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DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT CREATE OR HAVE CONSTRUCTIVE KNOWLEDGE OF THE PUDDLE ON THE FLOOR WHERE PLAINTIFF SLIPPED AND FELL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendants (Niagara County Jail and County Sheriff) did not demonstrate they did not create or have constructive notice of the puddle on the floor where plaintiff slipped and fell:

… [D]efendants failed to establish that they did not create the dangerous condition and thus that the court erred in granting the motion with respect to that claim, and we modify the order accordingly … . Defendants submitted evidence that adult visitors and inmates were not allowed to bring drinks to the visitation room, but correction officers, at least three of whom were in the room during visits, were allowed to have drinks in the room. Defendants did not submit evidence that the correction officers in the room did not create the puddle of water on the floor. Although defendants submitted evidence that child visitors were allowed at the time to bring drinks in bottles or sippy cups, they did not submit evidence that any children were in the visitation room that morning before plaintiff entered the room. …

Defendants submitted evidence that employees performed safety inspections of the visitation room, including looking for slipping hazards on the floor, on a routine basis. In particular, the room was inspected before the first visit, throughout the day, and at the end of a shift. Defendants submitted evidence that a correction officer inspected the room at 7:45 a.m. before the first group of visitors arrived at 8:30 a.m. Plaintiff was one of the second group of visitors that day and entered the visitation room at approximately 9:30 a.m. We conclude that the reasonableness of defendants’ inspection practices and whether the dangerous condition existed for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it are issues for a jury to determine … , and defendants failed to establish as a matter of law that they did not have constructive notice of the dangerous condition … . Propst v Niagara County Jail, 2022 NY Slip Op 04486, Fourth Dept 7-8-22

Practice Point: To warrant summary judgment in a slip and fall case, a defendant must show it did not create or have notice of the condition, here a puddle on the floor, which caused plaintiff to fall. The absence of constructive notice is usually demonstrated by an inspection of the area close in time to the fall. Here the defendants presented evidence of an inspection an hour and 45 minutes before the fall, which was deemed to raise a question of fact on constructive notice for the jury.

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CONFLICTING EXPERT OPINIONS PRECLUDED DISMISSAL OF MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING THE ALLEGED PREMATURE DISCHARGE OF PLAINTIFF FROM EMERGENCY CARE AFTER SHE EXPERIENCED SYMPTOMS OF A STROKE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s medical malpractice causes of action against the doctor who discharged her from emergency care and the hospital should not have been dismissed because the expert affidavits presented conflicting opinions. Plaintiff experienced symptoms consistent with a stroke and went to the hospital. An MRI was done but plaintiff was released before a final review of the MRI. Evidence of a stroke was ultimately found on the MRI. Plaintiff’s expert opined that the event which caused plaintiff to go to the hospital was a transient ischemic attack (TIA), not a stroke, and that the stroke occurred at the hospital about when the MRI was performed:

… [B]y submitting the affidavit of their expert, [plaintiffs] raised an issue of fact on the issue whether Dr. Kandel deviated from the standard of care … . Dr. Kandel permitted plaintiff to leave the hospital before her brain MRI had undergone a final review by a neuroradiologist. Plaintiffs’ expert opined that discharging plaintiff before a final review of the scans was complete constituted a deviation from the standard of care in light of plaintiff’s medical history, which indicated a significant stroke risk.

… [P]laintiffs raised a question of fact with respect to causation … . The hospital defendants relied upon the affirmation of Dr. Kandel’s medical expert, who opined that any alleged negligence is not the proximate cause of plaintiff’s injuries inasmuch as plaintiff suffered a stroke at or before 3 a.m. on October 27, and that the window in which to administer tPA, an anti-clot medication, had closed long before plaintiff arrived at the hospital for treatment approximately 13 hours later. … [P]laintiffs submitted an expert affidavit asserting … that the symptoms plaintiff experienced on the morning of October 27 were the result of a transient ischemic attack (TIA), which results in temporary stroke-like symptoms but does not result in a blockage, and that she did not experience the actual blockage until sometime later in the day, around the time of her brain MRI. Plaintiffs’ expert further opined that, had plaintiff stayed at the hospital overnight and had the MRI been read correctly, tPA could have been administered when plaintiff’s new symptoms presented. Clark v Rachfal, 2022 NY Slip Op 04472, Fourth Dept 7-8-22

Practice Point: Conflicting expert opinions preclude summary judgment in medical malpractice actions.

