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In a Lead-Paint-Injury Case, Non-party Medical Records Not Discoverable (Re: Plaintiff’s Mother and Siblings)–Non-party Academic Records Should Be Submitted for In Camera Review–Mother Cannot Be Compelled to Submit to an IQ Test

The Third Department determined the extent of allowable discovery re: non-parties in a lead-paint-injury case.  The defense sought medical and academic records of plaintiff’s mother and siblings, all non-parties, and sought to compel the mother to undergo an IQ test.  The Third Department held that the non-party medical records were not discoverable (except for the mother’s records during pregnancy), the non-party academic records should be submitted to the court for in camera review, and the mother should not be compelled to undergo an IQ test:

A subdivision of the main disclosure statute provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable” (CPLR 3101 [b]). Medical records are protected by a doctor-patient privilege and cannot be disclosed without consent or a waiver of the privilege (see CPLR 4504 [a]…). A plaintiff waives the privilege by commencing an action that places his or her mental or physical condition at issue, but nonparties are not subject to having their medical histories made public merely because a relative commences an action … . As plaintiff’s mother and siblings did not consent and have not waived that privilege, Supreme Court should not have ordered disclosure of their medical records … . An exception exists for the mother’s medical records during the time of her pregnancy with and birth of plaintiff, but plaintiff has already provided an authorization for those records … .

Regarding the mother’s and siblings’ academic records, defendants have submitted an expert affidavit, as noted above, indicating that those records are relevant and necessary to determine whether other factors caused plaintiff’s injuries … . Considering that these records are private but not privileged, Supreme Court reasonably balanced defendants’ need for them and their possible relevance against the burden to these nonparties from disclosure, requiring that the siblings’ records be produced to the court for an in camera review … . The mother’s academic records should similarly be submitted to the court for review and redaction of any privileged material. …

Defendants’ need for her IQ test results, however, are not outweighed by the burden on her to undergo such a test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff’s condition, such as all of the factors contributing to the mother’s IQ … . Considering the private and personal nature of the information sought and the potential delay due to myriad collateral issues, defendants should not be able to compel plaintiff’s mother, a nonparty, to undergo an IQ test … . Perez v Fleischer, 2014 NY Slip Op 008101, 3rd Dept 11-20-14

 

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Fabricated Checks Using Defendant’s Name and Signature Were Not “Forged Instruments”

The Third Department affirmed the dismissal of forgery charges because, although the defendant fabricated the checks at issue, the defendant did not portray herself as someone other than herself in executing the checks:

…[A] “… person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses any forged instrument of a kind” as described under Penal Law § 170.10 (Penal Law § 170.25). A forged instrument is defined as a “written instrument which has been falsely made, completed or altered” (Penal Law § 170.00 [7]). Importantly, a person “‘falsely makes’ a written instrument when he [or she] makes . . . [an] instrument, which purports to be an authentic creation of its ostensible maker . . ., but which is not such either because the ostensible maker . . . is fictitious or because, if real, he [or she] did not authorize the making . . . thereof” … . Determining whether a document is forged “does not depend so much on whether it contains a falsehood, but on whether, on its face, it misrepresents its authenticity” … .

Defendant did not attempt to portray herself as someone other than herself in executing the checks … . Nor does this case present a situation in which defendant made out the checks without attaining the requisite authorization from another individual … . Thus, the checks at issue in this matter “were not falsely made,” as provided in the forgery statute … . Defendant’s fabrication of the checks bearing her name and address, as the purported bank account holder, makes her the ostensible maker … and the placement of defendant’s signature on the checks renders defendant the actual maker of the checks. Where, as here, the ostensible maker and the actual maker of the written instrument are the same person, the alleged crime of criminal possession of a forged instrument in the second degree must be dismissed … . People v Zeller, 2014 NY Slip Op 08068, 3rd Dept 11-20-14

 

