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THE EVIDENCE DID NOT SUPPORT THE FINDING CLAIMANT’S INJURY WAS WORK-RELATED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the evidence that claimant suffered a meniscus tear at work was insufficient:

“The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence” … . Although the medical opinion evidence relied upon by the Board to demonstrate the existence of a causal relationship does not need to be expressed with absolute or reasonable medical certainty, “it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility” … . …

Bruce Greene, claimant’s treating orthopedic surgeon, testified that it was difficult to determine when the meniscus tear occurred. He further testified that there is “a strong possibility [that] there was an acute or chronic tear of [the] meniscus” and that it is “very reasonable that something could have happened at work that exacerbated a chronic [condition].” The Board, finding that the medical testimony expressing that it was “highly possible” that the injury was causally related to work, falls short of the reasonable probability that is required to establish a causal relationship between claimant’s employment and his injury. Matter of Johnson v Borg Warner, Inc., 2020 NY Slip Op 04897, Third Dept 9-3-20

 

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TWO PSYCHOLOGICAL DIAGNOSES INTRODUCED IN EVIDENCE IN APPELLANT’S MENTAL HYGIENE LAW CIVIL COMMITMENT TRIAL HAVE NOT BEEN ACCEPTED BY THE PSYCHOLOGICAL COMMUNITY; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial in this Mental Hygiene Law civil commitment proceeding, determined two unreliable diagnoses were admitted in evidence. The matter had been sent back for a Frye hearing and Supreme Court issued a report finding the diagnoses are not accepted in the psychological community:

In June 2013, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant. Two psychologists evaluated the appellant at the State’s request and issued reports and testified that they diagnosed the appellant as suffering from, among other things, paraphilia not otherwise specified (nonconsent) (hereinafter PNOS [nonconsent]) and other specified paraphilic disorder (biastophilia or nonconsent), with sexually sadistic traits in a controlled environment (hereinafter OSPD [biastophilia or nonconsent] with sexually sadistic traits). * * *

… [T]he record supports the Supreme Court’s conclusion that the State failed to establish that the diagnoses of PNOS (nonconsent) and its successor diagnosis, OSPD (nonconsent), are generally accepted in the psychiatric and psychological communities. The evidence at the Frye hearing established that the diagnoses were repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM), and that no consensus on the validity of the diagnoses had been reached subsequent to the publication of the latest edition of the DSM in 2013. There was no clear definition or criteria for the diagnoses. Accordingly, the court erred in admitting evidence of the PNOS (nonconsent) and OSPD (nonconsent) diagnoses at the appellant’s trial. Matter of State of New York v Ronald S., 2020 NY Slip Op 04845, Second Deptp 9-2-20

 

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THE POLICE REPORT WHICH INCLUDED THE LICENSE PLATE NUMBER OF THE CAR ALLEGED TO HAVE FLED THE SCENE OF THE TRAFFIC ACCIDENT WAS INADMISSIBLE HEARSAY; HOWEVER, OTHER EVIDENCE, INCLUDING THE TESTIMONY OF THE DRIVER OF THE CAR WHICH WAS STRUCK, SUFFICIENTLY IDENTIFIED THE LICENSE PLATE NUMBER AND THE CAR (SECOND DEPT).

The Second Department determined the uninsured motorist carrier’s petitions to permanently stay arbitration in this car-accident case were properly granted because the identity of the owner of the car which fled the scene (Zeno) was adequately demonstrated. Although the police report which included the license plate number of the car alleged to have fled the scene was inadmissible hearsay, the eyewitness testimony at the framed issue hearing by the driver (Welder) of the car which was struck was sufficient:

Here, the information in the police report was not derived from the personal observations of the police officer, who did not observe the accident (see CPLR 4518[a] …). Because the source of the information in the police report regarding the license plate number of the Hyundai cannot be identified, the police report was inadmissible … . …

… [T]he Supreme Court’s determination that Zeno’s vehicle was involved in the subject accident is supported by the evidence presented at the hearing, excluding the police report … . Welker testified that he clearly observed the color, make, style, and license plate number of the offending vehicle, recorded the license plate number, and provided that information to the police officer who responded to the accident. Welker also testified that the license plate number that corresponded to Zeno’s vehicle was identical to the license plate number he provided to the police officer. Further, the police officer testified that he routinely takes a statement from the operator of a vehicle at the scene of an accident, and it is common practice for this information to be written in the police accident report. While Zeno stated that there was no pre-existing damage to his vehicle prior to the accident and that no repairs were made to the front of the vehicle, photographs of his vehicle that were admitted at the hearing show that, when compared to the front of the vehicle on the passenger’s side, the front of the vehicle on the driver’s side has different, replacement, or missing parts. Country-Wide Ins. Co. v Lobello, 2020 NY Slip Op 04836, Second Dept 9-2-20

