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IN THIS CONSTRUCTIVE POSSESSION CASE, THE INVESTIGATOR’S ASKING DEFENDANT WHERE HE RESIDED WAS DESIGNED TO ELICIT AN INCRIMINATING RESPONSE, THEREFORE DEFENDANT’S RESPONSE WAS NOT PEDIGREE INFORMATION AND A CPL 710.30 NOTICE WAS REQUIRED, ADMISSION OF THE STATEMENT WAS HARMLESS ERROR HOWEVER (FOURTH DEPT).

The Fourth Department determined the defendant’s answer to the investigator’s asking where defendant resided, for which no CPL 710.30 notice was provided, was not pedigree information and should not have been admitted in evidence. The drug-possession charge was founded on constructive possession. Therefore asking defendant where he resided was designed to elicit an incriminating response. The error was deemed harmless however:

Defendant also contends that the court erred in admitting in evidence an oral statement of defendant regarding his address for which no CPL 710.30 notice had been given. The statement at issue was defendant’s response to a question about where he resided, and it was made to one of the principal investigators, who had executed a search warrant at the home of defendant’s parents. As the People correctly concede, defendant’s statement regarding his address was not pedigree information for which no CPL 710.30 notice was required … because, under the circumstances of this case, the investigator’s question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crime[] charged” … . The court thus erred in admitting the statement in evidence in the absence of a CPL 710.30 notice … . People v Tucker, 2019 NY Slip Op 05274, Fourth Dept 6-28-19

 

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CLAIMANTS DID NOT ALLEGE WHEN THE ALLEGED INJURIES RELATED TO TOXIC CONTAMINATION WERE INCURRED, CLAIMS PROPERLY DISMISSED AS JURISDICTIONALLY DEFECTIVE (FOURTH DEPT).

The Fourth Department determined the action alleging negligence and inverse condemnation stemming from toxic contamination of the vicinity of a defunct factory was properly dismissed because the allegations did not specify when the alleged injuries occurred:

The State of New York is sovereign and has consented to be sued only in strict accordance with the requirements of the Court of Claims Act (see Court of Claims Act § 8 …). Among those requirements is the claimant’s duty to allege “the time when [the] claim arose” … . The requirements of section 11 (b) are jurisdictional in nature … , and the failure to satisfy them mandates dismissal of the claim without regard to whether the State was prejudiced … or had access to the requisite information from its own records … . As the Court of Appeals has explained, the State is not required “to ferret out or assemble information that section 11 (b) obligates the claimant to allege” … . …

Here, although claimants adequately specified when defendant’s negligent acts allegedly occurred, they failed to supply any dates or ranges of dates regarding their alleged injuries, such as when they were exposed to toxins, when they developed symptoms, when they sought treatment, or when they were diagnosed with an illness. Instead, claimants alleged only the dates of their residence in Geneva and the dates when news of the contamination became public. Claimants’ allegations are insufficient to enable defendant to adequately investigate the claims in order to ascertain its liability, if any. Given claimants’ failure to provide any dates regarding their alleged injuries, defendant could not realistically differentiate between those injuries attributable to toxic exposure and those injuries attributable to other causes. We therefore conclude that claimants failed to adequately plead when the claims arose for purposes of Court of Claims Act § 11 (b). Consequently, the court properly dismissed the claims as jurisdictionally defective … . Matter of Geneva Foundry Litig., 2019 NY Slip Op 05271, Fourth Dept 6-28-19

 

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NEGLIGENT HIRING AND SUPERVISION AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED, NO ALLEGATION EMPLOYEES WERE ACTING OUTSIDE THE SCOPE OF EMPLOYMENT, NO ALLEGATION MALICE WAS DEFENDANT’S SOLE MOTIVATION (FOURTH DEPT).

