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DEFENSE COUNSEL DID NOT WAIVE HIS CLIENT’S RIGHT TO HAVE HIM ATTEND THE LINEUP IDENTIFICATION BY SENDING HIS PARALEGAL, WHO WAS TURNED AWAY; DEFENSE COUNSEL SHOULD HAVE BEEN TOLD HIS PRESENCE WAS REQUIRED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defense counsel did not waive his client’s right to have his attorney attend the lineup identification procedure by sending his paralegal. The paralegal was turned away:

Defendant was deprived of his right to have counsel present at a … postindictment lineup. It is undisputed that defendant had a right to counsel at this lineup, which was conducted at a time when he already had representation. Although defendant’s counsel was notified of the lineup and did not attend, a paralegal employed by counsel attempted to attend the lineup but was turned away by the police.

The attorney did not waive his client’s right to counsel at the lineup by failing to appear. The police should have briefly paused this nonexigent, postindictment lineup, conducted long after the crime … , in order to advise the attorney he needed to attend personally, or to have the paralegal so advise counsel. People v Bennett, 2022 NY Slip Op 07007, First Dept 12-8-22

Practice Point; Defense counsel sent his paralegal to attend his client’s lineup, but the police sent the paralegal away. The police should have informed counsel his presence was required before going ahead with the lineup. Counsel’s failure to attend did not waive his client’s right to have his attorney present.

 

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DEFENDANT’S TESTIMONY ABOUT HIS FELONY CONVICTIONS DID NOT OPEN THE DOOR TO A MODIFICATION OF THE COURT’S SANDOVAL RULING TO ALLOW QUESTIONING ABOUT THE FACTS UNDERLYING THE CONVICTIONS; CONVICTION REVERSED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, determined the court should not have modified its original Sandoval ruling. The initial Sandoval ruling allowed defendant to be questioned about the number of felony conviction on his record but not about any of the underlying facts. When defendant was on the stand the court allowed the prosecutor to ask about the underlying facts:

On direct examination, when asked if he had ever been convicted of a crime in New York, defendant answered, “[y]es.” When asked,”[d]o you know how many,” he testified, “[a]pproximately maybe two or three felonies. Maybe four or five misdemeanors.”

On cross-examination, when the prosecutor asked defendant if he had been convicted of three felonies, defendant replied, “I guess so.” In response to the prosecutor’s next question, defendant said he was not sure how many felony convictions he had. The court then modified its Sandoval ruling and permitted the People to exceed the scope of the initial Sandoval ruling by inquiring about the underlying facts of those felony convictions, which included drug and theft-related crimes.

Defendant’s trial testimony did not open the door to a prejudicial modification of the court’s Sandoval ruling. Defendant was entitled to rely on the trial court’s original Sandoval ruling as a matter of “plain fairness” … .

None of defendant’s responses on direct or cross-examination were so incorrect or misleading as to permit the court’s modification … . People v Henderson, 2022 NY Slip Op 07009, First Dept 12-8-22

Practice Point: The court’s initial Sandoval ruling allowed defendant to be about the number of felony convictions on his record. When the defendant was on the stand, the judge modified the Sandoval ruling to allow questioning about the underlying facts. There was nothing about the defendant’s testimony which justified the Sandoval modification and defendant’s conviction was reversed.

 

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BOTH PARENTS OPPOSED VISITATION WITH THE GRANDPARENTS AND THERE WAS EVIDENCE VISITATION WITH THE GRANDPARENTS HAD NEGATIVE EFFECTS ON ONE OF THE CHILDREN; IT WAS NOT DEMONSTRATED THAT VISITATION WITH THE GRANDPARENTS WAS IN THE CHILDREN’S BEST INTERESTS; MATTER REMITTED FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (THIRD DEPT). ​

