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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction based upon ineffective assistance of counsel. Defendant demonstrated his attorney never informed him the plea included an aggravated felony which made deportation mandatory:

A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty … . “Under the federal standard for ineffective assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different'” … . “Under the state standard . . . the constitutional requirements for the effective assistance of counsel are met when the defense attorney provides meaningful representation'”… . In cases asserting ineffective assistance of counsel in the plea context, a defendant must show that “there is a reasonable probability that, but for counsel’s errors, he [or she] would not have pleaded guilty and would have insisted on going to trial”… , or “that the outcome of the proceedings would have been different” … .

Here, the defendant sufficiently alleged that defense counsel failed to fully inform him that a plea of guilty exposed him to mandatory removal from the United States and that, had he been so advised, a decision to reject the plea offer would have been rational … . People v Hungria, 2018 NY Slip Op 03545, Second Dept 5-16-18

​CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))/INEFFECTIVE ASSISTANCE  (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, HE IS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT))

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ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department ordered a new trial for the defendant because an alternate juror deliberated with the other jurors. The trial judge attempted to fix the problem by having the jurors agree to start over and disregard the prior deliberations:

During the trial in this matter, an alternate juror briefly participated in deliberations with 11 sworn members of the jury while the12th sworn juror was absent from the jury room. The Supreme Court denied the defendant’s motion for a mistrial. The court then questioned each of the jurors about their ability to disregard the prior deliberations and start deliberations anew; each juror assured the court that he or she could do so. The court then denied the defendant’s renewed motion for a mistrial, and instructed the jurors that all deliberations that had taken place with the alternate juror were a nullity which must be disregarded by the jury, and that deliberations were to start “fresh, anew, ab initio, from the beginning.” After deliberations, the jury returned a verdict of guilty. The defendant appeals.

The New York Constitution guarantees every criminal defendant a trial by jury … . The constitutional right to a jury trial “includes the right to a jury of 12” … . Pursuant to CPL 270.30, after the jury has retired to deliberate, the court must either, (1) with the consent of the defendant and the People, discharge the alternate jurors, or (2) direct the alternate jurors not to discuss the case and further direct that they be kept separate and apart from the regular jurors. CPL 310.10 prohibits anyone, including alternate jurors, from communicating with deliberating jurors.

The error here not only violated CPL 270.30 and 310.10, but it deprived the defendant of his fundamental right to a trial by a jury of 12 … .  The error was not cured by the Supreme Court’s instructions to the reconstituted jury. People v Davis, 2018 NY Slip Op 03539, Second Dept 5-16-18

​CRIMINAL LAW (JURORS, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))/JURORS (CRIMINAL LAW, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))/ALTERNATE JURORS (CRIMINAL LAW, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))/DELIBERATIONS (CRIMINAL LAW, JURORS, ALTERNATE JUROR’S PARTICIPATION IN DELIBERATIONS REQUIRED A NEW TRIAL (SECOND DEPT))

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ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted the argument plaintiff did not allege in the bill of particulars that defendant hospital was vicariously liable for the actions of a physician (Devlin) was raised for the first time in reply papers and, therefore, should not have been considered by the motion court. The Second Department went on to find that the hospital’s motion for summary judgment arguing that it was not vicariously liable for Devlin’s actions should not have been granted. Whether Devlin acted as an agent for the hospital depended upon written agreements which were not submitted with the motion papers:

The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to introduce new arguments or new grounds for the requested relief … . Since the plaintiffs did not have the opportunity to oppose the new argument in a surreply, the court should not have granted relief based upon that argument … .

… [T]he general rule is that a hospital may not be held vicariously liable for the acts of a physician who is not an employee of the hospital, but is one of a group of independent contractors … . However, a hospital may be vicariously liable if a nonemployee physician acted as its agent or if it exercised control over the physician … . Here, Devlin was an intensivist employed by the defendant Nassau Chest Physicians, P.C. (hereinafter Nassau Chest Physicians), who cared for [plaintiff] in the Hospital’s intensive care unit after surgery was performed. She was the sole intensivist on duty for all four of the Hospital’s intensive care units during her shift. Devlin only worked at the Hospital; she did not work for Nassau Chest Physicians at any other site. The Hospital claimed that she was not under its control and not its agent. However, the Hospital’s relationship with Nassau Chest Physicians and Devlin’s relationship with Nassau Chest Physicians were governed by written agreements, and those written agreements were not submitted in support of the motion. Since the defendants failed to submit this or other evidence establishing, prima facie, that Devlin was not under the Hospital’s control and not its agent when she rendered care to Castro, they failed to demonstrate their prima facie entitlement to judgment as a matter of law … . Castro v Durban, 2018 NY Slip Op 03503, Second Dept 5-16-18

