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INFANT PLAINTFF WAS STRUCK BY DEFENDANT DRIVER WHILE IN A CROSS-WALK WITH THE WALK SIGNAL ON; SUN-GLARE IS NOT AN “EMERGENCY” WHICH WILL RAISE A QUESTON OF FACT; PLAINTIFFS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this pedestrian-cross-walk traffic accident case should have been granted. Defendant driver alleged sun-glare prevented her from seeing the infant plaintiff in the cross-walk. Sun-glare is not an “emergency” and did not raise a question of fact:

… [A] “violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . “A driver who faces a green light has a duty to yield the right-of-way to pedestrians who are lawfully within a crosswalk in accordance with the standard of care imposed by Vehicle and Traffic Law § 1111(a)(1)” … . “A driver also has ‘a statutory duty to use due care to avoid colliding with pedestrians on the roadway [pursuant to Vehicle and Traffic Law § 1146], as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting the police accident report, and an affidavit from a witness who averred that the defendants’ vehicle struck the infant plaintiff with its front bumper while the infant plaintiff was crossing Stillwell Avenue in a marked crosswalk with an active “white pedestrian signal” … . In opposition to the plaintiffs’ prima facie showing, the defendants failed to raise a triable issue of fact as to whether the defendant driver had a non-negligent explanation for the accident … . By the defendant driver’s own admissions in the police accident report and her affidavit, she did not see the infant plaintiff prior to the accident, which she only realized had occurred upon “hear[ing] the impact,” and she continued to drive into the crosswalk after being “blinded” by sun glare, which “caus[ed] her to collide into [the infant plaintiff].” Further, as the plaintiffs contend, the foreseeable occurrence of sun glare while the defendant driver was driving west at sundown did not constitute a ‘qualifying emergency’ under the emergency doctrine … . E.B. v Gonzalez, 2022 NY Slip Op 04942, Second Dept 8-17-22

Practice Point: Here the infant plaintiff was lawfully crossing the street in a cross-walk when struck by defendant driver. The driver’s allegation she was blinded by sun-glare was not an emergency and did not raise a question of fact. Plaintiffs’ motion for summary judgment should have been granted.

 

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THE BANK DID NOT PROVE COMPLIANCE WITH THE RPAPL 1304 NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff bank in this foreclosure action did not prove compliance with the mailing requirements for mailing the RPAPL 1304 notice and the judge should not have, sua sponte, dismissed the complaint:

… [P]laintiff failed to submit sufficient evidence to demonstrate that the required RPAPL 1304 notice was sent by first-class mail. In an affidavit in support of its motion, Joanna M. Gloria, the plaintiff’s vice president of loan documentation, neither attested that she had personal knowledge of the mailing, nor did she present proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed. “‘[T]he mere assertion that the notice was mailed, supported by someone with no personal knowledge of the mailing, in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt'” … . …

… [T]he Supreme Court erred in, sua sponte, directing dismissal of the complaint. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . No extraordinary circumstances were present in this case, as the “failure to comply with RPAPL 1304 is not jurisdictional” … , the defendant did not present any proof as to the plaintiff’s failure to comply with RPAPL 1304, and did not cross-move for summary judgment dismissing the complaint insofar as asserted against him. Wells Fargo Bank, N.A. v Cascarano, 2022 NY Slip Op 04998, Second Dept 8-17-22

Practice Point: The bank did not prove the notice of foreclosure was properly mailed, requiring denial of the bank’s motion for summary judgment. But the judge should not have, sua sponte, dismissed the foreclosure complaint.

 

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CONFLICTING EXPERT OPINIONS IN THIS MEDICAL MALPRACTICE ACTION REQUIRED DENIAL OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT; THE FACT THAT THE ISSUE WHETHER ASPIRIN SHOULD HAVE BEEN ADMINISTERED AS TREATMENT FOR STROKE WAS RAISED IN A DEPOSITION (BUT NOT IN THE COMPLAINT OR BILL OF PARTICULARS) ALLOWED PLAINTIFF TO RAISE THE ISSUE IN OPPOSITION TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motions for summary judgment in this medical malpractice action should not have been granted. The was conflicting expert-opinion evidence about whether plaintiff should have been administered aspirin as treatment for a stroke. Although the aspirin-issue was first raised in opposition to defendants’ motions, the issue had been raised in a deposition and was therefore properly raised in the opposition papers:

