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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate his conviction based upon ineffective assistance and actual innocence should not have been denied without a hearing:

… [T]he court erred in denying without a hearing that part of his motion based upon ineffective assistance of counsel. Defendant’s specific claim is that defense counsel failed to secure the presence of a witness who had potentially exculpatory information, and we agree with defendant that such a failure may serve as the basis for a finding of ineffective assistance of counsel … . At trial, defense counsel stated on the record that the witness had been subpoenaed to testify on defendant’s behalf. The witness did not testify, however, and there is nothing in the trial record indicating why. According to defendant’s moving papers, when the witness did not appear to testify, defense counsel merely stated: “Oh, well.” There is no dispute that defense counsel did not attempt to utilize the procedure for securing the trial testimony of a material witness … , or to seek a continuance to obtain the witness’s voluntary compliance with the subpoena. Notably, the witness avers in her affidavit that she was never subpoenaed.

The court denied that part of the motion based on its determination that defendant could have raised his claim on his direct appeal or in his prior CPL 440.10 motions … . That was error. Because the witness resided in another state and went by a different surname, it was not until 2014—after defendant made his two prior CPL 440.10 motions—that defendant was able to obtain an affidavit from her. The affidavit contains information not contained in the trial record and substantially supports defendant’s claim of ineffective assistance. Significantly, it raises an issue of fact whether the witness was ever subpoenaed by defense counsel. That issue of fact is separate and distinct from the witness’s information about the murder itself, which was known to defendant through the 2004 police report. Defendant could not have discovered and raised the issue of fact until 2014, when he was able to identify, locate, and obtain an affidavit from the witness. People v Borcyk, 2018 NY Slip Op 03256, Fourth Dept 5-4-18

​CRIMINAL LAW (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ATTORNEYS (MOTION TO VACATE CONVICTION, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,  DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/ACTUAL INNOCENCE (MOTION TO VACATE CONVICTION, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE AND ACTUAL INNOCENCE SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT PRESENTED EVIDENCE DEFENSE COUNSEL NEVER SUBPOENAED A WITNESS (FOURTH DEPT))

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DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT).

The Fourth Department determined the evidence was legally sufficient to support the assault first conviction stemming from defendant’s allowing his dog to attack the victim. The court noted that the motion for a trial order of dismissal at the close of the People’s case was adequate to preserve the challenge to the legal sufficiency of the evidence of intent, even though the renewal of the motion at the close of evidence referred to the earlier motion:

The conviction arises from a dog attack that caused the victim to sustain injuries that included broken bones in his hands and the amputation of a portion of one of his fingers. The victim as well as witnesses to the attack testified that two pit bull terriers that had escaped their owner’s property attacked the victim, biting at his arms and legs, as the victim attempted to protect his dog from the pit bulls. Defendant, who was a friend of the owner of the pit bulls, arrived at the scene in a van driven by another man. Defendant exited the van, retrieved the two pit bulls and placed them in the van. After the pit bulls were secured in the van, the victim stood in front of the van and angrily told defendant that the police had been called and “you’re not going anywhere.” Defendant responded by asking the victim, “you coming at me? Are you going to stop me from leaving?” At that point defendant opened the van door and issued a command to the larger pit bull, who attacked the victim a second time, inflicting the injuries to the victim’s hands.

Defendant contends that the evidence is legally insufficient to support the conviction inasmuch as the People failed to prove that he intended to cause serious physical injury to the victim … . Viewing the evidence in the light most favorable to the People … , we conclude that the evidence is legally sufficient to establish such intent … . People v Bacon, 2018 NY Slip Op 03258, Fourth Dept 5-4-18

CRIMINAL LAW (DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/ANIMAL LAW (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT/DOGS (CRIMINAL LAW, DOG ATTACK, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, DEFENDANT CONVICTED OF ASSAULT FIRST DEGREE FOR ALLOWING HIS DOG TO ATTACK THE VICTIM, EVIDENCE OF INTENT TO CAUSE SERIOUS INJURY WAS LEGALLY SUFFICIENT, MOTION FOR TRIAL ORDER OF DISMISSAL AT THE CLOSE OF THE EVIDENCE PRESERVED THE ISSUE BY REFERRING TO THE MOTION MADE AT THE CLOSE OF THE PEOPLE’S CASE (FOURTH DEPT))

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WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT).

