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ALLEGED ASSAULT BY DOCTOR WAS OUTSIDE THE SCOPE OF THE DOCTOR’S EMPLOYMENT BY DEFENDANT HOSPITAL, THE ACTION AGAINST THE HOSPITAL PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR SHOULD HAVE BEEN DISMISSED, TIME FOR SUMMARY JUDGMENT MOTION STARTED ANEW AFTER THE NOTE OF ISSUE WAS VACATED, FAILURE TO ATTACH PLEADINGS TO MOTION FOR SUMMARY JUDGMENT NOT FATAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this third-party assault case against the defendant hospital based upon an alleged sexual assault by an employee-doctor should have been dismissed. Because the alleged assault and battery was not in furtherance of defendant’s business, the doctrine of respondeat superior did not apply. The Second Department noted that the defendant’s motion for summary judgment was not untimely because the note of issue had been vacated, which started the time for summary judgment anew. The Second Department also noted that the failure to attach the pleadings to the motion for summary judgment was not fatal because they were attached to the reply:

Pursuant to CPLR 3212(b), a court will grant a motion for summary judgment when, viewing the evidence in the light most favorable to the opponent of the motion, it determines that the movant’s papers justify holding, as a matter of law, that the cause of action has no merit. “The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “An employee’s ations fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business'” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Thus, where an employee’s actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment … .

A sexual assault perpetrated by an employee is not in furtherance of an employer’s business and is a clear departure from the scope of employment, having been committed for wholly personal motives … . Here, the evidence submitted by the defendants demonstrated that the doctor’s alleged conduct was not in furtherance of St. John’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . Montalvo v Episcopal Health Servs., Inc., 2019 NY Slip Op 04158, Second Dept 5-29-19

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WAS LAST INSPECTED AND THEREFORE DID NOT DEMONSTRATE IT LACKED CONSTRUCTIVE NOTICE OF THE ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant condominium’s motion for summary judgment in this ice slip and fall case should not have been granted. Defendant did not demonstrate when the area had last been inspected:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . “Thus, a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, Vista II failed to establish, prima facie, that it did not have constructive notice of the alleged patches of ice. In support of its motion, Vista II submitted, inter alia, the deposition testimony of the managing agent of the property, who merely testified about his general inspection practices and provided no evidence regarding any specific inspection of the areas in question prior to the plaintiff’s falls …”. Lauture v Board of Mgrs. at Vista at Kingsgate, Section II, 2019 NY Slip Op 04154, Second Dept 5-29-19

 

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PLAINTIFFS’ ACTION SEEKING TO ENJOIN THE CONSTRUCTION OF A HOME PLAINTIFFS CONTENDED WAS IN VIOLATION OF THE TOWN CODE SHOULD HAVE BEEN DISMISSED PURSUANT TO THE DOCTRINE OF LACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the doctrine of laches applied to plaintiffs’ action seeking to enjoin defendant’s construction of a house. Plaintiffs alleged the construction violated the Town Code:

” To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant'” … . ” The mere lapse of time without a showing of prejudice will not sustain a defense of laches. In addition, there must be a change in circumstances making it inequitable to grant the relief sought'” … . “Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense” … . …

The plaintiffs commenced this action nearly three years after the building permit was first issued in May 2012 and after [plaintiff] Kverel withdrew his administrative appeal, two years after the parties entered into the stipulation, and more than six months after construction purportedly commenced in August 2014. Although the building permit was amended several times thereafter and as late as February 2015, the record demonstrates that the plaintiffs were aware as early as July 2012, when the subject property remained undeveloped and before the defendant purchased the subject property, of their claim that the defendant’s construction was in violation of the Town Code. Although the record unequivocally demonstrates that the plaintiffs were opposed to the defendant’s construction on the subject property, the plaintiffs did not seek administrative review by the ZBA or injunctive relief until they commenced this action. Kverel v Silverman, 2019 NY Slip Op 04152, Second Dept 5-29-19

 

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IN THIS NEGLIGENT SUPERVISION, HIRING AND RETENTION CASE, THE MEDICAL RECORDS OF A NON-PARTY WITNESS WHO ALLEGED IMPROPER CONDUCT BY DEFENDANT DOCTOR ARE DISCOVERABLE ONLY TO THE EXTENT THEY INCLUDE NON-PRIVILEGED INFORMATION INDICATING DEFENDANT DOCTOR’S EMPLOYER WAS AWARE OF THE ALLEGATIONS, THE NON-PARTY WITNESS DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE BY DISCUSSING HER MEDICAL HISTORY IN A DEPOSITION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the medical records of a non-party witness were discoverable only to the extent that they included non-privileged information demonstrating defendant Huntington Medical Group (HMG) was on notice that defendant doctor (Wishner) had acted improperly with patients. Plaintiff sued HMG alleging negligent hiring, supervision and retention of Wishner. Plaintiff had deposed a non-party witness who apparently had alleged improper conduct by Wishner. Defendants sought to discover the non-party witness’s medical records. The Second Department noted that the defendants (1) had not shown the medical records were relevant to the improper conduct allegations and (2) the non-party witness had not waived the physician-patient privilege. The matter was remitted for an in camera review of the records by Supreme Court:

The physician-patient privilege seeks to protect confidential communications relating to the nature of the treatment rendered and the diagnosis made … . The physician-patient privilege applies to information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms … . “The privilege applies at examinations before trial, and it covers both oral testimony and documents, such as hospital records, which presumably are drawn up in large part based on communications imparted by the patient to the treating physician” … .

Here, the nonparty witness expressly declined to waive the physician-patient privilege as to her medical records, and her deposition testimony with respect to the facts of Wishner’s alleged improper conduct during the subject physical examination and the facts and incidents of her medical history does not constitute privileged information … . Thus, the nonparty witness did not waive the physician-patient privilege as to her medical records … . …

… [P]rivileged medical records may contain nonprivileged information that could be discoverable if relevant … . Thus, we remit this matter to the Supreme Court, … for an in camera inspection of the nonparty witness’ medical records stored by HMG for a determination of whether such records, or any parts thereof, contain any nonprivileged information relevant to the issue of whether HMG was on notice of Wishner’s alleged improper conduct toward patients during his examination of them and, if so, for the entry of an order directing that such nonprivileged information, if any, shall be produced to the defendants. Mullen v Steven G. Wishner, 2019 NY Slip Op 04180, Second Dept 5-29-19

 

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CANDIDATE DID NOT HAVE THE OPPORTUNITY TO RESPOND TO CHALLENGES TO SIGNATURES ON THE DESIGNATING PETITION, ALTHOUGH THE SUBSCRIBING WITNESS HAD TEMPORARILY MOVED OUT OF THE RESIDENCE DESCRIBED IN THE STATEMENT OF WITNESS SHE INTENDED TO RETURN, DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the designating petition should not have been invalidated on the basis of challenged signatures and the residence of the subscribing witness. The candidate (Brezler) was not given the opportunity to respond to the challenged signatures and, although the subscribing witness was not residing at the stated address, she had moved out only temporarily due to construction:

“The Supreme Court may entertain specific objections to signatures on a designating petition that were not asserted before a board of elections to the extent the respondent was given adequate notice of which signatures on his or her designating petition are being challenged and the grounds thereof” … . Here, Brezler was not given notice, until the hearing on the invalidation petition was underway, that the petitioners were challenging numerous signatures on the ground that they did not match those signatories’ signatures on their buff cards and that the Supreme Court would be comparing the majority of the challenged signatures to those voters’ buff cards to determine whether the signatures on the designating petition matched those on the buff cards. Contrary to the petitioners’ contention, their specifications of objections filed with the Westchester County Board of Elections (hereinafter the Board) and incorporated by reference into the invalidation petition did not provide notice of this basis for challenging the signatures. …

A subscribing witness is required to include, in the Statement of Witness, his or her residence address (see Election Law § 6-132[2]). This requirement “protects the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena in a proceeding challenging the petition” … . The Election Law defines the term “residence” as “that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return” (Election Law § 1-104[22] …). The “crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent [to reside there], coupled with physical presence without any aura of sham'” … . Matter of Walfish v Brezler, 2019 NY Slip Op 04179, Second Dept 5-29-19

