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UNLIKE AN APPLICATION FOR AN ADMINISTRATIVE REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S (WCLJ’S) DECISION, WHICH HAS A 30-DAY TIME LIMIT, AN APPLICATION FOR A REHEARING OR TO REOPEN A CLAIM MUST BE MADE IN A REASONABLE TIME (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board applied the wrong criteria to claimant’s attempt to reopen her claim or seek a rehearing:

We agree with claimant that the Board applied the incorrect statutory framework in evaluating her application. Although a party seeking administrative review of a WCLJ decision must file a written application for review with the Board within 30 days of the filing of the decision (see Workers’ Compensation Law § 23; 12 NYCRR 300.13 [a] [1]; [b] [3] [i]…), there is no statutorily-prescribed time period in which a claimant may seek rehearing or reopening of a claim; rather, the Board must determine if such application was made within a reasonable time after the claimant had knowledge of the facts constituting the grounds upon which the application is made (see 12 NYCRR 300.14 [b]…). Here, the Board did not assess whether claimant’s application was made within a reasonable time. Accordingly, the decision is reversed and the matter is remitted to the Board to evaluate claimant’s application as one for rehearing or reopening. Matter of Villagra v Sunrise Senior Living Mgt., 2019 NY Slip Op 00169, Third Dept 1-10-19

 

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THE BATSON RECONSTRUCTION HEARING, HELD AFTER THE MATTER WAS SENT BACK BECAUSE OF THE LACK OF AN ADEQUATE RECORD FOR APPEAL, WAS ITSELF DEFICIENT, THE ORIGINAL PROSECUTOR DID NOT TESTIFY AND THE NOTES OF THE ORIGINAL PROSECUTOR WERE NOT PROVIDED TO THE COURT, CONVICTIONS REVERSED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over two separate dissenting opinions, reversing the defendant’s convictions and dismissing the indictment, determined the Batson reconstruction hearing, held after the matter was sent back to the trial court because the record on appeal was not sufficient, did not demonstrate that the prosecution’s peremptory challenges to African-American-male venire persons were justified by nondiscriminatory reasons. The Batson reconstruction hearing was itself deficient because it was held with a different prosecutor and the original prosecutor’s notes were not provided, nor did the orignal prosecutor testify:

The purpose of a Batson reconstruction hearing is to attempt to recreate, after the fact, a record of the prosecutor’s proffered justifications for striking certain venire persons. At such a hearing, it is typical to rely on the contemporaneous notes of the prosecutor and to elicit testimony from him or her. The prosecutor testifies as a sworn witness, and is subject to cross-examination concerning the strike or strikes … .

“[T]here is no better evidence of a prosecutor’s intent than her notes from jury selection”… ; indeed, seminal opinions on Batson have referred to jury selection notes as evidence of prosecutorial bias (see e.g. Foster v Chatman, ___ US ___, 136 S Ct 1737, 1755 [2016]). In Foster, the prosecutor’s notes were not disclosed until post-conviction proceedings years later. The notes showed the letter “B” next to the names of the African American jurors and their names highlighted in green pen. Three decades after trial, the contents of the notes led the Supreme Court to reverse the defendant’s conviction.

No testimony or notes were offered at this Batson reconstruction hearing. The ADA who conducted the voir dire did not appear and his notes were never disclosed. The ADA at the reconstruction hearing could only speculate as to the motives of his colleague. This procedure was insufficient to satisfy the requirements of Batson. People v Watson, 2019 NY Slip Op 00217, First Dept 1-10-19

 

 

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FAILURE TO INSTRUCT THE JURY ON THE MEANING OF ‘DEPRIVE’ WITH RESPECT TO THE LARCENY ELEMENT OF ROBBERY REQUIRED REVERSAL OF DEFENDANT’S FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON CONVICTIONS (FIRST DEPT).

