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DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE, AS A MATTER OF LAW, THE DECORATIVE FENCE IN THE GRASSY AREA BETWEEN THE CURB AND THE SIDEWALK WAS OPEN AND OBVIOUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner was not entitled to summary judgment in this slip and fall case. The plaintiff allegedly tripped over a decorative fence located in the grassy area between the curb and the sidewalk abutting defendants’ home. The defendants argued the fence was open and obvious:

“The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .

Here, contrary to the Supreme Court’s determination, the homeowner defendants failed to establish, prima facie, that the decorative fence was open and obvious and not inherently dangerous given the circumstances at the time of the accident, including the lighting conditions and color of the fence … . Rosenman v Siwiec, 2021 NY Slip Op 04248, Second Dept 7-7-21

 

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IN THIS SLIP AND FALL CASE, PROOF OF GENERAL CLEANING AND INSPECTION PRACTICES WAS NOT ENOUGH TO DEMONSTRATE THE LACK OF CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not demonstrate it didn’t have constructive notice of the liquid on the floor in this slip and fall case. Proof of general cleaning and inspection practices is not enough:

… [T]he defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the hazardous condition and a reasonable time to correct it … . In that respect, the deposition testimony of the defendant’s witnesses as to their general cleaning and inspection practices, as well as the deposition testimony of a security supervisor surmising, based upon such general practices, when another security officer would have inspected the subject stairwell prior to the accident, was insufficient to demonstrate, as a matter of law, that the defendant lacked constructive notice of the hazardous condition … . Roland v Jackson Terrace Apts., 2021 NY Slip Op 04247, Second Dept 7-7-21

 

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IN THIS STREET STOP CASE, SOME OF THE POLICE OFFICERS’ TESTIMONY WAS REJECTED AS INCREDIBLE; THE PEOPLE DID NOT DEMONSTRATE THE LEVEL THREE ENCOUNTER WAS JUSTIFIED BY REASONABLE SUSPICION (SECOND DEPT).

The Second Department, dismissing the indictment, determined the People did not demonstrate the level three encounter with the defendant in the street stop was justified by reasonable suspicion. Some of the police officers’ testimony was rejected as incredible:

Officer Washington’s pursuit of the defendant and her attempt to grab him with her right hand were both level three actions requiring reasonable suspicion … . Setting aside those portions of Officer Washington’s account the Supreme Court properly disregarded as incredible, her testimony indicates that she began chasing and grabbing at the defendant in response to his flight. She did not, however, credibly describe anything more than equivocal circumstances in conjunction with the defendant’s flight, meaning her testimony was insufficient to justify police pursuit … . Officer Montano testified that the defendant dropped the gun before he fled, which in turn could justify Officer Washington’s pursuit … . But he also testified that Officer Washington was “trying to take her shield out as she [was] approaching [the defendant] to try to grab him” before the defendant dropped the gun or started to run. Officer Montano thus observed the defendant drop the gun and flee as a result of Officer Washington’s attempt to grab him before she had the reasonable suspicion necessary to do so. “Since this level three intrusion was not justified, it cannot be validated by the officer’s subsequent observation of the firearm” … . People v Rhames, 2021 NY Slip Op 04242, Second Dept 7-7-21

 

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THE VAGUE IDENTIFICATION EVIDENCE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the identification evidence was too weak to support a conviction, i.e., the conviction was against the weight of the evidence. Witnesses saw a man toss a bag of drugs over a fence and run away:

Both women saw the man holding what appeared to be a white shopping bag with red circles on it, which he threw over a chain-link fence nearby. The man continued running through the parking lot toward Grand Street.

One of the women described the man she saw as a black man with short, dark hair, wearing a dark baseball cap, a T-shirt, jeans, and sneakers. The man was “a little taller, somewhat taller” than five feet, two inches, but she was not sure. She estimated his weight to be 175 to 185 pounds, but she was not sure. She did not remember if he wore glasses. She could not describe the color of his clothing or give any description of the sneakers he wore. The other woman described the man as a young black male, approximately five feet, seven inches tall, but she could not say for sure, and “guesstimat[ed]” that he may have weighed 170 pounds. She testified that he wore a baseball cap and might have been wearing dark pants and dark sneakers. Neither woman was able to identify the defendant as the man they saw. …

… [N]either of the police witnesses observed the defendant carrying a bag, neither of the bystander witnesses was able to identify the defendant as the man carrying the bag, and no forensic evidence linked the defendant to the bag. … [T]he rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Although the vague description provided by the bystander witnesses was not inconsistent with the defendant’s general appearance, we find that such evidence, coupled with nothing more than the defendant’s proximity to the crime scene, is insufficient to establish, beyond a reasonable doubt, the defendant’s identity as the perpetrator … . People v Hawkins, 2021 NY Slip Op 04238, Second Dept 7-7-21

 

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STATEMENTS MADE BY THE COMPLAINANT TO POLICE OFFICERS HOURS AFTER THE ALLEGED INCIDENT SHOULD NOT HAVE BEEN ADMITTED AS EXCITED UTTERANCES (SECOND DEPT).

