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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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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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