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DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined the defendant (Dick) in this rear-end collision case demonstrated freedom from fault and was entitled to summary judgment. The evidence, including plaintiff’s testimony, demonstrated defendant’s vehicle was struck from behind while stopped behind plaintiff, and thereby pushed into contact with the rear of plaintiff’s vehicle. It was alleged that defendant’s vehicle was struck from behind by a Verizon truck which left the scene. That there was a question of fact whether any Verizon truck was involved in the accident had no effect on defendant’s entitlement to summary judgment:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” … . Hence, “[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” … .

Here, Dick established his prima facie entitlement to judgment as a matter of law by demonstrating that his stopped vehicle was propelled forward into the plaintiff’s vehicle after his vehicle was struck in the rear by a third vehicle, and that he was not at fault in the happening of the accident … . In opposition, the Verizon defendants failed to raise a triable issue of fact as to whether Dick was at fault in the happening of the accident … . Contrary to the Verizon defendants’ contention, the issue of whether they owned the third vehicle which struck Dick’s vehicle is not relevant to the determination of this motion. Wooldridge-Solano v Dick, 2016 NY Slip Op 06488, 2nd Dept 10-5-16

NEGLIGENCE (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/EVIDENCE (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/SUMMARY JUDGMENT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/COMPARATIVE FAULT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/REAR-END COLLISION (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)

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PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs’ failure to demonstrate the absence of comparative fault in this rear-end collision case required the denial of plaintiffs’ motion for summary judgment without reference to defendant’s papers:

 

“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” … . A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence … . Here, the plaintiffs’ submissions in support of their motion, which included the defendant’s deposition transcript, failed to eliminate a triable issue of fact as to whether the defendant had a nonnegligent explanation for the collision. According to the defendant, the plaintiffs’ vehicle came to a stop, started again, and came to a second stop for no apparent reason. The defendant claimed that when he braked to avoid a collision, his vehicle skidded on a roadway which was wet from melting snow … . Moluh v Vord, 2016 NY Slip Op 06477, 2nd Dept 10-5-16

NEGLIGENCE (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (REAR-END COLLISION, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/COMPARATIVE FAULT (SUMMARY JUDGMENT, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/SUMMARY JUDGMENT (REAR-END COLLISION PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/REAR-END COLLISIONS (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)

 

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FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined Family Court should have granted mother’s objection to the support magistrate’s finding father did not willfully violate the support order. Proof that support payments were not made is prima facie proof of a willful violation requiring father to come forward with an explanation. Father offered no explanation:

Here, the father’s failure to satisfy his child support obligations constituted prima facie evidence of a willful violation … . This showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the support order was not willful … . The father failed to satisfy this burden. There was no evidence that the father was financially unable to meet his child support obligations. Accordingly, the Family Court should have granted the mother’s objection to so much of the Support Magistrate’s order as determined that the father did not willfully violate the support order. Since the father’s violation of the support order was willful, the court was required to award an attorney’s fee to the mother … . Matter of Torres v Moran, 2016 NY Slip Op 06506, 2nd Dept 10-5-16

FAMILY LAW (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/EVIDENCE (FAMILY LAW, FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/CHILD SUPPORT (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)

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EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED.

The Second Department, reversing Family Court, determined the out-of-court statements of the child (Tahjane) were sufficiently corroborated, and the proof of excessive corporal punishment and a history of violence against mother in the children’s presence supported a finding of neglect by father:

Contrary to the Family Court’s determination, the mother’s testimony and medical records provided sufficient corroboration to support the reliability of Tahjane’s out-of-court statements that the father choked her and, together with the petitioner’s progress notes, established the allegation, by a preponderance of the evidence, that the father inflicted excessive corporal punishment on Tahjane … . Further, the court should have drawn a negative inference from the father’s failure to testify … . Accordingly, the petitioner established, by a preponderance of the evidence, that the father neglected Tahjane by inflicting excessive corporal punishment on her.

The petitioner also established, by a preponderance of the evidence, that the father neglected all of the subject children by perpetrating acts of domestic violence against the mother in their presence. Although “exposing a child to domestic violence is not presumptively neglectful” … , a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually or imminently harmed by reason of the parent or caretaker’s failure to exercise a minimum degree of care … . Matter of Nah-Ki B. (Nakia B.), 2016 NY Slip Op 06492, 2nd Dept 10-5-16

FAMILY LAW (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/EVIDENCE (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/HEARSAY (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/NEGLECT (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)

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HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED.