The Second Department, reversing defendant assault and criminal possession of a weapon convictions, determined the complainant’s hearsay statement should not have been admitted as excited utterances:

… [T]he Supreme Court erred in permitting the People to elicit testimony from two police officers on the content of certain hearsay statements made to them by the complainant when they encountered her at a deli a few hours after the alleged assault. …

“An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “The essential element of this hearsay exception is that the declarant spoke while under the stress or influence of the excitement caused by the event, so that his [or her] reflective capacity was stilled” … . “[T]he time for reflection is not measured in minutes or seconds, but rather is measured by facts” … . …

… [I]n light of the amount of time that elapsed between the incident and the statements … , and the lack of evidence as to what transpired in the interim … , the People did not establish that the complainant’s capacity for reflection and deliberation remained stilled by the time she spoke to the police officers at the deli … . People v Germosen, 2021 NY Slip Op 04237, Second Dept 7-7-21

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s Assault 2nd conviction, determined the evidence of “physical injury” was legally insufficient:

… [T]he evidence, when viewed in the light most favorable to the prosecution … , was legally insufficient to establish, beyond a reasonable doubt, that the complainant sustained a physical injury within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” … . At the time of the incident, the complainant did not seek medical attention and proceeded on his way. He testified at trial that he continued to have pain in his back and neck for approximately three weeks, had pain when he lifted “something” when working in construction, without specifying what “something” was, and was unable to use a pillow to sleep. However, he never sought medical treatment after the incident, claiming that he did not need it, and he used only a topical pain relief cream to relieve pain. Under these circumstances, there was insufficient evidence from which a jury could rationally infer that the complainant suffered substantial pain or impairment of his physical condition … . People v Bowen, 2021 NY Slip Op 04236, Second Dept 7-7-21

 

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THE RES IPSA LOQUITUR DOCTRINE APPLIED TO A PLASTIC CHAIR IN THE RECREATIONAL ROOM OF DEFENDANT CORRECTIONAL FACILITY; THE CHAIR COLLAPSED WHILE CLAIMANT WAS SITTING IN IT; THE ISSUE WAS WHETHER DEFENDANT HAD EXCLUSIVE CONTROL OVER THE CHAIR; COURT OF CLAIMS REVERSED (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined the doctrine of res ipsa loquitur applied to a plastic chair in the recreational room of a state correctional facility. Claimant alleged the back legs of the chair broke off at the same time causing him to fall to the concrete floor:

… [T]he evidence of defendant’s exclusive control, under the circumstances of this case, was sufficiently established … . Indeed, “[a]s a species of circumstantial proof, . . . res ipsa [loquitor] does not depend on a showing that the instrumentality causing the harm was within the defendant’s exclusive control; it is enough that the degree of dominion be such that the defendant can be identified with probability as the party responsible for the injury produced” … .

… [D]efendant was “under an affirmative duty to use reasonable care in making sure that the chair it provided was safe for the purpose for which it was to be used. That [claimant] had temporary possession of the chair does not negate the inference that its sudden collapse, under normal usage, was most likely caused by defendant’s negligence” … . Moreover, defendant, who no doubt had sole and exclusive possession of the chair immediately after the accident, failed to offer any evidence to support an inference of any other possible explanation for the accident … . Draper v State of New York, 2021 NY Slip Op 04163, Third Dept 7-1-21

 

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ALTHOUGH IT WAS A VERY CLOSE CASE, THE EVIDENCE DID NOT SUPPORT A CHANGE IN CUSTODY SUCH THAT THE COUPLE’S SON, WHO HAS BEEN DIAGNOSED WITH AUTISM, WOULD RELOCATE WITH FATHER TO MASSACHUSETTS, DESPITE FATHER’S BEING MORE FINANCIALLY SECURE THAN MOTHER; FAMILY COURT DID NOT GIVE PROPER WEIGHT TO THE SON’S WISHES (THIRD DEPT).

