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SUPREME COURT ERRONEOUSLY PRECLUDED PLAINTIFF’S TREATING PHYSICIAN’S TESTIMONY AND THE ADMISSION OF MEDICAL RECORDS IN THIS TRAFFIC ACCIDENT CASE; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this traffic accident case should have been granted. The trial court had erroneously precluded some of the testimony of one of plaintiff’s treating physicians and the admission of another treating physician’s medical records. The defendant had waived any objection to the records by failing to object after service of plaintiff’s notice of intention to enter the documents:

At the trial on the issue of damages, the plaintiff called one of her treating physicians, Irving Friedman, as a witness. The Supreme Court erred in granting the defendant’s application to preclude Friedman’s testimony concerning the cervical and thoracic regions of the plaintiff’s spine based upon a conceded error Friedman made wherein he misidentified the MRI of the plaintiff’s spine … . Under the circumstances of this case, any defects in Friedman’s opinions or the foundations on which those opinions are based “should go to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance” … .

In addition, the Supreme Court erred in precluding Friedman’s testimony regarding future treatment and possible need for future surgery, as Friedman had addressed these issues in his medical reports … .

… [T]he Supreme Court erred in precluding the admission of the medical records of another of the plaintiff’s treating physicians, Rubin Ingber, under the business records exception to the hearsay rule. The defendant waived his right to any objection to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff’s notice of her intention to enter the documents into evidence pursuant to CPLR 3122- … . Benguigui v Racer, 2021 NY Slip Op 05318, Second Dept 10-6-21

 

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ALTHOUGH THE DEFENDANTS MAY HAVE BEEN NEGLIGENT IN HIRING THE DEFENDANT WHO SEXUALLY ASSAULTED THE SEVEN-YEAR-OLD PLAINTIFF, THERE WAS NO CONNECTION BETWEEN DEFENDANT’S EMPLOYMENT AND THE PLAINTIFF OR THE OFFENSE, WHICH OCCURRED NEAR PLAINTIFF’S HOME; THEREFORE THE NEGLIGENT HIRING AND RETENTION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent hiring and retention cause of action against the church defendants should have been dismissed. The complaint alleged plaintiff, who was seven years old, was abducted near her home, taken to a secluded area, and sexually assaulted by the defendant. The court noted that the church defendants may have been negligent in hiring the defendant, but there was no connection between the offense committed by the defendant and his employment:

With respect to a cause of action alleging negligent hiring and retention, “[t]he employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of the employee” … . As such, a necessary element of a cause of action to recover damages for negligent hiring and retention is a nexus or connection between the defendant’s negligence in hiring and retaining the offending employee and the plaintiff’s injuries … . Here, the plaintiff failed to allege any such nexus, since the sexual assault occurred far from the Church’s premises, and there is no allegation in the complaint that the plaintiff had any prior contact with the alleged attacker, any prior relationship with any of the defendants, or even any knowledge, at the time of the sexual assault, that the alleged attacker was employed by the defendants. Roe v Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church, 2021 NY Slip Op 05360, Second Dept 10-6-21

 

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BY ARGUING HE DID NOT KNOW THE WEAPON AND AMMUNITION WERE IN THE TRUCK HE WAS DRIVING, DEFENDANT PUT HIS STATE OF MIND IN ISSUE; THEREFORE THE EVIDENCE HE HAD TWICE BEFORE BEEN IN THE POSSESSION OF FIREARMS, ONCE ON A PLANE AND ONCE IN A VEHICLE, WAS ADMISSIBLE UNDER MOLINEUX (SECOND DEPT).

The Second Department determined evidence of two prior incidents (more than a decade before defendant’s arrest) in which defendant had a firearm in his possession was admissible Molineux evidence in this prosecution for weapons and ammunition possession. Defendant argued at trial that he did not know the weapons and ammunition were in the truck he was driving. A strong dissent argued the Molineux evidence should not have been admitted because it was too remote, too prejudicial, and did not fit the state-of-mind exception to the Molineux rule:

“When [the] defendant’s criminal intent cannot be inferred from the commission of the act or when [the] defendant’s intent or mental state in doing the act is placed in issue, . . . proof of other crimes may be admissible under the intent exception to the Molineux rule” … .

