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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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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION WAS INSUFFICIENT; THE BUSINESS RECORDS REFERRED TO IN THE AFFIDAVIT WERE NOT PRODUCED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the bank’s proof of compliance with the notice requirements of RPAPL 1304 was insufficient. The court noted that, under the facts, standing to contest the bank’s compliance with RPAPL 1304 was personal to each borrower, one borrower could not assert that defense on behalf of another borrower:

JPMorgan submitted an affidavit, entitled an “Affidavit of Mailing,” signed by James A. Ranaldi, an “Authorized Signer” employed by JPMorgan. Ranaldi, however, did not attest to personal knowledge of the actual mailings. Nor did he state that he had personal knowledge “of a standard office mailing procedure designed to ensure that items are properly addressed and mailed” … . Although Ranaldi asserted, based upon his review of business records associated with the subject loan, that “a ninety-day (90) pre-foreclosure notice dated 12/04/2009 was sent by regular first class and certified mail under the exclusive care and custody of the United States Postal Service addressed to [the defendant at the subject property],” “it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted”… . The records attached to Ranaldi’s affidavit provided evidence that the 90-day notice was sent to the defendant by certified mail. But none of the documents, considered individually or together, including the copies of the notice letters themselves, provided any information as to whether the 90-day notice was sent to the defendant by regular first-class mail … . Without business records proving the matter asserted, Ranaldi’s “unsubstantiated and conclusory” statement, by itself, was insufficient to establish that the RPAPL 1304 notice was mailed to the defendant by first-class mail … . Wilmington Sav. Fund Socy., FSB v Kutch, 2022 NY Slip Op 01066, Second Dept 2-16-22

 

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TO BE ENTITLED TO SUMMARY JUDGMENT BASED ON A PATIENT’S FAILURE TO SHOW UP FOR AN INDEPENDENT MEDICAL EXAMINATION (IME), THE NO-FAULT INSURER MUST SHOW BOTH THAT THE PATIENT DID NOT SHOW UP AND THE REQUEST FOR THE IME AND THE SCHEDULING OF THE IME COMPLIED WITH THE REQUIRED TIME-FRAMES (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-insurer’s motion for summary judgment in this no-fault insurance action should not have been granted. Although an insurer need not pay no-fault claims if the patient did not appear for an independent medical examination (IME), in order to warrant an award of  summary judgment the insurer must demonstrate compliance with the required time frames for requesting and scheduling the IME:

The failure to appear for a properly scheduled independent medical examination (IME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio … . However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear … . Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims (11 NYCRR 65-3.5[b],[d] ), plaintiff failed to establish its prima facie entitlement to summary judgment … . American Tr. Ins. Co. v Martinez, 2022 NY Slip Op 00963, First Dept 2-15-22

 

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A STATEMENT FROM THE DEPARTMENT OF TRANSPORTATION AUTHENTICATING PHOTOGRAPHS OF PETITIONER’S CAR RUNNING A RED LIGHT NEED NOT BE NOTARIZED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the city (NYC) was not required to submit a notarized statement from the Department of Transportation authenticating photographs of petitioner’s car running a red light:

For over half a century, the legislature has consistently provided for prima facie liability for minor traffic offenses to be established by a simple, nonnotarized affirmation under penalty of perjury, using the same “sworn to or affirmed” language. Legislative history establishes the plain intent and meaning of the “sworn to or affirmed” language of Vehicle and Traffic Law § 1111-a(d): that the reviewing technician merely affirm, under penalty of perjury, the veracity of his statement. No notarization is necessary.

In the instant administrative proceeding, the notice of liability was supported by the requisite affirmation. The video images authenticated by the technician show petitioner’s car running a red light. This constitutes, as per the statute, “prima facie evidence” of the traffic violation (Vehicle and Traffic Law §1111-a[d]). Matter of Monroe St. v City of New York, 2022 NY Slip Op 00972, First Dept 2-15-22

 

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