The First Department, reversing defendant’s felony murder and criminal possession of a weapon convictions, determined that the jury should have been instructed on the definition of “deprive” with respect to the larceny aspect of the underlying robbery:

In connection with the larceny element of attempted robbery, the offense underlying the felony murder charge, the court, upon defense counsel’s request, should have instructed the jury on the definition of “deprive” … . The failure to so charge the jury as requested constitutes reversible error, since such omission “could have misled the jury into thinking that any withholding, permanent or temporary, constituted larceny”… . Indeed, “the concepts of deprive’ and appropriate’ . . . are essential to a definition of larcenous intent’ and they connote a purpose . . . to exert permanent or virtually permanent use thereof'” … . It is the function of the jury to determine whether defendant intended to rob the victim and permanently keep the property taken from him. By failing to give the requested charge, the court usurped that function.

While there are some cases in which the court’s omission of the definition of a term or terms may constitute harmless error, under the facts of this case, the error was not harmless … . People v Ataroua, 2019 NY Slip Op 00197, First Dept 1-10-19

 

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ALTHOUGH DEFENDANT LANDLORD DID NOT DEMONSTRATE WHEN THE STAIRS WERE LAST CLEANED OR INSPECTED, PLAINTIFF’S DEPOSITION TESTIMONY ESTABLISHED THE WETNESS ON WHICH SHE SLIPPED AND FELL COULD NOT HAVE BEEN PRESENT FOR MORE THAN AN HOUR, THEREFORE THE LANDLORD HAD NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the plaintiff’s deposition testimony demonstrated that the wetness on the stairs could not have been present for more than an hour. Therefore the defendant landlord had neither actual nor constructive notice of the condition and the landlord’s motion for summary judgment in this slip and fall case should have been granted:

The building superintendent testified that he had no knowledge of the condition and received no complaints about it on the day of the accident. On the issue of constructive notice, although he described a reasonable cleaning and inspection routine… , there was no evidence when the stairs were last inspected or cleaned before plaintiff’s accident so as to satisfy defendant’s burden … .

Plaintiff’s deposition testimony offered in support of defendant’s motion, however, established that the water condition did not exist for a sufficient period of time to discover and remedy the problem … . Thus, there was neither actual nor constructive notice of the wetness. Although plaintiff testified that she had complained about a wet condition on the stairs on three occasions between 2009 and 2013, she presented no evidence of a recurring condition unaddressed by defendants. Plaintiff also testified that she had no reason to believe that the stair was wet when she left her apartment at 5 p.m. and that she slipped on the stairs when she returned, less than an hour later. Thus, any wet condition was present for less than an hour, and might have been there only minutes or seconds before plaintiff slipped on it …. Plaintiff failed to raise any issue of fact requiring a trial.

Plaintiff’s argument that the absence of a handrail on both sides of the staircase raises an issue of fact as to defendants’ negligence is speculative, as there is no evidence that the absence of a handrail played any role in her accident … . Perez v River Park Bronx Apts., Inc., 2019 NY Slip Op 00196, First Dept 1-10-19

 

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NO EVIDENCE THE VICTIM, AS OPPOSED TO AN EYEWITNESS, SAW A FIREARM, ROBBERY FIRST CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s robbery first conviction, determined that, although a witness saw a firearm, the victim did not:

… [T]he evidence did not establish the element of display of what appeared to be a firearm … . The robbery was accomplished by assaulting the victim and taking his wallet. Although an eyewitness saw the display of what appeared to be a firearm, there was no evidence that the victim ever saw it … . People v Allende, 2019 NY Slip Op 00195, First Dept 1-10-19

 

