Page 923 – New York Appellate Digest

/ Criminal Law

DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defense counsel’s for cause challenge to a juror should have been granted:

Turning first to defendant’s contention regarding prospective juror No. 4 from round three, she indicated that she knew Ruth Crepet, a physician that the People intended to call as a witness, as Crepet was her primary care physician of 15 years. Although the juror stated that she had a preconceived notion that Crepet would be truthful, she indicated that she could be impartial and fair at trial in that regard. This juror also stated that her husband was the victim of a robbery and, because the person “got off,” she was “a little cynical” about the criminal justice system, but “would try” to be impartial and thought “that [she] could be.” When asked if she could find defendant guilty, this juror stated “yes, you bet.” …

While it is not necessarily an issue that Crepet was the prospective juror’s doctor … , her general equivocality is problematic. “Equivocal, uncertain responses, including statements that a prospective juror will ‘try’ or ‘hope’ to be impartial, are insufficient in the absence of [other] ‘express and unequivocal’ declarations that the juror will put any preconceptions aside and render an impartial verdict based solely on the evidence” … . Here, while some of the prospective juror’s responses were unequivocal, many were not, and, as such, her responses as a whole do not demonstrate that her opinion would not influence her verdict … . Therefore, further inquiry was needed and, in the absence of said inquiry, it was error for Supreme Court to deny defendant’s challenge for cause … . People v Horton, 2018 NY Slip Op 04040, Third Dept 6-7-18

CRIMINAL LAW (JURORS, DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT))/JURORS (CRIMINAL LAW, DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT))/FOR CAUSE CHALLENGE (CRIMINAL LAW, JURORS, DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT)

June 07, 2018

/ Criminal Law

FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT).

The First Department, reversing defendant’s assault first conviction, over an extensive dissent, determined it was reversible error to fail to instruct the jury that acquittal of the top count (attempted murder) based on the justification defense would require acquittal on the assault first count:

“While the jury may have acquitted on the top charge without relying on defendant’s justification defense . . . it is nevertheless impossible to discern whether acquittal of the top count . . . was based on the jurors’ finding of justification so as to mandate acquittal on the two lesser counts” … . People v Breckenridge, 2018 NY Slip Op 04074, First Dept 6-7-18

CRIMINAL LAW (FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT))

June 07, 2018

/ Criminal Law

COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the court did not adequately explain the rights defendant was giving up by pleading guilty:

During the plea proceedings, County Court engaged in an abbreviated colloquy during which it made only a passing reference to the rights that defendant was giving up by pleading guilty. Notably, the court did not mention the privilege against self-incrimination or advise defendant of his right to a jury trial. Nor did the court ascertain whether defendant had conferred with counsel regarding the trial-related rights that he was waiving or the constitutional consequences of his guilty plea. With no affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he entered his guilty plea, the plea was invalid and must be vacated … . People v Holmes, 2018 NY Slip Op 04039, Third Dept 6-7-18

CRIMINAL LAW (GUILTY PLEA, COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT))/GUILTY PLEA (COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT))

June 07, 2018

/ Criminal Law

COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT)

The Third Department determined the court should have inquired into the reasons for defendant’s failure to appear at sentencing before sentencing him in absentia:

When defendant did not appear for sentencing on April 2, 2015, the court noted that defendant had been present for “each and every other occasion,” before issuing a bench warrant and adjourning sentencing to April 9, 2015. When defendant again failed to appear, his counsel represented that the only contact he had had with defendant was a conversation on April 1, 2015, when defendant informed counsel that he had additional doctors’ appointments to attend, and counsel advised him to appear in court for sentencing on April 2, 2015. There is no indication in the record that defendant was advised that sentencing was adjourned to April 9, 2015. The court was aware of defendant’s medical condition, which had required hospitalization in October 2014 and was the reason that sentencing was first adjourned from January 2015 to April 2, 2015. The court specifically observed that no explanation for defendant’s absence had been provided by defendant or his counsel but, nonetheless, made no inquiry on the record into the status of any efforts to locate defendant since April 2, when it had issued the bench warrant, before it proceeded to sentence him in absentia. In light of its failure to make any inquiry whatsoever into the reason for defendant’s absence, County Court erred when it sentenced defendant in absentia … . People v Sassenscheid, 2018 NY Slip Op 04037, Third Dept 6-7-18

CRIMINAL LAW (SENTENCING, COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT))/SENTENCING (COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT))

June 07, 2018

/ Criminal Law

BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the complicated facts of this case nullified a benefit that was expressly promised as inducement to a guilty plea. Defendant had pled guilty to burglaries in two counties (Schenectady and Albany) as a persistent felony offender. Both persistent felony offender guilty pleas were overturned. His subsequent plea was reversed in this case:

Defendant pleaded guilty here upon the understanding that the imposed sentence would run concurrently to the aggregate prison sentence of 16½ years to life imposed in Albany County. He was also aware that a higher aggregate sentence would be imposed in Albany County if he successfully challenged his status as a persistent violent felony offender, and Supreme Court promised that any resentence in this case would run concurrently to that increased sentence.

