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Negligent Highway Design Not Demonstrated/Plaintiff’s Amnesia Did Not Excuse Submission of Proof of Proximate Cause

The Third Department determined summary judgment was properly awarded to county in case alleging negligent highway design.  Plaintiff’s vehicle left the roadway and went down an embankment, incurring traumatic brain injury resulting in amnesia re: the accident.  The complaint alleged there should have been a guide rail where plaintiff’s vehicle left the road.  However, there was a twenty-foot wide flat area between the edge of the road and the embankment. The court noted that the plaintiff’s amnesia did not excuse her from submitting proof of proximate cause:

“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” … . While this duty includes providing adequate warning signs and guide rails or other barriers in appropriate circumstances, a municipality will not be held liable for a breach of duty unless the breach proximately caused the accident … . Accordingly, to establish a cause of action for negligent highway design, plaintiffs were required to provide evidentiary facts that could support a finding that defendant breached its duty to maintain the road in a reasonably safe condition, and that this breach was a proximate cause of the accident. * * *

Plaintiff’s amnesia as to the cause of the accident does not excuse her from submitting prima facie proof of proximate cause. In a proper case, an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of events … . However, that doctrine is inapplicable where, as here, the defendant has no greater access to the underlying facts than the amnesiac plaintiff … . Moreover, even when the doctrine applies, the burden remains on the amnesiac plaintiff to present prima facie proof of the defendant’s negligence to permit a jury to base its verdict on evidence rather than speculation … . This burden may not be satisfied by “inferences as to causation which are based solely upon speculation” … . As plaintiffs neither made an evidentiary showing that defendant breached its duty to construct and maintain the road in a safe condition nor that such a breach proximately caused the accident, summary judgment was properly granted to defendant on the ground that plaintiffs failed to establish a cause of action for negligent highway design.  Lindquist v County of Schoharie, 2015 NY Slip Op 01852, 3rd Dept 3-5-15

 

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Proof at Trial Did Not Sufficiently Pinpoint Time of the Alleged Sexual Offenses—Convictions Vacated

The Second Department determined the proof at trial did not sufficiently pinpoint the time of the alleged sexual offenses.  The offenses were alleged at trial to have been committed within a four-year time period for one victim and within a one-year time period for another.  The related convictions were vacated:

Here, numerous counts of the consolidated indictment charged various acts of criminal sexual act (see Penal Law § 130.45[1]) and sexual abuse (see Penal Law §§ 130.55, 130.60), which involved several single acts. These acts spanned a time period of at least four years with respect to Gabrielle, and approximately one year with respect to Angela. In an effort to specify a time period that was not unreasonably excessive, the District Attorney drafted the indictment to divide these time periods mostly into two-month intervals. Although the indictment, on its face, may have been sufficient, the trial testimony revealed that the complainants lacked any ability “to particularize the date and time of the alleged . . . offense[s]” …, and that there was no real basis in fact for the intervals alleged with respect to these counts … . Thus, “[t]he mere fact that the District Attorney artfully drafted the indictment by arbitrarily dividing” those otherwise excessive time periods into two-month intervals despite the absence of any basis in fact, “cannot detract from the conclusion that the time periods” with respect to these single-act crimes “were unreasonable” under the circumstances here … . Under the circumstances of this case, despite the defendant’s failure to preserve the issue for appellate review, we reach the issue in the interest of justice, and we vacate the defendant’s convictions of criminal sexual act in the second degree, sexual abuse in the second degree, and sexual abuse in the third degree … . People v Atta, 2015 NY Slip Op 01809, 2nd Dept 3-4-15

 

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No “Extraordinary Circumstances” Existed to Justify Granting Primary Custody of Child to Grandparents

The Fourth Department, in a full-fledged opinion by Justice Centra, determined Family Court should not have granted primary custody of the child to the grandparents.  Although the grandparents had played a primary role in the child’s care for 10 years, with the mother’s permission and participation, the “extraordinary circumstances” described by the Court of Appeals as necessary to justify awarding custody to nonparents were not present:

As the Court of Appeals held in the seminal case of Matter of Bennett v Jeffreys (40 NY2d 543, 544), “[t]he State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.” The Court thereafter held that, “[s]o long as the parental rights have not been forfeited by gross misconduct . . . or other behavior evincing utter indifference and irresponsibility . .. , the natural parent may not be supplanted” (Matter of Male Infant L., 61 NY2d 420, 427). “The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child” … .

