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EXPERTS MAY NOT RELY ON DISPUTED FACTS IN RENDERING AN OPINION IN A MEDICAL MALPRACTICE CASE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court in this medical malpractice action, noted that experts cannot rely on disputed facts when rendering an opinion:

Although defendants submitted affidavits from medical experts opining that the individual defendants did not deviate from the standard of care and that any alleged deviation was not a proximate cause of the postsurgery medical complications, those experts relied solely on the symptoms as documented in the medical records of [two of the defendants]. … [T]hose symptoms are vastly different from the symptoms allegedly reported to the remaining defendants and demonstrated by plaintiff before the surgery. It is well settled that experts may not rely upon disputed facts when rendering an opinion … . Moreover, we note that defendants’ experts failed to address plaintiff’s contention that, had he been timely diagnosed, he would not have been required to undergo the surgery in the first place. … “By ignoring the [allegation that the remaining defendants’ malpractice caused plaintiff to undergo the very surgery that caused the brain bleed], defendant[s’] expert[s] failed to tender[ ] sufficient evidence to demonstrate the absence of any material issues of fact’ . . . as to proximate causation and, as a result, [the remaining] defendant[s] [were] not entitled to summary judgment” with respect to those parts of their respective motions and cross motions … . Kubera v Bartholomew, 2018 NY Slip Op 08784, Fourth Dept 12-21-18

 

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ISSUE OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY SHOULD HAVE SEEN THE CAR THAT WAS NOT SLOWING DOWN AS IT APPROACHED THE INTERSECTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined Supreme Court should not have granted the Sile defendants’ motion for summary judgment in this intersection traffic accident case. Matthew Sile had the right of way when his truck was broadsided by a car (driven by Buck) which failed to stop an the intersection. The majority held that the papers submitted by the Sile defendants raised an issue of fact whether Matthew Sile should have seen the Buck car which was not slowing down as it approached the intersection:

Although plaintiffs do not dispute that Buck was negligent in violating the Vehicle and Traffic Law or that Matthew had the right-of-way as he proceeded straight through the intersection, it is well settled that ” there may be more than one proximate cause of [a collision]’ “… . Thus, in their motions, the Sile defendants had the initial burden of establishing as a matter of law either that Matthew was not negligent or that any negligence on his part was not a proximate cause of the accident… . We conclude in both appeals that the Sile defendants failed to meet that burden … .

Although “a driver who has the right[-]of[-]way is entitled to anticipate that [the drivers of] other vehicles will obey the traffic laws that require them to yield” … , that driver nevertheless has a “duty to exercise reasonable care in proceeding through [an] intersection” … , and “cannot blindly and wantonly enter an intersection”… . Here, by their own submissions, the Sile defendants raised a triable issue of fact whether Matthew met his “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Gilkerson v Buck, 2018 NY Slip Op 08782, Fourth Dept 12-21-18

 

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SENTENCES FOR MURDER AND CRIMINAL POSSESSION OF A WEAPON MUST RUN CONCURRENTLY (FOURTH DEPT).

The Fourth Department determined consecutive sentences for murder and criminal possession of a weapon were illegal:

… [T]he sentence is illegal insofar as the court directed that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the sentence imposed for murder in the second degree… . As the People correctly concede, “the sentence on the murder conviction should run concurrently with the sentence on the weapon possession conviction that requires unlawful intent … , because the latter offense was not complete until defendant shot the victim[]” … . People v Maull, 2018 NY Slip Op 08780, Fourth Dept 12-21-18

 

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FAMILY COURT, IN THE WIFE’S ABSENCE, SUA SPONTE, RAISED ALLEGATIONS NOT INCLUDED IN THE FAMILY OFFENSE PETITION BEFORE THE COURT, FAMILY COURT THEN ALLOWED THE ALLEGATIONS TO BE ADDED TO THE PETITION, AND THE COURT WENT ON TO FIND THAT THE WIFE HAD COMMITTED THE FAMILY OFFENSES OF HARASSMENT AND MENACING, BECAUSE THE WIFE WAS NOT GIVEN NOTICE OF THE ADDED ALLEGATIONS, REVERSAL WAS REQUIRED (THIRD DEPT).

The Third Department, reversing Family Court, determined the wife was not given notice of the allegations which led to the court’s finding she had committed the family offenses of harassment and menacing .  The wife did not appear in court and her attorney told the court she was not authorized to represent her in the proceeding. Certain allegations were added to the family offense petition in the wife’s absence and without prior notice to her:

The court … , sua sponte, addressed a new subject, inquiring about allegations that had apparently been raised on some other occasion. When the court asked whether the alleged events had occurred, the husband responded, “Yes, ma’am,” without specifically describing those factual allegations. Upon this basis, the court then granted a request by the husband’s counsel to amend the petition to add certain offenses; notably, counsel made no request to amend the petition’s substantive allegations. The court then found the wife had committed the family offenses of harassment in the second degree, assault in the third degree, and menacing in the third degree, and directed the entry of a two-year order of protection.

