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INFANT PLAINTIFF WAS IN THE ZONE OF DANGER AND WITNESSED A TRUCK STRIKE AND KILL HER BROTHER; SHE ALLEGED SEVERE EMOTIONAL TRAUMA; DEFENDANT’S DISCLOSURE DEMANDS FOR PLAINTIFF’S FACEBOOK, SNAPCHAT AND INSTRAGRAM ACCOUNTS, AS WELL AS THE PHONE NUMBERS AND ADDRESSES, OF INFANT PLAINTIFF’S FRIENDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s disclosure demand for the Facebook, Snapchat and Instagram accounts of infant plaintiff, as well and the last known addresses and phone numbers of infant plaintiff’s friends should have been granted. Infant plaintiff was crossing the street with her brother when he was struck and killed by a truck allegedly owned by defendant. Infant plaintiff claimed psychological injuries based upon her being in the zone of danger and witnessing her brother’s death:

… [T]he defendant demonstrated that records from the infant plaintiff’s Facebook, Snapchat, and Instagram accounts were “reasonably likely to yield relevant evidence” regarding the alleged emotional and mental trauma that the infant plaintiff suffered from as a result of the subject accident, which allegedly was, in part, evidenced by her social isolation and withdrawal … . In addition, the defendant demonstrated that its request for the last known addresses and phone numbers of three of the infant plaintiff’s friends was reasonably calculated to lead to the discovery of information bearing on the infant plaintiff’s claimed mental and emotional trauma. In response, the plaintiffs do not contend that the requested disclosure was unduly burdensome, overbroad, or otherwise improper. The Supreme Court erred in finding that disclosure of the last known addresses and phone numbers of the infant plaintiff’s three friends was improper because they would provide evidence that was cumulative of other evidence previously exchanged during discovery. Therefore, under the circumstances, the court improvidently exercised its discretion in denying that branch of the defendant’s motion which was to compel the plaintiffs to produce the last known addresses and phone numbers of three friends of the infant plaintiff, and authorizations to obtain records from the infant plaintiff’s Facebook, Snapchat, and Instagram accounts. Abedin v Osorio, 2020 NY Slip Op 06478, Second Dept 11-12-20

 

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DEFENDANT TRIPPED OVER A PIECE OF PIPE STICKING OUT OF THE FLOOR AND FELL INTO THE UNGUARDED ELEVATOR MECHANISM; THE DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant’s (19 Realty’s) motion for summary judgment should not have been granted on the ground that the piece of pipe sticking out of the floor, over which plaintiff tripped, was a trivial defect. The pipe stub was near unguarded elevator mechanisms in the elevator room of an apartment building. Plaintiff fell into the mechanism and the injuries to his hand required amputation. The court noted that the size of a defect is not the proper criteria for determining whether a defect is trivial, and further noted the defendant had notice of the defect because it had been there since 2007:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . Moreover, “there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable,” and therefore “granting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable” … . The cases recognize that “a holding of triviality [must] be based on all the specific facts and circumstances of the case, not size alone” … .

Here, 19 Realty failed to meet its prima facie burden of establishing that the pipe stub defect was trivial and nonactionable, given that the surrounding circumstances included the unguarded and exposed hoist and moving cables of the elevator cars, which magnified the risk the pipe stub posed and rendered the raised pipe stub more dangerous than it might otherwise have been. Moreover, both 19 Realty and the court below improperly relied almost exclusively on the size of the pipe stub, which the Court of Appeals has held is not the proper analysis (see Hutchinson, 26 NY3d at 77) … . Arpa v 245 E. 19 Realty LLC, 2020 NY Slip Op 06444, First Dept 11-12-20

 

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THE EMERGENCY DOCTRINE PROTECTED THE TRANSIT AUTHORITY FROM LIABILITY IN THIS BUS-PASSENGER INJURY CASE; THE DRIVER TESTIFIED HE BRAKED SLIGHTLY WHEN A CAR WAS IN FRONT OF THE BUS MAKING A RIGHT TURN (FIRST DEPT). ​

The First Department, affirming Supreme Court. but on different grounds, determined the New York City Transit Authority’s (NYCTA’s) motion for summary judgment in this bus-passenger injury case. Plaintiff alleged he fell when the bus stopped in an unusual and violent manner. The First Department applied the emergency doctrine to affirm summary judgment in favor of the NYCTA. The bus driver testified he slightly touched the brake when a car was in front of the bus making a right turn:

The emergency doctrine recognizes that when an actor is faced with a sudden, unexpected circumstance leaving little or no time for deliberation, “the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . Under the doctrine, a person faced with an emergency “cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision” … . Further, “[w]hile it is often a jury question whether a person’s reaction to an emergency was reasonable, summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate issue of fact on the issue” … . …

… [P]laintiff failed to submit any evidence tending to show that Williams [the bus driver] created the emergency or could have avoided plaintiff’s fall by other means than slightly stepping on the brake … . Castillo v New York City Tr. Auth., 2020 NY Slip Op 06447, First Dept 11-12-20

 

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DNA FOUND ON THE MURDER VICTIM’S BODY WAS LINKED TO THE DEFENDANT WHO WAS ARRESTED TWO YEARS AFTER THE MURDER; THERE WAS NO OTHER EVIDENCE CONNECTING DEFENDANT TO THE VICTIM OR TO THE AREA WHERE THE VICTIM WAS FOUND; THE SECOND DEPARTMENT, OVER AN EXTENSIVE DISSENT, FOUND THE EVIDENCE LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, over an extensive dissent, determined the evidence was legally insufficient. Defendant was arrested two years after the victim’s death based upon DNA found on the victim. No evidence placing defendant near the scene of the crime was presented:

On the morning of October 3, 2013, the 23-year-old victim, who had a history of drug use, was found dead in a wooded area known as Froehlich Farms, in Suffolk County. The victim’s injuries, as well as the condition in which her body was found, indicated that she had been sexually assaulted and killed by strangulation within 12 hours to a day before her body was found. More than two years after her death, the defendant was charged with murder in the second degree after his DNA profile was matched to a single source partial profile generated from various swab samples taken as part of a sexual assault kit performed on the victim.

At the trial, the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred. Nor did the People offer any evidence showing that the sexual contact between the defendant and the victim occurred at or near the time of the murder. At most, the DNA evidence established, beyond a reasonable doubt, that the defendant had sexual contact with the victim at some unspecified time and place. People v Romualdo, 2020 NY Slip Op 06559, Second Dept 11-12-20

 

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DEFENDANT GROCERY STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; DEFENDANT POINTED TO GAPS IN PLAINTIFF’S PROOF INSTEAD OF AFFIRMATIVELY SHOWING IT DID NOT CREATE THE CONDITION (WATER ON THE FLOOR IN FRONT OF A VEGETABLE DISPLAY WITH MELTING ICE) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant grocery store’s motion for summary judgment in this slip and fall case should not have been granted. Defendant did not affirmatively demonstrate the water on the floor did not come from melted ice in adjacent vegetable display. A defendant can not win summary judgment by pointing to gaps in the plaintiff’s proof in opposition which will not even be considered until the moving party makes out a prima facie case:

A defendant moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it neither created the hazardous condition that allegedly caused the fall, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case … .

Here, the defendants failed to establish, prima facie, that they did not create the allegedly dangerous condition that caused the plaintiff’s accident … . The defendants’ submissions in support of their motion failed to affirmatively demonstrate that the wet condition on the floor was not created by water and melted ice leaking from an asparagus display, which was adjacent to the location of the plaintiff’s fall. Lauzon v Stop & Shop Supermarket, 2020 NY Slip Op 06513, Second Dept 11-12-20

 

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THE MAJORITY FOUND PLAINTIFF’S EXPERT’S AFFIDAVIT, ALLEGING PLAINTIFF’S DECEDENT WAS GIVEN TOO MUCH MORPHINE, WAS SPECULATIVE AND CONCLUSORY; TWO DISSENTERS DISAGREED; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming Supreme Court, over a two-justice partial dissent, determined the defendants’ motion for summary judgment in this medical malpractice action was properly granted. The dissenters argued there was a question of fact about whether plaintiff’s decedent was given too much morphine, but the majority found plaintiff’s expert’s affidavit speculative and conclusory on that issue:

… [T]he plaintiff relied upon the opinion of her expert that the decedent was negligently administered an overdose of morphine that caused or contributed to his death. The Supreme Court properly concluded that the expert’s unsupported and speculative opinion that an overdose caused or contributed to the decedent’s death was insufficient to raise a triable issue of fact, and we respectfully disagree with our dissenting colleagues’ contrary conclusion.

