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PLAINTIFF’S EXPERT DID NOT LAY A FOUNDATION FOR AN OPINION ABOUT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff was treated by an ophthalmologist for eye pain. The doctor suspected glaucoma. Six months later plaintiff was diagnosed with meningioma, a noncancerous tumor of the membranes surrounding the brain. Plaintiff’s expert did not lay a foundation for an opinion that the meningioma could have been treated with radiation, rather than surgery, had it been discovered earlier:

” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” … . “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiff’s expert, who was board certified in ophthalmology, was qualified to, and did, raise a triable issue of fact as to whether [defendants] deviated from the accepted standard of care in failing to refer the plaintiff to a neurologist to further evaluate his symptoms. However, the affidavit was insufficient to establish that the plaintiff’s meningioma could have been treated by radiation instead of surgery if it had been detected in November 2014. The plaintiff’s expert failed to articulate that he had any training in the treatment of meningiomas or what, if anything, he did to familiarize himself with the applicable standard of care. The affidavit, therefore, lacked probative value and failed to raise a triable issue of fact as to whether any departure from the accepted standard of care proximately caused the plaintiff’s injuries … . Simpson v Edghill, 2019 NY Slip Op 00923, Second Dept 2-6-19

 

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SANCTIONS FOR SPOLIATION OF VIDEOTAPE IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant store (Fairway) should not have been sanctioned (adverse inference jury instruction) for spoliation of evidence, i.e., videotape depicting areas outside the store. Plaintiff slipped and fell on ice in an area near the entrance to the store. The videotape from the camera which captured the fall was provided to plaintiff. The videotape from the other cameras depicting other areas outside the store was not preserved:

The plaintiff’s January 3, 2013, letter specifically requested that Fairway preserve “any and all video footage depicting the location of my client’s accident.” Ten hours of video footage depicting the exact location of the accident before the fall occurred, including footage of the accident itself, were preserved by Fairway and subsequently disclosed to the plaintiff. The plaintiff did not initially request that video footage of other locations also be preserved, so Fairway was not on notice that such footage might be needed for future litigation … . In addition, the plaintiff has not established that the absence of such footage deprived her of the ability to prove her case … . Under these circumstances, the plaintiff did not establish that sanctions against Fairway were warranted … . Sarris v Fairway Group Plainview, LLC, 2019 NY Slip Op 00922, Second Dept 2-5-19

 

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DEFENDANT’S KIDNAPPING CONVICTIONS VACATED PURSUANT TO THE DOCTRINE OF MERGER, DEFENDANT WAS ALSO CONVICTED OF MURDER, BURGLARY AND ROBBERY, APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, noting the outcome of the appeal by a co-defendant, in the interest of justice, determined defendant’s kidnapping convictions should be vacated pursuant to the merger doctrine. Defendant was convicted of murder, kidnapping, burglary and robbery:

The defendant and Domingo Mateo were indicted on charges of murder in the second degree, kidnapping in the first and second degrees, burglary in the first degree, and robbery in the first and second degrees in connection with a home invasion, which occurred on May 3, 2011, and resulted in the death of one of the occupants of the home. Mateo was tried separately and convicted on all counts. Thereafter, the defendant was tried and convicted on all counts. On Mateo’s appeal, this Court found that his conviction of kidnapping in the second degree was precluded by the merger doctrine and modified the judgment of conviction by vacating the conviction of kidnapping in the second degree and the sentence imposed thereon, and dismissing that count of the indictment as to that defendant (see People v Mateo, 148 AD3d 727).

The defendant now contends that his conviction of kidnapping in the second degree was precluded by the merger doctrine. Although his contention is unpreserved for appellate review (see CPL 470.05[2]), we nevertheless reach the issue in the exercise of our interest of justice jurisdiction, vacate the defendant’s conviction of kidnapping in the second degree and the sentence imposed thereon, and dismiss that count of the indictment as to the defendant … . People v Mejia, 2019 NY Slip Op 00903, Second Dept 2-6-19

 

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DEFENDANT WAS NOT INFORMED OF THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MATTER REMITTED TO ALLOW A MOTION TO VACATE THE PLEA (SECOND DEPT).

The Second Department determined the record supported defendant’s contention that Supreme Court did not inform him of the deportation consequences of his guilty plea. The matter was sent back to allow defendant to move to vacate his plea:

… [W]e remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order … and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation… . In its report to this Court, the Supreme Court shall state whether the defendant has now moved to vacate his plea of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing to entitle him to vacatur of the plea … . People v Hor, 2019 NY Slip Op 00899, Second Dept 2-6-19

 

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SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER STATUS EVEN WHERE IT IS NOT REQUESTED OR WHERE DEFENDANT AGREES TO FORGO IT AS PART OF A PLEA BARGAIN (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined defendant’s waiver of appeal was invalid and the sentencing court was required to consider youthful offender status, even when not requested:

The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a written waiver, the Supreme Court provided the defendant with no explanation as to the nature of the right to appeal and the consequences of waiving it … , nor did the court ask the defendant whether he read the waiver form before signing it … . Moreover, the court conflated the trial rights the defendant waived automatically by pleading guilty with the right to appeal … . In any event, the defendant’s contention that the court failed to consider whether to afford him youthful offender treatment would not have been barred by the defendant’s general waiver of the right to appeal … .