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BECAUSE THE ANESTHESIOLOGY GROUP (ATLANTIC) WAS ADDED AS A PARTY AFTER THE STATUTE HAD RUN BASED SOLELY ON VICARIOUS LIABILITY FOR ITS EMPLOYEE (DEBRADY) WHO HAD BEEN TIMELY SERVED, ATLANTIC’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION CEASED WHEN DEBRADY’S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, ATLANTIC COULD NOT BE HELD LIABLE FOR THE ACTIONS OF ANOTHER EMPLOYEE WHO WAS NEVER A PARTY (CANTALUPO), ALTHOUGH PLAINTIFF SUED A JOHN DOE, NO STEPS WERE TAKEN TO SUBSTITUTE CANTALUPO FOR THE JOHN DOE, ATLANTIC’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the relation-back doctrine did not allow plaintiff in this medical malpractice action to sue an anesthesiology group (Atanitic) as a defendant after the statute of limitations had been expired. Atlantic had been added as a defendant after the statute ran when it was discovered that a defendant anesthesiolgist, DeBrady, worked for Atlantic at the time the procedure was performed on plaintiff. DeBrady’s motion for summary judgment was not opposed and was granted. But Supreme Court held that Atlantic could remain a defendant because of the potential liability of another employee of Atlantic, non-party Cantalupo. The Second Department held that Atlantic’s liability was based solely upon respondeat superior as the employer of DeBrady, who was no longer a defendant. The court noted that, although the complaint named a “John Doe, MD,” Cantalupo could not be substituted as a party because plaintiff never moved to substitute Cantalupo and the requirements of CPLR 1024 were not met:

In order for a cause of action asserted against a new defendant to relate back to the date a claim was asserted against another defendant, the plaintiff must establish that “(1) the [cause of action] arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (… see CPLR 203[b]). In malpractice actions, such as this one, “the defendants are considered united in interest when one is vicariously liable for the acts of the other”… . The second prong of the relation-back doctrine requires unity of interest with a party in the action … .

Since Atlantic was made a party to the action after the expiration of the statute of limitations based solely on its unity of interest with DeBrady, who was timely served, Atlantic’s liability in the instant action cannot be predicated upon vicarious liability for the alleged negligent acts of other employees of Atlantic who are not parties to this action, including nonparty Cantalupo. Accordingly, Atlantic demonstrated its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it, upon dismissal of the action as against DeBrady … . Ferrara v Jerome Zisfein, 2019 NY Slip Op 00096, Second Dept 1-9-19

 

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PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SET ASIDE IN THE INTEREST OF JUSTICE, DEFENDANTS WERE NOT ALLOWED TO CROSS EXAMINE PLAINTIFF’S EXPERTS ABOUT THE POSSIBLE NEGLIGENCE OF TWO NON-PARTY DOCTORS WHO ALSO TREATED PLAINTIFF, IN ADDITION, PLAINTIFF’S EXPERTS WERE NOT SHOWN TO BE QUALIFIED TO OFFER OPINION EVIDENCE CONCERNING EMERGENCY MEDICINE (SECOND DEPT).

The Second Department, reversing Supreme Court, set aside the verdict in this medical malpractice case in the interest of justice. The defendants (Kirschen, Roberts and Winthrop) were involved in emergency treatment of the plaintiff for back pain. Subsequently surgery was performed by two additional (non-party) doctors (Obedian and Sonstein) to deal with an abscess on plaintiff’s spine. At trial the defendants were not allowed to cross-examine plaintiff’s experts about the possible negligence of the surgeons, which was deemed reversible error. The Second Department further held plaintiff’s experts should not have been allowed to testify as experts in emergency medicine because no specialized knowledge of emergency medicine was demonstrated:

” A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise'”… . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … . …

… [T]the evidence at trial failed to demonstrate that the plaintiff’s injuries were capable of any reasonable or practicable division of allocation among Kirschen, Roberts, and Winthrop, and Obedian and Sonstein … . Thus, if, as Kirschen, Roberts, and Winthrop propose, a jury were to find that Obedian and Sonstein departed from accepted medical practice and that this departure was a substantial factor in depriving the plaintiff of a substantial chance for an improved outcome, Obedian and Sonstein could be found at fault together with Kirschen, Roberts, and Winthrop … . As a result, any evidence as to the culpability of Obedian and Sonstein was relevant under CPLR 1601(1) … . The court’s error in precluding Kirschen, Roberts, and Winthrop from cross-examining two of the plaintiff’s expert witnesses on this issue deprived Kirschen, Roberts, and Winthrop of “substantial justice” … . Daniele v Pain Mgt. Ctr. of Long Is.. 2019 NY Slip Op 00093, Second Dept 1-9-19

