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PLAINTIFFS (CUPID AND ROBINSON) DEMONSTRATED DEFENDANT DRIVER WAS NEGLIGENT AND HIS NEGLIGENCE CAUSED THE TRAFFIC ACCIDENT; DEFENDANTS’ ALLEGATION THAT PLAINTIFF CUPID, NOT PLAINTIFF ROBINSON, WAS DRIVING THE CAR DID NOT CREATE A RELEVANT QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this traffic accident case should have been granted. The evidence demonstrated defendant driver (Paul) went through a red light and failed to see what he should have seen. The defendants’ argument that the plaintiffs claimed that Cupid was driving when in fact the other plaintiff, Robinson, was driving was irrelevant:

The evidence submitted in support of Robinson’s motion demonstrated, prima facie, that Paul entered the subject intersection against a red light, in violation of Vehicle and Traffic Law § 1111(d) … . That evidence further showed that Paul failed to see the plaintiffs’ vehicle before colliding with it in the middle of the intersection, thus demonstrating that Paul failed to see that which he should have seen through the proper use of his senses. Contrary to the defendants’ contention in the Supreme Court, Robinson was not required to demonstrate her freedom from comparative fault in order to establish her prima facie entitlement to summary judgment on the issue of liability … .

Thus, Robinson made a prima facie showing of entitlement to judgment as a matter of law on the issue of the defendants’ liability by demonstrating that Paul was negligent and that his negligence was a proximate cause of the subject accident and her resulting injuries … . In opposition, the defendants failed to raise a triable issue of fact. On the facts presented here, whether Robinson or Cupid was driving their vehicle is not germane to the issue of the defendants’ liability. Robinson v City of New York, 2019 NY Slip Op 08881, Second Dept 12-11-19

 

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PROSECUTOR’S UNTRUE CLAIM, MADE IN SUMMATION, THAT DEFENDANT’S DNA WAS FOUND ON THE WEAPON USED IN THE SHOOTING REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the prosecutor’s untrue claim, made in summation and immediately objected to, that defendant’s DNA was found on the weapon used to shoot the victim, required a new trial:

… [T]he prosecutor’s comments during summation that the defendant’s DNA was found on the weapon used to shoot the victim had no evidentiary support in the record. The remarks, which were promptly objected to by defense counsel, were highly prejudicial and ultimately deprived the defendant of his right to a fair trial … , particularly as the Supreme Court refused to give any curative instruction or grant a mistrial based upon the prosecutor’s improper comments. People v Day, 2019 NY Slip Op 08858, Second Dept 12-11-19

 

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MALPRACTICE ACTION AGAINST A DOCTOR PROPERLY SEVERED FROM A NEGLIGENT HIRING AND RETENTION ACTION AGAINST THE DOCTOR’S EMPLOYER (SECOND DEPT).

The Second Department determined the action against a doctor (Wishner) for medical malpractice was properly severed from an action against the doctor’s employer (HMG) for negligent training, supervision, hiring and retention. Evidence the doctor had negligently treated another patient would not be admissible in the malpractice action but would be admissible in the action against the employer:

“In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue” (CPLR 603). Here, the Supreme Court providently exercised its discretion in granting that branch of Wishner’s motion which was to sever the causes of action asserted against HMG alleging negligent training, supervision, hiring, and retention from the causes of action premised on medical malpractice. In general, “it is improper to prove that a person did an act on a particular occasion by showing that he or she did a similar act on a different, unrelated occasion” … . Thus, generally, evidence of prior unrelated bad acts of negligent treatment of other patients, even if relevant, constitutes impermissible propensity evidence that lacks probative value and “has the potential to induce the jury to decide the case based on evidence of [a] defendant’s character” … . Mullen v Wishner, 2019 NY Slip Op 08850, Second Dept 12-11-19

 

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SEARCH WARRANT FOR DEFENDANT’S CELL PHONE WAS OVERLY BROAD; GUILTY PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined that the search warrant issued for defendant’s cell phone was  overly broad in that it authorized a search going back eight months before the conduct alleged in the warrant:

The search warrant for defendant’s phones was overbroad. The application alleged that, on September 1, 2016, defendant sent texts to a 13 year old making indecent proposals, and called her on the same day. The warrant authorized examination of defendant’s internet usage from January 1 to September 13, 2016, and also authorized, without a time limitation, examination of essentially all the other data on defendant’s phones. This failed to satisfy the particularity requirement of both the Fourth Amendment and Article 1, § 12 of New York’s Constitution … .

