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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN THE ALLEGED DEVIATION FROM THE STANDARD OF CARE AND PLAINTIFF’S INJURY WITH RESPECT TO ONE OF THE DEFENDANT DOCTORS, THE DOCTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined that the medical malpractice action against defendant Dr. Dietz and his employer should have been granted because plaintiff’s expert did not raise a question of fact about whether the alleged departure from the standard of care had a causal relationship with the plaintiff’s injury. The majority concluded the expert’s affidavit was sufficient to raise a question of fact with respect a second defendant, Dr. Pedersen, but the dissent argued the affidavit with respect to Dr. Pedersen was conclusory and did not demonstrate a causal relationship:

… [P]laintiff’s expert did not opine that Dr. Dietz caused the iliac vein injury and instead opined that Dr. Dietz deviated from the standard of care by insufficiently examining or testing the iliac vein following Dr. Pedersen’s repair. Inasmuch as plaintiff’s expert did not indicate the possible results of any such examination or testing, whether those results should have prompted a different course of treatment, or how Dr. Dietz’s alleged departure from the standard of care otherwise caused plaintiff’s injury, plaintiff failed to raise an issue of fact as to causation regarding Dr. Dietz … . Dickinson v Bassett Healthcare, 2019 NY Slip Op 04610, Fourth Dept 6-7-19

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING THAT FATHER ABANDONED THE CHILD, THE PERMANENT NEGLECT FINDING, HOWEVER, WAS SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court determined the evidence did not support the finding that father abandoned the child, but the evidence did support a finding of permanent neglect. The criteria for permanent neglect, not summarized here, are described in some depth in the decision. The matter was sent back for a dispositional hearing or a waiver of the hearing:

“An order terminating parental rights may be entered upon the ground that a child’s parent abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court’ ” … . A child is deemed abandoned “if the parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency’ ” … . “Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary” … .

Here, the record establishes that the father—following up on a prior attempt to establish paternity that he had initially failed to adequately pursue—definitively established his paternity, while incarcerated, less than two months into the six-month period preceding the filing of the petition … . Thereafter, throughout the relevant period, the father initiated communications with the child’s caseworker; sent the caseworker at least four letters inquiring about the child and included a card and drawing for the child in at least one of those letters; and participated in a service plan review. We conclude that the father’s contacts “were not minimal, sporadic, or insubstantial” … . Matter of Jarrett P. (Jeremy P.), 2019 NY Slip Op 04609. Second Dept 6-7-19

 

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A FOUNDED SUSPICION OF CRIMINALITY WAS NOT A SUFFICIENT GROUND FOR A PAT SEARCH; HOWEVER THE SMELL OF MARIJUANA, ABOUT WHICH THE OFFICER TESTIFIED, WOULD JUSTIFY A SEARCH; BECAUSE THE SUPPRESSION COURT DID NOT RULE ON THE MARIJUANA-SMELL ISSUE, THE MATTER WAS REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department determined that, although the suppression court determined the police officer had a founded suspicion of criminality when he ordered defendant out of the car, a founded suspicion of criminality did not justify ordering the defendant to place his hands on the patrol car in preparation for a pat search. However. the officer testified he smelled marijuana, which would justify and search. Because the court did not rule on that issue, the matter was sent back for a ruling:

Upon approaching the vehicle, the officer observed that there were two occupants, one of whom, i.e., defendant, was moving around in the backseat and putting his hands in his front pocket as if he was “stuffing something either in his coat or in his pants as if to conceal it from [the officer].” … The officer asked the driver and defendant for identification and thereafter learned that the driver’s license of the driver had been revoked and that defendant did not have a driver’s license.

The officer directed defendant to exit the vehicle and place his hands on the patrol car so that the officer could conduct a pat search. Defendant exited the vehicle as directed but thereafter fled, discarding components of a 9 millimeter Glock semiautomatic pistol as he ran. …

Because the driver pulled over of his own volition before the officer activated his emergency lights to initiate a traffic stop, the officer needed only an articulable basis to lawfully approach the occupants of the vehicle and request information … . That basis was supplied by the officer’s observation that the vehicle was being operated in violation of Vehicle and Traffic Law § 375 (2) (a) (1) … . Thus, the officer’s conduct “was justified in its inception” … .

