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Child’s Out-Of-Court Statements Insufficient to Support Abuse Finding

In affirming Family Court’s determination that the child’s out-of-court statements were not sufficiently corroborated to support a finding of abuse by the father, the Second Department wrote:

A child’s out-of-court statements may provide the basis for a finding of abuse if the statements are sufficiently corroborated by other evidence tending to support the reliability of the child’s statements (see Family Ct Act § 1046[a][vi];… . The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated …, and its findings must be accorded deference on appeal where, as here, the Family Court is primarily confronted with issues of credibility … .  Matter of Nicole G, 2013 NY Slip Op 02576, 2012-07263, 2012-07264, 2nd Dept, 4-17-13

 

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Expert Affidavit in Support of Hospital’s Motion for Summary Judgment Not Sufficient

In this medical malpractice case, the plaintiff alleged a delay in performing an emergency cesarean section resulted in oxygen-deprivation-injury to her baby.  In affirming the denial of summary judgment to the hospital, the Third Department noted that the affidavits submitted on behalf of the hospital did not directly address with substantive facts the evidence of a delay in assembling the surgical team:

To establish a party’s entitlement to summary judgment, a physician’s affidavit “must be detailed, specific and factual in nature” and may not simply assert in conclusory fashion that a defendant complied with the standard of care without relating the contention to the particular facts at issue …. In the absence of any factual discussion of the delay, [the] general assertion that NDH “acted at all times in a prompt, timely, and reasonable manner” lacks specificity. Accordingly, NDH failed to establish its prima facie entitlement to summary judgment, and it is unnecessary to address the sufficiency of plaintiffs’ opposing papers … . Olinsky-Paul v Jaffe, et al, 514904, 3rd Dept 4-11-13

 

 

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Continuing Course of Treatment Doctrine Not Applicable

In a medical malpractice action, plaintiff alleged her pediatrician [Walders] was negligent in failing to properly address the condition of her foot, which turned out to be a symptom of a disorder that went undiagnosed for many years.  In upholding the trial court’s determination that the “continuing course of treatment” doctrine (which would toll the statute of limitations) did not apply, the Third Department explained:

A  “course  of treatment  speaks  to affirmative and ongoing conduct by the physician” which is recognized as such by both the patient and  physician … .Notably, a  “[r]outine examination of a seemingly healthy  patient, or  visits concerning  matters  unrelated  to  the condition  at issue giving rise to  the  claim, are  insufficient to invoke  the  benefit of the  [continuous  treatment]  doctrine” … . Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiff’s mother does not, by itself, establish an ongoing course of treatment … . Dugan v Troy Pediatrics, LLP, 515407, 3rd Dept 4-11-13

 

 

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Criteria for Motion to Vacate Based on Newly Discovered Evidence Explained

In upholding the trial court’s denial (without a hearing) of a 440 motion to vacate the defendant’s conviction based upon newly discovered evidence (i.e., a statement made by a juror to an investigator), the Third Department wrote:

Nor do we discern any error in County Court’s summary denial of that part of defendant’s motion that was based upon his claim of newly discovered evidence.  As relevant here, “[t]o justify vacatur under  CPL  440.10 (1) (g), the newly  discovered evidence ‘must . . . be  such  as will probably change the result if a new  trial is granted . . . [and] be  material to the issue'” …. A hearing is not necessary when the court can “adequately review the matter based upon the contents of the record and the motion papers”… .  People v Carter, 104989, 3rd Dept 4-11-13

 

 

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New Factual Claim Made for the First Time at Trial by Defendant Triggered “Inconsistent Statements” Jury Charge; Prior Injuries to Child Admissible under Molineux

In this case the defendant was convicted of manslaughter in the death of a three-year-old child.  In his statement to the police, the defendant said the child fell while she was in the shower. At trial the defendant testified the child also fell on the stairs.  The trial court gave an “inconsistent statements” charge to the jury, finding it would have been reasonable and logical for the defendant to have mentioned the fall on the stairs in his statement to police.  In upholding the trial court, the Third Department wrote:

In its general instructions to the jury, County Court included a charge regarding a witness testifying to a fact that the witness omitted at a prior time when it would have been reasonable and logical to have stated the fact (see CJI2d[NY] Credibility of Witnesses  [Inconsistent Statements]).Defendant contends that this constituted error. Defendant had given a detailed voluntary statement to police regarding the pertinent events surrounding the victim’s death. He did not include in that statement an account of the victim purportedly falling on the stairs while coming to eat lunch, but he testified regarding such event at trial. Since it would be reasonable to expect defendant to mention all potential injuries sustained by the victim while in his care that day, including this charge did not constitute reversible error.

