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Sanctions for Discovery Noncompliance and Spoliation

The First Department concluded preclusion and an adverse inference charge were appropriate discovery sanctions for defendant’s failure to produce documents and the apparent destruction of evidence:

Having been conditionally ordered to produce all correspondence …, and the transcripts of the audio tapes of meetings …, in order to successfully oppose plaintiff’s motion for discovery sanctions, defendant had to demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense in order to relieve itself from the dictates of that order … . Defendant did not satisfy these requirements. Defendant’s history of noncompliance with the court’s prior discovery orders supports the motion court’s finding that defendant’s actions were willful and contumacious …. The court providently granted plaintiffs’ motion for an order precluding defendant from offering any evidentiary proof with respect to the transcription of committee meetings and/or correspondence … and defendant in defense and/or opposition to plaintiffs’ prosecution of their bad faith claim at trial … .

Plaintiffs also made a prima facie showing that defendant had either intentionally or negligently disposed of the transcript of the … meeting and that the spoliation of this critical evidence compromised its ability to prosecute their bad faith action against defendant … . The motion court did not abuse its discretion in finding that certain evidence may have existed, but was not produced by defendant either because it was destroyed or withheld. Although plaintiffs moved to strike the answer, the court imposed the reasonable lesser sanction of an adverse inference charge, which will prevent defendant from using the absence of these documents at trial to its tactical advantage … .  General Motors Acceptance Corp. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 01774, 109668/06, 9272, 1st Dept. 3-19-13

 

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Failure to Object to Curative Instruction Precludes Appeal

A curative instruction regarding admitted evidence was requested by the defendant and the court gave the requested instruction to the jury.  The defendant did not object to the instruction and did not seek a mistrial.  Therefore, the curative instruction “must be deemed to have corrected the error to the defendant’s satisfaction,” precluding appeal on that issue.  People v Mendez, 47, KA 09-01194, 4th Dept. 3-15-13

 

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In SORA Context, Mild Mental Retardation Is Not a “Mental Disability”

In the context of a SORA determination, the Fourth Department noted that proof the victim had been diagnosed as mildly mentally retarded did not demonstrate the victim suffered from a “mental disability” within the meaning of the Correction Law:

We agree with defendant, however, that the People failed to present the requisite clear and convincing evidence that the victim of the underlying crime suffered from a “mental disability” (see generally Correction Law § 168-n [3]), and thus the court erred in assessing 20 points against him under risk factor 6. Although the People presented evidence that the victim was diagnosed as mildly mentally retarded, “[t]he law does not presume that a person with mental retardation is unable to consent to sexual [activity], . . . and proof of incapacity must come from facts other than mental retardation alone” (People v Cratsley, 86 NY2d 81, 86). Here, the remaining evidence in the record relating to the victim’s capacity failed to establish that she was “incapable of appraising the nature of [her] own sexual conduct” (id. at 87; see People v Easley, 42 NY2d 50, 55-57; cf. People v Jackson, 70 AD3d 1385, 1385, lv denied 14 NY3d 714).  People v Green, 254, KA 11-00973, 4th Dept. 3-15-13

 

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Violation of Probation Petition May Be Based Upon Hearsay

The Fourth Department determined that a “violation of probation” petition need not include non-hearsay allegation establishing every element of the violation charged:

…[A]lthough Family Court Act § 360.2 (2) specifically requires that VOP petitions in juvenile delinquency proceedings contain “[n]on[]hearsay allegations . . . establish[ing], if true, every violation charged,” there is no corresponding requirement in CPL article 410.  At most, CPL 410.70 (2) requires that the court “file or cause to be filed . . . a statement setting forth the condition or conditions of the sentence violated and a reasonable description of the time, place and manner in which the violation occurred.”There is no requirement that the statement contain nonhearsay allegations.

In any event, we agree with the People that, were there such a requirement in the CPL, the reasoning of Matter of Markim Q. (7 NY3d 405, 410-411) would apply such that the lack of nonhearsay allegations in the VOP petition would not constitute a jurisdictional defect. “A VOP petition, [unlike an original accusatory instrument], is not the foundation of the court’s jurisdiction. It does not commence a new proceeding, but is simply a new step in an existing one” (id. at 410). People v Julius, 175, KA 11-01384, 4th Dept. 3-15-13

 

 

 

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Old Age, Infirmity, Dementia and Medical Opinion Did Not Demonstrate Lack of Testamentary Capacity

In affirming the dismissal of objections to a will, the Fourth Department explained that proof the decedent suffered from old age, infirmity and dementia was not necessarily inconsistent with testamentary capacity, and, where there is direct evidence the decedent had the necessary ability to understand, even medical opinion is of minor importance:

“It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the [Surrogate] must look to the following factors: (1) whether []he understood the nature and consequences of executing a will; (2) whether []he knew the nature and extent of the property []he was disposing of; and (3) whether []he knew those who would be considered the natural objects of h[is] bounty and h[is] relations with them’ ” … .“ ‘Mere proof that the decedent suffered from old age, physical infirmity and . . . dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will w made’ ”… . “Where there is direct evidence that the decedent possessed the understanding to make a testamentary disposition, even ‘medical opinion evidence assumes a relatively minor importance’ ”….  In the Matter of Alibrandi, 136, CA 12-00963, 4th Dept. 3-15-13

 

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Suspended Sentence for Non-Payment of Support Could Not Be Revoked Without Hearing

