintiff’s deposition testimony wherein she testified that she informed defendant’s employee that two people were needed to move the patient onto the bed using the Hoyer lift, but the employee insisted on using the lift alone and did so in a manner that caused the lift to tilt which, in turn, caused the patient to begin to fall off of it. We conclude that the evidence submitted by defendant in support of its motion failed to establish that “plaintiff’s rescue efforts were unreasonable as a matter of law or that plaintiff’s actions were so rash under the circumstances as to constitute an intervening and superseding cause’ of [her] alleged injuries” … . Payne v Rome Mem. Hosp., 2019 NY Slip Op 08024, Fourth Dept 11-8-19

 

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DEFENDANT DRIVER STRUCK A DISABLED CAR WHICH WAS SIDEWAYS IN THE LEFT LANE OF A HIGHWAY; THE CAR WAS BLACK AND THE ACCIDENT HAPPENED AT NIGHT IN A STEADY RAIN; DEFENDANT DRIVER CLAIMED TO BE GOING THE SPEED LIMIT, 65 MPH; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE EMERGENCY DOCTRINE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined defendants’ (Grice defendants’) motion for summary judgment in this traffic accident case was properly  denied. Defendant driver, who allegedly was travelling at the speed limit, 65 mph,  struck a disabled car which was sideways in the left lane of a highway. The car was black and the accident happened at night when it was raining. Defendants argued the emergency doctrine applied:

Contrary to the Grice defendants’ contention, their submissions failed to establish as a matter of law that defendant was confronted with a sudden and unexpected emergency situation to which he did not contribute. Although the accident occurred at night and the disabled vehicle was black and did not have its headlights on, the subject area of the highway was not curved and instead was straight and level with no permanent view obstructions or roadway defects to prevent defendant from perceiving the disabled vehicle. In addition, defendant testified at his deposition that he could see the “standard distance” with his headlights illuminating the roadway, yet he was unable to provide a reason why he did not observe the disabled vehicle prior to impact … . The fact that the disabled vehicle was positioned directly ahead of defendant on such an area of the highway with the headlights of defendant’s vehicle illuminating the roadway, “considered in light of [defendant’s] conceded failure to see anything prior to the impact, and his failure to take any steps to avoid the collision . . . , calls into question [his] testimony concerning the speed of his vehicle and his attentiveness as he drove” … . Moreover, inasmuch as the Grice defendants’ submissions established that the subject area of the highway was not well lit, that it was raining steadily rather than merely precipitating lightly, and that the highway was wet, we conclude that there is an issue of fact whether defendant, who testified that he was driving at the posted speed limit of 65 miles per hour, was nonetheless operating the vehicle at a speed greater than was reasonable and prudent under the conditions … . “If [a trier of fact] determines that [defendant’s] speed was unreasonable under the existing weather and road conditions, [the trier of fact] could also conclude that [defendant’s] own unreasonable speed was what deprived him of sufficient time to avoid the collision, thereby preventing him from escaping liability under the emergency doctrine” … . White v Connors, 2019 NY Slip Op 08017, Fourth Dept 11-8-19

 

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DEFENDANT ENTITLED TO A HEARING ON WHAT SHOULD BE REDACTED FROM THE PRESENTENCE REPORT BUT IS NOT ENTITLED TO RESENTENCING (FOURTH DEPT).

The Fourth Department determined defendant in this manslaughter case was entitled to a hearing to determine what information should be redacted from the presentence report. However she was not entitled to resentencing:

Defendant … contends that this matter should be remitted for a conference or summary hearing to determine what information should be redacted from the presentence report. We agree, and we note that the People do not oppose remittal for that purpose. The record establishes that defendant sent a letter to County Court objecting to certain portions of the report, including references to her failure to cooperate with law enforcement and to her invocation of her right to counsel. At sentencing, the court acknowledged the objections and indicated that it agreed with some, but not all, of them. The court, however, failed to articulate which portions should be redacted. Accordingly, because “defendant was not properly afforded an opportunity to challenge the contents of the presentence report” … , we hold the case and remit the matter to County Court for further proceedings in accordance with our decision.

To the extent that defendant contends that she is entitled to be resentenced based on the alleged errors in the presentence report, we reject that contention inasmuch as there is no indication that the court relied on the alleged improper information contained in the report in sentencing her … . People v Ferguson, 2019 NY Slip Op 08016, Fourth Dept 11-8-19

 

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