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THE FACT THAT COMPLAINANT TURNED 21 DURING THE FAMILY OFFENSE HEARING DID NOT DEPRIVE FAMILY COURT OF JURISDICTION; NOR DID THE INCAPACITY OF THE COMPLAINANT (SECOND DEPT).

The Second Department, reversing Family Court and remitting the matter, determined Family Court did lose jurisdiction over the family offense proceeding when complainant turned 21. The court noted that even if the complainant is incapacitated (but not judicially declared incompetent) Family Court has jurisdiction:

In the context of a family offense proceeding, the question of subject matter jurisdiction is generally confined to whether a qualifying offense has been committed between parties in a qualifying relationship (see Family Ct Act §§ 115[e]; 812[1] … ), irrespective of the complainant’s age. Thus, the fact that the complainant attained the age of 21 during the hearing did not deprive the court of jurisdiction to hear and determine this matter.

To the extent the respondent’s motion may be construed as challenging the petitioner’s ability to prosecute this matter in a representative capacity for the complainant, this does not amount to a jurisdictional defect requiring dismissal of the proceeding … . Indeed, “[a]n incapacitated individual who has not been judicially declared incompetent may sue or be sued in the same manner as any other person” … , and courts must not “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such” … . Rather, insofar as the record raises questions of fact as to whether the complainant may require the assistance of a guardian ad litem to protect her interests, the Family Court should have granted the petitioner’s request to appoint a guardian to the extent of conducting a hearing to determine whether such an appointment was necessary pursuant to CPLR 1201… . Matter of Vellios v Vellios, 2021 NY Slip Op 07276, Second Dept 12-22-21

 

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THE AFFIDAVIT SUPPORTING THE ADMISSIBILITY OF THE BUSINESS RECORDS OFFERED BY THE BANK IN THIS FORECLOSURE PROCEEDING DID NOT LAY A SUFFICIENT EVIDENTIARY FOUNDATION FOR THE RECORDS, RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determine the evidentiary foundation for the business records submitted by plaintiff bank (JPMorgan) in this foreclosure action was inadequate:

JPMorgan submitted, among other things, the affidavit of Nathan Abelin, a document management specialist for FNMA’s loan servicer, Seturus, Inc. (hereinafter Seturus), who, based upon his review of business records, attested to the defendant’s default in payment, JPMorgan’s standing to commence the action, and JPMorgan’s compliance with RPAPL 1304. Although Abelin averred that he was personally familiar with Seturus’s record-keeping practices and procedures, the business records he relied upon and attached to the affidavit were created by JPMorgan and another entity. Abelin failed to lay a proper foundation for these records because he did not aver either that he had personal knowledge of those entities’ business practices and procedures, or that the records “were incorporated into [Seturus’s] own records and routinely relied upon by [Seturus] in its own business”… . Accordingly, Abelin’s affidavit constituted inadmissible hearsay and lacked probative value … . Federal Natl. Mtge. Assn. v Allanah, 2021 NY Slip Op 07269, Second Dept 12-22-21

 

A SENTENCE CANNOT BE SET ASIDE AS EXCESSIVE PURSUANT TO A CPL 440.20 MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to set aside the sentence should not have been granted. A sentence may not be set aside as excessive pursuant to a Criminal Procedure Law (CPL) 440.20 motion:

The defendant moved, inter alia, pursuant to CPL 440.20 to set aside the sentence. The Supreme Court granted that branch of the motion, and resentenced the … .

To the extent that the Supreme Court set aside the sentence as excessive, such determination was in error, as a “claim that [a] sentence is excessive may not be raised on a CPL 440.20 motion” … .

[T]he defendant did not show that the sentence should be set aside as illegal or unauthorized (see CPL 440.20). The sentence did not violate the prohibition against cruel and unusual punishment, as there existed no exceptional circumstances warranting modification of the terms of imprisonment, which were within the statutory limits … . People v Chambers, 2021 NY Slip Op 07267, Second Dept 12-22-21

 

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WHERE THE MINUTES OF A “QUALITY ASSURANCE” PEER-REVIEW COMMITTEE MEETING ASSESSING THE MEDICAL TREATMENT AFFORDED A PATIENT DO NOT IDENTIFY THE SPEAKERS, THE PARTY-STATEMENT EXCEPTION TO THE PUBLIC HEALTH LAW AND EDUCATION LAW PRIVILEGE APPLIES, MAKING ALL THE STATEMENTS BY UNIDENTIFIED SPEAKERS SUBJECT TO DISCOVERY BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the party-statement exception to the privilege afforded statements made in a peer-review “quality assurance” committee’s review of the medical treatment afforded a patient applied to all of the statements made by speakers who were not identified in the meeting minutes. The defendants, who were asserting the privilege, were unable to demonstrate the statements attributed in the minutes to the “committee” were not made by a party and therefore not subject to the party-statement exception to the privilege. In other words, the statements made at the meeting by unidentified speakers were discoverable by the plaintiff in this medical malpractice action:

