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WHETHER PLAINTIFF INHALED ENOUGH ASBESTOS TO CAUSE HIS CANCER WAS THE SUBJECT OF COMPETING SIMULATION STUDIES; PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant ABI’s motion for summary judgment in this asbestos-exposure case should have been granted. Plaintiff sold vinyl floor tiles made by ABI. Plaintiff alleged when he cut, manipulated and broke the tiles in demonstrations for customers, he inhaled asbestos fibers which were embedded in the vinyl tiles. The Fist Department found the expert evidence did not demonstrate plaintiff was exposed to sufficient levels of asbestos to cause lung cancer:

ABI had the burden to tender sufficient evidence to demonstrate the absence of any material issues of fact as to causation … . Once this burden was met, it would fall to plaintiff to produce evidentiary proof, in admissible form, establishing that there were disputed material issues of fact … . * * *

The dispute based upon the competing simulation studies about whether the decedent was exposed to asbestos in an amount that exceeded ambient levels typically found in non-occupational settings is not enough to avoid summary judgment. … [S]imply showing that exposures to a toxin were “‘excessive'” or “‘far more'” a certain threshold (ambient) is not enough … . … [P]laintiff had the “‘difficult, if not impossible,'” task of establishing that his decedent had a sufficient exposure to asbestos to have caused his lung cancer … . [Plaintiff’s expert] does not provide any reliable correlation between the presence of asbestos fiber concentrations found in the studies and how much in haled asbestos would have caused lung cancer generally and the decedent’s lung cancer in particular. Dyer v Amchem Prods. Inc., 2022 NY Slip Op 04609, First Dept 7-19-22

Practice Point: This decision includes a useful discussion of the proof requirements in an asbestos-exposure case. The decision characterized the plaintiff’s task of demonstrating sufficient exposure to cause cancer as “difficult, if not impossible.”

 

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HERE THE APPELLATE COURT SEVERED PORTIONS OF THE SEARCH WARRANT AS OVERBROAD; THE VALID PORTIONS AUTHORIZED A SEARCH OF THE PHONE FOR EVIDENCE OF CHILD ABUSE; THE SEARCH OF THE PHONE AS AUTHORIZED BY THE VALID PORTIONS OF THE WARRANT TURNED UP A VIDEO OF A RAPE; THAT VIDEO WAS PROPERLY SEIZED PURSUANT TO THE PLAIN VIEW DOCTRINE (THIRD DEPT).

The Third Department determined that the search warrant for defendant’s cell phone was overbroad in that it authorized a search for evidence of all the sex offenses listed in Article 130 of the Penal Law. But the portions of the warrant which authorized a search for evidence of sexual abuse and child pornography were supported by probable cause. In searching the phone pursuant to the valid portion of the warrant, the police found a video of defendant committing rape. That video was correctly seized under the “plain view” doctrine:

We agree with defendant’s overbreadth contention only insofar as the affidavit was insufficient to establish probable cause to search defendant’s cell phone and seize evidence related to all of the many crimes classified under Penal Law article 130 … . Notwithstanding that overbreadth, probable cause existed to search and seize photographic and video evidence from defendant’s cell phone related to his alleged June 2018 commission of the crime of sexual abuse in the first degree (see Penal Law § 130.65 [2] …). Furthermore, even though the June 2018 video itself was not child pornography as that term is generally understood under the Penal Law … , it was also reasonable for the issuing magistrate to conclude, based on the affidavit and the content of the June 2018 video, that a search of all data on defendant’s cell phone would yield additional evidence of the crime of sexual abuse, along with crimes classified under Penal Law articles 235 and 263 … . Therefore, because “the warrant [i]s largely specific and based on probable cause” … , we need only sever the overbroad portion of the warrant that directed a search for evidence of Penal Law article 130 crimes other than sexual abuse.

… [O]ur severance decision does not require exclusion of the May 2018 videos allegedly depicting him committing the crime of rape in the first degree because they are not “the fruit[s] of the invalid portion of the search warrant” … .. Rather, we find that those videos were properly seized pursuant to the plain view doctrine, which authorizes law enforcement to seize an item in plain view if “(i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent” … . People v Alexander, 2022 NY Slip Op 04585, Third Dept 7-14-22

Practice Point: Here portions of the search warrant for defendant’s cell phone were invalid as overbroad (the warrant authorized a search for evidence of all the sex offenses listed in Article 130 of the Penal Law). The Third Department “severed the overbroad portions” and determined the valid portions authorized the search for evidence of sex abuse. In conducting the search pursuant to the valid portions of the warrant, a video of a rape was found. That video was properly seized pursuant to the plain view doctrine.

