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CONFLICTING EXPERT OPINIONS PRECLUDED DISMISSAL OF MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING THE ALLEGED PREMATURE DISCHARGE OF PLAINTIFF FROM EMERGENCY CARE AFTER SHE EXPERIENCED SYMPTOMS OF A STROKE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s medical malpractice causes of action against the doctor who discharged her from emergency care and the hospital should not have been dismissed because the expert affidavits presented conflicting opinions. Plaintiff experienced symptoms consistent with a stroke and went to the hospital. An MRI was done but plaintiff was released before a final review of the MRI. Evidence of a stroke was ultimately found on the MRI. Plaintiff’s expert opined that the event which caused plaintiff to go to the hospital was a transient ischemic attack (TIA), not a stroke, and that the stroke occurred at the hospital about when the MRI was performed:

… [B]y submitting the affidavit of their expert, [plaintiffs] raised an issue of fact on the issue whether Dr. Kandel deviated from the standard of care … . Dr. Kandel permitted plaintiff to leave the hospital before her brain MRI had undergone a final review by a neuroradiologist. Plaintiffs’ expert opined that discharging plaintiff before a final review of the scans was complete constituted a deviation from the standard of care in light of plaintiff’s medical history, which indicated a significant stroke risk.

… [P]laintiffs raised a question of fact with respect to causation … . The hospital defendants relied upon the affirmation of Dr. Kandel’s medical expert, who opined that any alleged negligence is not the proximate cause of plaintiff’s injuries inasmuch as plaintiff suffered a stroke at or before 3 a.m. on October 27, and that the window in which to administer tPA, an anti-clot medication, had closed long before plaintiff arrived at the hospital for treatment approximately 13 hours later. … [P]laintiffs submitted an expert affidavit asserting … that the symptoms plaintiff experienced on the morning of October 27 were the result of a transient ischemic attack (TIA), which results in temporary stroke-like symptoms but does not result in a blockage, and that she did not experience the actual blockage until sometime later in the day, around the time of her brain MRI. Plaintiffs’ expert further opined that, had plaintiff stayed at the hospital overnight and had the MRI been read correctly, tPA could have been administered when plaintiff’s new symptoms presented. Clark v Rachfal, 2022 NY Slip Op 04472, Fourth Dept 7-8-22

Practice Point: Conflicting expert opinions preclude summary judgment in medical malpractice actions.

 

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GIVEN WHAT THE INFORMANT TOLD THE POLICE, THE FACT THAT DEFENDANT GRABBED AT HIS WAISTBAND WHEN THE POLICE APPROACHED HIM ON THE STREET PROVIDED REASONABLE SUSPICION THE DEFENDANT HAD A WEAPON AND THEREBY JUSTIFIED PURSUIT; THE DISSENT ARGUED THE INFORMATION FROM THE INFORMANT WAS NOT ENOUGH BY ITSELF AND THE PEOPLE DID NOT PROVE DEFDENDANT GRABBED AT HIS WAISTBAND BEFORE OR AFTER THE CHASE STARTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police had “reasonable suspicion” to pursue defendant as he fled when the police approached on the street. The defendant discarded a handgun as he fled:

… [P]olice responded to a 911 call that a parolee wanted on an outstanding warrant and who was known to possess guns was a passenger in a certain vehicle. The officers found a vehicle matching the description given by the 911 caller and followed it, losing sight of the vehicle momentarily but then spotting it stopped on a curb with the passenger standing outside the vehicle. As one of the officers exited the police vehicle and began to approach the passenger, the passenger ran away while holding the left side of his waistband and the officer chased after him. …

The court properly determined that the officers had at least an objective, credible reason to approach defendant and request information … . Defendant’s subsequent flight with his hand on his waistband from the approaching officer, combined with the 911 caller’s report about a wanted violent parolee who was potentially armed, and the police officers’ observations confirming the vehicle and suspect descriptions from the 911 call, provided the officers with reasonable suspicion to pursue defendant … .

From the dissent:

The People assert that the court properly determined that the pursuit was justified because, in addition to the information provided by the informant, the arresting officer observed defendant grabbing the front of his pants while running away, as if he had a gun in his waistband. Although defendant’s act of grabbing his waistband increased the degree of suspicion, perhaps even to the level required for pursuit, the evidence at the suppression hearing does not establish whether the arresting officer observed that conduct before or after he gave chase. People v Leonard, 2022 NY Slip Op 04468, Fourth Dept 7-8-22

Practice Point: Coupled with information provided from an informant claiming the defendant had guns and was violent, the defendant’s grabbing at his waistband as the police approached him on the street provided the police with reasonable suspicion the defendant had a weapon, thereby justifying police pursuit when defendant fled. The dissent argued the information from the informant did not provide reasonable suspicion and the People did not prove defendant grabbed at his waistband before he fled.

