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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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IN A COMPREHENSIVE DECISION ANALYZING THE ELEMENTS OF PROOF IN A SLIP AND FALL CASE, INCLUDING EXPERT OPINION EVIDENCE, THE 1ST DEPARTMENT DETERMINED THE DEFENDANT STORE DEMONSTRATED IT DID NOT HAVE CONSTRUCTIVE OR ACTUAL KNOWLEDGE OF A PUDDLE OF WATER IN FRONT OF AN ICE MACHINE (FIRST DEPT).

The First Department, in an unusually detailed and comprehensive decision, went through all the factors relevant to slip and fall cases, including expert opinion evidence, and determined defendant store was entitled to summary judgment. Plaintiff allegedly slipped and fell on water in front of an ice machine. The defendant demonstrated the area had been inspected an hour and a half before the fall and no one had complained about water on the floor. Therefore defendant did not have constructive or actual notice of the condition:

Defendants … established that the water was not on the floor for a sufficient period of time to charge them with having constructive notice that it was there. The porter averred that she inspected the area at about 8:23 a.m., or about an hour and a half before the accident and did not record any hazards. The deposition testimony of both plaintiff and his wife establish that the water puddle that caused plaintiff’s fall was clear and without any footprints or marks … . …

Defendants sustained their burden of making a prima facie showing that they had no actual notice of the water on the floor before the accident. Defendant store manager Luisi testified that he was unaware of any complaints about the area which were made before the accident.

Plaintiff’s expert affidavits failed to raise a triable issue of fact as to whether defendants were negligent. First, the standards cited are couched in advisory terms and there is no evidence that they are an adopted and implemented industry standard or a generally accepted safety practice … . Although evidence of industry practice and standards is admissible to establish a duty of care, the expert affidavit fails to raise a triable issue of fact because it contains nothing more than conclusory opinions with respect to a deviation from an alleged industrywide practice of placing cones and absorbent rubber mats or carpets in front of ice freezers … . Velocci v Stop & Shop, 2020 NY Slip Op 06372, First Dept 11-5-20

 

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FAMILY COURT SHOULD NOT HAVE RELIED SOLELY ON THE IN CAMERA INTERVIEW WITH THE EIGHT-YEAR-OLD CHILD IN THIS MODIFICATION OF CUSTODY CASE, MATTER REMITTED (FIRST DEPT). ​

The First Department, reversing Family Court and remanding the case, determined the evidence did not support a finding that there had been a change in circumstance sufficient to warrant awarding sole custody to father. The court noted that Family Court should not have relied solely on the in camera interview with the eight-year-old child:

The court based its finding solely on an in camera interview with the child, then eight years old, and the hearsay testimony of the father. The transcript of the in camera interview shows that the child made inconsistent statements about where he spent the majority of his time. However, even if he had made a definitive declaration, the Court of Appeals has admonished that courts should “not use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing,” because “there are grave risks involved in these private interviews. A child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also, its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given the child’s choice. Without a full background on the family and the child, these interviews can lead the most conscientious Judge astray” … .

In fact, this admonition is well taken in this case, where the record provides a substantial basis for concluding that either or both parents spoke to the child about the proceeding before his interview with the court. Matter of Edwin E.R. v Monique A.-O., 2020 NY Slip Op 06347, First Dept 11-5-20

 

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THE IMPOUNDMENT AND SEARCH OF DEFENDANT’S CAR, WHICH WAS LEGALLY PARKED AT THE TIME OF DEFENDANT’S ARREST, WERE ILLEGAL; THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the impoundment of defendant’s car, which was legally parked car at the time of defendant’s arrest, was illegal. The subsequent search of the car was not a valid inventory search. The seized evidence should have been suppressed:

… [T]he Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress the physical evidence recovered from his vehicle. The People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . At the suppression hearing, the arresting officer testified that the defendant’s vehicle was legally parked at the time of the defendant’s arrest, and there was no testimony regarding posted time limits pertaining to the parking space. Further, although the officer testified that he impounded the defendant’s vehicle for “safekeeping,” the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle. Thus, the People failed to establish that the impoundment of the defendant’s vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, while the arresting officer testified that “[t]here is [an] NYPD procedure when someone is arrested and you have to take the car into safekeeping,” the People failed to present evidence of what such a procedure required or whether the arresting officer complied with such a procedure when he impounded the defendant’s vehicle … . People v King, 2020 NY Slip Op 06288, Second Dept 11-4-20

 

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DEFENDANT HOTEL PROPERLY FOUND NEGLIGENT FOR FAILING TO PROVIDE ADEQUATE SECURITY IN THIS THIRD-PARTY ASSAULT CASE; HOWEVER THE HOTEL SHOULD NOT HAVE BEEN APPORTIONED 100% OF THE FAULT (SECOND DEPT).

