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PLAINTIFF ALLEGED THE INCREASED TRAFFIC RELATED TO AN EVENT AT DEFENDANT COUNTRY CLUB CREATED A DANGEROUS CONDITION CONTRIBUTING TO A COLLISION WITH A VEHICLE ATTEMPTING TO ENTER THE COUNTRY CLUB PREMISES; PLAINITIFFS WERE ENTITLED TO DISCOVERY FROM THE COUNTRY CLUB REGARDING CROWD CONTROL, MARKETING, EVENT PLANNING, SAFETY PLANS, ETC. (THIRD DEPT).

The Third Department determined plaintiffs’ motion to compel discovery from defendant country club was properly granted. Plaintiffs were injured in a collision when defendant driver made a left turn across plaintiffs’ lane of travel to enter the country club premises to attend a special event. Plaintiffs alleged that defendant country club did not take adequate measures to control the increased traffic generated by the event, thereby creating a dangerous condition:

Plaintiffs’ complaint alleges a cause of action for negligence based on, as relevant here, breach of a special duty of care by defendant. The crux of plaintiffs’ theory of liability against defendant is that it organized and hosted an event that it knew or should have known would generate a large amount of traffic to the site, but failed to account for the impact of same, and said failure was a proximate cause of plaintiffs’ injuries. A review of plaintiffs’ demands evinces that they generally sought information regarding crowd control, marketing/advertisement materials, ticket sales, minutes concerning the planning of the event, copies of emergency management plans, safety plans and copies of any and all reports of past medical emergencies at the event. For the most part, the demands were concerned with the event held in 2019, as well as those held in the preceding five years. A review of the record reveals that the discovery sought is aimed at determining whether defendant created a dangerous condition by holding a large event, thus increasing vehicular and pedestrian traffic, with notice of the danger and failing to take appropriate precautions … . Rote v Snyder, 2021 NY Slip Op 03508, Third Dept 6-3-21

 

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KINGS COUNTY SUPREME COURT HAD JURISDICTION TO ISSUE EAVESDROPPING WARRANTS FOR DEFENDANT’S CELL PHONES BASED UPON WHERE THE INTERCEPTION WAS TO BE MADE (NEW YORK); THE CELL PHONES NEED NOT BE (AND WERE NOT) LOCATED IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined that Kings County Supreme Court had jurisdiction to issue eavesdropping warrants for defendant’s cell phones based up where the interception was to be made (New York). The cell phones need not be (and were not) located in New York:

The issue raised on defendant’s appeal is whether a Kings County Supreme Court Justice had jurisdiction to issue eavesdropping warrants for defendant’s cell phones, which were not physically present in New York, for the purpose of gathering evidence in an investigation of enterprise corruption and gambling offenses committed in Kings County. To resolve defendant’s jurisdictional challenge, we must decide whether the eavesdropping warrants were “executed” in Kings County within the meaning of Criminal Procedure Law § 700.05 (4). We hold that eavesdropping warrants are executed in the geographical jurisdiction where the communications are intentionally intercepted by authorized law enforcement officers within the meaning of CPL article 700. People v Schneider, 2021 NY Slip Op 03486, CtApp 6-3-21

 

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THE DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION CLAIMED THEY DID NOT HAVE POSSESSION OF THE VENOGRAM USED TO DIAGNOSE A BLOCKAGE IN A VEIN IN DEFENDANT’S LEG; PLAINTIFF’S APPLICATION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should not have been granted, and the application for sanctions for spoliation of evidence should not have been denied. The doctors claimed to no longer have possession of a venogram used to diagnose the blockage of a vein:

… [T]he plaintiff sufficiently established that the defendant doctors lost or destroyed the venogram imaging. The record demonstrates that it was the defendant doctors’ regular practice to record the results of venograms, that the defendant doctors had recorded the plaintiff’s other tests, and that the defendant doctors offered no explanation for the absence of the venogram imaging … . Moreover, the plaintiff established that the venogram imaging was relevant and necessary to the prosecution of the action. Contrary to the defendant doctors’ contention, the handwritten notation on the plaintiff’s treatment notes indicating the results of the venogram was not an adequate substitute. Accordingly, the Supreme Court should have granted the plaintiff’s application to impose sanctions on the defendant doctors to the extent of directing an adverse inference charge against those defendants at trial with regard to the missing evidence … . Loccisano v Ascher, 2021 NY Slip Op 03451, Second Dept 6-2-21

 

