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THE FAILURE TO GRANT PLAINTIFF’S REQUEST THAT THE JURY BE GIVEN AN INTERROGATORY ON THE THEORY THE SURGEON IMPROPERLY PERFORMED A PROCEDURE WAS REVERSIBLE ERROR ( SECOND DEPT).

The Second Department, ordering a new trial on one of the theories of negligence, determined plaintiff’s request that the jury be given an interrogatory should have been granted:

… [T]he Supreme Court erred in denying the plaintiff’s request that the jury be given an interrogatory asking whether [defendant] Lazzaro departed from good and accepted standards of medical practice by “the improper performance of a surgical procedure,” and therefore a new trial is required on this theory of negligence. “‘Jury interrogatories must be based on claims supported by the evidence'” … . “‘The trial court has broad discretion in deciding whether to submit interrogatories to the jury'” … . “However, where there is sufficient evidence to support a plaintiff’s cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory” … .

Here, the plaintiff introduced sufficient evidence at trial to support her theory that Lazzaro departed from good and accepted standards of medical practice by the manner in which he performed the surgery … . Lawrence v New York Methodist Hosp., 2024 NY Slip Op 05571, Second Dept 11-13-24

Practice Point: In this medical malpractice case, there was sufficient proof a defendant improperly performed a surgical procedure to warrant granting plaintiff’s request to give the jury an interrogatory on the issue. The denial of the request was deemed reversible error.

 

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THERE WAS NO PROOF THE ORDER TO SHOW CAUSE WAS ACTUALLY DELIVERED TO THE INCARCERATED DEFENDANT; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the order to show cause was not properly served on the incarcerated defendant, requiring vacation of the default judgment:

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with” … . “The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” … .

The order granting plaintiff summary judgment on his claims without opposition submitted by defendant and the related Special Referee order awarding damages are vacated. Defendant affirmed that he did not know of, or have access to, the summary judgment motion hand-delivered and served by plaintiff’s process server on a receptionist at the prison where defendant is incarcerated until after the order granting summary judgment was entered. Plaintiff’s service on the prison employee who assured that the motion would be given to plaintiff did not satisfy the court’s order to show cause approving alternative means of service that were applicable to the service of legal papers on the incarcerated defendant, and which required plaintiff to obtain at least some evidence from the prison that the served documents had, in fact, been delivered to the prisoner. The presumption of effective service arising from a valid affidavit of a process server does not apply here. The court approved an alternative means of service on the defendant incarcerated in a foreign prison, and plaintiff failed to comply. Therefore, defendant’s unrebutted claim that he did not receive the motion is not conclusory and requires vacatur of the default. Bacon v Nygard, 2024 NY Slip Op 05478, First Dept 11-7-24

Practice Point: Here service of an order to show cause upon the incarcerated defendant was not supported by any evidence the order to show cause was actually delivered to the defendant after it was given to a prison employee, Therefore the default judgment was vacated.

 

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ACCORDING TO THE MEDICAL RECORDS, PLAINTIFF PROVIDED HER TREATING PHYSICIAN WITH A DESCRIPTION OF HER SLIP AND FALL WHICH DIFFERED FROM HER DESCRIPTION IN HER DEPOSITION TESTIMONY; PLAINTIFF’S MOTION TO QUASH THE SUBPOENA SERVED ON THE PHYSICIAN SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to quash the subpoena served on plaintiff’s treating physician, Dr. Monfett, in this slip and fall case should not have been granted. The medical records revealed plaintiff told the treating physician she tripped and fell breaking up a fight in a subway station. Plaintiff testified she fell because of a broken sidewalk in front of defendant’s building. The court noted that the statement in the medical record may be inadmissible hearsay without the physician’s testimony linking the statement to the plaintiff:

Dr. Monfett’s deposition is material and necessary to the defense because plaintiff’s account of her accident to the doctor conflicts with her deposition testimony, and this discrepancy bears directly on defendants’ potential liability, as well as plaintiff’s credibility … . Furthermore, the deposition is necessary because plaintiff’s statements in the medical record likely would be inadmissible as hearsay without the doctor’s testimony attributing them to her … . Defendants were not required to demonstrate “special circumstances” warranting Dr. Monfett’s deposition because they seek to depose him “solely with regard to plaintiff’s account of the accident, not for any expert medical opinion regarding plaintiff’s diagnosis or treatment” … . Ogando v 40 X Owner LLC, 2024 NY Slip Op 05491, First Dept 11-7-24

Practice Point: Here defendants subpoenaed plaintiff’s treating physician because the statement attributed to plaintiff in her medical records differed from her description of the trip and fall in her deposition testimony. The defendants were not seeking to depose the physician as an expert concerning plaintiff’s diagnosis or treatment, but rather were focused on plaintiff’s apparently conflicting account of the accident, which would be inadmissible hearsay without the physician’s testimony.

