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THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CROSS EXAMINE THE DEFENSE EXPERT USING DECEDENT’S HUSBAND’S DEPOSITION IN THIS NEGLIGENCE AND PUBLIC-HEALTH-LAW VIOLATION CASE; THE DECEDENT’S HUSBAND, A NONPARTY, WAS AVAILABLE TO TESTIFY; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff should not have been allowed to cross-examine the defense expert using the deposition of decedent’s husband, who was available to testify. The defense motion to set aside the verdict in this negligence and Public-Health-Law violation case should have been granted:

Supreme Court erred in allowing plaintiff to cross-examine a defense expert using the deposition of decedent’s husband, a nonparty. CPLR 3117 limits the use of a nonparty’s deposition at trial to either the impeachment of that nonparty as a witness … , or for “any purpose against any other party” in case of the nonparty’s unavailability at trial … . Here, plaintiff was not using the husband’s deposition testimony to impeach the husband’s own trial testimony, and the husband was available and testified at trial. Contrary to plaintiff’s assertion, CPLR 4515 does not permit a party to cross-examine an expert with all the materials that the expert reviewed in formulating his or her opinion, regardless of the independent admissibility of those materials … . “That statute provides only that an expert witness may on cross-examination ‘be required to specify the data and other criteria supporting the opinion’ ” … . Because the testimony pertained directly to the central issue to be resolved by the jury, i.e., the quality of care that decedent received, the error was not harmless … . Williams v Ridge View Manor, LLC, 2020 NY Slip Op 06894, Fourth Dept 11-20-20

 

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DEFENDANT SHOULD HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER RE TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE, WHICH ARE NOT VIOLENT FELONIES (FOURTH DEPT).

The Fourth Department determined the sentences for two counts of criminal possession of a weapon third degree, D felonies, were illegal:

… [T]he determinate terms of incarceration of seven years imposed on counts 2 and 10 of the indictment, for criminal possession of a weapon in the third degree, class D felonies, are illegal. Those crimes are not violent felonies (see generally Penal Law § 70.02 [1] [c]), and therefore, the court should have sentenced defendant as a second felony offender on those counts and imposed indeterminate terms of incarceration (see § 70.06 [3] [d]; [4] [b]). Furthermore, inasmuch as defendant must be sentenced to indeterminate terms of incarceration, he is not subject to a period of postrelease supervision on those counts (see § 70.45 [1 …). People v Lovette, 2020 NY Slip Op 06892, Fourth Dept 11-20-20

 

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THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A PRIOR UNCHARGED SHOOTING; DEFENSE COUNSEL DID NOT OPEN THE DOOR FOR THAT EVIDENCE; THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO TREAT THE PEOPLE’S WITNESSES AS HOSTILE WITNESSES; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of attempted murder and ordering a new trial, determined evidence of a prior uncharged shooting should not have been admitted and the prosecutor should not have been allowed to cross-examine the People’s witnesses as hostile witnesses:

County Court erred by permitting the prosecutor to present evidence of a prior uncharged shooting under the theory that defense counsel opened the door to such evidence … . …

… [T]he ‘opening the door’ theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination” … . Instead that “principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally exclude all evidence which has not been made necessary by the opponent’s case in reply” … . * * *

The prosecutor … assumed the risk of the adverse testimony by “calling the witness[es] . . . in the face of the forewarning” [about what they would say]. … [A]t the time of the relevant questioning, the court had not granted the prosecutor permission to treat either witness as hostile … . … [T]he prosecutor improperly “use[d the] prior statement[s] for the purpose of refreshing the recollection of the witness[es] in a manner that disclose[d their] contents to the trier of the facts” (CPL 60.35 [3]). People v Sylvester, 2020 NY Slip Op 06891, Fourth Dept 11-20-20

 

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TOWN PROCEEDINGS ABOUT WHETHER THE TOWN WAS OBLIGATED TO PLOW THE ROAD LEADING TO PETITIONER’S PROPERTY WAS NOT A “QUASI-JUDICIAL” PROCEEDING AND THEREFORE THE STANDARD OF REVIEW WAS NOT “SUBSTANTIAL EVIDENCE;” THE STANDARD IS WHETHER THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS OR AFFECTED BY AN ERROR OF LAW (FOURTH DEPT).