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Evidence of General Inspection Practices, As Opposed to the Specific Inspection and Cleaning Practices Re: Where the Plaintiff Slipped and Fell, Insufficient to Entitle Defendant to Summary Judgment

The Second Department affirmed the denial of defendant’s motion for summary judgment in a slip and fall case.  The plaintiff slipped on a wet floor in the ladies room.  The defendant submitted only general information about its inspection practices without any specifics about the inspection or cleaning of the area where plaintiff fell:

“A defendant who moves for summary judgment in a slip-and-fall or trip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which 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” … . “In order to meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall” … . “A movant cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case” … . Moreover, a defendant’s reference to general inspection practices, without evidence as to when the area at issue was inspected relative to the plaintiff’s slip-and-fall, will not suffice to establish the lack of constructive notice of the existence of a dangerous condition … .

Here, the Supreme Court properly denied the defendant’s motion for summary judgment, since the defendant failed to submit any evidence regarding particularized or specific inspections or cleaning procedures that were utilized in the subject area relative to the time of the plaintiff’s accident … . Fernandez v Festival Fun Parks LLC, 2014 NY Slip Op 07978, 2nd Dept 11-19-14

 

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Plaintiff’s Deposition Testimony Stating that She Did Not Know the Cause of Her Fall Was Fatal to the Action—the Deposition Testimony Was Not Overcome by a “Feigned Issue” Subsequently Raised in an Affidavit or by Expert Opinion Evidence Alleging the Cause of the Fall

The Second Department determined that plaintiff’s deposition testimony that she did not look down and did not know the cause of her fall was fatal to the action.  The court determined that plaintiff’s affidavit in opposition to the summary judgment motion stated a “feigned issue” designed to avoid the consequences of her deposition testimony.  In addition, the expert affidavit alleging the cause of the fall was a depression could not overcome the plaintiff’s ignorance of the cause of the fall:

Here, the defendant established its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, in which she admitted to not knowing what her foot had been caught on, or what caused her to fall. Notably, the plaintiff testified that, as she exited a pharmacy, she walked straight, looking forward, and did not look down … .

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony … . The deposition testimony of the plaintiff’s friend, who was present when the accident occurred, also failed to raise a triable issue of fact, as this witness was unable to identify what caused the plaintiff to fall. The plaintiff also submitted an affidavit of an expert who alleged that the proximate cause of the plaintiff’s injuries was a depression of the walkway pavers, which created a one-inch height difference between the pavers and the abutting concrete curb, thereby causing a tripping hazard. However, since the plaintiff did not know what caused her to fall, it would be speculative to assume that this alleged condition proximately caused her fall … . Rivera v J Nazzaro Partnership LP, 2014 NY Slip OP 08001, 2nd Dept 11-19-14

 

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Plaintiff Had Made Out a Prima Facie Case of Undue Influence—Trial Judge Erred by Making Credibility Determinations and Granting a Judgment In Favor of the Defendant As a Matter of Law (CPLR 4401)

In reversing Supreme Court, the Second Department determined the motion for a judgment as a matter of law pursuant to CPLR 4401 should not have been granted.  The plaintiff sought to set aside a conveyance by deed on the ground of undue influence. The Second Department held that plaintiff had made out a prima facie case and sent the matter back for trial in front of a different judge:

” A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'” … . ” In considering the motion, the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … .

The burden of proving undue influence generally rests with the party asserting its existence … . “However, where there is a confidential relationship between the beneficiary and the grantor, [a]n inference of undue influence’ arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction” … . “In the absence of an explanation, the beneficiary has the burden of proving by clear and convincing evidence that the transaction was fair and free from undue influence” … .