The Third Department, reversing Family Court, determined Family Court’s ruling allowing visitation by the grandparents, which was opposed by both parents, was not demonstrated to be in the best interests of the children. The son is autistic and has frequent “meltdowns” which the grandparents allegedly didn’t handle appropriately. The matter was sent back for a new hearing in front of a different judge:

In granting visitation to the grandparents, Family Court essentially based its determination on its belief that the son would benefit from frequent contact with family members who love him, and that “equity demand[ed]” that the daughter have the same level of visitation. While contact with loving family members is certainly a laudable goal for these and any other children, the record does not support the court’s finding that the children’s best interests would be served by visitation with the grandparents. Indeed, to the contrary, the mother and the father, who were separated as of the time of the hearing but were united in their opposition to the grandparents’ visitation petition, offered testimony detailing the negative effects that visitation with the grandparents had on the son. Matter of Virginia HH. v Elijah II., 2022 NY Slip Op 06970, Third Dept 12-8-22

Practice Point: Here both parents opposed visitation with the grandparents and there was evidence such visitation had negative effects on one of the children, who is autistic. It was not demonstrated visitation with the grandparents was in the children’s best interests. The case was remitted for a new hearing before a different judge.

 

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THE RECORD DOES NOT REFLECT THE MEASURES TAKEN BY THE HEARING OFFICER TO DETERMINE THE BODY CAMERA FOOTAGE REQUESTED BY THE PETITIONER DID NOT EXIST; DETERMINATION ANNULLED AND NEW HEARING ORDERED (THIRD DEPT).

​The Third Department, annulling the misbehavior determination, held that petitioner-inmate’s request for body camera footage was improperly denied:

We … find merit to petitioner’s contention that his request for body camera footage was improperly denied. Upon petitioner’s request for such footage at the hearing, the Hearing Officer responded that the correction officer’s body camera was turned off and, therefore, such footage did not exist. The record does not reflect the measures taken or the basis upon which the Hearing Officer concluded that the footage did not exist … . As such, petitioner’s request for the body camera footage was improperly denied and, under these circumstances, the appropriate remedy is remittal for a new hearing … . Matter of Dorcinvil v Miller, 2022 NY Slip Op 06972, Third Dept 12-8-22

Practice Point: Here the petitioner-inmate requested body camera footage. The hearing officer denied the request, saying that the body camera had been turned off. Because the record did not reflect the steps taken by the hearing officer to defermine the footage didn’t exist, the determination was annulled and a new hearing was ordered.

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 OR THE NOTICE REQUIREMENTS OF RPAPL 1303 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate compliance with the notice (mailing) requirements of RPAPL 1304 or the notice requirements of RPAPL 1303:

… [T]he letter log submitted by the plaintiff and relied upon by the employee of the plaintiff’s alleged loan servicer in his affidavit failed to establish that the 90-day notice was actually mailed to the defendant by both certified mail and first-class mail … . “‘[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted'” … . None of the other documents submitted by the plaintiff, considered individually or together, including the copies of the 90-day notice letters themselves, provided any information as to whether the notice was sent to the defendant by regular first-class mail … . …

… [T]he plaintiff’s submissions did not demonstrate that the notice served upon the defendant complied with the type-size requirements in RPAPL 1303 … .Federal Natl. Mtge. Assn. v Raja, 2022 NY Slip Op 06912, Second Dept 12-7-22

Practice Point: Once again, the bank in this foreclosure action did not submit sufficient proof of strict compliance with the notice and mailing requirements of RPAPL 1303 or 1304.

