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EMERGENCY PHYSICIAN ERRONEOUSLY PRONOUNCED PLAINTIFF’S DECEDENT DEAD AND ALLEGEDLY REFUSED TO REEXAMINE HIM FOR NEARLY THREE HOURS, DESPITE THE PLEAS OF HIS FAMILY MEMBERS WHO ALLEGEDLY SAW HIM BREATHING, MAKING EYE CONTACT AND MOVING; SUPREME COURT SHOULD NOT HAVE PROHIBITED THE PARTIES FROM MAKING STATEMENTS ABOUT THE FACTS OF THE CASE; THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court should not have prohibited the parties and their attorneys from making statements about the underlying facts in this medical malpractice action, and the negligent infliction of emotional distress (NIED) cause of action should have been dismissed. Plaintiff’s decedent suffered cardiac arrest and was pronounced dead by an emergency physician (Perry). However plaintiff’s decedent was not in fact dead and the emergency physician allegedly refused to examine plaintiff’s decedent for nearly three hours. Plaintiff’s decedent subsequently died after surgery at another hospital:

Perry notified plaintiff that decedent had died, and plaintiff, along with decedent’s son and several other family members, was brought into the code room. Plaintiff alleges that, for the next two hours and 40 minutes, decedent was breathing, making eye contact, and moving around, which prompted her and the coroner to urge Perry and the nursing staff to examine decedent, but they refused to do so. When Perry examined decedent at 11:10 p.m. at plaintiff’s insistence, he observed that decedent was, in fact, alive. Decedent was transferred to another hospital, where he underwent heart surgery and subsequently died. * * *

Supreme Court erred in granting defendants’ motions for an order enjoining and prohibiting the parties and their attorneys from making extrajudicial statements about the action or the underlying facts in a public forum or in front of the media. Although defendants met their burden of “demonstrat[ing] that such statements present a reasonable likelihood’ of a serious threat to [defendants’] right to a fair trial” … , there is no evidence in the record “that less restrictive alternatives would not be just as effective in assuring the defendant[s] a fair trial” … . Absent “the requisite showing of a necessity for such restraints,” a court may not impose prior restraints on First Amendment rights … . * * *

We agree with defendants … that the court erred in denying their motions insofar as they sought summary judgment dismissing the … causes of action … for NIED … . . “A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred’ … when the mental injury is a direct, rather than a consequential, result of the breach’ … and when the claim possesses some guarantee of genuineness’ … .  Here, defendants met their respective burdens of establishing as a matter of law that plaintiff and decedent’s son did not suffer mental and emotional injuries causally related to Perry’s erroneous pronouncement of decedent’s death, and plaintiff failed to raise a triable issue of fact by demonstrating the requisite ” guarantee of genuineness’ ” with respect to her claims of mental or emotional injuries … . Cleveland v Gregory C. Perry, M.D., FDR Med. Servs., P.C., 2019 NY Slip Op 06306, Fourth Dept 8-22-19

 

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REFUSING SECTION 8 VOUCHERS AS RENT PAYMENT VIOLATES THE WEST SENECA FAIR HOUSING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, reinstated a permanent injunction prohibiting the landlord from refusing “Section 8” vouchers for rent, The refusal violated the West Seneca Fair Housing Code (WSFHC) which prohibits discrimination based upon a person’s source of income:

WSFHC § 71-3 (A) provides that “[i]t shall be unlawful . . . [t]o refuse to sell or rent or refuse to negotiate for the sale or deny a dwelling to any person because of race, color, religion, sex, age, marital status, handicap, national origin, source of income or because the person has a child or children” (emphasis added). Remedial legislation such as WSFHC § 71-3 (A) ” should be liberally construed to carry out the reforms intended and to promote justice’ ” … . ” A liberal construction . . . is one [that] is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act it is deemed within the statute [or ordinance], though actually it is not within the letter of the law’ ” … .

We conclude … that Section 8 vouchers constitute a “source of income” under WSFHC § 71-3 (A). Such vouchers are plainly a recurrent benefit, measured in terms of money, that constitute financial gain to the recipient. Although the term “source of income” is undefined in the WSFHC, similar ordinances enacted in other local codes have expressly included Section 8 vouchers as a source of income … , which suggests that such vouchers are a “source of income” under the broad language of the WSFHC. People v Ivybrooke Equity Enters., LLC, 2019 NY Slip Op 06299, Fourth Dept 8-22-19

 

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ARBITRATION AWARD TERMINATING SCHOOL PRINCIPAL FOR ALCOHOL ABUSE SHOULD NOT HAVE BEEN VACATED, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department reversed Supreme Court and reinstated the arbitration award which terminated petitioner’s employment as a school principal for alcohol abuse. The school district had entered a “last chance” agreement with petitioner, which, the Fourth Department held, was not rendered unenforceable by the district’s commencement of the disciplinary proceedings. The court explained the criteria applied to review of arbitration awards:

Education Law § 3020-a (5) permits judicial review of a hearing officer’s decision but expressly provides that “the court’s review shall be limited to grounds set forth in” CPLR 7511. “An arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . Where, as here, the parties are “subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious’ ” … , and “it must be in accord with due process” … . Here, petitioner failed to meet his burden to show that the conduct findings were invalid … . Indeed, the record establishes that those findings were rational, had evidentiary support, and were not arbitrary and capricious, impermissibly based on uncharged conduct, or otherwise improper … . Matter of Bender (Lancaster Cent. Sch. Dist.), 2019 NY Slip Op 06297, Fourth Dept 8-22-19

 

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FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF PROPERTY JUSTIFICATION DEFENSE REQUIRED DISMISSAL OF THE MURDER/MANSLAUGHTER INDICTMENT, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined County Court properly dismissed the murder/manslaughter indictment because the grand jury was not charged with the defense of property justification defense. After decedent had twice attacked defendant inside the home, the decedent reentered the home from the front yard and was shot by the defendant:

During a recess in the grand jury proceeding, defendant asked the People to deliver to the grand jury foreperson a letter requesting, among other things, that the grand jurors be charged with respect to the justifiable use of physical force in defense of a person pursuant to Penal Law § 35.15 and the justifiable use of physical force in defense of premises and in defense of a person in the course of a burglary pursuant to § 35.20 (3). The People did not deliver the letter to the foreperson.

The People instructed the grand jury on the law with respect to murder in the second degree (Penal Law § 125.25 [1]), manslaughter in the first degree (§ 125.20 [1]), and the justification defense pursuant to Penal Law § 35.15; however, the People did not instruct the grand jury with respect to the justification defense pursuant to § 35.20 (3).

… [W]e conclude that the court properly dismissed the indictment based on the People’s failure to instruct the grand jury on the justification defense pursuant to Penal Law § 35.20 (3) … . A court may dismiss an indictment on the ground that a grand jury proceeding is defective where, inter alia, the proceeding is so irregular “that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35 [5]; see CPL 210.20 [1] [c]). With respect to grand jury instructions, CPL 190.25 (6) provides, as relevant here, that, “[w]here necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it.” “If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment” … . Under the circumstances of this case, we conclude that an instruction regarding the justification defense pursuant to Penal Law § 35.20 (3) was warranted, and the prosecutor’s failure to provide that instruction impaired the integrity of the grand jury proceeding (see CPL 210.35 [5]). Furthermore, we conclude that the error was not cured by the instruction regarding the justification defense under Penal Law § 35.15 … . People v Ball, 2019 NY Slip Op 06295, Fourth Dept 8-22-19

 

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DEFENDANT WAS NOT IN CUSTODY WHEN HE WAS ASKED POINTED QUESTIONS, NO MIRANDA WARNING REQUIRED; POLICE OFFICER’S SUBJECTIVE BELIEF DEFENDANT WAS NOT FREE TO LEAVE IS IRRELEVANT; RAPE FIRST IS AN INCLUSORY CONCURRENT COUNT OF PREDATORY SEXUAL ASSAULT (FOURTH DEPT).

The Fourth Department determined: (1) the defendant was not in custody when he was asked pointed questions so the Miranda warnings were not required; (2) a police officer’s subjective belief defendant was not free to leave is not relevant to a Miranda analysis; and (3) rape first degree is an inclusory current count of predatory sexual assault:

… [T]he evidence establishes, inter alia, that defendant was told at the start of the interview that he was not under arrest and would be going home that day … , and the recording of the interview belies defendant’s contention that he was in handcuffs when he was placed in the interview room. Defendant concedes that he indeed was not arrested at the time of the interview, and that he was given a ride home later that day. We reject defendant’s contention that, because a police officer testified that defendant was not free to leave during transport to the police station, the court erred in concluding that defendant was not in custody. A police officer’s subjective belief ” has no bearing on the question whether a suspect was in custody at a particular time . . . [and] the subjective intent of the officer . . . is irrelevant’ where, as here, there is no evidence that such subjective intent was communicated to the defendant” … . Contrary to defendant’s further contention, Miranda warnings were not required before the investigators asked pointed questions. It is well settled that “both the elements of police custody’ and police interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda” … , and the element of custody was absent here. People v Baez, 2019 NY Slip Op 06294, Fourth Dept 8-22-19

 

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EVIDENCE SUPPORTED THE FIRST DEGREE MURDER CONVICTION BASED UPON DEFENDANT’S HIRING THE KILLER (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the evidence supported the first degree murder charge, based upon defendant’s hiring the killer. The dissent argued the proof of the contract-killing was insufficient. The second degree murder count should have been dismissed:

We and our dissenting colleagues agree on many points. All of us agree that there was sufficient evidence that defendant was complicit in his wife’s murder. Further, all of us agree that there is evidence that the principal requested a payment of money from defendant only five days before the murder. Nevertheless, our dissenting colleagues characterize that request as “part of a string of otherwise innocent interactions” between defendant and the principal in the days leading up to the murder. The dissent even offers the possibility that the principal was “seeking a reward” from defendant—not for agreeing to murder defendant’s wife, but for unrelated virtuous conduct. We cannot agree. In our view, the jury could rationally have concluded that the principal’s request for a payment of money five days before the murder was not “innocent” at all, but in fact was part and parcel of the murder plot. People v Clayton, 2019 NY Slip Op 06284, Fourth Dept 8-22-19

 

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SORA RISK ASSESSMENT REDUCED TO LEVEL ONE, NO PROOF AGE OF CHILDREN DEPICTED IN PORNOGRAPHY WAS LESS THAN TEN (FOURTH DEPT

The Fourth Department reduced defendant’s risk level from two to one, finding there was no proof the children depicted in pornography were less than ten years old:

Defendant was convicted of possessing a sexual performance by a child (Penal Law § 263.16), which requires proof, inter alia, that defendant possessed a play, motion picture, or photograph depicting sexual conduct involving a child who is less than 16 years of age (see §§ 263.00 [1], [4]; 263.16). Consequently, defendant’s plea of guilty to that charge does not constitute clear and convincing evidence that 30 points should be assessed under risk factor 5 … . Additionally, the evidence submitted by the People, including the presentence report, did not constitute clear and convincing evidence that any of the victims was 10 years of age or less  … . The clear and convincing evidence, including the references to the children in the images possessed by defendant in the presentence report as preadolescent or prepubescent, coupled with the report’s definition of such children as being between 10 and 13 years of age, however, supports the imposition of 20 points under risk factor 5 … . People v Spratley, 2019 NY Slip Op 06283, Fourth Dept 8-22-19

 

ALTHOUGH PLAINTIFF POSITIONED THE SCAFFOLD SUCH THAT IT TIPPED WHEN A WHEEL WENT THROUGH A HOLE IN A DRAIN GRATE, HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined that plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff had positioned the scaffold on a drain grate and the scaffold tipped when a wheel went through a hole in the grate:

“[T]he relevant and proper inquiry is whether the hazard plaintiff encountered . . . was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance” … . Here, it is undisputed that the scaffold on which plaintiff was standing tipped over because one of its wheels was placed over an open floor drain hole. The fact that the scaffold tipped and plaintiff fell to the ground “demonstrates that it was not so placed . . . as to give proper protection to [him]” … . We therefore conclude that plaintiff’s accident was caused by an elevation-related risk as contemplated in section 240 (1) … .

