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AFTER BEING TOLD THE PREMISES WAS NOT DEFENDANT’S RESIDENCE, THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE TO DETERMINE WHERE DEFENDANT RESIDED BEFORE RESORTING TO NAIL-AND-MAIL SERVICE; THE DEFAULT JUDGMENT AGAINST DEFENDANT VACATED (FIRST DEPT).

The First Department determined plaintiff failed to show defendant Lopez was properly served at the traverse hearing. The default judgment against Lopez was vacated. The decisions provides a rare opportunity to look inside a traverse hearing:

During the traverse hearing, plaintiff’s process server testified that he posted the summons and complaint on the door of the subject premises located at 713 Prospect Avenue in the Bronx (the premises), after making four attempts to serve Lopez there. However, the process server also testified that while he was attempting to personally serve Lopez at the premises, which his employer had represented was her residence, someone at the premises told him Lopez did not live there. This testimony established that the nail-and-mail service of process on Lopez was insufficient because plaintiff’s process server did not first comply with the due diligence requirement of CPLR 308(4) … . Upon obtaining information that Lopez did not reside at the premises, due diligence required the process server to investigate her whereabouts on the date of service and whether the service address was actually her dwelling place or usual place of abode before resorting to the alternative method of serving her with the summons and complaint by nail-and-mail service … . There is no evidence that the process server did so, and the affidavit of service simply states that the process server served Lopez at her “dwelling place/usual place of abode.” Casanova v Lopez, 2024 NY Slip Op 01269, Frist Dept 3-12-24

Practice Point: Here the process server was told defendant did not reside at the premises but he did not exercise due diligence (CPLR 308(4)) to find out where defendant did reside before resorting to nail-and-mail service. The default judgment against defendant was vacated.

 

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THE EVIDENCE WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF IN THIS LABOR LAW 240(1) FALLING-OBJECT CASE; BRICK WORK WAS BEING DONE ON THE BUILDING ABOVE WHERE PLAINTIFF WAS STANDING AND PLAINTIFF WAS STRUCK BY A FALLING BRICK; THERE WAS NO SAFETY NETTING TO PROTECT AGAINST FALLING OBJECTS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this falling object case. Plaintiff was unloading a truck in a designated “delivery zone” near the building where bricks were being drilled out to accommodate the installation of windows. Plaintiff was struck on the head by a brick which damaged his hard hat and injured his head:

In the context of falling objects, the risk to be guarded against is the unchecked or insufficiently checked descent of the object” … . It is settled law that a plaintiff establishes a prima facie entitlement to liability on a Labor Law § 240(1) “falling object” claim where he shows that he was struck by a falling object, that such object required securing for the purposes of the undertaking, and that the lack of adequate overhead protection failed to shield against the falling of such object and therefore proximately caused plaintiff’s injuries … . * * *

… [A] “… plaintiff’s prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him. . A plaintiff is not required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries. Further, [the general contractor’s project manager] identified a photograph of the brick that struck plaintiff, stating that the brick in the photo was consistent with the lone type of brick that was used on the faÇade of the building at the time of the incident … . Torres-Quito v 1711 LLC, 2024 NY Slip Op 01279, Frist Dept 3-12-24

Practice Point: The absence of safety netting to protect against falling objects was deemed the proximate cause of plaintiff’s injury from a falling brick in this Labor Law 240(1) case.

 

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THE HEARSAY MISBEHAVIOR REPORT, UNSUPPORTED BY ANY INVESTIGATION, DID NOT CONSTITUTE SUBSTANTIAL EVIDENCE OF PETITIONER’S GUILT; DETERMINATION ANNULLED (THIRD DEPT). ​

The Third Department, annulling the determination, held that the hearsay misbehavior report which was not substantiated by an investigation was insufficient to support guilty finding:

“[H]earsay misbehavior reports can constitute substantial evidence to support a determination of guilt so long as the evidence has sufficient relevance and probative value” … . Here, the correction officer who authored the misbehavior report testified at the hearing that no investigation into the allegation was conducted, explaining that the matter was reported toward the end of his shift and, therefore, there was no time for any investigation. Although the correction officer testified that the incarcerated individual who accused petitioner of making threats was “pretty convincing,” he offered no further basis or details as to why he found the report of the threat to be credible. Further, the incarcerated individual who made the allegations against petitioner, and who is identified in the misbehavior report, refused to testify at the hearing. As such, the only evidence to support the charge is the hearsay misbehavior report reciting nothing more than an unverified and uninvestigated accusation that petitioner threatened a fellow incarcerated individual. Under these circumstances, the misbehavior report does not constitute substantial evidence of petitioner’s guilt, and the determination must be annulled … . Matter of Alvarado v Annucci, 2024 NY Slip Op 01227, Third Dept 3-7-24

Practice Point: In inmate disciplinary hearings, a hearsay misbehavior report unsupported by any investigation does not constitute substantial evidence of guilt and will not support a guilty determination.

 

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IN A MEDICAL MALPRACTICE CASE, CONFLICTING EXPERT OPINIONS WHICH ARE EVIDENCE-BASED (I.E., NOT MERELY “CONCLUSORY”) REQUIRE DENIAL OF SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice case, determined plaintiff’s expert raised questions of fact about whether defendant surgeon failed to diagnose and treat a post-operative infection of plaintiff’s knee. Therefore, defendant’s motion for summary judgment should not have been granted. The decision is fact-specific and cannot be fairly summarized here. But the simple issue is: if experts on both sides of a med mal case come to conflicting conclusions which are evidence-based, summary judgment is inappropriate:

Based on the conflicting expert proof, plaintiff raised triable issues of fact … . Accordingly, defendants were not entitled to summary judgment. Kelly v Herzog, 2024 NY Slip Op 01137, Third Dept 2-29-24

Practice Point: In a med mal case, conflicting expert affidavits which are not “conclusory,” but rather are supported by evidence, preclude summary judgment.

 

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THE ALLEGATIONS BY THE CHILDREN WERE SUFFICIENTLY CORROBORATED TO SUPPORT A FINDING FATHER COMMITTED DOMESTIC ABUSE AND THEREBY NEGLECTED THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations made by the children about father’s violence against mother were sufficiently corroborated to support a neglect finding against father:

… [A] preponderance of the evidence established that the father neglected the children by perpetrating acts of domestic violence against the mother in their presence … .. The out-of-court statement of the oldest child, Roland M., was sufficiently corroborated. “The out-of-court statements of siblings may properly be used to cross-corroborate one another” … . “However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations” … “and be independent from and consistent with the other sibling’s out-of-court statement” (Matter of Ashley G. [Eggar T.], 163 AD3d at 965). Roland M.’s statement was corroborated by the out-of-court statement of his sister, Rosalee M., that she witnessed the father drag the mother out the door and choke her. Roland M.’s statement was also corroborated by the ORT received by the petitioner, which reported that Roland M. called the authorities during the domestic violence incident, that during the incident the father strangled the mother with his hands, that Roland M. had to intervene, and that the father was being charged with strangulation in the second degree … …

… [T]he evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition … . Matter of Roland M. (Manuel M.), 2024 NY Slip Op 01011, Second Dept 2-28-24

Practice Point: The issue here was whether the domestic abuse allegations by the children were sufficiently corroborated. The Appellate Division held that they were, giving some insight into what constitutes sufficient corroboration in this context.