 

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PLAINTIFF ALLEGED DEFENDANT INSURER BREACHED THE INSURANCE CONTRACT BY FAILING TO PAY THE FULL AMOUNT OF THE COVERAGE; THAT ALLEGATION DOES NOT SUPPORT AN ADDITIONAL CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the cause of action for breach of the implied covenant of good faith and fair dealing duplicated the breach of contract cause of action and should have been dismissed. Plaintiff alleged defendant insurer failed to pay her the full amount of the supplemental uninsured motorist (SUM) coverage:

In the context of insurance contracts specifically, the implied covenant of good faith and fair dealing includes a duty on the part of the insurer ” ‘to investigate in good faith and pay covered claims’ ” … “[I]n order to establish a prima facie case of bad faith, the plaintiff must establish that the insurer’s conduct constituted a ‘gross disregard’ of the insured’s interests—that is, a deliberate or reckless failure to place on equal footing the interests of [the] insured with [the] insurer’s own interests” … .

… [T]he allegations in plaintiff’s complaint that defendant violated its duty of good faith and fair dealing are predicated solely upon the claim that defendant failed or refused to pay her the full amount of SUM coverage under the insurance policy, i.e., that defendant had breached the terms of the policy. Consequently, plaintiff failed to state a cause of action for breach of the implied duty of good faith and fair dealing … , and the court should have granted defendant’s motion insofar as it sought to dismiss that cause of action as duplicative of the breach of contract cause of action … . Brown v Erie Ins. Co., 2022 NY Slip Op 04459, Fourth Dept 7-8-22

Practice Point: In the context of an insurance policy, a cause of action for breach of the implied covenant of good faith and fair dealing must be supported by allegations of the insurer’s gross disregard of the insured’s interests, which is not demonstrated by the alleged failure to pay the full amount of the coverage (a simple breach of contract).

 

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THE CASUALTY CLAUSE IN THE LEASE DID NOT APPLY TO EXCUSE DEFENDANT-TENANT’S NONPAYMENT OF RENT DURING THE COVID PANDEMIC; THE FORCE MAJEURE, FRUSTRATION OF PURPOSE AND UNCLEAN HANDS DOCTRINES ALSO DID NOT APPLY (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined (1) the casualty clause in the lease did not excuse defendant’s failure to pay rent during the COVID pandemic, (2) the force majeure doctrine did not apply, (3) and the frustration-of-purpose and unclean-hands doctrines did not apply:

… [W]e conclude that plaintiff established as a matter of law that defendant was not entitled to a rent abatement under the section of the lease providing that defendant was “not required to pay [r]ent when the [r]ental [s]pace [was] unusable” as a result of “damage” caused by a “fire or other casualty.” “That [section] of the lease refers to singular incidents causing physical damage to the premises and does not contemplate loss of use due to a pandemic or resulting government lockdown” … . * * *

… [T]he lease “contain[s] no force majeure provision, much less one specifying the occurrence that defendant would now have treated as a force majeure, and, accordingly, there is no basis for a force majeure defense” … . * * *

… “[T]he doctrine of frustration of purpose does not apply as a matter of law where, as here, the tenant was not ‘completely deprived of the benefit of its bargain’ ” … .

… [T]here is no triable issue of fact on its unclean hands defense because, even if defendant had made genuine attempts to procure another tenant, plaintiff was under no contractual obligation to seek or approve a sublease with a third party for the relatively short period remaining on the commercial lease, and there is nothing immoral or unconscionable about plaintiff’s decision to seek the unpaid rent that defendant was contractually obligated to pay … . Arista Dev., LLC v Clearmind Holdings, LLC, 2022 NY Slip Op 04451, Fourth Dept 7-8-22

Practice Point: The casualty clause in the lease applied only to singular events, not to the COVID pandemic. Defendant’s nonpayment of rent during the COVID pandemic was not excused by the terms of the lease.

 

THE ONE COUNT INDICTMENT WAS RENDERED DUPLICITOUS BY THE BILL OF PARTICULARS AND WAS DISMISSED AFTER TRIAL; THE APPELLATE COURT NOTED THAT EVEN IF THE EVIDENCE HAD BEEN NARROWED AT TRIAL, DISMISSAL WOULD STILL BE REQUIRED BECAUSE DEFENDANT DID NOT HAVE PRETRIAL NOTICE OF THE CHARGES (FOURTH DEPT).

The Fourth Department, reversing the conviction and dismissing the indictment, determined the one count indictment was rendered duplicitous by the bill of particulars. The court noted that, even if the scope of the evidence had been narrowed at trial, reversal still would have been necessary because defendant did not have pretrial notice of the charges:

Because the sole count of the indictment charged only one offense, as required by CPL 200.30 (1) … , the indictment on its face was not duplicitous. It is well settled, however, that indictments charging one offense per count can be rendered duplicitous by, among other things, a bill of particulars alleging more than one offense per count … . Here, the bill of particulars alleged that defendant engaged in two separate and distinct acts of nonconsensual sexual intercourse with the victim. The second such act allegedly occurred more than three hours after the first act. Thus, while the indictment charged only one criminal act, the jury heard evidence at trial of two criminal acts, with no specification from the court or the prosecutor as to which act they were to consider when rendering a verdict.

