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PETITIONER WAS 14 IN 1990 WHEN HE MURDERED A CLASSMATE AND THE CHILD SHE WAS BABYSITTING, THE PAROLE BOARD PROPERLY DENIED PAROLE FOR THE FIFTH TIME, THE RECORD DEMONSTRATES THE BOARD CONSIDERED ALL THE RELEVANT FACTORS AND DID NOT BASE THEIR DECISION SOLELY ON THE SERIOUSNESS OF THE OFFENSE (SECOND DEPT).

The Second Department determined the denial of parole to petitioner, who, in 1990, had killed a 15-year-old classmate, and the 17-month-old child she was babysitting, was not irrational. Although petitioner had made strong rehabilitative and educational efforts, the parole board properly considered all the relevant factors and did not make their decision on the basis of the seriousness of the offense alone:

We note that the literature in the record indicates that the effects of encephalitis could include “[a] lack of awareness and insensitivity” and a “lack of warmth and empathy.” We further note that the Parole Board found that the petitioner appeared to have a “disconnect” and that his remorse was “shallow.” Nevertheless, the interview record and the text of the subject determination establish that the requisite statutory factors were properly considered, and the record does not support the conclusion that the Parole Board’s determination evinces irrationality bordering on impropriety. Contrary to the petitioner’s contention, the Parole Board considered the petitioner’s “youth and its attendant characteristics in relationship to the commission of the crime[s] at issue” … , and did not base its determination solely upon the seriousness of the offenses … . In addition, the interview transcript indicates that the Parole Board took into account a number of other factors that reflected well on the petitioner, but determined that these factors did not outweigh the factors that militated against granting parole. The Parole Board was not required to give each factor equal weight and was entitled to place greater emphasis on the severity of the petitioner’s crimes … . Matter of Campbell v Stanford, 2019 NY Slip Op 04936, Second Dept 6-19-19

 

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MOTHER ATTACKED HER SISTER WITH A KNIFE WHEN MOTHER’S CHILDREN WERE IN THE HOME, FAMILY COURT SHOULD NOT HAVE REVERSED THE NEGLECT FINDING BY THE ADMINISTRATION FOR CHILDREN’S SERVICES, THERE WAS NO NEED TO DEMONSTRATE THE CHILDREN WITNESSED OR WERE AWARE OF THE ATTACK (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence that mother attacked her sister with a knife while mother’s children were in the home supported the finding of neglect. There was no need to demonstrate the children witnessed the attack:

“To establish neglect pursuant to Family Court Act § 1012(f)(i)(B), a petitioner must demonstrate, by a preponderance of the evidence, (1) that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … .

Contrary to the Family Court’s determination, an imminent danger of impairment to the physical, mental, or emotional condition of the subject children should be inferred from the mother’s egregious conduct of attacking the children’s pregnant aunt with a knife while the children were in the home … . Furthermore, impairment or imminent danger of physical impairment should also be inferred from the subject children’s proximity to violence directed against a family member, “even absent evidence that they were aware of or emotionally impacted by the violence” … . Matter of Najaie C. (Niger C.), 2019 NY Slip Op 04935, Second Dept 6-19-19

 

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VIOLATIONS OF ORDINANCES, ADMINISTRATIVE RULES OR REGULATIONS DO NOT CONSTITUTE NEGLIGENCE PER SE, ONLY VIOLATIONS OF STATUTES CONSTITUTE NEGLIGENCE PER SE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that defendant Delco’s motion for summary judgment dismissing the negligence per se cause of action should have been granted. Negligence per se is shown by the violation of a statute, not, as here, by the violation of local ordinances, administrative rules or regulations. Plaintiffs alleged Delco, a painting contractor, caused a fire at plaintiffs’ residence. The Second Department held there was sufficient circumstantial evidence to support the causation element of the negligence cause of action:

Delco failed to eliminate triable issues of fact as to whether it performed electrical work in the area in which the fire started. Although representatives of Delco and Chestnut asserted in their deposition testimony that Delco was not hired to, and did not, perform any electrical work on the subject premises, those averments were contradicted by the deposition testimony of some of the tenant plaintiffs, who asserted that they had observed Delco performing electrical work in the apartment where the fire occurred, and that Delco was the only entity that performed repairs and other work at the premises generally, including electrical work. The foregoing circumstantial evidence set forth sufficient facts upon which Delco’s liability could be reasonably and logically inferred … . …

However, that branch of Delco’s motion which was for summary judgment dismissing the negligence per se causes of action asserted against it by the tenant plaintiffs should have been granted. “[V]iolation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability”… . In contrast, violation of local ordinances or administrative rules and regulations constitutes only evidence of negligence … . Here, the tenant plaintiffs did not allege that Delco violated any particular State statute. Rather, they only alleged violations of local laws … . Rivera v 203 Chestnut Realty Corp., 2019 NY Slip Op 04976, Second Dept 6-19-19

 

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DEFENDANT CONSTRUCTIVELY POSSESSED STOLEN PROPERTY FOUND IN THE BOILER ROOM OF A GARAGE WHERE DEFENDANT AND TWO OTHERS WERE HIDING FROM THE POLICE AFTER A MUGGING; VICTIM WAS PROPERLY ALLOWED TO IDENTIFY THE DEFENDANT IN COURT, DESPITE THE SUPPRESSION OF THE SHOWUP IDENTIFICATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined defendant was properly convicted of constructive possession of property taken during a mugging, even though defendant, although present, did not participate in the mugging and was acquitted of robbery. The First Department further held that the victim was properly allowed to identify the defendant at trial, despite the suppression of the showup identification. The defendant was convicted on the theory that he constructively possessed the stolen property which (apparently) was found in the locked boiler room of a garage where he and the other two men involved were found hiding by the police:

… [T]he People established, by clear and convincing evidence, that the victim had a basis for her in-court identification of defendant independent of a previously suppressed showup procedure. A number of factors support the independent source finding ,,, , even when viewed in the light of modern scientific knowledge regarding identifications. The victim had an unobstructed view of defendant and the other two perpetrators, under good lighting, at close range, and had sufficient time to observe them while she was being attacked. …

Defendant’s presence, his hiding in an oily sump pit inside with the two robbers, and his attempt to physically resist detention compel the conclusion that defendant manifested a consciousness of guilt. Police testimony thus clearly established that defendant had been a participant in the criminal venture and that he exercised dominion and control over the room where the perpetrators were essentially trapped in close proximity to the stolen property, and thereby exercised dominion and control over, and thus joint constructive possession of, the property itself. People v Santiago, 2019 NY Slip Op 04897, First Dept 6-18-19

 

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DEFENDANT IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY SHE WAS NOT TICKETED; DAMAGES FOR PAIN AND SUFFERING SHOULD NOT HAVE BEEN INCREASED UNCONDITIONALLY BY THE TRIAL JUDGE, THE PROPER PROCEDURE IS TO ORDER A NEW TRIAL UNLESS DEFENDANT STIPULATES TO THE INCREASED DAMAGES (FOURTH DEPT).

The Fourth Department noted that defendant, in this traffic accident case, should not have been allowed to testify that she did not receive a traffic ticket. The court also noted that the trial judge properly determined the damages for past pain and suffering should be increased, but that the proper procedure is to order a new trial unless the defendant stipulates to the increased amount. The trial judge had unconditionally increased the damages amount:

It is well established that “[e]vidence of nonprosecution is inadmissible in a civil action” … . In our view, however, that was the only error during trial … . We conclude that, “standing alone” … , the error was harmless, and therefore the court properly denied the motion insofar as it sought to set aside the jury verdict and a new trial on all issues (see CPLR 2002).

