In reversing the motion court’s grant of summary judgment to the plaintiff in an unfair competition action, the Fourth Department determined that conclusory allegations of customer confusion or mistake in plaintiff’s affidavit were not sufficient, and the exhibits attached to the affidavit to demonstrate customer confusion were not admissible under the business records exception to the hearsay rule (insufficient foundation). KG2, LLC … v Weller…, CA 12-01225, 338, 4th Dept. 4-26-13
In reversing the grant of summary judgment to the defendant because of an alleged inability of the plaintiff to establish proximate cause, the Fourth Department determined the plaintiff need not exclude every possible cause of the accident other than the defendant’s acts or omissions:
In order to establish proximate cause, “[p]laintiffs need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently remote or technical to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence . . . A plaintiff need only prove that it was more likely . . . or more reasonable . . . that the alleged injury was caused by the defendant’s negligence than by some other agency” … . Furthermore, it is well settled that, in seeking summary judgment dismissing a complaint, a defendant “must affirmatively establish the merits of its . . . defense and does not meet its burden by noting gaps in its opponent’s proof” … . New York Municipal Insurance Reciprocal… v Casella Construction, Ind, CA 12-02094, 399, 4th Dept, 4-26-13
Over a dissent, the Fourth Department reversed the motion court’s denial of summary judgment to the defendant in an automobile-accident personal injury action. The Fourth Department determined plaintiff had not raised a question of fact in response to the proof submitted by defendant that her injuries were linked to a preexisting condition, and not the accident:
“[E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury—such as a gap in treatment, an intervening medical problem or a preexisting condition—summary dismissal of the complaint may be appropriate” …. Here, defendants met their initial burden on the motion with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories by offering “persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition” … . Kwitek… v Seier…, CA 12-01607, 352, 4th Dept, 4-26-13
TRAFFIC ACCIDENTS
The Court of Appeals (with a dissent) held that a question of fact about when an accident occurred had been raised by plaintiff’s verified pleadings. The defendant submitted evidence the accident occurred on February 5, making plaintiff’s action untimely. Plaintiff’s verified pleadings stated the accident occurred on February 10, making plaintiff’s action timely. In light of the question of fact raised by the verified pleadings, the Court of Appeals reversed the grant of summary judgment to the defendant. Sanchez v National Railroad Passenger Corp, No 76, CtApp, 4-25-13
The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the phrase “depraved indifference to human life” as it is used in Social Services Law 384-b(8)(a)(i) to define when a child has been “severely abused” does not have the meaning ascribed to the same phrase under the Penal Law. In addition, the court clarified the statutory conditions which relieve a social services agency of the requirement to make diligent efforts to reunite the child with the abusive parent. Judge Read wrote:
Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life” (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference … [“[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim” … . Additionally, “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” …, whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute “circumstances evincing a depraved indifference to human life” refers to the risk intentionally or recklessly posed to the child by the parent’s abusive conduct. Matter of Dashawn W …, No 71, CtApp, 4-25-13
The Court of Appeals held that the admission at trial of statements made by the defendant indicating he had committed murders other than the murder with which he was charged “did not rise to the level of constitutional injury such as ineffectiveness of counsel or juror partiality.” Therefore, the harmless error doctrine applied and, in light of the evidence against the defendant, the conviction was affirmed. People v Byer, No 84, CtApp, 4-25-13
In this sexual-crimes case, the Third Department discussed (among other issues): (1) the application of speedy trial rules when an initial indictment is dismissed and then charges stemming from the same incident are brought more than six months later in a second indictment; (2) the sufficiency of proof of the victim’s helplessness (intoxication); and (3) the inadmissibility of an experiment (opening a door with a credit card to demonstrate how defendant could have entered the house) which had nothing to do with the trial evidence. All but two of the convictions were affirmed. In reversing the two convictions which were based entirely on the defendant’s confession, the Third Department wrote:
We find that defendant’s convictions of criminal sexual act in the first degree must be reversed. “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50). While this additional proof “need not corroborate every detail of the confession” …, both of defendant’s criminal sexual act convictions were based solely upon his uncorroborated admissions that he performed oral sex on the victim. Defendant’s presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether the crimes occurred at all. As there was no corroborating proof “of whatever weight,” these charges must be dismissed… . People v Bjork, 104014, 3rd Dept, 4-25-13
The defendant was convicted of shooting the victim with a .25 caliber handgun. Under Molineux, the prosecution was allowed to present evidence that the defendant, two and a half months before, was seen brandishing a .25 caliber handgun. The trial court determined this “prior crime” evidence was admissible to prove the identity of the shooter. The Third Department affirmed with a strong dissent. The quotation below, which is from the dissent, outlines one of the elements of a Molineux analysis of prior-crime evidence to prove identity:
[THE FOLLOWING QUOTATION IS FROM THE DISSENT]
The mere fact that defendant was allegedly seen with a .25 caliber weapon on an occasion over two months prior to the crime does not reveal any unique and distinctive modus operandi, nor a “distinctive repetitive pattern” … . The only behavior described was the act of pulling out a gun – there is nothing unique or distinctive about this act, standing alone – and the weapon was not fired during the alleged earlier incident. Defendant’s mere presence in the same place twice is certainly not unusual, as other people were also present on both occasions. There was simply no evidence that might be considered “‘so unique that the mere proof that . . . defendant had committed a similar act would be highly probative of the fact that he committed the one charged'” … . People v Myers, 104004, 3rd Dept, 4-25-13
In reversing Family Court’s determination the best interests of the child did not permit the mother’s relocation, the Second Department wrote:
After weighing the appropriate factors set forth in Matter of Tropea v Tropea …, we find that the mother established by a preponderance of the evidence that the children’s best interests would be served by permitting the relocation … .
The mother demonstrated that she could not meet the family’s living expenses in New York and that the father did not make regular child support payments …. She also demonstrated that, if permitted to relocate, she would accept an offer of employment in her field of experience, and would receive financial assistance, including housing and a car, from extended family members … . The desires of the children, while properly considered, are not determinative … . Matter of Tracy A G v Undine J, 2013 NY Slip Op 02751, 2nd Dept, 4-24-13
In finding Family Court did not have a sufficient basis to determine the mother failed to substantiate her income in a child support proceeding, the Second Department wrote:
The Support Magistrate improperly awarded child support based on the needs of the child rather than the mother’s income, upon concluding that the mother failed to substantiate her income (see Family Ct Act § 413[1][k]). The record reflects that, prior to the hearing at which the Support Magistrate issued the order, the mother had appeared before the Support Magistrate only twice and, on both occasions, the appearances were very brief. … Moreover, the Support Magistrate failed to advise the mother that her failure to fill out the financial disclosure affidavit would result in an award of support based on the child’s needs, instead of the mother’s income … . Accordingly, the matter must be remitted … for a new hearing on the petition and a new determination thereafter as to the mother’s support obligation. Matter of Anderson v Pappalardo, 2013 NY Slip Op 02745, 2nd Dept, 4-24-13
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