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PIERCING THE CORPORATE VEIL AND AGENCY ALLEGATIONS SUFFICIENTLY PLED VICARIOUS LIABILTY FOR NEGLIGENCE ON THE PART OF THE NURSING HOME DEFENDANTS FOR AN ASSAULT BY A RESIDENT ON PLAINTIFF’S DECEDENT; THE COMPLAINT ALSO SUFFICIENTLY ALLEGED PUBLIC HEALTH LAW VIOLATIONS; PLAINTIFF’S MOTION TO SERVE AN AMENDED COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the complaint adequately stated negligence and Public Health Law causes of action against a nursing home facility stemming from an assault on plaintiff’s decedent by another resident. The Fourth Department found the complaint adequately alleged the criteria for piercing the corporate veil, the criteria for an agency relationship among the defendants, and for a Public Health Law cause of action. The court further found plaintiff’s motion to serve an amended complaint should have been granted:

… Plaintiff alleges that the … defendants were operated in such a way “as if they were one by commingling them on an interchangeable basis or convoluted separate properties, records or control.” Significantly, plaintiff alleged that the corporate formalities were conduits to avoid obligations to the facility’s residents, and thus the allegations are sufficient to state a cause of action for negligence under a theory of piercing the corporate veil or alter ego … . …

… [P]laintiff’s claims in the negligence cause of action that defendants are vicariously liable under theories of agency and joint venture are … sufficiently stated. “The elements of a joint venture are an agreement of the parties manifesting their intent to associate as joint venturers, mutual contributions to the joint undertaking, some degree of joint control over the enterprise, and a mechanism for the sharing of profits and losses” … . “Agency . . . is a fiduciary relationship which results from the manifestation of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act” … . Plaintiff alleges in the first amended complaint that defendants acted as agents for one another and, as relevant here, that they ratified the acts of one another regarding, inter alia, operation of the facility, allocation of resources, and mismanagement of the facility. …

Plaintiff alleged that in addition to residential care, the facility provided “health-related services,” including specialized dementia care, dietary supervision, hygiene and on-site medical and psychological care. Accepting those facts as alleged in the first amended complaint as true, and affording every possible favorable inference to plaintiff, we conclude plaintiff sufficiently alleged facts to overcome defendants’ argument that the facility is an assisted living facility and not subject to those sections of the Public Health Law … . Cunningham v Mary Agnes Manor Mgt., L.L.C., 2020 NY Slip Op 06582, Fourth Dept 11-13-20

 

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PLAINTIFF’S EXPERTS’ AFFIDAVITS WERE CONCLUSORY AND SPECULATIVE WITH RESPECT TO ONE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION; AND ANOTHER DEFENDANT’S EXPERTS WERE QUALIFIED TO OFFER OPINIONS IN AREAS OUTSIDE THEIR PARTICULAR FIELDS OF SPECIALIZATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this medical malpractice action, determined plaintiff’s experts’ affidavits were conclusory and speculative with respect to defendant Neurological Associates and defendant Radiology Associates’ experts were qualified to offer their opinions. The complaint alleged plaintiff’s decedent’s brain tumor was not timely detected and treated:

… [P]laintiff’s experts “failed to provide any factual basis for [their] conclusion[s]” that Neurological Associates deviated from the standard of care in surgically resecting the tumor, documenting the resection, and advising decedent as to post-operative radiation and, therefore, the experts’ affidavits “lacked probative force and [were] insufficient as a matter of law to overcome” the motion with respect to those claims … . … [P]laintiff’s submissions are insufficient to raise a triable issue of fact whether any … deviation was a proximate cause of decedent’s injuries …  and offered only conclusory and speculative assertions that earlier detection of recurrence and additional treatment would have produced a different outcome for decedent … . …

… .Radiology Associates’ experts, who were board certified neurosurgeons, were qualified to offer opinions on the emergency department radiology services provided to decedent … , inasmuch as the experts “possessed the requisite skill, training, knowledge and experience to render . . . reliable opinion[s]” in this case … . It is well settled that “[a] physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony” … . Martingano v Hall, 2020 NY Slip Op 06618, Fourth Dept 11-13-20

 

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THE ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STOP AND FRISK OF DEFENDANT WAS NOT JUSTIFIED; THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction after trial and dismissing the indictment, in a full-fledged opinion by Justice Troutman, over a concurring opinion, determined the robbery conviction was against the weight of the evidence and the showup identification should have been suppressed. The opinion is comprehensive, well worth study, and cannot be fairly summarized here:

… [T]here is considerable objective evidence supporting defendant’s innocence. Defendant was found standing in a driveway half a mile from the crime scene only seven minutes after it occurred, wearing clothing different from the clothing worn by the gunman. He was not in possession of the fruits of the crime or of a firearm. There was no testimony that he was out of breath or that he displayed other signs of having recently run a distance. To the contrary, his boots were not even laced. The possibility that he changed clothes and hid the items in his companion’s residence across the street was questionable in the first instance given the timing of the events, and was severely undercut by the fact that the police obtained permission to search the residence and did so without finding anything linking defendant to the crime. Furthermore, the police investigation established that a person other than defendant possessed the fruits of the robbery, particularly the victim’s cell phone, and that person’s act in fleeing from the police when the phone alarm sounded was indicative of consciousness of guilt … . Other objective evidence, particularly the dog tracking, established that the gunman never turned west off of Genesee Street toward the place where defendant was found, but continued to run down Genesee Street in a southerly direction. * * *​

The testimony of the officer who initiated this street encounter established that he explored only “one of” several side streets in a residential neighborhood and seized the first young black man in a hooded sweatshirt who he found. It must be plainly stated—the law does not allow the police to stop and frisk any young black man within a half-mile radius of an armed robbery based solely upon a general description.