More specifically, neither the medical records nor the autopsy report indicated that the decedent suffered a morphine overdose. Further, neither the autopsy report nor the death certificate listed morphine as a cause of or contributing factor in the decedent’s death. It is unclear that the plaintiff’s expert even reviewed the death certificate and autopsy report, but, in any event, he did not address them or their conclusions that the decedent’s death was caused by septic shock brought about by other conditions. The plaintiff’s expert also failed to address the conclusion of the hospital’s expert that the decedent’s drop in blood pressure was related to his intra-abdominal process rather than the administration of medication. Indeed, although the plaintiff’s expert noted that morphine “can decease blood pressure and cause difficulty breathing,” he did not affirmatively state that the morphine actually caused these effects in the decedent, who was on a ventilator. Given the decedent’s multiple infirmities and severely compromised condition upon his admission to the hospital, and the failure of the plaintiff’s expert to address the conclusions reached in the death certificate, autopsy report, and affirmations of the defendants’ experts, the opinion of the plaintiff’s expert that a morphine overdose caused or contributed to the decedent’s death was speculative and conclusory … . Jacob v Franklin Hosp. Med. Ctr., 2020 NY Slip Op 06506, Second Dept 11-12-20

 

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STATEMENTS THAT PLAINTIFF’S DECEDENT SIGNED AN “AGAINST MEDICAL ADVICE” FORM BEFORE REFUSING TREATMENT WHICH WERE INCLUDED IN MEDICAL RECORDS AND IN THE DEPOSITIONS OF THE DOCTORS IN THIS MEDICAL MALPRACTICE ACTION WERE NOT ADMISSIBLE AS BUSINESS RECORDS, AS ADMISSIONS, AS DECLARATIONS AGAINST INTEREST, OR PURSUANT TO THE DEAD MAN’S STATUTE; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendants’ verdict and ordering a new trial in this medical malpractice case, determined the statements in the medical records and in depositions that plaintiff’s decedent signed an “against medical advice” (AMA) form and refused admission to the hospital constituted inadmissible hearsay and were not admissible pursuant to the Dead Man’s Statute (CPLR 4519):

The defendants argue that the entries in the … Hospital records were admissible under the business records exception to the hearsay rule. Generally, “[a] hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient” (… see CPLR 4518[a]). However, “where the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … . This is because “‘each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception'” … . Here, although the entries were germane to the decedent’s diagnosis and treatment, because the record does not reflect that the source of the information in the entries was known, it cannot be established whether the source had a duty to make the statement or whether some other hearsay exception applied … . …

… [W]e disagree with the Supreme Court’s determination that the deposition testimony of {the doctors] was admissible. Pursuant to CPLR 4519, otherwise known as the Dead Man’s Statute, “[u]pon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his [or her] own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a mentally ill person . . . concerning a personal transaction or communication between the witness and the deceased person or mentally ill person, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his [or her] own behalf, of the testimony of the mentally ill person or deceased person is given in evidence, concerning the same transaction or communication.” Here, both [doctors] were defendants at the time they gave deposition testimony, making them interested parties under the statute …. Moreover, they both testified to transactions or communications with the decedent and sought to offer that testimony against the decedent’s estate. Grechko v Maimonides Med. Ctr., 2020 NY Slip Op 06504, Second Dept 11-12-20

 

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WHERE A LADDER SHIFTS OR SLIDES FOR NO APPARENT REASON A VIOLATION OF LABOR LAW 240 (1) IS ESTABLISHED; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT IN THIS LADDER-FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s verdict in this Labor Law 240 (1) action should not have been set aside. Plaintiff used a ladder which kicked out from under him. The Second Department included a clear explanation of when a fall from a ladder is actionable under Labor Law 240 (1). If for example plaintiff merely loses his or her balance and falls off a stable ladder, the incident is not actionable. However, if the ladder shifts or slides for no apparent reason, the incident is actionable:

To establish a violation under Labor Law § 240(1), “[t]here must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries” … . Where, for instance, the plaintiff falls from a ladder because the plaintiff lost his or her balance, and there is no evidence that the ladder was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach … . By contrast, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the plaintiff has established a violation … . …

