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IN THIS MEDICAL MALPRACTICE/PUBLIC HEALTH LAW ACTION AGAINST A NURSING HOME, DEFENDANTS’ EXPERTS’ OPINIONS WERE NOT SUPPORTED BY THE SUBMISSION OF DECEDENT’S MEDICAL RECORDS, RENDERING THE OPINIONS SPECULATIVE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant nursing home’s motion for summary judgment in this medical malpractice, Public Health Law action should not have been granted. The defendant’s experts’ opinions were not supported by the submission of decedent’s medical records:

… [D]efendant’s experts proffered opinions about decedent’s care at the nursing home facility that were not based on facts in the record because defendant failed to submit any of decedent’s medical records, certified or otherwise, to support those opinions. Additionally, those opinions were not based on facts personally known to the experts. Thus, the experts’ affidavits are ” ‘speculative or unsupported by any evidentiary foundation’ ” … . Ritts v Gowanda Rehabilitation & Nursing Ctr., 2022 NY Slip Op 00578, Fourth Dept 1-28-22

 

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IN THIS MODIFICATION OF CUSTODY PROCEEDING, FATHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE OF CIRCUMSTANCES TO WARRANT A HEARING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined respondent-father had presented sufficient evidence of a change in circumstances to warrant a hearing on the best interests of the child:

Where … ” ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom’ ” … . Here, the father testified that, at the time the order of custody and visitation was entered into and for a short time thereafter, the mother and the father were communicating effectively and, in addition to scheduled visitation, were able to agree to further overnight and weekend visitation. That arrangement subsequently changed, however, and the father could not get the mother to agree to any visitation time apart from his scheduled day. The father further testified that communication with the mother regarding additional visitation time essentially ended after he moved to a new home 30 miles away. Taking the father’s testimony as true and considering the circumstances of the father’s move and the development of “extreme acrimony between the parties,” we conclude that the father met his burden of showing a change in circumstances warranting an inquiry into the best interests of the child … . Matter of Cooley v Roloson, 2022 NY Slip Op 00534, Fourth Dept 1-28-22

 

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THE EVIDENCE SUPPORTED THE DEFENSE VERDICT IN THIS ALL-TERRAIN VEHICLE ACCIDENT CASE; TWO DISSENTERS ARGUED THE 14-YEAR-OLD DEFENDANT DRIVER ACKNOWLEDGED HIS NEGLIGENCE ON THE STAND (THIRD DEPT).

The Third Department, over a partial dissent, determined the jury verdict finding the 14-year-old defendant driver of an all-terrain vehicle (a Gator) was not negligent was supported by the evidence. The Gator overturned and the 16-year-old passenger was injured. The defendant’s and plaintiff’s descriptions of the accident conflicted. The dissenters argued the defendant acknowledged he was negligent when he testified:

The jury heard … conflicting testimony regarding how defendant was driving at the time of the accident, whether that driving was what led to the Gator tipping over and whether defendant had any reason to believe that his actions posed a risk of harm given the acknowledged stability of the Gator and the fact that he and plaintiff had already performed several donuts without incident. It was for the jury to resolve these factual questions and determine whether defendant “fail[ed] to use that degree of care that a reasonably prudent person would have used under the same circumstances” and engaged in conduct posing a reasonably foreseeable risk to others … . ….

From the dissent:

… [D]efendant testified that he was 14 years old on the day of the accident, that he was operating the John Deere Gator Utility Vehicle (hereinafter Gator) and performing a “donut” at the time of the accident. He described a donut as “the action of turning the wheel of the vehicle while pressing the accelerator in order to get the back wheels to spin out.” He stated that he knew that the Gator was not intended as a recreational vehicle and also testified that, although he was aware of the manufacturer’s safety warnings pertaining to limitations on speed, the use of seat belts and the prohibition of anyone younger than 16 years old driving the vehicle, he disregarded many of those warnings at the time of the accident. Finally, he testified that, although he had always operated the Gator safely in the past, his parents were angry with him after this accident “because [he] was driving [the Gator] in a manner that was inconsistent with [his] entire past.” When asked if this manner was unsafe, defendant simply stated “yes.” Wright v O’Leary, 2022 NY Slip Op 00485, Third Dept 1-27-22