The court determined that the officer had a founded suspicion of criminality prior to ordering defendant to exit the vehicle for the pat search. A founded suspicion of criminality standing alone, however, was insufficient to justify the officer’s conduct in ordering defendant to place his hands on the patrol car in preparation for a pat search … . Nevertheless, in making its determination, the court credited the officer’s testimony that he smelled fresh marihuana emanating from the vehicle and was experienced in detecting marihuana. It is well settled that “[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants”  … . People v Green, 2019 NY Slip Op 04608, Fourth Dept 6-7-19

 

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PLAINTIFF-STUDENT WAS INJURED BY AN OUTWARD-SWINGING BATHROOM DOOR WHICH OPENED INTO THE HALLWAY, THE SCHOOL DISTRICT’S MOTION TO SET ASIDE THE PLAINTIFF’S NEGLIGENCE VERDICT PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined the motion to set aside the negligence verdict against the school district was properly denied. Plaintiff student was injured by a bathroom door which opened outward into the hallway on the side of the hallway the students were instructed to use:

[The] evidence, which we have evaluated in light of the unchallenged jury instructions given by the court … , included testimony from the school’s principal that it would have been safer for students walking in the hallway to have the door open inward and that the likelihood of the door opening into someone’s path was increased because the students were instructed to walk on the right side of the hallway next to the door. In addition, the director of facilities for defendant Williamsville Central School District at the time of the incident testified that it was very possible that the outward-swinging door could strike someone walking down the hallway, that he did not know of any reason why the door opened outward, and that the door could have been modified by his staff in a short time at minimal expense. The jury was also able to consider trial exhibits including oversized photographs and architectural schemata to help it determine whether, in light of all the circumstances … , the bathroom door was, as charged by the court, “reasonably safe.” Thus, even apart from the testimony of the expert, there is legally sufficient evidence from which the jury could conclude, based on common sense and the ordinary experience and knowledge possessed by laypersons … , that the outward-opening door was not reasonably safe. Douglas F. v Williamsville Cent. Sch. Dist., 2019 NY Slip Op 04536, Fourth Dept 6-7-19

 

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WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody in favor of the nonparents does not demonstrate extraordinary circumstances:

“A parent’s right to be heard on a matter of child custody is fundamental and not to be disregarded absent a convincing showing of waiver’ ” … . Moreover, “[i]t is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … and further establishes that an award of custody to the nonparent is in the best interests of the child … . “The burden of proving extraordinary circumstances rests on the nonparent, and the mere existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances”… . Inasmuch as the court erred in depriving the mother of custody without conducting the requisite evidentiary hearing … , we reverse and remit the matter to Family Court for a hearing on the custody petition. Matter of Hilton v Hilton, 2019 NY Slip Op 04572, Fourth Dept 6-7-19

 

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MATTER SENT BACK FOR A DETERMINATION WHETHER THE PEOPLE PRESENTED NEW EVIDENCE TO THE SECOND GRAND JURY AFTER A ‘NO BILL,’ THE PEOPLE WERE GRANTED PERMISSION TO RE-PRESENT ON THE GROUND THAT NEW EVIDENCE WAS AVAILABLE (FOURTH DEPT).

The Fourth Department sent the case back for a ruling on a portion of defendant’s omnibus motions. The grand jury had returned a “no bill” on the leaving the scene of a serious injury accident. The People sought to re-present the charges to a new grand jury alleging that a witness who had given false testimony had agreed to testify truthfully. Defendant, in her omnibus motion, asked to court to compare the testimony given to both grand juries to see if new evidence was actually presented at the second grand jury:

CPL 190.75 (3) provides that where, as here, charges have been dismissed by the grand jury, they “may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the [P]eople to resubmit such charge[s] to the same or another grand jury.” “Leave may be granted only once, and the [People are] required to justify resubmission” … . “[T]here should not be a resubmission unless it appears, for example, that new evidence has been discovered since the former submission; that the [g]rand [j]ury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the [g]rand [j]ury otherwise acted in an irregular manner” … . …

