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THE WRONG MAILING DATE IN AN AFFIDAVIT OF SERVICE CANNOT BE CORRECTED IN AN AMENDED AFFIDAVIT; MATTER REMITTED FOR A HEARING ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting for a hearing, determined a mistake in an affidavit of service of the summons and complaint (wrong mailing date) could not be corrected by an amended affidavit. Therefore a hearing on defendant’s motion to dismiss for lack of personal jurisdiction was necessary:

… [S]imilar to an erroneous address contained in an affidavit of service … , an erroneous mailing date “affects a defendant’s substantial right to notice of the proceeding against him or her, and may not be corrected by an amendment” … . Here, the second amended affidavit of service attempted to correct the admitted erroneous mailing date contained in the original affidavit of service and the first amended affidavit of service, and therefore should not have been considered … . HSBC Bank USA, N.A. v Rini, 2023 NY Slip Op 03856, Second Dept 7-19-23

Practice Point: A wrong address or a wrong mailing date in an affidavit of service cannot be corrected by an amended affidavit.

 

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ALTHOUGH PLAINTIFF FELL THROUGH THE FLOOR OF THE BUILDING UNDER RENOVATION WHEN HE WENT IN TO GET A TOOL FOR HIS WORK ON AN ADJACENT BUILDING, HE WAS PERFORMING DUTIES ANCILLARY TO THE CONSTRUCTION WORK AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; HEARSAY EVIDENCE IN THE MEDICAL RECORDS WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was hired to remove carpet from a building adjacent to the building to the building undergoing renovation (the carpet had been damaged by flooding in the building being renovated), Plaintiff went inside the building under renovation to get a tool when he fell through a temporary plywood floor: The court noted that opposition to a summary judgment motion based solely on hearsay does not raise a question of fact:

… [T]he plaintiff was assigned the task of removing damaged carpeting and flooring from a property adjacent to the subject premises, which allegedly had flooded as a result of renovations to the subject premises. When the plaintiff went inside the subject premises to get a tool, he fell through a temporary plywood floor, which consisted of several pieces of plywood placed on top of beams. …

… [P]laintiff established, prima facie, that he was at the subject premises, which was a construction site, in order to perform duties ancillary to the construction work, which was covered by Labor Law § 240(1) … . Further, the plaintiff established that he was exposed to an elevation-related risk for which no safety devices were provided, and that such failure was a proximate cause of his injuries … . In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiff was engaged in an enumerated activity, whether the plaintiff was recalcitrant in deliberately failing to use available safety devices, or whether his actions were the sole proximate cause of his injuries … . There is no evidence that anyone instructed the plaintiff that he was not to enter the subject premises or that he was to obtain the tools he needed to work on the adjacent property from somewhere else … . To the extent that the defendant contends that the plaintiff’s uncertified hospital records raise a triable issue of fact as how the accident occurred, “[w]hile hearsay may be considered in opposition to a motion for summary judgment, it is insufficient to raise a triable issue of fact where, as here, it is the only evidence upon which opposition to the motion was predicated” … . Estrella v ZRHLE Holdings, LLC, 2023 NY Slip Op 03848, Second Dept 7-19-23

Practice Point: Plaintiff was hired to remove carpet from a building adjacent to the building under renovation because flooding caused by the renovation damaged the carpet. Plaintiff fell through the floor of the building under renovation when he went in to get a tool. Plaintiff was doing work ancillary to the renovation and was therefore covered by Labor Law 240(1).

Practice Point: Hearsay standing alone will not raise a question of fact at the summary judgment stage.

 

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DEFENDANT WAS OUTSIDE HIS RESIDENCE WHEN HE WAS ARRESTED AND A PROTECTIVE SWEEP WAS CONDUCTED INSIDE DEFENDANT’S RESIDENCE; ITEMS OBSERVED IN THE RESIDENCE WERE LATER SEIZED PURSUANT TO A SEARCH WARRANT; BECAUSE THE POLICE HAD NO REASON TO SUSPECT OTHERS WERE PRESENT IN THE RESIDENCE, THE PROTECTIVE SWEEP OF THE RESIDENCE WAS NOT JUSTIFIED AND THE OBSERVED ITEMS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department held that items observed by the police during a “protective sweep” of his residence should have been suppressed. At the time of defendant’s arrest and the protective sweep defendant was outside of his residence. The police had no reason to believe others were inside the residence:

Upon a lawful arrest, the police may conduct a limited protective sweep of the premises, but this ‘is justified only when the police have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene’ … . The purported protective sweep conducted here was improper, as there were no articulable facts supporting a belief that any other person was present inside the trailer, let alone a person who could pose a threat to those on the scene … . Neither the search warrant nor the suppression hearing testimony reflected that anyone other than defendant was ever observed or believed to be inside the trailer, and there was nothing referenced that would serve to indicate that there was any lingering threat. People v Hadlock, 2023 NY Slip Op 03819, Third Dept 7-13-23

Practice Point: The defendant was arrested outside his residence and the police conducted a protective sweep of the residence which led to the seizure of contraband observed during the sweep. Because the police had no reason to believe anyone else was present, the sweep of the residence was not justified and the observed items should have been suppressed.

