You are here: / Evidence
,

WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE PROCESS SERVER’S AFFIDAVIT, AN EVIDENTIARY HEARING ON WHETHER THE DEFENDANTS WERE SERVED WITH THE SUMMONS AND COMPLAINT IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants presented sufficient facts to rebut the presumption they were properly served with the summons and complaint, requiring a hearing:

“Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served” … Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service … . “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit, and necessitates an evidentiary hearing” … . “If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue”… .

Here, the process servers’ affidavits of service constituted prima facie evidence of valid service upon the defendants at the subject New York and Florida properties … . However, since the defendants’ sworn denial of receipt of process at both properties contained specific facts to rebut the statements in the process servers’ affidavits, the presumption of proper service was rebutted and an evidentiary hearing was required … . Aikens v Kouchnerova, 2023 NY Slip Op 03218, Second Dept 6-14-23

Practice Point: A defendant’s mere denial of receipt of a summons and complaint is not enough to rebut the presumption of valid service. But where a defendant avers specific facts which rebut the statements in the process server’s affidavit, an evidentiary hearing is required.

 

, ,

DEFENDANT PEDIATRIC PRACTICE SUBMITTED EXPERT EVIDENCE PLAINTIFF’S ADOLESCENT SCOLIOSIS COULD NOT HAVE BEEN DIAGNOSED UNTIL A YEAR AFTER PLAINTIFF LEFT DEFENDANT’S CARE; PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS THAT ISSUE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant pediatric practice in this medical malpractice action was entitled to summary judgment. Plaintiff alleged the failure to diagnose scoliosis. Defendant submitted evidence that adolescent scoliosis could not have been diagnosed until a year after plaintiff left defendant’s care. Plaintiff’s expert’s affidavit did not address that issue:

… S.V. [defendant pediatric practice] established its prima facie entitlement to judgment as a matter of law by submitting, among other things, an affirmation of a physician board certified in orthopedic surgery. The expert opined that the care and treatment rendered by S.V.’s employees did not deviate from accepted medical practice, and that the injured plaintiff’s adolescent idiopathic scoliosis condition could not have been diagnosed until he reached adolescence, which did not occur for at least one year after he left S.V.’s care, during which time the injured plaintiff tested negative for the condition … . In opposition, the evidence submitted by the plaintiffs, including an affirmation of a physician, failed to raise a triable issue of fact. The plaintiffs’ expert failed to address the specific assertion of S.V.’s expert that the injured plaintiff did not develop adolescent idiopathic scoliosis until after he left S.V.’s care, and was otherwise speculative, conclusory, and unsupported by the record … . Lagatta v Rivera, 2023 NY Slip Op 03227, Second Dept 6-14-23

Practice Point: In this medical malpractice action, plaintiff’s expert did not address defendant’s expert’s prima facie proof on a dispositive issue. In that circumstance, defendant is entitled to summary judgment.

 

, ,

CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION; DEFENDANT, IN ITS MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT ON PROXIMATE CAUSE; THEREFORE PLAINTIFF, IN OPPOSITION, WAS NOT REQUIRED TO RAISE A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should not have been granted. Plaintiff’s decedent was diagnosed with a degenerative spine but died hours later of a heart attack:

To prevail on a motion for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing either that there was no departure from accepted community standards of practice or that any alleged departure was not a proximate cause of the plaintiff’s injuries … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … . “Once a defendant makes a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact’ as to the elements on which the defendant met the prima facie burden” … . “‘Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions'” … . * * *

… [T]he plaintiff raised triable issues of fact by submitting the affirmation of an expert who opined, based upon his review of, inter alia, the decedent’s medical records, among other things, that the decedent exhibited symptoms consistent with a myocardial infarction when he presented to the hospital emergency department, as well as a large scar from a prior cardiac surgery, and that the defendants departed from the accepted standard of medical care by failing to perform a cardiac workup on the decedent at that time … . Contrary to the defendants’ contention, the opinions of the plaintiff’s expert were not vague or conclusory … . Moreover, the plaintiff was not required to raise a triable issue of fact as to the element of proximate cause, as the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law as to that element … . Kielb v Bascara, 2023 NY Slip Op 03226, Second Dept 6-14-23

Practice Point: In opposition to a defense motion for summary judgment in a medical malpractice action, plaintiff need not address issues on which defendant did not make out a prima facie case. Here defendant did not make out a prima facie case on the issue of proximate cause and plaintiff, therefore, did not need to address that issue in opposition.