The Fourth Department determined the the town was obligated to plow the road leading to the petitioner’s property. The decision has a discussion of the evidentiary standards for review of an Article 78 proceeding:

With respect to this proceeding, … “the substantial evidence standard of review does not apply to the administrative decision at issue, since it was made after [an] informational public hearing[], as opposed to a quasi-judicial evidentiary hearing” … . “Evidentiary hearings that are constitutionally required and have some of the characteristics of adversary trials, including cross-examination, result in ‘quasi-judicial’ determinations that are subject to article 78 review in the nature of certiorari, where the ‘substantial evidence’ inquiry is applicable” (… see CPLR 7803 [4]). “In a mandamus to review proceeding, however, no quasi-judicial hearing is required; the petitioner need only be given an opportunity ‘to be heard’ and to submit whatever evidence he or she chooses and the agency [or body] may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency [or body] determination was arbitrary and capricious or affected by an error of law” … . Matter of Weikel v Town of W. Turin, 2020 NY Slip Op 06890, Fourth Dept 11-20-20

 

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THE DEFENDANT EMPLOYEE WAS ON HIS WAY HOME FROM A CORPORATE MEETING HELD BY HIS EMPLOYER WHEN THE CAR ACCIDENT HAPPENED; THE EMPLOYER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT BECAUSE THE DRIVER WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant driver, Brownlee, was not acting within the scope of his employment, when the car accident occurred. Brownlee was on his way home from a meeting held by his employer, Stellar:

… [I]t is undisputed that the collision occurred while Brownlee was driving home from a corporate meeting held by Stellar at its headquarters in Canada. Evidence submitted by Stellar on its motion established that the corporate meeting had ended and that Brownlee had been released for the day at the time of the collision. Although Brownlee testified at his deposition that he believed that he had intended to stop at Stellar’s facility in Pennsylvania before returning home, once he received permission to leave the corporate meeting, he was no longer acting in furtherance of any duty that he owed to Stellar and was no longer under Stellar’s control … . Indeed, Brownlee did not testify that Stellar had directed him to stop at the Pennsylvania facility or that Stellar had ordered him to perform any other act once the meeting had ended. The fact that the corporate meeting was held at a location other than Brownlee’s typical place of work does not alter our analysis, nor does the fact that Brownlee was reimbursed for travel expenses … . Wood v Brownlee, 2020 NY Slip Op 06887, Fourth Dept 11-20-20

 

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FATHER AND MOTHER SUBMITTED INADMISSIBLE EVIDENCE TO SUPPORT THEIR SUMMARY JUDGMENT MOTIONS ON THE ISSUE WHETHER THE CHILDREN WERE CONSTRUCTIVELY EMANCIPATED; FATHER’S MOTION FOR SUMMARY JUDGMENT ON HIS PETITION TO TERMINATE HIS CHILD SUPPORT OBLIGATIONS WAS PROPERLY DENIED BUT MOTHER’S PETITION FOR SUMMARY JUDGMENT DISMISSING FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s motion for summary judgment on his petition to terminate his child support obligations based on the children’s constructive emancipation was properly denied, and mother’s motion for summary judgment dismissing father’s petition should not have been granted. The basis for both rulings was the inadmissible evidence submitted by father and mother:

… [W]e conclude that the father did not meet his initial burden on his motion of establishing that their refusal to visit with him was unjustified … . Inasmuch as the father’s own submissions suggest that the subject children did not want to visit him due to their purported knowledge of the sex abuse allegations, his submissions failed to eliminate all material issues of fact … . Indeed, the father failed to establish that his behavior “was not a primary cause of the deterioration in his relationship with [the subject] children” … . Thus, we conclude that the court properly denied his motion.

We also conclude that the court should not have granted that part of the mother’s motion seeking summary judgment dismissing the petition. The court erred in relying on the unsworn letters from the subject children’s psychologist because they were not in admissible form … . Without the letters from the children’s psychologist, we conclude that the mother failed to meet her initial burden on her motion of establishing that the children were justified in abandoning the father by refusing to attend visitation. Like the father, the mother did not submit any admissible evidence establishing the reasons for the children’s decision not to visit the father. We therefore modify the amended order accordingly. Matter of Timothy M.M. v Doreen R., 2020 NY Slip Op 06886, Fourth Dept 11-20-20

 

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DEFENDANT’S PRESENCE NEAR A SUSPECTED DRUG HOUSE IN A HIGH CRIME AREA GAVE RISE TO ONLY A GROUNDED SUSPICION; THE ATTEMPT TO STOP THE CAR IN WHICH DEFENDANT WAS A PASSENGER WAS NOT JUSTIFIED BY REASONABLE SUSPICION; THE MOTION TO SUPPRESS THE SEIZED EVIDENCE AND THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN GRANTED; DEFENDANT’S GUILTY PLEA, WHICH ENCOMPASSED AN UNRELATED OFFENSE, WAS VACATED IN ITS ENTIRETY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of a suppression motion and vacating defendant’s guilty plea, determined  defendant’s presence near a suspected drug house gave rise only to a founded suspicion which would justify an approach and a common inquiry by the police. Instead, the police attempted to stop the car in which defendant was a passenger and arrested defendant after he ran into his residence. Cocaine and heroin were seized from the defendant. The Fourth Department held that all the seized evidence and the showup identification should have been suppressed. In addition, the court vacated the entire guilty plea which encompassed an unrelated offense:

A detective who could see only the front area of the residence to be searched observed multiple people whom he suspected to be customers arrive at and depart from the back area of the residence through the driveway. The detective also twice saw defendant come to the front yard of the residence to smoke a cigarette then return to the back area. Defendant eventually left the residence as a passenger in a vehicle. The detective conveyed the vehicle’s plate number and direction of travel to an officer in a “take down” car, who followed defendant and attempted to effect a stop of the vehicle by activating the patrol vehicle’s lights. The vehicle in which defendant was a passenger slowed and defendant jumped out and fled on foot into his own residence, where he was arrested soon after and found to be in possession of cocaine and heroin. …

Based on defendant’s proximity to a suspected drug house and his otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach defendant and make a common-law inquiry … . The mere fact that defendant was located in an alleged high crime area “does not supply that requisite reasonable suspicion, in the absence of ‘other objective indicia of criminality’ . . . , and no such evidence was presented at the suppression hearing” … . …

… [A]lthough defendant’s conviction of a second count of criminal possession of a controlled substance in the fifth degree arises from a separate incident, his plea of guilty “was expressly conditioned on the negotiated agreement that [he] would receive concurrent sentences on the separate counts to which he pleaded,” and thus the plea must be vacated in its entirety … . People v Martinez-Gonzalez, 2020 NY Slip Op 06593, Fourth Dept 11-13-20

 

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UNIVERSITY STUDENTS WERE CHARGED WITH VIOLATIONS OF THE CODE OF CONDUCT STEMMING FROM THE RELEASE OF VIDEO CLIPS DEPICTING SKITS PERFORMED AT A ROAST HELD BY A FRATERNITY; THE SKITS INCLUDED RACIAL AND RELIGIOUS SLURS AND SIMULATED SEXUAL ACTIVITY AND VIOLENCE; THE 4TH DEPARTMENT HELD THAT THE DISCIPLINARY PROCEDURES COMPORTED WITH THE RULES, THE CODE VIOLATIONS WERE SUPPORTED BY THE EVIDENCE AND THE SANCTIONS DID NOT SHOCK ONE’S SENSE OF FAIRNESS; A STRONG DISSENT ARGUED THE CODE PROVISION PURPORTING TO PROHIBIT SPEECH WHICH “THREATENS” THE “MENTAL HEALTH” OF A PERSON IS SO VAGUE THAT IT CAN NOT SUPPORT A CONVICTION (FOURTH DEPT).

The Fourth Department, over a dissent, affirmed Supreme Court in this Article 78 proceeding contesting the disciplinary procedures used by Syracuse University (respondent), the disciplinary provisions of the respondent’s Code of Student Conduct, and the punishment imposed by respondent on the petitioners (students). The petitioners participated in a roast held by their fraternity which was videotaped. The videotaped skits “included dialogue in which students professed hatred for persons of certain races, ethnicities, and religions while using slurs to refer to those groups, and depictions of simulated sexual activity and sexual violence directed at persons imitating women and a disabled individual.” Eventually portions of the video were made public. Petitioners were afforded a group hearing and were found to have violated the charged code provisions. Sanctions which included one or two-year suspensions were imposed. After noting that private colleges are not held to constitutional free speech and due process standards, the Fourth Department determined the disciplinary procedures substantially complied with the code provisions, the evidence supported the charged code violations and the sanctions did not shock one’s sense of fairness. The dissent focused on one of the charged code provisions which prohibits “[c]onduct—whether physical, verbal or electronic, oral, written or video—which threatens the mental health, physical health, or safety of any person or persons including, but not limited to hazing, drug or alcohol abuse, bullying or other forms of destructive behavior:”

​FROM THE DISSENT:

… [T]here is one aspect of this case that I cannot reconcile with the applicable law, namely, respondent’s decision to convict petitioners of violating Section 3 of the Code. … Section 3 empowers respondent to punish any student for “[a]ssistance, participation in, promotion of, or perpetuation of conduct—whether physical, verbal[,] electronic, oral, written or video—which threatens the mental health . . . of any person or persons” … . * * *

… [D]oes that provision create any distinction between speech that merely offends and speech that truly harms another person’s psychological, psychiatric, or neuro-cognitive functioning? … [H]ow does Section 3 channel the factfinder’s discretion so as to punish only the latter and not the former? … [T]he staggering breadth of the provision is matched only by its indefiniteness, and it effectively serves as a systemic instrument for the suppression of any viewpoint that falls outside the zone of permissible opinion decreed by the most strident and self-righteous of the campus community. To convict petitioners under such a vague and standardless diktat is, to my mind, the very embodiment of arbitrary and capricious administrative decision-making that should be annulled under CPLR article 78 … . Matter of John Doe 1 v Syracuse Univ., 2020 NY Slip Op 06586, Fourth Dept 11-13-20

 

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A CRUCIAL DOCUMENT SUBMITTED TO PROVE THE AMOUNT OF A MEDICAID LIEN SHOULD NOT HAVE BEEN ADMITTED AS A BUSINESS RECORD; THE DOCUMENT WAS NOT CERTIFIED BY AN EMPLOYEE FAMILIAR WITH THE BUSINESS PRACTICES OF THE ENTITY WHICH PROVIDED THE DATA COLLECTED IN THE DOCUMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a crucial document needed to determine the amount of a Medicaid lien should not have been admitted as a business record pursuant to CPLR 4518 and 2307. The Department of Social Services (DSS) introduced a State Department of Health (SDOH) document, a claim detail report (CDR), which collected data provided by another entity (CSRA), but the certification was not by a person familiar with the business and record-keeping practices of CSRA:

DSS sought to lay the requisite foundation for admission of the CDR as a business record by way of the certification of an SDOH employee (see CPLR 2307, 4518 [c]). The certification stated, in relevant part, “that the annexed [CDR] is a true and accurate copy of the original [CDR], which was generated from data contained in the Adjudicated Claim File. The Adjudicated Claim File, a comprehensive computer data file, is created, maintained and transported in the form of magnetic media to the [SDOH] by CSRA, Inc. [(CSRA)], a fiscal intermediary which contracts with the [SDOH].” Thus, the certification clearly states that the data sought to be admitted in evidence via the CDR was “created” and “maintained” by CSRA, a third-party entity. The SDOH employee who certified the CDR did not, however, work for CSRA, i.e., the entrant of the information upon which the CDR is based. Further, although the certification stated that the CDR was “produced” in the regular course of SDOH’s business and that the data entries were “transported” to SDOH “at or about the time that such data [was] received and incorporated into the Adjudicated Claim File,” the SDOH employee did not establish that CSRA, as “entrant[,] was under a business duty to obtain and record the” data reflected in the Adjudicated Claim File … , or that he was familiar with the record-keeping practices of CSRA and that SDOH generally relied upon CSRA’s records … . At best, the certification demonstrated only that SDOH filed and retained the data created and maintained by CSRA, which fails to establish the requisite foundation … . Matter of Joseph M.W. (Blake), 2020 NY Slip Op 06583, Fourth Dept 11-13-20

 

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PIERCING THE CORPORATE VEIL AND AGENCY ALLEGATIONS SUFFICIENTLY PLED VICARIOUS LIABILTY FOR NEGLIGENCE ON THE PART OF THE NURSING HOME DEFENDANTS FOR AN ASSAULT BY A RESIDENT ON PLAINTIFF’S DECEDENT; THE COMPLAINT ALSO SUFFICIENTLY ALLEGED PUBLIC HEALTH LAW VIOLATIONS; PLAINTIFF’S MOTION TO SERVE AN AMENDED COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the complaint adequately stated negligence and Public Health Law causes of action against a nursing home facility stemming from an assault on plaintiff’s decedent by another resident. The Fourth Department found the complaint adequately alleged the criteria for piercing the corporate veil, the criteria for an agency relationship among the defendants, and for a Public Health Law cause of action. The court further found plaintiff’s motion to serve an amended complaint should have been granted:

… Plaintiff alleges that the … defendants were operated in such a way “as if they were one by commingling them on an interchangeable basis or convoluted separate properties, records or control.” Significantly, plaintiff alleged that the corporate formalities were conduits to avoid obligations to the facility’s residents, and thus the allegations are sufficient to state a cause of action for negligence under a theory of piercing the corporate veil or alter ego … . …

… [P]laintiff’s claims in the negligence cause of action that defendants are vicariously liable under theories of agency and joint venture are … sufficiently stated. “The elements of a joint venture are an agreement of the parties manifesting their intent to associate as joint venturers, mutual contributions to the joint undertaking, some degree of joint control over the enterprise, and a mechanism for the sharing of profits and losses” … . “Agency . . . is a fiduciary relationship which results from the manifestation of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act” … . Plaintiff alleges in the first amended complaint that defendants acted as agents for one another and, as relevant here, that they ratified the acts of one another regarding, inter alia, operation of the facility, allocation of resources, and mismanagement of the facility. …

Plaintiff alleged that in addition to residential care, the facility provided “health-related services,” including specialized dementia care, dietary supervision, hygiene and on-site medical and psychological care. Accepting those facts as alleged in the first amended complaint as true, and affording every possible favorable inference to plaintiff, we conclude plaintiff sufficiently alleged facts to overcome defendants’ argument that the facility is an assisted living facility and not subject to those sections of the Public Health Law … . Cunningham v Mary Agnes Manor Mgt., L.L.C., 2020 NY Slip Op 06582, Fourth Dept 11-13-20

 

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