 

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THE EVIDENCE OF “WITNESS ELIMINATION MURDER” WAS INSUFFICIENT; THERE WAS NO EVIDENCE THE VICTIM, DEFENDANT’S WIFE, WITNESSED THE DEFENDANT’S SEXUAL RELATIONSHIP WITH HIS DAUGHTER AND NO EVIDENCE DEFENDANT FEARED CRIMINAL PROCEEDINGS WERE IMMINENT; MURDER FIRST DEGREE REDUCED TO MURDER SECOND DEGREE (THIRD DEPT).

The Third Department, over two separate concurrences, determined the evidence that the defendant murdered his wife to eliminate her as a witness was legally insufficient. Therefore defendant’s first-degree murder conviction was reduced to second-degree murder. Defendant was in a sexual relationship with his minor daughter. The People alleged defendant killed his wife to prevent her from testifying about his sexual relationship with his daughter. But there was no evidence defendant’s wife had witnessed the sexual relationship:

There was no evidence that the deceased victim observed defendant and the minor victim engage in sexual relations or sexual conduct, and the minor victim did not disclose the sex offenses to the deceased victim. At most, the deceased victim may have been a “coincidental witness” since she had suspicions of the sex offenses, but she would not have been in a position to provide “powerful, direct evidence” of defendant’s criminal sexual acts … . Second, there was no evidence that defendant feared that criminal proceedings were imminent or that he was otherwise cognizant of the fact that the deceased victim might be called to testify against him. The People point to defendant’s statement — in a recorded jail telephone conversation that took place with his mother after defendant was indicted on murder in the second degree — wherein he states that if the prosecution had recorded his jail telephone conversations with the minor victim after the murder (and thus become aware of the sexual relationship between them), the People would be “using murder one.” In our opinion this conclusory statement does not constitute an admission to witness elimination murder. Aside from its speculative nature, there is simply no evidence in the record that defendant was even aware of the elements of murder in the first degree, let alone that he had this concern at the time of the stabbing. Viewed in the light most favorable to the People, the evidence is simply insufficient to establish a witness elimination murder … . People v Agan, 2022 NY Slip Op 04581, Third Dept 7-14-22

Practice Point: Here two elements of “witness elimination murder” were not supported by legally sufficient evidence. There was no evidence the victim, defendant’s wife, was a witness to defendant’s sexual relationship with his daughter. And there was no evidence defendant feared an imminent criminal prosecution based upon his sexual relationship with his daughter. The first-degree murder conviction was reduced to second-degree murder.

 

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SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION BECAUSE THE BUSINESS RECORDS UPON WHICH THE CALCULATIONS IN THE REPORT WERE BASED WERE NOT PRODUCED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion to confirm the referee’s report in this foreclosure action should not have been granted. The business records upon which the calculations in the referee’s report were based were not produced:

… ]T]he Supreme Court should have denied those branches of JPMorgan’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale. “[T]he referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records” … . Wilmington Trust, N.A. v Mahone, 2022 NY Slip Op 04580, Second Dept 7-13-22

Practice Point: In a foreclosure action, if the business records upon which the calculations in the referee’s report are based are not produced, Supreme Court should not confirm the report.

 

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AFTER THE SECOND DEPARTMENT’S VACATION OF DEFENDANT’S “ENDANGERING THE WELFARE OF A PHYSICALLY DISABLED CHILD” CONVICTION (BY GUILTY PLEA) ON “ACTUAL INNOCENCE” GROUNDS WAS REVERSED BY THE COURT OF APPEALS, THE SECOND DEPARTMENT AGAIN VACATED THE CONVICTION ON “INEFFECTIVE ASSISTANCE” GROUNDS; THE MEDICAL RECORDS INDICATED THE CHILD WAS NOT BURNED BY HOT WATER, BUT RATHER SUFFERED AN ALLERGIC REACTION TO MEDICATION (SECOND DEPT). ​

The Second Department, reversing County Court, determined defendant’s motion to vacate her conviction by guilty plea on ineffective-assistance grounds should have been granted. Defendant, a nurse, was accused of endangering the welfare of a physically disabled child by bathing the child in hot water causing thermal burns. This case has a long history, including the vacation of the conviction by the Second Department on the ground of actual innocence. The Second Department was reversed by the Court of Appeals which held the “actual innocence” argument cannot be raised where the defendant has pled guilty. Here the Second Department vacated the conviction again on the ground of ineffective assistance. There was medical evidence which was consistent with the child’s skin condition being caused by a reaction to medication, as opposed to hot water. Defendant’s counsel did not obtain the skin biopsy report, which attributed the skin condition to an allergic reaction to medication, and did not consult a medical expert:

… [D]espite references in the hospital records indicating that a skin biopsy was ordered, the defendant’s former counsel failed to obtain the skin biopsy pathology report, which would have supported the conclusion that the child’s skin condition was caused, not by thermal burns, but by toxic epidermal necrolysis (hereinafter TEN), a condition associated with an allergic reaction to a medication that the child had been taking. In this regard, the pathology report, which was prepared by three pathologists, set forth that the skin biopsies were performed the day after the child was admitted to the hospital, and that the child’s skin condition was “consistent with a diagnosis” of TEN if no oral lesions were present, or Stevens Johnson Syndrome (hereinafter SJS) if associated with oral lesions. An addendum to the report indicated that the clinical data ruled out SJS, and, therefore, implicated TEN as the diagnosis.