Requiring a defendant who is asserting the quality-assurance privilege to identify who made the statements at a medical or quality assurance review meeting, so as to demonstrate that no party statements subject to disclosure are being withheld, will further the goals of the quality-assurance privilege … . By identifying the maker of the statements at the medical or quality-assurance review meetings, only those statements that are made by a party will be subject to disclosure, and only those statements entitled to protection from disclosure will be protected. … [I]n order to avail itself of the privilege afforded by Education Law § 6527(3) and Public Health Law § 2805-m(2), the party asserting the privilege must demonstrate that no party statements subject to disclosure are being withheld, and thus must identify who said what at the meeting. …

… [T]he party-statement exception applied to those statements in the peer-review committee meeting minutes that were attributed to the committee, and for which there was no indication as to who specifically made the statements, as they were not entitled to the quality-assurance privilege set forth in Education Law § 6527(3) and Public Health Law § 2805-m(2). Siegel v Snyder, 2021 NY Slip Op 07264, Second Dept 12-22-21

 

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DEFENDANT ALLEGED ITS PRINCIPAL PLACE OF BUSINESS WAS IN NASSAU COUNTY BUT NEVER AMENDED ITS CERTIFICATE OF INCORPORATION WHICH DESIGNATED ITS PRINCIPAL PLACE OF BUSINESS AS QUEENS COUNTY; DEFENDANT’S MOTION TO CHANGE THE VENUE OF THIS SLIP AND FALL CASE FROM QUEENS TO NASSAU COUNTY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this slip and fall case (Valley Park) did not present sufficient evidence to support a change of venue from Queens County to Nassau County:

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper” … . To succeed on its motion, Valley Park was obligated to demonstrate that, on the date that this action was commenced, none of the parties resided in Queens County … . Only if Valley Park made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue she selected was proper … .

… Although Valley Park claimed that its principal office was in Nassau County and that it no longer maintained its principal office in Queens County, it failed to prove that its certificate of incorporation had been amended to designate a county other than Queens … . The plaintiff’s submission, in opposition, of a certified copy of Valley Park’s certificate of incorporation, which stated that Valley Park’s principal office was located in Queens County, further underscored that her choice of venue was proper. Green v Duga, 2021 NY Slip Op 06990, Second Dept 12-15-21

 

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THE PRIVATE RIGHT OF ACTION CREATED BY THE PUBLIC HEALTH LAW APPLIES TO “RESIDENTIAL HEALTH CARE FACILITIES,” NOT TO “ASSISTED LIVING FACILITIES” (SECOND DEPT).

The Second Department determined the Public Health Law 2801-d and 2803-c causes of action against defendant “assisted living facility” should have been dismissed. The private right of action created by the Public Health Law applies only to “residential health care facilities:

… [T]he plaintiff concedes that the facility in which Kramer was a resident was licensed as an “assisted living” facility, but asserts that it was operated as a de facto residential health care facility by virtue of the health-related services it provided, including management of medications, assistance with dressing and eating, and visits by nursing staff and physicians. Even accepting these allegations as true, they are insufficient to state a claim that the assisted living facility in which Kramer resided was a residential health care facility against which a private right of action pursuant to Public Health Law article 28 may be maintained (see Public Health Law § 2801[3] …). Broderick v Amber Ct. Assisted Living, 2021 NY Slip Op 06981, Second Dept 12-15-21

 

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ALTHOUGH DEFENDANT THEATER MANAGER WAS NOT A SECURITY GUARD, HIS RESPONSIBILITIES INCLUDED DEALING WITH UNRULY PATRONS AND KEEPING THE PREMISES SAFE; THERE WAS A QUESTION OF FACT WHETHER HE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREATENED A PATRON WITH A PELLET GUN; THEREBY RAISING A QUESTION OF FACT WHETHER THE THEATER WAS LIABLE FOR THE MANAGER’S ACTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the defendant movie- theater manager, Adams, may have been acting within the scope of his employment by the theater, AMC, when he threatened plaintiff, a theater patron, with a pellet gun. Therefore AMC’s motion for summary judgment should not have been granted:

… [T]he general manager of the theater, Adams’s supervisor, stated, during his deposition, that managers, like Adams, have security-related responsibilities, including ensuring that the theater is safe for customers and dealing with unruly patrons. And the plaintiff, during his deposition, stated that he believed Adams was a security guard.