 

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PLAINTIFF DID NOT MAKE A SUFFICIENTLY STRONG SHOWING TO SUPPORT DISCOVERY OF DEFENDANT’S PERSONAL TAX RETURNS; PLAINTIFF’S ATTORNEY’S FAILURE TO SUBMIT A GOOD FAITH AFFIRMATION WARRANTS DENIAL OF THE DISCOVERY MOTION; THE IMPOSITION OF SANCTIONS WAS NOT SUPPORTED BY EVIIDENCE OF DEFENDANT’S WILLFUL AND CONTUMACIOUS FAILURE TO COMPLY WITH A DISCOVERY ORDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) plaintiff did not make an adequate showing to warrant discovery of defendant’s personal tax returns; (2) plaintiff’s attorney’s affirmation did not meet the requirements of the “good faith” affirmation required by 22 NYCRR 202.7 (a), and (3) plaintiff did not make a showing sufficient to warrant discovery sanctions:

“Tax returns generally are not discoverable ‘in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources'” … . Here, [defendant] admitted that she deposited some of the rent money she collected into a personal account, which she claimed that she then used to pay expenses on the properties, whereas the plaintiff claimed that [she] used the money to pay her own personal expenses. The plaintiff failed to make a “strong showing” that [defendant’s] personal tax returns are indispensable to proving his claims and that evidence cannot be obtained from other sources, such as bank records … .

Pursuant to 22 NYCRR 202.7(a), all motions relating to disclosure must include “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion” … . * * * “Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7(c) warrants denial of the motion” … . …

“Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” … . Here, the plaintiff failed to make a clear showing of a willful and contumacious failure to comply with discovery demands. Cyngiel v Krigsman, 2024 NY Slip Op 00996, Second Dept 2-28-24

Practice Point. Before a court will order discovery of personal tax returns, the moving party must make a strong showing the information cannot be provided by other sources (not the case here).

 

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THE FAILURE TO SUBMIT THE RECORDS UPON WHICH THE REFEREE’S CALCULATIONS WERE BASED RENDERED THE REPORT INADMISSBILE HEARSAY IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing the confirmation of the referee’s report in this foreclosure action, determined the absence of the records relied upon for the referee’s computations rendered the report inadmissible hearsay:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “However, computations based on the review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … .

… [T]he referee’s report was improperly premised upon unproduced business records. In support of its motion, the plaintiff submitted an affidavit from an employee of the plaintiff, An Dang, which the referee relied upon in computing the amount due to the plaintiff. However, the record does not reflect that the plaintiff submitted the business records upon which An Dang or the referee relied in computing the total amount due on the mortgage, as well as payments for taxes, insurance, and other advances. Therefore, the referee’s findings were not substantially supported by the record … . U.S. Bank N.A. v Jong Shin, 2024 NY Slip Op 01029, Second Dept 2-28-24

Practice Point: In a foreclosure action, a referee’s report based upon records which were not submitted to the court is inadmissible hearsay.

 

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THE ROLLING LADDER LEFT IN THE AISLE OF DEFENDANT’S STORE WAS READILY OBVERSABLE, WHICH SPEAKS ONLY TO DEFENDANT’S DUTY TO WARN, NOT TO THE DUTY TO KEEP THE PREMISES SAFE; THE PROTRUDING BAR ON THE LADDER CREATED A POTENTIAL TRIPPING HAZARD; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant store’s motion for summary judgment in this trip and fall case should not have been granted. A rolling ladder had been left in an aisle of the store. The was a stabilizer bar which protruded out several inches on each side of the ladder. Plaintiff picked up something from the shelf, took one step back and tripped over the stabilizer bar as she turned. Supreme Court held the bar was readily observable and not inherently dangerous. The Third Department noted that the “readily observable” aspect of a condition goes to the duty to warn, but the duty to keep the area safe remains:

That the ladder was readily observable obviates defendants’ duty to warn of the ladder’s presence but not defendants’ continuing obligation to maintain the property in a reasonably safe condition … . For her part, plaintiff acknowledged seeing the ladder, but was unaware of the protruding stabilizer bar prior to her fall. Given the circumstances surrounding the incident, we cannot agree with Supreme Court’s assessment that the ladder was not inherently dangerous … . The record includes a photograph of the ladder which shows that the stabilizer bar protruded out several inches on each side. This feature, coupled with the placement of the ladder into the center of the aisle, presented a potential tripping hazard. Viewing the evidence in the light most favorable to plaintiff as the nonmoving party … , a question of fact remains as to whether defendants’ premises were maintained in a reasonably safe condition. Wolfe v Staples, Inc., 2024 NY Slip Op 00957, Third Dept 2-22-24

Practice Point: The fact that an object over which plaintiff tripped was readily observable goes to defendant’s duty to warn, but not to the duty to keep the premises safer. Here a protruding bar on a readily observable rolling ladder created a potential tripping hazard and raised a question of fact about defendant’s duty to keep the premises safe.