​CIVIL PROCEDURE (REPLY PAPERS, ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT))/REPLY PAPERS (MEDICAL MALPRACTICE, ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT))/MEDICAL MALPRACTICE (ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, VICARIOUS LIABILITY, ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT))

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LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined law office failure was not a sufficient excuse for plaintiff’s failure to enter a default judgment in an action which alleged defendants failed to pay plaintiff the statutory minimum wage:

“CPLR 3215(c) provides that [i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed'” … . This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” … . Moreover, CPLR 3215(c) expressly provides that a court may dismiss a complaint as abandoned “upon its own initiative or on motion.” The statute further provides, however, that the failure to timely seek a default may be excused if ” sufficient cause is shown why the complaint should not be dismissed'”… . To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” … . ” The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court'” … . While a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure … .

Here, the plaintiff moved pursuant to CPLR 2004 for an extension of time to move for the entry of a default judgment and, thereupon, for leave to enter a default judgment against the defendants. CPLR 2004 allows a court to “extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown.” “In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion” … . …

The plaintiff’s excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated … . The excuse was contained in a brief paragraph in the supporting affirmation of an associate who stated, in sum and substance, that the attorney who commenced the action left the employ of the law firm of record, and the plaintiff’s file was only discovered in May 2016 when the firm was relocating its offices. There was no affirmation from a principal of the law firm and no indication in the associate’s affirmation that he had any personal knowledge of the purported law office failure or that he was even employed by the firm at the time it allegedly occurred. The one-year period to move for the entry of a default judgment lapsed in August 2015, and there is no indication that the attorney had left prior thereto. Ibrahim v Nablus Sweets Corp., 2018 NY Slip Op 03515, Second Dept 5-16-18

​CIVIL PROCEDURE (DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/ATTORNEYS (LAW OFFICE FAILURE, DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/DEFAULT JUDGMENTS ( LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/LAW OFFICE FAILURE (DEFAULT JUDGMENTS, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 3215 (DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 2004 (DEFAULT JUDGMENT, LAW OFFICE FAILURE REJECTED AS AN EXCUSE FOR FAILURE TO TIMELY ENTER A DEFAULT JUDGMENT, CRITERIA EXPLAINED (SECOND DEPT))

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ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERLY REJECTED (SECOND DEPT).

The Second Department noted that arguments first raised in reply papers were properly rejected:

After the plaintiff commenced this action, inter alia, to recover damages for malicious prosecution, the defendants moved to dismiss the complaint … . … [T]he Supreme Court granted the defendants’ unopposed motion to dismiss the complaint … .

More than eight months later, the plaintiff moved for leave to enter a default judgment in her favor. After opposition papers were served, the plaintiff served a reply affirmation, in which she requested that the Supreme Court consider her motion to be one to vacate the order of dismissal, and thereupon, for leave to enter a default judgment in her favor. The court denied, as academic, the plaintiff’s motion for leave to enter a default judgment in light of the dismissal order. The court also denied the plaintiff’s application to deem her motion to also be considered as one to vacate the dismissal order, and the plaintiff appeals from that portion of the order.

The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds or evidence for, the motion … . Here, the plaintiff’s reply papers included new arguments in support of the motion, new grounds and evidence for the motion, and expressly requested relief that was dramatically unlike the relief sought in her original motion … . Therefore, those contentions, and the grounds and evidence in support of them, were not properly before the Supreme Court … . Accordingly, we agree with the court’s determination to deny the plaintiff’s application to deem her motion to also be considered as one to vacate the dismissal order. Lee v Law Offs. of Kim & Bae, P.C., 2018 NY Slip Op 03516, Second Dept 5-16-18