The Fourth Department determined the waiver of appeal was invalid and sent the matter back for a determination of youthful offender status:

Supreme Court did not elicit the waiver until after defendant had pleaded guilty and, in any event, “the record fails to establish that [the court] engaged him in an adequate colloquy to ensure that the waiver was a knowing and voluntary choice” … . Furthermore, “neither the written waiver of the right to appeal in the record nor the court’s brief mention of that waiver during the plea proceeding distinguished the waiver of the right to appeal from those rights automatically forfeited upon a plea of guilty” … .

We further agree with defendant that the court erred in failing to determine whether he should be afforded youthful offender status … . As the People correctly concede, defendant is an eligible youth, and the sentencing court must make “a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it” … . People v Willis, 2018 NY Slip Op 03291, Fourth Dept 5-4-18

​CRIMINAL LAW (WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))/YOUTHFUL OFFENDER (WAIVER OF APPEAL INVALID, MATTER SENT BACK FOR YOUTHFUL OFFENDER DETERMINATION (FOURTH DEPT))

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DEFENDANT PROPERTY OWNER WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, PLAINTIFF’S ONLY REMEDY FOR INJURY FROM A FALL WAS UNDER THE WORKERS’ COMPENSATION LAW (FOURTH DEPT).

The Fourth Department determined defendant property owner was the alto ego of plaintiff’s employer (Fox Run) and therefore plaintiff’s only remedy for his on the job injury was under the Workers’ Compensation Law. Plaintiff worked on a farm and was injured when he fell from a hayloft:

… [W]e conclude that defendant established as a matter of law that it was the alter ego of Fox Run. Defendant and Fox Run were single-member-owned LLCs that were created on the same day “for a single purpose[,] to operate a horse stable business” … . Both defendant and Fox Run had the same individual owner … , and shared the same insurance policy … . Defendant had “[n]o separate set of [financial] books” and “no separate accounting or tax reporting”… .

In addition, defendant had no employees … and “was formed solely for the purpose of owning the premises upon which plaintiff’s employer . . . operate[d]” its horse farm … . Fox Run leased property from no one other than defendant, there was no written lease agreement, and Fox Run did not pay any rent to defendant … . Finally, Fox Run’s owner paid defendant’s property taxes as well as the operating expenses of the property … . Buchwald v 1307 Porterville Rd., LLC, 2018 NY Slip Op 03006, Fourth Dept 4-27-18

​WORKERS’ COMPENSATION LAW (DEFENDANT PROPERTY OWNER WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, PLAINTIFF’S ONLY REMEDY FOR INJURY FROM A FALL WAS UNDER THE WORKERS’ COMPENSATION LAW (FOURTH DEPT))/CORPORATION LAW (WORKERS’ COMPENSATION LAW, DEFENDANT PROPERTY OWNER WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, PLAINTIFF’S ONLY REMEDY FOR INJURY FROM A FALL WAS UNDER THE WORKERS’ COMPENSATION LAW (FOURTH DEPT))

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PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined the private nuisance cause of action properly survived summary judgment:

The elements of a cause of action for private nuisance are “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct” … . The issue whether a defendant’s use of land constitutes a private nuisance generally turns on questions of fact that include the degree of interference and the reasonableness of the use under the circumstances … . Evidence of noise and other disturbances has been found sufficient to preclude an award of summary judgment dismissing a cause of action for private nuisance … .

