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PLAINTIFF BICYCLIST STRUCK FROM BEHIND, NO EVIDENCE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the plaintiff bicyclist was entitled to summary judgment in this traffic accident case. Plaintiff was in the bicycle lane when he was struck from behind by defendant’s (Reyes’) car. There was no evidence plaintiff was comparatively negligent:

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide… . Where the movant has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … .

Here, the evidence submitted on the plaintiff’s motion, which included the deposition transcripts of the plaintiff and Reyes, demonstrated, prima facie, that Reyes was negligent as a matter of law because he violated Vehicle and Traffic Law § 1163(a)… . The deposition testimony showed that Reyes struck the rear of the plaintiff’s bicycle while making a right turn from Wythe Avenue onto North 6th Street. The plaintiff was in the bicycle lane and ahead of the defendants’ vehicle when the accident occurred. This evidence demonstrated that Reyes failed to yield the right-of-way to the plaintiff, that the turn could not be made with reasonable safety, and that Reyes failed to see that which he should have seen. The evidence submitted in support of the motion also demonstrated that Reyes’s negligence was the sole proximate cause of the subject accident, without any comparative negligence on the plaintiff’s part. In opposition, the defendants failed to raise a triable issue of fact. Harth v Reyes, 2017 NY Slip Op 05204, 2nd Dept 6-28-17

 

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MOTION TO SET ASIDE THE VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, PHOTOGRAPHS TAKEN TWO WEEKS AFTER THE ACCIDENT SHOULD NOT HAVE BEEN EXCLUDED, CONTRACT SPECIFICATIONS FOR WORK ON THE AREA OF THE FALL SHOULD NOT HAVE BEEN EXCLUDED, SUBPOENAS FOR WITNESSES WHO HAD NOT BEEN DEPOSED SHOULD NOT HAVE BEEN QUASHED.

The First Department determined the defendants’ motion to set aside the verdict in this slip and fall case should not have been granted. The First Department further held that photographs of the sinkhole where plaintiff fell (taken two weeks after the injury) and the contract specifications for repair of the sinkhole should not have been excluded from evidence. In addition plaintiff’s subpoenas for a city inspector and a principal of the contractor (Halcyon) which repaired the sinkhole should not have been quashed. The fact that those witnesses were not deposed did not preclude plaintiff’s calling them at trial:

… [T]he trial court erred in precluding pictures of the accident site … . Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident … . Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.

Nor should the court have precluded the City’s specifications incorporated into its contract with Halcyon. The specifications were expressly incorporated into the contract between Halcyon and the City; thus, they applied not only to the City itself, but also to third parties. Therefore, they were admissible as potential evidence of defendants’ negligence… , and indeed, the City failed to show how the specifications transcended the duty of reasonable care. The trial court’s exclusion of this evidence regarding the specifications hobbled plaintiff’s ability to prove that the City had engaged in affirmative negligence — the very basis upon which the trial court granted the directed verdict.

Likewise, the court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon … . Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so … . Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial. Gonzalez v City of New York, 2017 NY Slip Op 05180, 1st Dept 6-27-17

 

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PHOTOGRAPH TAKEN FROM A WEBSITE NOT SUFFICIENTLY CONNECTED TO THE DEFENDANT, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Stein, with a concurring opinion by Judge Rivera, reversing the Appellate Division, determined that a photograph taken from a website, allegedly depicting the defendant with a handgun similar to the handgun used in the robbery, was not adequately authenticated. The conviction was reversed. The evidence tying the defendant to the website was not strong enough. There was no showing defendant controlled the website, or that others did not have access to the website:

… [T]he evidence presented here of defendant’s connection to the website or the particular profile was exceedingly sparse … . For example, notably absent was any evidence regarding whether defendant was known to use an account on the website in question, whether he had ever communicated with anyone through the account, or whether the account could be traced to electronic devices owned by him. Nor did the People proffer any evidence indicating whether the account was password protected or accessible by others, whether non-account holders could post pictures to the account, or whether the website permitted defendant to remove pictures from his account if he objected to what was depicted therein. Without suggesting that all of the foregoing information would be required or sufficient in each case, or that different information might not be relevant in others, we are convinced that the authentication requirement cannot be satisfied solely by proof that defendant’s surname and picture appears on the profile page. Thus, even if we were to accept that the photograph could be authenticated through proof that the website on which it was found was attributable to defendant, the People’s proffered authentication evidence failed to actually demonstrate that defendant was aware of — let alone exercised dominion or control over — the profile page in question … . …

In sum, the People failed to demonstrate that the photograph was a fair and accurate representation of that which it purported to depict. Nor — assuming adoption of the test urged by the People (or some variation thereof) — did the People present sufficient evidence to establish that the website belonged to, and was controlled by, defendant. People v Price, 2017 NY Slip Op 05174, CtApp 6-27-17

 

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PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION.