The Fourth Department determined plaintiff’s negligent hiring and supervision and prima facie tort causes of action should have been dismissed. The lawsuit alleged defendant insurer failed to pay claims for medical care submitted by plaintiff:

“An employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act” … . Here, plaintiff’s cause of action for negligent hiring, supervision or retention is based on the factual allegations that defendant’s employees denied or delayed the payment of claims to plaintiff and sent repetitive verification demands, and that defendant was aware of what its employees were doing and continued to employ them. Plaintiff, however, failed to allege that those acts were committed outside the scope of the employees’ employment. Plaintiff also failed to allege how the employees’ alleged acts of denying claims and sending verification demands constituted acts of negligence. …

“There can be no recovery [for prima facie tort] unless a disinterested malevolence’ to injure [the] plaintiff constitutes the sole motivation for defendant[‘s] otherwise lawful act” … . Here, plaintiff alleged that defendant acted in “bad faith” and intended harm by repeatedly sending plaintiff duplicitous requests for verification forms to be completed. Those conclusory statements in the amended complaint, however, fail to allege “a malicious [act] unmixed with any other and exclusively directed to [the] injury and damage of another” … . Furthermore, it is “[a] critical element of the cause of action . . . that plaintiff suffered specific and measurable loss” … , which “must be alleged with sufficient particularity to identify actual losses and be related causally to the alleged tortious acts” … , but the injuries alleged by plaintiff are “couched in broad and conclusory terms” … , and do not constitute “specific and measurable loss” stated with particularity … . Walden Bailey Chiropractic, P.C. v Geico Cas. Co., 2019 NY Slip Op 05267, Fourth Dept 6-28-19

 

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THE COUNTY IS DISTINCT FROM THE SHERIFF, AND THE SHERIFF IS DISTINCT FROM THE SHERIFF’S DEPARTMENT, ONLY THE SHERIFF IS RESPONSIBLE FOR THE HIRING AND TRAINING OF SHERIFF’S DEPUTIES, THEREFORE THE INJURED INMATE’S ACTION AGAINST THE COUNTY FOR NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION OF SHERIFF’S DEPUTIES WAS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the action against the county stemming from the injuries and death suffered by plaintiff’s decedent in the Erie County Holding Center was properly dismissed. The court held that the county is separate from the sheriff’s department, which in turn is separate from the sheriff. The county is not responsible for the hiring and training of sheriff’s deputies, which is only the sheriff’s responsibility. Therefore the negligent hiring, training, supervision and retention cause of action against the county was not viable:

The duty to supervise and train Sheriff’s deputies rests with the Sheriff (… County Law § 652). … [T]he County has no similar duty … . Defendants in this case therefore met their initial burden on the motion by establishing that the County was not liable under the theory stated in plaintiff’s fourth cause of action. …

We reject plaintiff’s … contention that the County’s representation that the Erie County Sheriff’s Department lacked a separate legal identity from the County estops the County from contending that it is not the employer of the Sheriff’s deputies. The County correctly stated that “the Sheriff’s Department does not have a legal identity separate from the County . . . and thus an action against the Sheriff’s Department is, in effect, an action against the County itself”… . The Sheriff, however, is distinct from both the County and the Sheriff’s Department  … and thus the County’s representation has no bearing on whether the Sheriff, as opposed to the County, bears the responsibility of hiring, training, and supervising the Sheriff’s deputies. Metcalf v County of Erie, 2019 NY Slip Op 05265, Fourth Dept 6-28-19

 

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DEFENDANT IN THIS TRAFFIC ACCIDENT CASE SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY SHE WAS NOT TICKETED; DAMAGES FOR PAIN AND SUFFERING SHOULD NOT HAVE BEEN INCREASED UNCONDITIONALLY BY THE TRIAL JUDGE, THE PROPER PROCEDURE IS TO ORDER A NEW TRIAL UNLESS DEFENDANT STIPULATES TO THE INCREASED DAMAGES (FOURTH DEPT).

The Fourth Department noted that defendant, in this traffic accident case, should not have been allowed to testify that she did not receive a traffic ticket. The court also noted that the trial judge properly determined the damages for past pain and suffering should be increased, but that the proper procedure is to order a new trial unless the defendant stipulates to the increased amount. The trial judge had unconditionally increased the damages amount:

It is well established that “[e]vidence of nonprosecution is inadmissible in a civil action” … . In our view, however, that was the only error during trial … . We conclude that, “standing alone” … , the error was harmless, and therefore the court properly denied the motion insofar as it sought to set aside the jury verdict and a new trial on all issues (see CPLR 2002).