We conclude that defendant’s own submissions raised issues of fact precluding summary judgment … . Defendant submitted plaintiffs’ deposition testimony, which established that the stadium has lights and a loudspeaker that they find disturbing. When there are events at the stadium, the lights and loudspeaker are used late into the evening, sometimes until 11:00 p.m. The lights shine directly into the home of one of the plaintiffs. In addition, spectators at those events make a disturbing amount of noise, and also stand near plaintiffs’ property lines drinking alcohol and throwing trash onto plaintiffs’ properties. We further conclude, in any event, that plaintiffs raised issues of fact in opposition to the motion… . Plaintiffs submitted the deposition testimony of defendant’s superintendent, who testified that defendant had intended to plant trees along the property lines to mitigate any interference with plaintiffs’ use of the property but had abandoned that plan. The superintendent also acknowledged that he understood why plaintiffs had concerns about defendant’s use of the property. Ranney v Tonawanda City Sch. Dist., 2018 NY Slip Op 03004, Fourth Dept 4-27-18

​REAL PROPERTY (NUISANCE, PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))/NUISANCE (PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))/STADIUMS  (NUISANCE, PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))

DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the filed document which described a right to access plaintiff’s land over defendant’s land did not include any language indicating access was to be granted permanently. Therefore the document created a license which defendant had revoked:

The law is well settled that ” [a]n easement appurtenant is created when such easement is (1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate’ “… . Although no specific words are required to express the permanency of an easement … , to “create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license . . . The writing must establish unequivocally the grantor’s intent to give for all time to come a use of the servient estate to the dominant estate. The policy of the law favoring unrestricted use of realty requires that where there is any ambiguity as to the permanence of the restriction to be imposed on the servient estate, the right of use should be deemed a license, revocable at will by the grantor, rather than an easement”… .

Here, the document signed by the parties’ predecessors in interest contains no words of permanency, nor any indication that it is meant to bind the grantor’s successors in interest. Thus, we conclude that plaintiff failed to establish that the parties’ predecessors intended to create an easement … . New York Land Dev. Corp. v Bennett, 2018 NY Slip Op 02926, Fourth Dept 4-27-18

​REAL PROPERTY (EASEMENTS AND LICENSES, DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT))/EASEMENTS ( DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT))/LICENSES (REAL PROPERTY, DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT))

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CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict in this medical malpractice, wrongful death case should not have been granted. Decedent was suffering from a life-threatening but eminently treatable condition (unstable angina) when he saw the defendant doctor.  Decedent died three days later. The doctor testified decedent had refused to go to the hospital. Credibility issues were raised about the substance of the defendant’s testimony. The Fourth Department noted that credibility issues are for the jury and should not be considered on a motion to set aside a verdict:

Defendant testified at trial that he recognized the life-threatening condition and conveyed to decedent “that he should go to the hospital” (emphasis added). Defendant further testified that he knew that “there needed to be more testing done,” but that decedent “adamant[ly]” “refused” to go to the hospital and “didn’t give [defendant] a good reason why.” Defendant’s notes, however, do not reflect any urgency. Indeed, the only notation made by defendant concerning that conversation was, “Discussed admit on Fri of holiday [weekend], declined.”

Moreover, despite the fact that defendant claimed to have recognized the severity of decedent’s condition, he did not set up any follow-up appointment with a cardiologist for over five days and admitted that he was “surprised” to learn of decedent’s death three days after his appointment with decedent.

As with most wrongful death cases, this case is complicated by the death of decedent, the only person who could have directly refuted defendant’s factual testimony. The Noseworthy doctrine thus provides that in a wrongful death case, such as this, “a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence” … . The doctrine “applies only to such factual testimony as the decedent might have testified to, had [he or she] lived’ ” … , and the “lesser degree of proof pertains to the weight which the circumstantial evidence may be afforded by the jury, not to the standard of proof the plaintiff must meet” … .

Here, the only direct testimony regarding whether defendant recognized the severity of decedent’s condition and explained that to him “came from defendant . . . and, implicit in the court’s findings is that his testimony was credible. Issues of credibility, however, are for the jury” … . We agree with plaintiff that there are issues with respect to defendant’s credibility, and those issues should not have been determined by the court. In our view, this is not a case in which there is “absolutely no showing of facts from which negligence may be inferred” … , and we thus conclude that the court erred in granting defendant’s motion for a directed verdict. Bolin v Goodman, 2018 NY Slip Op 02920, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/MEDICAL MALPRACTICE (CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WRONGFUL DEATH,  CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/WRONGFUL DEATH (NOSEWORTHY DOCTRINE, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/NOSEWORTHY DOCTRINE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))

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CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the cause of action fOR medical malpractice stemming from an office visit within the limitations period was independently viable, and the continuous treatment doctrine rendered all the causes of action timely:

… [T]he claims based on allegations of negligent treatment during the January 2, 2013 office visit have an independent viability regardless of whether any prior alleged negligence is time-barred.

