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Pre-Deposition Motion to Dismiss in Rear-End Collision Case Not Premature

In reversing the denial of summary judgment to the plaintiff in a rear-end collision case, the Second Department determined the pre-deposition motion for summary judgment should not have been dismissed as premature:

The Supreme Court erred in concluding that the plaintiffs’ motion was premature. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]; … .The defendant’s contention that the plaintiffs’ motion was premature because the plaintiffs had not yet been deposed at the time the plaintiffs’ motion was filed did not establish what information the defendant hoped to discover at the plaintiffs’ depositions that would relieve him of liability in this case. “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” … .  Cajas-Romero v Ward, 2013 NY Slip Op 03446, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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Proof of Regular Cleaning Negated Constructive Notice Allegation​

In determining the defendant’s motion for summary judgment in a slip and fall case should have been granted, the Second Department explained defendant had met its burden on the issue of (the absence of) constructive notice by proof of regular weekly cleaning:

In a slip-and-fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it did not create the condition on which the plaintiff slipped, and did not have actual or constructive notice of that condition… . ” To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell'”… .  A defendant’s submission of evidence of its general cleaning practices is generally insufficient to meet its burden on the issue of lack of constructive notice … . Here, however, the defendant submitted an affidavit from its superintendent indicating that each and every Monday, he would mop the entire building, including the stairwell where the plaintiff allegedly fell, and that this mopping would always occur between the hours of 3:00 p.m. and 4:00 p.m. This affidavit was specific enough to satisfy the defendant’s initial burden. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Armijos v Vrettos Realty Corp, 2013 NY Slip Op 03443, 2nd Dept,. 5-15-13

 

 

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Exclusion of Petitioner from Hearing During Testimony of Primary Witness Required Vacation of Award

The exclusion of petitioner from an administrative hearing during the testimony of the only eyewitness to an alleged assault by petitioner required vacation of the arbitrator’s award.  The First Department wrote:

Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional right to confront the witnesses against her …. Nothing in the record indicates that a compelling competing interest warranted the exclusion. There is no finding that petitioner’s presence would cause trauma to the student or substantially interfere with his ability to testify. Indeed, the record contains no indication at all of the basis for the exclusion. Petitioner contends that in addition to her constitutional right she had an absolute right to confront witnesses under Education Law § 3020-a. However … there is no such absolute right under § 3020-a… .  Matter of Stergiou v NYC Dept of Educ, 2013 NY Slip Op 03432, 1st Dept, 5-14-13

 

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Assumption of Duty to Maintain Sidewalk; No Expert Notice Needed for Treating Physician

In reversing a judgment after a jury trial in a slip and fall case, the First Department discussed several issues that came up in the trial, including the denial of a missing witness charge with respect to one of the defense doctors, a translation problem raised by the translator (which may have given the jury the misimpression plaintiff was confused about an important issue), the assumption by the defendant Department of Education (DOE) of a duty to make the sidewalk outside a school (where plaintiff fell) safe, and the trial court’s ruling that one of plaintiff’s treating physicians could not testify because no “expert witness” notice was provided.  In addressing the school’s assumption of a duty with respect to the condition of the sidewalk and the exclusion of plaintiff’s treating physician, the First Department wrote:

The DOE argues on appeal that the action should have been dismissed as against it because it did not own the sidewalk where plaintiff fell. New York City Charter § 521(a) provides that “title to all property … acquired for school or educational purpose … shall be vested in the city, but under the care and control of the board of education for the purposes of public education, recreation and other public uses.” Education Law § 2554(4) affirmatively charges the DOE with responsibility for “the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work.” ……[W]here there was evidence that the DOE affirmatively undertook the duty to maintain the sidewalk, the court was well within its discretion in submitting the question of the DOE’s negligence to the jury ….

CPLR 3101(d)(1) provides that, upon request, parties must identify those expected to be called as experts and “disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify … and a summary of the grounds for each expert’s opinion.” However, the failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 … .  Hamer v City of New York, 2013 NY slip Op 03431, 1st Dept, 5-14-13

 

 

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Arrest Based on Out of State Warrant Not Authorized​

In reversing the denial of suppression, reversing the conviction and dismissing the indictment, the Second Department explained that the arrest based on out of state warrant (for a violation of probation) was not authorized.  A local criminal court warrant was required:

The detective had no authority to arrest the defendant based on his information that there was an out-of-state violation of probation warrant, as the detective did not obtain a warrant from a local criminal court pursuant to CPL 570.32. While CPL 570.34 provides that a police officer may also arrest a person in this State without a warrant “upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year”…, a violation of probation is not a “crime” … . People v Miranda-Hernandez, 2013 NY Slip Op 03346, 2nd Dept, 5-8-13

STREET STOPS, SUPPRESS

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Conflicting Expert Opinions, One of Which Was “Conclusory” with Respect to Proximate Cause, Raised Question of Fact