 

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GIVEN WHAT THE INFORMANT TOLD THE POLICE, THE FACT THAT DEFENDANT GRABBED AT HIS WAISTBAND WHEN THE POLICE APPROACHED HIM ON THE STREET PROVIDED REASONABLE SUSPICION THE DEFENDANT HAD A WEAPON AND THEREBY JUSTIFIED PURSUIT; THE DISSENT ARGUED THE INFORMATION FROM THE INFORMANT WAS NOT ENOUGH BY ITSELF AND THE PEOPLE DID NOT PROVE DEFDENDANT GRABBED AT HIS WAISTBAND BEFORE OR AFTER THE CHASE STARTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police had “reasonable suspicion” to pursue defendant as he fled when the police approached on the street. The defendant discarded a handgun as he fled:

… [P]olice responded to a 911 call that a parolee wanted on an outstanding warrant and who was known to possess guns was a passenger in a certain vehicle. The officers found a vehicle matching the description given by the 911 caller and followed it, losing sight of the vehicle momentarily but then spotting it stopped on a curb with the passenger standing outside the vehicle. As one of the officers exited the police vehicle and began to approach the passenger, the passenger ran away while holding the left side of his waistband and the officer chased after him. …

The court properly determined that the officers had at least an objective, credible reason to approach defendant and request information … . Defendant’s subsequent flight with his hand on his waistband from the approaching officer, combined with the 911 caller’s report about a wanted violent parolee who was potentially armed, and the police officers’ observations confirming the vehicle and suspect descriptions from the 911 call, provided the officers with reasonable suspicion to pursue defendant … .

From the dissent:

The People assert that the court properly determined that the pursuit was justified because, in addition to the information provided by the informant, the arresting officer observed defendant grabbing the front of his pants while running away, as if he had a gun in his waistband. Although defendant’s act of grabbing his waistband increased the degree of suspicion, perhaps even to the level required for pursuit, the evidence at the suppression hearing does not establish whether the arresting officer observed that conduct before or after he gave chase. People v Leonard, 2022 NY Slip Op 04468, Fourth Dept 7-8-22

Practice Point: Coupled with information provided from an informant claiming the defendant had guns and was violent, the defendant’s grabbing at his waistband as the police approached him on the street provided the police with reasonable suspicion the defendant had a weapon, thereby justifying police pursuit when defendant fled. The dissent argued the information from the informant did not provide reasonable suspicion and the People did not prove defendant grabbed at his waistband before he fled.

 

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PLAINTIFF BANK DID NOT PRESENT SUFFICIENT EVIDENCE OF STRICT COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not prove the RPAPL 1304 was properly mailed to the defendants:

… [P]laintiff failed to establish its strict compliance with RPAPL 1304. The plaintiff relied on copies of the RPAPL 1304 notices allegedly mailed, purported domestic return receipts, and an affidavit of Catherine Rogers, a foreclosure specialist for Seterus, Inc., the plaintiff’s purported servicer. However, the domestic return receipts were unsigned and undated, and there was no other indication that the certified or first class mailings were accepted by the post office for mailing. Rogers also did not aver that she had personal knowledge of the mailing or of Seterus, Inc.’s standard office procedure designed to ensure that the notices were mailed. Thus, contrary to the plaintiff’s contention, it failed to establish, prima facie, that it strictly complied with RPAPL 1304 … . The plaintiff also failed to establish, prima, facie, that it complied with the notice of default requirement of the mortgage agreement … . Federal Natl. Mtge. Assn. v Young, 2022 NY Slip Op 04292, Second Dept 7-6-22

Practice Point: The mailing requirements of RPAPL 1304 must be strictly complied with and compliance must be proven in the bank’s summary judgment motion papers. Without proof of strict compliance, the motion must be denied.