…[T]he arrangement between petitioners [the grandparents] and the mother since shortly after the child’s birth and for 10 years thereafter was akin to a joint custody arrangement with petitioners having primary physical custody of the child and the mother visitation. Petitioners established that they took on the bulk of the responsibility for the child’s financial support and education. There was no showing by petitioners, however, that the mother was unfit or that she surrendered or abandoned her child … . The question then is whether they established “other equivalent but rare extraordinary circumstance[s] which would drastically affect the welfare of the child” … .

As we have held, “[w]hat proof is sufficient to establish such equivalent but rare extraordinary circumstances cannot be precisely measured” … . “[T]he fact that [a] parent agreed that a nonparent should have physical custody of the child or placed the child in the custody of a nonparent is not sufficient, by itself, to deprive the parent of custody” … . Here, while the mother allowed petitioners to have primary physical custody of the child for a prolonged period, there were no other factors to show the existence of extraordinary circumstances … . The record establishes that the child is psychologically attached to both petitioners and the mother, and there was no evidence that removing the child from petitioners’ primary custody would result in “psychological trauma . . . grave enough to threaten destruction of the child” … . The evidence at the hearing showed that the child exhibited some signs of stress after May 2012, but the record as a whole, including the Lincoln hearing, supports the conclusion that the child was stressed because of the family conflict, and would not suffer if the mother had custody of the child. Matter of Suarez v Williams, 2015 NY Slip Op 02293, 4th Dept 3-20-15

 

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Rules of Evidence Properly Relaxed to Allow Hearsay In Proceeding to Modify Guardian’s Power to Control the Social Environment of the Incapacitated Person

In affirming the denial of a petition to modify the court-appointed guardian’s power to control the social environment of Mary WW, the incapacitated person (to compel the guardian to allow petitioner to visit Mary WW), the Third Department agreed with Supreme Court that hearsay was admissible in the proceeding:

…. [P]etitioner contends that, in denying her motion, Supreme Court improperly relied upon the hearsay statements of witnesses who had contact with Mary WW. We disagree. Although the rules of evidence are generally applicable to proceedings brought under Mental Hygiene Law article 81, Mental Hygiene Law § 81.12 (b) provides that the court may waive such rules “for good cause shown.” Here, we note that Mary WW. initially consented to the guardianship, it was recommended by the court evaluator and none of Mary WW.’s children, except for petitioner, objected. Moreover, it is undisputed that Mary WW. now suffers from severe dementia and was unable to attend the modification hearing, which occurred nearly four years after the guardianship was established. In view of this, it was necessary for other witnesses to testify concerning her interactions with petitioner. Significantly, petitioner was not prejudiced, as she was present at the hearing and denied the allegations. Under these circumstances, we find that Supreme Court had good cause for relaxing the rules of evidence and considering the hearsay statements of witnesses who had contact with Mary WW. Matter of Mary WW…, 2015 NY Slip Op 01704, 3rd Dept 2-26-15

 

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People’s Failure to Provide Timely Notice of the Intent to Present Witnesses to Rebut the Testimony of Defendant’s Alibi Witness Required Reversal

The Second Department reversed defendant’s conviction because the prosecutor failed to show good cause for her failure to provide timely notice of rebuttal witnesses.  Defendant had provided a “notice of alibi.”  Defendant’s alibi witness was his girlfriend, who testified defendant was home with her at the time of the offense.  The prosecutor did not provide reciprocal notice of rebuttal witnesses who would testify that cell phone records demonstrated defendant was not at home with his girlfriend at the time of the offense.  In spite of the lack of timely notice, the trial court allowed the rebuttal testimony after an adjournment:

CPL 250.20(1) provides, among other things, that within eight days of service of a demand by the People, a defendant “must” serve upon the People a “notice of alibi,” and that “[f]or good cause shown, the court may extend the period for service of the notice.” The reciprocal provision, CPL 250.20(2), provides, among other things, that “[w]ithin a reasonable time after receipt of the defendant’s witness list but not later than ten days before trial,” the People “must” serve and file a list of the witnesses the People propose to offer in rebuttal to discredit the defendant’s alibi at the trial, and that “[f]or good cause shown, the court may extend the period for service” of the People’s witness list.

