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THE MEDICAL MALPRACTICE ACTION AGAINST A FIRST-YEAR RESIDENT, WHO DID NOT EXERCISE INDEPENDENT JUDGMENT IN FOLLOWING THE DIRECTION OF HIS SUPERVISORS TO DISCONTINUE A MEDICATION, SHOULD HAVE BEEN DISMSSED; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the medical malpractice action against Dr. Drummond, a first-year resident, should have been dismissed because he did not exercise any independent medical judgement but merely followed the direction of his supervisors when medication was discontinued:

Defendants met their initial burden on the motion by presenting the affidavit of an expert who opined that, as a first-year resident, Dr. Drummond could not and did not make any medical decisions independently and that he properly wrote the discharge instruction to discontinue the medication only after discussing and confirming that decision with the appropriate supervisors, a practice that complied with the applicable standard of care … . Defendants also submitted the deposition testimony of Drs. Drummond and Bath, which established that Dr. Drummond consulted with Dr. Bath prior to decedent’s discharge and confirmed with him that the decision had been made to discontinue the medication. Plaintiff failed to raise a triable issue of fact in opposition … . Based on that conclusion, we likewise agree with defendants that the court erred in denying that part of the motion seeking summary judgment dismissing the complaint and any cross claims against Kaleida Health insofar as the complaint asserts a claim of vicarious liability based on the alleged conduct of Dr. Drummond … . Bieger v Kaleida Health Sys., Inc., 2021 NY Slip Op 03772, Fourth Dept 6-11-21

 

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IN THIS SLIP AND FALL CASE WHERE COGNITIVE IMPAIRMENT WAS ALLEGED, DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM CONDUCTING A NEUROPSYCHOLOGICAL EXAMINATION (NPE) OF PLAINTIFF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants were entitled to a neuropsychological examination (NPE) of the plaintiff pursuant to CPLR 3121:

… [W]e agree with defendants that the preclusion order sought by plaintiff is not warranted inasmuch as the NPE is material and necessary to defend against plaintiff’s claims that he sustained head injuries and cognitive impairment ”’ . Here, plaintiff placed his mental and physical condition in controversy by alleging in the verified complaint, as amplified by the verified bills of particulars, that he injured, inter alia, his head, neck, spine, left wrist and left elbow and suffered “emotional and psychological pain . . . with related mental anguish, stress, and anxiety” as a result of the accident. Furthermore, defendants’ submissions in opposition to the motion established, inter alia, that plaintiff’s neurologist and psychologist had both ordered neuropsychological evaluations of plaintiff that had not been conducted, and that the requested NPE differs significantly from neurologic and neurosurgical examinations. In particular, defendants submitted an affidavit from the neuropsychologist who would conduct the NPE, who averred that he would utilize a different methodology, would administer a different battery of psychological tests, and would complete more detailed cognitive testing to determine the existence of any mood or behavioral deficits resulting from plaintiff’s alleged injuries, whereas the testing done by neurologists and neurosurgeons generally focuses on physical abnormalities and physical manifestations of those abnormalities. Pokorski v FDA Logistics, 2021 NY Slip Op 03770, Fourth Dept 6-11-21

 

DURING THE BATSON PROCEDURE, THE PROSECUTOR’S RACE-NEUTRAL EXPLANATION FOR A PEREMPTORY JUROR CHALLENGE WAS NOT SUPPORTED BY THE RECORD AND SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT, NEW TRIAL ORDERED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the race-neutral explanation for the prosecutor’s peremptory challenge to a juror was not borne out by the record. A new trial was ordered. The prosecutor argued the prospective juror referred to police conduct as “harsh.” But the prospective juror was apparently commenting on general differences between living in Rochester and Brooklyn, not the police:

We conclude that reversal is required because the race-neutral reason proffered by the prosecutor and accepted by the court is not borne out by the record … . Although the record need not conclusively establish that a prospective juror actually harbors bias in order for a bias-based peremptory challenge to withstand review under Batson … , a proffered race-neutral reason cannot withstand a Batson objection where it is based on a statement that the prospective juror did not in fact make … . Here, the record does not support the prosecutor’s characterization of the prospective juror’s statements. We therefore reverse the judgment and grant a new trial on count one of the indictment … . People v Coleman, 2021 NY Slip Op 03695, Fourth Dept 6-11-21

 

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ALTHOUGH ONE OF THREE STATEMENTS MADE TO A DETECTIVE AFTER DEFENDANT HAD INVOKED HIS RIGHT TO COUNSEL WAS NOT SPONTANEOUS, ITS ADMISSION WAS HARMLESS ERROR; THE DISSENT ARGUED ALL THREE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AND THE CONSTITUTIONAL ERROR WAS NOT HARMLESS (FOURTH DEPT).