… [T]he plaintiffs raised triable issues of fact as to whether Nandakumar departed from the accepted standard of care in his neurological evaluation and treatment of the injured plaintiff’s condition by failing to timely order and administer aspirin to the injured plaintiff, and whether such alleged departures proximately caused her alleged injuries … . Although the plaintiffs’ theory regarding the administration of aspirin was not specifically alleged in the complaint or bill of particulars, this theory was referred to by the plaintiffs’ counsel when deposing a … resident, and thus, was appropriately raised in opposition to [defendant’s] motion … . Walker v Jamaica Hosp. Med. Ctr., 2022 NY Slip Op 04996, Second Dept 8-17-22

Practice Point: Summary judgment is not appropriate in a medical malpractice action where there are conflicting expert opinions. Here, whether aspirin should have bean administrated to treat stroke was raised in a deposition, but not in the complaint or bill of particulars. Because it was raised in a deposition, it was properly raised in opposition to the defendants’ summary judgment motions.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A ONE-DAY ADJOURNMENT TO ALLOW HIS DAUGHTER TO TRAVEL TO COURT TO TESTIFY, COUPLED WITH THE RELATED GRANT OF THE PEOPLE’S REQUEST FOR A MISSING-WITNESS JURY INSTRUCTION, DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined the judge’s denial of defendant’s request for a one-day adjournment to allow defendant’s daughter to travel to court to testimony, and the grant of the People’s related request for a missing witness jury instruction, deprived defendant of a fair trial:

“[W]hen the witness is identified to the court, and is to be found within the jurisdiction, a request for a short adjournment after a showing of some diligence and good faith should not be denied merely because of possible inconvenience to the court or others” … . Under the circumstances here, the Supreme Court should have granted a one-day continuance for the defendant’s daughter to travel to New York from out of state … . The failure to grant this continuance cannot be considered harmless error, as there was conflicting testimony as to the defendant’s whereabouts at the time of the robbery … . …

Although the defendant’s contention that the Supreme Court improvidently exercised its discretion in granting the prosecution’s request for a missing witness charge is unpreserved for appellate review … , this issue is inextricably linked with the denial of the defendant’s request for a continuance, and this Court will consider the issue in the exercise of our interest of justice jurisdiction … .  “The failure to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge, ‘[r]ather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him [or her], and that the witness is available to such party'” … . People v Reeves, 2022 NY Slip Op 04979, Second Dept 8-17-22

Practice Point: The request for a one-day adjournment to allow defendant’s daughter to travel to court to give ostensibly relevant testimony (re: defendant’s whereabouts at the time of the robbery), coupled with the grant of the People’s request to give the missing-witness jury instruction, deprived defendant of a fair trial. The jury-instruction issue was not preserved and was considered in the interest of justice.

 

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PLAINTIFF’S EVIDENCE OF THE CAUSE OF THE SLIP AND FALL, A RAISED SIDEWALK FLAG IDENTIFIED IN A PHOTOGRAPH, WAS SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff sufficiently identified the cause of the slip and fall. Defendant’s motion for summary judgment should not have been granted:

… [T]he defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resort to speculation. In support of his motion, the defendant submitted, inter alia, a transcript of the plaintiff’s deposition testimony, who identified a “raised up” sidewalk flag in photographs depicting the sidewalk where he fell, and, referring to the photographs, testified that he “tripped there.” Contrary to the determination of the Supreme Court, this evidence raised a triable issue of fact as to whether the plaintiff tripped on the sidewalk defect referenced … . Santiago v Williams, 2022 NY Slip Op 04922, Second Dept 8-10-22

Practice Point: Plaintiff’s evidence of the cause of his slip and fall, a raised sidewalk flag identified in a photograph, was sufficient to defeat defendant’s motion for summary judgment.