 

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DESPITE THE ORDER OF PROTECTION EXCLUDING RESPONDENT FROM THE HOME, THE PETITIONER PRESENTED SUFFICIENT EVIDENCE RESPONDENT WAS A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; PEITIONER DEMONSTRATED RESPONDENT HAD NEGLECTED THE CHILD BY COMMITTING DOMESTIC VIOLENCE IN THE CHILD’S PRESENCE (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence demonstrated respondent was a person legally responsible (PLR) for the child and respondent neglected the child by committing domestic violence in the child’s presence:

Petitioner demonstrated by a preponderance of the evidence that respondent was a person legally responsible (PLR) for the subject child, as well as for the child’s three older siblings. Respondent and the children’s mother were in a romantic relationship and lived together before the child was born, and they both represented to caseworkers that respondent was the child’s biological father. There is evidence that, although he was excluded from the home because of an order of protection against him, respondent maintained communication with the mother and slept at the home at least on occasion, sharing the mother’s bed. Respondent failed to appear or testify to dispute the evidence that he was the child’s biological father or a PLR for him … . The fact that respondent was excluded from the household before the child’s birth as a result of having committed acts of excessive corporal punishment against the child’s eldest sibling does not outweigh the evidence that demonstrates that he is a PLR for the child … . The finding that respondent is a PLR for the child is further supported by his failure to appear in court, “allowing the court to draw a negative inference against him” … . Matter of Tristian B. (Winston B.), 2022 NY Slip Op 00498, First Dept 1-27-22

 

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THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT). ​

The First Department, reversing Supreme Court and setting aside the verdict, determined the trial judge should have given the adverse inference charge with respect to a missing video surveillance tape:

… [T]he court erred in declining to give an adverse inference charge with respect to a missing video surveillance tape. An order stating that plaintiff was entitled to such a charge had been issued during discovery upon plaintiff’s motion for sanctions pursuant to CPLR 3126. Thus, the adverse inference charge was a discovery sanction, not a prospective evidentiary ruling … . While the verdict is supported by sufficient evidence, that error was not harmless. Hegbeli v TJX Cos., Inc., 2022 NY Slip Op 00502, First Dept 1-27-22

 

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE NOTE SUBMITTED BY THE BANK TO DEMONSTRATE STANDING TO FORECLOSE WAS THE NOTE SHE SIGNED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant had raised a question of fact whether the bank had standing to foreclosure by producing a note that was different from the note submitted by the bank to demonstrate standing:

… [T]he defendant raised a triable issue of fact as to whether the plaintiff had produced the unpaid note and had standing to commence the action, by submitting, among other things, a copy of another version of the note, purportedly produced by the plaintiff in this litigation, bearing a different version of the defendant’s purported signature and initials than the note relied upon by the plaintiff in support of its motion. In an affidavit submitted in opposition to the plaintiff’s motion, the defendant averred that she only signed one copy of the note at closing, and denied that any of the copies of the note produced by the plaintiff were the note she signed … . JPMorgan Chase Bank, N.A. v Rodriguez, 2022 NY Slip Op 00411, Second Dept 1-26-22

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate defendant’s default and did not demonstrate compliance with the notice provisions of RPAPL 1304:

… [I]n attempting to establish the defendant’s default in payment, the plaintiff relied on the affidavit of Jessica Fernandez, an assistant vice president of Bayview, the plaintiff’s assignee. * * * … [T]he payment history was a record made by Chase, not Bayview. … Fernandez did not attest that she was personally familiar with Chase’s record-keeping practices and procedures …  or that records provided by Chase were incorporated into Bayview’s records and routinely relied upon by Bayview in its own business … . …Fernandez failed to lay a proper foundation for the admission of the payment history and her assertions based on that record were inadmissible … .

