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THE NEGLIGENCE AND NEGLIGENT SUPERVISION AND HIRING CAUSES OF ACTION AGAINST THE WARREN COUNTY DEFENDANTS IN THIS CHILD VICTIMS ACT CASE ALLEGING ABUSE IN FOSTER CARE SHOULD HAVE BEEN DISMISSED; THE COMPLAINT DID NOT ADEQUATELY ALLEGE THE WARREN COUNTY DEFENDANTS WERE AWARE OF THE DANGER POSED BY PLAINTIFF’S FOSTER FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the negligence and negligent supervision causes of action against the Warren County defendants in this Child Victims Act case should have been dismissed. The complaint did not adequately allege the Warren County defendants were aware of the danger posed by plaintiff’s foster father:

… [W]e agree with the Warren County defendants that Supreme Court should have dismissed the negligence and negligent hiring, retention, supervision and/or direction causes of action as they relate to the conduct in Warren County. The complaint alleged that, in approximately 1979, plaintiff was placed in a foster home in Warren County, where he was sexually abused by his foster father on numerous occasions. Although we are cognizant that pleadings alleging negligent hiring, retention and supervision need not be pleaded with specificity … , the complaint merely asserts that the Warren County defendants “knew or, in the exercise of reasonable care, should have known” that the foster father “had the propensity to engage in sexual abuse of children.” Unlike in the counties of Albany and Cayuga — where plaintiff alleges that he reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition — the complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm. Because plaintiff failed to sufficiently plead that the Warren County defendants were provided notice of a dangerous condition present in the Warren County foster home, that claim could not survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) … , and Supreme Court should have dismissed those claims against the Warren County defendants. Easterbrooks v Schenectady County, 2023 NY Slip Op 03889, Third Dept 7-20-23

Practice Point: In order to adequately plead a county was negligent in placing plaintiff in a foster-care situation where plaintiff was abused, the complaint must allege facts demonstrating the county was aware of the danger posed by the foster parent.

 

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DEFENDANT DID NOT PROVE THE EXISTENCE OF A PRESCRIPTIVE EASEMENT OVER PLAINTIFF’S LAND; PLAINTIFF DID NOT PROVE THE DAMAGES ELEMENT OF TRESPASS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the requirements for a prescriptive easement over plaintiff’s property were not met and plaintiff did not prove the damages element of the trespass action. Plaintiff, however, was entitled to nominal damages for trespass:

… [O]ur independent review of the trial evidence reflects that defendant did not establish that the adverse use of the road continued for the requisite 10-year period. It follows that defendant’s counterclaim for a prescriptive easement must be dismissed and that, in the absence of that easement, [defendant] committed a trespass when he entered upon plaintiff’s property in 2004 … . * * *

… [P]laintiff failed to meet her burden of proving “[t]he lesser of the diminution in value of the property or the cost to repair” that would be the ordinary measure of damages for a trespass … or, for that matter, the loss of a specific number of trees for purposes of RPAPL 861 … . She was accordingly not entitled to an award of actual damages. Nevertheless, because “nominal damages can be presumed in an action for trespass to real property,” dismissal of her trespass claim was not warranted upon that basis … . Mastbeth v Shiel, 2023 NY Slip Op 03895, Third Dept 7-20-23

Practice Point: Here defendant did not prove 10 years of hostile use of plaintiff’s property and therefore did not demonstrate a prescriptive easement. Plaintiff did not prove the damages element of trespass and therefore was entitled only to nominal damages.

 

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ALTHOUGH THE PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS, PRECLUSION OF EXPERT EVIDENCE IN THIS MEDICAL MALPRACTICE CASE WAS TOO SEVERE A SANCTION; PLAINTIFF’S ATTORNEY FINED $5000 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined preclusion of evidence in this medical malpractice case as a sanction for failure to provide discovery was too severe a sanction. The appellate court imposed a monetary sanction on plaintiff’s attorney:

Supreme Court found that plaintiff’s trial counsel engaged in willful and contumacious conduct which delayed resolution of this case, and the record supports such a finding. Defense counsel requested an amended bill of particulars in May 2019 and an amended expert disclosure in October 2019. Despite a plethora of emails and letters from defense counsel, various conferences, scheduling orders and an order compelling compliance with discovery, plaintiff’s trial counsel failed to correct the deficiencies in the discovery disclosure prior to defendant filing a motion for sanctions. Under these circumstances, we agree with Supreme Court that the conduct exhibited by plaintiff’s trial counsel was willful and contumacious and that, upon such finding, the drastic sanction of preclusion was available … . * * *

Having considered the record as a whole, including the supplemental discovery disclosures, the affidavit of merit, the lack of prejudice to defendant and the nature and root of the misconduct, we vacate the August 2022 order that precluded plaintiff from proffering certain evidence and expert witnesses. Exercising our discretion, and given the strong public policy favoring resolution of actions on the merits, we accept the late amended bill of particulars as responsive to the outstanding demand … .. However, the willful and contumacious misconduct by plaintiff’s trial counsel cannot be condoned, as disregard of court orders hinders the efficient resolution of cases … . To dissuade this conduct from repeating, we impose a monetary sanction on plaintiff’s trial counsel in the amount of $5,000 … . M.F. v Albany Med. Ctr., 2023 NY Slip Op 03896, Third Dept 7-20-23

Practice Point: Here the appellate court determined the preclusion of evidence, including expert evidence, in this medical malpractice action was too severe a sanction for disobeying discovery orders. The attorney was fined $5000 for willful and contumacious conduct.

 

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​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted:

… Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with court-ordered discovery and the parties’ discovery stipulation and to respond to the defendants’ demands for a verified bill of particulars and discovery without an adequate excuse … . Contrary to the Supreme Court’s determination, the requirements of 22 NYCRR 202.7 were satisfied by the affirmations of the defendants’ attorneys, which, inter alia, adequately set forth counsels’ good faith efforts to resolve the discovery issues raised by the defendants’ motion … . Morales v Valeo, 2023 NY Slip Op 03861, Second Dept 7-19-23

Practice Point: Here plaintiff’s failure to provide discovery and a bill of particulars warranted dismissal of the complaint (by the appellate court) as an appropriate sanction.

 

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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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