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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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PETITIONERS’ EMPLOYMENT DISCRIMINATION AND RETALIATION CLAIMS UNDER THE STATE AND CITY HUMAN RIGHTS LAW AGAINST THE NYC DEPARTMENT OF TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined petitioners’ retaliation and discrimination claims against the NYC Department of Transportation (DOT) should not have been dismissed. The facts of the case are too complex to fairly summarize here:

It is undisputed that petitioners sufficiently stated the first two elements of an employment discrimination claim on behalf of Bharat and Kubair under both the State and City HRLs[Human Rights Law’s] — namely, that they are both members of a protected class and were well qualified for their respective positions …. Petitioners also sufficiently stated the third element — that they were adversely (State HRL) or differently treated (City HRL) …. In particular, petitioners allege that DOT’s failure to upgrade Bharat to SMME II status (a position with greater salary and pension benefits) was discriminatory conduct as a less qualified white employee received the upgrade. * * *

Bharat’s allegations are sufficient, at the pleading stage, to permit the inference that the reason he was not awarded an upgrade and the determination was issued against him was because of his involvement in the prior federal action against the DOT, which resulted in the issuance of a consent decree that subjected the DOT to significant damages … . The petition provides additional support for an inference of retaliation in the fact that an employee with less experience was upgraded over Bharat shortly after the consent decree was issued. Matter of Local 621 v New York City Dept. of Transp., 2019 NY Slip Op 08014, First Dept 11-6-19

 

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PLAINTIFF’S EMPLOYMENT DISCRIMINATION ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s employment discrimination action could go forward:

Plaintiff, Stevenson Petit, commenced this employment discrimination action on or about July 1, 2016, against his former employer, the Department of Education (DOE). Plaintiff was hired by the DOE in 1994 as a paraprofessional. In 2010, he became a guidance counselor at the Tilden Educational Campus and received tenure.

Plaintiff, a 55-year-old black male from Haiti, who alleges that he studied voodoo, but does not practice it, asserts that he was discriminated against by the principal of the school, Marina Vinitskaya (a Caucasian woman), due to his Haitian origin and her belief that he is a voodoo priest. Since his hiring in 2010, plaintiff had no performance issues until Vinitskaya became the school’s principal in the 2008-2009 school year. He asserts that Principal Vinitskaya then began creating a hostile work environment, by targeting him due to his Haitian origin. Plaintiff asserts that Principal Vinitskaya falsely accused him of misconduct, subjecting him to an Office of Special Investigations investigation, during which Vinitskaya falsely accused plaintiff of being a voodoo priest.

Plaintiff also asserts that Principal Vinitskaya assigned him to an unsanitary basement office upon his return to Tilden Educational Campus from a temporary administrative office assignment. Plaintiff asserts that Principal Vinitskaya did this maliciously in disregard of his seniority even though there were other available offices. Reportedly, both plaintiff and his union submitted administrative complaints to no avail. Ultimately, Principal Vinitskaya demoted plaintiff to the position of temporary substitute, assigned on a weekly basis to different schools.

Crediting plaintiff’s allegations for the purpose of this pre-answer, pre-discovery motion to dismiss the complaint …, we find that the complaint states a causes of action for discrimination, retaliation and hostile work environment in violation of the New York State and New York City Human Rights laws. These allegations are sufficient to give defendant DOE “fair notice” of the nature of plaintiff’s claims and their grounds … . Petit v Department of Educ. of the City of N.Y., 2019 NY Slip Op 07990, First Dept 11-7-19

 

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DEFENDANT IN THIS FORECLOSURE ACTION PRESENTED SUFFICIENT EVIDENCE REBUTTING THE PROCESS SERVER’S AFFIDAVIT TO WARRANT A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive concurring memorandum, determined that defendant made a sufficient showing to warrant a hearing on whether she was served with the summons and complaint in this foreclosure action:

Although the defendant did not deny having actual notice of the action, “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” … . “Service is only effective . . . when it is made pursuant to the appropriate method authorized by the CPLR. Actual notice alone will not sustain the service or subject a person to the court’s jurisdiction [when there has not been compliance with] prescribed conditions of service” … . * * *

The defendant rebutted the process server’s affidavit of service through her specific and detailed affidavit, in which she averred that “[t]he [a]ffidavit of service falsely states that a copy of the Summons and Complaint was affixed to my door.” The defendant’s affidavit set out in great detail that the defendant was at home each time that the process server purportedly attempted service, as she was recuperating from a kidney transplant. The defendant averred that April 3, 2009, which happened to be her birthday, was a Friday, and that as an observant Jew she did not leave her home. The defendant submitted a Sabbath calendar printout showing that the sun did not set until 8:04 p.m. on April 4, 2009, approximately one hour after the process server purportedly affixed the summons and complaint to her door. The defendant averred that she never heard anyone knock at her door or ring her doorbell and that, despite various medical problems, she has no issues with her hearing. The defendant averred that her daughter came to pick her up for dinner at 8:30 p.m. on April 4, 2009, and that upon leaving her home, she did not see any documents affixed to her door. The foregoing detailed averments were sufficient to rebut the process server’s affidavit and to warrant a hearing on the issue of whether service was properly made … . HSBC Bank USA, N.A. v Assouline, 2019 NY Slip Op 07891, Second Dept 11-6-19

 

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