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BECAUSE PLAINTIFF’S EXPERT AFFIDAVIT IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS SEVERAL OF THE MALPRACTICE CLAIMS RAISED IN THE PLEADINGS, THOSE CLAIMS WERE DEEMED ABANDONED (FOURTH DEPT).

The Fourth Department noted that the affidavit of plaintiff’s expert in this medical malpractice action did not address several of the allegations of defendant’s negligence. Therefore the unaddressed claims were deemed abandoned:

The affidavit of plaintiff’s expert anesthesiologist addressed defendant’s conduct only with respect to the claims arising from defendant’s alleged failure to ensure that the transport of Pasek [plaintiff] to the operating room was performed safely and his alleged failure to document the disconnection event and resulting blood loss in Pasek’s medical chart. Inasmuch as plaintiff’s expert failed to address the claims against defendant regarding the diagnosis, consulting, testing, examination, and pre- and post-operative treatment and did not identify any deviation with respect to defendant’s efforts to ventilate, monitor, or resuscitate Pasek, those claims are deemed abandoned. Supreme Court thus erred in denying defendant’s motion with respect to those claims … , and we therefore modify the order accordingly. Pasek v Catholic Health Sys., Inc., 2020 NY Slip Op 04652, Fourth Dept 8-20-20

 

PLAINTIFF WAS NOT WEARING A HARNESS AND FELL FROM A ROOF; THE FACT THAT HARNESSES MAY HAVE BEEN AVAILABLE DID NOT RAISE A QUESTION OF FACT SUFFICIENT TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Although plaintiff was a ground worker the on roofing job, he fell from the roof alleging that a toe board “gave out.” The fact that plaintiff was not wearing a harness, in the face of allegations harnesses were available, was not enough to defeat plaintiff’s motion. The dissenters argued the evidence that all the toe boards were in tact after the accident raised a question of fact whether that safety device failed:

… [P]laintiff met his initial burden on that part of the motion by establishing that his ” injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” … . Specifically, plaintiff submitted his deposition testimony, wherein he stated that the toe board failed, causing him to fall from the roof. He also testified that he was not provided with a harness and that there were no available harnesses nearby. …

The ” presence of [other safety devices] somewhere at the worksite’ does not [alone] satisfy defendants’ duty to provide appropriate safety devices” … . …

… “[T]he mere failure by plaintiff to follow safety instructions” does not render plaintiff the sole proximate cause of his injuries  … . The evidence presented by defendants established only that plaintiff possibly failed to follow safety instructions, not that he outright refused to “use available, safe and appropriate equipment” … . Defendants failed to demonstrate that plaintiff ” chose for no good reason not to’ ” wear a safety harness … . At most, plaintiff’s “alleged conduct would amount only to comparative fault and thus cannot bar recovery under the statute” … . Schutt v Bookhagen, 2020 NY Slip Op 04651, Fourth Dept 8-20-20

 

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THE TOWN’S APPROVAL OF CHANGES TO A WIND-TURBINE PROJECT WITHOUT A SECOND SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) WAS NOT ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department, dismissing the petition seeking review of the town’s approval of a wind turbine project. determined a second supplemental environmental impact statement (SEIS) was not necessary before approving an increase in the height of the turbines and the placement of the transmission lines underground. The Fourth Department noted that Supreme Court’s failure to address issues raised in the petition constitutes a denial of the related relief, and the petitioners did not cross-appeal those denials:

During the SEQRA [State Environmental Quality Review Act] process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project … . A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” … . “A lead agency’s determination whether to require a SEIS—or in this case a second SEIS—is discretionary” … , and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” … .

We conclude that the Town Board “took a hard look at the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion that a second SEIS was not necessary” … . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence … . The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles. With respect to the buried electrical transmission lines, the materials showed that such a modification would have a significant positive environmental impact, reducing the effect of the project on wetlands. Matter of McGraw v Town Bd. of Town of Villenova, 2020 NY Slip Op 04644, Fourth Dept 8-20-20

 

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PLAINTIFFS SUED A FOSTER-CHILD PLACEMENT SERVICE FOR FRAUD AND NEGLIGENCE AFTER THE FOSTER CHILD SEXUALLY ASSAULTED PLAINTIFFS’ BIOLOGICAL CHILD; THE FRAUD ACTION WAS NOT TIME-BARRED BECAUSE THE PLACEMENT SERVICE’S MERE KNOWLEDGE OF THE FOSTER CHILD’S SEXUAL BEHAVIOR IN 2008 DID NOT START THE SIX-YEAR STATUTE OF LIMITATIONS, AND THE NEGLIGENCE ACTION WAS SUPPORTED BY A DUTY OWED TO PLAINTIFFS’ BIOLOGICAL CHILD (FOURTH DEPT).

The Fourth Department determined the fraud cause of action was not time-barred and the defendant’s owed a duty which supported the negligence cause of action. The plaintiffs, who had a biological child, took in a foster child through Good Shepherd, a placement service. The plaintiffs were not aware that the foster child had a history of animal abuse and sexually inappropriate behavior. One day after plaintiffs’ adoption of the foster child, the child sexually assaulted the biological child. Plaintiffs sued in fraud and negligence and Supreme Court denied Good Shepard’s motion to dismiss:

A defendant’s mere knowledge of something is not an element of a fraud cause of action; instead, a fraud cause of action requires a showing of, inter alia, the false representation of a material fact with the intent to deceive … . Thus, even assuming, arguendo, that Good Shepherd knew of the foster child’s history of animal abuse and engaging in sexually inappropriate behavior as early as May 2008, we conclude that its knowledge thereof did not demonstrate that the alleged fraud occurred at that time. Good Shepherd submitted no evidence that, in May 2008, it falsely represented the foster child’s relevant history with the intent to deceive plaintiffs. Thus, it did not establish as a matter of law that the fraud cause of action accrued in 2008 … . Moreover, Good Shepherd submitted the amended complaint, wherein plaintiffs alleged that, on numerous occasions in early 2012, they contacted Good Shepherd about the foster child’s sexually inappropriate behavior and that, on each occasion, Good Shepherd assured them that the foster child had no history of that type of behavior. We therefore conclude that Good Shepherd failed to meet its initial burden of establishing that the fraud cause of action asserted in 2016 was barred by the applicable six-year statute of limitations (see CPLR 213 [8]). * * *

Although defendants contend that they did not owe the biological child a duty because they lacked control over the foster child during the four years that he lived with plaintiffs, control over a third-person tortfeasor is just one way to establish a duty. … [A]duty may also exist where “there is a relationship . . . between [the] defendant and [the] plaintiff that requires [the] defendant to protect [the] plaintiff from the conduct of others,” and “the key . . . is that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm” … . Stephanie L. v House of The Good Shepherd, 2020 NY Slip Op 04643, Fourth Dept 8-20-20

 

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PLAINTIFF’S SUPPLEMENTAL UNINSURED/UNDERINSURED MOTORIST (SUM) COVERAGE WAS GREATER THAN THE BODILY INJURY COVERAGE IN THE TORTFEASOR’S POLICY; SO THE SUM PROVISION OF PLAINTIFF’S POLICY WAS TRIGGERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant-insurer’s supplemental uninsured/underinsured motorist (SUM) benefits were triggered in the traffic accident case. The (SUM) coverage under plaintiff’s policy was greater than the bodily injury coverage in the  tortfeasor’s policy. Plaintiff had settled for the tortfeasor’s policy limit and then sought to collect SUM benefits under his policy. Plaintiff’s insurer had determined the policy was not triggered and Supreme Court agreed:

“Insurance Law § 3420 (f) (2) was enacted to allow an insured to obtain the same level of protection for himself [or herself] and his [or her] passengers which he [or she] purchased to protect himself [or herself] against liability to others’ ” … . It is well settled that, “[u]nder Insurance Law § 3420 (f) (2), an insured’s [SUM] coverage is triggered when the limit of the insured’s bodily injury liability coverage is greater than the same coverage in the tortfeasor’s policy”… . More particularly, when determining whether SUM coverage is triggered, “[t]he necessary analytical step . . . is to place the insured in the shoes of the tortfeasor and ask whether the insured would have greater bodily injury coverage under the circumstances than the tortfeasor actually has” … , which “requires a comparison of each policy’s bodily injury liability coverage as it in fact operates under the policy terms applicable to that particular coverage” … .

