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THE NEGLIGENT SUPERVISION ACTION AGAINST PHYSICAL-THERAPY DEFENDANTS SOUNDED IN MEDICAL MALPRACTICE REQUIRING EXPERT OPINION EVIDENCE; THE DOCTRINE OF OSTENSIBLE OR APPARENT AGENCY RAISED A QUESTION OF FACT WHETHER THE PHYSICAL-THERAPY FACILITY WAS VICARIOUSLY LIABLE FOR THE ALLEGED NEGLIGENCE OF THE THERAPIST, WHO WAS AN INDEPENDENT CONTRACTOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) the negligent supervision cause of action against defendants’ physical therapy services sounded in medical malpractice and therefore required expert opinion evidence; and (2) the defendant physical therapist (Gonikman) was an independent contractor but the doctrine of ostensible or apparent agency raised a question of fact about the facility’s (KCM’s) vicarious liability for Gonikman’s alleged negligence. Plaintiff’s infant daughter, who was receiving physical therapy, fell off a scooter and was injured:

Though a medical facility can be held liable for the negligence or malpractice of its employees, it is not generally held liable when the treatment is provided by an independent contractor, even if the facility affiliates itself with that independent contractor … . However, the facility may be held vicariously liable under a theory of apparent or ostensible agency by estoppel … . “In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal” … . “The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent” … . “Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent’s skill” … . …

… [S]ince the conduct at issue in the complaint stems from Gonikman’s generalized treatment plan and alleged negligent supervision of the infant daughter during her physical therapy session, the allegation sounds in medical malpractice, not ordinary negligence, because Gonikman’s duty towards the infant daughter derived from the physical therapist-patient relationship … . In support of his cross motion, Gonikman merely submitted a conclusory statement that his therapy plan of activities was consistent with the accepted standard of care, and he failed to submit an expert’s affidavit to establish that he did not deviate from the accepted standard of care for physical therapy … . Weiszberger v KCM Therapy, 2020 NY Slip Op 07425, Second Dept 12-9-20

 

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DEFENDANT’S RIGHT TO COUNSEL ATTACHED AT THE PENNSYLVANIA ARRAIGNMENT; SUBSEQUENT QUESTIONING BY PENNSYLVANIA POLICE IN THE ABSENCE OF COUNSEL VIOLATED DEFENDANT’S RIGHT TO COUNSEL; NEW YORK POLICE DID NOT MAKE A REASONABLE INQUIRY INTO DEFENDANT’S REPRESENTATIONAL STATUS (FOURTH DEPT). ​

The Fourth Department, affirming the suppression of statements made by defendant, determined defendant had requested counsel at his arraignment in Pennsylvania and therefore subsequent questioning by Pennsylvania police about New York (Jamestown) offenses in the absence of counsel violated his right to counsel:

On March 28, 2017, defendant participated in a preliminary arraignment in Pennsylvania … , and the record supports the finding of County Court that defendant requested counsel during that proceeding. On April 4, 2017, members of the Jamestown Police Department traveled to Pennsylvania to interview defendant about the Jamestown arsons. Although the Jamestown police officers ultimately did not interview defendant themselves, they observed while Pennsylvania State Troopers interrogated defendant, in the absence of defense counsel, about the offenses allegedly committed in Pennsylvania. During that interrogation, the Pennsylvania State Troopers also questioned defendant about the New York offenses, and defendant made inculpatory statements about the Jamestown fires. * * *

…[E]even though the interview was carried out by Pennsylvania State Troopers, their interrogation is nevertheless subject to this state’s right to counsel jurisprudence inasmuch as they were agents of the Jamestown police officers … . ,,,

The Court of Appeals has held that “an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge” … . Here, although the [Jamestown] captain asked whether defendant was represented by counsel, based on this record, we conclude that the captain’s inquiry was not reasonable inasmuch as he failed to ask whether defendant had requested counsel. People v Young, 2020 NY Slip Op 01825, Fourth Dept 3-13-20

 

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QUESTION OF FACT WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIES IN THIS MEDICAL MALPRACTICE CASE; QUESTION OF FACT WHETHER THE MEDICAL CENTER IS LIABLE UNDER THE OSTENSIBLE AGENCY DOCTRINE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined: (1) there is a question of fact whether the doctrine of res ipsa loquitur applied in this medical malpractice action; (2) the lack of informed consent cause of action should be reinstated; (3) there is a question of fact whether the medical center (NYU Langone) is liable for the anesthesiologist (Coopersmith) who performed the pre-surgery nerve block pursuant to the doctrine of ostensible agency; and (4) the action against the doctor who assisted Dr. Coopersmith was properly dismissed because she didn’t exercise any independent judgment in the procedure:

… [W]e agree with plaintiff that she sufficiently established that the doctrine of res ipsa loquitur applies to her cause of action for medical malpractice. The parties’ experts disagreed as to whether plaintiff’s injury ordinarily occurs in the absence of negligence, raising an issue of fact on that point … . Plaintiff also established that defendants were in control of all instruments used in the nerve block, and plaintiff’s actions did not contribute to her injuries … . To the extent that defendants’ expert opined that post-operative symptoms and image studies were not consistent with needle trauma to a nerve, that opinion did not refute plaintiff’s assertion of res ipsa loquitur because it failed to identify any other possible cause of plaintiff’s plexopathy, let alone a more probable cause … . Moreover, defendants’ expert did not dispute that plaintiff sus tained nerve damage and did not opine that the nerve damage pre-existed the surgery. …

We agree with defendants that they were entitled to a determination that no actual agency existed between NYU Langone and Dr. Coopersmith because NYU Langone did not employ or otherwise control Dr. Coopersmith. However, we find that an issue of fact exists as to whether NYU Langone could be held liable for Dr. Coopersmith’s actions in his treatment of plaintiff through ostensible agency. It is undisputed that plaintiff was treated by Dr. Feldman [the surgeon] because she sought out his care. However, Dr. Feldman testified that he did not choose which anesthesiologist at NYU Langone would perform the nerve block on plaintiff, instead an anesthesiologist was assigned by the Department of Anesthesia. A jury could reasonably infer from this testimony that Dr. Coopersmith was provided by NYU Langone and that plaintiff reasonably believed that Dr. Coopersmith was acting on NYU Langone’s behalf … . Sklarova v Coopersmith, 2020 NY Slip Op 01033, First Dept 2-13-20

 

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DEFENDANTS’ ATTORNEYS HAD APPARENT AUTHORITY TO BIND DEFENDANTS TO THE OPEN-COURT STIPULATED SETTLEMENT OF $8,875,000; IN ADDITION, DEFENDANTS RATIFIED THE STIPULATION BY FAILING TO TIMELY OBJECT TO IT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that defendants (the Infiniti defendants) were bound by an open-court stipulated settlement of $8,875,000 in this personal injury case. The attorneys had apparent authority to bind the defendants. And the defendants ratified the stipulation by failing to timely object to it:

I write to highlight the fundamental principle that parties are bound by stipulations signed in open court by their attorneys. The issue arose in the context of a negligence case, where plaintiff was seriously injured when she was struck by a motor vehicle while standing on a sidewalk median in Brooklyn. The vehicle was owned by defendant Infiniti of Manhattan, Inc. and driven by defendant Massamba Seck (the Infiniti defendants). Plaintiff suffered serious injuries and required extensive hospitalization and multiple surgeries. At issue in this case is whether the Infiniti defendants are bound by a settlement agreement entered into by their attorneys. We find that the Infiniti defendants are bound, because their attorneys had apparent authority to bind them to the $8,875,000 judgment. Significantly, there is no affidavit or testimony by Infiniti stating that Infiniti, or any of its employees, was unaware of the settlement or that Infiniti did not authorize the settlement. The only ones making this claim are the lawyers from the firm that was hired by the insurance companies to defend the Infiniti defendants. The fact that one of the insurers is now unable to pay its intended $5 million portion does not inure to the Infiniti defendants’ benefit. Rather, the Infiniti defendants are responsible for the portion of the agreed-upon amounts that the insurers do not pay. To accept their position would alter the way litigation is conducted in New York State. Courts would have to conduct colloquies in every case to make sure that the parties, notwithstanding their attorneys’ actions in appearing for them on numerous occasions and signing stipulations, acquiesced in the terms of the stipulations. That is unacceptable, especially here, where the Infiniti defendants never objected to the stipulation until the filing of the instant order to show cause more than a year and six months after the stipulation was signed in open court. Pruss v Infiniti of Manhattan, Inc., 2020 NY Slip Op 00229, First Dept 1-9-20

 

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QUESTION OF FACT WHETHER THERE EXISTED A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND DEFENDANT INSURANCE BROKER SUCH THAT THE BROKER COULD BE LIABLE FOR THE FAILURE TO PROCURE ADEQUATE COVERAGE FOR A DEMOLITION PROJECT (FIRST DEPT).