 

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DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THAT PLAINTIFF BANK DID NOT HAVE STANDING IN THIS FORECLOSURE ACTION BY MERELY POINTING OUT ALLEGED GAPS IN PLAINTIFF’S CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, THEREFORE, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant did not make a prima facie showing that plaintiff bank lacked standing in this foreclosure action, as opposed to pointing to alleged gaps in plaintiff’s case. Therefore defendant’s motion for summary judgment should not have been granted:

“On a motion for summary judgment, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied'” … . “To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, the defendant merely pointed to alleged gaps in the plaintiff’s case and failed to meet her burden of establishing, prima facie, the plaintiff’s lack of standing as a matter of law … . Cenlar FSB v Lanzbom, 2019 NY Slip Op 00092, Second Dept 1-9-19

 

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BANK’S PROOF OF THE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 INSUFFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Nationstar’s) motion for summary judgment in this foreclosure action should not have been granted. Defendant alleged in her answer that plaintiff did not comply with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304. Therefore, in moving for summary judgment, the band was required to demonstrate compliance with RPAPL 1304 and its evidence of compliance was insufficient because it did not meet the requirements of the business records exception to the hearsay rule:

“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” … . However, where, as here, a defendant raises the issue of compliance with RPAPL 1304 as an affirmative defense, the moving party is also required to make a prima facie showing of strict compliance with RPAPL 1304 … . * * *

Here, Nationstar relied on the affidavit of its employee, Michael Woods, who averred, in relevant part, that “the 90-day notices required by statute were mailed to [d]efendant by regular and certified mail to the last known mailing address and to the property address on January 3, 2013,” and that the letters “were sent in separate envelopes from any other mailing or notice.” However, the record contains a single 90-day notice, bearing the plaintiff’s letterhead and addressed to the defendant at the subject property, with no clear indication as to whether the mailing was made by registered or certified mail, or by first-class mail. Moreover, Woods—who is not an employee of the plaintiff—did not aver in his affidavit to having any familiarity with the plaintiff’s mailing practices and procedures. Bank of Am., N.A. v Bittle, 2019 NY Slip Op 00086, Second Dept 1-9-19

Similar issue and result in Bank of Am., N.A. v Kljajic, 2019 NY Slip Op 00087, Second Dept 1-9-19

 

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AWARDING FATHER SOLE LEGAL CUSTODY DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, MOTHER’S PETITION FOR SOLE LEGAL CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined that awarding sole legal custody to father did not have a sound and substantial basis in the record and mother’s petition for sole legal custody should have been granted:

“Findings of the Family Court which have a sound and substantial basis in the record are generally entitled to great deference on appeal because any custody determination depends to a great extent on the court’s assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parties”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Family Court’s determination awarding the father sole legal and physical custody of the child does not have a sound and substantial basis in the record. Contrary to the court’s conclusion, the parties had not been sharing custody of the child equally. Instead, the record reflects that the mother had been the child’s primary caregiver for the majority of his life until the court granted the father’s petition and that, at the time of the hearing, the father had the child on certain weekends. The evidence in the record also demonstrates that the court failed to take into consideration the custody arrangement in place at the time of the hearing, or even the 50/50 arrangement which was requested by the father during the proceeding.

Moreover, the record demonstrates that the mother had taken a proactive role in the child’s well being and development, developing well-thought-out plans to address the child’s issues regarding medical care, schooling, and socialization … . At the time of the hearing, the father had no concrete plans for the child’s education, medical care, or social development. Matter of Lintao v Delgado, 2019 NY Slip Op 00125, Second Dept 1-9-19

 

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