 

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IN THIS CHILD VICTIM’S ACT CASE ALLEGING SEXUAL ABUSE AFTER PLACEMENT IN FOSTER CARE BY THE DEFENDANT COUNTY, THE SECOND DEPARTMENT, DISAGREEING WITH THE FIRST AND FOURTH DEPARTMENTS, DETERMINED THE COUNTY OWED PLAINTIFF A SPECIAL DUTY UPON ASSUMING CUSTODY OVER HER FOR FOSTER-CARE PLACEMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, affirming Supreme Court’s denial of the county’s motion for summary judgment, expressly disagreeing with contrary rulings in the First and Fourth Departments, determined a municipal agency which assumes custody over a child for the purpose of placing the child in foster care owes a special duty to the child. In this Child Victims Act case, plaintiff alleged sexual abuse during the 1970’s by her foster father and, during a different foster placement, by her adult neighbor:

The Court of Appeals has long held that “an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public” … . In this case, we consider how this rule applies in the context of claims against municipalities for the negligent placement and supervision of children in foster care. In contrast to the recent holdings of the Appellate Division, First and Fourth Departments, we conclude that a municipal agency owes a special duty to a foster child upon assuming legal custody of that child. An agency that assumes custody of a foster child, and which selects and supervises that child’s foster parents, necessarily owes a duty to the child “more than that owed the public generally” … . Thus, where, as here, a plaintiff asserts causes of action to recover damages for harm suffered by a foster child due to the negligent performance of a governmental function and alleges facts sufficient to show that the defendant municipal agency assumed legal custody over that child, that plaintiff need not prove any additional facts in order to satisfy the special duty rule. Adams v Suffolk County, 2024 NY Slip Op 05428, Second Dept 11-6-24

Practice Point: A municipality’s liability for negligence in performing a governmental function is predicated upon owing the injured party a special duty, over and above that owed to the general public. Here, disagreeing with contrary holdings in the First and Fourth Departments, the Second Department held a county which assumes custody of a child for placement in foster care owes a special duty to that child.

 

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THE ATTORNEY’S “CERTIFICATE OF TRANSLATION” DID NOT INCLUDE SUFFICIENT DETAIL ABOUT THE ATTORNEY’S KNOWLEDGE OF THE SPANISH LANGUAGE; THEREFORE THE TRANSLATION OF PLAINTIFF’S AFFIDAVIT WAS NOT ADMISSIBLE AND SUMMARY JUDGMENT WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, reversing summary judgment in favor of plaintiff in this traffic accident case, determined the attorney’s “certificate of translation” was not sufficient to render plaintiff’s affidavit, written in Spanish, admissible:

… [P]laintiff submitted an affidavit in which he averred, among other things, that the “affidavit was translated to me from English to Spanish prior to my signing by a person who speaks Spanish as it is my native language and the language I understand best.” The plaintiff also submitted a certificate of translation by an associate attorney at his counsel’s law office in which the associate attorney affirmed, without elaboration, that she is fluent in English and Spanish and competent to translate documents from one language to the other. Under these circumstances, the conclusory certificate of translation does not contain sufficient detail concerning the extent of the associate attorney’s knowledge of the Spanish language. As such, the associate attorney’s certificate of translation was insufficient to state the associate attorney’s qualifications, rendering the plaintiff’s affidavit inadmissible (see CPLR 2101[b] …). Reyes v Underwood, 2024 NY Slip Op 05466, Second Dept 11-6-24

Practice Point: Here plaintiff’s affidavit in support of summary judgment was in Spanish. An attorney provided a “certificate of translation” which did not include sufficient detail about the attorney’s knowledge of the Spanish language. Therefore the affidavit was inadmissible.​

 

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MOTHER MADE OUT A PRIMA FACIE CASE FOR RELOCATING WITH THE CHILD IN THIS CUSTODY PROCEEDING; CREDIBILITY ISSUES PLAY NO ROLE AT THE MOTION-TO-DISMISS STAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother had made out a prima facie case for relocating to a different county with the child. The petition for a modification of custody should not have been dismissed:

“In deciding a motion to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom” … . “The question of credibility is irrelevant, and should not be considered” … .

Here, accepting the petitioner’s evidence as true and affording her the benefit of every favorable inference, the petitioner presented sufficient evidence to establish a prima facie case that relocating with the child to Bergen County might be in the child’s best interests … . At the hearing, the petitioner and her spouse testified that they wanted to relocate to Bergen County because they would have family support there and the child liked spending time with family members living in that area. The petitioner further testified that if she were permitted to relocate, she would continue the respondent’s parental access schedule set forth in the stipulation of settlement and would agree to additional parental access for the respondent. We note that the Family Court did not ascertain from the attorney for the child the position of the then 11-year-old child or conduct an in camera interview with the child … . Matter of Fortune v Jasmin, 2024 NY Slip Op 05443, Second Dept 11-6-24

Practice Point: In considering a motion to dismiss a petition for a modification of custody credibility issues are irrelevant.​

 

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PHOTOS SUBMITTED AS A NOTICE TO ADMIT DID NOT SHOW THE METAL OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL; ALTHOUGH THE PHOTOS ARE DEEMED TO SHOW THE PROJECT SITE ON THE DAY OF THE FALL, THERE WAS NO EVIDENCE THE PHOTOS DEPICTED THE CONDITION OF THE SITE AT THE TIME OF THE FALL OR IMMEDIATELY PRIOR TO THE FALL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff alleged he tripped on metal debris and fell. Defendants submitted three photographs alleged to depict the project site on the day of the plaintiff’s fall as a notice to admit. The photos did not show any metal debris. Although plaintiff did not respond to the notice to admit, thereby deeming the allegations admitted, the photos did not establish the condition of the depicted area at the time of plaintiff’s trip and fall, or immediately prior to the fall:

According to plaintiff, his accident occurred as he was retrieving wooden planks for his coworker to install on the floor. Doing so required plaintiff to traverse over an uncovered beam pocket measuring three feet wide and three feet deep. His accident occurred when he tripped over metal debris on the floor and fell into the beam pocket. Plaintiff was wearing a harness with a yo-yo/at the time of his accident, but there was no place for him to tie off. * * *

… Defendants rely on a notice to admit that they served on plaintiff seeking his admissions that three photos annexed thereto … depicted the project site on the day of plaintiff’s accident. Plaintiff did not respond to the notice to admit, deeming the allegations admitted (CPLR 3123 [a]). However, these admissions do not establish that those photos fairly and accurately depict the location of plaintiff’s accident either at the time thereof or immediately prior thereto. Thus, the absence from those photos of the metal on which plaintiff claims to have tripped does not raise an issue of fact as to the manner in which plaintiff’s accident occurred. Guzman-Saquisili v Harlem Urban Dev. Corp., 2024 NY Slip Op 05420, First Dept 10-31-24

Practice Point: Photos which depict the condition of the area of plaintiff’s fall on the day of the fall, without more specificity about when the photos were taken, may not be deemed to depict the area at the time of the fall or immediately prior to the fall.

 

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IN A CHILD VICTIMS ACT CASE AGAINST A TEACHER ALLEGED TO HAVE SEXUALLY ABUSED A STUDENT IN THE 60’S, THE BARE ALLEGATION IN THE COMPLAINT THAT THE EMPLOYER KNEW OR SHOULD HAVE KNOWN OF THE TEACHER’S PROPENSITY WAS NOT SUFFICIENT TO STATE A CAUSE OF ACTION; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint did not state a cause of action for negligent retention or negligent supervision of a teacher alleged to have sexually abused plaintiff in the 60’s. An allegation which merely states a bare legal conclusion is not entitled to consideration on a motion to dismiss. Here the complaint alleged defendant employer, YCQ,  “knew or should have known of the employee’s propensity for the conduct which caused the injury:”