The Second Department determined several failures to gather proof requested by the inmate (petitioner) deprived petitioner of a fair disciplinary hearing. The determination was annulled and the violation expunged. The hearing officer, inter alia: (1) failed to retrieve a document which could have supported the petitioner’s claim he was not served with the proper disciplinary papers; (2) failed to ascertain the identity of the confidential informant who claimed a weapon was in petitioner’s cell; and (3) failed to ask a witness (petitioner claimed the witness planted the weapon) relevant questions posed by the petitioner:

Considering all of these circumstances, the petitioner did not receive a fair hearing … . While a prison inmate facing a disciplinary hearing is not entitled to the same level of due process as a criminal defendant, there are minimum standards that must be met … . Here, since the petitioner did not receive a fair hearing, the minimum due process standard was not met … . Matter of Harvey v Prack, 2016 NY Slip Op 06497, 2nd Dept 10-5-16

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)

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SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED.

 

The Second Department, reversing Supreme Court, determined there were no exigent circumstances justifying the warrantless search of a briefcase found on a parked car near where defendant was arrested. Defendant was identified by a store clerk as the person who had just robbed him at gunpoint and a loaded gun was found on defendant’s person upon arrest:

Because “[a]ll warrantless searches presumptively are unreasonable per se, . . . [w]here a warrant has not been obtained, it is the People who have the burden of overcoming this presumption of unreasonableness” … . Under the New York State Constitution, an individual’s right of privacy in his or her personal effects dictates that a warrantless search incident to arrest be deemed unreasonable unless (1) it satisfies certain “spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” and (2) it is justified by the presence of exigent circumstances … . “Exigency must be affirmatively demonstrated” … . Exigent circumstances may be established by a showing that the search was necessary to ensure the safety of the public or the arresting officer, or that it was necessary to prevent the destruction or concealment of evidence … .

Contrary to the Supreme Court’s determination, the search of the briefcase was not justified as a search incident to a lawful arrest. The People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The arresting officer did not claim that he searched the briefcase out of concern for the safety of himself or the public and, in any event, the circumstances did not support a reasonable belief that the briefcase contained a weapon … . Additionally, the officer did not claim that he searched the briefcase to prevent the defendant from destroying evidence and, in any event, the facts do not support such a claim. Moreover, despite the People’s contention to the contrary, the error was not harmless, as it cannot be said that there was no significant probability that the jury would have acquitted the defendant of robbery in the first degree had it not been for the error … . People v Houston, 2016 NY Slip Op 06510, 2nd Dept 10-5-16

 

CRIMINAL LAW (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)

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STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR.

The First Department determined the storm in progress rule relieved defendants of responsibility for tracked in water during a snow storm. With respect to a second accident alleged in the complaint (slipping on urine on the building floor) the court held that evidence of the daily maintenance routine, coupled with plaintiff’s testimony she did not see urine on the floor on the afternoon of the accident (which occurred at 6:30 or 7 pm), demonstrated the defendants did not have constructive notice of the condition:

Here, plaintiff testified that ten or fifteen minutes before her first accident, she saw that it was snowing. Thus, any issue concerning whether defendants made reasonable efforts to remedy the wet condition on the steps of the entry vestibule was beside the point since they had no duty to correct the ongoing problem of pedestrians tracking water into the vestibule, until a reasonable time after the storm ended … .

With respect to plaintiff’s second accident in the building, the court properly concluded that defendants demonstrated prima facie the absence of actual or constructive knowledge of urine on the second floor platform based on the testimony of the superintendent that he inspected daily, mopped three times a week, and swept the stairs every day. Plaintiff also testified that she did not see the urine on the afternoon before her 6:30 p.m. or 7 p.m. accident, and was unaware of any complaints of a recurring moisture condition on the platform… . Rosario v Prana Nine Props., LLC, 2016 NY Slip Op 06431, 1st Dept 10-4-16

NEGLIGENCE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/EVIDENCE (SLIP AND FALL, STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/SLIP AND FALL (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/STORM IN PROGRESS RULE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER)/ROUTINE MAINTENANCE SCHEDULE (EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)

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STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION.