Even if the trial evidence narrowed the scope of defendant’s allegedly illegal conduct, and here it did not, that “is irrelevant. Defendant was entitled to pretrial notice of the charges so that he would be able to adequately prepare a defense” … . People v Baek, 2022 NY Slip Op 04263, Fourth Dept 7-1-22

Practice Point: Here the one count indictment was rendered duplicitous by the bill of particulars which alleged two sexual acts. Even if the evidence had been narrowed at trial, reversal still would have been necessary because defendant did not have pretrial notice of the charges.

 

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DEFENDANT’S COUNSEL WAS INEFFECTIVE IN THAT COUNSEL’S EXPLANATION OF THE IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA WAS WRONG; MATTER REMITTED FOR A HEARING ON WHETHER THERE IS A REASONABLE POSSIBILITIY DEFENDANT WOULD NOT HAVE PLED GUILTY HAD HE BEEN PROPERLY INFORMED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant demonstrated his attorney gave him the wrong advice about the chances he would be deported based on his guilty plea and sent the matter back for hearing on whether the is a reasonable possibility defendant would not have pled guilty if he had been properly informed:

In support of [defendant’s motion to vacate his conviction], defendant’s attorney on the motion averred that defense counsel had given advice that was consistent with an assumption that the crime that defendant was pleading guilty to was a crime of moral turpitude within the meaning of the Immigration and Nationality Act (INA), for which an immigration judge could grant a cancellation of removal, when in actuality defendant was pleading guilty to an aggravated felony under the INA that would almost certainly result in deportation…. . People v Go, 2022 NY Slip Op 04258, Fourth Dept 7-1-22

Practice Point: Defendant moved to vacate his conviction by guilty plea on ineffective assistance grounds. Defendant demonstrated that his attorney’s explanation of the immigration consequences of the plea was wrong. Therefore County Court should have held a hearing on whether there is a reasonable possibility defendant would not have pled guilty had he been correctly informed.

 

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THE AMOUNT OF RESTITUTION WAS NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE; ALTHOUGH UNPRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed the determination of the amount of restitution and remitted for a hearing. The error was not preserved and was considered in the interest of justice. The court further noted that the recipient of the restitution was not put on the record:

… [T]he People failed to establish the victim’s actual out-of-pocket loss by a preponderance of the evidence. The restitution amount ordered by the court deviated from the loss claimed by the restaurant manager in his testimony, and the sole evidence supporting the actual amount of out-of-pocket loss calculated by the court was an undetailed, vague letter ostensibly from the restaurant franchisee’s insurer listing an amount of loss—the calculation and accuracy of which was, by their own representation at the hearing, unknown to the People … . People v Piasta, 2022 NY Slip Op 04243, Fourth Dept 7-1-22

Practice Point: Here the amount of restitution was not proven by a preponderance of the evidence. The recipient of the restitution was not identified on the record. Although the errors were not preserved, they were considered in the interest of  justice. The matter was remitted for a hearing.

 

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THE MAJORITY HELD THAT THE SIX-YEAR DELAY BETWEEN WHEN THE PEOPLE WERE AWARE OF THE DNA EVIDENCE LINKING DEFENDANT TO THE RAPE AND DEFENDANT’S ARREST DID NOT DEPRIVE DEFENDANT OF DUE PROCESS; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined defendant was not entitled to reversal of the rape conviction based on the six-year preindictment delay. The dissenter would have reversed, finding the delay deprived defendant of due process:

In determining whether defendant was deprived of due process, we must consider the factors set forth in People v Taranovich (37 NY2d 442 [1975]), which are: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . * * *

There is no indication that the “delay was caused by any bad faith on the part of the People” … . Instead, the delay was largely caused by the efforts of the People and law enforcement “to acquire substantial corroborating evidence in order to prove defendant’s guilt beyond a reasonable doubt” … . Nevertheless, it is true, as defendant points out, that extensive periods of delay may fairly be attributed to neglect by the People and law enforcement in the investigation. But even assuming, arguendo, that [this] factor weighs in defendant’s favor, three of the five factors favor the People, and we thus conclude that the court did not err in denying that part of defendant’s omnibus motion seeking to dismiss the indictment on due process grounds.