 

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INSTRUCTING THE JURY ON THE BURDEN OF PROOF IN THIS DAMAGES-ONLY PERSONAL INJURY TRIAL SHIFTED THE BURDEN OF PROOF; $5,500,000 VERDICT SET ASIDE AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial in this personal injury action which had resulted in a $5,500,000 verdict, determined the “burden of proof” jury instruction should not have been given in this damages-only trial:

… [T]he defendants contend … that the verdict and judgment must be set aside on the ground that they were deprived of a fair trial by the Supreme Court’s improper jury instruction on the law. Specifically, the defendants contend that the court erroneously charged the jury with respect to the burden of proof.

“A trial court is required to state the law relevant to the particular facts in issue, and a set of instructions that confuses or incompletely conveys the germane legal principles to be applied in a case requires a new trial”… .

Here, we agree with the defendants that under the facts of this case, the Supreme Court’s determination to charge Pattern Jury Instructions 1:60 was improper in the context of a trial limited to the issue of damages only and was prejudicial to the defendants in that it shifted the burden of proof. In light of the court’s error in the charge, substantial justice was not done since the jury was not instructed with the germane legal principles to be applied … . Gorokhova v Consolidated Edison of N.Y., Inc., 2020 NY Slip Op 04828, Second Dept 9-2-20

 

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PLAINTIFF’S TREATING PHYSICIAN SHOULD HAVE BEEN MADE AVAILABLE FOR CROSS-EXAMINATION BY THE DEFENDANT IN THIS INQUEST ON DAMAGES; ALTHOUGH DEFENDANT DEFAULTED ON LIABILITY IN THIS PERSONAL INJURY ACTION, DEFENDANT APPEARED FOR THE INQUEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the injured plaintiff’s (Castaldini’s) treating physician should have been made available for cross-examination by defendant at the inquest on damages. Defendant had defaulted on liability but appeared at the inquest. Supreme Court accepted an affidavit from the doctor to prove damages. The court noted that causation of the damages is not considered in an inquest:

… [W]e disagree with the Supreme Court’s determination to admit into evidence the written sworn statement of Castaldini’s treating physician without making the physician available for cross-examination. At an inquest to ascertain damages upon a defendant’s default, the plaintiff may submit proof by written sworn statements of the witnesses (see CPLR 3215[b]; 22 NYCRR 202.46[b]). However, where, as here, the defaulting defendant gives notice that he or she will appear at the inquest, the plaintiff must make the witnesses available for cross-examination (see CPLR 3215[b] …). Since Walsh did not make the physician available for cross-examination, the court should not have admitted into evidence the physician’s written sworn statement over Walsh’s objection. Further, since the court relied on the physician’s statement in making its findings of fact on damages, we remit the matter to the Supreme Court, Suffolk County, for a new inquest on the issue of damages … . Castaldini v Walsh, 2020 NY Slip Op 04822, First Dept 9-2-20

 

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SUPREME COURT PROPERLY LIMITED THE DEPOSITION QUESTIONING OF A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION AND PROPERLY ORDERED THAT THE DEPOSITION BE SUPERVISED BECAUSE OF MISCONDUCT ON BOTH SIDES DURING A PRIOR DEPOSITION (SECOND DEPT).

The Second Department, over an extensive dissent, determined Supreme Court properly issued a protective order limiting the deposition questioning of a doctor (Brem) in this medical malpractice action and properly ordered that the deposition be supervised. Both sides had engaged in misconduct at the prior deposition:

… [T]he Supreme Court providently exercised its discretion in granting those branches of Winthrop’s [the hospital’s] motion which were for a protective order to the extent of limiting further questioning of Brem solely to his observations and treatment of decubitis ulcers sustained by Slapo [plaintiff’s decedent] and to direct that Brem’s continued deposition be supervised by a special referee. While we agree with the court’s characterization of the improper conduct of Slapo’s attorney at Brem’s deposition, we observe that the defense attorneys violated 22 NYCRR 221.1 by making numerous objections and making speaking objections. We further note that Brem violated 22 NYCRR 221.2 by refusing to answer questions. Given the obstructive conduct by the defense attorneys and Brem in violation of 22 NYCRR part 221, and the improper conduct of Slapo’s attorney during the deposition, we agree with the court that appropriate supervision of the balance of Brem’s deposition is necessary. Because both sides have engaged in arguably sanctionable conduct during the course of Brem’s deposition … , it was inappropriate to compel the plaintiff to solely bear the cost of supervision thereof. Further, without the consent of all the parties, the court may not compel a party to pay for or contribute to the cost of an outside referee (see CPLR 3104[b] …). Accordingly, we modify the order so as to direct that Brem’s continued deposition be supervised by a court-employed special referee … , a judicial hearing officer, or a court attorney referee. Slapo v Winthrop Univ. Hosp., 2020 NY Slip Op 04887, Second Dept 9-2-20

