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EVIDENCE PLAINTIFF’S DECEDENT’S SISTER CARRIED A GENE WHICH INCREASED THE CHANCE OF DEVELOPING OVARIAN CANCER SHOULD NOT HAVE BEEN EXCLUDED FROM THIS MEDICAL MALPRACTICE TRIAL (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this medical malpractice action, determined evidence that plaintiff’s decedent’s sister carried a gene which increased the chance of developing ovarian cancer should have been admitted:

“Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury” … . “‘A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury'” … .

The evidence that the decedent’s sister tested positive for the harmful variant of the BRCA2 gene was not unduly prejudicial and was relevant to the issue of proximate cause, as it would have supported the plaintiff’s argument and the testimony of the plaintiff’s expert that the decedent would have undergone gene testing if properly advised to do so, and more likely than not would have tested positive for the harmful gene variant and undergone a procedure to remove her ovaries, diminishing her chances of developing ovarian cancer. This evidence also would have contradicted the position of the Akhund defendants that the decedent’s chances of testing positive for the harmful gene variant were as low as 2.5 to 5% … . The weight to be accorded to this evidence is a matter to be determined by the jury … . Walsh v Akhund, 2021 NY Slip Op 05890, Second Dept 10-27-21

 

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IN CONSIDERING A MOTION TO DISMISS A PETITON TO MODIFY CUSTODY TO ALLOW RELOCATION, FAMILY COURT MUST ACCEPT THE FACTS ALLEGED IN THE PETITION AS TRUE AND AFFORD PETITIONER EVERY FAVORABLE INFERENCE; MOTHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody to allow her to relocate to New Jersey should not have been dismissed without a hearing:

“While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing” … , an evidentiary hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]’s best interests” … . “In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner” … .

The change in circumstances alleged by the mother in her petition included, among other things, the child’s “strong desire to relocate” with the mother to New Jersey and a recent breakdown in the child’s relationship with the father. In concluding that these allegations were facially insufficient, Family Court failed to accept the mother’s allegations as true, afford her the benefit of every favorable inference and resolve credibility issues in her favor. Matter of Sarah OO. v Charles OO., 2021 NY Slip Op 05758, Third Dept 10-21-21

 

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT DEMONSTRATE RESPONDENTS (MOTHER AND FATHER) VIOLATED THE ORDER OF SUPERVISION; IN THIS ORDER-VIOLATION PROCEEDING, FAMILY COURT SHOULD NOT HAVE RELIED UPON AND REFERRED TO EVIDENCE, SOME OF WHICH WAS INADMISSIBLE HEARSAY, FROM THE UNDERLYING NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the Department of Social Services (petitioner) did not demonstrate respondents (mother and father) violated the order of supervision and Family Court should not have incorporated evidence from a separate neglect proceeding into the order-violation proceeding:

… [I]t was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. … [T]he quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence … , which was not established here. * * *

… [T]he court permitted petitioner to introduce unproven allegations against respondents from the underlying neglect proceeding, evidence relating to other conduct that predated the … order, as well as inadmissible hearsay contained in the case notes authored by petitioner’s employees and the children’s therapists. As the court’s decision is replete with references to this evidence, the admission of this evidence, if relied upon at all to establish willful violations, irreparably tainted its decision … . Matter of Nicholas L. (Melissa L.), 2021 NY Slip Op 05746, Third Dept 10-21-21

 

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT MEET ITS BURDEN OF PROOF ON ITS ABANDONMENT CLAIMS IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; PETITION DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the petitioner (Department of Social Services) did not meet its burden of proof on whether respondent had abandoned the child in this termination-of-parental-rights proceeding:

“A finding of abandonment is warranted when it is established by clear and convincing evidence that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the filing of the abandonment petition, although able to do so and not prevented or discouraged from doing so by petitioner” ( … see Social Services Law § 384-b [5] [a] …). It is presumed that a parent has the ability to visit and/or communicate with his or her child and, therefore, “[o]nce the petitioning agency establishes that the parent failed to maintain contact with his or her child, the burden shifts to the parent to prove an inability to maintain contact or that he or she was prevented or discouraged from doing so by the petitioning agency” … . …

The caseworker… only observed two … visitations, each for only a limited period of time, during which she acknowledged that respondent brought snacks for the child. Respondent was otherwise precluded from making any other attempts to contact the child — i.e., telephone calls — outside of her scheduled supervised parenting time. The caseworker … acknowledged that … respondent was hospitalized with an injury that required emergency brain surgery, which prevented her from exercising one of her scheduled visitations that month, and respondent subsequently executed a medical release so that petitioner could verify same. … [A]lthough the caseworker initially indicated that she had not had any contact with respondent since May 2019, during cross-examination she indicated that respondent had, in fact, called her one or two times during the relevant time period. Matter of Khavonye FF. (Latasha EE.), 2021 NY Slip Op 05753, Third Dept 10-21-21

