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Expert’s Affidavit Too Speculative to Raise Question of Fact About Proximate Cause

In reversing Supreme Court and dismissing a medical malpractice complaint, the Fourth Department determined plaintiff’s expert affidavit was speculative and therefore failed to raise a question of fact about whether the alleged negligence (the failure to order a particular CT scan) was the proximate cause of the injury:

The expert contends that, if that CT scan had been performed on February 16, 2004, “then diagnosis of [decedent]’s aortic dissection . . . would, more probably than not, have been made.”  Significantly, however, the medical records indicate that it was a CT scan of decedent’s head and chest, not a scan of his pelvis and abdomen, that revealed an aortic dissection on March 1, 2004.  Thus, the opinion of plaintiff’s expert that an abdominal and pelvic CT scan performed on February 16, 2004 would more likely than not have revealed an aortic dissection is speculative.  Wilk … v James, et al, 401, 4th Dept 7-19-13

 

Denial of Father’s Petition for Modification of Custody Reversed

In reversing Family Court and granting father’s petition for a modification of a prior custody order awarding custody to mother, the Fourth Department wrote:

“Generally, a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” … .  Here, we conclude that the court’s determination that it is in the best interests of the child to remain in the custody of the mother lacks a sound and substantial basis in the record.  ,,,

As a preliminary matter, we conclude that the court abused its discretion in failing to “draw the strongest inference that the opposing evidence permits” against the mother based upon her failure to appear for the hearing …, although we note that the court stated that it was doing so.  Although the court properly determined that the father failed to take steps to enforce his right to visit with the child, the court failed to credit the testimony of the mother’s family that the mother interfered with the father’s ability to visit the child; that the mother disparaged the father in the child’s presence; that, despite the court’s order granting telephone access to the child, the access lasted only two weeks; that the mother was verbally abusive to the child; that the child was afraid of her mother; and that the mother exhibited behaviors that support a determination that she failed to provide a proper home environment and parental guidance for the child … .  Further, the court failed to credit the evidence, including testimony and school records, that the mother failed to provide for the child’s emotional development and that the child’s intellectual and emotional development was supported by the mother’s family members and long-term friend, rather than by the mother ….  We note that there is no evidence that the mother has the financial ability to provide for the child and that the evidence establishes that the father has a job, a home, and pays child support … .

Although the court properly determined that the child “barely knows” the father, we conclude that the court erred in failing to give any weight to the 14-year-old child’s preference to live with the father rather than the mother, where, as here, the record establishes that her age and maturity would make her input “particularly meaningful”… . Matter of Lara … v Sullivan, 818, 4th Dept 7-19-13

 

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Termination of Parental Rights Affirmed Because Diligent Efforts to Reunite Parent and Child Were Made (In Spite of Misdiagnosis of Mother’s and Child’s Psychological Conditions)

The Fourth Department, over a dissent, affirmed Family Court’s termination of mother’s parental rights.  The dissent argued that the misdiagnosis of both the mother’s and child’s psychological conditions rendered the efforts to reunite the mother with the child inadequate.  The Fourth Department wrote:

Contrary to the contention of the mother, Family Court properly determined that petitioner made diligent efforts to reunite her with the child (see Social Services Law § 384-b [7] [a], [f]).  Among other things, petitioner arranged for a psychological assessment of the mother, arranged for therapy sessions for the mother and various services for the child, and provided the mother with parenting, budgeting, and nutrition education training.  Petitioner also provided the mother with supervised and unsupervised visits with the child. Most significantly, petitioner arranged for a child psychologist to meet with the mother on several occasions in her home to provide parenting training, and we agree with the court’s assessment that this was “truly a diligent effort” by petitioner to encourage and strengthen the parent-child relationship.

Contrary to the further contention of the mother, the court properly determined that she failed to plan for the future of the child (see Social Services Law § 384-b [7] [a]).  “ ‘[T]o plan for the future of the child’ shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child” (§ 384-b [7] [c]).  “At a minimum, parents must ‘take steps to correct the conditions that led to the removal of the child from their home’ ” (Matter of Nathaniel T., 67 NY2d 838, 840).  Here, while the mother participated in the services offered by petitioner and had visitation with the child, the evidence established that she was unable to provide an adequate, stable home for the child and parental care for the child… .  Matter of Cayden LR, 575, 4th Dept 7-19-13

 

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Violation of Zoning Ordinance Precludes Property Tax Exemption

The Fourth Department affirmed the determination the petitioner (a hospital) was not entitled to a property tax exemption because the use of the property was in violation of a zoning law.  After noting that a proceeding pursuant to RPTL article 7, and not an Article 78 proceeding, is the proper vehicle for challenging a tax assessment, the Fourth Department wrote:

The fact that petitioner used the subject property for “hospital purposes” as that term is used in the RPTL is not contested (RPTL 420-a [5]). Nevertheless, a property owner who uses its property for exempt purposes in violation of an applicable zoning law is prohibited from receiving a tax exemption pursuant to RPTL 420-a… . Matter of Geneva General Hospital v Assessor of Town of Geneva…,559, 4th Dept 7-5-13

 

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Written Notice of Defect Under Housing Merchant Implied Warranty Waived by Undertaking Repair

The homeowners (defendants) refused to pay the builder (plaintiff) the final payment under a custom home building contract because of alleged defects in the home.  The homeowners counterclaimed for breach of the housing merchant implied warranty.  The Fourth Department determined the written-notice-of-the-defect warranty-requirement was not an express condition precedent and the  builder had waived the requirement by undertaking the repairs in the absence of written notice:

…[W]e agree with plaintiff that defendants failed to provide written notice of the alleged defects, which is a constructive condition precedent to asserting such a counterclaim (see General Business Law § 777-a [4] [a];…, plaintiff waived the written notice requirement by addressing the defects after receiving defendants’ oral notification of those defects… .We reject plaintiff’s contention that written notice of the alleged defects was an express condition precedent that was bargained for by the parties and could therefore not be waived. Contrary to plaintiff’s contention, the requirements of General Business Law § 777-a, including the written notice req uirement, are implied in every contract for the sale of a new home as a matter of public policy (§ 777-a [5]) and thus may be applied by the courts “to do justice andavoid hardship”….  Rich v Orlando, 521, 4th Dept 7-5-13

 

Claim for Undistributed Goodwill Re: Dissolved Partnership Dismissed

The Fourth Department determined that Supreme Court should have granted summary judgment on a counterclaim which sought damages for undistributed goodwill of a partnership.  The partnership had been dissolved after the death of one of the partners and did not continue under the same structure. The Fourth Department explained:

Here, even assuming, arguendo, that the partners’ course of dealings or partnership agreement provided that goodwill is a distributable asset of the partnership, we conclude that defendants met their initial burden on that part of the motion for summary judgment dismissing the complaint to the extent it sought damages for undistributed goodwill.  Indeed, defendants established that there is no goodwill to distribute because the partnership has been dissolved and no longer exists.  In the circumstances presented here, it is incomprehensible that the partnership’s goodwill could survive the demise of the partnership, and the Court of Appeals decision in Dawson does not suggest otherwise.  In Dawson, although the Court of Appeals indicated that a dissolving partnership may have distributable goodwill, the partnership in that case was dissolved but was immediately reformed with the same partners, minus one, with the same firm name, using the same offices and servicing the same clients. Thus, in essence, the partnership was dissolved in name only. Here, in contrast, the same partnership did not reform after dissolution. Instead, two entirely new partnerships were formed.  Thus, plaintiffs failed to raise an issue of fact with respect to the existence of goodwill after the dissolution of the partnership… .  Moore… v Johnson…, 744, 4th Dept 7-5-13

 

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Reference to Old Offense that Was Dismissed Okay in “Mental Abnormality/Dangerous Sex Offender” Proceeding

The Fourth Department determined that evidence of a 1991 offense that was dismissed with the record sealed was admissible in a Mental Hygiene Law article 10 “dangerous sex offender” proceeding to determined whether defendant had a mental abnormality:

Evidence of prior crimes is commonly admissible in article 10 proceedings because it is probative of whether a designated felony was sexually motivated and whether a respondent has a mental abnormality…, and evidence of uncharged crimes likewise is admissible in article 10 proceedings because “Mental Hygiene Law article 10 does not limit the proof to acts that resulted in criminal convictions when considering the issue of mental abnormality”… . Matter of State of New York v Schraenkler,, 657, 4th Dept 7-5-13

 

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References to Fingerprint Evidence Processed by Non-testifying Technician Did Not Violate Right to Confrontation

In determining defendant’s right to confrontation was not violated by latent fingerprint evidence processed by a technician who did not testify, the Fourth Department explained:

The technician who processed and photographed the fingerprint did not compare the latent print to the fingerprints of defendant or any other suspect. Thus, the technician’s findings were not testimonial because the latent fingerprint, “standing alone, shed[s] no light on the guilt of the accused in the absence of an expert’s opinion that the [latent fingerprint] match[es] a known sample”… .Moreover, the analyst who determined that the latent print matched one of defendant’s fingerprints in fact testified at trial and was available for cross-examination.    Therefore, defendant’s right to confront witnesses against him was not violated… .  People v Jackson, 645, 4th Dept 7-5-13

TESTIMONIAL HEARSAY

 

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Affidavit Stating that Third Party Confessed to Murder Required a Hearing Pursuant to a Motion to Vacate the Judgment of Conviction Based Upon Newly Discovered Evidence

The Fourth Department reversed Supreme Court finding that a hearing should be held on defendant’s motion to vacate his conviction based on newly discovered evidence.  The evidence was an affidavit from a person to whom a third person is alleged to have confessed to the murder.  The Fourth Department determined the hearsay statement could be considered as a basis for the 440 motion because it met the criteria of a statement against penal interest and, although there was no showing the declarant was unavailable (a criterium for admissibility under this hearsay exception), it was reasonable to assume the declarant would assert his Fifth Amendment privilege against self-incrimination and refuse to testify (thereby becoming unavailable).

We agree with defendant that where, as here, the declarations exculpate the defendant, they “are subject to a more lenient standard, and will be found ‘sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true’ ”…. That is because “ ‘[d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense’ ” ….  Although the People contend that there is no evidence that the third party is unavailable, we conclude that, inasmuch as the statements attributed to the third party implicate him in a murder, there is a likelihood that, if called to testify at a trial, he would assert his Fifth Amendment privilege against self-incrimination and thus become unavailable … .  People v McFarland, 729, 4th Dept 7-5-13

 

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Evidence Insufficient to Support Reckless Endangerment in the First Degree—No One In Line of Fire

The Fourth Department reversed defendant’s conviction for reckless endangerment in the first degree in a shooting case where there was no evidence anyone was near the line of fire:

“A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct [that] creates a grave risk of death to another person” (Penal Law § 120.25). The evidence at trial established only that defendant stood on a street corner and fired up to five shots from a handgun. The People “presented no evidence that any person . . . ‘was in or near the line of fire’ ” so as to create a grave risk of death to any such person… .  People v Stanley, 757, 4th Dept 7-5-13

 

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