… [T]he record establishes that defendants provided continuous treatment to plaintiff for a condition, i.e., atrial fibrillation, until January 2, 2013; the alleged wrongful acts or omissions were related to that condition; and such treatment “gave rise to the . . . act, omission or failure” complained of … . Indeed, the record establishes that the alleged wrongful acts or omissions themselves ran continuously until January 2, 2013. We therefore reject defendants’ contention that the statute of limitations began to run at the time of the first prescription of Pradaxa on January 10, 2011. We conclude that the court erred in granting the motion inasmuch as this action was timely commenced within 2½ years of the cessation of defendants’ continuous treatment of plaintiff’s atrial fibrillation condition … . Phillips v Buffalo Heart Group, LLP, 2018 NY Slip Op 03055, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))

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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s motion to set aside the verdict in this medical malpractice case should not have been granted. The jury found that the doctor’s postsurgical negligence (ordering an MRI of plaintiff’s hand rather than her wrist) was not a substantial factor in causing plaintiff’s injuries:

… [W]e conclude that the issues of negligence and proximate cause were not so inextricably interwoven as to make it logically impossible to find one without the other… . Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view … , and we conclude that defendants are entitled to that presumption here.

We also agree with defendants that the verdict was not against the weight of the evidence and that the court therefore erred in granting plaintiff’s posttrial motion. It is well settled that a jury verdict will be set aside as against the weight of the evidence only when the evidence at trial so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence … . Applying that principle here, we conclude that there is a fair interpretation of the evidence pursuant to which the jury could have found that, notwithstanding the error in ordering the incorrect MRI, defendant did not cause any postsurgery injuries alleged by plaintiff … . We further conclude that the “trial was a prototypical battle of the experts, and the jury’s acceptance of defendants’ case was a rational and fair interpretation of the evidence”… . Capierseo v Tomaino, 2018 NY Slip Op 02917, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/MEDICAL MALPRACTICE (MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/CIVIL PROCEDURE (SET ASIDE VERDICT, MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))

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DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff passenger’s motion for summary judgment against defendant driver should not have been granted and defendant’s motion to amend the pleadings to add the emergency doctrine defense should have been granted. Defendant lost control of the car but raised an issue of fact whether the cause of the accident was black ice:

… [P]laintiff submitted evidence establishing that defendant lost control of the vehicle. The burden then shifted to defendant, who came forward with the exculpatory explanation that he encountered black ice on the roadway, which constituted an emergency. When the evidence is viewed in the light most favorable to defendant … , there is a triable issue of fact whether there was black ice and thus whether an emergency existed at the time of the accident. * * *

… [T]he court erred in denying that part of defendant’s cross motion for leave to amend the answer to assert an emergency doctrine defense. Motions for leave to amend pleadings should be freely granted in the absence of prejudice, and “[m]ere lateness is not a barrier” … . The fact that defendant’s request was made nine days after the filing of the note of issue does not render the request untimely … . Indeed, “[w]here no prejudice is shown, the amendment may be allowed during or even after trial” … , and here, the record is devoid of any potential prejudice flowing from the proposed amendment. Greco v Grande, 2018 NY Slip Op 02916, Fourth Dept 4-27-18

​NEGLIGENCE (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS  (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, (DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (AMEND PLEADINGS, DEFENDANT DRIVER RAISED A QUESTION OF FACT WHETHER THE CAUSE OF THE ACCIDENT WAS BLACK ICE, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, DEFENDANT’S MOTION TO AMEND THE PLEADINGS TO ADD THE EMERGENCY DOCTRINE DEFENSE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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