Here, a comparison of the two policies at issue, in light of the circumstances of this case, demonstrates that plaintiff would be afforded greater coverage under his policy than under the tortfeasor’s policy. The tortfeasor’s policy would have provided plaintiff with only $100,000 of coverage for bodily injury, whereas plaintiff’s policy would have provided him with up to $300,000 of coverage for bodily injury. Although plaintiff’s SUM benefits would be reduced by the amount paid to his wife under the policy’s $300,000 per accident maximum, he is still afforded more coverage under his policy than under the tortfeasor’s policy because the bodily injury limit for an accident in which two people are injured would be $200,000 under the tortfeasor’s policy, which is less than the coverage afforded by plaintiff’s policy. Consequently, the SUM provision of plaintiff’s policy was triggered … . Gross v Travelers Ins., 2020 NY Slip Op 04253, Fourth Dept 7-24-20

 

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THE DUPLICITY IN THE INDICTMENT WAS REMEDIED BY DETAILS PROVIDED TO THE DEFENSE PRIOR TO TRIAL AND BY DETAILED TRIAL EVIDENCE (FOURTH DEPT).

The Fourth Department held the prosecutor had remedied the duplicity in the indictment by providing information in a supplemental bill of particulars and a “trial indictment” after the motion to dismiss for duplicity was made, information corroborated by detailed trial evidence;

With respect to the counts of criminal sexual act in the first degree, after defendant made his motion, the prosecutor provided him with a supplemental bill of particulars that identified a precise date for each of the first 10 counts of criminal sexual act in the first degree. We conclude that dismissal of those counts is not required because the duplicity was “cured by reference to a bill of particulars supplementing the indictment” … . ,,,

With respect to the counts of rape in the first degree, although the duplicity of those counts was left unaddressed by the supplemental bill of particulars, before trial, the prosecutor provided defendant with a document styled as a “trial indictment,” which indicated that the People intended to prove a specific instance with respect to each of the counts on which defendant was ultimately convicted … . In addition, the People provided evidence of those specific instances of forced sexual intercourse at trial by offering the testimony of the victim … . The victim’s testimony was detailed, graphic, and corroborated by receipts, photographs, and emails that allowed the victim to pinpoint the precise dates on which each of those incidents of forced sexual intercourse occurred. “Because defendant was convicted only of those counts of [rape in the first degree] where pretrial notice of specific instances was given and where those specific instances were proved at trial” … , we conclude that dismissal of those counts as duplicitous was not required. People v Quiros, 2020 NY Slip Op 04279, Fourth Dept 7-24-20

 

DEFENDANT’S SENTENCE REDUCED IN THIS MANSLAUGHTER, BURGLARY, MURDER CASE DUE TO DEFENDANT’S AGE AND MENTAL ILLNESS (FOURTH DEPT).

The Fourth Department found defendant’s sentence of 25 years to life in this manslaughter, burglary, murder case unduly harsh and severe due to his age and his mental illness. Sentence reduced to 15 years to life:

This Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range,” and may exercise that power, “if the interest of justice warrants, without deference to the sentencing court” … . Defendant was 20 years old at the time of the offense. His criminal history consisted of only three incidents within the year leading up to the killing, all of which stemmed from the onset of defendant’s documented schizophrenia and all charges were dismissed as a result of defendant’s incapacity due to mental disease or defect. Here, at trial, both experts testified that, at the time of the killing, defendant was experiencing delusions. Indeed, the People’s own expert expressly recognized that defendant had a diminished capacity to understand the wrongfulness of his actions at the time and that “the action was a product of his symptoms of mental illness.” … [W]e modify the judgment by reducing the sentences of imprisonment imposed for manslaughter in the first degree under count one of the indictment and for burglary in the first degree under counts three and four of the indictment to determinate terms of 15 years, to be followed by the five years of postrelease supervision imposed by the court, and by reducing the sentence imposed for murder in the second degree under count two of the indictment to an indeterminate term of incarceration of 15 years to life. People v Gillie, 2020 NY Slip Op 04275, Third Dept 7-24-20

 

DEFENDANT WAS PROPERLY SENTENCED TO INCARCERATION UPON A VIOLATION OF PROBATION IN THIS FELONY DWI CASE, DESPITE DEFENDANT’S COMPLETION OF THE SIX-MONTH PERIOD OF INCARCERATION ORIGINALLY IMPOSED (FOURTH DEPT). ​