Similar issues and result in Lopresti v Alzoobaee, 2023 NY Slip Op 03228, Second Dept 6-14-23 (failure to diagnose testicular cancer; inadequate attempt to address proximate cause by submitting an expert affidavit with reply papers).

 

,

DEFENDANT PROPERTY OWNER DID NOT PROVE WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON BLACK ICE WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate it did not have constructive notice of the black ice in the parking lot where plaintiff slipped and fell. Defendant did not submit evidence of when the area was last cleaned or inspected:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Accordingly, a property owner seeking summary judgment in a slip-and-fall case “has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged ice condition. The defendant provided no evidence regarding any specific inspection of the subject area prior to the plaintiff’s fall, and there are triable issues of fact as to whether the alleged ice condition had existed for a sufficient length of time before the accident such that the defendant could have discovered and corrected it … . Edwards v Genting N.Y., LLC, 2023 NY Slip Op 03223, Second Dept 6-14-23

Practice Point: To demonstrate a lack of constructive notice of a dangerous condition in a slip and fall case, a property owner must submit proof the area was inspected or cleaned close in time to the fall.

 

,

THE FLOOR IN THE BATHROOM WHERE PLAINTIFF SLIPPED AND FELL HAD RECENTLY BEEN MOPPED; THE DEFENDANT GROCERY STORE DID NOT PROVE THERE WAS AN ADEQUATE WARNING; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant grocery store’s motion for summary judgment in this slip and fall case should not have been granted. The bathroom floor where plaintiff fell had been mopped recently. There were questions of fact whether there was an adequate warning about the condition of the floor:

The evidence submitted by the defendants in support of the motion raised triable issues of fact as to whether Food Parade provided any warning about a potentially hazardous condition in the bathroom and whether any warning that was provided adequately gave notice that there was a hazardous condition inside the bathroom … . Darginsky v Food Parade, Inc., 2023 NY Slip Op 03222, Second Dept 6-14-23

Practice Point: Here plaintiff slipped and fell on a recently mopped floor. Defendant did not demonstrate there was an adequate warning of the condition. Defendant’s motion for summary judgment should not have been granted.

 

,

THE PROOF THAT THE SUBWAY TRACKS WERE USED AS A DANGEROUS INSTRUMENT WAS LEGALLY INSUFFICIENT; DEFENDANT’S ASSAULT SECOND CONVICTION VACATED (FIRST DEPT).

The First Department, vacating the assault second as a hate crime conviction, determined the proof did not support the theory that the subway tracks were used as a dangerous instrument:

The theory supporting this count was not that defendant intended to use the electrified third rail or a moving train as a dangerous instrument, or acted recklessly, but instead that defendant intended that the victim be injured by striking the tracks, alleged to be a “hard object.” The evidence failed to establish defendant’s intent to use the tracks in that manner. The People’s evidence, including the victim’s testimony and a blurry video, was consistent with the victim merely tripping and falling onto the tracks during an altercation with defendant … . Moreover, even if defendant merely caused the victim to fall on the tracks, that would not establish the specific intent required for this conviction. For similar reasons, we find that the verdict on this count was against the weight of the evidence. People v Ames, 2023 NY Slip Op 03205, First Dept 6-13-23

Practice Point: The proof that the victim tripped and fell onto subway tracks during an altercation did not demonstrate defendant’s intent to use the subway tracks as a dangerous instrument. The assault second conviction was vacated.

 

, , ,

DEFENDANT PHYSICIAN’S AFFIDAVIT DID NOT PROVE PLAINTIFF’S DECEDENT WAS INFORMED OF THE PRESENCE OF A FOREIGN BODY IN HIS PELVIS; THE AFFIDAVIT RELIED ON INSUFFICIENT EVIDENCE OF THE DEFENDANT’S CUSTOM OR HABIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s decedent’s primary care physician (PCP) did not prove whether or when the decedent was informed of the foreign object (a sponge) which was left in decedent’s pelvis after surgery. The PCP’s affidavit relied on custom or habit evidence, which was not sufficient. Therefore defendants did not prove whether or when decedent was informed of the foreign object. The complaint should not have been dismissed as time-barred:

“[E]vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again” … . “The applicability of this doctrine is limited to cases where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances . . . as opposed to conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances” … .