During the pendency of this appeal, this Court reversed the judgment of conviction in Albany County, vacated defendant’s guilty plea and remitted for further proceedings … . The sentencing exposure that prompted defendant’s concern about concurrent sentencing here accordingly dissolved and, indeed, he entered into a new plea arrangement in Albany County where he received, among other things, a much shorter prison term of six years. In short, the “reduction of the preexisting sentence [in Albany County] nullified a benefit that was expressly promised and was a material inducement to the guilty plea” here … . Inasmuch as “we cannot say that defendant would have foregone pretrial and trial rights and pleaded guilty” had he known that his guilty plea in Albany County would be vacated, his plea must also be vacated here … . People v Brewington, 2018 NY Slip Op 04035, Third Dept 6-7-18

CRIMINAL LAW (PLEA AGREEMENTS, BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))/PLEA AGREEMENTS (BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))/GUILTY PLEAS (PLEA AGREEMENTS, BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))

June 07, 2018

/ Contract Law

QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined plaintiff had raised a question of fact whether there was an oral contract for dock space for and storage of plaintiff’s boat at defendant marina:

… [P]laintiff submitted a copy of an invoice from defendant that itemized the charges for winter storage and spring launch and showed that no balance was due in April 2008. The invoice also acknowledged receipt of a $500 payment from plaintiff on April 14, 2008 for a monthly slip charge. Plaintiff also submitted an affidavit in which he averred that the $500 payment accepted by defendant is evidence that the parties entered into an oral agreement for rental of dock space for the 2008 boating season. The facts alleged in plaintiff’s affidavit are consistent with his deposition testimony, which was submitted by defendant, in which he claimed that he made an oral agreement with defendant’s employee. Plaintiff’s argument that the oral agreement was consistent with the parties’ prior dealings because he had entered into a written agreement for only one season during his long period of occupancy is corroborated by [defendant’s] allegation that “[o]ver the years[, plaintiff] refused to sign any license agreement.” When viewed in the light most favorable to plaintiff, as the nonmoving party … , plaintiff’s submissions are sufficient to establish the existence of a triable issue of fact regarding formation of an oral contract. Carroll v Rondout Yacht Basin, Inc., 2018 NY Slip Op 04051, Third Dept 6-7-18

CONTRACT LAW (QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT))/ORAL CONTRACTS (QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT))

June 07, 2018

/ Civil Procedure, Medical Malpractice

ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT).

The Third Department, announcing a new Third-Department rule governing expert witness disclosure in medical malpractice actions, in a full-fledged opinion by Justice McCarthy, determined plaintiffs are obligated to provide full disclosure of a prospective expert witness’s qualifications, even if the disclosure will identify the witness. Defendants may be entitled to a protective order prohibiting the intimidation or harassment of a witness whose identity has effectively been revealed by his or her qualifications:

Inasmuch as this state’s expert disclosure statute is already the most restrictive in the nation, there is no reason for this Court to continue to interpret the statute in a way that permits parties to severely limit the amount of information they provide regarding their expert witnesses.

Like the 2nd Department held in Thomas v Alleyne [302 AD2d 36], we conclude that our current standard is not only impractical, but contrary to the statutory language and “the salutary policy of encouraging full pretrial disclosure so as to advance the fundamental purpose of litigation, which is to ascertain the truth” … . Accordingly, we adopt that Court’s rule that parties in medical malpractice cases “will ordinarily be entitled to full disclosure of the qualifications of [an opponent’s] expert, [except for the expert’s name,] notwithstanding that such disclosure may permit such expert’s identification,” but a party may obtain a protective order under CPLR 3103 (a) by making a factual showing that there exists a reasonable probability, “under the special circumstances of a particular case, that a prospective expert medical witness would be subjected to intimidation or threats if his or her name were revealed before trial” … . Kanaly v DeMartino, 2018 NY Slip Op 04060, Third Dept 6-7-18

CIVIL PROCEDURE (DISCLOSURE, MEDICAL MALPRACTICE, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/MEDICAL MALPRACTICE (EXPERT WITNESSES, DISCLOSURE, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/DISCLOSURE (MEDICAL MALPRACTICE, EXPERT WITNESSES, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/EXPERT WITNESSES (MEDICAL MALPRACTICE, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))/QUALIFICATIONS (EXPERT WITNESSES, ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPARTMENT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT))

June 07, 2018

/ Civil Procedure, Evidence, Trusts and Estates

EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT).