The defendant also demonstrated that her former counsel failed to consult a medical expert, or take steps to either seek the services of a court-appointed medical expert, or find a source of funding to secure the services of a medical expert before counseling the defendant to plead guilty. At the hearing, the defendant offered the expert testimony of Bruce Farber, a physician board-certified in the fields of internal medicine and infectious diseases, who reviewed all the medical records, including the subject pathology report. He opined that, based upon his review of medical records, as well as the pathology report, the child’s skin condition was caused by TEN, and not thermal burns. He testified that the medical records, including the hospital chart, showed that the various medical providers, including a pediatrician, emergency room physician, dermatologist, infectious disease expert, and a burn fellow formulated differential diagnoses including SJS, TEN, or staphylococcal scalded skin syndrome, none of which included thermal burns. People v Tiger, 2022 NY Slip Op 04568, Second Dept 7-13-22

Practice Point: Here defense counsel told defendant to plead guilty to endangering the welfare of a disabled child (by bathing the child in hot water), causing burns. But the medical records included a skin biopsy report which indicated the child suffered an allergic reaction to medication, not thermal burns. The failure to investigate the medical records and the failure to consult a medical expert were deemed to constitute ineffective assistance.

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s assault third conviction, determined the evidence of physical injury was legally insufficient:

… [T]he evidence was legally insufficient to support the defendant’s conviction of assault in the third degree, charged in count 6 of the indictment. The evidence, when viewed in the light most favorable to the prosecution … , was not legally sufficient to establish, beyond a reasonable doubt, that the complainant named in count 6 of the indictment sustained a physical injury within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” … . Here, the evidence at trial established that this complainant was attacked and that he suffered bruises to his face and neck. This complainant testified at trial that he was not in pain during the time of the attack and that his bruises lasted a couple of weeks. He did not testify that he was in pain after the attack or that he took any medication or sought medical attention. People v Medina, 2022 NY Slip Op 04566, Second Dept 7-13-22

Practice Point: The complainant testified he was not in pain at the time of the attack and his bruises lasted a couple of weeks. He did not testify that he was in pain after the attack or that he took any medication or sought medical attention. The evidence of “physical injury” was legally insufficient. Defendant’s assault third conviction was vacated.

 

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PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, AS WELL AS THE NOTICE REQUIRMENTS SPELLED OUT IN THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304 and the mortgage:

… [P]laintiff failed to establish, prima facie, that RPAPL 1304 notices were mailed to each defendant by certified and first-class mail. The affidavit submitted in support of the plaintiff’s motion does not contain an attestation that the affiant had personal knowledge of the purported mailings nor does the affiant attest to knowledge of the mailing practices of the Law Offices of McCabe, Weisberg, and Conway, P.C., the entity that allegedly sent the notices to the defendants on behalf of the loan servicer … . …

… [P]laintiff’s submission also failed to demonstrate that the RPAPL 1304 notices allegedly sent to the defendants contained the requisite list of five housing counseling agencies serving the region in which the subject property is located … . …

… [P]laintiff further failed to establish that the RPAPL 1304 notices were sent by the “lender, assignee, or loan servicer” as required by the statute … . … [T]he RPAPL notices were allegedly sent on August 7, 2014, by the Law Offices of McCabe, Weisberg, and Conway, P.C., on behalf of Ocwen Financial, the plaintiff’s loan servicer. However, the limited power of attorney authorizing Ocwen Financial to act on behalf of the plaintiff, which was submitted by the plaintiff in support of its motion, states that it was executed on and effective as of September 17, 2014.  …

… [P]laintiff failed to establish, prima facie, that it complied with a condition precedent contained in the mortgage agreement, requiring the lender to send a notice of default prior to the commencement of the action. The plaintiff’s submission failed to show that the required notice was sent to the defendants by first-class mail or actually delivered to the notice address if sent by other means, as required by the terms of the mortgage agreement … . Deutsche Bank Natl. Trust Co. v Pariser, 2022 NY Slip Op 04534, Second Dept 7-13-22

Practice Point: Yet again, summary judgment in favor of the bank in a foreclosure proceeding is reversed because the bank did not prove strict compliance with the notice requirements of RPAPL 1304 and the mortgage. Reversals on these grounds have appeared every week for at least five years, maybe more.