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THE JURY’S FINDING THAT PLAINTIFF IN THIS SLIP AND FALL CASE WAS NEGLIGENT BUT THAT DEFENDANT WAS 100% RESPONSIBLE WAS AGAINST THE WEIGHT OF THE EVIDENCE; ALLOWING PLAINTIFF’S DOCTOR TO TESTIFY DEFENDANT’S DOCTOR WAS HIRED BY AN INSURANCE COMPANY, WITHOUT GIVING A CURATIVE INSTRUCTION, WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department, ordering a new trial on liability and damages in this slip and fall case, determined the finding that plaintiff was negligent but that defendant was 100% responsible was against the weight of the evidence. In addition, allowing plaintiff’s physician to mention that defendant’s physician was hired by an insurance company was reversible error. Both parties had requested Pattern Jury Instruction (PJI) 2:36 on comparative fault. The judge denied that request and instructed the jury with PJI 2:90 which addresses comparative fault. The First Department did not find the denial of the request for PJI 2-36 was error, but noted that the jury clearly misunderstood the concept of comparative fault. Plaintiff alleged she tripped over a stool which was two-feet high:

It is clear that the jury’s verdict, finding that plaintiff was negligent, but that her negligence was not a substantial factor in causing the accident was against the weight of the evidence, and indicates that the jury had a fundamental misunderstanding of the concept of comparative negligence. In this case, “the issues of negligence and proximate cause are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” * * *

Evidence that a defendant carries liability insurance is generally inadmissible, as it is both collateral and prejudicial … . The passing reference to insurance or similar benefits will not necessarily result in reversal … . However, if the testimony goes beyond mere mention of insurance, then a mistrial may be warranted … . Here, plaintiff’s doctor’s testimony, together with the court’s failure to immediately give a curative instruction was prejudicial, and constituted reversible error, further warranting a new trial. Campbell v St. Barnabas Hosp., 2021 NY Slip Op 03404, First Dept 6-1-21

 

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NO PROOF DEFENDANT’S BACKPACK WAS WITHIN DEFENDANT’S REACH WHEN IT WAS SEIZED AND SEARCHED; THEREFORE THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST (CT APP).

The Court of Appeals, reversing the Appellate Division, in a brief memorandum decision, determined the search of defendant’s backpack could not be justified as a search incident to arrest because there was no evidence the backpack was within defendant’s reach when it was seized and searched:

The People failed to establish that the warrantless search of defendant’s backpack was a valid search incident to arrest … . The record does not contain evidence supporting a determination that the backpack was in defendant’s “immediate control or ‘grabbable area'” … . There is a lack of testimony in the record indicating where the bag was in relation to defendant immediately prior to the search. Because Supreme Court denied defendant’s suppression motion without reaching the People’s alternative argument raised in opposition, we remit the matter to Supreme Court … . People v Mabry, 2021 NY Slip Op 03348, CtApp 5-27-21

 

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present sufficient evidence of standing to bring the foreclosure action. Therefore the bank’s motion for summary judgment should not have been granted:

Generally, in order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence of the default … . Where the plaintiff’s standing has been placed in issue by the defendants’ answer, the plaintiff must prove its standing as part of its prima facie showing … .

Here, contrary to the Supreme Court’s determination, the plaintiff failed, prima facie, ]to establish its standing to commence this action. The copy of the note submitted in support of the plaintiff’s motion contained an additional page, entitled “Allonge to Note,” which contained a special indorsement from the original lender to the plaintiff. However, … the plaintiff did not submit any evidence to establish that the purported allonge was so firmly affixed to the note as to become a part thereof (see UCC 3-202[2] …). Wells Fargo Bank, N.A. v Maleno-Fowler, 2021 NY Slip Op 03344, Second Dept 5-26-21

 

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PLAINTIFF’S EXPERT RAISED ISSUES OF FACT ABOUT WHETHER EXPOSURE TO ASBESTOS CAUSED THE INJURY TO PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised questions of fact about whether exposure to asbestos injured plaintiff:

“In toxic tort cases, an expert opinion on causation must set forth (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered ](general causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries (specific causation)” … . “[T]here must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of the agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . “[I]t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community” … .

… [T]he plaintiffs submitted expert affidavits raising triable issues of fact as to both general and specific causation … . The conclusions of the plaintiffs’ experts were sufficiently supported by studies and medical literature, and demonstrated specific causation through a scientific method … . The experts’ conflicting interpretations of the underlying studies and literature presented a credibility battle between the parties’ experts, which is properly left to a jury for its resolution … . Pistone v American Biltrite, Inc., 2021 NY Slip Op 03341, Second Dept 5-26-21

 

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THERE WAS NO EVIDENCE DEFENDANT KNEW THE COMPLAINANT WAS A 14-YEAR-OLD RUNAWAY WHEN SHE STAYED AT HIS HOUSE; THE EVIDENCE OF KIDNAPPING WAS LEGALLY INSUFFICIENT (SECOND DEPT).