The Fourth Department, over a dissent, determined that two of three statements made after defendant had invoked his right to counsel were spontaneous and properly admitted. The third statement was deemed a response to the functional equivalent of interrogation, but its admission was harmless error. The dissent argued that all three statements should have been suppressed and the constitutional error was not harmless:

[The] statements were made by defendant after the interrogation ceased and while a detective was sitting next to him, completing the arrest paperwork. After the detective asked him certain pedigree questions, defendant asked “How’s Annie doing?,” referring to decedent’s wife. The detective replied that she was “hurt” and said that she “lost the person she loved the most in life.” The detective then asked defendant if he wanted another coffee or soda and, after defendant responded that he would like another cup of coffee, he started crying. The detective whispered “good response” and told him “that’s remorse.” There was a brief interruption when another detective opened the door to the interview room and discussed lunch plans with the first detective, and the first detective then asked defendant if he was hungry. Defendant responded “yeah,” and then stated “it wasn’t supposed to happen like that” and that he “didn’t mean for any of that to happen” (first statement). After the detective responded “I understand,” defendant stated “I just wanted to prank ’em just like jig ’em” (second statement). After the detective responded with several statements including that “remorse is what we wanted to see” and that the police did not think that defendant’s intentions were to kill anyone, defendant said “I should’ve just stuck around. Maybe I coulda [sic] done something” (third statement). * * *

With respect to the third statement, we agree with defendant that it was not spontaneous because it was made in response to the functional equivalent of express questioning by the detective … . People v Bowen, 2021 NY Slip Op 03685, Fourth Dept 6-11-21

 

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QUESTION OF FACT WHETHER THE DRIVER OF DEFENDANT’S TRUCK IN THIS TRAFFIC ACCIDENT CASE WAS AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE FOR WHOM DEFENDANT WOULD BE LIABLE PURSUANT TO RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this traffic accident case, determined there was a question of fact about the liability of the delivery company under respondeat superior. Supreme Court determined the driver was an independent contractor and the company was therefore not liable:

An entity that retains an independent contractor generally is not liable for the independent contractor’s negligent acts … . Whether a relationship between a delivery company and its drivers ” ‘is that of employees or independent contractors involves a question of fact as to whether there is evidence of either control over the results produced or over the means used to achieve the results’ ” … . Here, defendant’s own evidentiary submissions established that defendant rented the delivery truck that was involved in the accident, was empowered to install its own signage on the truck, designed the delivery routes, set the times for the deliveries, and required drivers to submit incident reports following any accidents, thereby raising a question of fact with respect to the nature of the employment relationship … . Raymond v Hillebert, 2021 NY Slip Op 03684, Fourth Dept 6-11-21

 

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COMPARATIVE NEGLIGENCE IS A DEFENSE TO A LABOR LAW 241 (6) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department noted that comparative negligence is a defense to a Labor Law 241 (6) cause of action. Here plaintiff alleged he slipped and fell on ice and snow in a parking lot which functioned as a passageway and Supreme Court granted plaintiff’s motion for summary judgment. The Fourth Department found defendant had raised a question of fact about whether it had discharged its duty to keep the passageway clear by salting it and sent the matter back for a trial:

… [G]iven the need for a trial on liability and, if necessary, a new trial on damages, we note our agreement with defendant that the court erred in granting plaintiff’s request to preclude defendant from introducing at the prior damages trial any evidence of plaintiff’s comparative fault with respect to the Labor Law § 241 (6) cause of action. The court determined that defendant was precluded from offering evidence of plaintiff’s comparative fault at trial because that issue had been decided when the court granted plaintiff’s motion. Contrary to the court’s determination, however, consideration of comparative fault is still required even “[w]hen a defendant’s liability is established as a matter of law before trial” because the jury must still “determine whether the plaintiff was negligent and whether such negligence was a substantial factor” in causing his or her injuries … , “comparative negligence remains a cognizable affirmative defense to a section 241 (6) cause of action” … . Baum v Javen Constr. Co., Inc., 2021 NY Slip Op 03678, Fourth Dept 6-11-21

 

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ALTHOUGH THE POLICE IN THIS STREET STOP CASE MAY HAVE HAD CAUSE FOR A LEVEL ONE INQUIRY (A CAN IN A PAPER BAG), THEY IMMEDIATELY ENGAGED IN LEVEL TWO INVASIVE QUESTIONING FOCUSED ON DEFENDANT’S POSSIBLE VIOLATION OF THE OPEN CONTAINER LAW; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined defendant’s motion to suppress based upon the illegal street stop should have been granted. The police may have been justified in a level one (DeBour) inquiry based upon an apparent violation of the open-container law (a can in a paper bag), but the police immediately moved to a level two encounter with invasive questioning about the container in the paper bag:

At the first level of a police-civilian encounter, i.e., a request for information, a police officer may approach an individual “when there is some objective credible reason for that interference not necessarily indicative of criminality” (De Bour, 40 NY2d at 223), and “[t]he request may ‘involve[] basic, nonthreatening questions regarding, for instance, identity, address or destination’ ” … .”The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a [police officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (De Bour, 40 NY2d at 223).