FROM THE CONCURRENCE:

In my view, reversal is required here solely on the ground that Supreme Court erred in refusing to suppress the showup identification testimony because it was not sufficiently attenuated from the police officer’s unlawful stop and detention of defendant … . People v Miller, 2020 NY Slip Op 06667, Fourth Dept 11-13-20

 

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THE OFFICER WHO STOPPED THE CAR IN WHICH DEFENDANT WAS A PASSENGER AFTER HEARING GUN SHOTS DID NOT HAVE THE REASONABLE SUSPICION NEEDED FOR THE SEIZURE OF A VEHICLE; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the indictment, determined the police did not have reasonable suspicion justifying the stop of the car in which defendant was a passenger. The seized evidence should have been suppressed. The officer who stopped the car had heard gunshots, drove in the direction of the shots, passed two intersecting streets, and then saw defendant’s car moving slowly:

Considering the “totality of the circumstances” here … , we conclude that the People failed to establish the legality of the police conduct … . As noted, the People established that the police stopped the vehicle less than two minutes after hearing the shots fired, the incident occurred in the early morning hours, the police did not see any pedestrian or vehicular traffic other than the subject vehicle after the shots were fired, and the vehicle was found in proximity to the location of the shots fired. The police, however, were not given a description of the vehicle involved or even informed whether there was a vehicle involved … , the officer did not give any testimony regarding whether he saw any pedestrian or vehicle traffic before hearing the shots fired … , and the vehicle was not fleeing from the area where shots were fired … . Rather, the subject vehicle was simply a vehicle that was in the general vicinity of the area where shots were heard … . As the officer correctly recognized, the police had a founded suspicion that criminal activity was afoot to justify a common-law right to inquire … , but they did not have the required reasonable suspicion to justify the seizure of the vehicle. People v Fitts, 2020 NY Slip Op 06654, Fourth Dept 11-13-20

 

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DOCUMENTARY EVIDENCE SUBMITTED BY DEFENDANT SUBCONTRACTOR DEMONSTRATED IT DID NOT HAVE THE AUTHORITY TO SUPERVISE OR CONTROL THE WORK THAT CAUSED PLAINTIFF’S INJURY; THEREFORE THE LABOR LAW 240 (1) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED AND THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the documentary evidence submitted by defendant subcontractor in this Labor Law 241(6), 200 and common law negligence action conclusively established defendant did not have the authority to supervise of control the work which caused plaintiff’s injury. Defendant’s motion to dismiss pursuant to CPLR 3211 was properly granted re the Labor Law 240 (1) and 200 causes of action and should have been granted re the common law negligence cause of action:

… [T]he court properly granted defendant’s motion insofar as it sought to dismiss the Labor Law causes of action because defendant submitted documentary evidence “conclusively establish[ing]” … that, “as a subcontractor, it did not have the authority to supervise or control the work that caused the plaintiff’s injury and thus cannot be held liable under Labor Law §§ 200 . . . or 241 (6)” … . … [T]he documentary evidence belies plaintiff’s allegation that he is a third-party beneficiary of the contract between his employer and defendant … . … [G]iven the documentary evidence submitted in support of defendant’s motion, … the court should have also granted the motion insofar as it sought to dismiss the common-law negligence cause of action against defendant … . Eberhardt v G&J Contr., Inc., 2020 NY Slip Op 06627, Fourth Dept 11-13-20

 

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THE FINDING THAT DEFENDANT USED THE CONCRETE SIDEWALK AS A DANGEROUS INSTRUMENT WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; DEFENDANT PUNCHED THE VICTIM WHEN THE VICTIM WAS STANDING, THE VICTIM FELL TO THE SIDEWALK, AND DEFENDANT CONTINUED TO PUNCH THE VICTIM, CAUSING THE VICTIM’S DEATH (FOURTH DEPT).