The Fourth Department ruled that Family Court could not revoke a suspended jail sentence for non-payment of support by the father without giving the father the chance to rebut the allegations against him:

The Support Magistrate previously had issued an order “on consent” in November 2011 (November order), setting forth that the father admitted that he willfully violated the February order and finding him in willful violation of the February order. The Support Magistrate imposed a sentence of four months in jail but suspended the sentence on the condition that the father did not miss two consecutive support payments. *  *  *

Although the court had the discretion to revoke the suspension of the jail sentence, the court erred in doing so without first affording the father “an opportunity to be heard and to present witnesses . . . on the issue whether good cause existed to revoke the suspension of the sentence” (Matter of Thompson v Thompson, 59 AD3d 1104, 1105, quoting Family Ct Act § 433 [a] [internal quotation marks omitted]; see Ontario County Dept. of Social Servs. v Hinckley, 226 AD2d 1126, 1126). “No specific form of a hearing is required, but at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 AD3d at 1105 [internal quotation marks omitted]). “ ‘[I]t is well settled that neither a colloquy between a respondent and Family Court nor between a respondent’s counsel and the court is sufficient to constitute the required hearing’ ” (id.). Here, there was only the admission of nonpayment by the father’s attorney, which was insufficient (see id.), and there was no opportunity for the father to present evidence rebutting the allegations against him.  In the Matter of Davis v Bond, 281, CAF 12-00553, 4th Dept. 3-15-13

 

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Refusal to Allow Carrier to Call Witnesses Warranted Reversal

n an opinion by Justice Rose, the Third Department reversed the decision of the Workers’ Compensation Board because the Workers’ Compensation Law Judge refused to allow the carrier to further develop the record (by calling witnesses). The Court stated:  “It is axiomatic that both the claimant and the employer or its workers’ compensation carrier are entitled to introduce witnesses in compensation proceedings…”.  In the Matter of Mason v Glens Falls Ready Mix, et al, 514744, 3rd Dept. 3-14-13

 

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Records Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Unsealed in “Dangerous Sex Offender” Proceeding Pursuant to Mental Health Law

In a proceeding which determined respondent was a dangerous sex offender requiring confinement, the court ordered the unsealing of records related to three rapes and two robberies for which respondent was indicted in 1968.  The convictions of one count of rape and one count of robbery had been overturned because respondent was found to have been incompetent at the time he pled guilty. In finding the records of the overturned convictions were properly unsealed, the First Department determined that Mental Health Law 10.08 (c), which provides that the State is entitled to all records relating to the respondent’s commission or alleged commission of a sex offense, supersedes Criminal Procedure Law 160.50, which requires that the record of a criminal proceeding that is terminated in favor of the accused be sealed.  State v John S., 2013 NY Slip Op 01622, 9530, 30051/09m 1st Dept. 3-14-13

 

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Failure to Instruct Jury that Medical Practice Guidelines Did Not Set Forth the Applicable Standard of Care Required Reversal

The case turned on whether the defendant failed to recommend and perform a timely colonoscopy (the plaintiff, who had a history of colon polyps, contracted colon cancer).  At trial the defendant doctor was allowed to introduce in evidence guidelines published by the American Gastroenterological Association which included the recommended frequency of colonoscopies.  The plaintiff objected and requested a limiting instruction informing the jury that the guidelines “did not set forth the standards of care with regard to the diagnosis and treatment of plaintiff’s colon cancer.” The trial court gave a cursory limiting instruction at the time the guidelines were admitted, and told the jury another instruction would be forthcoming.  The trial court subsequently declined to give any further instructions on the issue.  In reversing the judgment for the defendant and ordering a new trial, the First Department wrote:

The court erred in failing to give the instruction that plaintiff requested. Although the trial court’s instruction informed the jury that it was to make its determination based on “all the evidence,” this instruction was not sufficient to guide the jury on how to apply the Guidelines to the facts before it. The court’s instruction as rendered failed to make clear to the jury that the Guidelines were simply recommendations regarding treatment, and thus, that compliance with the Guidelines did not, in and of itself, constitute good and accepted medical practice … . The trial court should have given the jury an instruction specifically stating that the Guidelines were not the same as standards of care and that the jury was to make its determination based on the particular circumstances of the case, not on the Guidelines alone. Introducing the Guidelines into evidence without the appropriate limiting instruction allowed the jury to infer that a physician need not exercise professional judgment with regard to individual patients, but could simply abide by the recommendations promulgated in the Guidelines.  Hall v Kiyici, 2013 NY Slip Op 01616, 9067, 23531/05, 1st Dept. 3-14-13

 

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Insufficient Proof to Support “Medical Neglect” Finding

The First Department reversed Family Court’s finding of medical neglect related to a five-month-old’s fractured femur.  Family Court accepted the proof that the baby, for the first time in his life, rolled over and fell off a couch when the father left him briefly to throw away a soiled diaper.  Family Court’s medical-neglect determination was based on testimony that the fracture “would cause the child evident pain…” and the length of time between the accident and when medical attention was sought.  The First Department noted the proof that swelling would not be immediately apparent and that a hairline fracture would not cause much pain until it progressed into a full fracture, as well as a video of the child showing no movement problems or signs of pain. In light of proof the child may not have exhibited symptoms of pain, the First Department determined the finding of neglect was not supported by a preponderance of the evidence. In re Amir L., 2013 NY Slip Op 01617, 9277-9278-9279, 1st Dept. 3-14-13

 

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