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DEFENDANT, A PODIATRIST, USING ALTERNATIVE MEDICINE (OZONE THERAPY), TREATED PLAINTIFF FOR LYME DISEASE; DEFENDANT DID NOT SUBMIT PROOF OF THE APPLICABLE STANDARD OF CARE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should not have been granted because defendant did not submit proof of the appropriate standard of care. The defendant, a podiatrist, treated plaintiff for Lyme disease with “ozone therapy:”

In this medical malpractice action, plaintiff testified that after he saw an advertisement by defendant in a magazine about alternative medicine he sought treatment from defendant for Lyme disease. Defendant is a licensed podiatrist who the record shows told plaintiff that he could treat a host of incurable non-podiatric conditions.  * * *

Defendant has a history of being accused of using his putative study of ozone therapy’s ostensible benefits in treating podiatric conditions as a cover for his treatment of non-podiatric conditions … . In the present case, the record reflects that the putative treatment was not for a podiatric condition, and thus that defendant was practicing medicine outside of the medical confines of podiatry … , which raises an issue of professional misconduct … .

Defendant failed to make the necessary prima facie showing of entitlement to judgment as a matter of law, requiring reversal and denial of his motion for summary judgment regardless of the sufficiency of the opposing papers … . Defendant failed to establish the standard of care with which he should have complied for the treatment of Lyme disease, as to which he submitted no expert evidence … . Thus, on this record, it cannot be determined whether defendant deviated from accepted standards of practice. A trial is required on the issue whether defendant’s treatment proximately caused the physical and neurological manifestations of injury alleged by plaintiff. Georgievski v Robins, 2019 NY Slip Op 08619, First Dept 12-3-19

 

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COPY OF POSTNUPTIAL AGREEMENT SHOULD NOT HAVE BEEN ADMITTED UNDER THE BEST EVIDENCE RULE; JUDGMENT OF DIVORCE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined a copy of the postnuptial agreement should not have been admitted pursuant to the best evidence rule:

The best evidence rule requires the production of an original writing where its contents are in dispute and sought to be proven … . The rule serves mainly to protect against fraud, perjury, and inaccuracies derived from faulty memory … . “[S]econdary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . “Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original” … . The more important the document is to the resolution of the ultimate issue in the case, the stricter the requirement of establishing its loss … .

Here, at trial, the plaintiff merely testified that she did not possess the original postnuptial agreement and that she believed it was either lost or stolen. Given the significance of the postnuptial agreement to the issue of equitable distribution, the defendant’s allegations that his purported signature on the document was forged, and the plaintiff’s failure to adequately explain the unavailability of the original document, we disagree with the Supreme Court’s determination to admit a copy of the document into evidence … , and to incorporate the purported agreement into the judgment of divorce. Mutlu v Mutlu, 2019 NY Slip Op 08567, Second Dept 11-27-19

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 … . Although Menyweather [an assistant secretary employed by Nationstar Mortgage LLC, the plaintiff’s loan servicer] stated in his affidavit that the RPAPL 1304 notices were mailed by regular and certified mail, and attached copies of the notices, the plaintiff failed to attach, as exhibits to the motion, any documents establishing that the notices were actually mailed … . The plaintiff failed to submit a copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute … . Further, although Menyweather attested that he had personal knowledge of the loan servicer’s records, and that those records included the records of the prior servicer, Bank of America, Menyweather did not attest to knowledge of the mailing practices of Bank of America, the entity that allegedly sent the 90-day notices to the defendant … . Since the plaintiff failed to provide evidence of the a ctual mailing, or evidence of a standard office mailing procedure designed to ensure that the items were properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304 … . HSBC Bank USA, N.A. v Sawh, 2019 NY Slip Op 08556, Second Dept 11-27-19

 

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PLAINTIFF BANK DID NOT SUBMIT SUFFICIENT PROOF OF ITS STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not submit sufficient proof of standing to bring the foreclosure action:

… [W]hile the plaintiff alleged that the note had been endorsed to it, the plaintiff failed to submit sufficient evidence to demonstrate that a copy of the note with the endorsement was attached to the complaint. The only copy of the complaint that appears in the record before us was submitted as an exhibit in support of Williams’s [defendant’s] motion, and the version of the note accompanying that copy of the complaint did not include the endorsement. The plaintiff’s attempt to establish standing through the submission of the affidavit of Morgan Battle Ames, a contract management coordinator for the plaintiff’s loan servicer, was also insufficient. Ames stated that she had “personal knowledge of the stated facts and circumstances and books and records maintained by [the loan servicer],” and that the “information in this affidavit is taken from [the loan servicer’s] business records,” which were “recorded by persons with personal knowledge of the information in the business record.” Since Ames failed to attest that she was personally familiar with the record-keeping practices and procedures of the entity that generated the subject business records, she failed to demonstrate … . HSBC Bank USA, N.A. v Williams, 2019 NY Slip Op 08554, Second Dept 11-27-19

 

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DEFICIENCIES IN THE BANK’S PROOF OF DEFAULT, STANDING AND THE AMOUNT OWED COULD NOT BE CURED BY SUBMITTING ADDITIONAL PROOF IN THE REPLY PAPERS IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not submit sufficient proof of defendants’ default, standing or the amount owed, and the deficiencies could not be cured by a second affidavit submitted in reply:

… [T]he plaintiff submitted the affidavit of its assistant vice president, Keith Weinkauf. As to the defendants’ alleged default, Weinkauf stated that the defendants “fail[ed] to make the full payment due on the [m]aturity [d]ate” of the note. On the issue of standing, Weinkauf averred that “[e]ffective March 31, 2016, Montauk Credit Union merged into Bethpage Federal Credit Union.” Further, with respect to the amount owed by the defendants, Weinkauf stated that the current unpaid principal balance due on the note was $58,165.61, plus interest, late charges, and fees. However, apart from producing a copy of the note itself, Weinkauf submitted no evidence in admissible form with his affidavit to establish the existence of a default, the plaintiff’s standing, or the calculation of the unpaid amount owed by the defendants … . Although the plaintiff later submitted, with its reply papers, a second affidavit from Weinkauf, along with supporting documentary evidence, to establish its standing, the plaintiff could not, under the circumstances presented, rely on the second affidavit to correct deficiencies inherent in the original one … . Bethpage Fed. Credit Union v Luzzi, 2019 NY Slip Op 08550, Second Dept, 11-27-19

 

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CONSPIRACY COUNTS FATALLY FLAWED, NO OVERT ACT WAS ALLEGED, CONVICTIONS REVERSED, COUNTS DISMISSED (THIRD DEPT),

The Third Department, reversing defendant’s conspiracy convictions, determined the conspiracy counts were fatally flawed because no overt act was alleged:

“A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 [emphasis added] … ). Here, the two conspiracy counts neither allege that an overt act was committed nor include factual allegations describing such an act. There is no assertion that defendant took any action beyond agreeing “to engage in or cause the performance of a class B felony.” Accordingly, defendant’s convictions of conspiracy in the fourth degree under count 3 … and count 2 … must be reversed and the sentences imposed thereon vacated. Given that these two conspiracy counts were jurisdictionally defective and not subject to amendment (see CPL 200.50 [7] [a]; 200.70 [2] [a], [b] …), said counts are dismissed … . People v Mackie, 2019 NY Slip Op 53940, Third Dept 11-27-19

 

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AFTER AN INITIAL WAIVER OF HIS RIGHT TO REMAIN SILENT, DEFENDANT BECAME INCREASINGLY UNWILLING TO ANSWER QUESTIONS AND FINALLY SAID “MAYBE” HE SHOULD GET A LAWYER BECAUSE HE DIDN’T WANT TO INCRIMINATE HIMSELF, FROM THAT POINT ON THE INTERROGATION VIDEO SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s motion to suppress statements made after the assertion of his right to counsel should have been suppressed:

… [T]he People admitted into evidence a DVD video recording of the first 50 minutes and 55 seconds of defendant’s custodial interrogation. … A review of that video recording shows that defendant was advised of and acknowledged his Miranda rights in writing roughly 16 minutes into the custodial interrogation, after having made small talk with the detective questioning him. For the next 24 minutes, defendant openly and respectfully answered questions regarding the events that transpired earlier that morning, including whether he entered the apartment building, which he maintained that he did not. However, 40 minutes into the interview, defendant became increasingly quiet and less eager to engage in conversation. Indeed, the detective spoke for roughly 3½ minutes, with little to no contribution from defendant, and attempted to appeal to defendant “as a father.” Defendant asked if he would be at the police station all weekend, to which the detective said, ‘no.’ The detective then asked defendant to tell him what had happened, but he was met with silence, prompting him to ask again. In response, defendant stated, “maybe I should get a lawyer. I completely understand what you’re saying and I agree with you, but I don’t want to f**k myself.” In our view, defendant’s marked change in expression and demeanor at this stage of the interrogation, together with his reference to an attorney and his clear statement that he did not want to incriminate himself, constituted an unequivocal request for counsel and an exercise of his right to remain silent … . Thus, the video recording of the interrogation should have been stopped at 48 minutes and 48 seconds, just before defendant unequivocally invoked his right to counsel. Accordingly, County Court should have granted defendant’s motion to suppress all statements made thereafter. People v Harris, 2019 NY Slip Op 53943, Third Dept 11-27-19

 

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THE STAY-AWAY ORDER OF PROTECTION SHOULD NOT HAVE BEEN VACATED BASED SOLELY ON A PSYCHOLOGIST’S REPORTS IN THE ABSENCE OF ANY TESTIMONY (THIRD DEPT).

The Third Department, reversing Family Court, determined that the stay-away order of protection should not have been vacated without further fact-finding. Apparently the order was vacated based upon a psychologist’s reports without any testimony:

On … the first day of a combined fact-finding hearing on both petitions, both of the psychologist’s reports were received into evidence on consent. Without any testimony being taken, respondent, joined by the attorney for the child, then moved to vacate the stay-away order of protection. Both petitioner and the mother objected, and, after taking a brief recess, Family Court issued a ruling from the bench vacating the stay-away order of protection, without explanation. …

The record shows that the stay-away order of protection was based on allegations of sexual abuse first reported by the child’s therapist and subsequently pursued by petitioner after its caseworkers interviewed the child. The petition speaks to specific acts of sexual abuse, as well as the emotional stress on the child resulting from respondent’s threatening behavior towards the mother. The decision to vacate the stay-away order of protection was made on the first day of trial and, although the psychologist’s reports were admitted into evidence, petitioner was not precluded from subpoenaing the psychologist for purposes of cross-examination. Moreover, petitioner represented that it intended to call the child’s therapist as a witness. Although we are mindful that the psychologist spoke to the therapist as a collateral source and was highly critical of the interview methods utilized by petitioner’s caseworkers, this record should have been further developed before a determination was made as to whether it was in the child’s best interests to allow respondent unsupervised, overnight parenting time. This is particularly so given respondent’s ongoing, threatening behavior towards the mother and others via text message and on social media. Matter of Andreija N. (Michael N.), 2019 NY Slip Op 53957, Third Dept 11-27-19

 

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE “INNOCENT POSSESSION OF A WEAPON” DEFENSE, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s possession of a weapon convictions, determined the jury should have been instructed on the “innocent possession of a weapon” defense. Defendant testified the person who had just robbed him dropped the sweatshirt, which had a handgun in the pocket. According to the defendant’s testimony, just as defendant picked up the sweatshirt the police pulled up:

The Criminal Jury Instructions provide, in relevant part, that “[a] person has innocent possession of a weapon when he or she comes into possession of the weapon in an excusable manner and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely. There is no single factor that by itself determines whether there was innocent possession. In making that determination, [the jury] may consider any evidence which establishes that the defendant had knowing possession of a weapon, the manner in which the weapon came into the defendant’s possession, the length of time the weapon remained in his/her possession, whether the defendant had an intent to use the weapon unlawfully or to safely dispose of it, the defendant’s opportunity, if any, to turn the weapon over to the police or other appropriate authority, and whether and how the defendant disposed of the weapon” (CJI2d[NY] Temporary and Lawful Possession).

Here, defendant’s testimony, if credited, provides sufficient facts from which the jury could find a lawful basis for defendant having temporarily and innocently possessed the subject pistol without having had any intent to use it in a dangerous manner or an opportunity to subsequently turn it over to police … . People v Mack, 2019 NY Slip Op 53930, Third Dept 11-27-19

 

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DEFENDANTS’ AFFIDAVITS SUBMITTED IN REPLY TO CLAIMANT’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RAISED A QUESTION OF FACT; DEFENDANTS’ MOTION TO DISMISS THE CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined that the defendants’ motion to dismiss the claim should not have been granted. Claimant alleged she was injured when she collided with a glass exit door at Brooklyn College. The notice of intention to file a claim and the claim indicated photographs of the door were attached. Defendants apparently assumed the door in question was the front door to the building, but discovery indicated it was the back door. Defendants moved for summary judgment arguing that claimant failed to give proper notice of the location of the door as required by Court of Claims Act 11 (b). Defendants submitted affidavits stating that the computer files were searched and no photographs of the door were found. The Second Department held there was a question of fact whether the photographs of the door were attached to the notice of intention and the claim:

Pursuant to Court of Claims Act § 11(b), a notice of intention to file a claim and a claim must set forth, inter alia, the “place where such claim arose”… . “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party'” … . Summary judgment is to be granted only where the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact” … . “[O]n such a motion, the court’s role is limited to issue finding, not issue resolution” … . Here, the affidavits submitted by the defendants in reply created a triable issue of fact as to whether the claimant had included, with the notice of intention, photographs, which would have directed the defendants to the precise set of doors at issue. Accordingly, the Court of Claims should have denied the defendants’ motion. Shabat v State of New York, 2019 NY Slip Op 08589, Second Dept 11-27-19

 

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