 

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ALTHOUGH THE SANITARY CODE DID NOT REQUIRE DEFENDANT SUMMER CAMP TO HAVE A LIFEGUARD, THE CODE DID REQUIRE THE CAMP TO OFFER SOME SUPERVISION OF PERSONS USING THE SWIMMING POOL; THEREFORE THE SUMMER CAMP OWED PLAINTIFF’S DECEDENT, WHO SUFFERED A MEDICAL EMERGENCY IN THE POOL, A DUTY OF CARE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant summer-camp-owners’ motion to dismiss the complaint in this swimming-pool-incident case should not have been granted. Plaintiff’s decedent suffered some sort of “medical emergency” in defendants’ swimming pool. Supreme Court dismissed the complaint, finding that the Sanitary Code did not require the camp to have a lifeguard and therefore defendants owed no duty to the plaintiff’s decedent. The Third Department held that, although the Sanitary Code did not require a lifeguard, it did require some level of supervision of persons using the pool:

While the CPR [lifeguard] requirement is specifically exempted for temporary residences [like defendants’ summer camp], the aquatic supervisor for a supervision level III [defendants had chosen to offer supervision level III] at a temporary residence must still possess the other enumerated qualifications (see 10 NYCRR 6-1.31 [c]). To find otherwise would render meaningless 10 NYCRR 6-1.23 (a) (3), which provides that if supervision level III is chosen then the temporary residence must adhere to the supervision level III requirements … . While it is true that 10 NYCRR 6-1.23 (a) (1) (i) exempts CPR certified staff [lifeguards] from a temporary residence that selects supervision level III, it plainly does not exempt these facilities from providing any supervision. As such, we find that Supreme Court erred in determining that defendants did not owe any duty to decedent and granting defendants summary judgment on this basis. Matter of Tamrazyan v Solway Props. LLC, 2024 NY Slip Op 00960, Third Dept 2-22-24

Practice Point: Here the duty owed by defendant summer camp to persons using the swimmer pool was spelled out in the Sanitary Code. Although the defendant summer camp, pursuant to the Code, was not required to provide a lifeguard, it was required to offer some supervision of persons using the swimming pool. Therefore the complaint should not have been dismissed on the ground that defendant did not owe a duty to plaintiff’s decedent, who suffered a medical emergency in the pool.

 

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UNDER THE UNIQUE FACTS OF THIS MED MAL TRIAL, DEFENDANTS DID NOT ATTEMPT TO SHIFT LIABILITY TO PHYSICIANS WHO HAD BEEN AWARDED SUMMARY JUDGMENT PRIOR TO TRIAL (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Warhit, determined defendant doctor and hospital in this med mal case did not attempt at trial to shift liability to the physician-defendants who had been awarded summary judgment before trial. The opinion is fact-specific and therefore will not be summarized here. The issue is discussed in detail and relevant authority is analyzed in some depth:

The principal question presented on this appeal is whether the defendants improperly attempted at trial to shift liability to certain physician-defendants who had been awarded summary judgment prior to trial. We answer this question in the negative, and find that the Supreme Court providently exercised its discretion in denying the application of the plaintiff … , in effect, for a new trial on this ground. We further conclude that the verdict was not contrary to the weight of the evidence. Angieri v Musso, 2024 NY Slip Op 00887, Second Dept 2-21-24

Practice Point: Under the specific facts brought out at trial in this med mal case, the plaintiff did not attempt to shift liability to doctors who had been awarded summary judgment prior to trial. The issue and the relevant authority are discussed in some detail.

 

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