Here, the Supreme Court providently exercised its discretion in admitting the proferred Molineux evidence. The evidence was directly relevant and probative of a material element of the crimes charged, namely, the defendant’s knowing possession of the guns … .

Our dissenting colleague’s assertion that the defendant’s criminal intent could be easily inferred from the circumstances of the incident, thus rendering the Molineux evidence unnecessary, ignores the fact that the defendant asserted a lack of criminal intent theory at trial. Contrary to our dissenting colleague’s assertion, the defendant placed his state of mind squarely in issue in his opening statement and throughout the trial, by pursuing the defense that “[h]e didn’t know” the guns were in the truck, and that the People would be unable to prove his intent to possess the guns beyond a reasonable doubt. People v Telfair, 2021 NY Slip Op 05355, Second Dept 10-6-21

 

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THE DNA TEST RESULT GENERATED USING THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE WITHOUT FIRST HOLDING A FRYE HEARING (SECOND DEPT).

The Second Department, reversing defendant conviction, determined the DNA test results using the Forensic Statistical Tool (FST) should not have been admitted without first holding a Frye hearing:

The defendant was convicted, after a jury trial, of murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. Prior to trial, the defendant moved, inter alia, to preclude the People from introducing at trial DNA testing results derived from the use of the Forensic Statistical Tool (hereinafter FST), or alternatively, to conduct a hearing pursuant to Frye v United States (293 F 1013 [DC Cir]) to determine the admissibility of the evidence generated by the FST. The Supreme Court denied that branch of the defendant’s motion, finding that FST was generally accepted in the scientific community. We reverse.

The Supreme Court improvidently exercised its discretion in admitting FST evidence without first holding a Frye hearing … . People v Adeyeye, 2021 NY Slip Op 05347, Second Dept 10-6-21

 

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DEFENDANT IN THIS CHILD PORNOGRAPHY CASE DEMONSTRATED MITIGATING FACTORS WARRANTING A DOWNWARD DEPARTURE TO SORA RISK LEVEL ONE (FOURTH DEPT).

The Fourth Department determined defendant in this child pornography case established mitigating circumstances that warranted a downward departure of the risk level to level one:

We agree with defendant … that he established by a preponderance of the evidence that there are other mitigating factors that were “not otherwise adequately taken into account by the guidelines” … . Defendant established that he suffered from a rare, congenital disease that resulted in significant disfigurement and medical issues, requiring numerous surgeries throughout his life. Defendant was bullied as a child, primarily due to his disfigurement and, as a result, was socially isolated, having no significant peer relationships. Defendant has only one prior crime on his record, a misdemeanor for which he was referred to Mental Health Court, and, in the case at hand, the court sentenced him to probation pursuant to the People’s recommendation, thus indicating that defendant does not pose a significant threat to the community. We also note that defendant will be under supervision by the Probation Department for 10 years.

As a result of the depression and related mental health issues that flowed from such a difficult childhood, defendant turned to alcohol and drugs, some of which had been properly prescribed to him following many of his surgeries. Defendant’s use of child pornography generally occurred while he was under the influence of drugs. Inasmuch as defendant was sentenced to a 10-year term of probation, which would ensure that he continued to participate in all of his treatment programs, we conclude that, in light of the totality of the circumstances, a downward departure to risk level one is warranted in the exercise of our discretion … . People v Morana, 2021 NY Slip Op 05188, Fourth Dept 10-1-21

 

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THE CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF OR DEFENDANT WAS RESPONSIBLE FOR PAYING PROPERTY TAXES; THEREFORE THE DEFENDANT’S COUNTERCLAIM, WHICH WAS BASED UPON AN INTERPRETATION OF THE CONTRACT, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the defendant’s third counterclaim seeking reimbursement for property taxes should not have been dismissed because the terms of the related contract were ambiguous. As part of a purchase agreement which never closed, the defendant was allowed to remain in the property in return for paying the property tax for six months. If the defendant remained in the property after six months defendant was to pay $800/month rent. Defendant remained in the property after six months but no one paid the taxes. Eventually defendant paid the accumulated property tax to avoid a tax auction:

Inasmuch as “a contract generally incorporates the state of the law in existence at the time of its formation” ,,, , defendant, as the titled owner, would have been responsible for the property taxes, absent a contractual provision to the contrary. Here, however, the contract was not truly silent on the issue of property taxes. It specifically provided that defendant would pay property taxes in one situation but then failed to address who would pay the property taxes in another situation … . Based on the maxim expressio unius est exclusio alterius, which applies to contracts as well as statutes … , “[w]here a [document] describes the particular situations in which it is to apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Inasmuch as the determination of the intent of the parties depends on a choice among reasonable inferences, we conclude that resolution of the third counterclaim should be left to a trier of fact. Dunn Auto Parts, Inc. v Wells, 2021 NY Slip Op 05185, Fourth Dept 10-1-21

 

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PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the claim for punitive damages in this medical malpractice action should have been dismissed because there was no evidence defendant doctor acted with malice or evil intent. Apparently, plaintiff alleged defendant’s fallure to adequately treat a skin condition warranted punitive damages:

Defendant explained that he initiated conservative treatment because, given plaintiff’s other conditions, it was appropriate to address plaintiff’s abdominal skin condition by attempting to alleviate her inflammatory process before considering surgical intervention. Defendant’s submissions established that, contrary to plaintiffs’ allegations, he had indeed treated plaintiff’s abdominal skin condition, albeit conservatively as he deemed appropriate under the circumstances, and that he had not abandoned plaintiff’s treatment in that regard … . We conclude that, even viewing the evidence in the light most favorable to plaintiffs, defendant established that his conduct “did not manifest spite or malice, or a fraudulent or evil motive . . . , or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton” … . Gaines v Brydges, 2021 NY Slip Op 05193, Fourth Dept 10-1-21

 

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CLAIMS AGAINST DEFENDANT NURSING HOME SOUNDED IN MEDICAL MALPRACTICE AND IN NEGLIGENCE, REQUIRING ANALYSES USING DIFFERENT CRITERIA; SOME CAUSES OF ACTIONS SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined some of plaintiff’s causes of action alleging medical malpractice and negligence against defendant nursing home should have been dismissed. The complaint alleged plaintiff’s decedent, a double amputee, was left unsupervised and fell from his bed. The Fourth Department noted the complaint alleged claims sounding in medical malpractice and in negligence:

… [T]he complaint … alleges several claims sounding in medical malpractice … [and] ]he summary judgment standard for medical malpractice claims should apply to those claims. … [P]laintiff alleges that defendants failed to “provide proper services to the decedent[,] . . . provide . . . adequate . . . staff[ing,] . . . change and/or adjust the decedent’s care plan . . . [, and] adequately formulate and/or promulgate a care plan in accordance with a comprehensive assessment[],” all of which sound in medical malpractice because they challenge defendants’ assessment of the decedent’s need for supervision … . * * * … [P]laintiff raised a triable issue of fact … by submitting the affidavit of her own expert, who opined that defendants deviated from the standard of care insofar as they did not amend the decedent’s care plan to require greater supervision after he was noted to be experiencing confusion and delirium … .  Plaintiff’s expert did not, however, address the claims regarding inadequate staffing procedures and training, and those claims are accordingly deemed abandoned … .

… [P]laintiff’s claims that defendants were negligent in failing to follow the care plan and to equip the decedent’s wheelchair with a seatbelt sound in ordinary negligence inasmuch as they relate to defendants’ general duty to safeguard the nursing home’s residents, measured by “the capacity of [a resident] to provide for his or her own safety” … and “the [resident’s] physical and mental ailments known to the [agency’s] officials . . . and employees” … . … Defendants met [their] burden with respect to the claim alleging negligence in failing to equip the decedent’s wheelchair with a seatbelt by submitting evidence that they formulated a plan of care that addressed the decedent’s risk of falling, and that a restrictive lap belt was not used in their facility. Plaintiff failed to raise a triable issue of fact in opposition with respect to that claim inasmuch as plaintiff’s expert failed to opine how a nonrestrictive lap belt would have prevented the subject accident … . Noga v Brothers of Mercy Nursing & Rehabilitation Ctr., 2021 NY Slip Op 05189, Fourth Dept 10-1-21