The Fourth Department, reversing the reckless assault conviction, determined the allegation the defendant used the concrete sidewalk as a dangerous instrument was not supported by legally sufficient evidence:

Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree (Penal Law § 120.05 [1] [intentional assault], [4] [reckless assault]), arising from an altercation during which he punched the victim in the face approximately three times, causing the victim to fall and hit his head on the concrete sidewalk, then continued to punch the victim while he was lying on the ground unconscious. The victim died as a result of his injuries. * * *

Although a sidewalk or concrete surface can be “used” as a dangerous instrument … , the testimony of the eyewitnesses establishes that the blows to the victim, which were delivered using a cross-wise motion, were not executed in such a way as to establish that defendant consciously disregarded a substantial and unjustifiable risk that the victim’s head would have contact with the concrete … . Under the circumstances presented, there is no “valid line of reasoning and permissible inferences from which a rational [person]” could conclude that defendant recklessly used the sidewalk as a dangerous instrument … . People v Desius, 2020 NY Slip Op 06611, Fourth Dept 11-13-20

 

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THE POLICE CAR FOLLOWED DEFENDANT, FIVE FEET BEHIND HIM, AS HE WALKED THROUGH A NARROW PASSAGEWAY; THE POLICE WERE NOT IN PURSUIT AND THE HANDGUN DISCARDED BY THE DEFENDANT WAS PROPERLY SEIZED (FOURTH DEPT).

The Fourth Department determined the police, who followed defendant in a police car as he walked through a narrow passageway (a cut-through) between two streets, were not in pursuit of defendant. Therefore the weapon discarded by the defendant was properly seized:

The evidence at the suppression hearing established that a police officer responding to the sound of gunshots observed a person walking towards him a few blocks away from the location of the incident. The officer lost sight of the person before he was able to speak with him to determine whether the person had heard the gunshots, but he relayed over the police radio a generic physical description of the person he had encountered and that person’s location. Shortly thereafter, a second police officer encountered defendant not far from the radioed position. The second officer engaged defendant in a brief conversation from her patrol vehicle, after which defendant entered a nearby cut-through—i.e., a pedestrian pathway that connected two streets. When defendant first entered the cut-through, the second officer did not consider him a suspect in the shooting and he was not engaged in any unlawful activity. Nonetheless, the second officer, still in her patrol vehicle and now accompanied by another officer in a separate patrol vehicle, followed defendant along the pathway, maintaining a distance of about five feet from defendant. The cut-through was so narrow at one point that the officers would not have been able to open the doors of their patrol vehicles. When defendant reached the end of the cut-through, he removed a handgun from his pocket and ran. As he ran, defendant discarded the handgun and was thereafter arrested. * * *

The police did not activate their vehicles’ overhead lights or sirens, exit their vehicles, or significantly limit defendant’s freedom of movement along the pedestrian path … . Indeed, defendant remained free to keep walking down the path, even if at one point on the path he could not have turned around and traveled in the opposite direction. People v Allen, 2020 NY Slip Op 06594, Fourth Dept 11-13-20

 

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IN THIS LABOR LAW 240(1), 241(6) AND 200 TRIAL, THE DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION BASED UPON THE HOMEOWNER’S EXEMPTION SHOULD NOT HAVE BEEN GRANTED, THE BETTER PRACTICE WOULD HAVE BEEN TO RESERVE ON THE MOTION AND LET THE MATTER GO TO THE JURY; AND PLAINTIFF’S MOTION TO SET ASIDE THE LABOR LAW 200 VERDICT SHOULD HAVE BEEN GRANTED BECAUSE THE VERDICT WAS INCONSISTENT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law pursuant to CPLR 4401 should have been denied and plaintiff’s motion to set aside the verdict pursuant to CPLR 4404 (a) in this Labor Law 240 (1), 241 (6) and 200 scaffold-fall case should have been granted. The defendants’ motion to dismiss the Labor Law 240 (1) and 241 (6) causes of action were granted because the court found defendants exempt pursuant to the homeowner exemption. Plaintiff moved to set aside the verdict because the jury found the defendant homeowner (Nielson) was negligent in striking the scaffold with a Bobcat, but also illogically found the negligence was not the proximate cause of the accident:

Contrary to the Supreme Court’s determination, we conclude that different inferences could be drawn from the evidence on the issue of whether Nielson had authority to or exercised authority to direct or control the work. Affording the plaintiff the benefit of every favorable inference and considering the evidence in the light most favorable to the plaintiff, there was a rational process by which a jury could find that the defendants were not exempt from liability by reason of the homeowner exemption under Labor Law §§ 240(1) and 241(6), and could find that they were liable under Labor Law § 200 … .

We note that, in the interest of judicial economy, the better practice would have been for the Supreme Court to reserve determination on the motion for a directed verdict on the Labor Law causes of action, and allow those causes of action to go to the jury. “There is little to gain and much to lose by granting the motion for judgment as a matter of law after . . . the evidence has been submitted to the jury and before the jury has rendered a verdict. If the appellate court disagrees, there is no verdict to reinstate and the trial must be repeated” … . …

Assuming that Nielson struck the scaffold with the Bobcat, which was the only theory of common-law negligence presented by the plaintiff, then it is logically impossible under the circumstances to find that such negligence was not a substantial factor in causing the accident. Thus, the issues of negligence and proximate cause were so inextricably interwoven as to make it logically impossible to find Nielson negligent without also finding proximate cause. Brewer v Ross, 2020 NY Slip Op 06483, Second Dept 11-12-20

 

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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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