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WHERE THERE IS CONFLICTING EXPERT OPINION EVIDENCE IN A MEDICAL MALPRACTICE ACTION, SUMMARY JUDGMENT IS NOT APPROPRIATE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant hospital’s motion for summary judgment in this medical malpractice action should not have been granted. Although the hospital made out a prima facie case with expert evidence, the plaintiff produced conflicting expert evidence:

On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff’s injuries  … . In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars … . If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact, but only as to those elements on which the defendant met its prima facie burden of proof … .

Here, [defendant] Brookhaven met its initial burden of demonstrating its entitlement to judgment as a matter of law dismissing the first cause of action by submitting an expert’s affirmation establishing that the diagnostic testing and consultations performed by its personnel were, within a reasonable medical certainty, appropriate and within prevailing standards of practice. In opposition, however, the plaintiff’s expert opined that the delay in performing and reviewing the second CT scan …, constituted a departure from prevailing standards of care. Where, as here, the parties submit conflicting medical expert opinions, summary judgment is not appropriate … . Sheppard v Brookhaven Mem. Hosp. Med. Ctr., 2019 NY Slip Op 03097, Second Dept 4-24-18

 

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WHERE THE INDICTMENT ALLEGES MORE THAN ONE WAY TO COMMIT THE CHARGED OFFENSE, THE PEOPLE NEED ONLY PROVE ONE (SECOND DEPT).

The Second Department noted that the People are not required to prove all of the ways the indictment alleged the crime was committed. The People need only prove one:

” Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others'”… . Therefore, where ” the indictment charge[s] more than the People [are] required to prove under the statute,'” they are not required to prove that the defendant committed each of the charged acts … . Accordingly, the fact that the indictment charged the defendant with committing burglary in the third degree by both unlawfully entering and remaining in the subject premises did not require the People to prove both sets of facts and, since they proceeded only on the theory of unlawful entry, the Supreme Court properly instructed the jury on that theory only. People v Bynum. 2019 NY Slip Op 03067, Second dept 4-24-19

 

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INSUFFICIENT EVIDENCE TO SUPPORT THE ADMINISTRATION OF TWO DRUGS TO SAMUEL D, A MENTALLY ILL PERSON, OVER SAMUEL D’S OBJECTION (SECOND DEPT).

The Second Department determined that the state had demonstrated the administration of two drugs to Samuel D, a mentally ill person, over Samuel D’s objection was proper. But the state’s evidence concerning two other drugs was insufficient:

The State may administer a course of medical treatment against a patient’s will if it establishes, by clear and convincing evidence, that the patient lacks the capacity to make a reasoned decision with respect to proposed treatment … , and that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments” … . …

… [T]he petitioner failed to offer sufficient evidence at the hearing to establish by clear and convincing evidence its entitlement to medicate Samuel D. with Valproic Acid and Benztropine over his objection … . The minimal evidence presented at the hearing regarding these medications was insufficient for the petitioner to establish by clear and convincing evidence that the proposed course of treatment with respect to these medications was narrowly tailored to give substantive effect to Samuel D.’s liberty interest. Matter of Samuel D. (Mid-Hudson Forensic Psychiatric Ctr.), 2019 NY Slip Op 03045, Second Dept 4-24-19

 

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FINANCIAL DISCLOSURE AND A HEARING WERE NECESSARY TO DETERMINE WHETHER THE SEPARATION AGREEMENT WAS INVALID, SUPPORT AND MAINTENANCE AGREED TO BY PLAINTIFF WIFE WAS LESS THAN PLAINTIFF’S APARTMENT RENTAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was necessary to determine whether a separation agreement was invalid (unconscionable). The plaintiff wife did not have an attorney when the agreement was negotiated, but she consulted an attorney who advised her the support and maintenance were not sufficient to meet her needs. The amount of support and maintenance agreed to was less than the monthly rental for plaintiff’s apartment:

Given that the agreement’s support provisions were insufficient to cover the rent for the marital residence and other basic needs of the plaintiff and the children, as well as the lack of financial disclosure regarding the value of the defendant’s business, condominium, and actual income, questions of fact existed as to whether the separation agreement was invalid, sufficient to warrant a hearing … .  Given the lack of any financial disclosure, the Supreme Court should have exercised its equitable powers and directed disclosure regarding the parties’ finances at the time the agreement was executed, to be followed by a hearing to test the validity of the separation agreement … . Mizrahi v Mizrahi, 2019 NY Slip Op 03040, Second Dept 4-24-19

 

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NON-MANDATORY STANDARDS WHICH ARE GENERALLY ACCEPTED CONSTITUTE SOME EVIDENCE OF NEGLIGENCE, EVIDENCE OF SIMILAR ACCIDENTS AT OTHER SUBWAY STATIONS PROPERLY ADMITTED IN THIS SUBWAY-PLATFORM GAP SLIP AND FALL CASE (FIRST DEPT).