 

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THE DIRECTOR OF THE DIVISION OF MINORITY AND WOMEN’S BUSINESS DEVELOPMENT ERRONEOUSLY IGNORED THE EVIDENCE PRESENTED AT THE HEARING BEFORE AN ADMINSTRATIVE LAW JUDGE WHICH DEMONSTRATED PETITIONER MET THE CRITERIA FOR A WOMEN-OWNED BUSINESS ENTERPRISE (WBE) (THIRD DEPT).

The Third Department, annulling the determination of the Division of Minority and Women’s Business Development of the Department of Economic Development (the Division), found the petitioner had demonstrated it met the criteria for certification as a woman-owned business enterprise (WBE). In its contrary ruling, the Division erroneously ignored the evidence presented at the hearing before the Administrative Law Judge (ALJ) which had ruled in favor of the petitioner:

Petitioner contends that the determination should be annulled because the Director refused to consider the testimonial evidence introduced at the administrative hearing in assessing the regulatory factors, and we agree. … [F]ollowing a determination denying an application for certification as a WBE, the applicant is, upon written request, entitled to an administrative hearing before an independent hearing officer … . The hearing officer must thereafter conduct the hearing based upon the information included in the request for a hearing as it relates to the information that was provided by the applicant with its certification application, and each party must be accorded a full opportunity to present evidence, including calling witnesses and cross-examining other parties and their witnesses … . The hearing officer may also “request additional information and take other actions necessary to make an informed decision” … , which ultimately must be based upon his or her “consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence” … .

The proof adduced at the administrative hearing was highly relevant to the issue of whether petitioner met the criteria for WBE certification. Matter of Scherzi Sys., LLC v White, 2021 NY Slip Op 05143, Third Dept 9-30-21

 

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ALTHOUGH THE COMPLAINANT WAS USING ONLY HIS FISTS FIGHTING THE MUCH SMALLER DEFENDANT, THE DEFENDANT WAS ENTITLED TO THE DEADLY-FORCE-JUSTIFICATION-DEFENSE JURY INSTRUCTION (SECOND DEPT).

The Second Department, over a strong dissent, reversing defendant’s conviction, determined defendant’s request for a deadly-force-justification-defense jury instruction should have been granted. The person with whom defendant was fighting, Gibson, was five inches taller and 66 pounds heavier than defendant. Gibson testified the defendant struck him with a hammer and a meat cleaver. Although Gibson was using only his fists during the fight, he eventually rendered defendant unconscious with a single punch. The medical evidence did not support Gibson’s claim he had been struck with a hammer and a meat cleaver:

The jury acquitted the defendant of attempted murder in the second degree and criminal possession of a weapon in the third degree, and convicted him of assault in the second degree.  …

… [B]ased on the differences in size and strength between Gibson and the defendant … , the complainant’s own testimony that he held the defendant down and punched him in the face, the significant injuries suffered by the defendant, including a fractured ankle, Hall’s [a roommate’s] statement during the 911 call that “they’re killing each other,” and the significant factual questions presented regarding what weapons were used and by whom, a rational jury could have found that the defendant reasonably believed that deadly physical force was necessary to defend himself … against the use or imminent use of deadly physical force by Gibson … . … [B]ased on the evidence viewed in the light most favorable to the defendant, a rational jury could have determined that Gibson, not the defendant, was the first person to use or threaten the imminent use of deadly physical force … . Under these circumstances, the failure to charge the defense constituted reversible error … . * * *

… Supreme Court failed to view the evidence in the light most favorable to the defendant. The court credited Gibson’s testimony despite evidence which … significantly called into question the credibility of Gibson’s story. … A criminal defendant has no burden to present evidence at trial to prove his innocence, including by showing that his conduct was justified and therefore lawful … . Instead, the burden to disprove justification falls on the People. People v Singh, 2021 NY Slip Op 05134, Second Dept 9-29-21

 

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