The pivotal question here is whether there was probable cause that evidence of the crimes specified in the warrant would be found in the broad areas specified. Notably, the warrant application alleged two discrete crimes and specified conduct that “began” on September 1, 2016, and, as far as the available information indicated, occurred entirely on that date. While it was of course possible that defendant’s phone contained evidence of the specified offenses that predated September 1, there were no specific allegations to that effect. …

The information available to the warrant-issuing court did not support a reasonable belief that evidence of the crimes specified in the warrant would be found in all of the “locations” within defendant’s cell phone to which the warrant authorized access — for example, in defendant’s browsing history six or seven months before September 1, 2016, or in his emails, the examination of which was authorized without any time restriction … . People v Thompson, 2019 NY Slip Op 08772, First Dept 12-5-19

 

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WITHOUT PROOF DEFENDANT USED, ATTEMPTED TO USE, OR THREATENED TO USE THE BOX CUTTER FOUND IN HIS POCKET, THERE WAS NO PROOF THE BOX CUTTER MET THE DEFINITION OF A DANGEROUS INSTRUMENT (FIRST DEPT)

The First Department, reversing defendant’s criminal possession of a weapon conviction, determined the proof that defendant simply possessed a box cutter was not enough:

While feeling around defendant’s waist, the officer felt a metal object in defendant’s shorts. Upon further search, the officer saw the butt end of a box cutter sticking out of the fly of defendant’s underwear. The razor of the box cutter was in its sheath and not exposed. He later tested the box cutter to see if it was sharp, and he was able to cut paper with it. Officer McKeever never saw defendant holding the box cutter and did not see him argue with or threaten anyone. * * *

As the jury was charged, a “dangerous instrument” is “any instrument, article or substance, . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury” … . An object “becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury” … .

Here, there was no proof that defendant used the box cutter, attempted to use it, or threatened to use it as required under the plain terms of the statute in order for it to be a dangerous instrument … . People v Knowles, 2019 NY Slip Op 08770, First Dept 12-5-19

 

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DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE LIQUID ON THE FLOOR WHICH ALLEGEDLY CAUSED PLAINTIFF TO SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Defendant did not demonstrate a lack of constructive notice of the liquid on the floor:

… [T]he evidence submitted by the defendant in support of its motion failed to demonstrate, prima facie, that it lacked constructive notice of the alleged dangerous condition that caused the plaintiff to fall. The deposition testimony of the assistant manager of the supermarket, who did not recall if he was working on the date of the accident, and the affidavit of the defendant’s vice president of loss prevention, merely referred to the defendant’s general cleaning and inspection practices. The defendant did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Furthermore, the defendant failed to demonstrate, prima facie, that the condition on which the plaintiff fell was not visible and apparent, and would not have been discoverable upon a reasonable inspection of the area where the plaintiff was injured … . Fortune v Western Beef, Inc., 2019 NY Slip Op 08656, Second Dept 12-4-19

 

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THE CALIFORNIA JUDGMENT SHOULD HAVE BEEN GIVEN FULL FAITH AND CREDIT; THE COURT SHOULD NOT HAVE CONSIDERED THE UNDERLYING MERITS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a California judgment should have been given full faith and credit and the underlying merits should not have been considered:

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the judgment and the order, which obligated the defendants to pay the plaintiff certain amounts, and evidence that the defendants had not paid the amounts awarded therein (see CPLR 3213 …). In opposition, the defendants failed to raise a triable issue of fact as to a bona fide defense.

The full faith and credit clause of the United States Constitution (US Const, art IV, § 1) requires that the public acts, records, and judicial proceedings of each state be given full faith and credit in every other state. The purpose of the clause is to avoid conflicts between states in adjudicating the same matters … . “The doctrine establishes a rule of evidence . . . which requires recognition of the foreign judgment as proof of the prior-out-of-State litigation and gives it res judicata effect, thus avoiding relitigation of issues in one State which have already been decided in another” … . “Absent a challenge to the jurisdiction of the issuing court, New York is required to give the same preclusive effect to a judgment from another state as it would have in the issuing state” … , and it is precluded from inquiring into the merits of the judgment … .

Here, the defendants did not challenge the jurisdiction of the California court, but instead, sought to relitigate the merits underlying that court’s determination. The Supreme Court should not have considered the defendants’ attack on the merits of the California determination. Balboa Capital Corp. v Plaza Auto Care, Inc., 2019 NY Slip Op 08645, Second Dept 12-4-19

 

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THE REFEREE’S REPORT, WHICH IS MERELY ADVISORY AND IS NOT BINDING ON THE COURT, SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT BECAUSE IT WAS BASED UPON BUSINESS RECORDS THAT WERE NOT PROVIDED TO THE REFEREE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been accepted because it was based upon business records which were not in evidence:

… Supreme Court should have granted that branch of the defendant’s cross motion which was to reject the referee’s report. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “The referee’s findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute” … .

Here, in addition to the outstanding principal amount of the loan, along with accrued interest and charges, the referee included $507,095.35 in “Tax Disbursements” and $27,705.00 in “Hazard Insurance Disbursements” as part of the total amount due to the plaintiff. The defendant correctly objected to the inclusion of these disbursements on the ground that they were calculated based on business records that were never produced by the plaintiff or submitted to the referee (see CPLR 4518[a] …). HSBC Bank USA, N.A. v Cherestal, 2019 NY Slip Op 08660, Second Dept 12-4-19

 

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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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