The Third Department determined plaintiff’s expert did not raise a question of fact in this medical malpractice action.  Plaintiff injured her shoulder when she caught a patient (Lisa Clark) who started to fall as she was being transferred from a sideboard to a physical therapy bed. The action was deemed to sound in medical malpractice:

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The gravamen of plaintiff’s claim is that initiating a slide board transfer of Clark with minimal to moderate assistance deviated from the applicable standard of care, thereby causing Clark’s fall and plaintiff’s injuries. Defendants met their initial burden of establishing entitlement to judgment as a matter of law by submitting, among other things, an expert affidavit from a physical therapist opining that utilizing a slide board transfer with minimal assistance did not deviate from the accepted standard of care and noting, based on a review of Clark’s records, that Clark had successfully completed slide board transfers with minimal or moderate assistance on prior occasions … . Thus, “the burden shifted to plaintiff to present expert medical opinion evidence that there was a deviation from the accepted standard of care” … .

In opposition, plaintiff submitted, among other things, the affidavit of an orthopedic surgeon, Matthew J. Nofziger. Even assuming that Nofziger was qualified to provide an opinion with respect to the standard of care used in the physical therapy field for the purpose of assessing the appropriateness of transfer procedures … , we find his affidavit to be insufficient to raise a triable issue of fact. Although Nofziger criticized the assessment of Clark’s physical and cognitive abilities prior to the slide board transfer, he failed to identify or define the applicable standard of care appropriate in this case, merely asserting, in a conclusory manner, that Clark required a higher level of assistance than was provided to her … . Nor did Nofziger set forth any particular actions or procedures that could have prevented Clark from falling, thereby failing to establish the requisite nexus between the alleged malpractice and plaintiff’s injury … . Therefore, even if considered, Nofziger’s affidavit was patently insufficient to raise a triable issue of fact as to whether the transfer procedure used in this case deviated from the applicable standard of care … . Webb v Albany Med. Ctr., 2017 NY Slip Op 05146, 3rd Dept 6-22-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (EVIDENCE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, LAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)

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HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT.

The Third Department determined hearsay evidence constituted substantial evidence and supported a finding that petitioner abused a resident of a facility operated by the Office of People with Developmental Disabilities (OPWDD). A statement from an eyewitness was the challenged hearsay:

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… [I]t is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence … Further, hearsay evidence “may, under appropriate circumstances, form the sole basis of an agency’s determination, unless the hearsay evidence is seriously controverted” … . Here, the corroborated description of the incident by the eyewitness was only controverted by petitioner’s denial that he punched the victim. Petitioner’s acknowledgment that he engaged in horseplay with the victim that morning, combined with his statements on two other occasions that he did not recall whether he punched the victim, presented credibility questions for the Justice Center to resolve … . Consequently, the Justice Center could view the corroborated description by the eyewitness as not seriously controverted and “sufficiently reliable” so as to constitute substantial evidence … . Matter of Cauthen v New York State Justice Ctr. for the Protection of People with Special Needs, 2017 NY Slip Op 05147, 3rd Dept 6-22-17

ADMINISTRATIVE LAW (EVIDENCE, HEARSAY, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/EVIDENCE (ADMINISTRATIVE LAW, SUBSTANTIAL EVIDENCE, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/HEARSAY (ADMINISTRATIVE LAW, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)

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STANDING EVIDENCE DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED.

The Second Department determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank (Nationstar) did not demonstrate the originator of the mortgage (Aurora) had standing because the relevant evidence did not meet the criteria for the business records exception to the hearsay rule. In addition, the court held that, although there was evidence the notice requirements of the Real Property Actions and Proceedings Law [RPAPL] were not met by the bank, the bank produced evidence the loan was going to be used by defendants for investment purposes and was not, therefore, a “home loan” to which the notice requirements apply:

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Here, Nationstar failed to meet its prima facie burden of establishing that Aurora had standing to commence the action. In support of its motion, Nationstar relied on the affidavit of Doris Raimundi, a vice president of Nationstar, who asserted that “pursuant to the business records of Aurora Loan Services, LLC, the original Note was held in its custody since September 23, 2009, prior to commencement of this action,” and that the note had since been delivered to Nationstar. However, Nationstar failed to demonstrate the admissibility of the records relied upon by Raimundi under the business records exception to the hearsay rule … , since Raimundi did not attest that she was personally familiar with Aurora’s record-keeping practices and procedures… . Inasmuch as Nationstar’s motion was based on evidence that was not in admissible form, it failed to establish its prima facie entitlement to judgment as a matter of law … . * * *

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Nationstar raised a triable issue of fact as to whether the subject loan was a “home loan” … . In particular, in light of certain written statements made by [defendant] when he applied for the loan, there is a triable issue of fact as to whether the proceeds of the loan were, in fact, used for “personal, family, or household purposes,” or whether they were used for investment purposes … . Thus, the defendants were not entitled to summary judgment on the ground that Aurora failed to comply with RPAPL 1304. Aurora Loan Servs., LLC v Komarovsky, 2017 NY Slip Op 05061, 2nd Dept 6-21-17

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FORECLOSURE (STANDING EVIDENCE DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)/EVIDENCE (FORECLOSURE, STANDING EVIDENCE DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)/HOME LOAN (FORECLOSURE, RPAPL NOTICE REQUIREMENTS, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)/NOTICE (FORECLOSURE, RPAPL, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)

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INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the proof of the allegedly forged signature on a power of attorney was insufficient to support declaring the power of attorney null and void:

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“A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'”… . ” [A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing so as to amount to a moral certainty'” … .

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Here, the plaintiff failed to rebut the presumption of validity of the acknowledged power of attorney. Although an expert opinion is not necessarily required in order to establish that a document is a forgery, where an expert opinion is offered, the expert must “state with reasonable professional certainty that the signature at issue is not authentic” … . The plaintiff failed to present evidence authenticating the group of 31 exemplars upon which the plaintiff’s handwriting expert primarily relied … . Further, although the handwriting expert testified that he relied on several additional exemplars, those exemplars likewise were not authenticated … . Consequently, the testimony of the handwriting expert should not have been considered … .

The testimony of the plaintiff and other witnesses was not sufficient to establish, to a moral certainty, that the 2002 power of attorney was forged. The plaintiff denied having signed the 2002 power of attorney. However, “[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature”… . Kanterakis v Minos Realty I, LLC, 2017 NY Slip Op 05074, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EVIDENCE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EXPERT OPINION (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/CERTIFICATE OF ACKNOWLEDGMENT (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)

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PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED.

The Third Department, affirming Supreme Court, determined the medical malpractice action brought on behalf of a high school student who committed suicide was properly dismissed. The decision lays out in detail the actions of the defendants and the expert affidavits submitted to demonstrate the defendants did not deviate from an appropriate standard of care in assessing plaintiff’s decedent’s mental state or in releasing plaintiff’s decedent to his parents. The plaintiffs’ expert affidavit did not demonstrate any substantive deviation from appropriate care, or any expertise in emergency medicine. Shortly after release from defendants’ care, which related to drug abuse, not suicidal ideation, plaintiff’s decedent shot himself in the head:

The burden … shifted to plaintiffs to raise a triable issue of fact as to whether defendants departed from the accepted standard of care … . To that end, plaintiffs primarily relied on an affirmation of Igor Galynker, a psychiatrist, who opined that Duplan [the psychiatrist] departed from accepted practice in several ways, including by failing to personally evaluate decedent and failing to consider several factors that increased decedent’s risk for suicide. As to CMC [the emergency care provider], Galynker opined that it failed to establish procedures requiring Duplan to personally evaluate decedent and failed to create a “structured interview algorithm” for assessment of acute suicide risk, leading to serious errors on Beeby’s [the psychiatric nurse who interviewed plaintiff’s decedent] part. Yet, Galynker failed to provide any factual basis for his opinions … or point to any medical guidelines indicating that only a psychiatrist may conduct a mental health examination. Furthermore, Galynker’s assertion that Duplan had failed to consider several additional suicide risk factors is belied by Duplan’s testimony and the mental health evaluation, which reveal that Duplan was aware of and weighed such factors. Relatedly, Galynker never articulated how or why, if certain questions were asked or mnemonics/algorithms were used, material information would have been revealed that would have altered the medical decision rendered. Consequently, with regard to Duplan and CMC, Supreme Court properly found Galynker’s affirmation to be conclusory and lacking sufficient detail to raise a triable issue of fact … . With respect to Koch [the emergency medicine physician], Galynker opined that he deviated from accepted practice by, among other things, failing to discuss the case with Duplan and failing to consider the effects of decedent’s drug use. Notably, however, Galynker did not indicate that he had any training or expertise in the field of emergency medicine … . Therefore, plaintiffs’ medical malpractice and wrongful death causes of action were properly dismissed. Gallagher v Cayuga Med. Ctr. 2017 NY Slip Op 04941, 3rd Dept 6-15-17

