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THE FAILURE TO GRANT PLAINTIFF’S REQUEST THAT THE JURY BE GIVEN AN INTERROGATORY ON THE THEORY THE SURGEON IMPROPERLY PERFORMED A PROCEDURE WAS REVERSIBLE ERROR ( SECOND DEPT).

The Second Department, ordering a new trial on one of the theories of negligence, determined plaintiff’s request that the jury be given an interrogatory should have been granted:

… [T]he Supreme Court erred in denying the plaintiff’s request that the jury be given an interrogatory asking whether [defendant] Lazzaro departed from good and accepted standards of medical practice by “the improper performance of a surgical procedure,” and therefore a new trial is required on this theory of negligence. “‘Jury interrogatories must be based on claims supported by the evidence'” … . “‘The trial court has broad discretion in deciding whether to submit interrogatories to the jury'” … . “However, where there is sufficient evidence to support a plaintiff’s cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory” … .

Here, the plaintiff introduced sufficient evidence at trial to support her theory that Lazzaro departed from good and accepted standards of medical practice by the manner in which he performed the surgery … . Lawrence v New York Methodist Hosp., 2024 NY Slip Op 05571, Second Dept 11-13-24

Practice Point: In this medical malpractice case, there was sufficient proof a defendant improperly performed a surgical procedure to warrant granting plaintiff’s request to give the jury an interrogatory on the issue. The denial of the request was deemed reversible error.

 

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FAILURE TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE PROVISIONS OF RPAPL 1304 REQUIRED REVERSAL OF SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to prove compliance with the notice requirements in RPAPL 1304 required reversal in this foreclosure action:

… [T]he plaintiff failed to demonstrate, prima facie, its strict compliance with RPAPL 1304. To that end, the plaintiff submitted an affidavit of Sarah L. Stonehocker, a vice president of loan documentation employed by the plaintiff’s loan servicer, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), with attachments, which were insufficient to establish compliance with RPAPL 1304. While Stonehocker averred that she had personal knowledge of Wells Fargo’s business records and that, according to the business records she reviewed, 90-day notices were served via certified and first-class mail at the subject property, Stonehocker did not attest that she was familiar with the standard office mailing procedures of LenderLive, LLC (hereinafter LenderLive), the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of the plaintiff. Thus, Stonehocker’s “affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed” … .

Moreover, Stonehocker’s affidavit failed to address the nature of Wells Fargo’s relationship with LenderLive and whether LenderLive’s records were incorporated into Wells Fargo’s own records or routinely relied upon in its business… . Thus, Stonerhocker’s affidavit failed to lay a foundation for the admission of a transaction report generated by LenderLive (see CPLR 4518[a] …). “Finally, the tracking numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304” … . U.S. Bank N.A. v Nahum, 2024 NY Slip Op 05581, Second Dept 11-13-24

Practice Point: Reversal of summary judgment because the bank failed to prove the RPAPL 1304 notice of foreclosure was properly mailed to defendant(s) is becoming less frequent, but there have been hundreds of reversals on this same ground over at least the last ten years.

 

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PROOF THAT PLAINTIFF WIFE ASSUMED FULL RESPONSIBILITY FOR HOUSEHOLD CHORES, COOKING, TRANSPORTIING THE CHILDREN, AND CARED FOR THE INJURED PLAINTIFF, WARRANTED A $40,000 AWARD FOR LOSS OF SERVICES; THE JURY HAD AWARDED $0 DAMAGES (FIRST DEPT).

The First Department, remanding for a new trial unless the parties stipulate to a damages award of $40,000 for loss of services, determined the jury’s award of $0 damages constituted a material deviation from reasonable compensation:

Plaintiff wife testified that after the injured plaintiff’s accident, she assumed full responsibility for household chores, cooking, and transportation for plaintiffs’ children, and also had to care for the injured plaintiff. This testimony is sufficient to support an award for past loss of services … . Lind v Tishman Constr. Corp. of N.Y., 2024 NY Slip Op 05540, First Dept 11-12-24

Practice Point: Consult this decision for some insight into the value of “loss of services” in a personal injury case.

