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CHILD’S STATEMENT ABOUT AGE-INAPPROPRIATE SEXUAL CONDUCT NOT CORROBORATED; NEGLECT ALLEGATIONS AGAINST MOTHER NOT PROVEN (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined that mother’s child’s statement about age-inappropriate sexual conduct involving mother’s child and a non-family child was not corroborated and therefore the neglect allegation against mother was not proven:

Although the testimony of the two caseworkers established that the disclosure reflected age-inappropriate knowledge of sexual matters, petitioner failed to submit “[a]ny other evidence tending to support” the reliability of the youngest child’s statements apart from the disclosure itself … . …

The two caseworkers who testified on behalf of petitioner asserted that they utilized forensic interviewing techniques to avoid leading the youngest child during their interviews, but petitioner failed to offer any evidence establishing that either caseworker was qualified to give expert validation testimony in such matters … . …

An admission by the mother “that she had heard that the purported prior incident occurred in the manner stated by others . . . is in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement’ ” … . …

… [P]etitioner offered no admissible evidence regarding the time frame when the mother became aware of that incident. Absent such evidence, we cannot conclude that the mother had sufficient time to act but failed to appropriately do so. …

We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the mother neglected the subject children by failing to act as ” a reasonable and prudent parent’ ” would have acted under the circumstances … . Matter of Carmellah Z. (Casey V.), 2019 NY Slip Op 08298, Fourth Dept 11-15-19

 

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SHIFTING BURDENS OF PROOF AT THE SUMMARY JUDGMENT STAGE IN MEDICAL MALPRACTICE ACTIONS CLARIFIED; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED; PLAINTIFF’S FAILURE TO ADDRESS THEORIES OF LIABILITY REFUTED BY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CONSTITUTED AN ABANDONMENT OF THOSE THEORIES (FOURTH DEPT).

The Fourth Department, reversing and modifying Supreme Court in three related appeals, clarified the respective burdens to be met at the summary judgment stage in a medical malpractice action. Applying those burdens, the Fourth Department found that summary judgment should have been awarded to the defendants in two of the three appeals. The court noted that plaintiff’s failure to address certain theories of liability refuted in defendant’s motion for summary judgment constituted abandonment of those theories. The facts are too complex to fairly summarize here. With respect to the burdens of proof, the court explained:

We note at the outset that the facts of this case provide the opportunity for this Court to review the appropriate standard for burden-shifting in medical malpractice cases. It is well settled that a defendant moving for summary judgment in a medical malpractice action ” has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby’ ” (O’Shea v Buffalo Med. Group, P.C., 64 AD3d 1140, 1140 [4th Dept 2009] … ). As stated in O’Shea, once a defendant meets that prima facie burden, “[t]he burden then shift[s] to [the] plaintiff[] to raise triable issues of fact by submitting a physician’s affidavit both attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendant’s omissions or departures were a competent producing cause of the injury” … .

Upon review, we conclude that the burden that O’Shea places on a plaintiff opposing a summary judgment motion with respect to a medical malpractice claim is inconsistent with the law applicable to summary judgment motions in general … . We therefore conclude that, when a defendant moves for summary judgment dismissing a medical malpractice claim, “[t]he burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only after the defendant physician meets the initial burden . . . , and only as to the elements on which the defendant met the prima facie burden” … . To the extent that O’Shea and its progeny state otherwise, those cases should no longer be followed. Bubar v Brodman, 2019 NY Slip Op 08294, Fourth Dept 11-15-19

 

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THE EXECUTOR PROPERLY WAIVED THE ATTORNEY-CLIENT PRIVILEGE ON DECEDENT’S BEHALF TO DEMONSTRATE THROUGH DECEDENT’S ATTORNEY’S TESTIMONY THAT SHARES OF STOCK HAD BEEN TRANSFERRED TO THE EXECUTOR WELL BEFORE DECEDENT’S DEATH (FOURTH DEPT).

The Fourth Department determined the executor of the estate (respondent) properly waived the attorney-client privilege on decedent’s (Anthony’s) behalf and demonstrated. through the decedent’s attorney’s testimony, that decedent’s shares in the corporation (NYSFC) had been transferred to the executor well before decedent’s death. Therefore the shares were properly excluded from the estate. Despite the absence of stock certificates and corporate records, there was no showing that the executor destroyed evidence:

… [T]he Surrogate held a nonjury trial during which respondent, in his capacity as executor, waived decedents’ attorney-client privilege, and decedents’ former counsel thereafter testified that she did not include a specific bequest with respect to Anthony’s NYSFC shares in his most recent will because Anthony had already transferred those shares to respondent. After the trial, the Surrogate concluded that respondent had in fact satisfied his burden and specifically established that the shares of NYSFC were sold and transferred to respondent prior to Anthony’s death. * * *

On appeal, petitioners contend that Mayorga [302 AD2d 11] and Johnson [7 AD3d 959] support waiver of the attorney-client privilege by an executor only if the waiver benefits the estate. Petitioners assert that excluding an asset from the estate would not benefit the estate or its beneficiaries and that those cases therefore do not support a waiver of the attorney-client privilege here inasmuch as any waiver would only benefit the executor respondent. The 2nd Department, however, has permitted the waiver of the attorney-client privilege under circumstances similar to those presented here … .