 

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THE NOTICE OF FORECLOSURE WAS SENT TO DEFENDANT IN AN ENVELOPE WHICH INCLUDED OTHER NOTICES, A VIOLATION OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank violated the “separate envelope” rule (RPAPL 1304) in that the foreclosure notice sent to defendant included notices in addition to the foreclosure notice:

… [T]he plaintiff failed to establish, prima facie, that it complied with the “separate envelope” requirement of RPAPL 1304(2). “[I]nclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2)” … . The envelope containing the requisite notice under RPAPL 1304 included notices pertaining to the Federal Fair Debt Collection Practices Act (15 USC et seq.) and bankruptcy, and, therefore, the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304 … . US Bank N.A. v Lanzetta, 2022 NY Slip Op 04322, Second Dept 7-6-22

Practice Point: Here the notice of foreclosure was sent to defendant in an envelope with other notices, a violation of RPAPL 1304, which must be strictly complied with.

 

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THE PROOF OF THE AMOUNT DUE PURSUANT TO THE MORTGAGE WAS NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action was based on hearsay and should not have been confirmed:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “The referee’s findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” … .

Here, as the defendant correctly contends, the affidavit of the plaintiff’s servicing agent, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [s]he purportedly relied upon in making [her] calculations” … . Thus, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . U.S. Bank N.A. v Barton, 2022 NY Slip Op 04319, Second Dept 7-6-22

Practice Point: In foreclosure actions where the proof is presented by affidavit, if the affidavit relies on business records which are not attached, the affidavit is inadmissible hearsay.

 

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THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE; THE JUDGE PRECLUDED CROSS-EXAMINATION OF PLAINTIFF’S EXPERT ABOUT WHETHER THE OTHER DOCTORS WHO CONSULTED ON PLAINTIFF’S TREATMENT DEPARTED FROM ACCEPTED PRACTICE BY FAILING TO DO FURTHER DIAGNOSTIC TESTING; IF SO, FAULT WOULD BE SHARED PURSUANT TO CPLR 1601 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Sourour’s) motion to set aside the verdict in the interest of justice in this medical malpractice action should have been granted. The evidence supported the jury’s finding that the failure to do diagnostic testing decreased the plaintiff’s chance of a better outcome. During the trial Sourour sought to but was precluded from cross-examining plaintiff’s expert about whether other doctors who consulted on the case also departed from accepted practice by not performing the additional diagnostic testing. That was deemed reversible error:

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “In considering such a motion, [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision” … . …

If, as Sourour proposes, a jury were to find that these doctors departed from accepted medical practice and that their departures were a substantial factor in depriving the decedent of a chance for an improved outcome, they could be found at fault together with Sourour … . As a result, any evidence as to the culpability of these doctors was relevant under CPLR 1601(1) … . The court’s error in precluding testimony on this issue deprived Sourour of “substantial justice” … . Schuster v Sourour, 2022 NY Slip Op 04317, Second Dept 7-6-22

Practice Point: Here the defendant doctor’s failure to do further diagnostic testing for cancer was deemed to have decreased the chance of a better outcome. Therefore the plaintiff’s verdict was supported by the evidence and properly survived a motion set aside as a matter of law. However, the judge erroneously precluded cross-examination of plaintiff’s expert about whether the other doctors who consulted on plaintiff’s treatment departed from accepted practice failing to order further diagnostic testing. If so, fault would have been shared pursuant to CPLR 1601.