 

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THE AFFIDAVIT RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION TO PROVE DEFENDANT’S DEFAULT DID NOT IDENTIFY OR ATTACH THE RELEVANT BUSINESS RECORDS AND THEREFORE THE AFFIDAVIT HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The affidavit attesting to defendant’s default did not identify or attach the business records relied upon:

… [A] plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form” … . Here, in support of its motion, the plaintiff submitted an affidavit from Elizabeth A. Ostermann, a vice president of the plaintiff’s loan servicer, who attested to the borrower’s default in payment. However, Ostermann’s knowledge was based upon her review of unidentified business records, which she failed to attach to her affidavit, and therefore, her assertions regarding the borrower’s alleged default constituted inadmissible hearsay and lacked probative value … . Deutsche Bank Natl. Trust Co. v Unlimited Assets, 2022 NY Slip Op 06907, Second Dept 12-7-22

Practice Point: Here the affidavit submitted by plaintiff in this foreclosure action to prove defendant’s default did not identify or attach the relevant business records. Therefore the affidavit had no probative value.

 

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ALTHOUGH DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW IN THIS TRAFFIC ACCIDENT CASE WAS PROPERLY DENIED, THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial, determined defendants’ motion to set aside the verdict in this traffic accident case as against the weight of the evidence should have been granted. The evidence, including video evidence, demonstrated defendant’s bus had a green left-turn arrow when the bus collided with plaintiff’s oncoming vehicle as the bus was turning. The court also found the damages for future pain and suffering excessive:

… [V]iewing the evidence in the light most favorable to the plaintiff, there was a “valid line of reasoning” that could lead a rational person to the liability verdict in this case … . Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as a matter of law.

However, the jury verdict on the issue of liability was contrary to the weight of the evidence, as “the evidence preponderate[d] so heavily in the [defendants’] favor that it could not have been reached on any fair interpretation of the evidence” … . * * * … [W]e remit the matter to the Supreme Court … for a new trial on the issue of liability.  Blair v Coleman, 2022 NY Slip Op 06902, Second Dept 12-7-22

Practice Point: In this traffic accident case, defendants’ motion to set aside the verdict as a matter of law was properly denied. But the motion to set aside the verdict as against the weight of the evidence should have been granted. The appellate court ordered a new trial on liability.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY AND THE ACTION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND; A HOSPITAL WILL NOT BE VICARIOUSLY LIABLE FOR SURGERY COMPETENTLY PERFORMED BY HOSPITAL STAFF AT THE DIRECTION OF THE PRIVATE PHYSICIANS WHO DID THE PRIMARY SURGERY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the medical malpractice action against the defendant surgeons should not have been dismissed on the ground plaintiff’s expert’s affidavit was conclusory. The affidavit raised questions of fact about whether defendant surgeon deviated from the requisite standard of care. The court noted that the plaintiff’s expert did not review the pleadings and all the evidence was irrelevant. The court also noted that the action against the hospital based upon the surgical procedures performed by hospital staff was properly dismissed. A hospital will not be vicariously liable where hospital staff competently carry out the orders of the private physicians who did the primary surgery:

… [T]he plaintiffs’ expert’s opinion did not consist of merely general and conclusory allegations unsupported by competent evidence. The plaintiffs’ expert made specific allegations based upon the operative reports and CT scan which were part of the medical records, and addressed specific assertions made [defendants’] expert. …

Although the plaintiffs’ expert did not review the pleadings, and all the evidence, that failure went to the weight, not the admissibility of his opinion . The operative report regarding the hysterectomy was part of the injured plaintiff’s hospital records, was electronically signed by Germain [defendant surgeon], and was relied upon by [defendants’] expert … . Therefore, the plaintiffs’ expert properly relied upon that report in reaching his conclusions. * * *

At the conclusion of the surgery, the physician assisting Germain was replaced by an employee of the hospital. However, by that time, the surgery was over, and the doctors were closing up the injured plaintiff. There is no allegation or evidence that the hospital physician committed malpractice or could have had any influence on the course of the surgery at that juncture.

“Where hospital staff, such as resident physicians and nurses, have participated in the treatment of the patient, the hospital may not be held vicariously liable for resulting injuries where the hospital employees merely carried out the private attending physician’s orders,” except when the hospital staff follows orders knowing that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, the hospital’s employees have committed independent acts of negligence, or the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital … . Bhuiyan v Germain, 2022 NY Slip Op 06901, Second Dept 12-7-22

Practice Point: Here, in this medical malpractice case, the fact that plaintiff’s expert did not review the pleadings and all the evidence was not a legitimate reason for rejecting the expert’s affidavit. The expert relied on relevant evidence and the affidavit was not conclusory.