From the dissent:

The People … failed to present a valid reason for the delay … . As of September 2006, when the prosecution was made aware of DNA evidence linking defendant to the crime, the prosecutor possessed all information necessary to charge defendant, and the record reveals no reason, plan, or deliberate decision to delay defendant’s arrest until it was eventually made in January 2013. Instead, the record reflects that the explanation for the over six-year delay was simply inadvertence, which is an insufficient reason as a matter of law … . People v Stefanovich, 2022 NY Slip Op 04241, Fourth Dept 7-1-22

Practice Point: There was a six-year delay between when the People became aware of DNA evidence linking defendant to the crime and defendant’s arrest. The majority held the delay did not deny defendant of due process. The dissenter argued the People demonstrated only that the delay was the result of “inadvertence,” which is an insufficient reason.

 

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IN THIS “CHILD VICTIMS ACT” ACTION ALLEGING SEXUAL ABUSE IN THE 1950’S BY EMPLOYEES OF THE NOW DISSOLVED YMCA NIAGARA FALLS, THERE ARE QUESTIONS OF FACT WHETHER THE DE FACTO MERGER DOCTRINE APPLIES RENDERING YMCA BUFFALO LIABLE FOR THE TORTS OF YMCA NIAGARA FALLS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined this “Child Victims Act” action against YMCA Buffalo, alleging sexual abuse in the 1950’s by employees at the now dissolved YMCA Niagara Falls, should not have been dismissed. The decision is comprehensive and cannot be fairly summarized here. There exist triable issues of fact whether the de facto merger doctrine applies rendering YMCA Buffalo liable for the torts of YMCA Niagara Falls:

… [A]s a general rule, “a corporation which acquires the assets of another is not liable for the torts of its predecessor” ,,, . There are exceptions, however, and thus “[a] corporation may be held liable for the torts of its predecessor if (1) it expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligations” … . Plaintiff relies exclusively on the second exception, which implicates the de facto merger doctrine … . The de facto merger doctrine is “based on the concept that a successor that effectively takes over a [corporation] in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased,” which “is consistent with the desire to ensure that a source remains to pay for the victim’s injuries” … . Dutton v Young Men’s Christian Assn. of Buffalo Niagara, 2022 NY Slip Op 04238, Fourth Dept 7-1-22

Practice Point: In this Child Victims Act action alleging sexual abuse in the 1950’s by employees of the now dissolved YMCA Niagara Falls, there are questions of fact about whether the de facto merger doctrine makes defendant YMCA Buffalo liable for the torts of YMCA Niagara Falls. The decision is comprehensive and discusses every conceivable aspect of the de facto merger doctrine as it applies to not-for-profit corporations.

 

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THERE WAS AN “UNWARNED” THREE-FOOT DROP ON THE OTHER SIDE OF A DOOR IN A REMOTE AREA OF THE HOSPITAL; PLAINTIFF, A HOSPITAL WORKER, WAS INJURED BY THE THREE-FOOT DROP; THE ARCHITECTURAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND NO DUTY WAS OWED TO THE PLAINTIFF; THE CONSTRUCTION COMPANY JUSTIFIABLY RELIED ON THE ARCHITECT’S SPECIFICATIONS AND COULD NOT BE HELD LIABLE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the architectural malpractice cause of action should not have been dismissed. Plaintiff, a hospital maintenance groundskeeper, was injured by a three-foot drop on the other side of a door for which there were no warning signs. Although the door was in a remote area of the hospital, Supreme Court should not have concluded the defendant architectural firm (SBRA) did not owe a duty to the hospital worker who was showing the area to a coworker. The cause of action against the construction company, however, was properly dismissed because the construction company was justified in relying upon SBRA’s specifications:

… SBRA had the initial burden of establishing that it “used the degree of care in design that a reasonably prudent architect would use to avoid an unreasonable risk of harm to anyone likely to be exposed to the danger” … . Initially, we conclude that the court erred in determining that plaintiff was not an intended user of the area where the incident occurred and thus that SBRA had no duty to plaintiff with respect to the design of that area. The evidence established that plaintiff was an employee of the hospital who was using the door in its ordinary manner, i.e., to reach the location on the other side of the door while he was showing that location to a coworker. Moreover, the coworker’s deposition testimony was submitted by SBRA in support of its motion and established that there was a three-foot differential to the floor upon exiting the door and there were no warning signs, no locks on the door, and no railings. Thus, we conclude that SBRA failed to establish as a matter of law that it had no duty to plaintiff … or that it was not negligent in the design of the relevant portion of the building … . Dentico v Turner Constr. Co. & SBRA, Inc., 2022 NY Slip Op 04237, Fourth Dept 7-1-22

Practice Point: There were questions of fact about whether the architectural firm was liable for injuries caused by a three-foot drop on the other side of a door. The causes of action should not have been dismissed on the ground no duty was owed to the plaintiff. Plaintiff was a hospital worker and the door was in a remote area of the hospital. The construction company was not liable because it justifiably relied on the architectural specifications.

 

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