Nothing in the record indicates that the wife was given any notice that the matters raised by Family Court would be addressed at the hearing. The allegations described by the court were not set forth within the husband’s July 2016 petition. …

“[N]otice is a fundamental component of due process” … . In the absence of notice to the wife, Family Court’s sua sponte consideration of extraneous allegations violated the wife’s due process rights … . Matter of King v King, 2018 NY Slip Op 08724, Third Dept 12-20-18

 

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FAILURE TO HOLD A LINCOLN HEARING WAS NOT AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that Family Court’s custody and parenting time rulings were supported by the evidence. The dissenting justices argued a Lincoln hearing should have been held to learn the preferences of the older child. The majority ruled Family Court did not abuse its discretion in not holding a Lincoln hearing:

We … do not share Family Court’s view that “[c]ourts are rarely only supposed to have Lincoln [h]earings.” To the contrary, conducting such hearings is the “preferred practice” … . That said, whether to conduct a Lincoln hearing rests in the discretion of Family Court … . Family Court noted that the testimony from the fact-finding hearing was “not remarkable nor extremely disturbing” and did not raise “any red flags.” In our view, the record was sufficiently developed for the court to make a custody and visitation determination. Furthermore, although the wishes of the older child, who was nearly 11 years old at the time of the hearing, were “entitled to consideration” … , this is just one factor in the best interests analysis and is not dispositive … . As such, under the [*3]circumstances of this case, we find no abuse of discretion … . Matter of Lorimer v Lorimer, 2018 NY Slip Op 08721, Third Dept 12-20-18

 

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DEFENSE COUNSEL’S FAILURE TO OBTAIN EXPERT OPINION EVIDENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, THE CASE TURNED ON WHETHER DEFENDANT WAS INTOXICATED, THE INTOXILYZER RESULTS WERE INCONSISTENT, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds should have been granted:

This case turned on whether defendant was intoxicated at the time of the vehicular accident at issue, and there was a serious issue about the accuracy of the final Intoxilyzer reading, which conflicted with an earlier reading showing no intoxication. Defense counsel failed to take steps to consult with and produce an appropriate expert on breath and blood alcohol analysis to rebut the People’s proof … .

At the 440.10 hearing, trial counsel conceded that his only reason for not calling an expert was the inability of his client, who was also unable to pay counsel’s fee, to pay for an expert. He also conceded that he took no steps to obtain a court-appointed expert, and was unaware that this remedy might be available. This constituted constitutionally deficient performance … . As for the prejudice prong of an ineffective assistance claim, we find that there is a reasonable probability that calling an expert would have affected the outcome of the trial, and that the absence of expert testimony rendered the proceeding unfair under the facts of the case. People v Carter, 2018 NY Slip Op 08745, First Dept 12-20-18

 

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UNLIKE IN FAMILY COURT ACT ARTICLE 10 AND 6 PROCEEDINGS, CHILDREN’S HEARSAY STATEMENTS ARE NOT ADMISSIBLE IN FAMILY COURT ACT ARTICLE 8 (FAMILY OFFENSE) PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Family Court in this family offense proceeding, in a full-fledged opinion by Justice McCarthy, determined the hearsay statements of the children should not have been admitted in evidence. Family Court had found that father committed harassment by grabbing one of the children. Although children’s hearsay has been deemed admissible in Family Court Act article 10 and 6 proceedings, such hearsay is not admissible in Family Court Act article 8 (family offense) proceedings:

Despite the extension of the exception from Family Ct Act articles 10 and 10-A to article 6, this Court has never directly addressed whether Family Ct Act § 1046 (a) (vi) can be applied in a proceeding pursuant to Family Ct Act article 8 … . The 1st and 2nd Departments have concluded that even though the exception has been applied in custody proceedings under article 6 that are founded on abuse or neglect, because Family Ct Act § 1046 (a) (vi) “is explicitly limited to child protective proceedings under articles 10 and 10-A, [it] has no application to family offense proceedings under article 8” … . This conclusion comports with the language of the statute. …

Having determined that Family Court should not have relied upon the children’s hearsay statements, we must consider whether the remaining evidence at the fact-finding hearing was sufficient to establish that the father committed a family offense. Setting aside the children’s statements to the detectives, to the mother and on the videotape, the evidence directly related to the incident is extremely limited. It includes a photograph showing a barely visible bruise on the middle child’s arm, the detectives’ evaluation of the children’s body language and the father’s testimony that he grabbed the middle child while removing him from a situation where he was misbehaving. The father testified that his intention in taking hold of the child was not to alarm him, but to get him and the situation under control. This testimony contradicts the intent required to prove harassment in the second degree and supports the father’s defense of justification, which permits a parent to use physical force to the extent that he or she deems reasonably necessary to maintain discipline … . Although the court could have disbelieved the father’s testimony and inferred his state of mind from the circumstances … , without the hearsay testimony, there was not a sufficient basis for the court to find that the father committed a family offense. Matter of Kristie GG. v Sean GG., 2018 NY Slip Op 08718, Third Dept 12-20-18