The First Department, affirming the denial of summary judgment and the denial of the motion to set aside the verdict in this probate action, determined evidence included in a settlement letter and hearsay relied upon an expert witness were properly admitted. The court further found that the missing witness jury instruction for the decedent’s treating doctors was proper, but the missing witness jury instruction for the attorney who drafted the will, who lives in Florida, was (harmless) error. The jury revoked preliminary letters:

Although CPLR 4547 precludes presentation of evidence of settlement negotiations, it expressly exempts exclusion of evidence, which is otherwise discoverable, solely because such evidence was presented during the course of settlement negotiations.

The list of paintings that was signed by proponent as part of the settlement conference in Shanghai was admitted into evidence because it included a factual admission that proponent possessed a painting that he accused objectant of stealing. Thus, its use at trial was permissible, notwithstanding that the factual statement was contained in a settlement document … . …

The court’s missing witness charge with respect to the attorney, Jerome Kamerman, was in error. Mr. Kamerman was living in Florida at the time of trial and was unavailable to proponents … . …

A psychiatrist’s opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is “of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on [] trial” … . The court properly permitted the expert to testify, despite his conversations with objectant, since she was subject to full cross-examination at trial. Matter of Chi-ChuanFile Wang, 2018 NY Slip Op 04090, First Dept 6-7-18

CIVIL PROCEDURE (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/EVIDENCE (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/TRUSTS AND ESTATES (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/SETTLEMENT NEGOTIATIONS (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/CPLR 4547 (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/JURY INSTRUCTIONS (MISSING WITNESSES, EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/MISSING WITNESS INSTRUCTION (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/EXPERT OPINION (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/HEARSAY (EXPERT OPINION, EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))

June 07, 2018

/ Civil Procedure, Evidence

PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ motion for a continuance to allow their expert to testify in this medical malpractice action should have been granted.

When the expert … arrived in the late morning of December 1, 2016, he did not have his original file with him. According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. …

On December 2, 2016, plaintiffs’ expert did not appear. …

We conclude that plaintiffs’ motion for a continuance should have been granted … . The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs … . Normandin v Bell, 2018 NY Slip Op 04053, Third Dept 6-7-18

CIVIL PROCEDURE (CONTINUANCE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/MEDICAL MALPRACTICE (EXPERT WITNESS, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CONTINUANCE (PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))

June 07, 2018

/ Administrative Law

COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Commissioner of Health’s denial of petitioner’s application to the NYS Medical Indemnity Fund for about $12,000 for a lift which would allow a disabled child to use a pool was arbitrary and capricious:

… [T]he Commissioner determined that the pool lift did not qualify, reasoning that “[a] pool is not deemed an exterior modification of a residence because it is typically outside the confines of the [home].” This reasoning mischaracterizes the proposal. By definition, Emods [environmental home modifications] include exterior physical adaptations to a residence, including ramps. As demonstrated in the home evaluation, the backyard deck is attached to and directly accessed from the house through two back doors … . We readily recognize the attached deck as part of the residence, and the proposed modification here is to install two deck sockets that extend below the deck, i.e., the physical modification would be to the deck, not the pool. The pool lift is not directly attached to either the deck or the pool, but positioned in either socket depending on the intended use of either the pool or hot tub. As such, we find that the pool lift qualifies as an Emod and that the Commissioner’s contrary finding was arbitrary and capricious. Matter of Anson v Zucker, 2018 NY Slip Op 04063, Third Dept 6-7-18

ADMINISTRATIVE LAW (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/NYS MEDICAL INDEMNITY FUND (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/ENVIRONMENTAL HOME MODIFICATIONS (COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))/DISABLED PERSONS (ENVIRONMENTAL HOME MODIFICATIONS, COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT))

June 07, 2018

Search Results

DEFENSE COUNSEL’S FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED (THIRD DEPT).

FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT).

COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT).

COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT)

BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT).

QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT).

ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT).

EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT).

PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

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