The First Department, reversing Supreme Court, determined there is a question of fact whether a special relationship existed between plaintiffs and defendant insurance broker, thereby making the broker liable for the failure to procure adequate coverage for a demolition contract:

Issues of fact exist as to whether a special relationship arose between plaintiff STB Investments Corporation and its managing agent plaintiff 303 West 42nd Street Realty Co. (plaintiffs), on the one hand, and defendant insurance broker, on the other, that imposed on defendant a duty to advise plaintiffs as to insurance coverage that would have included the loss arising from plaintiffs’ demolition project … . Plaintiffs contend that the special relationship arose from an interaction with defendant in which they relied on defendant’s expertise as to coverage. There is evidence that plaintiffs’ property manager, who allegedly had never before purchased insurance for a demolition project, requested that defendant obtain adequate coverage for that particular risk, and that defendant agreed to do so, reviewed the demolition contract as part of its efforts, and discussed with plaintiffs the demolition contractor’s coverage in the larger context of determining the appropriate level of coverage to obtain for plaintiffs … . STB Invs. Corp. v Sterling & Sterling, Inc., 2019 NY Slip Op 08606, First Dept 12-3-19

 

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THREE AND A HALF MONTH DELAY IN NOTIFYING THE INSURER OF THE LAWSUIT VIOLATED THE POLICY PROVISION REQUIRING NOTICE AS SOON AS PRACTICABLE; THE DISCLAIMER MAILED 29 DAYS AFTER NOTICE OF THE SUIT WAS RECEIVED BY THE INSURER WAS TIMELY AND PRECLUDED SUIT AGAINST THE INSURER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not timely notify the insurer of the action and the insurer’s disclaimer on that ground was timely. Plaintiff alleged she was sexually assaulted by defendant Braun, an employee of defendant APS. Braun received the summons and complaint on October 31, 2008. Braun was deemed an agent of his employer APS. The insurer was not notified of the suit until February 12, 2009. The disclaimer was mailed on March 16, 2009. The claim was settled with the defendants for more than $3 million. Plaintiff then sued the insurer:

Braun’s receipt of the October 31, 2008, letter with the summons and complaint was within the scope of his employment as an officer of APS, and, as an insured under the policies, he had a duty to notify the insurers of the claim … . Moreover, given that the plaintiff, and not APS, was the victim of Braun’s conduct, there is no adversity to negate the imputation of Braun’s knowledge to the corporation [i.e., the adverse interest exception did not apply]. …

Since APS had knowledge of the claim against it as of October 31, 2008, but did not give notice to the insurers until February 12, 2009, it failed to provide notice as soon as practicable, in violation of the policy conditions … . …

Here, the insurers timely disclaimed coverage following a thorough and diligent investigation. Contrary to the plaintiff’s contention, the insurers did not have all the information they needed to disclaim coverage on February 12, 2009, and they properly commenced an investigation to determine the specifics surrounding the incident and to verify when APS first acquired knowledge of the claim … . Issuance of the disclaimers 29 days after the insurers’ receipt of notice was therefore reasonable as a matter of law under the circumstances. Plotkin v Republic-Franklin Ins. Co., 2019 NY Slip Op 08233, Second Dept 11-13-19

 

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE PEOPLE DID NOT DISPROVE DEFENDANT’S AGENCY DEFENSE; THE VERDICT WAS REPUGNANT IN THAT GUILTY AND NOT GUILTY FINDINGS CAN NOT BE RECONCILED (SECOND DEPT).

The Second Department vacated defendant’s convictions in this drug/possession/sale case, finding the People did not disprove the agency defense with respect to one of the two transactions, and the verdict was repugnant in the sense guilty and not guilty findings could not be reconciled.  With respect to the agency defense, the Second Department applied a “weight of the evidence” analysis. The facts are too complex to fairly summarize here:

The following factors are considered in evaluating the strength of an agency defense: “(1) did the defendant act as a mere extension of the buyer throughout the relationship, with no independent desire to promote the transaction; (2) was the purchase suggested by the buyer; (3) did the defendant have any previous acquaintance with the seller; (4) did the defendant exhibit any salesman like behavior; (5) did the defendant use his [or her] own funds; (6) did the defendant procure from many sources for a single buyer; (7) did the buyer pay the seller directly; (8) did the defendant stand to profit; and (9) was any reward promised in advance” … . …

A verdict is repugnant only if, when viewed in light of the elements of each crime as charged to the jury, “it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other” … . The purpose of the rule is to ensure that an individual is not convicted of a crime of which a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt … . People v Cruz, 2019 NY Slip Op 07273, Second Dept 10-9-19

 

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PLAINTIFF FELL THROUGH AN INADEQUATELY PROTECTED HOLE IN DEFENDANT’S BUILDING WHEN HE (APPARENTLY) WAS DOING WORK ON BEHALF OF HIS EMPLOYER, APPARENTLY A TENANT IN THE BUILDING; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AGAINST THE BUILDING OWNER; BUT PLAINTIFF PRESENTED NO PROOF HIS EMPLOYER HAD ASSUMED THE DUTIES OF AN AGENT OF THE OWNER FOR SUPERVISION OF HIS WORK, THEREFORE SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) ACTION AGAINST THE EMPLOYER WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff’s Labor Law 240 (1) cause of action against the building owner should have been granted, but his Labor Law 240 (1) cause of action against his employer, Bright Way, was properly denied because plaintiff presented no proof Bight Way acted as the owner’s agent. Apparently Bright Way occupies the owner’s building. Plaintiff is a salesman for Bright Way. Plaintiff was instructed to run a thermostat wire on the second floor of the building when he fell 15 feet through an inadequately protected hole:

Labor Law § 240(1) “imposes liability only on contractors, owners or their agents” (…see Labor Law § 240[1]). “An agency relationship for purposes of section 240(1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job”… . “Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent of the owner or general contractor” … . “The key question is whether the defendant had the right to insist that proper safety practices were followed” … . “[U]nless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law” … .

Here, the plaintiff’s evidence failed to establish, prima facie, that Bright Way was an agent of the property owner or one of its contractors at the site. The evidence proffered by the plaintiff in support of his motion did not establish that Bright Way had been delegated the “duty to conform to the requirements of the Labor Law”… , that Bright Way “had the right to insist that proper safety practices were followed” at the construction site … , that Bright Way had “broad responsibility” to coordinate and supervise “all the work being performed on the job site” … , or that Bright Way had requested or been granted authority by the owner or contractor to supervise and control the work in the area where the accident occurred … . Yiming Zhou v 828 Hamilton, Inc., 2019 NY Slip Op 04752, Second Dept 6-12-19

 

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DEFENDANT RESTAURANT CAN BE LIABLE FOR THE NEGLIGENCE OF THE VALET PARKING SERVICE WITH WHICH IT CONTRACTED IF THE RESTAURANT HAD THE ABILITY AND OPPORTUNITY TO CONTROL THE CONDUCT OF THE CONTRACTOR, IF ESPINAL EXCEPTIONS APPLY, AND UNDER AN AGENCY THEORY, THE RESTAURANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (FIRST DEPT).

The First Department determined the restaurant’s (Dolphin’s) motion for summary judgment in this action alleging negligence on the part of a valet parking service (APV) with which the restaurant had contracted was properly denied:

A restaurant providing valet parking services can be held liable for the negligence of the service whose attendants are alleged to have caused an accident to a third party. This is the case even where the service is an independent contractor with which the restaurant has contracted … .

This duty arises [under Espinal] when there is an ability and opportunity to control the conduct of the restaurant’s contractors and an awareness of the need to do so. Thus, Dolphin cannot assert that it signed a contract with the valet parking service and then “covered its eyes with a blindfold”; rather, Dolphin was required to select a company “with, at the minimum, both appropriate insurance and competent drivers”. Defendant restaurant w … as able to decline to enter into any contract for valet services it felt insufficient, and therefore in the best position to protect against the risk of harm.

Dolphin similarly failed to demonstrate that it did not create an unreasonable risk of harm to others or that APV entirely displaced its duty to maintain the valet parking area safely … . Indeed, the evidence showed, inter alia, that the restaurant and the valet service communicated on a daily basis to determine proper staffing. The restaurant, further, obtained parking spots for the valet service to utilize on its behalf. The restaurant informed the valet service in advance of functions so that staffing could be arranged. The parties’ agreement similarly provided that service was provided “as requested” by the restaurant, and that it was the restaurant’s obligation to provide the schedule for each week.

Dolphin may also be liable under the doctrine of ostensible agency or apparent authority and thus estopped from denying liability for an entity it held out as its agent … . Evans v Norecaj, 2019 NY Slip Op 04029, First Dept 5-23-19

 

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CONDOMINIUM UNIT OWNERS’ AUTHORIZATION OF THE CONDOMINIUM BOARD TO CHALLENGE THE CONDOMINIUM’S REAL PROPERTY TAX ASSESSMENT REMAINS VALID FOR SUBSEQUENT TAX YEARS UNLESS CANCELED OR RETRACTED, THERE IS NO NEED FOR YEARLY AUTHORIZATIONS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two judge dissent, reversing the Appellate Division, determined that a condominium board of managers need only seek one authorization from condominium unit owners to challenge the condominium’s real property tax assessment  The authorization is deemed to remain in effect in subsequent tax years unless canceled or retracted:

This appeal presents the question whether Real Property Law § 339-y (4) requires a condominium board of managers to obtain a separate authorization from each condominium unit owner granting the board authority to proceed on behalf of that owner for each tax year in which the board challenges the condominium’s real property tax assessment. We conclude that section 339-y (4) allows a standing authorization issued by an owner to confer authority upon a board to act on behalf of that owner for the tax year in which that authorization was issued and in all subsequent tax years, unless such authorization is canceled or retracted. Matter of Eastbrooke Condominium v Ainsworth, 2019 NY Slip Op 02384, CtApp 3-28-19

 

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