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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS DEFENDANT’S EXPERT’S OPINION THAT NERVE DAMAGE WAS NOT THE RESULT OF DEVIATION FROM THE STANDARD OF CARE; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit did not raise a question of fact in this medical malpractice case:

Although plaintiff submitted a physician’s affidavit in opposition to defendant’s motion, “[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician’s summary judgment motion” … . Where “the expert’s ultimate assertions are . . . unsupported by any evidentiary foundation, . . . [his or her] opinion should be given no probative force and is insufficient to withstand summary judgment” … . Here, plaintiff’s expert did not rebut the opinion in defendant’s affidavit that defendant’s surgical technique was appropriate to the situation in light of the fact that decedent’s lung was adherent to the heart, nor did plaintiff’s expert rebut defendant’s opinion that any possible phrenic nerve damage was the result of stretching caused by traction sutures and did not constitute a deviation from the standard of care. Campbell v Bell-Thomson, 2020 NY Slip Op 07807, Fourth Dept 12-23-20

 

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THE SENTENCING COURT DID NOT CONSIDER THE REQUIRED FACTORS WHEN SENTENCING DEFENDANT AFTER DEFENDANT’S VIOLATION OF THE TERMS OF INTERIM PROBATION; SENTENCE VACATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the sentencing court did not take the necessary factors into consideration in sentencing defendant after defendant violated the terms of interim probation:

We agree with defendant that the court failed to exercise its discretion at sentencing. “[T]he sentencing discretion is a matter committed to the exercise of the court’s discretion . . . made only after careful consideration of all facts available at the time of sentencing” … . Due consideration should be “given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … .

Here, the court initially imposed a sentence of interim probation and advised defendant that, if he violated the terms of interim probation, the court would impose a term of 4½ years’ incarceration with 3 years’ postrelease supervision. When defendant violated the terms of interim probation, the court informed defendant at sentencing that it would not consider a lesser sentence because “your word is your word. That was the deal. I don’t think that would speak well for the program nor would it speak well of me . . . I’d lose confidence in myself.” The court further stated that “[w]e made an agreement, we made a deal . . . I’m going to abide by that deal.” The sentencing transcript is devoid of any indication that the court considered the crime charged, defendant’s circumstances, or the purpose of the penal sanction … . Nor is there any indication that the court considered the presentence report, which was prepared after the plea. We conclude that “the sentencing transcript, read in its entirety, does not reflect that the court conducted the requisite discretionary analysis” … . People v Ruise, 2020 NY Slip Op 07785, Fourth Dept 12-23-20

 

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THERE IS NO CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION IN NEW YORK; PLAINTIFF’S DECEDENT, A CHILD, WAS MURDERED BY MOTHER’S BOYFRIEND: THE SUIT ALLEGING THE COUNTY DID NOT ADEQUATELY INVESTIGATE PRIOR REPORTS OF CHILD ABUSE SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the complaint, determined there is no cause of action for negligent investigation in New York:

At the age of five, plaintiff’s decedent was brutally murdered by his mother’s boyfriend … . Plaintiff thereafter commenced this wrongful death action, alleging that the County of Erie (defendant), through its Child Protective Services office, had inadequately investigated multiple prior reports of child abuse and neglect concerning the decedent child. …

As defendant correctly contends, “New York does not recognize a cause of action sounding in negligent investigation” of child abuse and neglect … . “Moreover, ‘a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York’ ” … . Hart v County of Erie, 2020 NY Slip Op 07779, Fourth Dept 12-23-20

 

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PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS ONE CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE CASE; THEREFORE THAT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the cause of action alleging defendant doctor caused the bowel perforation should have been dismissed because plaintiff’s expert’s affidavit did not address it:

The affidavit of plaintiff’s expert addressed defendant’s conduct only with respect to the claims that he failed to diagnose and treat the bowel perforation intraoperatively and failed to timely and properly treat the bowel perforation postoperatively. Plaintiff’s expert acknowledged that bowel perforation is a known complication from this type of surgery. Thus, plaintiff failed to raise a triable issue of fact with respect to the claims that defendant negligently caused the bowel perforation … . We therefore conclude that the court erred in denying defendant’s motion with respect to those claims, and we modify the order accordingly. Bristol v Bunn, 2020 NY Slip Op 07773, Fourth Dept 12-23-20

 