 

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PLAINTIFF’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE CASE WAS NOT CONCLUSORY OR SPECULATIVE AND RAISED A QUESTION OF FACT SUFFICIENT TO DEFEAT DEFENDANTS’ SUMMARY JUDGMENT MOTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the plaintiff’s expert evidence in this medical malpractice case was not conclusory or speculative and was sufficient to raise a question of fact. The decision is fact-specific and far too detailed to fairly summarize here:

… [T]he internist [plaintiff’s expert] specifically opined that earlier intubation …  would have produced a “70% chance of survival” by preventing the anoxic brain injury and allowing the sepsis, respiratory distress and ARDS symptoms to be treated. The internist also stated that earlier intubation would have made it “more likely than not” that decedent’s “clinical condition would have improved.” When giving plaintiffs the benefit of all reasonable inferences as the nonmoving parties, a rational juror could infer that decedent would have had a better chance at recovering from the necrotizing pancreatitis and related sepsis and ARDS if she had been intubated … prior to the second rapid response event … . Thus, we conclude that the internist’s affidavit was sufficient to raise a triable issue of fact as to causation, warranting denial of defendants’ summary judgment motion … . Sovocool v Cortland Regional Med. Ctr., 2023 NY Slip Op 03826, Third Dept 7-13-23

Practice Point: Although this med mal decision is fact-specific, it provides some insight into when an expert’s affidavit can be rejected as conclusory or speculative. The affidavit here was deemed sufficient to raise a question of fact.

 

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PLAINTIFF, WORKING FOR A SUBSIDIARY OF VERIZON, WAS INJURED LAYING A CABLE UNDER A CITY STREET; THE MAJORITY HELD THERE WERE QUESTIONS OF FACT WHETHER A FRANCHISE AGREEMENT BETWEEN THE CITY AND VERIZON AND/OR THE ISSUANCE OF A CITY PERMIT RENDERED THE CITY A PROPER DEFENDANT; A TWO-JUSTICE DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a two-justice dissent, determined the City was not entitled to summary judgment in this Labor Law case. Plaintiff was working for a subsidiary of Verizon (Empire City) laying a conduit in a trench in the street when a backhoe pushed a metal plate onto his foot. The City argued it was not an owner under the Labor Law, had no notice of the alleged dangerous condition, and there was no nexus between the City and and the work performed by Verizon. The majority held there were questions of fact about the existence of a franchise agreement between the City and Verizon, and whether a permit for the work had been issued by the City. Although the “lack of a nexus” argument was raised for the first time in reply, the majority held the issue raised a question of law and was properly considered by the motion court:

The witness’s lack of knowledge renders his testimony inconclusive and speculative as to whether Empire City was working without a permit on the day plaintiff was injured, warranting denial of summary judgment … . * * *

… [T]here remain triable issues of fact as to whether there existed a nexus between plaintiff and the City … . Furthermore, plaintiff sought certified copies of the franchise agreements for both Verizon and Empire City as part of discovery and defendant failed to provide them. Thus, the City’s challenge to the franchise documentation as being unauthenticated should have been rejected by the court, as copies of the documents remained in defendant’s exclusive possession and control but were not provided to plaintiff …  Powell v City of New York, 2023 NY Slip Op 03843, First Dept 7-17-23

Practice Point: The plaintiff was employed by a subsidiary of Verizon and was injured laying a conduit in a trench under a City street. The City claimed it had no nexus to the work done by Verizon. The majority held questions of fact about the existence of a franchise agreement between the City and Verizon and the issuance of a permit by the City precluded summary judgment in favor of the City. There was a two-justice dissent.

 

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DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO ALLOW THE EX PARTE INTERVIEW OF THE NONPARTY TREATING PHYSICIAN’S ASSISTANT ABOUT PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER SLIP AND FALL WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, in a matter of first impression, determined defendants’ motion to compel plaintiff to authorize an ex parte interview of the nonparty physician’s assistant (Molina) who treated plaintiff after her slip and fall was properly denied. Defendants sought to interview Molina about plaintiff’s statement concerning the cause of her fall, not about her medical treatment. The Second Department reasoned that allowing questions about the cause of the fall would constitute an improper expansion of the Court of Appeals ruling in Arons v Jutkowitz, 9 NY3d 393:

The Court of Appeals in Arons v Jutkowitz did not explicitly address the issue involved in this case, where the defendants’ counsel intends to interview a physician assistant about the reason that the plaintiff tripped, rather than about the plaintiff’s injury or her medical condition. Instead, the Court of Appeals’ decision in Arons v Jutkowitz distinguished between information about a medical condition that a plaintiff has placed in issue by commencing the action and information about other unrelated medical conditions which would still be protected under HIPAA. Furthermore, Arons v Jutkowitz involved three separate actions, all of which concerned allegations of medical malpractice, where causation is related to and intertwined with the issues of the patient’s medical condition and treatment … . Because the Court of Appeals did not explicitly rule on whether an Arons authorization would apply to information about causation and liability, where, as here, the plaintiff’s alleged injury was not caused by medical treatment but instead was caused by a trip and fall accident, granting the subject branch of the defendants’ motion would result in an extension of the scope of Arons. Yan v Kalikow Mgt., Inc., 2023 NY Slip Op 03817, Second Dept 7-12-23

