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THE BOARD SHOULD NOT HAVE RELIED ON THE OPINION OF AN EXPERT WHO DID NOT FOLLOW THE IMPAIRMENT GUIDELINES BY REVIEWING THE UPDATED X-RAYS OF CLAIMANT’S HIP (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the board relied on the opinion of an expert, Petroski, who did not follow the impairment guidelines by consulting the updated x-rays of claimant’s hip:

Nowhere in his … report … does Petroski … indicate that he had obtained and considered and reviewed updated X rays, as required by Special Consideration No. 8 of the impairment guidelines … , in arriving at his conclusion that claimant had sustained a 0% SLU [schedule loss of use] of her left leg. … [T]he deposition testimony of Petroski also does not reflect that had he obtained and considered updated X rays in rendering his opinion about the appropriate SLU of claimant’s left leg. Although Petroski stated that no new history was given at the time of or during his examination of claimant, he acknowledged that he did not recall declining to review X rays that claimant brought with her to the examination for him to review. … Inasmuch as Petroski did not obtain and consider updated X rays consistent with the impairment guidelines, the Board’s determination to credit Petroski’s finding that claimant sustained a 0% SLU was not supported by substantial evidence and must be reversed … . Matter of Strack v Plattsburgh City Sch. Dist., 2022 NY Slip Op 00710, Third Dept 2-3-22

 

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THE WRONGFUL DEATH CAUSE OF ACTION AGAINST DEFENDANT NURSING HOME SHOULD NOT HAVE BEEN DISMISSED; CONFLICTING EXPERT OPINIONS RAISED A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the wrongful death cause of action against defendant nursing home should not have been dismissed. Conflicting expert opinions raised a question of fact:

Defendant made a prima facie showing that it was not liable for the decedent’s injuries and death under Public Health Law § 2801-d(1) through the affirmation of its nursing expert, who opined that defendant did not violate the various federal and state regulations set forth in plaintiff’s bill of particulars. In opposition, plaintiff failed to raise an issue of fact, because her expert did not address any rules or regulations that were violated … .

As for the wrongful death cause of action, the parties’ nursing experts had similar credentials in gerontology and nursing, and both were qualified to opine on the applicable standard of care for residential nursing facilities … . Thus, the experts’ conflicting opinions present an issue of fact as to whether defendant was liable for the decedent’s injuries.  Jackson v Northern Manhattan Nursing Home, Inc., 2022 NY Slip Op 00723, First Dept 2-3-22

 

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COMPLAINT ALLEGATIONS OF A FRAUDULENT CONVEYANCE MADE “UPON INFORMATION AND BELIEF” DO NOT STATE A CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined “upon information and belief” complaint allegations of a fraudulent conveyance did not state a cause of action:

The complaint fails to state a cause of action for constructive fraudulent conveyance under former Debtor and Creditor Law §§ 273 and 274 … . Defendants are members of S. Land Development LLC (S. Land), which previously held title to real property and against which plaintiff obtained a money judgment in 2019 in a related action. Plaintiff alleges that defendants transferred or otherwise encumbered S. Land’s assets, rendering it insolvent and precluding plaintiff from being able to collect on the judgment. However, since the allegations are made “upon information and belief,” the complaint does not sufficiently allege that any transfers were made without fair consideration or rendered S. Land insolvent … . L&M 353 Franklyn Ave. LLC v Steinman, 2022 NY Slip Op 00724, First Dept 2-3-22

 

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

The Second Department, reversing Supreme Court, determined plaintiff in the foreclosure action did not demonstrate compliance with the notice and “one envelope” requirements of RPAPL 1304:

… [P]laintiff failed to demonstrate … that it strictly complied with the mailing requirements of RPAPL 1304. The affidavit of Kyle Lucas, a senior loan analyst employed by the plaintiff, did not make the requisite showing that Lucas was familiar with the plaintiff’s mailing practices and procedures, and “therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … .

The plaintiff also failed to establish 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)” … . … [T]he plaintiff acknowledged that the envelope … , which contained the requisite notice under RPAPL 1304, also included other information in two notices pertaining to the Federal Fair Debt Collection Practices Act and bankruptcy. Ocwen Loan Servicing, LLC v Sirianni, 2022 NY Slip Op 00677, Second Dept 2-2-22

 

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IN THIS SEXUAL ABUSE CASE, THE CHILD’S MENTAL HEALTH RECORDS SHOULD BE REVIEWED BY THE JUDGE IN CAMERA TO DETERMINE WHETHER ANY RECORDS ARE RELEVANT TO THE RESPONDENT’S CLAIM THE CHILD FABRICATED THE SEXUAL ABUSE ALLEGATIONS; FAMILY COURT PROPERLY DENIED RESPONDENT’S REQUEST FOR DISCOVERY OF THE RECORDS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, held the judge properly denied discovery of the child’s mental health records in this sexual abuse proceeding, but the judge should review the records in camera to determine if any records support respondent’s position that the child fabricated the sexual abuse allegations:

Confidential mental health records may only be disclosed upon a finding by a court that “the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must conduct a balancing test to weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery” … .

… [G]iven respondent’s need to prepare his defense, his right to impeach the child’s credibility as she is likely to be a witness, and the child’s diminished interest in the confidentiality of older records from an institution that is not currently providing services to her, we find that an in camera review of the … records is warranted … . …

… [W]e find that the Family Court properly denied his request for those records … . Were a court to grant such a request on the sparse showing in this case, virtually every child’s therapy records would be subject to exposure. Matter of Briany T. (Justino G.), 2022 NY Slip Op 00629, First Dept 2-1-22

 

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THE WRENCH WHICH FELL AND STRUCK PLAINTIFF COULD HAVE BEEN TETHERED TO THE WORKER WHO DROPPED IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT SUBMIT AN EXPERT AFFIDAVIT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. A wrench slipped out of a co-worker’s hand and fell 10 or 15 feet striking plaintiff. Defendant’s expert opinion that the wrench could not be tethered to a wall missed the point that the wrench could be tethered to the worker. Plaintiff was not required to submit an expert opinion:

Plaintiff is entitled to summary judgment on the Labor Law § 240(1) claim based on [defendant] NYCHA’s failure to provide an adequate safety device to protect him from falling objects that were required to be secured … . Third-party defendant Vestar, Inc.’s expert opinion that the wrench “could not have been functionally employed if it was secured/tethered on the parapet wall” completely misses the point, since the wrench could have been tethered to the worker. … [T]he accident report … made the recommendation “to use tethering devices while working from heights,” to prevent reoccurrence of such an accident … . Contrary to NYCHA’s and Vestar’s contention, plaintiff was not required to proffer an expert affidavit … . Rincon v New York City Hous. Auth., 2022 NY Slip Op 00639, First Dept 2-1-22

 

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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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