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CLAIMANT’S DECEDENT WAS KILLED IN A MULTIVEHICLE ACCIDENT IN WHITE OUT CONDITIONS ON A STATE HIGHWAY; QUESTIONS OF FACT ABOUT NOTICE OF THE RECURRING CONDITION AND PROXIMATE CAUSE (NO SNOW FENCE) WERE RAISED; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the state’s motion for summary judgment in this “white out” traffic accident case should not have been granted. Claimants argued the state had notice of a recurring white=out condition caused by blowing snow on a portion of a state highway. Claimant’s decedent died in a multivehicle accident in white out conditions:

… [T]he claimants raised a triable issue of fact with respect to whether defendant had actual knowledge of “an ongoing and recurring dangerous condition in the area of the accident” … . Notably, claimants submitted a Highway Safety Investigation Report that was prepared by an employee of defendant in December 2008. The report states that it was written in response to the subject accident with the purpose of “evaluat[ing] the frequency and potential for similar accidents and evaluate potential countermeasures.” The report compared the number and severity of the accidents on that portion of highway to those occurring elsewhere on I-390, and noted that, “[a]lthough the number of accidents in the study area was lower, the severity of the accidents was [greater].” The report also noted that “[s]everal factors exist which increase the degree of risk of poor visibility and drifting due to blowing snow in this section.” Such factors included the large, flat airport property next to the highway, the “abrupt, topographic change due to the proximity of the airport runway and former Pennsylvania railroad embankment,” and the section’s slight reverse curve. The data thus suggested that “snow on the road [was] an issue to be addressed in this area” and that, although the number of accidents was not extraordinarily high, “their occurrence was sufficiently sensational, disquieting to the public, and disruptive to the traveling public and [defendant] to justify making more than ordinary efforts to prevent them.” Furthermore, the deposition testimony of employees of defendant established that, for years prior to the accident, blowing and drifting snow had been an issue on that section of I-390.

We also agree with claimants that the court erred in determining that defendant established that the lack of a snow fence was not a proximate cause of the accident. Klepanchuk v State of N.Y. Dept. of Transp., 2020 NY Slip Op 07766, Fourth Dept 12-23-20

 

SECOND DEGREE MURDER COUNT DISMISSED A LESSER INCLUDED COUNT OF FIRST DEGREE MURDER (FOURTH DEPT).

The Fourth Department dismissed the second degree murder count as a lesser included count of first degree murder. People v Beard, 2020 NY Slip Op 07763, Fourth Dept 12-23-20

 

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THE APPEAL WAIVERS WERE NOT EXECUTED UNTIL SENTENCING AND WERE THEREFORE INVALID; ARGUMENTS ABOUT A LATE FILED OMNIBUS MOTION AND DEFENSE COUNSEL’S FAILURE TO FILE OMNIBUS MOTIONS DID NOT SURVIVE THE GUILTY PLEAS (FOURTH DEPT).

The Fourth Department determined the waivers of appeal were invalid and defendant’s arguments the court should have considered a late omnibus motion and defense counsel was ineffective for failing to file omnibus motions did not survive the guilty pleas:

The written waivers do not establish valid waivers because they were not executed until sentencing … and, even assuming, arguendo, that the written waivers had been executed at the time of the pleas, the court “failed to confirm that [defendant] understood the contents of the written waivers” … . …

Defendant contends in appeal No. 1 that the court abused its discretion in refusing to entertain, in the interest of justice and for good cause shown … , that part of his untimely omnibus motion seeking a Huntley hearing. We conclude, however, that defendant, by pleading guilty, forfeited appellate review of that contention. …

To the extent that defendant further contends in all three appeals that his first attorney’s failure to file a timely omnibus motion constituted ineffective assistance of counsel, we conclude under these circumstances that defendant’s contention likewise does not survive his guilty pleas. People v Parker, 2020 NY Slip Op 07747, Fourth Dept 12-23-20

 

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AN EXCEPTION TO THE BEST EVIDENCE RULE APPLIED, ALLOWING TESTIMONY DESCRIBING THE CONTENTS OF DESTROYED VIDEO SURVEILLANCE (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined an exception to the best evidence rule applied and testimony about the contents of a destroyed video surveillance was properly admitted in this grand larceny case:

Defendant appeals from a judgment … arising from the theft of wireless speakers valued in excess of $3,000 from a Target store … . Prior to trial, the People moved in limine for permission to introduce testimony from the store’s asset protection team leader (APT leader) regarding the contents of destroyed video surveillance footage that had depicted the incident. * * *