 

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ONE OF MOTHER’S CHILDREN OPENED A LOCKED WINDOW, TOOK OUT THE SCREEN AND DROPPED HIS SIBLING TWO STORIES WHILE MOTHER WAS HOME; MOTHER COULD NOT HAVE FORESEEN THE INCIDENT; THE NEGLECT FINDING WAS REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the neglect findings. Although mother knew one of her children was sometimes aggressive, she could not have known he would open a locked window, take out the screen, and drop his sibling two stories. Apparently mother was in the bathroom with the door open when this happened. In addition, neither the children’s hygiene nor the condition of the apartment established neglect. The Fourth Department noted that, although no appeal lies from a decision, as opposed to an order, the paper here met the essential requirements of an order:

… [T]here was nothing intrinsically dangerous about leaving two of the children to eat and watch television while the mother was in the bathroom with the door open … . The record establishes that the mother knew that one of her children was sometimes aggressive towards his younger siblings, but there is no evidence in the record that she was aware that he may open a locked window, remove the screen, and drop his sibling from a height of two stories … . In making that determination, we note that the window involved in the incident was not deemed dangerous by a caseworker during a home visit less than a month before the incident.

… [P]etitioner’s evidence regarding the hygiene of the children and the condition of the apartment, which petitioner’s caseworker testified met “minimal standards,” was not sufficient to establish neglect … . Further, although a “finding of neglect may be entered where, though [being] financially able to do so or offered financial or other reasonable means to do so, a parent fails to provide the child[ren] with adequate clothing and basic medical care” … , here, “[n]o evidence was presented at the fact-finding hearing concerning the financial status of the mother” … . Matter of Silas W., 2022 NY Slip Op 04506, Fourth Dept 7-8-22

Practice Point: Mother was in the bathroom with the door open when one of her children opened a locked window, took out the screen and dropped his sibling two stories. That scenario did not support the neglect finding. Neither the children’s hygiene nor the condition of the apartment warranted a neglect finding.

 

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THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION REDUCED TO ATTEMPTED ASSAULT SECOND (FOURTH DEPT).

The Fourth Department, reducing defendant’s assault second conviction to attempted assault second, determined the proof o physical injury was not legally sufficient:

… [T]he evidence is legally insufficient to establish that he caused physical injury to the victim by means of a dangerous instrument and thus that the conviction of assault in the second degree is not supported by legally sufficient evidence … . The evidence, viewed in the light most favorable to the People … , establishes that defendant attempted to stab the victim and the two struggled over the knife; however, the victim suffered no more than minor cuts to her hands that did not require bandaging and caused only transient pain … . … [T]he evidence is legally sufficient to establish defendant’s guilt of the lesser included offense of attempted assault in the second degree … . People v Lopez-Sarmiento,2022 NY Slip Op 04493, Fourth Dept 7-8-22

Practice Point: Here the evidence the victim suffered “physical injury” as defined in the Penal Law was deemed legally insufficient. The assault second conviction was reduced to attempted assault second.

 

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IN THIS DOG-BITE CASE, VETERINARY RECORDS ARE DISCOVERABLE BY SUBPOENA (FOURTH DEPT).

The Fourth Department, in this dog bite case, determined veterinary records are not protected by Education Law 6714 and are discoverable:

Education Law § 6714 (1) provides that, “[u]pon written request from the owner of an animal which has received treatment from or under the supervision of a veterinarian, such veterinarian shall provide to such owner within a reasonable time period a copy of all records relating to the treatment of such animal. For the purposes of this section, the term ‘records’ shall mean all information concerning or related to the examination or treatment of the animal kept by the veterinarian in the course of his or her practice. A veterinarian may impose a reasonable charge for providing copies of such records. A veterinarian may make available to the owner either the original or a copy of such record or document including x-rays, electrocardiograms and other diagnostic tests and may impose a reasonable fee for the reproduction of such copies.”

Nothing in the plain language of that statute prohibits a veterinarian from providing a copy of treatment records pursuant to a subpoena. Had the legislature intended to create such an exemption, it could have done so using language similar to that found in Education Law § 6527 (3), which provides that “records relating to performance of a medical or a quality assurance review function . . . shall [not] be subject to disclosure under article thirty-one of the [CPLR] except as hereinafter provided or as provided by any other provision of law” … . Ashley M. v Marcinkowski, 2022 NY Slip Op 04437, Fourth Dept 7-8-22

Practice Point: Pursuant to Education Law 6714, veterinary records in this dog-bite case are discoverable by subpoena.

 

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