The Third Department, reversing Family Court, determined, in a very close case where both parents love and want the best for their children (who have been diagnosed with autism), father did not demonstrate a sound basis for modifying the custody arrangement to allow relocation with his son to Massachusetts:

… [I]t is clear that the son is very strongly bonded to the mother. Indeed, he has lived with the mother for the last six years since the father moved to Massachusetts, except for short periods of visitation with the father. Moreover, the son has had very little visitation with the father since the 2019 holiday season due largely to the COVID-19 pandemic. Additionally, although the father cites the living conditions at the mother’s home as the motivation for initially seeking custody, we find this questionable given that he testified that the condition of the mother’s home has long been problematic and that, despite this, he relocated to Massachusetts and left both children in her care. Although … issues with the hot water heater were no doubt problematic, that matter was remedied prior to trial. Even more troubling, however, is the father’s strong opposition to the son changing schools because the son has difficulty with change, yet he feels it is in the son’s best interests to relocate him to Massachusetts away from the mother and the life he has established with her. Although relocation would certainly enhance the son’s life, as his living conditions would improve due to the father being more financially secure, this is only one factor in our analysis … . Finally, although not dispositive, given the advanced age of the son [born 2005], as well as testimony regarding how intelligent he is, we find that Family Court did not give proper weight to his wishes … . Matter of Daniel G. v Marie H., 2021 NY Slip Op 04178, Third Dept 7-1-21

 

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IN THIS CHILD-VICTIMS-ACT SEXUAL-ABUSE (NEGLIGENT-SUPERVISION) ACTION AGAINST THE CATHOLIC DIOCESE OF ALBANY, PLAINTIFFS’ DISCOVERY REQUEST FOR THE FILES OF SEVERAL NONPARTY PRIESTS WAS PROPERLY GRANTED ON THE GROUND THE FILES MAY REVEAL A “HABIT” OR “CUSTOM” REGARDING HOW THE DIOCESE HANDLED SUSPECTED CHILD-SEXUAL-ABUSE (THIRD DEPT).

The Third Department determined plaintiffs’ discovery request for the files of several nonparty priests in this Child-Victims-Act sexual-abuse (negligent-supervision) action against defendant Catholic Diocese of Albany was properly granted. The discovery was relevant to whether the diocese followed a “habit” or “custom” in dealing with priests suspected of sexually abusing children:

Although the Diocese raises several arguments concerning the appropriateness of habit evidence in this context — namely, that it is prejudicial and that the circumstances surrounding allegations of abuse vary and do not yield habitual responses from the Diocese — these arguments conflate plaintiffs’ requirement on their motion to compel with plaintiffs’ future requirements to introduce the files into evidence. For now, on their motion to compel discovery, plaintiffs are merely required to show that their discovery request is reasonably calculated to yield material and necessary information … . Whether plaintiffs can actually demonstrate “a sufficient number of instances” of the Diocese’s repetitive conduct in order to introduce the subject files into evidence as habit evidence is plaintiffs’ future burden … . Melfe v Roman Catholic Diocese of Albany, N.Y., 2021 NY Slip Op 04179, Third Dept 7-1-21

 

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ALTHOUGH DEFENDANTS DID NOT SEE THE PLAINTIFF, THERE IS A QUESTION OF FACT WHETHER A PATIENT-PHYSICIAN RELATIONSHIP WAS CREATED BASED UPON ANOTHER DOCTOR’S ORDER THAT PLAINTIFF BE SEEN BY THOSE DEFENDANTS WITHIN ONE OR TWO DAYS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this medical malpractice action should not have been granted. One of the issues was whether defendants, who had never seen plaintiff, could be found to have had a patient-physician relationship based upon the failure to schedule an appointment within the time-frame ordered by another doctor:

… [P]laintiff acknowledges that she never received treatment from or spoke with Connolly or Retina Associates. Instead, plaintiff relies on a notation in her medical records from Twin Tiers stating that Rosenberg initially requested that she be evaluated by Retina Associates within one to two days and that a later appointment was scheduled only after Connolly apparently informed Twin Tiers that she “could wait to be seen until next week.” Moreover, after allegedly giving this advice regarding timing, Retina Associates scheduled the appointment beyond that acceptable time frame — for 13 days later. * * *

Viewing the evidence in a light most favorable to plaintiff, a triable factual question exists regarding whether the notation in Twin Tiers’ chart — attributing a comment to Connolly regarding scheduling of treatment — is sufficient to establish an implied physician-patient relationship between plaintiff and Connolly or Retina Associates … . Marshall v Rosenberg, 2021 NY Slip Op 04180, Third Dept 7-1-21

 

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