The First Department, reversing defendants’ convictions, determined statements made by the shooting victim should not have been admitted as dying declarations because the statements reflected speculation, not facts. Whether the statements were admissible as dying declarations was not a question of fact for the jury. The defendants were not present at the shooting. The prosecution was based upon the theory the defendants hired the shooter:

… [W]e reverse the judgments and order a new trial because the court erred in admitting, as dying declarations, the victim’s statements implicating defendants, since they were his “mere expression of belief and suspici[ons]” that defendants were involved in his shooting rather than “statements of facts to which a living witness would have been permitted to testify, if placed upon the stand” … . Although the dying declarant may accuse his or her killer in conclusory language, “[t]he declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him [or her], that the speaker is giving expression to suspicion or conjecture, and not to known facts” … .

… Contrary to the People’s argument, the question of what the victim was referring to when he implicated these defendants was not a proper jury question, nor did the lack of specificity merely go to the weight to be accorded this evidence.

The admission of the statements, which was over defendants’ timely and specific objection, was not harmless. Although some facts that may have led the victim to suspect that defendants were involved in his murder were part of the trial evidence, there was nothing to prevent the jury from speculating that the victim was privy to other information, outside the record, connecting defendants to the crime. We also note that the jury, which issued several deadlock notes during its very lengthy deliberations, twice requested to hear the dying declaration evidence. People v Gumbs, 2016 NY Slip Op 06424, 1st Dept 10-4-16

CRIMINAL LAW (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/EVIDENCE (CRIMINAL LAW, STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/DYING DECLARATIONS (CRIMINAL LAW, (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)

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HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION.

The First Department determined defendant’s motion to vacate his conviction (by guilty plea), based upon defense counsel’s failure to advise defendant of the possibility of deportation, should not have been denied without a hearing. The decision includes a concise yet complete summary of the federal and state criteria for ineffective assistance and the burdens of proof re: a motion to vacate a conviction by plea. The court noted that credibility questions, here whether defendant’s claim he would have rejected the plea had he known of the risk of deportation, can only be resolved by a hearing:

The issue before us thus turns on whether counsel’s lack of advice on the deportation consequences of defendant’s guilty plea resulted in sufficient prejudice to warrant the withdrawal of his guilty plea. In order to prevail, a defendant must demonstrate a “reasonable probability that, [had counsel properly advised him of the implication of his plea on his immigration status], he would not have pleaded guilty and would have insisted on going to trial” … . … [D]efendant alleges that he would have gone to trial, despite its hazards and the potentially significant incarceration that a conviction would entail, had he been advised he would be deported. Although to have done so would have meant the rejection of “the very beneficial deal” his counsel had negotiated, the motion court erred in finding that defendant’s claim was not “credible,” given the length of time defendant resided legally in the United States, and the other factors raised in his motion papers. Such credibility determinations should be made only after a hearing … . People v Samuels, 2016 NY Slip Op 06423, 1st Dept 10-4-16

CRIMINAL LAW (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/ATTORNEYS (INEFFECTIVE ASSISTANCE, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/INEFFECTIVE ASSISTANCE (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/VACATE CONVICTION, MOTION TO (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)

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EXPERT’S INABILITY TO QUANTIFY THE EXTENT TO WHICH DEFENDANTS’ CONDUCT DIMINISHED PLAINTIFF’S DECEDENT’S CHANCE OF A BETTER OUTCOME DID NOT JUSTIFY GRANTING DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law (on the issue of causation) should not have been granted. Plaintiff alleged the delay in diagnosing or failure to diagnose plaintiff’s decedent’s condition diminished plaintiff’s decedent’s chance of a better outcome. Plaintiff’s expert’s inability to quantify the extent to which defendants’ conduct diminished the chance of a better outcome did not render the proof insufficient:

In order to establish proximate causation, the plaintiff must demonstrate that the defendant’s deviation from the standard of care “was a substantial factor in bringing about the injury” (PJI 2:70…). Where, as here, the plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby “diminished [the patient’s] chance of a better outcome,” in this case, survival … . In that instance, the plaintiff must present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care … . However, “[a] plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the [patient’s] chance of a better outcome . . . , as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the [patient’s] chance of a better outcome’ … . Clune v Moore, 2016 NY Slip Op 06331, 4th Dept 9-30-16

 

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