 

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ALTHOUGH HARMLESS, IT WAS ERROR TO ADMIT THE CONTENT OF SOCIAL MEDIA ACCOUNTS WITHOUT AUTHENTICATING THE ACCOUNTS, PHOTOGRAPHS AND STATEMENTS (SECOND DEPT).

The Second Department determined it was (harmless) error to admit in evidence the content of social media accounts which was not authenticated:

We disagree … with the Supreme Court’s determination admitting into evidence certain content from various social media accounts … . The People failed to present sufficient evidence that the subject social media accounts belonged to the defendant, that the photographs on the accounts were accurate and authentic, or that the statements found on one of the accounts were made by the defendant … . People v Upson, 2020 NY Slip Op 04876, Second Dept 9-2-2020

 

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THE SENTENCES FOR ASSAULT AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the evidence did not support consecutive sentences for assault second and criminal possession of a weapon second:

… [T]he sentence imposed on the conviction of assault in the second degree should not run consecutively to the sentence imposed on the conviction of attempted criminal possession of a weapon in the second degree. There were no facts adduced at the defendant’s plea allocution to establish that the defendant attempted to possess ” a loaded firearm before forming the intent to cause a crime with that weapon'” … . People v Goodman, 2020 NY Slip Op 04857, Second Dept 9-2-20

 

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AN INDICATION THE DEFENDANT’S VEHICLE HAD BEEN IMPOUNDED, REVEALED WHEN THE TROOPER RAN THE PLATES, DID NOT SUPPORT THE TRAFFIC STOP; THE WEAPON AND DRUGS FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion and an extensive dissenting opinion, reversing the Appellate Division, determined the state trooper did not have probable cause or reasonable suspicion to support the traffic stop. The weapon and drugs found in a search of defendant’s (Mr. Hinshaw’s) car should have been suppressed. The stop was based entirely on an indication the car had been impounded revealed when the officer ran the plates. The notice explicitly stated it “should not be treated as a stolen vehicle hit:”

The trooper here did not observe any violations of the Vehicle and Traffic Law and “everything looked good.” Putting aside the result of the license plate inquiry, “[t]he trooper candidly testified that he had had no reason to stop defendant” … . …

The result of the license plate check provided neither probable cause to conclude a traffic infraction had occurred nor any basis for an objectively reasonable belief that criminal behavior had occurred or was afoot. Although the People and our dissenting colleague argue that the trooper understood the “generic” impound notification to require further investigation as to its cause, the trooper’s speculation that the car could have been impounded for “registration . . . problems,” the “plates could have been suspended,” “insurance could have been suspended,” or the vehicle could have been stolen was just that — pure speculation … . * * *

Because “there was not even a suggestion that the conduct of the defendant or his companions had been furtive in character before the police interfered with their car’s progress,” and “the record here is bare of any objective evidence of criminal activity as of the time of the stop” … , the stop of Mr. Hinshaw’s vehicle was invalid. People v Hinshaw, 2020 NY Slip Op 04816, CtApp 9-1-20

 

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THE PROPER FOUNDATION FOR BUSINESS RECORDS WAS NOT LAID AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS NOT DEMONSTRATED, THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted:

Harrell [bank vice president]  failed to establish that Wells Fargo was servicing the subject loan at the time of Bhatti’s [defendant’s] alleged default, and that she was personally familiar with the recordkeeping practices and procedures of the plaintiff and/or the loan servicer at that time. Therefore, the plaintiff failed to establish a proper foundation for the admission of the records relied upon to establish Bhatti’s default under the business records exception to the hearsay rule (see CPLR 4518[a] …). …

“By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” … .

Here, the … affidavits were insufficient to establish that the plaintiff mailed the 90-day pre-foreclosure notice required by RPAPL 1304, “as the representative[s] did not provide evidence of a standard office mailing procedure and provided no independent evidence of the actual mailing” … .

Moreover, the Harrell and Green affidavits were also insufficient to establish that a notice of default was in fact mailed to Bhatti by first-class mail, or actually delivered to the designated address if sent by other means, which was required by the terms of the mortgage … . HSBC Bank USA, Natl. Assn. v Bhatti, 2020 NY Slip Op 04734, Second Dept 8-26-20

 

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