​CIVIL PROCEDURE (ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERTY REJECTED (SECOND DEPT))/REPLY PAPERS (CIVIL PROCEDURE, ARGUMENTS FIRST RAISED IN REPLY PAPERS PROPERTY REJECTED (SECOND DEPT))

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MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate the default judgment and serve an amended answer should have been granted:

Pursuant to CPLR 5015(a)(1), a party seeking to vacate a default must demonstrate a reasonable excuse for his or her default and a potentially meritorious claim or defense … . “The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion” … . “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits”… . “[T]he court has discretion to accept law office failure as a reasonable excuse … where that claim is supported by a detailed and credible explanation of the default at issue” … . “While it is generally within the discretion of the court to determine what constitutes a reasonable excuse, reversal is warranted if that discretion is improvidently exercised” … .

Here, the affidavits and documentary evidence submitted by the defendant in support of his motion, taken together, set forth a detailed and credible explanation for the defendant’s failure to appear at the hearing and for any delay in moving to vacate his default … . In addition, there was no showing of prejudice to the plaintiff, and no evidence that the defendant willfully defaulted or otherwise intended to abandon his defense of this action … . Furthermore, the defendant’s submissions demonstrated a potentially meritorious defense to the complaint … . Gately v Drummond, 2018 NY Slip Op 03507, Second Dept 5-16-18

​CIVIL PROCEDURE (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/DEFAULT (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 5015 (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT))

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DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorneys failed to demonstrate plaintiffs suffered no damages in this legal malpractice action. Plaintiffs alleged defendants delayed in evicting plaintiffs’ tenants resulting in $500,000 in lost rent. Defendants, in their motion for summary judgment, alleged only that plaintiffs’ damages were speculative, which merely pointed to gaps in plaintiffs’ proof and is never enough for an award of summary judgment:

The defendants failed to submit evidence establishing, prima facie, that the plaintiffs are unable to prove at least one essential element of the cause of action alleging legal malpractice … . The defendants’ styling of the plaintiffs’ damages theory as “speculative” was merely an effort to point out gaps in the plaintiff’s proof, which was insufficient to meet the defendants’ burden as the party moving for summary judgment … .

Moreover, even if the plaintiffs’ damages cannot be precisely calculated at this stage, expenses to the client resulting from attorney delays are deemed to be ascertainable damages in connection with a legal malpractice cause of action … . Iannucci v Kucker & Bruh, LLP, 2018 NY Slip Op 03514, Second Dept 5-16-18

​ATTORNEYS (MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/LEGAL MALPRACTICE (DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, LEGAL MALPRACTICE,  DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))

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THE MEANING OF ‘SUBSTANTIAL EVIDENCE’ SUFFICIENT TO SUPPORT A DETERMINATION IN AN ADMINISTRATIVE HEARING EXPLAINED (SECOND DEPT).

The Second Department, in confirming the Commissioner of Public Safety’s termination of General Municipal Law 207-a benefits for an injured firefighter, explained what the term “substantial evidence” means in the context of an administrative hearing:

… [A]fter an examination, the respondents’ medical examiner found that the petitioner was capable of returning to light duty and that there would be a “medium to moderate” chance that he would be able to resume full duty if he underwent spinal fusion surgery. Thereafter, the respondents’ fire chief sent the petitioner a letter ordering him to return to work … , to assume a light duty position, or risk losing his benefits. A second letter … directed the petitioner to schedule the fusion surgery. The petitioner did not return to work … , and did not undergo surgery, choosing instead to proceed with a challenge of the return to work order.

After a hearing, the hearing officer concluded that the fire chief’s orders were “reasonable and rational,” and that the petitioner’s failure to comply with those orders was without justification. The respondents adopted the recommendations of the hearing officer. The petitioner commenced this CPLR article 78 proceeding to review the determination.

The petitioner argues that the respondents’ determination is not supported by substantial evidence. We disagree. “Substantial evidence means more than a mere scintilla of evidence and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides”… . Matter of Sestito v City of White Plains, 2018 NY Slip Op 03528, Second Dept 5-16-18

​ADMINISTRATIVE LAW (EVIDENCE, THE MEANING OF ‘SUBSTANTIAL EVIDENCE’ SUFFICIENT TO SUPPORT A DETERMINATION IN AN ADMINISTRATIVE HEARING EXPLAINED (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, THE MEANING OF ‘SUBSTANTIAL EVIDENCE’ SUFFICIENT TO SUPPORT A DETERMINATION IN AN ADMINISTRATIVE HEARING EXPLAINED (SECOND DEPT))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, THE MEANING OF ‘SUBSTANTIAL EVIDENCE’ SUFFICIENT TO SUPPORT A DETERMINATION IN AN ADMINISTRATIVE HEARING EXPLAINED (SECOND DEPT)

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CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT).