 

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PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF’S LADDER SHIFTED AND HE FELL, HEARSAY IN A REPORT WHICH CONSTITUTED A MISTRANSLATION OF THE PLAINTIFF’S STATEMENT DID NOT RAISE A TRIABLE ISSUE OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action based upon his fall from a ladder which shifted. The hearsay evidence in a report which mistranslated plaintiff’s statement using the word “stairs” rather than “ladder” (the Spanish word means both) did not create an issue of fact. The court noted that the tenant who hired plaintiff’s employer and the property owner were liable:

Defendants … failed to raise a triable issue of fact. Hearsay, standing alone, is insufficient to defeat summary judgment. The mistranslated statement in the C-3 report (“while walking I fell down stairs”) does not qualify as a prior inconsistent statement or as a business record so as to fit within an exception to the hearsay rule … . The declaration against interest hearsay exception to the hearsay rule is likewise inapplicable inasmuch as, among other reasons, the declarant was indisputably unaware that the statement was adverse when made … .

Defendants, as the proponents of the evidence, were obligated to show that plaintiff was the source of the information recorded in the C-3 indicating that he fell from “stairs,” and that “the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand” … . This defendants have failed to do. Nava-Juarez v Mosholu Fieldston Realty, LLC, 2018 NY Slip Op 08744, First Dept 12-20-18

ACCIDENT REPORTS

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IN THIS TRAFFIC ACCIDENT CASE, AN AFFIDAVIT FROM A LICENSED CLINICAL SOCIAL WORKER (LCSW) CONSTITUTED COMPETENT EVIDENCE PLAINTIFF SUFFERS FROM POST-TRAUMATIC STRESS DISORDER (PTSD), PTSD IS A ‘SERIOUS INJURY’ WITHIN THE MEANING OF INSURANCE LAW 5102 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined an affidavit from a licensed clinical social worker (LCSW) was competent evidence that plaintiff in this traffic accident case suffered from post-traumatic stress disorder (PTSD) which is recognized as a “serious injury” within the meaning of Insurance Law 5102 (d):

Under Education Law § 7701 (2), an LCSW can diagnose “mental, emotional, behavioral, addictive and developmental disorders and disabilities” and can administer and interpret tests of psychological functioning, create assessment-based treatment plans and provide “short-term and long-term psychotherapy and psychotherapeutic treatment.” These are functions comparable to those of a psychologist (see Education Law § 7601-a [1], [2]). For licensing purposes, an LCSW must “have at least three years full-time supervised postgraduate clinical social work experience in diagnosis, psychotherapy, and assessment-based treatment plans, or its part-time equivalent, obtained over a continuous period not to exceed six years, under the supervision . . . of a psychiatrist, a licensed psychologist, or [an LCSW] in a facility setting” … . Given the above, we conclude that an LCSW is competent to render an opinion as to whether a person has PTSD for purposes of establishing a serious injury under the Insurance Law. …

Iantorno [the LCSW] averred that she “personally witnessed physical anxiety exhibited by . . . Vergine [plaintiff]. This was visible to me and further validated diagnosis of PTSD.” Such clinical observations qualify as objective medical evidence for purposes of establishing a serious injury … . Iantorno opined that Vergine was significantly limited in her ability to drive and even distressed as a passenger, conditions that impacted her independence and imposed a significant limitation of her psychological function. We find that this submission presents an issue of fact as to whether Vergine sustained causally-related PTSD, constituting a “significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). Vergine v Phillips, 2018 NY Slip Op 08740, Third Dept 12-20-18

 

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DEFENDANT PROPERTY MANAGER AND DEFENDANT OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE KNOWLEDGE OF THE ICE AND SNOW CONDITION WHERE PLAINTIFF FELL IN THIS STRIP MALL PARKING LOT SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this parking lot slip and fall case should not have been granted. The defendant Benderson managed the strip mall where the slip and fall occurred, and defendant Fitzgerald owned the property. The defendants did not demonstrate they did not have construction notice of the snow and ice condition:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . This burden cannot be satisfied merely by pointing out gaps in the plaintiff’s case, as the defendants did here… . The defendants failed to show what the accident site actually looked like within a reasonable time after the cessation of the prior snowstorm and what the accident site actually looked like within a reasonable time prior to the incident. The defendants also failed to submit any meteorological data to show that the alleged ice condition that caused the plaintiff to fall was not the product of a prior storm. Bronstein v Benderson Dev. Co., LLC, 2018 NY Slip Op 08625, Second Dept 12-19-18

 

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