 

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THE CJA FORM WAS PUT IN EVIDENCE TO PROVE WHERE DEFENDANT LIVED, WHICH WAS AN ELEMENT OF THE CRIMINAL-POSSESSION-OF-A-WEAPON CHARGE; BUT THE CJA EMPLOYEE WHO TESTIFIED WAS NOT THE EMPLOYEE WHO CREATED THE DOCUMENT; BECAUSE THE CJA EMPLOYEE COULD NOT BE CROSS-EXAMINED ABOUT THE CREATION OF THE DOCUMENT, ITS ADMISSION VIOLATED THE CONFRONTATION CLAUSE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the Criminal Justice Agency (CJA) form which indicated defendant lived where the weapon (the subject of the criminal-possession-of-a-weapon charge) was found constituted testimonial evidence which violated the Confrontation Clause. The witness through whom the form was admitted in evidence did not create the form and, therefore, could not be cross-examined about its contents:

… [T]he testimony of the CJA employee and the CJA form were admitted in order to establish an essential element of the charges of criminal possession of a weapon in the second and third degrees, in violation of the defendant’s right of confrontation … . The defendant was never given the opportunity to cross-examine the CJA employee who prepared the CJA form, and, in admitting the CJA form through an employee who did not prepare the form, the Supreme Court failed to ensure that the defendant’s Sixth Amendment right of confrontation was protected … . People v Franklin, 2022 NY Slip Op 04308, Second Dept 7-6-22

Practice Point: Here a document was admitted into evidence to prove where defendant lived, which was an element of the criminal-possession-of-a-weapon charge. Because the person who created the document did not testify and therefore could not be cross-examined about its contents, defendant’s right to confront the witnesses against him was violated. New trial ordered.

 

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THE POLICE WERE “ACTING IN THE PUBLIC SERVICE FUNCTION” WHEN THEY SEARCHED THE INJURED DEFENDANT AND FOUND A CARTRIDGE; DEFENDANT WAS DRIFTING IN AND OUT OF CONSCIOUSNESS; THE POLICE PROPERLY SEARCHED HIS POCKETS FOR IDENTIFICATION; SUPPRESSION DENIED (FIRST DEPT).

The First Department determined the search of plaintiff’s clothing by the police did not require suppression of the cartridge found in defendant’s pocket because the police were “acting in the public service function” in aiding the injured defendant:

… [T]he hearing court … denied suppression of a cartridge recovered from defendant’s pants pocket, correctly finding that “the police were acting in their public service function in rendering aid when searching the defendant’s clothing for identification.” When police arrived, defendant was lying on the ground and screaming that he had been shot. He appeared to have been shot in the leg, he was drifting in and out of consciousness, and he could not state his name. At that point, the officers were treating defendant as an injured victim rather than a suspect, and were not performing a law enforcement function … . Under the circumstances, it was reasonable for the officers to believe defendant needed immediate assistance and to search his pants for identification as they waited for him to be transported to the hospital …  In performing this public service function, it was reasonable for the police to ascertain the identity of the person they were aiding and to supply that information to medical personnel, and defendant did not appear capable of communicating his identity. People v Hatchett, 2022 NY Slip Op 04282, First Dept 7-5-22

Practice Point: When the police aid an injured person and search the person’s pockets for identification, they are “acting in the public service function.” Suppression of any contraband found in the search will be denied.

 

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THE AMOUNT OF RESTITUTION WAS NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE; ALTHOUGH UNPRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed the determination of the amount of restitution and remitted for a hearing. The error was not preserved and was considered in the interest of justice. The court further noted that the recipient of the restitution was not put on the record:

… [T]he People failed to establish the victim’s actual out-of-pocket loss by a preponderance of the evidence. The restitution amount ordered by the court deviated from the loss claimed by the restaurant manager in his testimony, and the sole evidence supporting the actual amount of out-of-pocket loss calculated by the court was an undetailed, vague letter ostensibly from the restaurant franchisee’s insurer listing an amount of loss—the calculation and accuracy of which was, by their own representation at the hearing, unknown to the People … . People v Piasta, 2022 NY Slip Op 04243, Fourth Dept 7-1-22

Practice Point: Here the amount of restitution was not proven by a preponderance of the evidence. The recipient of the restitution was not identified on the record. Although the errors were not preserved, they were considered in the interest of  justice. The matter was remitted for a hearing.

 

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