Plaintiff further contends that the jury’s damages award for pain and suffering materially deviated from what would be reasonable compensation for plaintiff’s injuries and that the deviation was not cured by the court’s increase of the award for past pain and suffering. We reject that contention. We conclude that the court properly determined that the jury’s verdict for past pain and suffering should be increased to $125,000 and that the award for future pain and suffering did not materially deviate from what would be reasonable compensation for plaintiff’s injuries (see CPLR 5501 [c]). The court, however, erred in unconditionally increasing the past pain and suffering award. ” [T]he proper procedure when a damages award is inadequate is to order a new trial on damages unless [a] defendant stipulates to the increased amount’ ” … . Queen v Kogut, 2019 NY Slip Op 04863, Fourth Dept 6-14-19

 

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ARGUMENT THAT PROBATION CONDITIONS ARE ILLEGAL SURVIVES A WAIVER OF APPEAL AND THE FAILURE TO PRESERVE THE ERROR (FOURTH DEPT).

The Fourth Department noted that defendant’s argument that the conditions of his probation were illegal survived a waiver of appeal and the failure to preserve the error:

Defendant further contends … that the court imposed several unlawful conditions of probation. Initially, we note that defendant’s contentions are not encompassed by the valid waiver of the right to appeal because they are based on challenges to the legality of the sentence … . Additionally, although defendant failed to preserve those contentions for our review, there is a “narrow exception to [the] preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record” … , and that exception encompasses a contention that a “probation condition is unlawful because it is not reasonably related to rehabilitation or is outside the authority of the court to impose” … . We conclude that, inasmuch as defendant’s challenges to the conditions of probation here “implicate the legality of defendant’s sentence and any illegality is evident on the face of the record, those claims are not barred by . . . defendant’s failure to preserve them” … . …

With respect to the merits, the People correctly concede that the court erred in barring defendant from all use of the internet. The statute provides that a sentencing “court may require that the defendant comply with a reasonable limitation on his or her use of the internet . . . provided that the court shall not prohibit such sentenced offender from using the internet in connection with education, lawful employment or search for lawful employment” … . People v Castaneda, 2019 NY Slip Op 04860, Fourth Dept 6-14-19

 

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GAP IN BATHROOM STALL DOOR AT MCDONALD’S RESTAURANT, IN WHICH INFANT PLAINTIFF’S FINGER WAS PINCHED AND PARTIALLY SEVERED WHEN THE DOOR SLAMMED SHUT, WAS NOT UNREASONABLY DANGEROUS AND WAS OPEN AND OBVIOUS, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the gap in a bathroom stall door at a McDonald’s restaurant, in which infant plaintiff’s finger was pinched and partially severed when her brother slammed the door, was not an unreasonably dangerous condition. In addition, the court found the condition was open and obvious and there was no duty to warn. The dissent noted the testimony that McDonald’s now installs finger guards which raised questions of fact whether defendants were on notice the door presented an unreasonably dangerous condition:

Defendants met their initial burden by establishing that the stall door did not constitute an unreasonably dangerous condition … , and plaintiffs failed to raise a triable issue of fact in response … . The affidavit of plaintiffs’ expert was ” speculative and not sufficiently probative to defeat defendant[s’] motion for summary judgment’ ” … . Contrary to plaintiffs’ further contention, we conclude that the alleged hazard posed by the bathroom stall door was also open and obvious, and therefore defendants had no duty to warn that the door presented a finger-pinching hazard … . Christopher J.G. v Derico of E. Amherst Corp., 2019 NY Slip Op 04857, Fourth Dept 6-14-19

 