The First Department affirmed the plaintiff’s verdict in this subway “gap” slip and fall accident case. Plaintiff’s leg slipped through the gap between the subway car and the platform. The fact that the defendant New York City Transit Authority (NYCTA) was in compliance with its own six-inch-gap rule was not conclusive on liability. Plaintiff’s expert’s testimony that non-mandatory gap standards promulgated by the American Public Transit Association and the Public Transportation Safety Board were generally accepted was admissible. Evidence of similar gap accidents at other stations was also admissible:

… [P]laintiff’s expert’s testimony regarding gap standards promulgated by the American Public Transit Association (APTA) and the Public Transportation Safety Board (PTSB) did not misleadingly establish industry standards that were non-mandatory guidelines. While mere non-mandatory guidelines and recommendations are insufficient to establish a standard of care, an expert’s testimony regarding “generally accepted” standards, which are promulgated by an association such as APTA and the PTSB, and generally accepted in the relevant community at the relevant time, constitutes some evidence of negligence and may establish a standard of care … . Moreover, the expert noted in his testimony that the standards were voluntary and did not suit all transit systems. His testimony merely served to help the jury determine whether NYCTA’s own policy of a six-inch gap was reasonable, in light of the evidence … .

The trial court did not err in admitting evidence of gap accidents at other stations or precluding NYCTA’s witnesses from testifying. Plaintiff demonstrated that the relevant conditions of the subject accident and the previous ones were substantially the same, though they occurred at other stations … , and the probative value of the gap accident statistics outweighed any prejudice to NYCTA … . Daniels v New York City Tr. Auth., 2019 NY Slip Op 03000, First Dept 4-23-19

 

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DEFENDANT AND DEFENSE COUNSEL ENTITLED TO NOTICE AND AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO A WARRANT APPLICATION FOR THE COLLECTION OF DNA EVIDENCE, YOUTUBE VIDEO NOT PROPERLY AUTHENTICATED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defendant was entitled to notice and an opportunity to be heard in opposition to a warrant application for the collection of DNA evidence. Defendant was incarcerated and represented on another matter at the time of the warrant application. The First Department also noted that a Youtube video admitted into evidence was not properly authenticated:

In general, search warrant applications are made ex parte … . However, as explained in Matter of Abe A. (56 NY2d 288 [1982]), special rules apply to evidence to be taken from a suspect’s body, such as blood or DNA samples.

The hearing court excluded defense counsel based on its understanding that the discussion of notice in Abe A. applied only to the first “discrete level” of Fourth Amendment analysis identified in that case, involving “the seizure of the person necessary to bring him into contact with government agents,” and not the second level, involving “the subsequent search and seizure for the evidence” (id. at 295 [internal quotation marks omitted]). …

Nothing in the Court’s opinion suggests a basis for applying the “elementary tenet of due process” described by the [Abe A.] Court only to the first part of an application for an order to physically detain a person and then make a corporeal search. … Accordingly, defendant is entitled to suppression of the DNA evidence obtained as a result of the warrant issued by the hearing court, and a new trial … .

… [A]t trial the People failed to adequately authenticate an incriminating YouTube video under the standards set forth in People v Price (29 NY3d 472 [2017]), which was decided after defendant’s trial. The authentication testimony was essentially limited to testimony that the video shown in court was the same as the one posted on YouTube and another website, and that defendant appears in the video. Accordingly, there was no authentication under any of the methods discussed in Price. People v Goldman, 2019 NY Slip Op 02976, First Dept 4-23-19

 

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VALID EVIDENTIARY ISSUES WERE NOTICED BY APPELLATE COUNSEL BUT WERE NOT ADDRESSED AT TRIAL, THE STATE’S VERDICT IN THIS MALICIOUS PROSECUTION, FALSE ARREST AND UNLAWFUL IMPRISONMENT ACTION AFFIRMED (THIRD DEPT).