 

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ADEQUATE SUPERVISION OF PLAINTIFF AFTER SURGERY RESULTING IN MEMORY LOSS WAS PART OF PLAINTIFF’S TREATMENT, THEREFORE A CAUSE OF ACTION RESULTING FROM PLAINTIFF’S LEAVING THE HOSPITAL SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, PLAINTIFF’S MOTION TO AMEND THE COMPLAINT, ALTHOUGH PARTIALLY GRANTED, SHOULD HAVE BEEN GRANTED IN ITS ENTIRETY (SECOND DEPT).

The Second Department determined plaintiff’s action against defendant hospital sounded in medical malpractice, not negligence, and plaintiff’s motion to amend the complaint to add a medical-malpractice cause of action (which was granted by Supreme Court) and other allegations should have been granted in its entirety. Plaintiff suffered memory loss after surgery and repeatedly threatened to leave the hospital. She did in fact leave and was not found for five days. The Second Department determined the failure to supervise plaintiff was an element of her treatment and therefore the actions sounded in medical malpractice:

… [W]hen the complaint challenges the medical facility’s performance of functions that are “an integral part of the process of rendering medical treatment” and diagnosis to a patient, such as taking a medical history and determining the need for restraints, it sounds in medical malpractice … .

… [T]he allegations at issue essentially challenged the hospital’s assessment of the plaintiff’s supervisory and treatment needs … . Thus, the conduct at issue derived from the duty owed to the plaintiff as a result of a physician-patient relationship and was substantially related to her medical treatment … . …

… “Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit” … . Here, there was no showing of prejudice, and the plaintiff’s proposed amended complaint was not papably insufficient or patently devoid of merit. Therefore, the court should not have limited the allegations that the plaintiff could include in her amended complaint. Jeter v New York Presbyt. Hosp., 2019 NY Slip Op 04148, Second Dept 5-29-19

 

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PLAINTIFF DID NOT SUBMIT PROOF IT HAD THE FINANCIAL ABILITY TO CLOSE ON THE PURCHASE OF REAL PROPERTY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ITS ACTION FOR SPECIFIC PERFORMANCE OF THE REAL ESTATE PURCHASE AGREEMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this action for specific performance of a real estate purchase agreement should not have been granted. Plaintiff did not submit proof it had the financial ability to close:

“A plaintiff seeking specific performance of a contract for the sale of real property bears the burden of demonstrating that he or she was ready, willing, and able to perform his or her obligations under the contract” … . “[C]onclusory assertions that the plaintiff was ready, willing, and able to perform, are insufficient to satisfy this burden” … .

“When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close” … . Thus, in moving for summary judgment on a complaint seeking specific performance of a contract for the sale of real property, a plaintiff purchaser must submit evidence demonstrating its financial ability to purchase the property, and in the absence of such evidence, the motion must be denied … .

Here, the plaintiff failed to establish, prima facie, that it was ready, willing, and able to purchase the subject property. More specifically, the conclusory assertions of Gavriel Yakubov, the alleged sole member of the plaintiff, that he had always been, and remained, ready, willing, and able to close, absent any evidence demonstrating the plaintiff’s financial ability to close, were insufficient to establish, prima facie, that the plaintiff was ready, willing, and able to purchase the subject property … . GLND 1945, LLC v Ballard, 2019 NY Slip Op 04143, Second Dept 5-29-19

 

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THE ALLEGED FAILURE TO ELIMINATE A TRIPPING HAZARD WAS NOT ACTIONABLE BECAUSE PLAINTIFF WAS NOT A PARTY TO THE CONTRACT BETWEEN DEFENDANT AND PLAINTIFF’S EMPLOYER, DEFENDANT’S ACTS OR OMISSIONS DID NOT FIT WITHIN ANY OF THE ESPINAL EXCEPTIONS IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant, which had contracted with plaintiff’s employer to offer a work-training program, did not owe a duty of care to the plaintiff who tripped and fell over extension cord wires during the training session. The only Espinal exception alleged was that the defendant launched an instrument of harm, which was deemed inapplicable by the Second Department. The alleged failure to eliminate the tripping hazard was not actionable:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, there are three exceptions to that general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

