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THERE WAS NO OBJECTIVE EVIDENCE TO SUPPORT PLAINTIFF’S ALLEGATION THAT THE CITY BUS STOPPED “VIOLENTLY,” CAUSING HER TO FALL; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE AS AGAINST THE WEIGHT OF THE EVICENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant Transit Authority’s motion to set aside the plaintiff’s verdict in this bus-passenger-injury case should have been granted. Plaintiff’s testimony that the bus stopped “violently,” causing her to fall, was not supported by any objective evidence:

… [V]iewing the evidence in the light most favorable to the plaintiff, there was no rational process by which the jury could have found for the plaintiff against the defendants. Although the plaintiff characterized the stop as “violent,” neither her testimony regarding the nature of her fall nor the circumstances surrounding the stop nor any other evidence she presented was sufficient to provide the objective support necessary to demonstrate that the movement of the bus was “unusual and violent” … . Stark v New York City Tr. Auth., 2022 NY Slip Op 01338, Second Dept 3-2-22

 

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DEFENDANT DID NOT DEMONSTRATE IT WAS NOT RESPONSIBLE, PURSUANT TO THE TOWN CODE, FOR MAINTENANCE OF THE AREA OF THE SIDEWALK WHERE PLAINTIFF TRIPPED OVER A PROTRUDING BOLT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Metropolitan Transit Authority (MTA), which had a station in the vicinity of where plaintiff tripped over a bolt protruding from the sidewalk, was not entitled to summary judgment in this slip and fall case. A town ordinance required abutting property owners to maintain the sidewalk and the MTA did not demonstrate the protruding bolt was not in an area of the sidewalk for which it was responsible:

… [T]he MTA defendants failed to affirmatively demonstrate that they were not tenants or occupants of a lot or building abutting the subject sidewalk or that, for any other reason, section 191-16(A) of the Town Code did not apply to them. Among other things, the evidence they submitted did not clearly show the location of the sidewalk in relation to the station house and train platform, or clearly establish the Town’s and the MTA defendants’ relative use of, and duties with respect to, the portions of the property at issue. Accordingly, the Supreme Court should have denied that branch of the MTA defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, without regard to the sufficiency of the opposition papers … . Sanon v MTA Long Is. R.R., 2022 NY Slip Op 01337, Second Dept 3-2-22

 

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THE DEFENDANT OPHTHALMOLOGICAL SURGEON’S MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY DENIED; CRITERIA EXPLAINED; PLAINTIFF LOST SIGHT IN HER RIGHT EYE AFTER CATARACT-REMOVAL SURGERY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, determined the defendant’s motion to set aside the plaintiff’s verdict in this medical malpractice action was properly denied. Plaintiff lost sight in her right eye after cataract-removal surgery. The opinion describes the surgeries and the theories presented by the experts in great detail:

In a medical malpractice action, the plaintiff is required to show that the defendant deviated from acceptable medical practice, and that the deviation is the proximate cause of her injuries. A defendant’s negligence is the proximate cause when it is a substantial factor in the events that produced the injury … .. * * *

The jury, which is in the best position to assess the credibility of the witnesses, is entitled to assess his credibility and decide what weight it will give to his testimony … .. Great deference is accorded to the factfinders, who had the opportunity to see and hear the witnesses … . * * *

The documentary evidence and the testimony of all the experts created factual and credibility issues that were properly determined by the jury … . If the resolution of the case turns on the evaluation of conflicting testimony of expert witnesses, the resolution of such a conflict rests with the jury and not the court … . The conclusions reached by the jury should not be overturned as against the weight of the evidence unless “there is simply no valid line of reasoning, and permissible inferences which could possibly lead rational people to the conclusion reached by the jury” … . Rozon v Schottenstein, 2022 NY Slip Op 01278, First Dept 3-1-22

 

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PLAINTIFF’S EXPERT RAISED A QUESTION OF FACT WHETHER A DELAY IN DIAGNOSIS AFFECTED THE PROGNOSIS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed. Plaintiff’s expert raised a question of fact about whether a delay in diagnosis affected the prognosis:

On February 26, 2014, the plaintiff’s decedent presented to the emergency department of the defendant Brookdale Hospital Medical Center (hereinafter Brookdale) complaining of swelling in both legs. The attending emergency room physician, the defendant Morombaye Mbaidjol, diagnosed the decedent with “[l]ikely peripheral vascular disease” and discharged her to her home. The decedent’s bilateral leg swelling initially improved, but nine days later, she presented to a different hospital’s emergency department again complaining of bilateral leg swelling. An ultrasound revealed acute deep vein thrombosis (hereinafter DVT) of major veins in both lower extremities. Shortly after the ultrasound was performed, the decedent experienced cardiopulmonary arrest and died. An autopsy of the decedent revealed that she died as a result of bilateral DVT of the lower extremities, which led to a bilateral pulmonary embolism, causing cardiac arrest and death. * * *

“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” … .. Contrary to the Brookdale defendants’ contention, the opinions of the plaintiff’s expert physician were not speculative and conclusory … . The plaintiff’s expert physician opined … that the Brookdale defendants departed from the standard of care by failing to take a proper history and perform a proper workup of the decedent, failing to rule out DVT, misdiagnosing the decedent, and failing to institute the proper treatment, which resulted in the progression of the DVT, bilateral pulmonary embolism, and ultimately cardiac arrest and death nine days later. Among other things, “[w]hether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury” … . Ivey v Mbaidjol, 2022 NY Slip Op 01152, Second Dept 2-23-22

 

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THE AFFIDAVITS SUBMITTED TO PROVE THE BANK’S STANDING TO BRING THE FORECLOSURE ACTION WERE NOT ACCOMPANIED BY THE RELEVANT DOCUMENTS AND THEREFORE CONSTITUTED INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavits purporting to demonstrate the bank’s standing to bring the foreclosure action were not accompanied by the relevant documents and therefore constituted inadmissible hearsay:

… [I]n order to establish standing, the plaintiff submitted affidavits from two contract management coordinators of the plaintiff’s loan servicer, Ocwen Loan Servicing, each of whom stated that the plaintiff was in possession of the note at the time the action was commenced. However, neither affiant identified any particular document reviewed that pertained to the issue of standing, nor did they attach to their respective affidavits any admissible document to show that the plaintiff possessed the note at the time of the commencement of this action. The affidavits also failed to show that either affiant possessed personal knowledge of whether the plaintiff possessed the note at the time of the commencement of the action. Under these circumstances, the affidavits constituted inadmissible hearsay and lacked any probative value (see CPLR 4518[a] …). Thus, the plaintiff failed to establish its standing to commence this action. Deutsche Bank Natl. Trust Co. v Idarecis, 2022 NY Slip Op 01144, Second Dept 2-23-22

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, INCLUDING THE “ONE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court. determined the bank in this foreclosure action did not demonstrate strict compliance with the notice provisions of RPAPL 1304, including compliance with the “one envelope” rule:

… [T]he plaintiff failed to establish … that it strictly complied with the requirements of RPAPL 1304 … . Moreover, in support of their cross motion, the defendants … demonstrated, prima facie, that the plaintiff included additional material in the same envelope as the RPAPL 1304 notice, in violation of the separate mailing requirement of RPAPL 1304(2) … . US Bank N.A. v Kaplan, 2022 NY Slip Op 01201, Second Dept 2-23-22

 

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THE BANK FAILED TO SUBMIT THE BUSINESS RECORDS RELIED ON IN ITS AFFIDAVIT IN THIS FORECLOSURE ACTION RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY; SUPREME COURT’S DETERMINATION THE BANK HAD COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND THE MORTGAGE WAS THE LAW OF THE CASE PRECLUDING RECONSIDERATION OF THE ISSUE PURSUANT TO DEFENDANTS’ CROSS MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the failure to identify and attach the documents demonstrating the defendants’ default in this foreclosure action rendered the bank’s affidavit inadmissible hearsay. The court noted that Supreme Court’s determination the bank had complied with the notice requirements of RPAL 1304 was the law of the case precluding reconsideration of the issue pursuant to defendants’ cross motion:

The plaintiff relied upon the affidavit of Richard L. Penno, a vice president of loan documentation for Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the plaintiff’s loan servicer. Based upon his review of Wells Fargo’s books and records concerning the defendants’ loan, Penno attested to the defendants’ default in payment. However, Penno did not identify the records he relied upon in order to attest to the defendants’ default and did not attach them to his affidavit … . “While a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” … . Thus, Penno’s assertions as to the contents of Wells Fargo’s servicing records were inadmissible … . Contrary to the plaintiff’s contention, a review of records maintained in the normal course of business does not vest an affiant with personal knowledge … . …

… [C]ontrary to the defendants’ … contention, the Supreme Court properly denied that branch of their cross motion which was to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304 and the notice of default provision of the mortgage agreement. The plaintiff’s strict compliance with RPAPL 1304 and the notice of default provision of the mortgage agreement were both considered and decided in the plaintiff’s favor on its motion for summary judgment. Therefore, while it is true that a defense based on noncompliance with RPAPL 1304 may be raised at any time … , the doctrine of law of the case precluded the court from reconsidering those issues on the defendants’ cross motion … . U.S. Bank N.A. v Ramanababu, 2022 NY Slip Op 01199, Second Dept 2-23-22

 

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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 IN THIS FORECLOSURE ACTION WAS DEFICIENT; THE FAILURE TO SUBMIT THE BUSINESS RECORDS REFERRED TO IN THE BANK’S AFFIDAVIT RENDERED THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s proof of compliance with the notice requirements of RPAPL 1304 in this foreclosure action was deficient, and the failure to submit the business records referred to in the bank’s affidavit rendered the affidavit inadmissible hearsay:

In support of its motion for summary judgment, the plaintiff submitted the affidavit of Becky J. Layman, an officer of the plaintiff. Layman’s assertions that the plaintiff complied with the notice of default provision of the mortgage and that the plaintiff complied with the notice provision of RPAPL 1304 were insufficient, since she failed to provide proof of the actual mailings or attest to knowledge of the plaintiff’s mailing practices and procedures … . Layman’s affidavit was also insufficient to establish, prima facie, that the defendant defaulted under the note and mortgage, since her purported knowledge was based upon review of unidentified business records which were not attached to her affidavit … . Thus, her assertions regarding the defendant’s default, without the business records upon which she relied in making those assertions, constituted inadmissible hearsay … . U.S. Bank N.A. v Campbell, 2022 NY Slip Op 01198, Second Dept 2-23-22

 

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MOTHER DID NOT WILLFULLY VIOLATE THE ORDER OF VISITATION; COVID MADE MEETING IN A PUBLIC PLACE DIFFICULT, THERE WAS CONFUSION ABOUT WHICH ORDER APPLIED, AND MOTHER RELIED ON HER ATTORNEY’S ADVICE (THIRD DEPT).

The Third Department, reversing Family Court, determined mother did not willfully violate an order of visitation. There was confusion about which order applied and mother relied on her attorney’s advice:

The mother contends that Family Court abused its discretion when it found that she willfully violated the visitation order. Specifically, she asserts that she did not produce the child because the father unilaterally canceled visits, there was confusion over what order was in effect, and she relied upon the communications between the parties’ attorneys to establish when the visitation would occur. * * *

… Family Court erred in finding that she willfully violated the order. Under these circumstances, where both parties testified as to the difficulties involved in having parenting time take place in a public venue during COVID-19, there was confusion among the parties as to which order was in effect at the time, and the mother relied on her attorney’s advice, which had a sound basis … , it is clear that any violation was not willful. Matter of Damon B. v Amanda C., 2022 NY Slip Op 01082, Third Dept 2-17-22

 

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CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON BEHALF OF AN INFANT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined certain child custody records and Child Protective Services (CPS) records were or may be discoverable in this negligence and medical malpractice case brought on behalf of an infant. The custody records were relevant to plaintiff’s standing to sue and to family dynamics which may have affected the child’s health, and there may be some CPS records which are discoverable because they do not relate to an investigation, Therefore the matter was remitted for an in camera review:

Supreme Court did not address the second basis upon which defendants sought disclosure of the custody records, however, which was that they may contain information on family dynamics that impacted the infant’s development and would therefore be relevant as to plaintiff’s allegations, in her bill of particulars, that the infant’s learning disabilities and intellectual and emotional deficits arose out of defendants’ conduct. …

… [D]efendants are not entitled to disclosure of records relating to either a report of abuse or an investigation into one … . …

… [C]hild protective officials and related child welfare organizations may well possess discoverable documents that were not generated in the course of a child protective investigation but do contain information relevant to assessing whether the infant’s claimed injuries were linked to defendants’ actions or some other cause. C.T. v Brant, 2022 NY Slip Op 01090, Third Dept 2-17-22

 

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