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UNDER THE WORKERS’ COMPENSATION LAW PRESUMPTION IN SECTION 21, AN ASSAULT AT WORK IS EMPLOYMENT-RELATED AND COMPENSABLE ABSENT SUBSTANTIAL EVIDENCE THE ASSAULT WAS MOTIVATED BY PERSONAL ANIMOSITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, determined the presumption that injury from an assault at work is employment-related and compensable applied in this hospital-shooting case. A former hospital employee entered the hospital wearing a white medical coat and shot six people in a non-public area, killing one. Petitioner, a first-year resident, was one of the wounded. Petitioner did not know and had never had any contact with the shooter. The Appellate Division held that there was no connection between petitioner’s employment and the shooting and, therefore, the presumption the assault was work-related did not apply:

The Appellate Division essentially inverted Seymour’s “nexus” standard by requiring the Board to come forward with evidence of a nexus to employment. Instead … Seymour stands for the principle that “an assault which arose in the course of employment is presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity” (… see … Seymour, 28 NY2d at 409 [presumption cannot be rebutted by the inference of personal animosity “in the absence of substantial evidence to support it”]). To the extent the Appellate Division has read Matter of Seymour to require an additional affirmative showing of a “nexus” with employment when there is a workplace assault, such a showing is not required.

… [I]t is undisputed that the assault occurred in the course of Mr. Timperio’s [petitioner’s] employment, thereby triggering the WCL [Workers’ Compensation Law] § 21 (1) presumption. It is also undisputed that the record includes no evidence of the motivation for the assault or any indication of a prior relationship between the assailant and the claimant; Bello [the shooter] and Timperio never worked together, did not know each other, and had no prior communication. The Appellate Division therefore erroneously disturbed the WCB’s [Workers’ Compensation Board’s] determination that the claim is compensable. Matter of Timperio v Bronx-Lebanon Hosp., 2024 NY Slip Op 02723, CtApp 5-16-24

Practice Point: Here petitioner was shot at work by a former employee he did not know. The presumption that the assault was employment-related (section 21 of the Workers’ Compensation Law) applied because there was no evidence the assault was motivated by personal animosity. The injury from the assault was therefore compensable under the Workers’ Compensation Law.

 

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EVIDENCE FATHER POSSESSED COCAINE WITH INTENT TO SELL WAS NOT SUFFICIENT TO SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE FATHER USED DRUGS, EXPOSED THE CHILDREN TO DRUG-DEALING, OR STORED THE DRUGS WHERE THE CHILDREN COULD ACCESS THEM (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence that father possessed four ounces of cocaine did not support the neglect finding. There was no evidence the children were exposed to drug-dealing and the drugs were stored above where the children could access them:

Family Court’s finding that the father neglected the children was not supported by a preponderance of the evidence … . … [Father’s] intent to sell these illicit drugs was insufficient, without more, to warrant a finding of neglect. The record … contained no evidence establishing that the father engaged in drug transactions within the house or that he otherwise exposed the children to drug-trafficking activities … . Nor was there evidence adduced at the hearing as to whether the father regularly engaged in the sale of drugs, or the manner in which he intended to sell the cocaine. Moreover, although the officers discovered the cocaine within the father’s bedroom closet, it was located on a five- or six-foot-high shelf and was otherwise stored in a manner that was not readily accessible to the children … . Finally, there was no indication in the record that the father ever used cocaine or any other illicit drugs. Absent evidence that the father’s conduct caused the requisite harm to the children or otherwise placed them in imminent danger of such harm, the court should not have found that he neglected them … . Matter of Jefferson C.-A. (Carlos T.-F.), 2024 NY Slip Op 02701, Second Dept 5-15-24

Practice Point: Storing four ounces of cocaine in a closet where the children could not access it, without more, is not sufficient for a neglect finding against father. Although there was evidence father intended to sell the drugs, there was no evidence father used drugs or exposed the children to drug-dealing.

 

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THE DEFENSE EXPERT’S AFFIRMATION IN THIS MED MAL CASE DID NOT ADDRESS ALL THE MALPRACTICE ALLEGATIONS IN THE PLEADINGS; DEFENDANTS’ SUMMARY JUDGMENT MOTON SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendants’ medical expert in this medical malpractice case did not address all the malpractice allegations in the pleadings:

“Medical expert affirmations that fail to address the essential factual allegations in the plaintiff’s complaint or bill of particulars fail to establish prima facie entitlement to judgment as a matter of law” … . Bare conclusory assertions that a defendant did not deviate from good and accepted medical practice, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle a defendant to summary judgment … .

Here, the affirmation of the defendants’ fetal medicine expert was insufficient to establish the absence of any departure from good and accepted medical practice by [two defendants].. The affirmation failed to eliminate triable issues of fact as to whether the plaintiff was in preterm labor … , and whether the preterm delivery could have been prevented … . Neumann v Silverstein, 2024 NY Slip Op 02712, Second Dept 5-15-24

Practice Point: In a med mal case, if the defense expert does not address all the allegations of malpractice the defense motion for summary judgment should not be granted.

 

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THE CHILD’S FOSTER PARENTS WERE PERSONS LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND WERE ENTITLED TO A HEARING BEFORE THE CHILD WAS REMOVED FROM THEIR CARE (SECOND DEPT).

The Second Department, reversing Family Court, determined the foster parents, as persons legally responsible for the care of the child, were entitled to a hearing before the child was removed from their care:

Family Court Act § 1028(a) provides that “[u]pon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part . . . , the court shall hold a hearing to determine whether the child should be returned,” with two exceptions not relevant here … . Family Court Act § 1028(a) further provides that “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

The phrase “person legally responsible” “includes the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time” … . “The Court of Appeals, in interpreting Family Court Act § 1012(g), has held that ‘the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents'” … . Further, “a person may act as the functional equivalent of a parent even though that person assumes temporary care or custody of a child,” as long as “the care given the child [is] analogous to parenting and occur[s] in a household or ‘family’ setting” … . “Factors to be considered in determining whether an applicant is a person legally responsible for the care of a child include ‘(1) the frequency and nature of the contact, (2) the nature and extent of the control exercised by the [applicant] over the child’s environment, (3) the duration of the [applicant’s] contact with the child, and (4) the [applicant’s] relationship to the child’s parent(s)'” … .

Here, the evidence in the record was sufficient to support a determination that the foster parents were persons legally responsible for the care of the child. The evidence demonstrated that the child, eight years old at the time of the foster parents’ application, had been under the foster parents’ care for most of his life. . Matter of Samson R. (Christopher R.), 2024 NY Slip Op 02710, Second Dept 5-15-24

Practice Point: Here the foster parents had cared for the eight-year-old for most of his life. They were “persons legally responsible for the care of the child” and therefore were entitled to a hearing before removal of the child.

 

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PLAINTIFF RAISED A QUESTION OF FACT RE: THE NEGLIGENT APPLICATION OF FLOOR WAX IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff raised a question of fact whether the area where she slipped and fell was excessively waxed:

… [P]laintiff raised an issue of fact as to “the negligent application of wax . . . by evidence that a dangerous residue of wax was present” … . Plaintiff testified that the waxy substance on the floor was on the side of her clothing and that where she fell there was an indentation into the substance. This testimony is sufficient to establish an issue of fact as to whether wax was negligently applied … . This evidence “conflicted with [defendants’] assertions that the area was never waxed, creating triable issues of fact precluding the grant of summary judgment” … . Scaccia v Brookfield Props. One WFC Co., LLC, 2024 NY Slip Op 02677, First Dept 5-14-23

Practice Point: The negligent application of floor wax can result in liability for a slip and fall.

 

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IN THIS CAR ACCIDENT CASE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE RELEASE SHE SIGNED WAS THE RESULT OF MUTUAL MISTAKE CONCERNING THE EXTENT OF HER INJURIES (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether the release signed by plaintiff after a car accident was the result of mutual mistake. At the time plaintiff signed the release it appeared her injuries, including whiplash, involved only her cervical, thoracic and lumbar regions. After signing the release she was diagnosed as having suffered a mild traumatic brain injury:

… [I]nasmuch as the submissions indicate that plaintiff had been diagnosed with neck and back injuries only at the time she signed the release and that plaintiff’s symptoms were not medically attributed to postconcussive syndrome until after the execution of the release with additional uncertainty in the interim, we conclude that plaintiff raised an issue of fact whether, at the time the release was executed, the parties were under “[a] mistaken belief as to the nonexistence of [a] presently existing injury,” i.e., a traumatic brain injury … . We therefore … reinstate the complaint. DiDomenico v McWhorter, 2024 NY Slip Op 02634, Fourth Dept 5-10-24

Practice Point: A release signed when both parties are not aware of an existing injury may be invalid as the result of mutual mistake.

 

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PLAINTIFF ALLEGED THE AIR BAG UNEXPECTEDLY DEPLOYED, CAUSING INJURY; DEFENDANT FORD’S EXPERT EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION DID NOT DEMONSTRATE THE CAUSE OF THE DEPLOYMENT WAS NOT ATTRIBUTABLE TO A PRODUCT DEFECT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this “unexpected-air-bag-deployment” case:

Just prior to the airbag’s deployment, decedent’s vehicle had collided with a deer. After the collision, decedent parked his vehicle on the side of the road, then he looked to his right to check on his passengers in the vehicle and looked to the left to see the deer. At that point the airbag deployed. * * *

It is well settled that a strict products liability cause of action may be established by circumstantial evidence, and thus a plaintiff ” ‘is not required to prove the specific defect’ ” in the product … . “In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to defendants” … . ” ‘Proof that will establish strict liability will almost always establish negligence’ ” … . * * *

Ford Motor’s expert failed to assert that there existed a likely cause of the unexpected deployment of the airbag that was “not attributable to any defect in the design or manufacturing of the product,” and therefore Ford Motor failed to meet its burden on its motion with respect to the strict products liability and negligence causes of action … . Keem v Ford Motor Co., 2024 NY Slip Op 02632, Fourth Dept 5-10-24

Practice Point: Defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this products liability/negligence action based upon the alleged unexpected deployment of an air bag.

 

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THE SHOOTER, WHO WAS NEVER FOUND OR IDENTIFIED, WAS A PASSENGER IN A CAR DRIVEN BY DEFENDANT WHEN THE SHOOTER SHOT AT AND MISSED A PERSON SITTING IN A PARKED CAR; THE ATTEMPTED MURDER AND ASSAULT CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s attempted murder and assault convictions as against the weight of the evidence, over a two-justice dissent, determined there was no evidence defendant shared the shooter’s intent. It was alleged defendant was the driver when his passenger shot at and missed a person sitting in a parked car. The shooter was never identified. There was no evidence defendant knew the victim:

… [T]he question is whether defendant shared the shooter’s intent to kill or seriously injure the victim. Even assuming, arguendo, that the conviction is supported by legally sufficient evidence … , we conclude that the verdict is against the weight of the evidence … . Viewing the evidence in light of the elements of those crimes as charged to the jury … and considering that “a defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … , here the People failed to prove beyond a reasonable doubt that defendant “shared the [shooter’s] intent to kill” or cause serious physical injury to the victim, or the intent to use the gun unlawfully against the victim … , particularly given the lack of evidence “that defendant knew that the [shooter] was armed at the time defendant transported him” … .

From the dissent:

Defendant drove the vehicle while the shooter fired several times at the parked vehicle in which the victim was sitting in the front passenger seat, and the victim heard someone say “yo” as soon as the gunshots started. The police found the parked vehicle’s driver’s side windows shattered and shell casings on the ground next to the vehicle. A permissible and eminently reasonable inference from the facts was that defendant stopped or slowed down the vehicle in order to allow the shooter to fire several shots at the parked vehicle … . In other words, defendant shared the shooter’s intent to use a gun to kill or cause serious physical injury to the victim and “intentionally aid[ed]” the shooter to engage in such conduct (Penal Law § 20.00). In addition, defendant fled from the scene after the gunshots were fired and collided with another vehicle. The driver of that vehicle testified that, when she asked defendant to exchange paperwork and information, he told her to “move the f*** out of the way,” before he pushed her vehicle with his vehicle and drove off again. People v Lathrop, 2024 NY Slip Op 02618, Fourth Dept 5-10-24

Practice Point: Here the appellate court found the evidence of attempted murder legally sufficient but the verdict against the weight of the evidence (a difficult concept).

 

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FAMILY COURT SHOULD NOT HAVE SUSPENDED FATHER’S VISITATION WITHOUT MAKING FINDINGS OF FACT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should not have suspended father’s visitation without making findings of fact:

The father … contends that the court failed to make any factual findings whatsoever to support the determination to suspend the father’s visitation with the child, and that the matter should be remitted to allow the court to make such findings. We agree. It is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its determination … , either with respect to whether there had been a change in circumstances … or the relevant factors that it considered in making a best interests of the child determination … . “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the amended order and remit the matter to Family Court to make a determination on the petition including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Miller v Boyden, 2024 NY Slip Op 02648, Fourth Dept 5-10-24

Practice Point: Here Family Court should not have suspended father’s visitation without making findings of fact because appellate review is impossible; matter remitted.

 

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THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence submitted by plaintiff’s expert, a registered nurse, should not have been rejected because she was not a physician. Plaintiff’s decedent was a nursing-home patient with dementia who fell. The registered nurse was qualified to offer opinion evidence about measures to prevent elderly patients from falling:

Supreme Court disregarded plaintiff’s nursing expert’s opinion because she is not a medical doctor. However, the standard of care at issue clearly falls within the duties and expertise of a registered nurse. At the defendant nursing home, patient assessments were performed by registered nurses and evaluated by a team which included registered nurses. The nursing expert’s curriculum vitae demonstrates that she has a Bachelor of Science in nursing from the University of the State of New York, is licensed as a registered nurse in New York, and has worked in nursing since 1980. In particular, she has over fifteen years of experience conducting plan of care assessments for high-risk nursing home patients. Therefore, plaintiff’s nursing expert demonstrated that she has the requisite experience and expertise to opine as to the proper medical standard for preventing falls in elderly patients with dementia residing in skilled nursing facilities and whether defendant deviated from that standard … .

Furthermore, challenges regarding an expert witness’s qualifications affect the weight to be accorded the expert’s views, not their admissibility … . Rodriguez v Isabella Geriatric Ctr. Inc., 2024 NY Slip Op 02608, First Dept 5-9-24

Practice Point: Here the registered nurse was qualified to offer an opinion on the measures necessary to prevent geriatric patients from falling.

Practice Point: An expert’s qualifications speak to the weight of the opinion evidence, not its admissibility. Here the registered nurses opinion should not have been rejected because she was not a physician.

 

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