We reject defendant’s contentions that the sole proximate cause of the accident was plaintiff’s failure to observe the drain hole and position the scaffold in such a manner to avoid it. “[T]here can be no liability under [Labor Law § ] 240 (1) when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … , and “[a] defendant is entitled to summary judgment dismissing a Labor Law § 240 (1) cause of action or claim by establishing that . . . the plaintiff’s conduct was the sole proximate cause of the accident” … . Plaintiff submitted the testimony of four witnesses, including the project superintendent of the subcontractor that installed the drain and the project manager and superintendent of the subcontractor that installed the concrete floor and curing blanket. Each testified that a temporary cover should be placed over an open drain during the installation of the concrete floor, and therefore plaintiff established that a statutory violation, i.e., the placement of the scaffold over the improperly covered drain hole, was a proximate cause of the accident … . Thus, even assuming, arguendo, that plaintiff was negligent in failing to observe the drain hole and positioning the scaffold over it, we conclude that his “actions . . . render him [merely] contributorily negligent, a defense unavailable under [Labor Law § 240 (1)]”  … . “Because plaintiff established that a statutory violation was a proximate cause of [his] injury, [he] cannot be solely to blame for it’ ” … . Wolf v Ledcor Constr. Inc., 2019 NY Slip Op 06263, Fourth Dept 8-22-19

 

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IN A TRIAL SUBJECT TO INSURANCE LAW 5102 THE TERM “SERIOUS INJURY” NOT “INJURY” SHOULD BE USED ON THE VERDICT SHEET (FOURTH DEPT).

The Fourth Department noted that the term “serious injury” not “injury” should be used on a verdict sheet in a case involving Insurance Law 5102:

… [W]e … note that the first question on the verdict sheet — i.e., “[w]as the accident . . . a substantial factor in causing an injury to [plaintiff]?” — invites the very problem we addressed in Brown v Ng (163 AD3d 1464, 1465 [4th Dept 2018]), where we noted that an interrogatory asking whether the plaintiff sustained an “injury” fails to address the appropriate legal issue, which is whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The first question on the verdict sheet was unnecessary here inasmuch as the second and third questions asked the jury to determine whether plaintiff sustained a serious injury under the relevant categories that was causally related to the accident. McCulloch v New York Cent. Mut. Ins. Co., 2019 NY Slip Op 06254, Fourth Dept 8-22-19

 

THE WORDING OF THE NOTICE OF APPEAL DID NOT RESTRICT THE APPEAL TO THE DENIAL OF PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT, BUT RATHER INCLUDED THE GRANT OF SUMMARY JUDGMENT TO DEFENDANT; THE DISSENTER DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s grant of summary judgment to defendant, over an extensive dissent, determined the notice of appeal did not restrict the appeal to the denial of plaintiff;s cross motion for summary judgment, but rather encompassed the appeal of the grant of summary judgment dismissing the complaint:

… [W]e reject the assertion of defendant and our dissenting colleague that plaintiff’s notice of appeal limits our review to that part of the order and judgment that denied plaintiff’s cross motion for partial summary judgment. The notice of appeal provides, in relevant part, that plaintiff “hereby appeals . . . from the . . . [o]rder and [j]udgment . . . denying [p]laintiff’s [c]ross[ m]otion for [s]ummary [j]udgment. Plaintiff appeals from each and every part of said [o]rder denying [p]laintiff’s [c]ross[ m]otion.” Contrary to our dissenting colleague’s position, inasmuch as the notice of appeal states that plaintiff sought to appeal from “each and every part” of the order and judgment and does not contain language restricting the appeal to only a specific part thereof, we conclude that the appeal is not limited to review of the denial of plaintiff’s cross motion and that the reference thereto simply constitutes language describing the order and judgment … .

Our determination that the reference to the cross motion in the notice of appeal is descriptive and does not constitute evidence that plaintiff excluded from her appeal that part of the order and judgment granting defendant’s motion is further supported by the fact that, in her cross motion, plaintiff expressly sought as part of the requested relief “[a]n [o]rder denying defendant’s [m]otion for [s]ummary [j]udgment in its entirety.” Cline v Code 2019 NY Slip Op 06251, Fourth Dept 8-22-19

 

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