The Second Department, reversing defendant’s kidnapping conviction, determined the evidence was legally insufficient:

“A person is guilty of kidnapping in the second degree when he or she] abducts another person” … . “‘Abduct’ means to restrain a person with intent to prevent his [or her] liberation by . . . (a) secreting or holding him [or her] in a place where he [or she] is not likely to be found” … . “‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such [a] manner as to interfere substantially with his [or her] liberty by moving him [or her] from one place to another, or by confining him [or her] either in the place where the restriction commences or in a place to which he [or she] has been moved, without consent and with knowledge that the restriction is unlawful”… . “A person is so moved or confined ‘without consent’ when such is accomplished by . . . any means whatever, including acquiescence of the victim, if he [or she] is a child less than sixteen years old . . . and the parent, guardian or other person or institution having lawful control or custody of him [or her] has not acquiesced in the movement or confinement” … .  [T]he evidence does not establish that the defendant had “knowledge that the restriction [of the complainant’s movements was] unlawful” … , as the record fails to establish that the defendant knew that the complainant was under the age of 16 or that he knew she had run away and that her parents were looking for her, during a period of three days to one week that she was staying at his house … . Moreover, the evidence also failed to establish that the defendant intentionally restricted the complainant’s movements by confining her … , or that he intended to prevent her liberation by “secreting or holding [her] in a place where [she was] not likely to be found” … . Without establishing that the defendant knew that the complainant was a 14-year-old runaway, the People failed to establish that the defendant possessed the requisite intent to restrict her movements by confining her, or to prevent her liberation by keeping her hidden from her parents in a place where she was unlikely to be found. People v Legrand, 2021 NY Slip Op 03333, Second Dept 5-26-21

 

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FAMILY COURT PROPERLY CONSIDERED THE BEST INTERESTS OF THE TWO CHILDREN IN ITS PLACEMENT DECISION; STRONG TWO-JUSTICE DISSENT (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined Family Court properly considered the best interests of two children in deciding where the children should be place. The dissent disagreed. The decision is too detailed and fact-specific to fairly summarize here:

At its essence, this appeal presents a circumstance where everyone involved—the foster mother, the godmother, the attorney for the child, ACS, and the Family Court—agreed that the child and his half-sibling should be kept together. The court found that both the godmother’s home and the foster mother’s home were entirely suitable, but in choosing between the two, properly noted that the half-sibling’s father did not consent to the half-sibling being placed anywhere except with the godmother. The court’s consideration of that fact did not mean that the child’s best interests were not globally considered, but was instead a relevant and necessary fact that the court needed to take into account in determining how to best promote the child’s best interests and the obvious benefit to him of keeping the two half-siblings together as each other’s sole living, known, biological relatives. It was not error for the court to do so, and in fact, the court would have been derelict in its duties had it failed to do so. Matter of Adonnis M. (Kenyetta M.), 2021 NY Slip Op 03322, Second Dept 5-26-21

 

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ALTHOUGH PLAINTIFF’S EXPERT’S THEORY IN THIS MEDICAL MALPRACTICE CASE WAS NOT SUPPORTED BY MEDICAL LITERATURE, THE THEORY HAD AN OBJECTIVE BASIS AND SHOULD NOT HAVE BEEN PRECLUDED AFTER A FRYE HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence offered by plaintiff’s treating physician (Paget) as expert opinion should not have been precluded after a Frye hearing, despite the absence of medical literature on the topic. Plaintiff alleged a contrast agent was negligently injected into the tissue of her arm instead of a vein:

The plaintiff’s expert witness disclosure indicated that Paget was expected to testify that the defendants deviated from good and accepted medical practice in allowing gadolinium, a toxin, to leak into and remain inside the plaintiff’s arm in high concentration, which caused the plaintiff to develop injuries including a progressive fibrosing disease. … * * *

Although Paget did not rely upon medical literature unequivocally establishing that the administration of gadolinium into tissue has a causal link to the development of a systemic fibrosing disease in the absence of renal insufficiency, the plaintiff established that Paget’s theory “had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch”… . The absence of medical literature directly on point pertains to the weight to be afforded to Paget’s testimony, but does not preclude its admissibility … . Farrell v Lichtenberger, 2021 NY Slip Op 03305, Second Dept 5-26-21

 

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