When a business employs security guards or bouncers to maintain order, the use of physical force may be within the scope of their employment … . Adams did not hold either of these job titles, but his responsibilities included maintaining order at the theater, ensuring the safety of customers and staff, and, if necessary, facilitating the removal from the theater of “disruptive or potentially violent” customers. The accomplishment of these ends by means prohibited by the AMC defendants’ policy was not necessarily unforeseeable. … Unquestionably, Adams’s response to the plaintiff and his friends was “in poor judgment” …  and contrary to the AMC defendants’ policy, but “this in itself does not absolve [the AMC] defendants of liability for his acts” … . Norwood v Simon Prop. Group, Inc., 2021 NY Slip Op 07006, Second Dept 12-15-21

 

THERE WAS A QUESTION OF FACT WHETHER THE DEFENDANT DEPARTMENT STORE SHOULD HAVE BEEN AWARE THE PAINT USED ON THE PARKING LOT SURFACE BECAME SLIPPERY WHEN WET AND WAS NOT APPROPRIATE FOR PEDESTRIAN-TRAFFIC AREAS (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the department store, Costco, should have been aware that paint used in its parking lot was slippery when wet:

“A defendant may not be held liable for the application of ‘wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge’ that the product could render the floor dangerously slippery” … . Here, Costco established, prima facie, that it did not have actual, constructive, or imputed knowledge that the subject paint could render the walkway slippery … .

In opposition, however, the plaintiff raised a triable issue of fact … . The plaintiff relied on, among other things, an “application bulletin” for the traffic marking paint used by Appell [the company hired by Costco], which was annexed to the expert report submitted by Appell … . The application bulletin acknowledges the inherent danger present when painted surfaces become wet, and explicitly states that the paint “should not be used to paint large areas subject to pedestrian traffic.” Considering the size of the painted area outside of the store entrance, there was a triable issue of fact as to whether Costco should have known that the product could render the parking lot slippery. Westbay v Costco Wholesale Corp., 2021 NY Slip Op 07023, Second Dept 12-15-21

 

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THE NYC WATER BOARD DETERMINED PETITIONER WAS NOT ENTITLED TO A RETROACTIVE REDUCTION IN SEWER CHARGES BUT WAS NOT NAMED AS A RESPONDENT IN PETITIONER’S ARTICLE 78 ACTION; THE WATER BOARD MUST BE ADDED AS A NECESSARY PARTY (SECOND DEPT).

The Second Department noted that the NYC Water Board was a necessary party in the Article 78 contesting the Board’s ruling on sewer charges. The Article 78 named only the NYC Department of Environmental Protection:

… [T]he appellants correctly contend that the Water Board should be joined as a necessary party to this proceeding. “Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants” (CPLR 1001[a]). In a proceeding pursuant to CPLR article 78, the governmental agency which performed the challenged action must be a named party … . Since the instant petition challenged the Water Board’s … final determination, and the Water Board is the entity which promulgates the rate schedule of sewer rents and wastewater allowances … in the discharge of its duties to fix and collect water and sewer charges in order for the City to maintain the water system … , the Water Board was a necessary party to this proceeding. Indeed, the Water Board would be prejudiced by the judgment purporting to bind its rights when it had no opportunity to be heard … . … [B]ecause the Water Board should have been joined in this action and has not been made a party, and because it is subject to the jurisdiction of the court, the judgment must be vacated, and the Supreme Court should order the Water Board summoned in this proceeding so that it may be heard (see CPLR 1001[b] …). Matter of A&F Scaccia Realty Corp. v New York City Dept. of Envtl. Protection, 2021 NY Slip Op 06995, Second Dept 12-15-21

 

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THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE SUIT SHOULD NOT HAVE BEEN DISMISSED; THERE WAS NO EVIDENCE PLAINTIFF INSISTED ON THE PROCEDURE DESPITE THE RISKS OR DECLINED ANY PROFFERED EXPLANATION OF THE RISKS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court) determined the “lack of informed consent” to back surgery (implantation of an X-STOP device) should not have been dismissed:

As a defense to a medical malpractice action premised upon lack of informed consent, a practitioner may proffer evidence that “the patient assured the medical . . . practitioner that he [or she] would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient assured the medical . . . practitioner that he [or she] did not want to be informed of the matters to which he [or she] would be entitled to be informed” (Public Health Law § 2805-d[4][b]). Here, although [plaintiff’s] deposition testimony made clear that he deferred to [defendant surgeon’s] judgment as to whether he should undergo a procedure and, if so, which procedure, it does not establish that [plaintiff] either insisted on the procedure to implant the X-STOP devices, rather than other treatment options, regardless of risk, or that he refused any proffered advice. On the contrary, the record establishes that, far from insisting on a contraindicated procedure, [plaintiff] relied upon [defendant surgeon’s] professional expertise in determining the correct course of treatment. Likewise, although [defendant surgeon’s] testimony establishes that he explained the benefits of performing the procedure to implant the X-STOP devices rather than a laminectomy, he did not testify that he offered, or that [plaintiff] declined, any proffered explanation of the risks and limitations of the procedure to implant the X-STOP devices. Mirshah v Obedian, 2021 NY Slip Op 06994, Second Dept 12-15-21

 

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