NEGLIGENCE (PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/MEDICAL MALPRACTICE (SUICIDE, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EXPERT OPINION (MEDICAL MALPRACTICE,  PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/SUICIDE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)

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EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion by Justice Andrias, determined plaintiff’s expert affidavit was sufficient to raise a question of fact whether the school nurse’s failure to tell plaintiff to remove a contraceptive device (NuvaRing) was a proximate cause of blood clots which resulted in severe brain damage. The dissent argued plaintiff’s expert affidavit was conclusory and speculative, insufficient to defeat defendant’s expert’s opinion that removing the NuvaRing would not have prevented the blood clots which occurred seven days after plaintiff complained to the nurse practitioner about chest pains:

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Montefiore [the defendant which employed the nurse practitioner at the school clinic] made a prima facie case through its expert, Dr. Bardack, that it was not the proximate cause of plaintiff’s injuries … . In opposition, plaintiff’s expert raised an issue of fact concerning causation. We disagree with the dissent that the affidavit of Dr. Gold was speculative and conclusory. Dr. Gold specifically opined that if the nurse practitioner had properly assessed plaintiff, instructed her to remove the NuvaRing, and referred her for further assessment, plaintiff’s subsequent injuries and complications would have been avoided. Had the nurse properly assessed plaintiff as suffering from the symptoms of a blood clot, she could have instructed plaintiff to remove the ring immediately, thereby at least beginning to correct any clotting imbalance. As Montefiore’s expert acknowledges, “clot risk is gradually decreased after the ring is removed.” Thus, while the nurse was not in a position to treat clots, she certainly was in a position to make the diagnosis and to direct the plaintiff to remove the likely source of her symptoms, lessening the risk of an adverse outcome.

Montefiore asserts that even if the NuvaRing had been removed on June 1, thromboembolism was nonetheless likely to ensue, relying on FDA guidelines concerning presurgical protocols; Dr. Gold, however, opined that the risk of blood clotting would have subsided had the ring been removed. At this stage, plaintiff’s expert’s affidavit suffices to raise a factual issue as to the element of causation.

It may well be that the medical professionals who subsequently treated plaintiff are also at fault for failing to work her up for thromboembolism and failing to remove or direct her to remove the NuvaRing. Issues of relative culpability await resolution at trial. Plaintiff’s submissions raise an issue of fact as to the liability of the nurse practitioner sufficient to defeat summary judgment. Adams v Pilarte, 2017 NY Slip Op 04913, 1st Dept 6-15-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/MEDICAL MALPRACTICE (EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EXPERT OPINION (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/NUVARING (MEDICAL MALPRACTICE,  AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)

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CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED.

The Third Department, reversing Family Court, determined the child’s testimony alleged sexual abuse by father was not corroborated:

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A child’s mere repetition of an accusation to others, “however consistent and believable, is not sufficient to corroborate [his or her] prior out-of-court statements”… . “The corroboration requirement is not demanding and may be satisfied by any other evidence tending to support the reliability of the child’s previous statements” … . Nevertheless, “there is a threshold of reliability that the evidence must meet”… . Here, relative to the allegations that the father had sexual contact with the daughter, that threshold was not met.

This Court has found corroboration of a child’s out-of-court statements pertaining to sexual abuse in such evidence as medical indications of abuse … , expert validation testimony … , cross-corroboration by another child’s similar statements … , marked changes in a child’s behavior … , and sexual behavior or knowledge beyond a child’s years … . No such evidence was presented here. Instead, the undisputed testimony of all of the witnesses described the daughter as a social, highly verbal child with no medical evidence of abuse, no significant behavioral alterations, and no indications of inappropriate sexual knowledge or behavior. Matter of Lee-Ann W. (James U.), 2017 NY Slip Op 04920, 3rd Dept 6-15-17

 

FAMILY LAW (EVIDENCE, SEXUAL ABUSE, CORROBORATION, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/SEXUAL ABUSE (FAMILY LAW, CORROBORATION OF CHILD’S TESTIMONY,  CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/EVIDENCE (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/CORROBORATION (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)

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