Practice Point: A hospital will not be vicariously liable for surgery competently done by hospital staff at the direction of the private physicians who did the primary surgery.

 

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PLAINTIFF, DECEDENT’S SON, SIGNED THE NURSING HOME ADMISSION AGREEMENT WHEN HIS FATHER, WHO HAD DEMENTIA, WAS ADMITTED; THE NURSING HOME DID NOT DEMONSTRATE PLAINTIFF, BY SIGNING THE ADMISSION AGREEMENT, HAD THE AUTHORITY TO BIND DECEDENT TO ARBITRATION OF DECEDENT’S NEGLIGENCE/PERSONAL INJURY ACTION AGAINST THE NURSING HOME (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant nursing home did not demonstrate plaintiff had the authority to bind the decedent to arbitration concerning the decedent’s negligence/personal injury action against the nursing home. Plaintiff is the decedent’s son who signed the admission agreement when his father, who suffered from dementia, was admitted. The nursing home did not present sufficient proof of plaintiff’s authority to sign the admission agreement on decedent’s behalf:

A party seeking to compel arbitration must establish “the existence of a valid agreement to arbitrate” … . Here, the defendants failed to meet that burden because they did not submit sufficient evidence of the plaintiff’s authority to bind the decedent to arbitration at the time he signed the admission agreement on the decedent’s behalf. Most significantly, the defendants failed to submit the instrument through which the plaintiff allegedly derived his authority to bind the decedent to arbitration … . Evidence showing that the plaintiff represented to the defendants that he held a power of attorney when signing the admission agreement was insufficient to establish that he, in fact, held such authority as a matter of law … . Contrary to the defendants’ further contention, neither the plaintiff’s status as the decedent’s son … , nor his apparent willingness to be the decedent’s “responsible party” under the terms of the admission agreement … , have any bearing on his authority to bind the decedent to arbitration…. . Wolf v Hollis Operating Co., LLC, 2022 NY Slip Op 06954, Second Dept 12-7-22

Practice Point: Plaintiff, decedent’s son, signed the nursing-home admission agreement when decedent, who had dementia, was admitted. The nursing home did not demonstrate plaintiff, by signing the agreement, had the authority to bind decedent to arbitration of decedent’s negligence/personal injury action against the nursing home. The fact that plaintiff represented that he had power of attorney for decedent was not enough.

 

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THE AMENDMENT TO THE FAMILY COURT ACT WHICH PRECLUDES A FINDING OF NEGLECT BASED SOLELY ON MARIJUANA USE SHOULD BE APPLIED RETROACTIVELY; HOWEVER HERE THERE WAS SUFFICIENT EVIDENCE OF MOTHER’S NEGLECT OF THE CHILD BASED UPON HER “ABUSE” (AS OPPOSED TO “USE”) OF MARIJUANA (SECOND DEPT). ​

​The Second Department, in a full-fledged opinion by Justice Zayas, determined (1) the amendment to the Family Court act precluding a finding of neglect based solely on marijuana use should be applied retroactively, and (2) the evidence mother neglected the child based upon abuse of marijuana was sufficient:

The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect. After all, the statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. Based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that “has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality” … . Such a finding is not based on “the sole fact” that the parent “consumes cannabis” … .

… In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended … . Matter of Mia S. (Michelle C.), 2022 NY Slip Op 06932, Second Dept 12-7-22

Practice Point: The amendment of the Family Court Act to preclude a finding of neglect based solely on use of marijuana should be applied retroactively. But the amendment does not preclude a finding of neglect based on the “abuse,” as opposed to “use,” of marijuana.

 

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