The First Department determined the defendant city demonstrated that it did not create or have actual or constructive notice of the black ice in the crosswalk where plaintiff slipped and fell. The decision illustrates the level of proof necessary for a defendant’s successful summary judgment motion in a slip and fall case:

The City established entitlement to judgment as a matter of law in this action for personal injuries sustained when plaintiff slipped and fell on “black ice,” while crossing a cleared crosswalk, eight days after there was a snowfall of about 20 inches. The City submitted evidence showing it neither created nor had actual or constructive notice of the black ice that allegedly caused plaintiff’s fall, including deposition testimony from a Department of Sanitation supervisor detailing the City’s extensive snow and ice removal efforts in the area of the accident in the days preceding the accident. The City also submitted climatological records showing temperature fluctuations above and below freezing in the two days before the date of the accident, and freezing temperatures in the hours immediately preceding plaintiff’s fall. Thus, the City demonstrated that it would be speculative to conclude that it caused or had sufficient time to remedy the subject icy condition… . The City further showed lack of constructive notice by submitting plaintiff’s deposition testimony that the crosswalk appeared to have been cleared for safe crossing and that she did not observe the black ice until after she fell … .

In opposition, plaintiff failed to raise an issue of fact. She provided no evidence of actual or constructive notice of the black ice in the crosswalk, which she admittedly did not see. Plaintiff also failed to provide any nonspeculative basis for finding that the City’s snow clearing efforts were negligent or that they exacerbated the dangerous conditions that were created by the blizzard… . The opinion of plaintiff’s expert that the City should have checked the crosswalk twice daily for possible “thaw and refreeze,” was unsupported by reference to any authority, standard, or other corroborating evidence … . Pena v City of New York, 2018 NY Slip Op 03477, First Dept 5-15-18

​NEGLIGENCE (SLIP AND FALL, CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT))/MUNICIPAL LAW (SLIP AND FALL, CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT))/SLIP AND FALL (CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT))

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PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID-REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT).

The First Department, annulling the determination of the NYS Office for People with Developmental Disabilities, held that the petitioner demonstrated an intellectual disability qualifying her for Medicaid-reimbursed home and community based services:

In order to obtain Medicaid-reimbursed home and community based services, an applicant must demonstrate that he or she suffers from a “developmental disability.” An “intellectual disability” that originated before age 22, is expected to continue indefinitely, and constitutes a “substantial handicap” to the person’s ability to function normally in society, is a qualifying condition (Mental Hygiene Law § 1.03[22] [a][1], [b], [c] and [d]). The American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (5th ed 2013) (Manual) defines “intellectual disability” as a disorder characterized by, inter alia, (1) general deficits in areas such as reasoning, problem solving and abstract thinking and (2) deficits in adaptive functioning, such as how well the person meets community standards of personal independence and social responsibility as compared to others of similar age and social responsibility. The term “intellectual disability” replaced the term “mental retardation.”

Here, respondent’s determination is not supported by substantial evidence … . Rather, the record demonstrates that petitioner met the qualifications as all of the evaluations that were performed before petitioner was 22 years old demonstrated an I.Q. below 70, which was the rough cut off for normal intellectual function. Deficits in her adaptive functioning were also noted repeatedly over the years. Moreover, it was entirely speculative to opine that petitioner’s I.Q. would have been higher but for co-occurring conditions. Matter of Spencer-Cedeno v Zucker, 2018 NY Slip Op 03488, First Dept 5-15-18

​MEDICAID (INTELLECTUAL DISABILITY, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))/MENTAL HYGIENE LAW  (INTELLECTUAL DISABILITY, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))/INTELLECTUAL DISABILITY (MEDICAID, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))/DEVELOPMENTAL DISABILITY, MEDICAID, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))

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