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Insufficient Proof to Support “Medical Neglect” Finding

The First Department reversed Family Court’s finding of medical neglect related to a five-month-old’s fractured femur.  Family Court accepted the proof that the baby, for the first time in his life, rolled over and fell off a couch when the father left him briefly to throw away a soiled diaper.  Family Court’s medical-neglect determination was based on testimony that the fracture “would cause the child evident pain…” and the length of time between the accident and when medical attention was sought.  The First Department noted the proof that swelling would not be immediately apparent and that a hairline fracture would not cause much pain until it progressed into a full fracture, as well as a video of the child showing no movement problems or signs of pain. In light of proof the child may not have exhibited symptoms of pain, the First Department determined the finding of neglect was not supported by a preponderance of the evidence. In re Amir L., 2013 NY Slip Op 01617, 9277-9278-9279, 1st Dept. 3-14-13

 

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Punitive Damages Award Not Recoverable in Subsequent “Bad Faith Failure to Settle” Case Against Insurer

A judgment which included punitive damages was assessed against an insured.  The insured sued the insurance company for a bad-faith failure to settle the libel and slander claims within policy limits.  The First Department determined the insurance company was entitled to summary judgment because public policy precludes the insured from recovering the punitive damages portion of any judgment resulting from the insurer’s bad faith.  The Court also noted that the public policy argument could be raised for the first time on appeal because no new facts were alleged and only purely legal arguments were made.  Seldon v Allstate Ins. Co., 2013 NY Slip Op 01628, 9542, 116217/08, 1st Dept. 3-14-13

 

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Medical Malpractice—Expert Opinion Can Be Based Entirely on Experience.

In affirming the denial of defendants’ motion for summary judgment, the First Department noted that an expert’s affidavit can be sufficient to raise a triable issue of fact even where the opinion is based entirely on the expert’s professional experience: “While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience …”.  Mitrovic v Silverman, 9282, 304369/09, First Dept. 3-7-13

 

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Spoliation of Evidence.

Plaintiff was injured in a fall from a chair.  Plaintiff’s notice of claim specifically requested preservation of the chair.  The defendant failed to preserve it.  Plaintiff testified the chair was not broken. In reversing summary judgment granted to the defendant, the First Department determined that an expert could have found a latent defect in the chair if it had been preserved.  Therefore the defendant was sanctioned by the preclusion of any testimony about the condition of the chair and an adverse inference charge to the jury at trial.  Gilchrist v City of New York, 8804, 103400/08, First Dept. 3-7-13

 

Res Ipsa Loquitur Need Not Be Pled and Should Have Been Applied.

Plaintiff received an electric shock when he stepped on a metal manhole cover while crossing a street.  Defendant was under contract with the city and was doing electrical work in the vicinity of the manhole.  In reversing the trial court’s grant of summary judgment to the defendant, the First Department discussed the concept of res ipsa loquitur:

“Res ipsa loquitur is not a separate theory of liability but merely ‘a common-sense application of the probative value of circumstantial evidence’ … . A plaintiff’s failure to specifically plead res ipsa loquitur does not constitute a bar to the invocation of res ipsa loquitur where the facts warrant its application … . The plaintiff’s failure here to plead the doctrine in his complaint does not render it unavailable to him … . …  To apply res ipsa loquitur, a plaintiff must establish that (1) the accident [is] of a kind that ordinarily does not occur in the absence of negligence; (2) the instrumentality or agency causing the accident [is] in the exclusive control of the defendants; and (3) the accident must not be due to any voluntary action or contribution by plaintiff ….’ .”  Smith v Consolidated Edison …, 9201, 110504/06, First Dept. 3-7-13

 

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“Plain View” Doctrine Does Not Require Certainty Seized Item Is Contraband

In affirming the denial of a suppression motion, the First Department determined that the chain of events observed by the arresting officer before the stop of defendant’s vehicle led to the proper application of the “plain view” doctrine for the seizure of contraband.  Defendant was seen going into a store (which was a frequent target of thieves) with a large empty bag and coming out of the store with the bag visibly heavier and fuller.  After a vehicle stop (the stop was not contested or discussed in the decision), the defendant gave answers to questions that contradicted what the officer had observed and the officer saw a large amount of over-the-counter medications in the bag.  In finding the seizure of the bag justified under the “plain view” doctrine, the Court said:  “The plain view doctrine does not require certainty or near certainty as to the incriminating nature of the items.  Instead, it ‘merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief …that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.  A practical, nontechnical probability that incriminating evidence is involved is all that is required’ …”.  People v Taylor, 9439, 6265/10, 1st Dept. 3-7-13​

STREET STOPS, SUPPRESS, SEARCH

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Condominium Unit Owner Has Common Law Right to Examine Books

Although a condominium unit owner is not entitled under the Business Corporation Law to examine the books and records of a condominium, an unincorporated association governed by the Real Property Law, there is a common law right of a stockholder to examine the books and records of a corporation. Because the unit owners of a condominium own the common elements of the condominium and are responsible for common expenses, the common law right of a stockholder to examine the books applies to a unit owner of a condominium.  Pomerance v McGrath, 650129/11, 9454, 1st Dept. 3-7-13

 

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Court Has No Authority to Grant Application to File Late Notice of Claim After Statute of Limitations Has Expired.

Plaintiff filed a notice of claim and commenced a suit against the City of New York.  The complaint was amended to add the New York City Transit Authority as a defendant.  The First Department affirmed the dismissal of the complaint against the Transit Authority because no notice of claim against the Transit Authority had been filed and the motion to file a late notice of claim was made more than one year and 90 days after the incident. Martinez v City of New York, et al, 9428, 16403/03, First Dept. 3-5-13

 

 

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Failure to Request Court-Permission to Re-Present Charges to a Grand Jury Is Reversible Error Which Survives a Guilty Plea

The First Department held that as long as the prosecutor presents evidence regarding potential charges to a grand jury, court-permission to re-present the charges is required.  “The critical question is whether the grand jury failed to indict after a full presentation of the case.”  The fact that the prosecutor “withdrew” the charges from the grand jury’s consideration, or allowed the grand jury to vote to “take no affirmative action” on them, is of no consequence.  The prosecutor’s failure to request and receive court-permission to re-present is a reversible error which survives a guilty plea.  People v Dinkins, 8603, 1443/10, 1st Dept. 3-5-13

 

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State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

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