… [W]e … reject petitioners’ contention that respondent should not have been allowed to waive the attorney-client privilege on decedents’ behalf as executor due to his own self-interest in the testimony of the decedents’ former counsel. Thus, we hereby join the 2nd and 3rd Departments in concluding that the attorney-client privilege may be waived by an executor. Matter of Thomas, 2019 NY Slip Op 08293, Fourth Dept 11-15-19

 

MOTHER ENTITLED TO A HEARING ON WHETHER A CHANGE IN HER CIRCUMSTANCES WARRANTED A RETURN OF HER CHILDREN; CUSTODY OF THE CHILDREN HAD PREVIOUSLY BEEN AWARDED TO RESPONDENT (GREAT AUNT) (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother was entitled to a hearing on whether there had been a change of circumstances warranting the return of the custody of the children to her. Custody had previously been awarded to respondent (great aunt):

Inasmuch as there has been a prior judicial determination of extraordinary circumstances supporting the award of custody to respondent, “the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances” warranting an inquiry whether modification of custody or visitation is in the best interests of the children … . We agree with the mother that Family Court erred in granting respondent’s motion to dismiss the petitions at the close of the mother’s case on the ground that the mother failed to establish a sufficient change in circumstances since entry of the stipulated order … . At the time the prior order of custody and visitation was entered, the mother did not have a vehicle or employment, and she lived with a man who was prohibited by court order from having any contact with the subject children. The mother established that, at the time of the hearing, she owned a car, worked full-time, and no longer lived with or had a relationship with the aforementioned man. Indeed, in its oral decision dismissing the petitions, the court noted that the mother had “improved” herself and that it was “impressed” with her progress. Matter of Heinsler v Sero, 2019 NY Slip Op 08052, Fourth Dept 11-8-19

 

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SEIZURE OF DEFENDANT WAS BASED UPON AN ANONYMOUS TIP, SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing the relevant convictions, determined the police officer effectively seized defendant by blocking defendant’s car based upon an anonymous tip. The evidence seized from the car should have been suppressed:

The conviction of criminal possession of a weapon in the second degree arises from a police encounter during which an officer received information from an anonymous 911 call that drugs were being sold out of a vehicle. The officer arrived on the scene and observed a legally parked vehicle matching the description given by the anonymous caller and further observed defendant in a fully reclined position in the driver’s seat. The officer parked his patrol car alongside defendant’s vehicle in such a manner as to prevent defendant from driving away and, as the People stipulated in their post-hearing memorandum, the officer thereby effectively seized the vehicle. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure, and thus County Court erred in refusing to suppress both the tangible property seized, i.e., the weapon and marihuana found in the vehicle, and the statements defendant made to the police at the time of his arrest … . Based on the anonymous tip and defendant’s otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach the vehicle and make a common-law inquiry of its occupants ,,, . The officer did not make any “confirmatory observations” of the criminal behavior reported by the 911 caller … and therefore did not have “a reasonable suspicion that [defendant] was involved in a felony or misdemeanor” to justify the seizure … . People v Williams, 2019 NY Slip Op 08048, Fourth Dept 11-8-19

 

THE WAIVER OF INDICTMENT IS JURISDICTIONALLY DEFECTIVE FOR FAILURE TO INCLUDE THE APPROXIMATE TIME OF EACH OFFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the waiver of indictment was jurisdictionally defective for failure state the approximate time of each offense:

A jurisdictionally valid waiver of indictment must contain, inter alia, the “approximate time” of each offense charged in the superior court information (SCI) … . That requirement is strictly enforced … . ” [S]ubstantial compliance will not be tolerated’ ” … . Here, the waiver of indictment does not contain the approximate time of the offense … . Inasmuch as the SCI also does not contain that information, we need not consider whether to adopt the so-called “single document” rule … . We therefore reverse the judgment, vacate the plea and waiver of indictment, and dismiss the SCI … . People v Denis, 2019 NY Slip Op 08047, Fourth Dept 11-8-19