 

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THERE WAS NO PROOF THE ORDER TO SHOW CAUSE WAS ACTUALLY DELIVERED TO THE INCARCERATED DEFENDANT; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the order to show cause was not properly served on the incarcerated defendant, requiring vacation of the default judgment:

“The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with” … . “The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void” … .

The order granting plaintiff summary judgment on his claims without opposition submitted by defendant and the related Special Referee order awarding damages are vacated. Defendant affirmed that he did not know of, or have access to, the summary judgment motion hand-delivered and served by plaintiff’s process server on a receptionist at the prison where defendant is incarcerated until after the order granting summary judgment was entered. Plaintiff’s service on the prison employee who assured that the motion would be given to plaintiff did not satisfy the court’s order to show cause approving alternative means of service that were applicable to the service of legal papers on the incarcerated defendant, and which required plaintiff to obtain at least some evidence from the prison that the served documents had, in fact, been delivered to the prisoner. The presumption of effective service arising from a valid affidavit of a process server does not apply here. The court approved an alternative means of service on the defendant incarcerated in a foreign prison, and plaintiff failed to comply. Therefore, defendant’s unrebutted claim that he did not receive the motion is not conclusory and requires vacatur of the default. Bacon v Nygard, 2024 NY Slip Op 05478, First Dept 11-7-24

Practice Point: Here service of an order to show cause upon the incarcerated defendant was not supported by any evidence the order to show cause was actually delivered to the defendant after it was given to a prison employee, Therefore the default judgment was vacated.

 

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ACCORDING TO THE MEDICAL RECORDS, PLAINTIFF PROVIDED HER TREATING PHYSICIAN WITH A DESCRIPTION OF HER SLIP AND FALL WHICH DIFFERED FROM HER DESCRIPTION IN HER DEPOSITION TESTIMONY; PLAINTIFF’S MOTION TO QUASH THE SUBPOENA SERVED ON THE PHYSICIAN SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to quash the subpoena served on plaintiff’s treating physician, Dr. Monfett, in this slip and fall case should not have been granted. The medical records revealed plaintiff told the treating physician she tripped and fell breaking up a fight in a subway station. Plaintiff testified she fell because of a broken sidewalk in front of defendant’s building. The court noted that the statement in the medical record may be inadmissible hearsay without the physician’s testimony linking the statement to the plaintiff:

Dr. Monfett’s deposition is material and necessary to the defense because plaintiff’s account of her accident to the doctor conflicts with her deposition testimony, and this discrepancy bears directly on defendants’ potential liability, as well as plaintiff’s credibility … . Furthermore, the deposition is necessary because plaintiff’s statements in the medical record likely would be inadmissible as hearsay without the doctor’s testimony attributing them to her … . Defendants were not required to demonstrate “special circumstances” warranting Dr. Monfett’s deposition because they seek to depose him “solely with regard to plaintiff’s account of the accident, not for any expert medical opinion regarding plaintiff’s diagnosis or treatment” … . Ogando v 40 X Owner LLC, 2024 NY Slip Op 05491, First Dept 11-7-24

Practice Point: Here defendants subpoenaed plaintiff’s treating physician because the statement attributed to plaintiff in her medical records differed from her description of the trip and fall in her deposition testimony. The defendants were not seeking to depose the physician as an expert concerning plaintiff’s diagnosis or treatment, but rather were focused on plaintiff’s apparently conflicting account of the accident, which would be inadmissible hearsay without the physician’s testimony.

 

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DEFENDANT, WHO WAS IN CHARGE OF RENTING OUT THE LIMOUSINE, FAILED TO KEEP THE BRAKES IN GOOD REPAIR; BRAKE FAILURE CAUSED A CRASH WHICH KILLED 20 PEOPLE; DEFENDANT’S MANSLAUGHTER CONVICTIONS AFFIRMED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, affirmed the manslaughter convictions of the defendant who was responsible for renting out a limousine which experienced catastrophic brake failure resulting in the deaths of 17 passengers, the driver and two pedestrians: The opinion is too detailed to fairly summarize here. Each argument raised by the defense was rejected after a thorough discussion of the relevant facts:

In October 2018, a stretch limousine for hire crashed at the bottom of a hill in Schoharie County, killing all 17 of its passengers, two pedestrians and the driver of the vehicle. An investigation revealed that the limousine had experienced catastrophic brake failure, attributable to protracted neglect of proper inspection, maintenance and repairs. During the relevant period, defendant was handling the day-to-day affairs of the business that rented out the limousine, including putting the vehicle into service on the day of the accident. Defendant was subsequently indicted on 20 counts of manslaughter in the second degree and 20 counts of criminally negligent homicide. Following his guilty plea to the lesser counts and later withdrawal of that plea, the matter proceeded to trial. A jury found defendant guilty of the manslaughter counts, and Supreme Court sentenced him to 20 concurrent prison terms of 5 to 15 years. * * *

The … proof was sufficient for the jury to conclude beyond a reasonable doubt that defendant was aware of and consciously disregarded the state of disrepair of the limousine’s braking system — including by avoiding proper inspection, neglecting appropriate maintenance and affirmatively rejecting necessary repairs. Given the circumstances, including the age of this oversized vehicle transporting passengers, the jury could find that defendant disregarded a substantial and unjustifiable risk of death. As the proof also made clear that such disregard was a gross deviation from the standard of conduct of reasonable persons in defendant’s situation, the People proffered legally sufficient evidence to establish the required mental state for second degree manslaughter.  People v Hussain, 2024 NY Slip Op 05513, Third Dept 11-7-24

Practice Point: Here defendant’s failure to keep the brakes of a rental limousine in good repair, leading to the deaths of 20 people when the brakes failed, demonstrated disregard of a substantial and unjustifiable risk of death, warranting the manslaughter convictions.

 

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FATHER’S ABUSE AND NEGLECT OF ONE CHILD, HANNAH D, SUPPORTED THE FINDING FATHER DERIVATIVELY ABUSED TWO OTHER CHILDREN, EVEN THOUGH ONE WAS AN INFANT AND THE OTHER HAD NOT BEEN BORN AT THE TIME OF THE ABUSE OF HANNAH D (SECOND DEPT).

The Second Department, reversing Family Court, determined the abuse of one daughter, Hannah D, supported a finding father derivatively abused two other children, even though one was an infant and the other had not been born at the time of the abuse of Hannah D:

… [A] preponderance of the evidence supported a finding of derivative abuse and neglect. The nature of the father’s direct abuse of Hannah D., the frequency of the father’s acts, and the circumstances of the father’s commission of the acts evidence fundamental flaws in the father’s understanding of the duties of parenthood. In addition, the father’s actions affirmatively created a substantial risk of physical injury which would likely cause impairment of the subject children’s health within the meaning of Family Court Act § 1012 (e)(ii), thus requiring a finding that the subject children have been derivatively abused and neglected … . The finding of derivative abuse and neglect is not undermined by the fact that at the time of the father’s abuse of Hannah D., one of the subject children was an infant and the other had not yet been born … . The evidence demonstrates that the father’s parental judgment and impulse control are so defective as to create a substantial risk to any child in his care … . Moreover, the father failed to establish by a preponderance of the evidence that the condition cannot reasonably be expected to exist currently or in the foreseeable future … . Matter of Davena A. (Christopher A.), 2024 NY Slip Op 05439, Second Dept 11-6-24

Practice Point: The abuse of one child can support a finding other children were derivatively abused, even if the other children were infants or had not been born at the time of the abuse of the eldest child.

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised a question of fact in this medical malpractice action alleging the failure to timely diagnose a stroke:

Where a plaintiff in a medical malpractice action alleges a failure to timely diagnose a condition, the plaintiff must show that the departures from the standard of care delayed diagnosis and decreased the chances of a better outcome or increased the injury … . The plaintiff submitted an affirmation of an emergency medicine physician who opined, inter alia, that the hospital’s staff failed to take a thorough history of the decedent’s symptoms and failed to provide an interpreter for that purpose in contravention of the applicable standard of care. The plaintiff also submitted an affirmation of a radiologist, who opined that a CT scan of the decedent’s brain performed on the day that the decedent presented to the hospital showed an infarct and that the hospital’s radiologist had failed to recognize this evidence of a stroke. The plaintiff’s emergency medicine expert opined that had the decedent been properly and timely diagnosed, treatment options were available, including the possible administration of tPA or the use of certain other medications.

Under these circumstances, the plaintiff raised triable issues of fact as to whether there was a departure from the standard of care and whether such departure decreased the chances of a better outcome or increased the decedent’s injuries … . Hanna v Staten Is. Univ. Hosp., 2024 NY Slip Op 05435, Second Dept 11-6-24

Practice Point: Here plaintiff’s expert raised a question of fact about whether the stroke diagnosis was timely and whether the delay decreased the chances of a better outcome.

 

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THE ATTORNEY’S “CERTIFICATE OF TRANSLATION” DID NOT INCLUDE SUFFICIENT DETAIL ABOUT THE ATTORNEY’S KNOWLEDGE OF THE SPANISH LANGUAGE; THEREFORE THE TRANSLATION OF PLAINTIFF’S AFFIDAVIT WAS NOT ADMISSIBLE AND SUMMARY JUDGMENT WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, reversing summary judgment in favor of plaintiff in this traffic accident case, determined the attorney’s “certificate of translation” was not sufficient to render plaintiff’s affidavit, written in Spanish, admissible:

… [P]laintiff submitted an affidavit in which he averred, among other things, that the “affidavit was translated to me from English to Spanish prior to my signing by a person who speaks Spanish as it is my native language and the language I understand best.” The plaintiff also submitted a certificate of translation by an associate attorney at his counsel’s law office in which the associate attorney affirmed, without elaboration, that she is fluent in English and Spanish and competent to translate documents from one language to the other. Under these circumstances, the conclusory certificate of translation does not contain sufficient detail concerning the extent of the associate attorney’s knowledge of the Spanish language. As such, the associate attorney’s certificate of translation was insufficient to state the associate attorney’s qualifications, rendering the plaintiff’s affidavit inadmissible (see CPLR 2101[b] …). Reyes v Underwood, 2024 NY Slip Op 05466, Second Dept 11-6-24

Practice Point: Here plaintiff’s affidavit in support of summary judgment was in Spanish. An attorney provided a “certificate of translation” which did not include sufficient detail about the attorney’s knowledge of the Spanish language. Therefore the affidavit was inadmissible.​

 

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THE PROOF DID NOT SUPPORT A FINDING THAT THE ASSAULT SECOND AND CRIMINAL POSSESSION OF A WEAPON THIRD CONVICTIONS WERE BASED ON SEPARATE AND DISTINCT ACTS, THEREFORE CONSECUTIVE SENTENCES WERE NOT WARRANTED; DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A NEW JERSEY CONVICTION WHICH WAS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined consecutive sentences were not supported by the proof and defendant should not have been adjudicated a second felony offender based upon a New Jersey conviction of burglary in the third degree which is not a felony under New York law:

The defendant contends that the Supreme Court erred in imposing consecutive sentences upon his convictions of assault in the second degree and criminal possession of a weapon in the third degree under count 7 of the indictment. Under Penal Law § 70.25(2), a sentence imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other . . . must run concurrently” … . Further, “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (id. [internal quotation marks omitted]). Here, the defendant correctly argues, and the People correctly concede, that because there was no designation of the alleged dangerous instrument used in committing the offense of assault in the second degree, the People failed to establish that this count and the charge of criminal possession of a weapon in the third degree under count 7 of the indictment were based upon separate and distinct acts … . Therefore, the court erred in sentencing the defendant to consecutive prison terms on the second-degree assault count and the criminal possession of a weapon in the third degree count with respect to his possession of pepper spray … .

Further, although the defendant failed to preserve for appellate review his contention that he was improperly sentenced as a second felony offender, we consider this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6] … ). The defendant’s prior conviction of burglary in the third degree in New Jersey does not constitute a felony in New York for the purposes of enhanced sentencing … . People v Frank, 2024 NY Slip Op 05452, Second Dept 11-6-24

Practice Point: If the record does not demonstrated two convictions were based separate and distinct acts, consecutive sentences are not available.

Practice Point: The New Jersey “burglary third degree” offense is not a felony under New York law and cannot be the basis for second felony offender status.

 

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