In addition, the Third Department found no error in the trial court’s allowing evidence of prior injuries revealed by the autopsy and two injuries incurred by the child when she was in defendant’s care.  This evidence of “similar uncharged crimes” was deemed admissible under Molineux to demonstrate “the absence of an accident” as the cause of the child’s injuries.  People v Tinkler, 103766, 3rd Dept 4-11-13

 

 

 

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Hearing Required to Determine If Complaint Properly Served

In remitting the case for a hearing to determine whether defendant was properly served with the complaint, the Second Department wrote:

Here, the affidavit of service of the plaintiff’s process server describing service of process on the defendant NES Medical Services of New York, P.C. (hereinafter NES), constituted prima facie evidence of proper service on NES … . In support of that branch of their motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction, the appellants submitted an affidavit stating that the person served was neither employed by, nor authorized to accept service for, NES. Where, as here, “there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing” …. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on, and a new determination of, that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction. Rosario v NES Med Srvs of NY, PC, 2013 NY Slip Op 02388, 2011-10662, Index No 4465/11, 2nd Dept 4-10-13

 

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Unpleaded Cause of Action Can Be Raised in Opposition to Summary Judgment—Must Be Supported by Proof in Admissible Form

The Second Department noted that, in opposition to a motion for summary judgment, an unpleaded cause of action (which must be supported by proof in admissible form) may be raised:

The plaintiff, in opposition, …raised a new theory of liability …. A plaintiff may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff’s proof …. However, in the instant case, the plaintiff’s submission in support of the unpleaded cause of action was an affirmation of an attorney with no personal knowledge of the facts. That affirmation was not sufficient to raise a triable issue of fact to defeat the defendant’s prima facie showing of entitlement to judgment as a matter of law with respect to the allegations in the plaintiff’s pleadings …. Since the plaintiff submitted no evidence in admissible form in support of the unpleaded cause of action, she failed to raise a triable issue of fact. McCovey v Williams, 2013 NY Slip Op 02380, 2012-01315, Index No 38525/06, 2nd Dept, 4-10-13

 

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Requirements for Motion to Dismiss on Documentary Evidence

In this case, the Second Department addressed the proof requirements for a CPLR 3211(a)(1) motion (motion to dismiss on documentary evidence), the potential validity of an unsigned agreement in the context of such a motion, and the proper remedy when a referee exceeds his or her authority:

A motion pursuant to CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, although [defendant] offered documentary proof that the loan reinstatement agreement was not signed…, this proof does not conclusively dispose of the plaintiff’s specific performance or breach of contract claims since an unsigned agreement may constitute an enforceable contract where there is objective evidence establishing that the parties intended to be bound …. We further note that since [defendant] sought dismissal of the specific performance and breach of contract causes of action pursuant to CPLR 3211(a)(1) on the ground that it had a defense founded on documentary evidence, the motion should have been decided solely on the documentary evidence proffered in support of the motion. …. Furman v Wells Fargo Home Mtge Inc, 2013 NY Slip Op 02374, 2011-10281, 2011-10284, Index No 25616/09, 2nd Dept, 4-10-13

 

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Award of Sole Custody to Mother Without a Hearing Reversed—Reliance on Expert Recommendations Not Sufficient

In reversing the Family Court’s award of sole custody to the mother without a hearing, the Second Department wrote:

Here, the Family Court did not possess adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary. Indeed, the court was not involved when the parties agreed to the existing custody and parenting agreement, and only became involved in this proceeding after the prior Family Court Judge in this matter retired. Furthermore, although the court had the recommendations of an expert before it, the recommendations of experts are but one factor to be considered …, and “are not determinative and do not usurp the judgment of the trial judge” …. Accordingly, the Family Court erred in denying the father’s petition and, inter alia, awarding sole physical custody to the mother without first holding an evidentiary hearing on the issue of physical custody and visitation so that it could make an independent determination as to the best interests of the children on the basis of the evidence presented at such a hearing ….  Matter of Schyberg v Peterson, 2013 NY Slip Op 02406, 2011-1113, 2nd Dept, 4-10-12

 

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Out-of-Pocket Expenses Must Be Alleged in Claim Based on Alleged Failure to Detect Child’s Medical Condition In Utero

In dismissing a medical malpractice action which was based upon a physician’s alleged failure to detect a medical condition from the review of a sonogram, a condition which may have caused the parents to terminate the pregnancy, the Second Department reviewed the available damages in such an action. Ultimately the Second Department determined that the plaintiffs’ failure to raise a question of fact about future expenses they will incur for care of the child (currently paid for by Medicaid) required dismissal of the complaint:

Although a child with a disability may not maintain a wrongful life cause of action, the child’s parents may, under certain circumstances, maintain a cause of action on their own behalf to recover the extraordinary costs incurred in raising the child … . To succeed on such a cause of action, which “sound[s] essentially in negligence or medical malpractice,” the plaintiffs “must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by” them … . Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice … . Further, the claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition …. The “parents’ legally cognizable injury’ is the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority’” … . Since the parents’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable ….  Mayzel v Moretti, 2013 NY Slip Op 02379, 2011-11393, Index No 102307/09, 2nd Dept, 4-10-13

 

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