The Second Department determined the evidence supported plaintiff’s verdict in this third-party assault action, but the defendant hotel should not have been found 100% at fault for failure to provide adequate security. 35% of the fault should have been apportioned to the shooter. Plaintiff was in a car in the hotel parking lot when he was shot by third-party defendant Williams:

… [The plaintiff made out a prima facie case of negligence at trial, and the jury’s finding in this regard was not against the weight of the evidence. The plaintiff established that the defendants employed almost no security measures in the parking lot where the shooting took place, and that in light of the history of criminal activity in the parking lot, the defendants should have been aware of the “likelihood of conduct on the part of third [parties]” that would “endanger the safety” of visitors to the parking lot … .

However, the apportionment of 100% of the fault in the happening of the shooting to the defendants was not supported by a fair interpretation of the evidence … . An apportionment of 65% of the fault to the defendants and 35% of the fault to Williams better reflects a fair interpretation of the evidence … .  Carter v BMC-HOJO, Inc., 2020 NY Slip Op 06237, Second Dept 11-4-20

 

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INFANT PLAINTIFF WAS A PASSENGER ON DEFENDANTS’ ALL TERRAIN VEHICLE (ATV), DRIVEN BY DEFENDANTS’ DECEDENT, WHO WAS INTOXICATED, WHEN THE ATV CRASHED INTO A TREE; THE NEGLIGENT SUPERVISION CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THERE IS NO COMMON LAW “NEGLIGENT PROVISION OF ALCOHOL TO A MINOR” CAUSE OF ACTION IN NEW YORK; SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THE NEGLIGENCE CAUSE OF ACTION BASED ON THE VIOLATION OF THE VEHICLE AND TRAFFIC LAW; CAUSES OF ACTION FIRST ADDRESSED IN PLAINITIFFS’ REPLY PAPERS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there is no common law cause of action in New York for negligent provision of alcohol to a minor; (2) summary judgment should have been granted on the negligence cause of action against the estate of the infant driver and owner of the all terrain vehicle (ATV); and (3) the negligent supervision cause of action properly survived summary judgment. Infant plaintiff was a passenger on the ATV driven by defendants’ decedent, who was intoxicated, when the ATV struck a tree. The court noted that the two causes of action which plaintiffs addressed only in their reply papers were properly dismissed:

… [T]he Supreme Court should have granted the plaintiffs’ cross motion for summary judgment on the issue of the liability of Nicola Trivigno [ATV owner} and Frankie’s [defendants’ decedent’s] estate. A plaintiff is no longer required to show freedom from comparative fault in order to establish his or her prima facie entitlement to judgment as a matter of law on the issue of liability … . A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law …  Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by presenting evidence that Frankie operated the ATV while intoxicated in violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law § 1192). Frankie’s negligence is imputed to Nicola Trivigno, who was the owner of the ATV which was being driven by Frankie with Nicola Trivigno’s permission … . Abtey v Trivigno, 2020 NY Slip Op 06233, Second Dept 11-4-20

 

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HEARSAY EVIDENCE TO WHICH NO OBJECTION WAS MADE CAN BE CONSIDERED BY THE COURT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS HIT AND RUN ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department noted that hearsay evidence to which no objection was raised may be considered by the court. Here the hearsay was a GPS document which purported to show the location of a vehicle owned by defendant AT&T submitted to demonstrate its vehicle was not involved in the hit and run accident:

… Supreme Court denied the motion on the ground that the GPS document was inadmissible inasmuch as it was submitted to the court without the proper foundation and there was no information as to its reliability. AT & T appeals.

“[I]n civil cases, inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess” … . The Supreme Court should not have denied AT & T’s motion on the ground that the GPS document was inadmissible since the plaintiff never raised that issue in opposition to the motion … .