CPL 250.20(3) provides that if the defendant calls an alibi witness at trial without having first served the requisite notice pursuant to CPL 250.20(1), the court “may exclude any testimony of such witness,” or “may in its discretion receive such testimony, but before doing so, it must, upon application” of the People, “grant an adjournment not in excess of three days” (CPL 250.20[3]). CPL 250.20(4) provides that the provisions of subdivision (3) “shall reciprocally apply” when the People seek to offer alibi rebuttal witnesses without having given the requisite notice pursuant to CPL 250.20(2).

Here, the People contend, in effect, that, unlike CPL 250.20(2), which requires the People to show “good cause” for an extension of time to serve the list of alibi rebuttal witnesses, CPL 250.20(3) and (4) do not require such a showing for the court to exercise its discretion in receiving such testimony absent any compliance with the notice requirement. We disagree … . A construction of the statute which requires good cause to be shown before trial, but not during trial, when late notice would be most prejudicial, is both contrary to the plain meaning of the statute, as well as contrary to the intent of the Legislature in amending the statute to comply with the Due Process Clause … . To hold otherwise would mean that CPL 250.20(3) and (4) completely eviscerate the timeliness of notice requirements of CPL 250.20(1) and (2). People v Crevelle, 2015 NY Slip Op 01661, 2nd Dept 2-25-15

 

ess Required Reversal

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Speculation About Cause of Fall Required Summary Judgment In Favor of Defendant

The Second Department determined defendant was entitled to summary judgment in a slip and fall case.  The plaintiff testified he did not know what caused him to fall.  The testimony of a witness about tree roots in the area of the fall did not establish that plaintiff tripped on the roots:

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” … . “However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” … .

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by establishing, through the submission of the plaintiff’s deposition testimony, that the plaintiff could not identify the cause of his fall without engaging in speculation. …

Contrary to the Supreme Court’s determination, the plaintiff failed to raise a triable issue of fact in opposition. The affidavit of Angelo Mamone, who was walking alongside the plaintiff when he fell, did not raise a triable issue of fact, since Mamone did not aver that he observed the plaintiff trip, but only observed that there were tree roots in the path where the plaintiff fell. His conclusion that tree roots were the cause of the fall was speculative. Moreover, the portion of a police report relied upon by the plaintiff contained inadmissible hearsay and, thus, was insufficient to raise a triable issue of fact … . Goldberg v Village of Mount Kisco, 205 NY Slip Op 01608, 2nd Dept 2-25-15

 

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Proof of the Cause of Plaintiff’s Slip and Fall Need Not Be Based Upon Plaintiff’s Personal Knowledge

Although proof the cause of a slip and fall cannot be based on speculation, the Second Department noted the proof of the cause need not be based upon plaintiff’s personal knowledge:

A defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall … . If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based upon speculation … . “That does not mean that a plaintiff must have personal knowledge of the cause of his or her fall. Rather, it means only that a plaintiff’s inability to establish the cause of his or [her] fall—whether by personal knowledge or by other admissible proof—is fatal to a cause of action based on negligence” … .  Pol v Gjonbalaj, 2015 NY Slip Op 01625, 2nd Dept 2-25-15

 

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“To a Reasonable Degree of Medical Probability” Properly States the Standard for Expert Opinion on Proximate Cause

The Second Department noted that it was sufficient that the expert stated there was “a reasonable degree of medical probability” plaintiff’s injury was caused by the accident:

The usual language is “to a reasonable degree of medical certainty,” but the phrase “degree of medical certainty” has been deemed sufficient (see Matott v Ward, 48 NY2d 455, 459). In Matott, the Court of Appeals held that the relevant inquiry is “whether it is reasonably apparent’ that the doctor intends to signify a probability supported by some rational basis'” (id. at 461 …). Here, the phrase “reasonable degree of medical probability” satisfied that standard. It should also be noted that that language is the statutory standard in New Jersey for determining if there is sufficient evidence of serious injury to sue for noneconomic loss (NJ Stat § 39:6A-8[a]…). Further, [the expert] explained the foundation for his opinion, noting that the plaintiff initially appeared at an early stage of his condition immediately after the accident, and that his condition progressed thereafter … . Thus, his opinion was supported by a rational basis … . Kahvejian v Pardo, 2015 NY Slip Op 01612, 2nd Dept 2-25-15

 

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Insufficient Foundation for Introduction of Grand Jury Testimony as Past Recollection Recorded—No Showing Recollection Was “Fairly Fresh” and Accurate at the Time of the Grand Jury Appearance

The First Department, in a full-fledged opinion by Justice Andrias (disagreeing at length with the rationale of the concurring opinion), reversed defendant’s perjury conviction because a witness’ (Woods’) grand jury testimony was wrongly admitted under the past recollection recorded hearsay exception.  Woods testified and remained available to testify when the hearsay exception was invoked.  Woods claimed that he did not know whether he had actual knowledge of past events or whether his memory stemmed from the many “prep” discussions he had had with the prosecutor over a six-year period. There was a six-year gap between the underlying events and Woods’ grand jury appearance. The First Department determined the prosecutor did not lay a sufficient foundation for admission of the grand jury testimony in that it was not shown that Woods’ recollection was “fairly fresh” at the time of the grand jury testimony:

Although there is no rigid rule as to how soon after the event the statement must have been made …, here the assurance of the accuracy of the recordation and its trustworthiness are diminished by the six- year gap between the underlying events, which concluded in 2000, and Woods’s grand jury testimony in 2006 * * * .

The People argue that Woods’s testimony is admissible despite the six-year gap because the trial court found that he was “feigning a lack of memory.” However, even if Woods’s lack of memory demonstrates that he was unable or unwilling to testify, it does not abrogate the People’s obligation to satisfy the foundational requirement that the recollection was fairly fresh when [*5]recorded or adopted.

Nor was Woods able to “presently testify that the record correctly represented his knowledge and recollection when made” … . Although Woods testified that he believed his grand jury testimony was truthful and accurate, he also testified that “[a]s I sit here right now, I can’t tell you if everything that’s in that Grand Jury that I said was … accurate”; that although he “wanted to be accurate” and “wouldn’t testify untruthfully,” he could not swear that “what’s in the … Grand Jury … was exactly what happened,” and that he could not “remember [if] … what I was talking to was my clear recollection or … was resulting from [my prep sessions] with people.” Thus, Woods’s testimony reflects that although he would not have purposefully lied to the grand jury, he could not presently state that his testimony accurately reflected his own recollection of the events in question at the time that he testified before it … . People V DiTommaso, 2015 NY Slip Op 01592, 1st Dept 2-14-15

 

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Maltreatment Finding Not Supported by Substantial Evidence

The Third Department determined substantial evidence did not support the Office of Children and Family Services finding of maltreatment.  Petitioner spanked the child for eating soap while petitioner was bathing the child.  Petitioner explained what had happened to the child’s day-care provider, who then reported the incident to the Central Register of Child Abuse and Maltreatment:

“‘At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a fair preponderance of the evidence'” … . Specifically, “‘[t]o establish that maltreatment occurred, the agency must show that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the parent’s failure to exercise a minimum degree of care'” … . In our consideration of the underlying determination, “our focus is whether the determination is rational and supported by substantial evidence” … . * * *

A parent is “entitled to use reasonable physical force to promote discipline” … , however, the application of such force may not “exceed[] the threshold of reasonableness” … . Although a single instance of excessive corporal punishment can suffice for a finding of maltreatment …, here, the record lacks substantial evidence demonstrating that petitioner’s conduct “impaired or was in imminent danger of impairing [the child’s] physical, mental or emotional condition” … . Matter of Maurizio XX v New Y\ork State Off of Children and Family Services, 2015 NY Slip Op 01512, 3rd Dept 2-19-15

 

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