The plaintiff also failed to establish, prima facie, its strict compliance with RPAPL 1304. RPAPL 1304 provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower” … . “The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower” … . …

In support of its motion, the plaintiff submitted a copy of a 90-day notice from the plaintiff, addressed to the defendant at the premises address. … [T]he notice … does not include the list of at least five housing agencies that served the region where the defendant resided … . … [T]he plaintiff failed to submit proof of the actual mailing of the notice, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure … . JPMorgan Chase Bank, N.A. v Deblinger, 2022 NY Slip Op 00410, Second Dept 1-26-22

 

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SUPREME COURT SHOULD NOT HAVE STRUCK PLAINTIFF’S EXPERT’S TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION ON THE GROUND THE TESTIMONY EXCEEDED THE CPLR 3101 (D) DISCLOSURE; PLAINTIFF’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a mistrial in this medical malpractice action should have been granted. The trial judge should not have precluded plaintiff’s expert’s testimony on the ground the scope of the testimony exceeded the CPLR 3101 (d) disclosure:

Because portions of the expert’s testimony purportedly fell outside the notice pursuant to CPLR 3101(d), the Supreme Court struck all of this expert’s testimony concerning [defendants] Inglis and Shukla. However, even assuming that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, it was error to strike all of his testimony concerning Inglis and Shukla. … [T]o the extent that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, the relevant subject matter was raised in the bills of particulars and in the expert’s affirmation submitted in opposition to the defendants’ motions for summary judgment. Under these circumstances, the court improvidently struck the expert’s testimony concerning the treatment provided by Inglis and Shukla … .

In addition, the Supreme Court sustained objections to questions of the same expert about whether Mosu departed from the accepted standard of care, for a lack of foundation. The court erred in precluding the expert from testifying as to whether Mosu departed from the accepted standard of care since there was a foundation for the expert’s testimony, including the defendants’ and plaintiff’s trial testimony, and the relevant medical records … . Johnson-Hendy v Mosu, 2022 NY Slip Op 00409, Second Dept 1-26-22

 

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THE BANK DID NOT DEMONSTRATE: (1) STANDING TO BRING THE FORECLOSURE ACTION; (2) COMPLIANCE WITH THE NOTICE PROVISION IN THE MORTGAGE; AND (3), COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate standing to bring the foreclosure action and did not demonstrate compliance with the notice provision of the mortgage and RPAPL 1304:

… [T]he record does not reflect that a copy of the endorsed note was attached to the summons and complaint when the action was commenced … . Moreover, the plaintiff failed to establish its status as the holder of the note at the time of commencement of the action … . * * *

The plaintiff failed to establish … it complied with the condition precedent contained in the mortgage agreement, which required that it provide the defendant with a notice of default prior to demanding payment of the loan in full. The evidence submitted by the plaintiff did not establish that a notice of default was mailed by first-class mail or actually delivered to the defendant’s “notice address” if sent by other means, as required by the terms of the mortgage agreement … . [Plaintiff] failed to provide proof of a standard office mailing procedure and provided no independent evidence of the actual mailing … . For the same reason, the plaintiff failed to establish … it sent the defendant the required notice under RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Crosby, 2022 NY Slip Op 00402, Second Dept 1-26-22

 

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STRICT COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 WAS NOT DEMONSTRATED; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof surrounding the mailing of the RPAPL 1304 notice was insufficient:

… “[T]he plaintiff failed to provide evidence of the actual mailing, ‘or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure,’ the plaintiff failed to establish its strict compliance with RPAPL 1304” … . Citimortgage, Inc. v Leitman, 2022 NY Slip Op 00397, Second Dept 1-26-22

 

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