The best evidence rule “simply requires the production of an original writing where its contents are in dispute and sought to be proven” …  “The rule protects against fraud, perjury, and inaccurate recollection by allowing the [factfinder] to judge a document by its own literal terms” … . “Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence . . . and has not procured its loss or destruction in bad faith” … . The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility” … . * * *

… [T]he People met their burden of establishing that the APT leader’s testimony regarding the unpreserved footage was a reliable and accurate portrayal of the contents of that footage … . People v Jackson, 2020 NY Slip Op 07744, Fourth Dept 12-23-20

 

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A WHEEL CAME OFF DEFENDANT’S TRUCK CAUSING A FREAK ACCIDENT INVOLVING TWO OTHER VEHICLES RESULTING IN THE DEATH OF A DRIVER; THE CRIMINALLY NEGLIGENT HOMICIDE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; AT MOST, DEFENDANT FAILED TO PERCEIVE THE RISK CREATED BY A NOISY WHEEL (FOURTH DEPT).

The Fourth Department, reversing defendant’s criminally negligent homicide conviction, determined the evidence was against the weight of the evidence. Apparently, a wheel came off defendant’s truck, another truck hit the wheel and overturned on a car, killing the driver:

The testimony at trial established that defendant came into possession of the pickup truck several weeks before the accident, but that its last valid inspection was three years before the accident. Although the People established that the pickup truck had a forged inspection sticker, there was no evidence that defendant knew it was forged. Several witnesses testified that, in the three days preceding the accident, the pickup truck was making loud grinding noises and that, either the day before the accident or the day of the accident, defendant asked a person with mechanical experience what that person thought might be the issue. That person opined that the noise was likely being caused by a wheel or the brakes.

An inspection of the driver’s side wheel and truck after the accident established some significant problems with the wheel, and witnesses testified that the existence of problems would have been noticeable and would have created issues with steering. The testimony also established, however, that the severity of the problems could not have been known to the operator unless the wheel was removed from the truck. * * *

At most, the evidence established that defendant failed to perceive a risk, which does establish criminal negligence beyond a reasonable doubt … . People v Pinnock, 2020 NY Slip Op 06884, Fourth Dept 11-20-20

 

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THE DEFENDANTS IN THIS USURY, FRAUD AND DECEPTIVE BUSINESS PRACTICES ACTION FINANCED THE SALE OF JEWELRY OVER MANY MONTHS, MARKETING THE SALES AS A WAY FOR CONSUMERS TO IMPROVE THEIR CREDIT; THE MAJORITY HELD THE BUSINESS MET THE DEFINITION OF A “CREDIT SERVICES BUSINESS” WITHIN THE MEANING OF GENERAL BUSINESS LAW 458-H (FOURTH DEPT).

The Fourth Department, over a dissent, determined the cause of action which alleged defendants operated a “credit services business” within the meaning of General Business Law 458-h. The defendants financed the purchase of jewelry, claiming that such financing was a means of improving consumers’ credit record:

Plaintiff commenced this action alleging various claims for usury, common-law and statutory fraud, and deceptive business practices. …

A “credit services business” is defined as “any person who sells, provides, or performs, or represents that he can or will sell, provide or perform, a service for the express or implied purpose of improving a consumer’s credit record, history, or rating or providing advice or assistance to a consumer with regard to the consumer’s credit record history or rating in return for the payment of a fee” (§ 458-b [1]). According to the complaint, defendants “represent[]” that they “provide” a “service” to consumers—specifically, financing the purchase of jewelry—and defendants market such financing as a means “of improving [the] consumer’s credit record.” Put simply, defendants allegedly offer consumers the option of paying for jewelry over many months, and defendants allegedly advertise that financing option as a mechanism to improve the consumer’s credit. In exchange for that financing—i.e., the “service” contemplated by section 458-b (1)—defendants allegedly charge interest. Such interest, we conclude, constitutes a “fee” within the meaning of section 458-b (1). Thus, contrary to the court’s determination and the view of our dissenting colleague, the complaint sufficiently alleges that defendants’ business satisfies the statutory definition of a “credit services business” … . People v Harris Originals of Ny, Inc., 2020 NY Slip Op 06883, Fourth Dept 11-20-20

 

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