Plaintiff further contends that the jury’s damages award for pain and suffering materially deviated from what would be reasonable compensation for plaintiff’s injuries and that the deviation was not cured by the court’s increase of the award for past pain and suffering. We reject that contention. We conclude that the court properly determined that the jury’s verdict for past pain and suffering should be increased to $125,000 and that the award for future pain and suffering did not materially deviate from what would be reasonable compensation for plaintiff’s injuries (see CPLR 5501 [c]). The court, however, erred in unconditionally increasing the past pain and suffering award. ” [T]he proper procedure when a damages award is inadequate is to order a new trial on damages unless [a] defendant stipulates to the increased amount’ ” … . Queen v Kogut, 2019 NY Slip Op 04863, Fourth Dept 6-14-19

 

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GAP IN BATHROOM STALL DOOR AT MCDONALD’S RESTAURANT, IN WHICH INFANT PLAINTIFF’S FINGER WAS PINCHED AND PARTIALLY SEVERED WHEN THE DOOR SLAMMED SHUT, WAS NOT UNREASONABLY DANGEROUS AND WAS OPEN AND OBVIOUS, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the gap in a bathroom stall door at a McDonald’s restaurant, in which infant plaintiff’s finger was pinched and partially severed when her brother slammed the door, was not an unreasonably dangerous condition. In addition, the court found the condition was open and obvious and there was no duty to warn. The dissent noted the testimony that McDonald’s now installs finger guards which raised questions of fact whether defendants were on notice the door presented an unreasonably dangerous condition:

Defendants met their initial burden by establishing that the stall door did not constitute an unreasonably dangerous condition … , and plaintiffs failed to raise a triable issue of fact in response … . The affidavit of plaintiffs’ expert was ” speculative and not sufficiently probative to defeat defendant[s’] motion for summary judgment’ ” … . Contrary to plaintiffs’ further contention, we conclude that the alleged hazard posed by the bathroom stall door was also open and obvious, and therefore defendants had no duty to warn that the door presented a finger-pinching hazard … . Christopher J.G. v Derico of E. Amherst Corp., 2019 NY Slip Op 04857, Fourth Dept 6-14-19

 

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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE VERDICT SHEET DID NOT REFLECT THE TRIAL EVIDENCE ON THE APPLICABLE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to set aside the defense verdict in this medical malpractice case should have been granted. Plaintiff alleged her bowel was perforated during surgery. The defense expert testified the bowel must be fully inspected as it is replaced, section by section. However, defendant surgeon testified he did not fully inspect the bowel. In addition the jury was asked to determine whether the bowel was subjected to a “focused inspection.” However there was no trial evidence equating a “focused inspection” with the standard of care. A new trial was necessary:

The weight of the evidence greatly preponderates in favor of plaintiff due, in no small part, to defendant’s testimony that he not only failed to perform a “focused inspection” of the bowel, but that “[he could not] not observe it” as he returned it into plaintiff’s abdomen. In not “observing” the bowel, defendant plainly could not have conducted a careful visualization of the body part as it was returned to plaintiff’s body; therefore he was plainly not performing a “focused inspection.” Defendant also admitted that “[he] didn’t specifically look for [bruising]” of the bowel, which his own expert testified is required when inspecting the bowel during an aortobifemoral bypass surgery.

Defendant also testified that he only looked at the bowel’s top side. Although his expert did not testify that defendant was personally required to view the other side, she did explain that the other surgeon in the operating room must view that side so that both surgeons, collectively, can view the entire bowel. Defendant did not testify that he ensured that the assisting surgeon carefully viewed the back side of the bowel, segment by segment. Moreover, the assisting surgeon did not testify that defendant instructed her to do so. Inasmuch as defendant’s conduct does not meet the standard articulated by the expert witnesses, we conclude that the evidence so preponderates in plaintiff’s favor that the court erred in denying her motion to set aside the verdict … Monzon v Porter, 2019 NY Slip Op 04855, Fourth Dept 6-14-19

 

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A FAMILY COURT PROCEEDING IS CIVIL IN NATURE AND THE CONFRONTATION CLAUSE APPLIES ONLY IN CRIMINAL MATTERS, THEREFORE DOCUMENTS WRITTEN BY A PSYCHIATRIST WHO DID NOT TESTIFY WERE ADMISSIBLE (FOURTH DEPT).

