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Plaintiff Raised a Triable Issue of Fact Under the Doctrine of Res Ipsa Loquitur—Plaintiff Alleged a Bone Was Fractured During Surgery

The Second Department determined plaintiff had raised a triable issue fact in a medical malpractice action under the doctrine of res ipsa loquitur. The complaint alleged that, during surgery on her shoulder, a bone was fractured. The court explained the analytical criteria:

“[R]es ipsa loquitur [is] available in a narrow category of factually simple medical malpractice cases requir[ing] no expert to enable the jury to reasonably conclude that the accident would not happen without negligence” … . The doctrine is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “The doctrine is generally available to establish a prima facie case when an unexplained injury in an area which is remote from the treatment site occurs while the patient is anesthetized” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by [the] defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Swoboda v Fontanetta, 2015 NY Slip Op 06804, 2nd Dept 9-16-15

 

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Insurer Must Demonstrate Compliance with 30-Day Notice Requirement Re: an Independent Medical Examination (IME)

The First Department, over a dissent, affirmed Supreme Court’s denial of plaintiff-insurer’s motion for summary judgment which argued the insurer was not obligated to provide no-fault insurance coverage because defendant did not appear for a scheduled independent medical examination (IME).  In order to be entitled to summary judgment, the insurer was required to show that it notified defendant of the IME within 30 days of the insurer’s receipt of the verification form from the defendant. Plaintiff’s papers did not state when the verification form was received by it.  Therefore, the plaintiff could not show it complied with the 30-day-notice requirement. The court noted that the issue could be determined as a matter of law and the defect could not be cured in reply papers:

“Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5(d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper…”. American Tr. Ins. Co. v Longevity Med. Supply, Inc., 2015 NY Slip Op 06761, 1st Dept 9-15-15

 

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Testimony Which Could Have Added Relevant Evidence About the Nature of Plaintiff’s Work (Pre-Injury) and the Effects of the Injuries Should Not Have been Excluded as “Cumulative”

The First Department determined the plaintiff in a Labor Law 240 (1) action was entitled to a new trial because the trial judge should not have excluded the testimony of a co-worker and plaintiff’s wife as “cumulative:” The court explained:

“… [A] new trial on damages is necessitated, because we disagree with the court’s preclusion of testimony by plaintiff’s wife and coworker. Testimony is properly precluded as cumulative when it would neither contradict nor add to that of other witnesses … . Here, the testimony of plaintiff’s wife and his coworker would have added to the testimony of other witnesses. First, the coworker saw plaintiff fall, and his testimony as to the impact to plaintiff’s foot could have been highly probative of plaintiff’s claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff’s position that as a result of his injury he could no longer perform that kind of work. To be sure, plaintiff testified about his job duties, but the coworker’s status as a disinterested witness would have given his testimony added value to the jury … . Nor was the proffered testimony of plaintiff’s wife likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband’s condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.” Segota v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06764, 1st Dept 9-15-15

 

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Evidence of Photo-Array Identification Properly Allowed to Counter Inference Line-Up Was Suggestive (Defendant Restrained in Line-Up)

The Second Department determined the identification of the defendant in a photo-array was properly allowed in evidence because the defendant was restrained in the line-up, which could give rise to an inference the line-up was suggestive:

Under the circumstances of this case, the Supreme Court properly allowed the admission of evidence concerning the pretrial photographic identification of the defendant made by one of the two complainants. The evidence elicited at a suppression hearing established that the defendant had to be restrained during the lineup at which the complainants identified him due to his uncooperative behavior. Since the restraint of the defendant during the lineup could give rise to an inference that the lineup was suggestive, and the lineup identification made by the complainants was therefore unreliable, the People were properly permitted to counter this inference by introducing evidence of the prior photographic identification… . People v Adamson, 2015 NY Slip Op 06672, 2nd Dept 8-26-15

 

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Unduly Suggestive Line-Up Required a New Trial

The Second Department ordered a new trial because the hearing court erroneously concluded the line-up was not unduly suggestive. The defendant was the only person in the line-up wearing a red shirt (which was a prominent part of the description of the assailant by the complainant).  A new trial was necessary because the People did not have the opportunity to demonstrate whether there was an independent source for the complainant’s identification:

The hearing court erred in concluding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant’s clothing that the complainant gave to the police. Thus, at the lineup, the defendant’s red shirt improperly drew attention to his person … .

The hearing court’s erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant’s in-court identification. Since the People did not have an opportunity to establish the existence of an independent source, if any, a new trial is required, to be preceded by an independent source hearing … . People v Pena, 2015 NY Slip Op 06681, 2nd Dept 8-26-15

 

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Recovery Under the Doctrine of Quantum Meruit Was Proper—Proof of Damages Was Sufficient

The Second Department determined defendants, who did construction work without a written contract, were entitled to recover under the doctrine of quantum meruit.  The court noted that proof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs:

The elements of a cause of action sounding in quantum merit are: (1) the performance of services in good faith, (2) the acceptance of services by the person to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered … . Here, the trial court properly determined that the … defendants performed services in good faith, that the plaintiff accepted those services, and that the … defendants expected to be compensated therefor. The court also properly determined that the … defendants provided sufficient evidence of the reasonable value of their services. The unsigned agreement furnished evidence of such value … . In addition, the … defendants presented proposals that they submitted to the plaintiff for payment in connection with additional work that they performed, invoices and proof of payments to subcontractors, and invoices and proof of payments to suppliers of materials and equipment. The fair and reasonable value of the … defendants’ services may be properly based on evidence concerning the amount that they billed the plaintiff for such services, and the amounts that subcontractors billed them for their services and for costs of supplies and equipment … .