…[W]we disagree with the Supreme Court’s determination to set aside the jury verdict and direct judgment as a matter of law on the ground that the plaintiff was the sole proximate cause of the accident. At the trial, the parties presented conflicting evidence as to whether adequate safety devices—namely, the CTS [the employer’s] ladders and/or the scissor lift—were available, whether the plaintiff knew that he was expected to use those devices, and, if so, whether he had a good reason for choosing instead to use the non-CTS ladder … . … [C]onstruing the trial evidence in the light most favorable to the plaintiffs, there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that the plaintiff was neither a recalcitrant worker nor the sole proximate cause of his injuries … . Cioffi v Target Corp., 2020 NY Slip Op 06487, Second Dept 11-12-20

 

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THE DEFENDANT SURGEON’S TESTIMONY DID NOT MEET THE CRITERIA FOR HABIT EVIDENCE; THEREFORE THE DEFENSE EXPERT, WHO RELIED ON THE INSUFFICIENT HABIT EVIDENCE, DID NOT MAKE OUT A PRIMA FACIE CASE; EVEN IF SUFFICIENT, HABIT EVIDENCE ONLY RAISES AN INFERENCE FOR THE JURY TO CONSIDER, IT DOES NOT ESTABLISH WHAT PROCEDURE WAS FOLLOWED AS A MATTER OF LAW; NEW EVIDENCE RAISED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court, in full-fledged opinion by Justice Gische, determined: (1) the defendant surgeon’s (Dr. Fielding’s) testimony did not meet the criteria for habit or custom evidence; (2) habit evidence, even when sufficient, gives the jury the basis for an inference, but does not demonstrate what was done as a matter of law; and (3) a new theory raised in the reply papers should not have been considered. Dr. Fielding had no independent recollection of the operation on plaintiff. Defendant’s motion for summary judgment should not have been granted:

In order to lay a foundation for [the] admission [of habit evidence], Dr. Fielding needed to establish that the practice of palpitating the bowel for perforations was routinely done by him in his open bariatric surgeries, and that it did not vary from patient to patient. He did not do so. He failed to offer testimony or provide any other proof regarding the number of times he had followed such a procedure during the hundreds of bariatric surgeries he had performed … . Nor did Dr. Fielding describe the LAP-Band procedure as being routine, without variation from patient to patient. Since Dr. Fielding did not lay a proper evidentiary foundation for his testimony based on custom and practice, and the expert’s opinion was made in reliance on that testimony, defendants did not satisfy their burden of proving a prima facie case entitling them to summary judgment … . …

… [E]ven if an appropriate foundation was laid for the habit testimony that defendants’ expert relied on, the motion for summary judgment still should have been denied. Where habit evidence is admitted, it only establishes that the claimed behavior or conduct was persistent and repeated in similar circumstances … . Evidence of habit only provides a basis for the jury to draw an inference, but it cannot be the basis for judgment as a matter of law … . Guido v Fielding, 2020 NY Slip Op 06391, First Dept 11-10-20

 

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THE ALLEGATION THAT DEFENDANT SURGEONS PERFORMED A CHIROPRACTIC PROCEDURE DURING SPINAL FUSION SURGERY SOUNDED IN BATTERY, NOT MEDICAL MALPRACTICE, AND WAS TIME-BARRED; PLAINTIFF’S EXPERT, A CHIROPRACTOR, WAS NOT QUALIFIED TO OFFER AN OPINION ABOUT DEFENDANTS’ SURGERY (THIRD DEPT).

The Third Department determined plaintiff’s allegation the defendant doctors derotated her pelvis (a chiropractic procedure) during spine fusion surgery sounded in battery, not medical malpractice, because the claim alleged intentional, not negligent, conduct. Therefore the one-year statute of limitations applied and the action was time-barred. Plaintiff’s expert, a chiropractor, was not qualified to offer an opinion about the surgery performed by the defendants:

… [A]ny claim that defendants derotated plaintiff’s pelvis as a separate procedure from the surgery to which she consented is necessarily an allegation that they acted intentionally. Despite the fact that plaintiff’s complaint alleges only negligence, “when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, there can be no question but that the deviation from the consent given was intentional” … . As such, this claim is subject to the one-year statute of limitations for the intentional tort of battery — that is, “intentional physical contact with another person without that person’s consent” — rather than the 2½-year period applicable to medical malpractice claims … . Young v Sethi, 2020 NY Slip Op 06330, Third Dept 11-5-20

 

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