… The Supreme Court’s determination that a triable issue of fact existed as to whether the defendant negligently failed to correct the alleged tripping hazard amounts to a finding that the defendant may have merely failed to become “an instrument for good,” which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party … . Espeleta v Synergy Resources, Inc., 2019 NY Slip Op 04138, Second Dept 5-29-19

 

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PETITIONER, WHO CONSENTED TO PROVIDING A DNA SAMPLE AFTER ARREST, MAY SEEK DISCRETIONARY EXPUNGEMENT OF THE DNA PROFILE AND UNDERLYING DOCUMENTS UPON BEING ADJUDICATED A YOUTHFUL OFFENDER, RESPONDENT JUDGE DIRECTED TO DECIDE WHETHER EXPUNGEMENT IS APPROPRIATE UNDER THE FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, granted a writ of mandamus directing the respondent-judge to consider whether the expungement of DNA evidence derived from a sample provided with petitioner’s consent after arrest is appropriate. The petitioner was subsequently adjudicated a youthful offender (YO) and sought expungement on that ground. The DNA evidence is maintained by the New York City Office of Chief Medical Examiner (OCME). The First Department concluded that the OCME is subject to the State Executive Law and a court has the discretionary authority to expunge the YO’s DNA profile from the SDIS (index system used for mutual exchange, use and storage of DNA records), along with the underlying DNA records:

[Re: the propriety of the Article 78 proceeding:] In the absence of an available remedy at law (see CPL 450.20), the important issues raised on this appeal will escape this Court’s review unless this petition proceeds … . Moreover, this Court has original jurisdiction over the issues raised because they concern a sitting justice (CPLR 506[b][1]; 7804[b] …). …

There is abundant support for the conclusion that OCME’s responsibilities in testing, analyzing and retaining DNA data is subject to the State Executive Law. Respondent’s arguments that the statutory reference to a “state” DNA identification index in Article 49-B necessarily excludes a local DNA laboratory like that the one operated by OCME, is unavailing. …

… [W]e hold that the same discretion afforded to a court under the Executive Law to expunge DNA profiles and related records when a conviction is vacated may also be exercised where, as here, a YO disposition replaces a criminal conviction. The motion court, in finding that, as a matter of law, it had no discretion, failed to fulfill its statutory mandate to consider whether in the exercise of discretion, expungement of petitioner’s DNA records was warranted in this case. …

Petitioner did not, either expressly or by implication, waive the privilege of nondisclosure and confidentiality by providing his DNA before the court made its determination that he was eligible for YO status. Clearly the Executive Law permits an adult who has voluntarily given his or her DNA in connection with a criminal investigation the right to seek discretionary expungement where a conviction had been reversed or vacated. A youthful offender does not have and should not be afforded fewer pre-YO adjudication protections than an adult in the equivalent circumstances. Matter of Samy F. v Fabrizio, 2019 NY Slip Op 04120, First Dep 5-28-19

 

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PLAINTIFF FELL FROM A SCAFFOLD WHICH HAD NO RAILINGS, PLAINTIFF DID NOT NEED TO DEMONSTRATE THE SCAFFOLD WAS DEFECTIVE, PLAINTIFF PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) scaffold-fall case was properly granted. The scaffold had not railings and plaintiff fell when the scaffold tipped because one of its wheels went through the floor. The court noted that plaintiff was not required to show that the scaffold was defective:

It is undisputed that the scaffold he was supplied with and directed to use lacked railings, and that he fell off when the scaffold tipped as one wheel broke through the floor on which it was standing. Plaintiff was not provided with any other safety devices. This evidence establishes prima facie a violation of Labor Law § 240(1) … . Plaintiff was not required to show that the scaffold was defective … . Martinez-Gonzalez v 56 W. 75th St., LLC, 2019 NY Slip Op 04111, First Dept 5-28-19

 

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