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Medical Malpractice—Expert Opinion Can Be Based Entirely on Experience.

In affirming the denial of defendants’ motion for summary judgment, the First Department noted that an expert’s affidavit can be sufficient to raise a triable issue of fact even where the opinion is based entirely on the expert’s professional experience: “While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience …”.  Mitrovic v Silverman, 9282, 304369/09, First Dept. 3-7-13

 

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Spoliation of Evidence.

Plaintiff was injured in a fall from a chair.  Plaintiff’s notice of claim specifically requested preservation of the chair.  The defendant failed to preserve it.  Plaintiff testified the chair was not broken. In reversing summary judgment granted to the defendant, the First Department determined that an expert could have found a latent defect in the chair if it had been preserved.  Therefore the defendant was sanctioned by the preclusion of any testimony about the condition of the chair and an adverse inference charge to the jury at trial.  Gilchrist v City of New York, 8804, 103400/08, First Dept. 3-7-13

 

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Strip Search After Controlled Buy Upheld

A warrantless search of “every part of [defendant’s] vehicle” as well as a strip search of the defendant was upheld by the Third Department.  The search of the vehicle was justified by the same evidence which provided probable cause for the arrest (a controlled drug purchase by a confidential informant).  And the strip search was justified by the failure to find narcotics or buy money in the preliminary vehicle search. “[A] strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner… Some of the factors that may be considered in determining the reasonableness of such a search are the circumstances of the arrest, the defendant’s nervousness or unusual conduct, tips from informants, and ‘an itinerary suggestive of wrongdoing’…”.  People v Anderson, 104220, 104447, 3rd Dept. 3-7-13

STREET STOPS, SUPPRESSION, SUPPRESS, SEARCH

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“Plain View” Doctrine Does Not Require Certainty Seized Item Is Contraband

In affirming the denial of a suppression motion, the First Department determined that the chain of events observed by the arresting officer before the stop of defendant’s vehicle led to the proper application of the “plain view” doctrine for the seizure of contraband.  Defendant was seen going into a store (which was a frequent target of thieves) with a large empty bag and coming out of the store with the bag visibly heavier and fuller.  After a vehicle stop (the stop was not contested or discussed in the decision), the defendant gave answers to questions that contradicted what the officer had observed and the officer saw a large amount of over-the-counter medications in the bag.  In finding the seizure of the bag justified under the “plain view” doctrine, the Court said:  “The plain view doctrine does not require certainty or near certainty as to the incriminating nature of the items.  Instead, it ‘merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief …that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.  A practical, nontechnical probability that incriminating evidence is involved is all that is required’ …”.  People v Taylor, 9439, 6265/10, 1st Dept. 3-7-13​

STREET STOPS, SUPPRESS, SEARCH

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Failure to Determine if Witness Would Testify Required New Hearing

“It is well settled that an inmate has a conditional right to call witnesses at a disciplinary hearing provided their testimony would not jeopardize institutional safety or correctional goals… .  ‘[A] hearing officer’s actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain the requested witness’s testimony, constitutes a clear constitutional violation … .  On the other hand, where a good-faith reason for the denial appears on the record, this amounts to a regulatory violation requiring that the matter be remitted for a new hearing…”  Here the hearing officer’s failure to determine whether a retired correction officer could testify required a new hearing.  In the Matter of Morris-Hill v Fischer, 514093, 3rd Dept. 3-7-13

 

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Defective Handrail Could Have Been Factor in Plaintiff’s Injuries.

In reversing the trial court’s grant of a motion to set aside the verdict, the Second Department determined that the violation of an Administrative Code concerning stairway handrails could have been a factor in the injuries to the plaintiff. The plaintiff tried to stop his fall down a stairway but could not grab the handrail which was flush with the wall.  Expert testimony established that a handrail flush to the wall was dangerous and defective.  Cusumano v City of New York, 2012-00015, Index No 4207/01, Second Dept. 3-6-13

 

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Herniated Disc not “Serious Injury”—Insufficient Proof of Physical Limitations.

The Second Department reversed the trial court’s denial of a motion pursuant to CPLR 4404 to set aside the jury verdict.  The issue was whether the plaintiff had proven he sustained “serious injury” within the meaning of Insurance Law 5102(d).  The plaintiff had a bulging or herniated disk but did not provide objective proof of the extent or degree of the alleged physical limitations caused by the disc injury. In describing the criteria for analysis, the Court wrote:  “ ‘A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial…’ “.  Bacon v Bostany, 2011-08654, 2012-07634, Index No 997/08, Second Dept. 3-6-13

 

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10-Year-Old Plaintiff’s Testimony Should Have Been Considered—No Need for Hearing to Determine Testimonial Capacity

The trial court’s determination the testimony of the 10-year-old plaintiff at a 50-h hearing should not be considered because there was no hearing to determine the infant plaintiff’s testimonial capacity was reversed by the Second Department.  “None of the parties challenged the infant plaintiff’s capacity to testify.  Under the circumstances, neither the infant plaintiff’s age nor his responses to the questioning necessitated a hearing.”  Perez v City of New York, 2012-03711, Index No 3451/10, 2nd Dept. 3-6-13

 

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Witness Impeached With Attorney’s Statements.

“The Supreme Court properly permitted the People to impeach the testimony of a defense witness with a statement made by that witness’s former counsel at a plea proceeding… .The statement, which differed from the witness’s trial testimony, reasonably appeared to be attributable to the witness … “.  People vs Davis, 2010-11219, Ind. No. 921/09 Second Dept. 2-20-13

 

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Miranda Violations Mandate Suppression.

A police officer approached defendant who was in a parked car. The officer smelled a “strong odor of unburnt marijuana coming from the defendant’s vehicle’s open window.”  The officer asked if the occupants of the vehicle had “anything illegal.”  The defendant produced a small bag of marijuana.  The officer then told the defendant to get out of the vehicle “as he was now under arrest for unlawful possession of marijuana.”  The officer searched the vehicle and found two bags of marijuana under the driver’s seat.  When he asked the defendant if the bags of marijuana were his, he said “yes.”  A gun was also recovered in the search.  The defendant was taken to the police station where he was read his Miranda rights for the first time and he declined to speak with the detective. Two hours later the arresting officer told the defendant that if no one confessed to owning the gun, everyone in the vehicle would be “equally charged.”  The defendant then asked to speak to the detective.  He was read his Miranda rights again and confessed to owning the gun.  The Second Department suppressed the marijuana and the gun—the marijuana because the defendant was in custody and had not been read his rights at the time he was asked about it—and the gun because defendant had initially refused to speak with the police thereby asserting his right to remain silent.  Subsequent questioning was not proper.  People vs. Jackson, 2011-05745, Ind. No. 10-00130 Second Dept. 2-20-13

DeBour, street stops

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