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THE INDICTMENT CHARGING PROMOTING PRISON CONTRABAND WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT POSSESSED LESS THAN 25 GRAMS OF MARIJUANA WHICH DOES NOT MEET THE DEFINITION OF ‘DANGEROUS CONTRABAND,” AN ELEMENT OF THE OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the indictment, charging defendant with promoting prison contraband in the first degree was jurisdictionally defective because it alleged possession of less that 25 grams of marijuana:

Defendant asserts that the indictment is jurisdictionally defective based on the Court of Appeals’ decision in People v Finley (10 NY3d 647 [2003]). In that case, the Court held that the possession of a small amount of marihuana, specifically less than 25 grams, did not, absent aggravating circumstances, constitute dangerous contraband within the meaning of Penal Law §§ 205.00 (4) and 205.25 as is necessary to support the charge of promoting prison contraband in the first degree … . Defendant contends that there is no valid basis in the indictment for this charge because he possessed less than 25 grams of marihuana. The People concede that this is a jurisdictional defect warranting reversal of the judgment of conviction. In addition, defendant requests that the indictment be dismissed in its entirety, and the People consent to such relief given that defendant’s guilty plea satisfied both charges contained therein. Accordingly, based upon our review of the record, the case law and the parties’ submissions, we conclude that the judgment of conviction must be reversed, thereby vacating the plea and sentence, and that the indictment must be dismissed in its entirety. People v Lawrence, 2020 NY Slip Op 00004, Third Dept 1-2-20

 

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THERE IS A QUESTION OF FACT WHETHER A DRUG, WHICH CAN DISSOLVE BLOOD CLOTS IN MINUTES, SHOULD HAVE BEEN ADMINISTERED TO PLAINTIFF WHO WAS SUFFERING FROM A PULMONARY EMBOLISM UPON ADMISSION; SUPREME COURT REVERSED; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissent, determined that the defendants’ motion for summary judgment in this medical malpractice case should not have been granted. The opinion is fact-specific and too detailed to fairly summarize here. The majority concluded there was a question of fact whether the administration of a drug, which defendants averred was contraindicated, would have saved decedent’s life. Decedent  was suffering from a pulmonary embolism upon admission. The staff waited hours for blood tests and an angiogram to confirm the diagnosis. A drug which can dissolve blood clots in minutes was not administered. Barry v Lee, 2019 NY Slip Op 09397, First Dept 12-26-19

 

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DEFENDANTS PRESENTED NO EVIDENCE OF SNOW REMOVAL EFFORTS OR LACK OF CONSTRUCTIVE NOTICE IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in the ice-on-sidewalk slip and fall case should not have been granted:

[Defendants] failed to sustain their initial burden of demonstrating that they neither created nor had actual or constructive knowledge of the icy condition of the sidewalk … . Neither presented evidence concerning snow removal immediately prior to plaintiff’s accident and/or their lack of notice of the condition … . Burton v Khedouri Ezair Corp., 2019 NY Slip Op 09379, First Dept 12-26-19

 

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CROSS-EXAMINATION OF A POLICE OFFICER ABOUT A CIVIL LAWSUIT SHOULD HAVE BEEN ALLOWED; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the hearing and trial courts should have allowed cross-examination of a police officer about a lawsuit naming the officer:

Both the hearing and trial courts erred in denying defendant’s request to cross-examine a police officer regarding allegations of misconduct in a civil lawsuit in which it was claimed, among other things, that this particular officer arrested the plaintiff without suspicion of criminality and lodged false charges against him … . The civil complaint contained specific allegations of falsification by this officer that bore on his credibility at both the hearing and trial. At each proceeding, this officer was the only witness for the People. People v Burgess, 2019 NY Slip Op 09364, First Dept 12-26-19

 

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THE JURY WAS WRONGLY INSTRUCTED ON THE INFERENCE WHICH CAN BE DRAWN ABOUT THE LOCATION OF A BOUNDARY LINE FROM A SURVEY MAP FILED FOR MORE THAN 10 YEARS; VERDICT FINDING PLAINTIFF HAD WRONGLY SET THE PROPERTY BOUNDARY REVERSED (THIRD DEPT).

The Third Department, reversing the jury verdict finding that plaintiff had incorrectly set the western boundary of his property, held that the jury was wrongly instructed:

The jury received defective instructions as to the application of CPLR 4522. In that regard, Supreme Court charged the jury that “[a] 2002 survey map prepared by Surveyor Dickinson is in evidence. The survey was filed in 2002 with the Rensselaer County Clerk. The law provides that a map which has been on file with the County [Clerk] for more than [10] years is presumed to be accurate unless rebutted by other credible survey or expert opinion. In deciding whether the presumption of accuracy of the 2002 survey has been rebutted by other evidence you will apply the rules that I have already given you and will continue to give you about the evaluation of evidence.”

CPLR 4522 states that “[a]ll maps, surveys and official records affecting real property, which have been on file in the state in the office of . . . any county clerk . . . for more than [10] years, are prima facie evidence of their contents.” In analyzing similar statutory language from another hearsay exception contained in the same article of the CPLR, the Court of Appeals held that “[p]resumptive evidence[] is, . . . like the prima facie evidence to which CPLR 4518 (c) refers, evidence which permits but does not require the trier of fact to find in accordance with the presumed fact, even though no contradictory evidence has been presented. It is, in short, not a presumption which must be rebutted but rather an inference, like the inference of negligence denominated res ipsa loquitor” … .

Supreme Court’s charge required the jury to locate the western boundary of plaintiff’s property as depicted in the 2002 survey unless plaintiff offered evidence that rebutted the survey’s presumed accuracy. The jury should have been instructed that, in the absence of contradictory evidence, it was permitted but not required to adopt the western boundary as depicted in the 2002 survey. Hence, Supreme Court committed reversible error because the effect of the charge was to improperly require plaintiff to disprove the alleged accuracy of the 2002 survey map … . Kennedy v Nimons, 2019 NY Slip Op 09332, Third Dept 12-26-19

 

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CLAIMANT SHOULD NOT HAVE BEEN REQUIRED TO PROVIDE AN UNLIMITED MEDICAL RELEASE AS OPPOSED TO A LIMITED RELEASE CONCERNING ONLY THOSE AREAS OF HIS BODY AT ISSUE IN THE CLAIM FOR BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was not required to provide an unlimited medical release. Claimant should have been required to provide a release limited to those areas of his body which were at issue in the claim for benefits:

The Board’s regulations provide that a limited release is a “limited authorization to obtain relevant medical records regarding the prior medical history of the body part or illness at issue” (12 NYCRR 300.37 [b] [1] [iii]). It is applicable “if the claimant files a completed employee claim form and indicates on the form that he or she had a prior injury to the same body part or similar illness to the one(s) listed on the form” (12 NYCRR 300.37 [b] [1] [iii]). There is no question that, prior to filing his claim, claimant received medical treatment from various physicians for the same sites of injury dating back to at least 2011. It is evident from the record and the briefs that both parties agree that the employer is entitled to claimant’s past medical records for the claimed sites. That said, claimant maintains that the Board erred in requiring him to sign an open-ended HIPAA release, without limiting that release to treatment records pertaining to the claimed sites. Although the employer would certainly be entitled to the medical records of all providers, once identified, who treated the claimed sites, the fact remains that claimant was only obligated to provide a limited release for those providers. As such, we agree with claimant that the Board erred in directing him to provide an unlimited medical release. Matter of Trusewicz v Delta Envtl., 2019 NY Slip Op 09336, Third Dept 12-26-19

 

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IT WAS AN ABUSE OF DISCRETION TO STRIKE PLAINTIFF’S COMPLAINT BASED UPON AN ALLEGED FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined it was an abuse of discretion to grant defendants’ motion to strike the complaint for plaintiff’s alleged failure to comply with discovery orders. Discovery had been ongoing for years with several conferences with the judge and several orders to comply with new discovery demands:

… [I]t is undisputed that defendants’ motion to strike the complaint failed to include an affirmation of good faith as required by 22 NYCRR 202.7 … . Moreover, this error is compounded by the lack of other record evidence demonstrating that defendants engaged in good faith efforts to resolve the ongoing discovery issues without the need for judicial intervention. Despite plaintiff having at least partially complied with defendants’ discovery demands, the record is devoid of any correspondence or other documentation indicating that defendants ever specifically informed plaintiff’s counsel, other than in a generalized conclusory manner, in what manner the subject discovery responses were deficient or inadequate. Further, following the filing of defendants’ April 2018 motion to strike, defendants’ counsel failed to respond to four separate letters sent by plaintiff’s counsel in May 2018 wherein he provided certain additional discovery and otherwise attempted to ascertain from defendants what, if any, paper discovery remained outstanding. Notably, defendants have provided no explanation as to why they failed to provide any such response prior to the filing of defendants’ second motion to strike plaintiff’s complaint … .

Although we appreciate Supreme Court’s concern regarding the length of time that this action has been pending and the fact that the various discovery responses that plaintiff’s counsel did provide were unquestionably untimely, we do not find that defendants have established a “deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay [by plaintiff] that would be deserving of the most vehement condemnation” … . Mesiti v Weiss. 2019 NY Slip Op 09343. Third Dept 12-26-19

 

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DEFENDANT’S PRESENCE WHERE METHAMPHETAMINE WAS BEING PRODUCED AND APPARENT POSSESSION (IN A BACKPACK) OF CHEMICAL REAGENTS (BATTERIES AND SALT) USED IN METH PRODUCTION, WERE INSUFFICIENT TO DEMONSTRATE CONSTRUCTIVE POSSESSION OF METH LAB EQUIPMENT, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s convictions relating to his presence in an apartment where methamphetamine was being produced, determined the evidence did not support the defendant’s constructive possession of the relevant contraband in the apartment:

… [W]e find that the evidence fell short of establishing that defendant constructively possessed the requisite items with the necessary intent. The uncontroverted evidence established that defendant did not live in or have keys to the apartment or store any of his personal belongings there … . Rather, the evidence demonstrated that the apartment was leased to Stevens and Short, that Schunk had recently been staying in the apartment and that defendant and Gardner had arrived at the apartment, as guests, not long before the police. Stevens, Short and Gardner … adamantly testified that, although he likely knew what was occurring in the apartment, defendant did not participate in the process of preparing, producing or manufacturing the methamphetamine…. . Stevens and Short each testified that defendant did not use methamphetamine that day, that they had never observed defendant use methamphetamine and that defendant was only in the apartment to try to convince Schunk that she needed to enter a rehabilitation program. Stevens also testified that defendant did not know how to make methamphetamine. Further, the responding officers stated that, unlike their observations of Stevens, they did not observe any black soot, which is indicative of methamphetamine production, on defendant’s clothing or hands. …

Stevens testified that defendant arrived with a backpack and that batteries (a reagent [used in meth production]) from that backpack went into the bathroom with him and Gardner. Stevens vaguely testified that the backpack contained “lab equipment,” but stated that he did not see defendant use anything out of the backpack. The evidence revealed that a backpack was ultimately recovered from the living room and that the backpack contained sea salt, a reagent in the production of methamphetamine, but no “lab equipment.”

Viewed in the light most favorable to the People … , the evidence could reasonably support the conclusion that defendant had dominion or control over two reagents — batteries and salt. However, considering the witness testimony and the photographs demonstrating the extremely cluttered state of the living room and apartment overall, the evidence was legally insufficient to establish that defendant “had the ability and intent to exercise dominion or control over” any of the items of lab equipment seized from the apartment … . People v Gillette, 2019 NY Slip Op 09323, Third Dept 12-26-19

 

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ALTHOUGH A REFERRING PHYSICIAN CAN NOT BE VICARIOUSLY LIABLE FOR THE NEGLIGENCE OF THE PHYSICIAN TO WHOM THE PATIENT WAS REFERRED, THE REFERRING PHYSICIAN MAY BE LIABLE FOR HER OWN NEGLIGENCE WITH RESPECT TO CONFERRING WITH THE OTHER PHYSICIAN ABOUT THEIR DIFFERENT FINDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment by one of the two doctors who examined plaintiff (Dr. Andreyko) should not have been granted:

Although a medical provider cannot be held vicariously liable for the malpractice of a physician to whom a patient is referred, the referring medical provider may be held liable for his or her own independent negligent conduct that proximately causes the patient injury … …

Here, Andreyko examined the plaintiff on May 30, 2012, and noted the existence of palpable masses, “tender to palpation,” in the plaintiff’s right breast. Later that day, the plaintiff was examined by Wertkin who, though detecting thickening of the right breast, did not detect any palpable masses. Wertkin reported his findings to Andreyko who, upon reviewing them, reviewed her notes from her examination of the plaintiff but did not contact Wertkin to discuss the differences in their respective examinations. We conclude that the plaintiff raised a triable issue of fact as to whether Andreyko, upon learning that Wertkin was unable to palpate any masses in the plaintiff’s right breast, departed from the accepted standard of care by failing to advise Wertkin that Andreyko had been able to palpate distinct masses in the plaintiff’s breast, and whether Andreyko’s failure to do so was a substantial factor in contributing to the delay in diagnosis that the plaintiff had breast cancer. Notably, Wertkin testified at his deposition that, given the plaintiff’s medical history, had he been able to locate any distinct palpable masses in the plaintiff’s breast, the standard of care would have called for a biopsy of the breast. Yanchynska v Wertkin, 2019 NY Slip Op 09320, Second Dept 12-24-19

 

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THE SEARCH WARRANT WHICH ALLOWED THE SEIZURE OF BUSINESS COMPUTERS, COMPUTER FILES AND BUSINESS DOCUMENTS WITH ONLY A DATE-RESTRICTION AMOUNTED TO A GENERAL WARRANT, THE SEIZED ITEMS SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the search warrant for business computers, computer files and documents amounted to a general warrant, and the items seized should have been suppressed. The warrant was procured by the Office of Attorney General (OAG) and targeted two realty companies which were alleged to have involvement in the illegal construction and demolition of a rent-stabilized building:

The search warrant … permitted the OAG to search and seize broad categories of items relating to 1578 Union Street Realty Corporation, Dream Home Realty, and a number of other businesses allegedly controlled by the defendant through which he had conducted real estate transactions. The items permitted to be searched and seized included: corporate documents; employment records, employee lists, and employment contracts; all calendar books, appointment books, and address books; all computers, computer hard drives, and computer files stored on other media; and all bank, tax and financial records. The warrant did not name or specify any particular crime or offense to which the search was related, and did not incorporate the affidavit by reference. * * *

… [O]ther than a date restriction covering a period of approximately five years, the warrant permitted the OAG to search and seize all computers, hard drives, and computer files stored on other devices, without any guidelines, parameters, or constraints on the type of items to be viewed and seized … . As has been observed by federal courts, where the property to be searched is computer files, “the particularity requirement assumes even greater importance” … since “[t]he potential for privacy violations occasioned by an unbridled exploratory search” of such files is “enormous” … .

Additionally, as to paper documents, the warrant merely identified generic classes of items, effectively permitting the OAG to search and seize virtually all conceivable documents that would be created in the course of operating a business … . People v Melamed, 2019 NY Slip Op 09295, Second Dept 12-24-19

 

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