 

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NOTICE OF INTENT WAS TIMELY AND THE CLAIM WAS NOT JURISDICTIONALLY DEFECTIVE, INMATE’S MEDICAL MALPRACTICE ACTION AGAINST THE STATE REINSTATED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined that the notice of intent was timely and the notice of intent and the claim are not jurisdictionally defective in this medical malpractice action against the state. The claimant was an inmate when he underwent hip replacement surgery. The claim alleged inadequate treatment led to infection, requiring further surgeries. The date of the accrual of the action was tolled by continuous treatment, and some mistakes concerning the nature of the injuries (i.e., left hip versus right hip) did not prejudice the defendant:

Generally, a medical malpractice claim accrues on the date of the alleged malpractice, but the statute of limitations is tolled “until the end of the course of continuous treatment” … . That toll likewise applies to the time periods contained in Court of Claims Act § 10 (3)  … . Here, the record establishes that claimant was receiving ongoing treatment for his left hip replacement during postoperative follow-up visits through June 12, 2014, when he was transported to a hospital for treatment of the infection that developed at the incision site, which had not been diagnosed during those follow-up visits. We thus conclude that the notice of intent, filed and served on August 22, 2012, was timely inasmuch as it was filed and served within ninety days of the accrual of the claim. The fact that the claim listed a different date of the alleged injury than the notice of intent is a matter related to the contents of the documents, not their timeliness.

We recognize that, generally, the failure to treat a condition is not considered continuous treatment so as to toll the statute of limitations … . In such cases, however, there is a lack of awareness of a need for further treatment and thus no concern relating to the interruption of corrective medical treatment …  . Here, claimant was already being treated for the surgical incision that eventually became infected and, therefore, “further treatment [was] explicitly anticipated by both [defendant’s medical staff] and [claimant,] as manifested in form of . . . regularly scheduled appointment[s]” to monitor the incision and remove staples … . Moreover, this is not truly a failure-to-treat case inasmuch as defendant’s employees did, in fact, attempt to treat the incision area by applying ointment and dressing the area. Gang v State of New York, 2019 NY Slip Op 08041, Fourth Dept 11-8-19

 

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ALLOWING LOSS PREVENTION OFFICERS TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO MAY HAVE BEEN ERROR BUT WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

The Fourth Department determined defense counsel’s failure to object to testimony of loss prevention officers identifying defendant in a surveillance video was not demonstrated to amount to ineffective assistance:

Although we agree with defendant that there is no basis in the record to conclude that the loss prevention officers who gave testimony identifying defendant as an individual depicted in the surveillance video were more likely to correctly identify defendant from the video than the jury … , we further conclude that defendant failed to “demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcoming[]” in failing to object to the admission of that testimony … . People v Hines, 2019 NY Slip Op 08032, Fourth Dept 11-8-19

 

PLAINTIFF FELL WHEN HE ATTEMPTED TO LEAVE A TRAILER THROUGH THE EXIT WHICH DID NOT HAVE A STAIRWAY ATTACHED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant’s motion for summary judgment on the Labor Law 240 (1)  and 200 causes of action should not have been granted on the ground plaintiff’s action was the sole proximate cause of his injury. There were two exits to the trailer plaintiff was in, one had a stairway attached and one did not. Plaintiff fell to the ground when he attempted to use the exit with no stairway:

Defendants failed to establish as a matter of law that plaintiff’s actions were the sole proximate cause of the accident, i.e., that there was a staircase by which plaintiff could have exited the trailer, that he knew that a staircase was available and that he was expected to use it, that he chose for “no good reason” not to use it and that, if he had not made that choice, he would not have been injured … . For the same reason, we conclude that the court erred in granting defendants’ motion and cross motion with respect to the claims under Labor Law § 200 and common-law negligence … . Dziadaszek v Legacy Stratford, LLC, 2019 NY Slip Op 08029, Fourth Department 11-8-19

 

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SUPPORT MAGISTRATE SHOULD NOT HAVE ALLOWED FATHER’S ATTORNEY TO WITHDRAW WITHOUT NOTICE TO FATHER AND SHOULD NOT HAVE PROCEEDED IN FATHER’S ABSENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Support Magistrate’s findings should not have been confirmed because the Support Magistrate allowed father’s attorney to withdraw without notice to father and proceeded in father’s absence:

… [T]he Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client . . . [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” … . Here, the father’s attorney did not make a written motion to withdraw; rather, counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321 (b) (2) renders the Support Magistrate’s finding of default improper … . Matter of Gonzalez v Bebee, 2019 NY Slip Op 08027, Fourth Dept 11-8-19

 

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