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DEFENDANT PHYSICIAN’S AFFIDAVIT DID NOT PROVE PLAINTIFF’S DECEDENT WAS INFORMED OF THE PRESENCE OF A FOREIGN BODY IN HIS PELVIS; THE AFFIDAVIT RELIED ON INSUFFICIENT EVIDENCE OF THE DEFENDANT’S CUSTOM OR HABIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s decedent’s primary care physician (PCP) did not prove whether or when the decedent was informed of the foreign object (a sponge) which was left in decedent’s pelvis after surgery. The PCP’s affidavit relied on custom or habit evidence, which was not sufficient. Therefore defendants did not prove whether or when decedent was informed of the foreign object. The complaint should not have been dismissed as time-barred:

“[E]vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again” … . “The applicability of this doctrine is limited to cases where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances . . . as opposed to conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances” … .

In order to establish the admissibility of the PCP’s habit evidence, defendants were required to establish that the PCP engaged in a routine practice of informing patients of the results of their diagnostic procedures and that his practice did not vary from patient to patient … . We conclude that defendants failed to do so. The affidavit of decedent’s PCP, submitted in support of the motions, explicitly concedes that the manner in which he informs patients of the results of diagnostic procedures varies. * * *

Inasmuch as defendants failed to establish that decedent was or should have been aware of the presence of the foreign body more than one year prior to commencing this action, the burden never shifted to plaintiff to aver evidentiary facts establishing that the limitations period had not expired, that it was tolled, or that an exception to the statute of limitations applied … . Baker v Eastern Niagara Hosp., Inc., 2023 NY Slip Op 03090, Fourth Dept 6-9-23

Practice Point: The evidence of defendant physician’s custom or habit of informing patients of the presence of a foreign object was insufficient. Therefore this medical malpractice action should not have been dismissed as time-barred. Defendant did not prove whether or when decedent was informed of the foreign object.

 

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THE LOCAL LAW WHICH DISQUALIFIES CANDIDATES WHO HAVE CERTAIN FELONY CONVICTIONS SHOULD NOT HAVE BEEN INTERPRETED TO APPLY ONLY TO CONVICTIONS AFTER THE ENACTMENT OF THE LOCAL LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Local Law which disqualified candidates who have certain felony convictions from running for city council and other officers should not have been interpreted to apply only to convictions after the enactment of the Local Law. Given the importance of the law, the proceeding should not have been converted to a summary judgment motion and decided on an expedited schedule because of the impending primary election:

Under the circumstances presented, where plaintiffs, without good reason, waited until shortly before the upcoming June 27, 2023 Democratic primary election to bring this action seeking a determination as to the constitutional and procedural validity of Local Law 15, enacted in February 2021, and to bring this motion seeking injunctive relief barring its enforcement, on an expedited basis that would not permit meaningful review of the important issues and that necessarily would result in electoral disruption, the court should not have converted, with limited notice to the City, the motion to one for summary judgment and resolved the merits of plaintiffs’ claims on an expedited schedule. * * *

We also find that the court, in prematurely resolving the merits of plaintiffs’ challenges, erred to the extent it construed, against the statutory reading proffered by both parties in the motion court, Local Law 15 as not disqualifying candidates based on the specified felony convictions where the convictions predated the law’s enactment in February 2021. A reading of the statutory language that the law applies to any person who “has been convicted” makes clear, on its face, that the law applies to both pre- and post-enactment convictions and, as the City shows, the legislative comments entirely support that reading, as do the subsequent practices of the Board of Elections. Martinez v City of New York, 2023 NY Slip Op 03073, First Dept 6-8-23

Practice Point: The matter should not have been converted to a summary judgment motion and determined on an expedited schedule because of the impending election. The Local Law which disqualifies candidates with certain felony convictions from running for local offices should not have been interpreted to apply only to convictions after the enactment of the local law.

 

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PLAINTIFF-BANK’S MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny plaintiff-bank’s CPLR 306-b motion to extend the time for the service of the summons and complaint:

CPLR 306-b provides, in pertinent part, that “[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action . . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.”

“The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … . CPLR 306-b “empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative—the calculus of the court’s decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served” … .

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve Cruz with the summons and complaint in the interest of justice, considering, inter alia, the expiration of the statute of limitations, the meritorious nature of the plaintiff’s cause of action, the plaintiff’s prompt request for the extension, and the lack of demonstrable prejudice to [defendant]. Deutsche Bank Trust Co. Ams. v Lottihall, 2023 NY Slip Op 02999, Second Dept 6-7-23

Practice Point: The criteria for an “interest of justice,” versus a “good cause shown,” extension of time to serve the summons and complaint pursuant to CPLR 306-b explained.

 

THE MOTION TO INTERVENE DID NOT HAVE THE PROPOSED PLEADING ATTACHED; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to intervene should have been denied because the proposed pleading was not attached to the motion:

A motion seeking leave to intervene, whether made pursuant to CPLR 1012 or 1013, must include the proposed intervenor’s proposed pleading (see CPLR 1014 …). Here, Plotch did not submit a proposed pleading with her motion for leave to intervene, nor did she submit an affidavit which in some cases may excuse the failure to attach a proposed pleading … . Plotch’s reliance on Oversea Chinese Mission v Well-Come Holdings, Inc. (145 AD3d 634 [1st Dept 2016]) for the proposition that no proposed pleading is required is misplaced. That case made no reference to CPLR 1014, which specifically provides that “[a] motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought” … . U.S. Bank Trust N.A. v 21647 LLC, 2023 NY Slip Op 02955, First Dept 6-1-23

Practice Point: Here the motion to intervene should have been denied because the proposed pleading was not attached.

 

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PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to an in camera review her assailant’s (Downing’s) medical records to discovery of any non-privileged references to his aggressive behavior. Plaintiff was a nurse assigned to work in defendant’s hospital when she was assaulted by defendant patient:

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged (…see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

Here, the plaintiff seeks information as to any prior aggressive or violent acts by Downing. Information of a nonmedical nature regarding prior aggressive or violent acts is not privileged … . Accordingly, we remit the matter to the Supreme Court, Queens County, for an in camera review of the subject hospital records, to determine which records contain nonprivileged information that is subject to disclosure, and thereafter disclosure of such records … . Gooden v New York City Health & Hosps. Corp., 2023 NY Slip Op 02867, Second Dept 5-31-23

Practice Point: Here a nurse injured by a hospital patient was entitled to any non-privileged information about the patient’s aggressive behavior in the patient’s medical records. An in camera review of the records was ordered.

 

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THE EXECUTIVE-ORDER COVID TOLLS APPLY TO THE SPEEDY TRIAL STATUTE, RENDERING THE INDICTMENT OF THE DEFENDANT TIMELY (SECOND DEPT).

The Second Department, reversing County Court, determined the speedy-trial statute was tolled by the COVID executive orders, rendering the prosecution of defendant timely:

Where, as here, a defendant is charged with a felony, the People are required to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a] …). In response to the COVID-19 pandemic, on December 30, 2020, former Governor Andrew Cuomo issued Executive Order No. 202.87, which provided “Section 30.30 and Section 190.80 of the criminal procedure law are suspended to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled” … . Successive executive orders extended Executive Order No. 202.87 through May 23, 2021 (see 9 NYCRR 8.202.87-202.106).

Contrary to the determination of the County Court, while it was in effect, Executive Order No. 202.87 constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity for a toll in each particular case … . People v Fuentes, 2023 NY Slip Op 02892, Second Dept 5-31-23

Practice Point: The COVID tolls imposed by Executive Order apply to the speedy trial statute, rendering the indictment in this case timely.

 

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THE PROOF OF DOMESTIC VIOLENCE AT THE FORTHCOMING CUSTODY TRIAL SHOULD NOT HAVE BEEN LIMITED TO INCIDENTS OCCURRING AFTER THE HAGUE CONVENTION PROCEEDINGS IN CYPRUS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, determined the proof of domestic violence at the upcoming custody trial should not have been limited to incidents occurring after the Hague Convention proceedings in Cyprus:

… [T]hat aspect of the order that limits the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since conclusion of the Hague Convention proceedings, is vacated. The court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” … . However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. Gould v Kontogiorge, 2023 NY Slip Op 02824, First Dept 5-25-23

Practice Point: Here Family Court should not have limited proof of domestic violence at the upcoming custody trial to incidents occurring after the Hague Convention proceedings in Cyprus. A Hague Convention is not a determination on the merits of any custody issue.