The Third Department, noting the validity of questions raised about the evidence that claimant sold the drugs, affirmed the verdict in favor of the state in this malicious prosecution, false arrest and unlawful imprisonment action. The evidentiary issues were noticed and raised by appellate counsel, but were not raised in the Court of Claims:

If taken at face value, this evidence would validate claimant’s testimony that he did not sell drugs to the informant and that defendant should have known as much. Critically important, however, is the fact that this timing discrepancy was never addressed at claimant’s criminal trial or the subject bench trial before the Court of Claims, and appears only to have been discerned by claimant’s counsel in his appellate brief. Defendant points out in its brief that it was unable to verify when the audio recording began because it did not have the original compact disc. The discrepancy between the commencement of the audio recording and the taking of the photographs is a matter of minutes at best. Missing from this record is any testimony expressly validating the timing as to when the audio recording began. Had this discrepancy been called to the attention of the Court of Claims, corresponding testimony could have been entertained … . As such, on this record, we decline to disturb the credibility determination made by the Court of Claims. Jenkins v State of New York, 2019 NY Slip Op 02932, Third Dept 4-18-19

 

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DETECTIVE’S TESTIMONY IN THE GRAND JURY IDENTIFYING THE PERSON DEPICTED IN VIDEOTAPES AS THE DEFENDANT WAS ADMISSIBLE, COURT OFFERED NO OPINION WHETHER THE TESTIMONY WOULD BE ADMISSIBLE AT TRIAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined a police officer’s testimony before the grand jury identifying the defendant in two videotapes was admissible. The court expressed no opinion whether the identification testimony would have usurped a jury’s role at trial:

The court erroneously dismissed an indictment charging defendant with crimes committed in two incidents, both recorded in videotapes presented to the grand jury, on the ground that a police officer who witnessed neither incident, but knew defendant from the area, identified him in each videotape. This testimony was not impermissible and it did not render the grand jury proceedings defective. The detective testified from his personal knowledge. Moreover, unlike trial jurors who can normally observe a defendant in court, grand jurors do not have that means of making a comparison between a videotape and a defendant’s appearance. In so holding, we express no opinion on the admissibility of a similar identification at trial. The “exceptional remedy of dismissal” … was not warranted. People v McKinney, 2019 NY Slip Op 02950, First Dept 4-18-19

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; EVIDENCE OFFERED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED IF THE OPPOSING PARTY HAS THE OPPORTUNITY TO RESPOND (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff did not demonstrate it had complied with the notice requirements of RPAPL 1304. The court noted that evidence submitted in reply was properly considered because the opposing party had an opportunity to respond:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. RPAPL 1304(1) provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in RPAPL 1304, such lender, assignee, or mortgage loan servicer must give notice to the borrower. RPAPL 1304(1) sets forth the requirements for the content of such notice and RPAPL 1304(2) further provides that such notice must be sent “by registered or certified mail and also by first-class mail” to the last known address of the borrower. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … .

Here, even considering the affidavit of Victoria Bressner submitted by the plaintiff for the first time in opposition to the defendant’s cross motion, the plaintiff failed to establish strict compliance with RPAPL 1304. Bressner did not have personal knowledge of the purported mailing and did not make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures to establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Moreover, the record indicates that the notices were not mailed by the plaintiff. LNV Corp. v Sofer, 2019 NY Slip Op 02860, Second Dept 4-17-19

 

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SNOWBOARDER ASSUMED THE RISK OF INJURY CAUSED BY A CREVICE THAT HAD FORMED IN THE AREA WHERE SNOWBOARDERS USED A MOUND OF SNOW TO “CATCH AIR,” THE DEFENDANT DEMONSTRATED THE CREVICE FORMED NATURALLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant ski area was entitled to summary judgment in this snowboarding injury case. A mound of snow was used by snowboarders to “catch air.” Plaintiff was injured when he used the mound to “catch air” and landed in a five and a half foot crevice:

“[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (… see General Obligations Law §§ 18-101, 18-106) . … A skier or snowboarder generally “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the . . . terrain” … . …

The defendant demonstrated, through the deposition testimony of its employees and the affidavit of its expert, that the crevice was likely caused by a combination of changing temperatures, natural wet springs in the area, and water draining from the snow whale. Underground springs and surface run-off are common on mountains and can undermine the integrity of the snowpack, resulting in voids, holes, crevices, and sinkholes. The defendant demonstrated that it did not create the crevice and that the crevice was the natural consequence of variations in surface and subsurface snow conditions (see General Obligations Law § 18-101). We conclude that the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the infant plaintiff assumed the risk of injury that could be caused by the crevice, and that the defendant did not do anything that unreasonably increased the risk … . Festa v Apex Capital, LLC, 2019 NY Slip Op 02853, Second Dept 4-17-19

 

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