… [T]o sustain the cause of action sounding in negligent supervision of a child, the plaintiff was required to allege that YCQ “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Similarly, “[a]n employer can be held liable under theories of negligent hiring, retention, and supervision where it is shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the complaint failed to state a cause of action alleging negligent retention of the religious studies teacher by YCQ and a cause of action alleging negligent supervision based upon YCQ’s failure to adequately supervise the plaintiff and/or the religious studies teacher, as the complaint did not sufficiently plead that YCQ knew or should have known of the religious studies teacher’s propensity for the type of conduct at issue … . While it is true that such causes of action need not be pleaded with specificity … , the complaint merely asserted the bare legal conclusion that YCQ “knew or should have known of [the religious studies teacher’s] propensity to sexually abuse minor students,” without providing any factual allegations that the religious studies teacher’s sexual abuse of the plaintiff was foreseeable … . Kessler v Yeshiva of Cent. Queens, 2024 NY Slip Op 05337, Second Dept 10-30-24

Practice Point: In a Child Victims Act case alleging negligent retention and negligent retention of a teacher who allegedly sexually abused a student, the bare allegation that the teacher’s employer knew or should have known of the teacher’s propensity was not enough to survive a motion to dismiss for failure to state a cause of action. Allegations which amount to bare legal conclusions will not be considered on a motion to dismiss.

 

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIES RETROACTIVELY TO THE 2005 DISONTINUANCE OF THE FORECLOSURE ACTION RENDERING THE ACTION COMMENCED IN 2015 TIME-BARRED (SECOND DEPT).

The Second Department, in a complex decision addressing issues not summarized here, determined the Foreclosure Abuse Prevention Act (FAPA) (CPLR 3217) applied retroactively to the 2005 voluntary discontinuance. Therefore the instant action, which was commenced in 2015, was time-barred:

The Foreclosure Abuse Prevention Act … ; hereinafter FAPA) amended CPLR 3217, which governs the voluntary discontinuance of an action, to provide that “[i]n any action on an instrument described under [CPLR 213(4)], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute” … . Thus, applying FAPA, the voluntary discontinuance of the 2005 action did not serve to reset the statute of limitations … .

Wells Fargo’s contention that CPLR 3217(e), added under FAPA, was not intended to have retroactive effect is without merit. FAPA took effect “immediately,” applying “to all actions commenced on an instrument described under [CPLR 213(4)] in which a final judgment of foreclosure and sale has not been enforced” … . Thus, “[a]lthough the Legislature did not explicitly state that FAPA should apply retroactively, it clearly indicated that it should” … . Wells Fargo Bank, N.A. v Edwards, 2024 NY Slip Op 05368, Second Dept 10-30-24

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) was applied retroactively here to a 2005 voluntary discontinuance of the foreclosure action, rendering the action started in 2015 time-barred.​

 

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DEFENDANTS RAISED QUESTIONS OF FACT SUPPORTING A “FRAUD IN THE INDUCEMENT” DEFENSE TO THE ACTION BASED UPON AN EXECUTED PROMISSORY NOTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants raised a valid “fraud in the inducement” defense to the action seeking payment on an executed promissory note. Defendants executed the note to purchase protein powder from plaintiffs. Plaintiffs described the powder as having 23 to 25 grams of protein per 33/5 grams of powder. After the purchase defendants had the powder tested which revealed the powder contained a significantly lower percentage of protein:

“When an action is based upon an instrument for the payment of money only . . . , the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint” (CPLR 3213). Therefore, “[t]o prevail on [their] motion for summary judgment in lieu of complaint based on a promissory note, plaintiff[s] w[ere] required to present evidence that defendant[s] executed the note and defaulted thereon” … . Plaintiffs demonstrated their prima facie burden by supplying the note at issue, signed by [defendant], and evidence of defendant’s failure to pay; therefore, the burden shifted to defendants to establish the existence of a triable issue of fact as to a bona fide defense to liability … . …

Fraud in the inducement is a defense to the enforcement of a promissory note … , and, as such, defendants were required to “allege that (1) the plaintiff made a representation or a material omission of fact which was false and the plaintiff knew to be false, (2) the misrepresentation was made for the purpose of inducing the defendant to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury” … . * * *

Generally, “what constitutes reasonable reliance is always [a] nettlesome” inquiry best left to the trier of fact … . Furthermore, “[s]ummary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact” … . Panessa v Lederfeind, 2024 NY Slip Op 05252, Third Dept 10-24-24

Practice Point: Fraud in the inducement is a valid defense to an action for summary judgment based upon an instrument for the payment of money only (CPLR 3213), here a promissory note.

 

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