In any event, the other evidence submitted by AT & T established, prima facie, that AT & T’s vehicle was not involved in the subject accident … . In opposition, the plaintiff failed to raise a triable issue of fact as to the identity of the driver or owner of the vehicle which struck him … . Costor v AT&T Servs., Inc., 2020 NY Slip Op 06098, Second Dept 10-28-20

 

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PETITIONER, THE OWNER OF A LEASED CAR DAMAGED IN AN ACCIDENT, SOUGHT A DECLARATION THAT THE RESPONDENT REPAIR SHOP’S GARAGEKEEPER’S LIEN WAS NULL AND VOID ALLEGING IT DID NOT AUTHORIZE THE REPAIR; ALTHOUGH THE NOTICE OF THE SALE TO PAY OFF THE LIEN DID NOT COMPLY WITH THE LIEN LAW, THE PETITION SHOULD NOT HAVE BEEN GRANTED BASED UPON EVIDENCE SUBMITTED IN SURREPLY (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the petition, brought by the owner of a leased vehicle damaged in an accident, seeking a declaration that the respondent repair shop’s garagekeeper’s lien was null and void because it did not authorize the repair, should not have been granted. Although the notice of the sale to pay off the lien did not comply with the Lien Law, evidence submitted by the petitioner in suureply should not have been considered. Therefore the petition should not have been granted on the merits and respondent repair shop should have been allowed to submit an answer:

Accepting that respondent attempted “with due diligence” to personally serve the notice upon petitioners within the county where the lien arose, however, the notice was not sent via “certified mail, return receipt requested, and by first-class mail” as required to accomplish service under Lien Law § 201 … . Those service requirements are meant “to insure that [owners] have an adequate opportunity to reclaim their vehicles” … and, inasmuch as a garagekeeper’s lien is a statutory creation in derogation of common law, the failure to comply with them renders service defective … . Accordingly, in view of respondent’s failure to serve the notice in the manner required by the Lien Law, the time in which to commence this proceeding challenging the lien never began to run … . …

Supreme Court did abuse its discretion, however, in rebuffing respondent’s request to serve an answer and instead granting the petition on the merits. There was nothing to show that respondent was not a registered repair shop during the relevant period, and respondent asked petitioners to review a vehicle lease agreement that it believed conferred actual authority upon [the lessee] to authorize repairs on [petitioner’s] behalf … .  Petitioners instead provided that agreement for the first time in their surreply papers, a belated attempt to introduce new factual information to which respondent could not respond and that should have been rejected … . Matter of Daimler Trust v R&W Auto Body, Inc., 2020 NY Slip Op 06187, Third Dept 10-29-20

 

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CLAIMANT’S FAILURE TO SUBMIT MEDICAL RECORDS TO THE EMPLOYER PRIOR TO THE HEARING REQUIRED PRECLUSION OF THE RECORDS; HOWEVER THE CASE SHOULD NOT HAVE BEEN CLOSED; CLAIMANT MAY REMEDY THE OMISSION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the case should not have been closed because claimant failed to provide a copy of the medical records to the employer before the hearing, but rather the case should have been marked “no further action” which allows claimant to submit the medical records:

Pursuant to 12 NYCRR 300.2 (d) (4) (iv), copies of written reports of medical experts made based on a records review to be used for reference at a hearing must be filed with the Board and submitted to all other parties three days prior to the hearing. It is uncontested that the employer was not provided a copy of the report pursuant to the regulation and, therefore, the report was properly precluded … . …

As to the Board’s decision to disallow the claim and close the case after rescinding the WCLJ’s finding of prima facie medical evidence, it should be noted that if the WCLJ [Workers’ Compensation Law Judge], in the first instance, had found that claimant had not proffered prima facie medical evidence, the WCLJ would have been required to have marked the case as “no further action” … . Claimant then would have been provided an opportunity to “submit additional information on an amended or other medical report, upon which submission the case shall be scheduled for another pre-hearing conference” … . Thus, under these circumstances, where there has been no finding by the WCLJ as to the establishment or disallowance of the claim, the Board’s decision to find no admissible evidence of a causally-related death and close the case based solely upon the rescission of the WCLJ’s finding of prima facie medical evidence was improper. Rather, the matter should now be marked as no further action, thereby providing claimant with an opportunity to proffer additional information to satisfy her burden of submitting prima facie medical evidence … . Matter of Barton v Consolidated Edison Co. of New York, Inc., 2020 NY Slip Op 06190, Third Dept 10-29-20

 

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