 

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THE BANK’S FAILURE TO ATTACH THE BUSINESS RECORDS REFERRED TO IN THE FOUNDATIONAL AFFIDAVIT PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted. The affidavit of the loan servicer’s vice president (Lee) was deficient in content and did not identify or attach the records referenced:

Lee failed to aver to familiarity with the record-keeping practices and procedures of the entity that generated the records or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business … .

… [E]ven if Lee’s affidavit set forth a proper foundation for the admissibility of the unspecified records he relied on … , Lee “failed to identify the records upon which [ ]he relied in making the statements, and the plaintiff failed to submit copies of the records themselves” … . It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted … . Deutsche Bank Trust Co. Ams. v Miller, 2021 NY Slip Op 05690, Second Dept 10-20-21

Similar issues and result in Freedom Mtge. Corp. v Engel, 2021 NY Slip Op 05694, Second Dept 10-20-21

 

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THE TRAFFIC STOP WAS PRETEXTUAL, OSTENSIBLY BASED ON A BURNED-OUT LICENSE-PLATE LIGHT; BUT THERE WAS SUPPORT IN THE RECORD FOR THE CANINE SNIFF BASED UPON A FOUNDED SUSPICION OF CRIMINAL ACTIVITY; THEREFORE THE MATTER WAS BEYOND REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, over an extensive three-judge dissent, determined there was sufficient evidence in the record to support the finding that the canine sniff was justified by a founded suspicion that criminal activity was afoot. The traffic stop was pretextual, ostensibly based on a burned-out license-plate light:

In the course of a stop predicated on the observation of traffic violations … defendant consented to a search of the backseat of his vehicle. Instead of conducting that search, the police officer walked his canine around the exterior of the vehicle and, in mere seconds, the canine alerted to the trunk. Defendant argues that law enforcement lacked founded suspicion that criminal activity was afoot and, thus, unlawfully conducted the exterior canine sniff search.

A canine sniff search of a vehicle’s exterior is lawful if police possess a founded suspicion that criminal activity is afoot … . Determinations regarding the existence of a founded suspicion of criminality involve mixed questions of law and fact … . Therefore, our review is “limited to whether there is evidence in the record supporting the lower courts’ determinations” … . …

Based on the evidence presented at the suppression hearing, including the officers’ observations prior to and during the stop, there is record support for the determination that a founded suspicion of criminal activity existed here and, thus, the issue is beyond further review … .

From the dissent:

Mr. Blandford’s case illustrates a troubling aspect of police behavior: law enforcement can pursue someone they suspect of criminal behavior without a founded suspicion of criminality, wait for the right moment to stop that person for a minor traffic infraction, and then serve up a stew of flavorless facts to transform a stop in which they have no intrinsic interest into the search they sought before they had any evidentiary basis to suspect wrongdoing. Although this case illustrates that problem, its resolution should be much simpler than resolution of the systemic problem: here, the officers did not possess information sufficient to justify the canine search. People v Blandford, 2021 NY Slip Op 05619, CtApp 10-14-21

 

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DEFENDANT ALLEGED HE DID NOT SEE THE PEDESTRIAN HE STRUCK UNTIL AFTER THE CONTACT OCCURRED; DEFENDANT’S EMERGENCY-DOCTRINE DEFENSE SHOULD HAVE BEEN STRUCK (FIRST DEPT).

The First Department, reversing (modifying Supreme Court) determined defendant’s allegations did not support the “emergency” defense in this vehicle-pedestrian accident case:

Defendant maintains that he did not see plaintiff before she was struck by his vehicle and that she was not in the crosswalk when he began turning onto the avenue; it was only after plaintiff was struck that defendant observed her in the crosswalk. “Without having perceived or reacted to any emergency, the defendant may not rely on the emergency doctrine to excuse [his] conduct” … . De Diaz v Klausner, 2021 NY Slip Op 05624, First Dept 10-14-21

 

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THE EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO STAB THE VICTIM WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s assault convictions, determined the evidence defendant shared the co-defendant’s intent to stab the victim was insufficient:

Defendant’s convictions of attempted assault in the first degree and assault in the second degree, charged under an acting in concert theory, were not supported by legally sufficient evidence …  These charges required proof that when the codefendant stabbed the victim, defendant shared the codefendant’s intent to do so; defendant was not convicted of any assault crimes where his liability was based on his intent to commit robbery. During a robbery attempt, the codefendant stabbed the victim from behind several times with a small knife. However, there was no evidence that defendant, who was standing in front of the victim and restraining him, knew that the codefendant had a knife or was planning to use it. “[T]he use of the knife was not open and obvious” … , and defendant released the victim within seconds of the stabbing. Under these circumstances, the record does not support a conclusion beyond a reasonable doubt that defendant was aware of the use of the knife but continued to participate in the assault … . Accordingly, the evidence did not establish defendant’s accessorial liability (see Penal Law § 20.00) for these crimes. People v Grosso, 2021 NY Slip Op 05640, First Dept 10-14-21

 

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DEFENDANT WAS A DINNER GUEST IN HIS FRIEND’S APARTMENT WHEN THE POLICE RAIDED IT; OBSERVATIONS MADE DURING THE RAID LED TO A SEARCH WARRANT FOR THE APARTMENT; DEFENDANT ALLEGED HE RECEIVED MAIL AT THE APARTMENT; THE MAJORITY CONCLUDED DEFENDANT’S MOTION TO SUPPRESS DID NOT SUFFICIENTLY ALLEGE STANDING TO CONTEST THE SEARCH AND THE MOTION WAS PROPERLY DENIED WITHOUT A HEARING (CT APP).

The Court of Appeals, over an extensive, two-judge dissent, determined defendant’s suppression motion was properly denied without holding a hearing. The majority concluded defendant did not sufficiently allege standing to contest to search. Defendant was a dinner guest in his friend’s apartment at the time it was raided by the police. Evidence observed by the police during the raid was used to procure the search warrant:

CPL 710.60 (1) requires that a motion for suppression of physical evidence must state the ground or grounds of the motion and must contain sworn allegations of fact. CPL 710.60 (3) permits summary denial of a suppression motion where the motion papers do not provide adequate sworn allegations of fact … . The suppression court did not abuse its discretion in denying, without an evidentiary hearing, that branch of defendant’s motion which was to suppress the physical evidence recovered upon the search of the apartment pursuant to a search warrant that had been executed after his arrest, because the allegations in the motion papers were insufficient to warrant a hearing.

… In denying defendant’s motion, the suppression court stated that “defendant has failed to sufficiently allege standing to challenge the search of the subject premises,” which is the gravamen of our holding today.  Defendant’s remaining arguments addressed by the dissent, including the assertion that dinner guests have an expectation of privacy in the home of their hosts, are academic.

From the dissent:

Mr. Ibarguen’s [defendant’s] motion papers allege that he was a lawful invitee whose mail was delivered to that apartment and Mr. Ibarguen testified to having been at dinner at his friends’ house “all night.” Those facts support his claim that as a social guest, he held a legitimate expectation of privacy in at least some part of the searched apartment enabling him to challenge the legality of the warrantless search and suppress evidence recovered therein. People v Ibarguen, 2021 NY Slip Op 05617, CtApp 10-14-21

 

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IN HIS MOTION TO WITHDRAW HIS PLEA TO CRIMINAL POSSESSION OF WEAPONS, DEFENDANT CLAIMED HE DID NOT KNOW THE WEAPONS, WHICH BELONGED TO SOMEONE ELSE, WERE STORED AT HIS MOTHER’S HOUSE, WHERE HE DID NOT RESIDE; THIS CLAIM OF INNOCENCE (POSSESSION WAS NOT “VOLUNTARY”) WAS SUFFICIENTLY SUPPORTED TO WARRANT A HEARING ON THE MOTION TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to withdraw his guilty plea. Defendant was charged with possession of weapons found in his mother’s house. In his motion to withdraw his plea he explained he did not reside in his mother’s house and the weapons, which belonged to someone else, were stored in the house without his knowledge or consent:

The defendant contended, in essence, that he did not voluntarily possess the weapons at issue. * * *

… [T]he defendant’s claim of innocence was “supported” by evidentiary submissions … , which “raised the possibility of a . . . defense” … . The defendant’s submissions provided “tenable support” … for his assertion that he did not voluntarily possess the weapons at issue because he was not “aware of his physical possession or control thereof for a sufficient period to have been able to terminate it” (Penal Law § 15.00[2]). * * *

Regardless of … the strength of the People’s case, the defendant was not required to affirmatively demonstrate his actual innocence in this procedural posture … . It is clear that “an arguable claim of innocence” … may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is “far from conclusive” … . People v Amos, 2021 NY Slip Op 05577, Second Dept 10-13-21

 

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