Practice Point: Under Arons v Jutdowitz, 9 NY3d 292, a defendant in a personal injury case may be given permission to interview nonparty medical personnel about medical conditions plaintiff has put in controversy, as opposed to medical conditions protected by HIPAA. Here defendants sought to extend that ruling to compel plaintiff to allow an ex parte interview of the treating physician’s assistant concerning plaintiff’s statements about the cause of her slip and fall. The Second Department refused to so extend the Arons ruling.

 

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A LEGAL MALPRACTICE COMPLAINT WHICH ALLEGES CONCLUSORY AND SPECULATIVE DAMAGES WILL BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice complaint did not state a cause of action and should have been dismissed pursuant to CPLR 3211(a). Conclusory and speculative allegations of damages are not sufficient:

“‘To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages'” … . “To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” … . “‘Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative'” … . Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff’s allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is conclusory and speculative … . 126 Main St., LLC v Kriegsman, 2023 NY Slip Op 03758, Second Dept 7-12-23

Practice Point: A legal malpractice complaint does not state a cause of action if the damages allegations and conclusory are speculative.

 

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THE APPLICATION FOR A SEARCH WARRANT WAS BASED ON INFORMATION PROVIDED BY AN INFORMANT WHO WAS NOT DEMONSTRATED TO BE RELIABLE; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the firearm found in a search of his apartment should have been granted. The application for the search warrant was supported by uncorroborated information from an informant who was not shown to be reliable:

In support of the search warrant application, a police officer averred that he was informed by a confidential informant that the informant had observed the defendant with a handgun on three occasions, two of which were when the defendant was leaving the defendant’s apartment. As the defendant correctly contends, the police failed to establish that the information given by the confidential informant was reliable . The confidential informant’s statement was not under oath or against penal interests… , the informant had not demonstrated a “proven track record of supplying reliable information in the past,” and the only information given by the informant that the police independently corroborated prior to executing the search warrant was the fact that the defendant lived at the subject apartment and the description of the premises given by the informant … . People v Vincent, 2023 NY Slip Op 03808, Second Dept 7-12-23

Practice Point: If the application for a search warrant is based upon information from an informant, the application must demonstrate the informant and the information is reliable. Here there was no evidence the informant had provided accurate information in the past and the information was not sufficiently corroborated by other evidence.

 

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​IN A FORECLOSURE PROCEEDING, A REFEREE’S REPORT BASED UPON UNPRODUCED BUSINESS RECORDS SHOULD NOT BE CONFIRMED BY THE COURT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the referenced business records were not attached to the report:

“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. … Therefore, the referee’s findings were not substantially supported by the record … . Nationstar Mtge., LLC v Douglas, 2023 NY Slip Op 03798, Second Dept 7-12-23

Practice Point: In a foreclosure proceeding, if the business records upon which the referee’s report is based are not produced, the court should not confirm the report because the report is not “substantially supported by the record.”

 

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THE CHILDREN’S HEARSAY EVIDENCE AND KNOWLEDGE FATHER LEGALLY POSSESSED A FIREARM DID NOT SUPPORT THE NEGLECT FINDING; THE EVIDENTIARY CRITERIA FOR NEGLECT ARE EXPLAINED IN DETAIL (SECOND DEPT).

The Second Department, reversing Family Court, determined the hearsay statements of the children and the children’s knowledge father legally possessed a firearm were not sufficient to support the neglect finding against father. The proof requirements for neglect and the proper role of hearsay is discussed in some depth:

… [T]he hearsay evidence presented by the petitioner at the fact-finding hearing was insufficient to permit a finding of neglect (see Family Ct Act § 1046[a][vi] …). The hearsay statement of one child that she witnessed the father “attacking her mother in the bedroom” failed to provide any detail as to the alleged domestic violence and was not corroborated by any other evidence of domestic violence in the record (see Family Ct Act § 1046[a][vi] …). The hearsay statements of the children describing an incident in which the father yelled outside the children’s home and “reached for” or “grabbed at” one of the children on their way inside, which the children described as “uncomfortable,” “weird,” and “confus[ing],” causing one of them to be “a little anxious” and the other to “start[ ] to cry,” without more, was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired … . Furthermore, the children’s knowledge that the father legally possessed a firearm in another state was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired where there was no evidence that the father had threatened anyone with his firearm or otherwise connecting the firearm to the alleged incidents of neglect … . Matter of Kashai E. (Kashif R.E.), 2023 NY Slip Op 03784, Second Dept 7-17-23

Practice Point: Here the children’s hearsay evidence did not support the neglect finding against father. The proper use of hearsay in a neglect proceeding is clearly explained in some depth.

 

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