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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE VERDICT SHEET DID NOT REFLECT THE TRIAL EVIDENCE ON THE APPLICABLE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to set aside the defense verdict in this medical malpractice case should have been granted. Plaintiff alleged her bowel was perforated during surgery. The defense expert testified the bowel must be fully inspected as it is replaced, section by section. However, defendant surgeon testified he did not fully inspect the bowel. In addition the jury was asked to determine whether the bowel was subjected to a “focused inspection.” However there was no trial evidence equating a “focused inspection” with the standard of care. A new trial was necessary:

The weight of the evidence greatly preponderates in favor of plaintiff due, in no small part, to defendant’s testimony that he not only failed to perform a “focused inspection” of the bowel, but that “[he could not] not observe it” as he returned it into plaintiff’s abdomen. In not “observing” the bowel, defendant plainly could not have conducted a careful visualization of the body part as it was returned to plaintiff’s body; therefore he was plainly not performing a “focused inspection.” Defendant also admitted that “[he] didn’t specifically look for [bruising]” of the bowel, which his own expert testified is required when inspecting the bowel during an aortobifemoral bypass surgery.

Defendant also testified that he only looked at the bowel’s top side. Although his expert did not testify that defendant was personally required to view the other side, she did explain that the other surgeon in the operating room must view that side so that both surgeons, collectively, can view the entire bowel. Defendant did not testify that he ensured that the assisting surgeon carefully viewed the back side of the bowel, segment by segment. Moreover, the assisting surgeon did not testify that defendant instructed her to do so. Inasmuch as defendant’s conduct does not meet the standard articulated by the expert witnesses, we conclude that the evidence so preponderates in plaintiff’s favor that the court erred in denying her motion to set aside the verdict … Monzon v Porter, 2019 NY Slip Op 04855, Fourth Dept 6-14-19

 

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A FAMILY COURT PROCEEDING IS CIVIL IN NATURE AND THE CONFRONTATION CLAUSE APPLIES ONLY IN CRIMINAL MATTERS, THEREFORE DOCUMENTS WRITTEN BY A PSYCHIATRIST WHO DID NOT TESTIFY WERE ADMISSIBLE (FOURTH DEPT).

The Fourth Department determined father’s right to confront witnesses in this termination-of-parental-rights proceeding was not violated by the admission in evidence of two documents written by a psychiatrist who did not testify. A Family Court proceeding is civil in nature and the Confrontation Clause applies only in criminal matters:

Although the father’s contention is framed in terms of a violation of his right to confront the witnesses against him, “Family Court matters are civil in nature and the Confrontation Clause applies only to criminal matters” … . In addition, while every litigant has a right, guaranteed by the Due Process Clauses of both the Federal and State Constitutions, to confront the witnesses against them … , “this right is not absolute” in civil actions … . The Family Court Act permits the admission of hearsay at dispositional hearings if such evidence is “material and relevant” … . Here, because the father did not object to either the relevancy or materiality of the challenged exhibits, we conclude that the exhibits were properly admitted in evidence … . Matter of Ramon F. (Wilson F.), 2019 NY Slip Op 04852, Fourth Dept 6-14-19

 

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THE FAMILY OFFENSE PETITION DID NOT ALLEGE ALL THE ELEMENTS OF HARASSMENT SECOND DEGREE AND WAS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the portion of the family-offense petition which charged harassment in the second degree was properly dismissed because it did not allege all the elements of the offense:

A person commits harassment in the second degree under Penal Law § 240.26 (3) when he or she, “with intent to harass, annoy or alarm another person[,] engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose” … . Thus, “[t]o be viable under the circumstances here, the [petition was] required to allege that respondent[, inter alia,] engaged in a course of conduct that did alarm or seriously annoy petitioner and the conduct served no legitimate purpose” … . Although the petition before us accuses respondent of engaging in a course of conduct that annoyed and alarmed petitioner, nowhere does it allege that respondent’s alleged course of conduct “serve[d] no legitimate purpose” (§ 240.26 [3]). Thus, the petition does not adequately plead an allegation that respondent committed harassment in the second degree under section 240.26 (3), and the court therefore properly dismissed the petition to that extent … . Matter of Rohrback v Monaco, 2019 NY Slip Op 04851, Fourth Dept 6-14-19

 

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