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PLAINTIFFS-PARENTS’ CAUSE OF ACTION FOR LOSS OF THEIR INJURED DAUGHTER’S SERVICES SHOULD HAVE BEEN DISMISSED; THE PARENTS DEMONSTRATED ONLY THAT THEIR DAUGHTER PERFORMED SERVICES IN HER EMPLOYMENT AT THE COMPANIES OWNED BY THE PARENTS (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the parents’ cause of action for loss of their injured daughter’s services should have been granted:

Defendants established prima facie that plaintiffs Arlene and Herbert Klaar, the parents of the injured plaintiff, Deborah Klaar, are not entitled to recover damages for loss of their daughter’s services since they showed only that their claim rests entirely on the services Deborah performed in her employment at the two companies they own … .

… [P]laintiffs failed to raise an issue of fact. They cited deposition testimony demonstrating that Deborah served as a secretary, office manager, and assistant controller at her parents’ companies, that she was expected to take over the businesses and provide her parents with a monthly payment, and that she had significant difficulty fulfilling all of her many duties following the accident. They did not submit evidence that Deborah regularly performed services for them as their daughter, such as doing chores or running errands for the household, nor that they sustained any pecuniary loss as a result of her failure to do so … .Klaar v Fedex Corp., 2022 NY Slip Op 01393, First Dept 3-3-22

 

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PLAINTIFFS’ MOTION TO RENEW ON THE GROUND THE DEFENDANTS’ WINNING ARGUMENT WAS RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiffs’ motion to renew should have been granted. Defendants’ motion to dismiss was improperly granted based upon an argument first raised in reply papers:

The court granted defendants’ motion to dismiss … based on defendants’ argument raised for the first time in their reply to their motion to dismiss, that [the] operating agreement contained a provision wherein plaintiffs purportedly waived any past, present, and future conflicts of interest. Plaintiffs moved for leave to renew and reargue, claiming that the issue of the waiver provision was improperly raised for the first time in reply, and in substance was contradicted by another section of the operating agreement that provides, among other things, that no one other than the members can enforce any provision of the operating agreement against any member.

The motion to renew should have been granted. Plaintiffs’ claim that the waiver issue was improperly raised in defendants’ reply provides a reasonable justification for granting the renewal motion … . Upon renewal, defendants’ motion should be denied with respect to plaintiffs’ breach of fiduciary duty claim … . Dismissal is warranted only where documentary evidence “conclusively establishes a defense to the asserted claims as a matter of law” … . Mehra v Morrison Cohen LLP, 2022 NY Slip Op 01396, First Sept 3-3-22

 

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PLAINTIFF DID NOT HAVE TO PROVE THE EXISTENCE OF A RETAINER AGREEMENT TO DEMONSTRATE AN ATTORNEY-CLIENT RELATIONSHIP WITH DEFENDANTS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should not have been dismissed on the ground plaintiff did not demonstrate the existence of an attorney-client relationship. Plaintiff did not have to produce a retainer agreement:

… [T]he Supreme Court erred in granting dismissal of the legal malpractice cause of action based upon the plaintiff’s failure to produce evidence of an attorney-client relationship. An attorney-client relationship does not depend on the existence of a formal retainer agreement … , and the plaintiff had no obligation to demonstrate evidentiary facts to support the allegations contained in the complaint … . Furthermore, the complaint sufficiently alleges the existence of an attorney-client relationship between the plaintiff and the … defendants … , as well as the other elements of legal malpractice, including damages, to support a legal malpractice cause of action … . Ripa v Petrosyants, 2022 NY Slip Op 01336, Second Dept 3-2-22

 

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THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE LEGALITY OF THE SEIZURE OF DEFENDANT’S CLOTHES BY A DETECTIVE AT THE HOSPITAL WHERE DEFENDANT WAS BEING TREATED FOR A GUNSHOT WOUND; THE CLOTHES AND THE DNA EVIDENCE TAKEN FROM THE CLOTHES SHOULD HAVE BEEN SUPPRESSED; THE ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined the defendant’s clothes seized at the hospital where defendant was being treated for a gunshot wound should have been suppressed. The error was deemed harmless however:

The defendant had a legitimate expectation of privacy in his clothing, and the fact that the police perceived the defendant as a victim rather than a suspect at the time his clothing was seized did not strip the defendant of his Fourth Amendment protection … . Moreover, the People failed to establish that the testifying detective knew that the clothes would have covered the part of the defendant’s body where he was shot, as the detective admitted that he did not know what type of clothing was in the bag that was seized … . The People also failed to establish any exigent circumstances to justify seizure of the clothing, as they provided no evidence that the clothing was in danger of being removed or destroyed … . Accordingly, the seizure of the defendant’s clothing at the hospital was illegal, and the DNA evidence obtained from the items seized should not have been admitted into evidence at trial … . People v Gough, 2022 NY Slip Op 01317, Second Dept 3-2-22

 

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CONFLICTING ACCOUNTS OF WHAT THE POLICE OFFICERS SAW WHEN THEY APPROACHED THE VAN IN WHICH DEFENDANT WAS A PASSENGER FAILED TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF THE VAN; THE WEAPON SEIZED FROM THE VAN SHOULD HAVE BEEN SUPPRESSED; DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing the possession of a weapon conviction, determined defendant’s motion to suppress a handgun found in a van in which defendant was a passenger should have been granted. Inconsistencies in the police officer’s accounts of what the officers saw when they approached the van rendered the People’s proof at the suppression hearing insufficient to demonstrate a lawful search incident to arrest:

The Supreme Court credited the accounts of both Ramos and Pimentel and concluded that what Pimentel testified that he had observed gave the officers probable cause to search the minivan for a gun … . However, the officers’ versions of events sharply conflicted with each other as to where the defendant was sitting in the minivan, and what he was doing, when the officers arrived at the minivan’s front windows. According to Ramos, the defendant was sitting in the front passenger seat, while Pimentel claimed that the defendant was sitting in the middle row, and attempting to conceal a gun in a bag at his feet. Ramos, though, did not see a gun, furtive movements, or a bag. It seems improbable that, if the defendant did what Pimentel said he did, Ramos could somehow have failed to notice it.

Ramos’s and Pimentel’s accounts both could not have been true, since both officers acknowledged that they approached the minivan simultaneously and reached the front seats at the same time. People v Austin, 2022 NY Slip Op 01306, Second Dept 3-2-22

 

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THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT SUBMITTED TO SHOW THE BANK’S COMPLIANCE WITH THE RPAPL 1304 NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION WERE NOT ATTACHED, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate compliance with the notice requirements of RPAPL 1304 in this foreclosure action. The failure to attached the business records referred to in the affidavit purporting to demonstrate compliance rendered the affidavit inadmissible hearsay:

Although the plaintiff submitted copies of the 90-day notices purportedly sent to the defendant, the plaintiff failed to demonstrate, prima facie, that the notices were actually mailed, through either an affidavit of service, other proof of mailing by the United States Postal Service, or evidence 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 assertion in an affidavit of an employee of the plaintiff’s loan servicer that the 90-day notices were sent in accordance with RPAPL 1304 was insufficient to establish that the notices were actually mailed to Blackman by first-class and certified mail. The affiant based his assertions upon his review of records which were created by a third-party vendor, and as those business records were not incorporated into the servicer’s own electronic files, they were inadmissible hearsay … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Deutsche Bank Natl. Trust Co. v Blackman, 2022 NY Slip Op 01289, Second Dept 3-2-22

 

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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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