In order to establish the admissibility of the PCP’s habit evidence, defendants were required to establish that the PCP engaged in a routine practice of informing patients of the results of their diagnostic procedures and that his practice did not vary from patient to patient … . We conclude that defendants failed to do so. The affidavit of decedent’s PCP, submitted in support of the motions, explicitly concedes that the manner in which he informs patients of the results of diagnostic procedures varies. * * *

Inasmuch as defendants failed to establish that decedent was or should have been aware of the presence of the foreign body more than one year prior to commencing this action, the burden never shifted to plaintiff to aver evidentiary facts establishing that the limitations period had not expired, that it was tolled, or that an exception to the statute of limitations applied … . Baker v Eastern Niagara Hosp., Inc., 2023 NY Slip Op 03090, Fourth Dept 6-9-23

Practice Point: The evidence of defendant physician’s custom or habit of informing patients of the presence of a foreign object was insufficient. Therefore this medical malpractice action should not have been dismissed as time-barred. Defendant did not prove whether or when decedent was informed of the foreign object.

 

,

​FAMILY COURT SHOULD HAVE HELD A LINCOLN HEARING TO DETERMINE THE WISHES OF THE CHILD, WHO WAS ABOUT TO TURN 16, IN THIS CUSTODY MODIFICATION PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the court should have held a Lincoln hearing in this modification of custody proceeding:

We find that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes … . At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. “[A] Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision” …  . The wishes of this soon-to-be 16-year-old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent …  . It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns” … . Matter of Samantha WW. v Malek XX., 2023 NY Slip Op 03052, Third Dept 6-8-23

Practice Point: Here it was an abuse of discretion to fail to hold a Lincoln hearing to determine the wishes of the child, who was nearly 16, in this custody modification proceeding.

 

,

MOTHER’S PETITION FOR PERMISSION TO RELOCATE TO FLORIDA WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for permission to relocate to Florida with the children should have been granted:

“Taken as a whole, the mother’s testimony demonstrated . . . that the mother’s reasons for wanting to relocate were familial and economic and that the proposed relocation would likely enhance the lives of the mother and the child[ren] economically and emotionally” … . * * *

Although we recognize the importance of an ongoing relationship between the father and the children, the … proof reflects that the mother is, by far, the more involved parent and the primary caregiver, that the lives of the mother and the children would be enhanced by the relocation to Florida, that the children want to make that move, and that the mother is willing to facilitate significant visitation between the children and the father if it occurs. As such, Family Court’s determination denying the mother’s relocation request is not supported by a sound and substantial basis in the record … . Matter of Amber GG. v Eric HH., 2023 NY Slip Op 03059, Third Dept 6-8-23

Practice Point: Mother demonstrated she was the more involved parent and that she and her children would be better off financially and emotionally if she moved near her relatives in Florida. She further demonstrated she is willing to facilitate significant visitation with father. Her petition to relocate should have been granted.

 

, , ,

IN THIS MURDER TRIAL, THE PROSECUTOR REPEATEDLY BROUGHT UP UNCHARGED CRIMES WHICH WERE NOT MENTIONED IN THE PRETRIAL SANDOVAL PROCEEDINGS; THE JUDGE DID NOT INTERVENE; THE DEFENSE DID NOT OBJECT; CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s murder and weapons convictions, determined prosecutorial misconduct and the judge’s failure to intervene (there were no defense objections) required a new trial. The prosecutor repeatedly mentioned uncharged crimes which were not brought up in the Sandoval proceedings:

During their direct case, however, the People elicited testimony from three different witnesses about a prior bad act that had not been included in their Sandoval/Molineux proffer.  * * *

The prosecutor asked defendant whether the incident, which had occurred approximately a decade earlier, involved him shooting a rifle toward another person. Defendant denied this, and he was then questioned as to whether he tried to reload the rifle but was stopped by bystanders, which he also denied. The prosecutor then asked, “is that how you handle your confrontations, you grab a gun and just fire away?” The prosecutor continued the questioning in this vein by asking defendant whether it was “[k]ind of like . . . … [when] you just fired a warning shot out the window, correct?” The prosecutor subsequently cross-examined defendant relative to the incident involving him shooting someone off a motorcycle — which … was not included in the People’s Sandoval/Molineux motion. … [T]he prosecutor inquired as to whether defendant had stated in a recorded jail call that another inmate had urinated in his bed and that, if he caught who did it, he would stab that person in the neck with a pencil. * * *

… [T]he magnitude of the prosecutor’s misconduct was the fact that County Court made no effort to intervene or otherwise attempt to minimize or alleviate the prejudice being caused to defendant…. . People v Nellis, 2023 NY Slip Op 03046, Third Dept 5-8-23

Practice Point: Although the convictions were not against the weight of the evidence, prosecutorial misconduct and the judge’s failure to intervene warranted a new trial. The prosecutor repeatedly brought up uncharged crimes which were not ruled upon in the Sandoval proceedings.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy