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ALTHOUGH PLAINTIFF’S EXPERT’S THEORY IN THIS MEDICAL MALPRACTICE CASE WAS NOT SUPPORTED BY MEDICAL LITERATURE, THE THEORY HAD AN OBJECTIVE BASIS AND SHOULD NOT HAVE BEEN PRECLUDED AFTER A FRYE HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence offered by plaintiff’s treating physician (Paget) as expert opinion should not have been precluded after a Frye hearing, despite the absence of medical literature on the topic. Plaintiff alleged a contrast agent was negligently injected into the tissue of her arm instead of a vein:

The plaintiff’s expert witness disclosure indicated that Paget was expected to testify that the defendants deviated from good and accepted medical practice in allowing gadolinium, a toxin, to leak into and remain inside the plaintiff’s arm in high concentration, which caused the plaintiff to develop injuries including a progressive fibrosing disease. … * * *

Although Paget did not rely upon medical literature unequivocally establishing that the administration of gadolinium into tissue has a causal link to the development of a systemic fibrosing disease in the absence of renal insufficiency, the plaintiff established that Paget’s theory “had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch”… . The absence of medical literature directly on point pertains to the weight to be afforded to Paget’s testimony, but does not preclude its admissibility … . Farrell v Lichtenberger, 2021 NY Slip Op 03305, Second Dept 5-26-21

 

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PLAINTIFF’S ACTION FOR PRIVATE NUISANCE ALLEGING DEFENDANTS’ AIR CONDITIONING UNIT IS TOO LOUD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the private nuisance cause of action should not have been dismissed. Plaintiff alleged defendants’ air conditioning unit made too much noise:

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . “[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” … .

Here, the plaintiff stated a cause of action to recover damages for private nuisance by alleging that the defendants’ air conditioning and condenser units generated a noise level exceeding that permitted by the Code of the Town of Hempstead … , which interfered with the plaintiff’s use and enjoyment of his bedroom, garden, and patio, and diminished his property value … . Curry v Matranga, 2021 NY Slip Op 03304, Second Dept 5-26-21

 

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THE DIFFERING CRITERIA FOR GENDER DISCRIMINATION, HOSTILE WORK ENVIRONMENT AND RETALIATION UNDER THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW CAREFULLY EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, carefully laid out the criteria for gender diiscrimination, hostile work environment and retaliation under the NYS Human Rights Law (NYSHRL) and the NYC Human Rights Law (NYCHRL). The gender discriimination claims should have been dismissed, but the hostile work environment and retaliation claims properly survived summary judgment. The decision is too detailed to fairly summarize here and should be consulted for its explanation of the differing criteria under the NYS and NYC Human Rights Law. With respect to gender discrimination, the court wrote:

[Under the NYSHRL] a triable issue of fact regarding the falsity of the appellants’ proffered reasons for the employment action is not enough; there must be evidence “both that the reason was false, and that discrimination was the real reason” … . Here, the parties’ evidentiary submissions reveal no evidence that gender discrimination was the real reason for the challenged employment actions. …

… [A]n action alleging discrimination in violation of the NYCHRL “‘must be analyzed under both the familiar framework of McDonnell Douglas Corp. v Green (411 US 792 [1973]) and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion'” (Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235 …). “‘Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof'” … . Here, the plaintiff … failed to raise a triable issue of fact as to whether the conduct was a pretext to mask a discriminatory intent or was in part motivated by discrimination … . Bilitch v New York City Health & Hosps. Corp., 2021 NY Slip Op 03300, Second Dept 5-26-21

 

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FAILURE TO TAKE TIMELY STEPS TO SETTLE THE ORDER IN THIS FORECLOSURE ACTION RENDERED THE ACTION ABANDONED PURSUANT TO 22 NYCRR 202.48 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was abandoned because no steps were taken to settle the order:

“Proposed orders . . . with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48[a]). “Failure to submit the order . . . timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48[b]). These provisions are not applicable where the decision does not explicitly direct that the proposed judgment or order be settled or submitted for signature (see Funk v Barry, 89 NY2d 364). However, the direction to “settle” order “ordinarily entails more complicated relief,” and therefore “contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court” (id. at 367 …). Here, Nationstar failed to timely settle the order pursuant to the requirements of 22 NYCRR 202.48(a), and did not show good cause for its failure to do so … . Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to 22 NYCRR 202.48 to deem, as abandoned, Nationstar’s motion. Aurora Loan Servs., LLC v Yogev, 2021 NY Slip Op 03297, Second Dept 5-26-21

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVIDE SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not submit sufficient proof of compliance with the notice requirements of RPAPL 1304 and the mortgage:

Although the plaintiff submitted copies of the 90-day notices purportedly sent to [defendant] Jimenez, the plaintiff failed to demonstrate, prima facie, that the notices were actually mailed, either through an affidavit of service, other proof of mailing by the post office, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure … . The unsubstantiated and conclusory assertion in an affidavit of a representative of the plaintiff’s loan servicer that the 90-day notice was sent in accordance with RPAPL 1304 is insufficient to establish that the notice was actually mailed to Jimenez by first-class and certified mail … . Moreover, the affiant based her assertions upon her review of unspecified business records without attaching any such business records to her affidavit … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … .

Similarly, the plaintiff failed to demonstrate, prima facie, that it complied with the notice of default provisions of the consolidated mortgage, which required the plaintiff to send a notice of default to Jimenez at the notice address by first-class mail and to provide a 30-day cure period. Copies of the notice without proof of mailing, along with the affidavit of a representative of the loan servicer averring, based upon her review of unspecified business records which were not attached to the affidavit, that such a notice of default was sent on an unspecified date, was insufficient to satisfy the plaintiff’s prima facie burden … .  Wilmington Trust, N.A. v Jimenez, 2021 NY Slip Op 03212, Second Dept 5-19-21

 

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A GENERAL RELEASE AND WAIVER WHICH IS CONTRADICTED BY ACTIONS WHICH POST-DATE THE DOCUMENT CANNOT BE CONSTRUED AS A RELEASE; THE JUDGE DID NOT HAVE THE POWER, SUA SPONTE, PURSUANT TO CPLR 5019, TO VACATE THE COURT’S OWN ORDER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) actions which post-date a release and waiver which conflict with the terms of the release and waiver indicate the document can not be construed as a release, and (2) the judge did not have the authority, sua sponte, to vacate the court’s own order:

“‘Where a waiver form purports to acknowledge that no further payments are owed, but the parties’ conduct indicates otherwise, the instrument will not be construed as a release'” … . …

The Supreme Court erred in, sua sponte, vacating the December 2016 order. “‘Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment'” … . Additionally, “[p]ursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only ‘on motion of [an] interested person’ and ‘with such notice as the court may direct” … .

Here, to the extent that the Supreme Court was acting pursuant to CPLR 5019(a), the court erred, since that statute cannot be used by courts to vacate prior orders or judgments or “reconsider[ ] the merits of summary judgment” … . United Airconditioning Corp. v Axis Piping, Inc.2021 NY Slip Op 03210, Second Dept 5-19-21

 

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PROOF OF DEFENDANTS’ DEFAULT WAS INADMISSIBLE HEARSAY BECAUSE THE UNDERLYING BUSINESS RECORDS WERE NOT SUBMITTED WITH THE SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ default in this foreclosure action was not demonstrated because the relevant business were described but not submitted. The description was therefore hearsay:

… [T]he plaintiff submitted copies of the note and mortgage, and an affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the servicer for the loan. Based on her review of business records in the possession of SPS, Benight averred that the defendants defaulted in payment in August 2014. However, the only business records annexed to and incorporated in the affidavit with regard to the default was a notice of default dated March 3, 2015 … . Although Benight established that she was familiar with SPS’s record-keeping practices and procedures, no payment records were proffered with the motion. “‘[W]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay'” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . U.S. Bank N.A. v Rowe, 2021 NY Slip Op 03209, Second Dept 5-19-21

 

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THE POLICE WERE JUSTIFIED IN STOPPING A BICYCLIST WHO WAS WEAVING AND HOLDING A BULKY OBJECT IN HIS WAISTBAND; DEFENDANT’S MOTION TO SUPPRESS PROPERLY DENIED (SECOND DEPT).

