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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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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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