 … “[W]e cannot deem the court’s failure to rule on [that part of] the . . . motion as a denial thereof”… . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a determination whether the People, in fact, presented new evidence to the second grand jury and, if not, whether dismissal of the indictment is warranted on that ground … . People v Ballowe, 2019 NY Slip Op 04566, Fourth Dept 6-7-19

 

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PLAINTIFF DID NOT SUBMIT SUFFICIENT PROOF OF COMPLIANCE WITH THE SERVICE OF PROCESS REQUIREMENTS OF THE LIMITED LIABILITY COMPANY LAW (SERVICE UPON THE SECRETARY OF STATE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs did not demonstrate compliance with the service of process requirements of the Limited Liability Company Law:

“The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process” … . Proof of service, often in the form of an affidavit of service (see CPLR 306 [d]), must include “the papers served, the person who was served and the date, time [and] address [of such service], . . . and set forth facts showing that the service was made by an authorized person and in an authorized manner” … . Additionally, “[b]ecause service of process is necessary to obtain personal jurisdiction over defendants, courts require strict compliance with the statutory methods of service” … . As relevant here, “[s]ervice of process on the secretary of state as agent of a domestic limited liability company . . . shall be made by personally delivering to and leaving with the secretary of state or his or her deputy, or with any person authorized by the secretary of state to receive such service, . . . duplicate copies of such process together with the statutory fee” … . …

Although plaintiffs proffered an unsigned receipt of service purportedly generated by the Office of the Secretary of State, that receipt did not set forth the papers served, whether duplicate copies of those papers were delivered to the Secretary of State, the time of service or facts showing that service was made by an authorized person (see Limited Liability Company Law § 303 [a]; CPLR 306 [a], [d]). Cedar Run Homeowners’ Assn., Inc. v Adirondack Dev. Group, LLC, 2019 NY Slip Op 04528, Third Dept 6-6-19

 

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DEFENDANT’S REQUEST TO REPRESENT HIMSELF WAS PROPERLY DENIED AND THERE WAS SUPPORT IN THE RECORD FOR THE EXISTENCE OF PROBABLE CAUSE TO ARREST (CT APP).

The Court of Appeals, affirming defendant’s conviction, determined the defendant’s request to proceed pro se was properly denied and there was support in the record for the existence of probable cause to arrest. The Court of Appeals did not discuss the facts. The link to the 2nd Department decision is here:

The trial court concluded—based upon, among other things, its own observations of defendant’s conduct throughout these lengthy proceedings and the testimony of defendant’s attending physician—that defendant engaged in malingering insofar as he was competent to proceed but persisted in his efforts to avoid trial. Inasmuch as defendant “engaged in conduct which would prevent the fair and orderly exposition of the issues,” we conclude that the trial court did not abuse its discretion in denying defendant’s request to proceed pro se …. Moreover, the existence of record support for the determination of the courts below that the pursuit of defendant by the police was justified by a “reasonable suspicion” of criminal activity forecloses our further review of that issue … . People v Gregory, 2019 NY Slip Op 04450, CtApp 6-6-19

 

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THE DEFENSE MADE A PRIMA FACIE SHOWING THAT THE MISSING WITNESS JURY INSTRUCTION WAS APPROPRIATE, THE TRIAL COURT IMPROPERLY PLACED THE BURDEN TO DEMONSTRATE THE WITNESS’S TESTIMONY WOULD NOT BE CUMULATIVE ON THE DEFENDANT, THE PEOPLE DID NOT MEET THEIR BURDEN TO DEMONSTRATE THE TESTIMONY WOULD BE CUMULATIVE (CT APP).