 

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IN THIS CHILD VICTIMS ACT PROCEEDING, THE CLAIM SUFFICIENTLY ALLEGED THE TIME WHEN THE ALLEGED SEXUAL ASSAULT TOOK PLACE; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the claim sufficiently stated when the alleged sexual assault occurred in this Child Victims Act action:

“Court of Claims Act § 11(b) requires a claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed” … . A failure to comply with the requirements set forth in section 11(b) is a jurisdictional defect that requires dismissal of the claim … . “[A] sufficiently detailed description of the particulars of the claim” is necessary because “[t]he purpose of the section 11(b) pleading requirements is . . . to enable the State to investigate and promptly ascertain the existence and extent of its liability” … . “Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” … . However, “‘[a]bsolute exactness is not required,'” so long as the particulars of the claim are detailed in a manner sufficient to permit investigation … . * * * The Court of Claims erred in directing dismissal of so much of the claim as relates to the alleged sexual assault perpetrated by Hector. The claimant alleged, inter alia, that she was admitted to RPC in 1969 when she was 10 years old, and that Hector assaulted her in the auditorium in the first year of her admission. Contrary to the State’s argument, the claimant was not required to allege the exact dates on which the sexual abuse occurred …”. Wimbush-Burkett v State of New York, 2023 NY Slip Op 02804, Second Dept 5-24-23

Practice Point: Here in this Child Victims Act action, the claim sufficiently alleged the time of the sexual assault. The criteria for a sufficient claim under Court of Claims Act section 11(b) are laid out.

 

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FAMILY COURT PROPERLY DETERMINED NEW YORK WAS NOT THE APPROPRIATE FORUM IN THIS CUSTODY DISPUTE, BUT THE NEW YORK PROCEEDINGS SHOULD HAVE BEEN STAYED, NOT DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined Family Court properly decided New York was not the appropriate forum for this custody dispute between father in New York and mother and child in Texas, but Family Court should have stayed, not dismissed, the New York proceedings:

Based on the record before us, we agree with the Family Court that Texas is the more appropriate and convenient forum. The child has not resided in New York since May of 2020. The child also has had no significant connection to New York since 2020, and the substantial, relevant evidence pertaining to the child’s care, protection, education, and personal relationships is in Texas, not New York. Accordingly, the statutory factors weigh in favor of the court’s determination to decline to exercise jurisdiction.

However, Domestic Relations Law § 76-f(3) specifies that “[i]f a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.” Accordingly, the Family Court erred in granting that branch of the motion which was to dismiss the petition … . Matter of Waters v Yacopino, 2023 NY Slip Op 02792, Second Dept 5-24-23

Practice Point: Here Family Court properly found that New York was not the appropriate forum for the custody dispute. But the proper procedure is to stay the New York proceedings, not dismiss them.

 

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A MOTION FOR JUDGMENT AS A MATTER OF LAW MUST BE DENIED IF IT IS BROUGHT BEFORE THE CLOSE OF THE OPPOSING PARTY’S CASE, EVEN IF THE MOTION HAS MERIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law in this foreclosure action was premature because it was made before the close of plaintiff’s case:

During the trial, the defendant objected to the admission of a copy of the underlying note. The Supreme Court declined to admit the note into evidence, and the defendant moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it, arguing that the plaintiff was unable to establish a prima facie case. … [T]he court granted the defendant’s motion, dismissed the complaint insofar as asserted against him, and directed the County Clerk to cancel and discharge the notice of pendency. …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the defendant’s motion for judgment as a matter of law dismissing the complaint insofar as asserted against him was made before the close of the plaintiff’s case, and was not based upon an admission by the plaintiff. Accordingly, the defendant’s motion should have been denied as premature … . Bank of N.Y. Mellon v Waheed, 2023 NY Slip Op 02774, Second Dept 5-24-23

Practice Point: A motion for judgment as a matter of law pursuant to CPLR 4401 must be denied as premature if it is brought before the opposing party closes its case, even in the motion has merit.

 

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