CPL 720.20(1) requires that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain … . People v Alleyne, 2019 NY Slip Op 00895, Second Dept 2-6-19

 

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THE JURY SHOULD HAVE BEEN INSTRUCTED NOT TO CONSIDER LESSER INCLUDED OFFENSES IF THEY FOUND DEFENDANT NOT GUILTY OF THE HIGHER OFFENSE ON THE BASIS OF JUSTIFICATION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the jury should have been instructed not to consider lesser offenses if it found defendant was not guilty of the greater charge on the basis of justification. The court noted that, on retrial, the jury should be instructed on two categories of assault third as lesser included offenses. Defendant was charged with attempted murder by stabbing and slashing the victim:

” This Court has held that, in a case involving a claim of self-defense, it is error for the trial court not to instruct the jurors that, if they find the defendant not guilty of a greater charge on the basis of justification, they were not to consider any lesser counts'”… . Such failure constitutes reversible error … .

Here, neither the jury instructions nor the verdict sheet on the whole adequately conveyed the principle that, if the jury found the defendant not guilty of the greater charge of attempted murder in the second degree on the basis of justification, it was not to consider any lesser counts … . On this record, it is impossible to discern whether acquittal of the top count of attempted murder in the second degree was based on the jurors’ finding of justification so as to mandate acquittal on the five lesser counts … . People v Akbar, 2019 NY Slip Op 00894, Second Dept 2-6-19

 

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PLAINTIFF WAS STRUCK BY A PIECE OF UNSECURED PLYWOOD WHICH FELL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was struck a a piece of plywood after the supporting vertical post was removed:

Labor Law § 240(1) imposes upon owners, general contractors, and their agents a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites  … . To prevail on a motion for summary judgment in a Labor Law § 240(1) “falling object” case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking … . Labor Law § 240(1) does not automatically apply simply because an object fell and injured a worker; a plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his deposition testimony and the affidavit of a coworker who witnessed the accident. These submissions established that the plaintiff was hit by an unsecured [*2]four-by-eight-foot plywood sheet that fell from the first floor ceiling onto the plaintiff as he was walking underneath … . Passos v Noble Constr. Group, LLC, 2019 NY Slip Op 00893, Second Dept 2-6-19

 

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OWNERS OF A RESTAURANT-BAR NOT LIABLE FOR AN ATTACK ON PLAINTIFF IN THE ADJACENT PARKING LOT IN THIS THIRD-PARTY ASSAULT CASE, THE ATTACK WAS NOT FORESEEABLE (SECOND DEPT).

The Second Department determined the owners of a restaurant/bar were not liable for an attack on plaintiff int the adjacent parking lot:

“Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property” … . “However, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control” … . “Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the attack on the plaintiff was unforeseeable and unexpected … . Oblatore v 67 W. Main St., LLC, 2019 NY Slip Op 00892, Second Dept 2-6-19

 

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FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE APPLICATION FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court abused its discretion by denying the application for an adjournment in contemplation of dismissal in this juvenile delinquency proceeding:

… [T]he Family Court improvidently exercised its discretion in denying the appellant’s application pursuant to Family Court Act § 315.3 for an adjournment in contemplation of dismissal. This proceeding constituted the appellant’s first contact with the court system, he took responsibility for his actions, and the record demonstrates that he learned from his mistakes. During the pendency of the proceeding, the appellant readily complied with the supervision imposed by the court and his father’s supervision in the home, and he garnered praise from the Probation Department and school officials. Under the circumstances, including the appellant’s commendable academic and school attendance record, his mentoring of fellow students at his school, and the minimal risk that he poses to the community, an adjournment in contemplation of dismissal was warranted … . Matter of Nijuel J., 2019 NY Slip Op 00876, Second Dept 2-6-19

 

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ALTHOUGH THE CITY OWED A SPECIAL DUTY TO A STUDENT WHO WAS STRUCK BY A CAR ATTEMPTING TO CROSS THE ROAD, THAT DUTY WAS FULFILLED WHEN THE CROSSING GUARD TOLD THE STUDENT TO WALK TO THE NEXT AVAILABLE CROSSWALK, THE STUDENT, HOWEVER, THEN ATTEMPTED TO CROSS WHERE THERE WAS NO CROSSWALK (SECOND DEPT).

The Second Department determined the city’s motion for summary judgment in this traffic accident case involving a student who had just left school was properly granted. The city owed a special duty to the student-plaintiff. A school crossing guard had stopped the plaintiff from crossing the street where there was no crosswalk and told her to walk to the next crosswalk. The plaintiff, however, attempted to cross where there was no crosswalk and was hit by a car. Any alleged negligent supervision was not the proximate cause of the student’s injury:

… [A] special duty existed between the City defendants’ crossing guard and the infant plaintiff … . Nevertheless, given that the crossing guard, inter alia, told the infant plaintiff to not cross 7th Avenue at an unsafe location and pointed the infant plaintiff to the crosswalk at 19th Street, the City defendants established, prima facie, that its employees did not breach their duty to the infant plaintiff. Moreover, the City defendants, while under a duty to adequately supervise the students in their charge, are not insurers of their safety … . The evidence submitted by the City defendants established, prima facie, that the infant plaintiff crossed 7th Avenue in the middle of the block where there was no intersection or crosswalk, and no traffic device affording her a right-of-way. Additionally, the infant plaintiff admitted that she attempted to cross the road “fast,” and that she did not look for oncoming traffic. Where an accident occurs so quickly that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury … . K.A. v City of New York, 2019 NY Slip Op 00861, Second Dept 2-6-19

 

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