Moreover, “[p]roof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs” … . The record demonstrates that the … defendants, who had 20 years of experience in construction and had built over 100 homes, had knowledge of the actual costs of the services being provided … . Therefore, the … defendants’ testimony provided further evidence of the reasonable value of the services performed … . Johnson v Robertson, 2015 NY Slip Op 06658, 2nd Dept 8-26-15

 

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Defendants Demonstrated They Were Entitled to Depose Nonparty Physician Whose Notations Expressed Skepticism About the Cause of Plaintiff’s Injuries

The Second Department determined defendants were entitled to depose a nonparty doctor whose notations in medical records expressed skepticism about the plaintiff’s claims re: the cause of her injuries. The court explained the applicable law:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The notice requirement of CPLR 3101(a)(4) “obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . After the subpoenaing party has established compliance with the CPLR 3101(a)(4) notice requirement, disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action … . However, the party or nonparty moving to vacate the subpoena has the initial burden of establishing either that the requested deposition testimony “is utterly irrelevant'” to the action or that ” the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, contrary to the plaintiff’s contention, the … defendants satisfied the notice requirement. In a copy of the document entitled “Authorization to Permit the Interview of Treating Physician by Defense Counsel,” which was attached to the nonparty witness subpoena, “the circumstances or reasons” requiring the deposition of the nonparty were properly provided (CPLR 3101[a][4]). Since the … defendants met this minimal obligation, the burden shifted to the plaintiff to establish that the deposition testimony sought was irrelevant to this action, which she failed to do. Further, the … defendants demonstrated that it was relevant to the defense of the action … . Bianchi v Galster Mgt. Corp., 2015 NY Slip Op 06568, 2nd Dept 8-19-15

 

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Police-Monitored, Recorded Phone Conversation Between Minor Victim and Defendant Was Admissible

In affirming defendant’s conviction, the Fourth Department determined a police-monitored, recorded phone conversation between the minor victim and the defendant was admissible. “Vicarious consent” to the recording was given by the victim’s mother. The court rejected arguments that the conversation was inadmissible because the victim was acting as a police agent and because the conversation constituted an impermissibly deceptive tactic on the part of the police:

We reject defendant’s further contention that the court erred in refusing to suppress statements that he made during a police-monitored telephone conversation with the victim. There is no merit to his contention that the statements were admitted in violation of CPLR 4506 (1). It is well established that one of the parties to a telephone conversation may consent to the wiretapping or recording of the conversation… , and here the victim gave her consent. Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations … . We note in any event that the victim’s mother consented to the recording, and we conclude that the “vicarious consent” exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR 4506 … . Also contrary to defendant’s contention, his statements in the controlled telephone call were not inadmissible pursuant to CPL 60.45. Even assuming, arguendo, that the victim was acting as an agent of the police when she telephoned defendant, the calls were recorded with the victim’s consent …, and “the victim did not make a threat that would create a substantial risk that defendant might falsely incriminate himself” … . We reject defendant’s further contention that the controlled telephone call constituted an unconstitutionally deceptive police tactic. “Deceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” … , and there was no such showing here. People v Bradberry, 2015 NY Slip Op 06609, 4th Dept 8-19-15

 

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Evidence of Shooting Committed by Defendant’s Twin Brother Was Highly Prejudicial and Had No Bearing Upon Defendant’s Guilt—Murder Conviction Reversed

The Second Department determined defendant’s murder convictIon must be reversed because evidence of a shooting committed by defendant’s twin brother should not have been admitted. This highly prejudicial evidence had no bearing on defendant’s culpability:

“Evidence of uncharged crimes or crimes committed by a person other than the defendant is generally inadmissible because it is highly prejudicial with little probative value” … . Here, the evidence of the unrelated shooting was admitted in response to evidence introduced by the defense to show that the defendant and his uncharged accomplices exhibited a calm demeanor shortly after the shooting at the garage and that such a demeanor was inconsistent with the People’s contention that they had been recently involved in a violent crime. The People argued that evidence of the unrelated shooting was relevant to this case on the ground that it showed that the defendant’s identical twin brother had similarly exhibited a calm demeanor after he shot an individual at a bar on a prior occasion.

Evidence that the defendant’s identical twin brother had perpetrated a separate shooting less than two months prior to the shooting in this case was highly prejudicial to the defendant and had no bearing whatsoever on the defendant’s culpability for the crimes charged … . This evidence “served no purpose other than to raise an inference of guilt by association” … . People v Grigoroff, 2015 NY Slip Op 06517, 2nd Dept 8-12-15

 

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Odor of Marihuana Provided Probable Cause to Search Defendant’s Car and Person

The Second Department determined the odor of marihuana coming from inside defendant’s car provided the police with probable cause to search defendant’s car and person:

… [T]he police had probable cause to search the defendant’s vehicle and his person. An officer testified at the suppression hearing that he detected the odor of marihuana emanating from inside the vehicle through the open front windows. He further testified that he had been trained in the detection of marihuana and had made hundreds of drug arrests. Contrary to the defendant’s contention, “[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 McLaren, 2015 NY Slip Op 06522, 2nd Dept 8-12-15

 

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