The Fourth Department determined defendant was properly sentenced to imprisonment after a violation of probation in this felony DWI case, despite his completion of the original six-month sentence:

County Court sentenced defendant to six months of imprisonment and five years of probation on each count. Several years later, after serving the imprisonment portion of his sentence, defendant admitted that he had violated the conditions of his probation. He now appeals from a judgment that revoked his sentence of probation and sentenced him to concurrent indeterminate terms of imprisonment. * * *

Courts have held that, where a defendant is originally sentenced pursuant to section 60.21 and then later violates the terms of his or her probation or conditional discharge after fully serving his or her term of incarceration, the defendant cannot be sentenced to an additional term of incarceration without violating the rule against multiple punishments for the same offense … . Defendant thus contends that, inasmuch as he completed the imprisonment portion of his original sentence, the court was not authorized to impose an additional sentence of imprisonment upon his admission that he violated the conditions of his probation. We reject that contention.

Contrary to defendant’s contention, he was not originally sentenced to a term of imprisonment under Penal Law § 60.21 with respect to any of the three counts. That section provides, in pertinent part, that “[n]otwithstanding [section 60.01 (2) (d)], when a person is to be sentenced upon a conviction for a violation of [Vehicle and Traffic Law § 1192 (2), (2-a) or (3)], the court may sentence such person to a period of imprisonment authorized by article seventy of this title and shall sentence such person to a period of probation or conditional discharge” (§ 60.21 …). The probation or conditional discharge imposed pursuant to section 60.21 is to run consecutively to any period of imprisonment imposed pursuant to article 70. Here, however, defendant was not sentenced to a period of imprisonment pursuant to Penal Law article 70. Rather, he was sentenced on each count to a traditional split sentence pursuant to Penal Law § 60.01 (2) (d), with the period of probation running concurrently with the period of imprisonment. Thus, Penal Law § 60.21 is inapplicable to this case and does not preclude the imposition of a sentence of imprisonment upon the revocation of probation … . People v Boldt, 2020 NY Slip Op 04284, Fourth Dept 7-24-20

 

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UNDER THE CIRCUMSTANCES OF THIS CASE, WHETHER THE CONDITIONS PRECEDENT TO ARBITRATION OF A GRIEVANCE REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT WERE COMPLIED WITH IS A QUESTION FOR THE COURT, NOT THE ARBITRATOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined it was for the court, not the arbitrator, to determine whether the conditions precedent for arbitration were met in this action seeking General Municipal Law Section 207-a benefits for an injured firefighter:

… [T]he CBA [collective bargaining agreement] contains conditions precedent to arbitration within the provisions addressing the grievance procedure and … the court should have decided whether the conditions precedent had been met. “Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators,” except in cases involving “a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration” … . Here, compliance with the requirements of steps one and two of the grievance procedure and the time limitations for serving a grievance were conditions precedent to arbitration. Under these circumstances, we conclude that “it was for the court, and not the arbitrator, to decide whether the grievance[] had been timely [served] and completed by the . . . employee at steps one and two of the grievance procedure” … . Therefore, we … remit the matter to Supreme Court for a hearing on the issue whether the conditions precedent to arbitration were met and thereafter for a new determination on the petition to stay arbitration … . Matter of Village of Manlius (Town of Manlius Professional Firefighters Assn., Iaff Local #3316), 2020 NY Slip Op 04251, Fourth Dept 7-24-20

 

THE CITY MAY NOT CHARGE A FEE FOR REVIEW AND REDACTION OF POLICE BODY-WORN CAMERA FOOTAGE PURSUANT TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the city was not entitled to charge a fee for the review or redaction of police body-worn camera (BWC) footage under the Freedom of Information Law (FOIL):

… [R]espondents may not charge petitioner a fee for the costs associated with their review or redaction of the BWC footage requested by petitioner … . We note that the Committee on Open Government has specifically opined that “if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge” (Comm on Open Govt FOIL—AO—18904 [2012]). While “the advisory opinions issued by the Committee on Open Government are not binding on the courts . . . , an agency’s interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational” … . We therefore modify the judgment by vacating that part of the judgment permitting respondents to charge petitioner a fee for the cost of reviewing and redacting the requested video footage. Matter of Forsyth v City of Rochester, 2020 NY Slip Op 04250, Fourth Dept 7-24-20

 

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