The Fourth Department determined father’s right to confront witnesses in this termination-of-parental-rights proceeding was not violated by the admission in evidence of two documents written by a psychiatrist who did not testify. A Family Court proceeding is civil in nature and the Confrontation Clause applies only in criminal matters:

Although the father’s contention is framed in terms of a violation of his right to confront the witnesses against him, “Family Court matters are civil in nature and the Confrontation Clause applies only to criminal matters” … . In addition, while every litigant has a right, guaranteed by the Due Process Clauses of both the Federal and State Constitutions, to confront the witnesses against them … , “this right is not absolute” in civil actions … . The Family Court Act permits the admission of hearsay at dispositional hearings if such evidence is “material and relevant” … . Here, because the father did not object to either the relevancy or materiality of the challenged exhibits, we conclude that the exhibits were properly admitted in evidence … . Matter of Ramon F. (Wilson F.), 2019 NY Slip Op 04852, Fourth Dept 6-14-19

 

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PEOPLE FAILED TO PROVE THE VICTIM-AGE AND TIME-PERIOD ELEMENTS OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for predatory sexual assault against a child. Essentially the People did not present evidence to support the assaults occurred before the victim turned 13 or during a period of less than three months (statutory criteria):

Without narrowing the time frame, it is entirely possible that the testified-to instances of anal sexual conduct that allegedly occurred at that residence happened before the statute’s effective date or after the victim turned 13 years old. The People also failed to establish that the criminal conduct occurred over a period of time not less than three months in duration (see Penal Law §§ 130.96, 130.75 [1]). In short, there were no “markers” in the evidence at trial about when the conduct occurred that would allow the jury to conclude that defendant committed predatory sexual assault against a child at the relevant time … . People v Partridge, 2019 NY Slip Op 04848, Fourth Dept 6-14-19

 

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, ISSUE THAT WAS ADDRESSED BY THE DEFENDANT IN ITS REPLY PAPERS AND THE JUDGE IS PRESERVED FOR APPEAL, COMPLIANCE WITH REGULATIONS IS NOT DISPOSITIVE ON THE ISSUE OF NEGLIGENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff tripped over a wheelchair scale in a hallway of defendant’s nursing home. The Fourth Department noted that the issue was preserved for appeal despite the absence from the record of the memorandum which raised the issue. The issue was addressed in defendant’s reply papers and noted in the court’s written decision. The Fourth Department held that the scale was not an open and obvious hazard as a matter of law and the fact that the scale was alleged to have been in compliance with the National Fire Prevention Associations’s Life Safety Code would not be dispositive on the issue of negligence:

… [P]laintiff’s contention that defendant failed to meet its initial burden on its motion for summary judgment is properly before us inasmuch as it involves a “question of law appearing on the face of the record . . . [that] could not have been avoided by the opposing party if brought to that party’s attention in a timely manner” … . …

… [T]he facts here simply do not warrant concluding as a matter of law that the [wheelchair scale] was so obvious that it would necessarily be noticed by any careful observer, so as to make any warning superfluous’ ” and to support a conclusion that it was not a hazard as a matter of law … . …

Defendant also did not meet its initial burden on the motion by submitting the deposition testimony of one of its employees, who opined that the wheelchair scale was in compliance with the National Fire Prevention Association’s Life Safety Code, 2000 Edition (Code). Even assuming, arguendo, that defendant’s employee was qualified to render an opinion concerning defendant’s compliance with the Code … , we conclude that defendant is not entitled to summary judgment because it is well settled that “compliance with regulations or a building code is not dispositive on the issue of negligence” … . Rivera v Rochester Gen. Health Sys., 2019 NY Slip Op 04835, Fourth Dept 6-14-19

 

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