Here, in granting the defendant’s motion pursuant to CPLR 4401, the Supreme Court improperly resolved issues of the credibility of the witnesses against the plaintiff … . Viewing the evidence in a light most favorable to the plaintiff, and resolving all issues of credibility in the plaintiff’s favor, we find that the plaintiff established, prima facie, that a confidential relationship existed between the decedent and the defendant, requiring the defendant to come forth with an explanation of the circumstances of the transaction. Palladino v McCormick, 2014, NY Slip Op 07992, 2nd Dept 11-19-14

 

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Evidence of Defendant’s Silence at the Time of Arrest Should Not Have Been Allowed—New Trial Ordered

The Court of Appeals reversed defendant’s conviction and ordered a new trial because evidence of defendant’s silence at the time of arrest was erroneously allowed:

Absent “unusual circumstances,” evidence of a defendant’s silence at the time of arrest is generally inadmissible under common-law evidentiary principles … . And the use for impeachment purposes of a defendant’s silence after receiving Miranda warnings has been deemed impermissible as a matter of due process … . Under the circumstances presented, we conclude that defendant did not open the door to evidence of his post-Miranda silence and, therefore, Supreme Court erred in permitting its introduction at trial. Nor can the error be viewed as harmless in this case.  People v Hill, 2014 NY Slip OP 07925, CtApp 11-18-14

 

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Although “Zone of Danger” Damages Were Asserted in the Complaint, the Failure to Request a “Zone of Danger” Jury Instruction and the Failure to Object to the Verdict Sheet (Which Did Not Mention “Zone of Danger” Damages) Precluded the Trial Court from Setting Aside the Verdict and Ordering a New Damages Trial

The Court of Appeals determined the trial court should not have set aside the verdict because “zone of danger” damages to loved ones who witnessed the death of plaintiff’s decedent (apparently caused by a collapse of a roof) were not presented to the jury. Although asserted in the complaint, no jury instruction on “zone of danger” damages was requested and no mention of “zone of danger” damages appeared on the verdict sheet.  Plaintiffs did not object to the jury charge or verdict sheet:

The issue of whether plaintiffs Gary Motelson and Evan Motelson had suffered and/or would continue to suffer emotional distress, as a result of being placed in a zone of danger wherein they witnessed the death of Steven Motelson, while asserted in the complaint, was not argued to the jury at trial. Nor was this question addressed in Supreme Court’s charge or submitted to the jury on the verdict sheet. Significantly, the questions on the verdict sheet concerning the roof support system asked the jury about the causation of “Steven Motelson’s injuries and death,” and not about harms to any others. Plaintiffs did not object to the jury charge or verdict sheet. In these circumstances, Supreme Court erred when it set aside the jury verdict and ordered a new trial on damages. Motelson v Ford Motor Co, 2014 NY Slip Op 07926, CtApp 11-18-14

 

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Defendant’s Unsigned Deposition Transcript Admissible In Support of Defendant’s Summary Judgment Motion/Okay to Submit Deposition Excerpts As Long As They Are Not Misleading

The First Department noted that the fact that a deposition transcript submitted in support of a summary judgment motion was not signed did not render the transcript inadmissible and further noted that it is proper to submit excerpts from depositions provided they are not misleading.  The lawsuit alleged the defendant driver of a sanitation truck, Wygand, was negligent. Summary judgment was granted to the defendants:

There was no requirement that Wygand’s deposition transcript be signed by him in order to be admissible in support of the City defendants’ motion because Wygand accepted its accuracy by submitting it in support of his motion for summary judgment dismissing the complaint … . There was also nothing improper about submitting only excerpts of deposition transcripts in support of the motion, as long as they were not misleading. Castano v Wygand, 2014 NY Slip Op 07940, 1st Dept 11-18-14

 

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Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

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Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

The Fourth Department reversed defendant’s conviction because the trial judge, sua sponte, struck all of his co-defendant’s testimony after the co-defendant invoked his privilege against self-incrimination.  The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial … . We conclude that the court erred in failing to “weigh the options” in a “threshold inquiry” to determine whether “less drastic alternatives” were available, other than striking the entire testimony of the codefendant … . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant’s positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such “relevant and exculpatory testimony considered by the jury” … . We also conclude that the court’s error in striking the codefendant’s testimony is not harmless inasmuch as “the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error” … . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

 

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