The Second Department determined Supreme Court properly denied defendant’s motion to suppress a gun and statements based upon a street stop. The court noted that defendant was riding a bicycle and the street stop rules which apply to pedestrians, not vehicles, apply:

The Court of Appeals has held that an officer’s instruction to a pedestrian to “stop” requires only a common-law right of inquiry and does not constitute a seizure … . …

… Supreme Court properly determined that the officer’s statements to the defendant to “hold up” constituted a level two encounter under De Bour, and that the officers were justified in making a common-law inquiry based upon their observations of the manner in which the defendant was riding his bicycle, as well as their observation of a “bulky” object that the defendant was holding at his waistband … .

… [T]he defendant stopped in response to the commands and … the officers did not block his path or otherwise signal that he was not free to leave … . The unobtrusive manner in which the police followed the defendant did not elevate the pursuit itself to a seizure … .

The officers were justified in frisking the defendant based on Officer Schnell’s observation of the bulky object in the defendant’s waistband together with the defendant’s statements that he had a gun … . People v Rodriguez, 2021 NY Slip Op 03202, Second Dept 5-19-21

 

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DEFENSE COUNSEL DID NOT INVESTIGATE ALIBI EVIDENCE, DID NOT OBJECT TO EVIDENCE WHICH HAD BEEN RULED OFF LIMITS, AND DID NOT IMPEACH THE COMPLAINANT WITH INCONSISTENT TESTIMONY, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defense counsel’s failure to investigate alibi evidence, failure to object to evidence which had been ruled off limits, and failure to impeach the complainant constituted ineffective assistance:

Under the circumstances of this case, where the determination of guilt hinged on sharp issues of credibility, we find that trial counsel lacked a strategic or legitimate justification for the failure to investigate the defendant’s alleged alibi defense … , and to present evidence to impeach the complainant’s testimony as to the duration and frequency of the alleged abuse … . Further, trial counsel failed to impeach the complainant with her sworn testimony given in the grand jury, which contradicted her trial testimony in various respects … . Notwithstanding a pretrial ruling by the court precluding the People from eliciting testimony regarding an early 2010 conversation about the alleged abuse between the complainant and her friend, trial counsel failed to object when such testimony was elicited at the trial. As such, counsel failed in his duty to protect the defendant’s interests by objecting to the People’s introduction of inadmissible evidence … . People v Ramos, 2021 NY Slip Op 03200, Second Dept 5-19-21

 

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THE EVIDENCE IDENTIFYING DEFENDANT AS ONE OF THE ROBBERS WAS LEGALLY SUFFICIENT BUT DEFENDANT’S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the evidence identifying defendant as one of the robbers was legally sufficient but the conviction was against the weight of the evidence:

… [T]he police officer who spoke with the complainant outside the deli testified that the only description given of the perpetrators was four male Hispanics, one with a bleach-blond beard, and that the complainant never mentioned that one of the perpetrators was wearing a bandana. After speaking with the complainant, the officer, accompanied by the complainant, crossed the street and entered the park where the robbery had occurred. The defendant, who was wearing a black shirt and sitting on a bench approximately 100 feet from where the crime took place, was the only person in the park. The officer walked up to the defendant, who did not flee or offer any resistance, told him to stand, and placed him in handcuffs. Upon searching the defendant, the officer found a bandana depicting the Mexican flag in his pocket. According to the arresting officer, upon seeing the bandana, the complainant told the officer for the first time that one of the perpetrators had been wearing a similar bandana. The complainant’s wallet and its contents were never recovered. * * *

In this single-witness identification case, an acquittal would not have been unreasonable. While the defendant was found in possession of a distinctive-looking bandana in close spatial and temporal proximity to the scene of the robbery, none of the police witnesses testified that the complainant had mentioned the existence of such a bandana prior to the defendant’s arrest. Moreover, the record evidence does not explain why the police would have expected to find one of the suspects in the park, when the complainant himself testified that the four suspects left together after the robbery. We also find it significant that the complainant testified that he had seen the man with the bandana on two occasions prior to the night of the robbery, yet he also testified that he had never seen the defendant before the night of the robbery, and in fact identified one of the codefendants in court as the man with the bandana. People v Garcia, 2021 NY Slip Op 03196, Second Dept 5-19-21

 

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