The Second Department reversed the dismissal of medical malpractice and wrongful death causes of action because a question of fact about whether there was a deviation from the standard of care by a hospital employee was raised by conflicting expert opinions, one of which was “conclusory” on the issue of proximate cause:

Although, generally, a hospital cannot be held vicariously liable for the negligence of a private attending physician, concurrent liability will be imposed where, inter alia, a hospital’s employees commit independent acts of negligence …. Here, Winthrop [the hospital] satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that Noble, its employee, did not commit any independent acts that deviated from the standard of care while attending to the decedent in the post-operative recovery area …. However, Winthrop failed to satisfy its prima facie burden with respect to the issue of proximate cause, as the opinion rendered by its expert on that issue was conclusory … Therefore, the burden shifted to the plaintiff to raise a triable issue of fact only as to whether there was a deviation from the standard of care …. The plaintiff did so through the affidavit of her expert, who opined that Noble deviated from the standard of care by, inter alia, failing to recognize the signs of a complication and timely report those signs to Wong [the decedent’s private attending physician]. In light of the conflicting opinions of the parties’ experts, summary judgment dismissing the medical malpractice and wrongful death causes of action insofar as asserted against Winthrop should have been denied …. Rosenstack v Wong, 2013 NY Slip Op 03316, 2nd Dept, 5-8-13

 

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Jury Need Not Draw the Permissible Inference of Negligence Under Doctrine of Res Ipsa Loquitur, Even Where Defendant Offers No Proof 

The Second Department explained that the doctrine of res ipsa loquitur makes out a prima facie case of negligence but the jury is not required to draw the permissible inference of negligence, even where the defendant offers no proof:

The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident, upon a plaintiff’s showing that the event is of the kind which ordinarily does not occur in the absence of negligence and was caused by an agency or instrumentality within the exclusive control of the defendant, without any voluntary action or contribution on the part of the plaintiff …. “The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may-but is not required to-draw the permissible inference” …. “[T]he use of res ipsa loquitur does not relieve the plaintiff of the burden of proof” …. In a res ipsa loquitur case, the jury has great latitude; even when the plaintiff has established a prima facie case and the defendant has offered no proof, the jury nonetheless is entitled to find for the defendant …, subject, of course, to appellate review. Nikollbibaj v City of New York, 2013 NY Slip Op 03306, 2nd Dept, 5-8-13

 

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Motion to Set Aside Convictions Based On Newly Discovered Evidence Should Have Been Granted

The Fourth Department determined the trial court should have set aside defendant’s criminal contempt convictions pursuant to Criminal Procedure Law 330.30(3) based upon newly discovered evidence (phone records calling into question complainant’s trial testimony).  The Fourth Department wrote:

To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence”….  People v Madison, KA 11-00313, 389, 4th Dept, 5-3-13

 

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Suppression Ruling Reversed—Pat Down Search Justified for Officer Safety​

Over two dissents, the Fourth Department reversed the grant of suppression by County Court.  The questioning of the defendant was instigated by the defendant’s staring at the officer as the officer was in his vehicle and the defendant was riding a bicycle.  The defendant ran his bicycle into a porch, fell and ran up the steps. At that point the officer approached him and asked him for identification.  The defendant kept putting his hand in his pocket after the officer asked him not to. The officer grabbed the defendant’s hand as defendant reached into his pocket.  As he did so, the officer touched an object he believed to be a handgun and he reached into the pocket and removed it.  The majority felt the officer was justified in grabbing the defendant’s hand and retrieving the object to protect his safety.  The dissenters felt the information available to the officer did not amount to reasonable suspicion of criminality such that a forcible stop and frisk was justified. People v Sims, KA 12-01247, 324, 4th Dept, 5-3-13

SUPPRESS, SEARCH, STREET STOP

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Trial Court’s Refusal to Allow Defense Witness to Be Called Required Reversal 

The Fourth Department (over two dissents) reversed defendant’s conviction and ordered a new trial because the defense was precluded from calling a witness.  The prosecution’s theory was that the defendant committed robbery, assault and burglary against the victim in retaliation for the victim’s informing the police defendant was growing marijuana in his house. It was anticipated the witness the defense was not allowed to call would testify that defendant accused him (the witness) of being the informant but did not assault or threaten him.  The Fourth Department explained:

It is well settled that “a defendant’s ‘right to present his own witnesses to establish a defense . . . is a fundamental element of due process of law’ ” …In fact, “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” …Thus, the testimony of a defense witness should not be prospectively excluded unless the offer of such proof is palpably in bad faith …. Instead, courts upon proper objection should “rule on the admissibility of the evidence offered” …. Here, the People do not suggest that the testimony of the proposed witness was offered in bad faith, and the court did not make such a finding at trial. Indeed, there is no basis in the record for concluding that the offer of proof was palpably in bad faith. The court therefore should have allowed the proposed witness to testify, whereupon the prosecutor could object to any testimony she deemed inadmissible or improper.  People v Arena, KA 12-01632, 179, 4th Dept, 5-3-13

RIGHT TO PRESENT A DEFENSE

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