Here, even assuming, arguendo, that the officers possessed a level one right to approach defendant and his companion … the officers nonetheless immediately “engaged in a level two intrusion, i.e., ‘a more pointed inquiry into [the] activities [of defendant and his companion]’ . . . , by asking ‘invasive question[s] focusing on the possible criminality of the subject’ ” … . Notably, the officers did not see defendant or his companion drinking from whatever item was in the paper bag, and there were no other attendant circumstances indicative of criminal behavior that would warrant the more pointed inquiry at the outset … . People v Wright, 2021 NY Slip Op 03675, Fourth Dept 6-11-21

 

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THE CITY OF ROCHESTER LOCAL LAW WHICH PURPORTED TO TRANSFER THE POWER TO DISCIPLINE POLICE OFFICERS TO THE POLICE ACCOUNTABILITY BOARD (PAB) IS INVALID AND CANNOT BE ENFORCED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined the City of Rochester Local Law which transferred the power to discipline police officers from the police chief to the Police Accountability Board (PAB) is invalid and cannot be enforced:

… [t]he challenged Local Law No. 2 necessarily falls insofar as it takes police discipline out of collective bargaining because, in that respect, it conflicts with the general law mandating collective bargaining over police discipline (see Civil Service Law § 204 [2] … ). As the Court of Appeals has explained, “a local law is inconsistent [with the general law] where local laws prohibit what would be permissible under State law”… , and by creating a permanent administrative apparatus for disciplining police officers that is impervious to alteration or modification at the bargaining table, Local Law No. 2 necessarily and structurally prohibits something that … is statutorily mandated for the City of Rochester: collective bargaining of police discipline. The court therefore properly invalidated Local Law No. 2 insofar as it imbues PAB with disciplinary authority over Rochester police officers without regard to collective bargaining. Matter of Rochester Police Locust Club, Inc. v City of Rochester, 2021 NY Slip Op 03787, Fourth Dept 6-11-21

 

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DEFENDANT’S REQUEST TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF ATTEMPTED STRANGULATION SECOND DEGREE SHOULD HAVE BEEN GRANTED; NEW TRIAL ON THAT CHARGE ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of strangulation second degree, determined the request to instruct the jury to consider the lesser included offense of attempted strangulation second degree should have been granted. There was a reasonable view of the evidence which would have allowed the jury to find the victim did not suffer physical injury:

… [T]he disputed issue is whether there is a reasonable view of the evidence supporting a determination of guilt on the lesser count but not the higher count. Strangulation in the second degree requires proof that the victim suffered stupor, loss of consciousness, or physical injury or impairment (Penal Law § 121.12). Inasmuch as there was no evidence that the complainant suffered stupor or loss of consciousness, defendant’s guilt of this offense rested entirely on the evidence that the complainant sustained a physical injury. Viewing the evidence in the light most favorable to defendant … , we conclude that a reasonable view of the evidence would have supported a determination that the complainant did not sustain a physical injury and thus that defendant was guilty of only the lesser offense and not the greater … . People v Swift, 2021 NY Slip Op 03785, Fourth Dept 6-11-21

 

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QUESTIONS OF FACT PRECLUDED SURROGATE’S FINDING THAT THREE JOINT BANK ACCOUNTS WERE PART OF THE ESTATE AS OPPOSED TO JOINT ACCOUNTS WITH RIGHT OF SURVIVORSHIP (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined there were questions of fact about whether three joint bank accounts passed to respondent outside the estate or were part of the estate. The was no evidence of a signature card which included “right of survivorship” language. Respondent argued decedent intended the bank accounts to be gifts to the respondent, but the language of the will raised questions of fact about decedent’s intent:

Absent the necessary survivorship language, the statutory presumption contained in Banking Law § 675 does not apply, even if the documents creating the account provide that it is a “joint” account … . Here, on her motion, respondent failed to establish that the statutory presumption created under Banking Law § 675 is applicable because she failed to submit signature cards or ledgers of the accounts that included the required survivorship language. …

Respondent averred in an affidavit that decedent placed her name on the accounts with the stated intention of gifting them to her. Respondent also submitted related account documents, including bank documents for all four accounts that reference both respondent and decedent’s names and include survivorship or joint tenancy language. Thus, respondent submitted evidence establishing that the four accounts were joint accounts with right of survivorship, and the burden then shifted to petitioners. …

… [P]etitioners submitted decedent’s will, which left the estate to the three children. Thus, the intent of decedent, as evidenced by her will, is inconsistent with respondent’s contention that the three bank accounts were gifts to respondent or joint tenancies with survivorship rights … . … [P]etitioners submitted respondent’s deposition testimony that those three accounts were funded solely by decedent, that one of the … accounts was used as decedent’s primary checking account, and that payments out of that account were for only decedent’s benefit. … [R]espondent, who became joint owner of those three accounts when decedent was in her mid to late eighties, testified that she helped decedent with her banking. Matter of Najjar (Sanzone), 2021 NY Slip Op 03777, Fourth Dept 6-11-21

 

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