The Court of Appeals, reversing defendant’s conviction, reversing the Appellate Division, in a full-fledged opinion by Judge Feinman, determined that the trial court’s analysis of the defense request for a missing witness jury instruction improperly shifted the burden to the defendant to show that the testimony would not be cumulative. The witness, Dees, was with the shooting victim and was shot himself. The witness was the first to see the shooter in a car that passed by and tried to push the shooter away when the shooter approached:

In Gonzalez [68 NY2d 424], we established the analytical framework for deciding a request for a missing witness instruction. The proponent initially must demonstrate only three things via a prompt request for the charge: (1) “that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case,” (2) “that such witness can be expected to testify favorably to the opposing party,” and (3) “that such party has failed to call” the witness to testify … . The party opposing the charge can defeat the initial showing by accounting for the witness’s absence or demonstrating that the charge would not be appropriate … . “This burden can be met by demonstrating,” among other things, that “the testimony would be cumulative to other evidence” … . If the party opposing the charge meets its burden by rebutting the prima facie showing, the proponent retains the ultimate burden to show that the charge would be appropriate … . We have repeatedly reiterated Gonzalez’s specific burden-shifting analysis … , but we have never required the proponent of a missing witness charge to negate cumulativeness to meet the prima facie burden … . * * *

Given that defendant, as the proponent of the missing witness charge, met his initial burden, the People were required to rebut that showing by establishing why the charge was inappropriate. They failed to do so. The People simply asserted, without explanation, that Dees’s testimony on the issue of identification would be cumulative because “there is absolutely no indication that [Dees] would be able to provide anything that wasn’t provided by [the victim].” This conclusory argument was insufficient to satisfy the People’s burden in response to defendant’s prima facie showing … . … Dees’s testimony would not have been “trivial or cumulative”; due to inconsistencies in the victim’s descriptions of the incident and what the shooter was wearing, the issue of identification was “in sharp dispute . . . and the testimony of the only additional person who was present [during the shooting] might have made the difference” … . People v Smith, 2019 NY Slip Op 04447, CtApp 6-6-19

 

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THE DEFENDANTS’ PAPERS, WHICH INCLUDED PLAINTIFF’S AND DEFENDANT SANTIAGO’S DEPOSITION TESTIMONY, DEMONSTRATED THERE WERE QUESTIONS OF FACT ABOUT THE EXISTENCE OF ICE ON THE DRIVEWAY AND SANTIAGO’S NOTICE OF IT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants, the property owners, were not entitled to summary judgment in this slip and fall case. The defendants submitted plaintiff’s deposition testimony that the ice formed sometime between the middle of the day on the 16th and 7 a.m. on the 17th when he fell. The property owner, Santiago, testified he saw no ice on the afternoon of the 16th and saw no ice when he returned to the property at 11 a.m. on the 17th. The defendants’ papers, therefore, demonstrated there were questions of fact:

In support of their motion, the defendants submitted the transcript of the deposition testimony of the plaintiff, who testified that on February 16, 2016, precipitation had fallen, that it stopped sometime after he picked up his children at their school at noon, that when he returned to the subject property, the driveway was not icy, and that the neighbor whom the defendants had retained to plow the driveway had done so after the precipitation stopped but did not apply any salt. The plaintiff also testified that, on February 17, 2016, at approximately 7:00 a.m., he slipped and fell on thick ice that was cloudy and dirty in appearance and which covered the entire driveway. He further testified that the ice started forming on February 16, 2016, either sometime in the middle of the day, or sometime between 9:00 p.m. and 7:00 a.m. the next day.

The defendants also submitted the transcript of the deposition testimony of the defendant Christian Santiago, who testified that the tenants did not have any responsibilities with respect to snow or ice removal from the driveway. He also testified that he visited the subject property to inspect ongoing renovation work in one of the apartments in the morning or early afternoon of February 16, 2016, that it was not snowing or raining at that time, and that he did not observe any ice on the driveway. Santiago further testified that, when he returned to the property the following day, at approximately 11:00 a.m. or noon, he observed a snowbank measuring anywhere from four-to-five feet or six-to-seven feet high at the end of the driveway created by the plow the day before, that he did not see any ice on the driveway, and that he noticed that there was salt on the concrete landing but not on the driveway. …

The defendants failed to submit any meterological data for either February 16 or 17, 2016, or evidence of the condition of the driveway subsequent to it being plowed by the neighbor or within a reasonable time prior to the incident … .

… [T]he evidence submitted by the defendants showed the existence of triable issues of fact and did not suffice to establish a prima facie case for summary judgment … . Ghent v Santiago, 2019 NY Slip Op 04362, Second Dept 6-5-19

 

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