 

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ALTHOUGH DEFENDANT WAS PROPERLY DETAINED, ONCE THE PAT-DOWN SEARCH REVEALED DEFENDANT DID NOT HAVE A WEAPON THE POLICE WERE NOT JUSTIFIED IN REMOVING THE (STOLEN) WALLET FROM DEFENDANT’S POCKET AND SEARCHING IT; THE ERROR WAS NOT HARMLESS UNDER THE STANDARD FOR CONSTITUTIONAL ERROR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the wallet seized in the search of his person should have been granted. The related robbery convictions were reversed and a new trial on those counts was ordered. Defendant fled from the scene of the mugging and was properly detained by the police. However, once the pat-down search revealed defendant did not have a weapon, the police should not have seized the (stolen) wallet from defendant’s pocket and searched it. The “constitutional” error was not harmless because, under the facts, the error could have influenced the factfinder:

… [E]ven assuming that the officers were justified in performing a protective frisk … , there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the wallet. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . There was no evidence presented at the suppression hearing that, during his frisk of the defendant, Nelson felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a danger to the officers at the scene. Indeed, Nelson did not testify at the hearing. Accordingly, there was no lawful basis for removing the wallet from the defendant’s pocket … , and that act violated the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures … . The officers committed an additional constitutional violation when, after retrieving the wallet from the defendant’s pocket, they opened it and conducted a warrantless search of its contents … . * * *

… [U]nder the constitutional standard, an error cannot be harmless if there is a reasonable possibility that it may have been a contributing factor that influenced the factfinder’s determination … . People v Lewis, 2022 NY Slip Op 04920, Second Dept 8-10-22

Practice Point: Although defendant was properly detained in a street stop, once the pat-down search revealed defendant did not have a weapon the police were not justified in seizing the stolen wallet from defendant’s pocket and then searching it.

Practice Point: There are two sets of harmless-error criteria, one for nonconstitutional error and one for constitutional error. Under the constitutional-error criteria, the error in this case was not harmless and a new trial was ordered.

 

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​ THE CONDITIONAL PRECLUSION ORDER BECAME ABSOLUTE WHEN PLAINTIFF DID NOT COMPLY BY PROVIDING DEFENDANTS WITH MEDICAL AUTHORIZATIONS BY THE SPECIFIED DATE; BECAUSE PLAINTIFF OFFERED NO REASONABLE EXCUSE, PLAINTIFF SHOULD HAVE BEEN PRECLUDED FROM PRESENTING ANY MEDICAL EVIDENCE AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiff should have precluded from presenting any medical evidence at trial because plaintiff failed to comply with the conditional order requiring plaintiff to provide defendants with medical authorizations by a specified date:

… [T]he plaintiff failed to comply with the conditional order by providing authorizations for the individuals and entities listed in the defendants’ supplemental demands for authorizations. …

… [T]he conditional order became absolute on February 14, 2020, and to be relieved from the adverse impact of the conditional order, the plaintiff was required to demonstrate a reasonable excuse for failing to comply with the conditional order and a potentially meritorious cause of action … . The plaintiff failed to proffer a reasonable excuse for failing to comply with the conditional order, and thus, we need not reach the issue of whether he demonstrated the existence of a potentially meritorious cause of action … . Since the plaintiff failed to make the requisite showing to be relieved from the adverse impact of the conditional order, the Supreme Court should not have imposed a limitation on the directive in the conditional order precluding the plaintiff from presenting at trial any medical evidence on the issue of damages … . Martin v Dormitory Auth. of the State of N.Y., 2022 NY Slip Op 04907, Second Dept 8-10-22

Practice Point: Here the preclusion order became absolute when plaintiff failed to provide medical authorizations to defendants by the specified date. Plaintiff had no excuse for the failure to comply. Therefore plaintiff should have been precluded from offering any medical evidence at trial.

 

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SEXUAL ABUSE FINDINGS IN A FAMILY COURT PROCEEDING COULD NOT BE THE BASIS FOR APPLYING THE COLLATERAL ESTOPPEL DOCTRINE IN THIS CIVIL ACTION UNDER THE CHILD VICTIMS ACT; HEARSAY ADMITTED IN THE FAMILY COURT PROCEEDING IS NOT ADMISSIBLE IN THIS CIVIL ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a substantial dissent, determined defendant in this Child Victims Act action was not collaterally estopped from disputing the sexual abuse allegations based upon the related Family Court proceedings. Hearsay evidence properly admitted in Family Court is not admissible in this civil action in Supreme Court:

… [A]lthough the burden of proof for both the Family Court proceeding and these personal injury actions is the same, i.e., preponderance of the evidence … , hearsay evidence that was admissible in the underlying Family Court proceeding would not be admissible in the instant personal injury actions … . Inasmuch as our determination in the prior Family Court proceeding was based largely on hearsay evidence that would not be admissible in these civil actions, we agree with defendant that he should not be collaterally estopped from defending these actions and that the court erred in granting plaintiffs’ motions for partial summary judgment on liability. Of Doe 44 v Erik P.R., 2022 NY Slip Op 04839, Fourth Dept 8-4-22

Practice Point: Here the sexual abuse findings in a Family Court proceeding could not be the basis for collateral estoppel prohibiting defendant from disputing the child abuse allegation in this Child Victims Act action. Hearsay admitted in the Family Court proceeding is inadmissible in this civil proceeding.

 

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THE MAJORITY AFFIRMED DEFENDANT’S CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE CONVICTION UNDER AN ACCOMPLICE THEORY; DEFENDANT ACCOMPANIED A FRIEND WHO WAS TO SELL COCAINE; TWO DISSENTERS ARGUED THE EVIDENCE OF SHARED INTENT WAS TOO WEAK TO SUPPORT THE CONVICTION (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the evidence was sufficient to support defendant’s conviction of criminal possession of a controlled substance under an accomplice theory. Defendant agreed to go with her friend who was going to sell cocaine. The majority concluded the evidence defendant was going to be compensated proved shared intent. The two dissenters found the evidence defendant was to be compensated was too weak:

Here, the evidence and the reasonable inferences drawn therefrom establish that, two days before her arrest, defendant agreed that, in exchange for compensation, she would either drive or otherwise accompany the friend to complete a sale of cocaine. According to defendant’s testimony, the friend indicated that she wanted defendant to accompany her because they were friends and she did not want to be alone with the two people involved in the proposed drug transaction, i.e., the drug dealer and the ostensible buyer. * * *

From the dissent:

Here, the People’s theory at trial was that defendant intentionally aided her friend’s possession of drugs by agreeing to drive her friend to another city where the friend would engage in the sale of such drugs, and that defendant would return by bus. However, the evidence in this case, when considered in the light most favorable to the People …, established that defendant merely accompanied her friend. People v Lewis, 2022 NY Slip Op 04846, Fourth Dept 8-4-22

Practice Point: Here defendant accompanied a friend who was to sell cocaine, The majority held the evidence of shared intent, which included evidence defendant was to be compensated, proved shared intent. Two dissenters argued the evidence of shared intent was too weak to support the conviction.

 

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PLAINTIFF BANK FAILED INCLUDE REFERENCED DOCUMENTS WITH ITS MOTION PAPERS AND THEREBY DID NOT DEMONSTRATE DEFENDANTS’ DEFAULT OR PLAINTIFF’S STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not establish defendants’ default or plaintiff’s standing in this foreclosure action:

… [T]he plaintiff submitted … the affidavit of Christy Vieau, a document execution associate for the plaintiff, who, based upon her review of business records, attested to [defendant’s]  default in payment. While Vieau made the requisite showing that she was familiar with the plaintiff’s record-keeping practices and procedures (see CPLR 4518[a]), she did not identify the records she relied upon, and did not attach them to her affidavit … . Thus, her assertions as to the contents of these records were inadmissible … .

The plaintiff also failed to establish, prima facie, its standing to commence the action. … “A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint” … . A plaintiff may establish its standing by “demonstrating that the note was in its possession prior to the commencement of the action, as evidenced by its attachment of the endorsed note to the summons and complaint at the time the action was commenced” … . Here, the plaintiff contends that it established standing by annexing a copy of the original note, endorsed to it, to the complaint. However, there is no copy of an endorsed note attached to the complaint. Rather, the copy of the note attached to the complaint states that it is an electronic document with an electronic transfer history, a fact wholly unaddressed by the plaintiff … . Nationstar Mtge., LLC v Koznitz I, LLC, 2022 NY Slip Op 04813, Second Dept 8-3-22

Practice Point: Many foreclosure summary judgment awards are reversed because the bank did not attached the documents referenced in its papers. Here the documents supporting defendants’ alleged default and the bank’s standing were missing and summary judgment was reversed.

 

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