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BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY.

The Second Department determined the acknowledged biological father’s paternity petition was properly dismissed in the best interests of the child:

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Pursuant to Family Court Act § 532(a), “[t]he court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court’s own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests . . . to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman” (emphasis added). ” The paramount concern in applying equitable estoppel in paternity cases is the best interests of the subject child'” … . ” In situations where an individual has assumed the role of a father and where the petitioner putative father has neglected to assume such a role, the petitioning putative father has been estopped from asserting a claim of paternity'” … . “The issue of equitable estoppel does not involve the equities between [or among] the . . . adults; the case turns exclusively on the best interests of the child”… .

Here, the Family Court properly determined that it was in the best interests of the child to deny the petition. Among other things, the petitioner provided limited financial support for the child and had seen the child only approximately 20 times over the course of the child’s life. Additionally, the respondent’s husband, whose name appears on the birth certificate, had assumed the role of the child’s father, providing for the child financially and emotionally and living with the respondent and their other children as a family unit consistently for the entirety of the child’s life. As such, although the parties agreed that the petitioner was the child’s biological father, the court properly estopped the petitioner from asserting any paternity claim in the child’s best interests … . Matter of Carlos O. v Maria G., 2017 NY Slip Op 02993, 2nd Dept 4-19-17

 

FAMILY LAW (BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY)/PATERNITY (BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY)/ESTOPPEL (FAMILY LAW, PATERNITY, BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY)

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PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER.

The Second Department determined a wedding photographer (Kataiev) was an independent contractor and the company which hired him (HR) could not be vicariously liable for injuries to plaintiff allegedly caused by the photographer:

“The general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts” … . “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration” … . “Factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule” … . ” [I]ncidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship'”… .

Here, HR demonstrated, prima facie, that Kataiev was hired as an independent contractor. The transcripts of the deposition testimony submitted in support of HR’s motion established that HR hired Kataiev only for the wedding, that HR did not provide Kataiev with health insurance, that HR did not provide Kataiev with a W-2 form, that Kataiev used his own equipment at the wedding, that HR paid Kataiev in cash, and that HR did not withhold Social Security taxes or employment taxes from the money paid to Kataiev … . Additionally, the evidence submitted by HR demonstrated, prima facie, that HR exercised only minimal or incidental control over Kataiev’s work … . Weinfeld v HR Photography, Inc., 2017 NY Slip Op 03038, 2nd Dept 4-19-17

EMPLOYMENT LAW (VICARIOUS LIABILITY, PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER)/NEGLIGENCE (EMPLOYMENT LAW, PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER)/VICARIOUS LIABILITY (EMPLOYMENT LAW, PHOTOGRAPHER WAS AN INDEPENDENT CONTRACTOR NOT AN EMPLOYEE, NO VICARIOUS LIABILITY FOR INJURY CAUSED BY PHOTOGRAPHER)

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COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL.

The Second Department. over a dissent, rejected defendant’s argument that he did not consent to the release to the prosecution of recordings of his phone conversations from jail. Defendant acknowledged he was aware the conversations could be monitored and recorded, but noted that the stated reason for recording in the jail handbook was for jail security. The Second Department instructed that the better practice would be to notify inmates the recordings could be turned over to the prosecution:

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We note that “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” and certainly “pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that . . . are enjoyed by convicted prisoners” … . Since any concern that the notice provided to inmates by the DOC is inadequate can be readily ameliorated by an express notification that the recorded calls may be turned over to the District Attorney, the better practice going forward may be for the DOC to include such a warning … . Rather, the trial court must weigh the probative value of the recordings against the potential for prejudice to the defendant … . “[D]ue to the possibility of prejudice inherent in the prosecutor’s use of inmate recordings, the trial judge’s role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure” … . People v Diaz, 2017 NY Slip Op 03013, 2nd Dept 4-19-17

CRIMINAL LAW (COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)/EVIDENCE (CRIMINAL LAW, COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)/RECORDINGS (CRIMINAL LAW, COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)

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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED.

The Second Department sent the matter back because defendant was not informed of the deportation consequences of his guilty plea. The court explained the relevant law and procedure:

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In People v Peque (22 NY3d 168), the Court of Appeals held that, as part of its independent obligation to ascertain whether a defendant is pleading guilty voluntarily, a trial court must alert a noncitizen defendant that he or she may be deported as a consequence of the plea of guilty (see id. at 193). Although no particular litany is required, “[t]he trial court must provide a short, straightforward statement on the record notifying the defendant that, in sum and substance, if the defendant is not a United States citizen, he or she may be deported upon a guilty plea” (id. at 197).

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Here, we agree with the defendant that the County Court did not provide him with such a statement on the record. However, contrary to the defendant’s contention, he is not entitled to reversal of the judgment of conviction at this juncture. In order to withdraw or obtain vacatur of a plea based upon a Peque error, “a defendant must show that there is a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of potential deportation” (id. at 198). Accordingly, we remit the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the County Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and upon such motion, the defendant shall have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation (id. at 176 ,,, ). In its report to this Court, the County Court shall state whether the defendant moved to vacate his plea of guilty, and if so, shall include its findings as to whether the defendant has made the requisite showing to entitle him to vacatur of the plea … . People v Lopez-Alvarado, 2017 NY Slip Op 03018, 2nd Dept 4-19-17

 

CRIMINAL LAW (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)/GUILTY PLEA (DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)/DEPORTATION (CRIMINAL LAW, GUILTY PLEA, DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, MATTER REMITTED, PROCEDURE ON REMITTAL EXPLAINED)

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ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, THE ATTORNEY MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY.

The Second Department determined plaintiff was entitled to summary judgment on liability in this action against plaintiff’s attorney alleging violation of ethics rules in setting a contingency fee in an equitable distribution matter. However the attorney may be entitled to payment under a quantum meruit theory:

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The plaintiff demonstrated, prima facie, through the submission of the parties’ retainer agreement, that the defendant charged her a contingency fee in violation of rule 1.5(d)(5)(i) of the Rules of Professional Conduct (22 NYCRR 1200.0). Because the defendant’s fee was to be “determined by reference to the amount of . . . equitable distribution” in the form of the money judgment and subsequent enforcement stipulation, the retainer agreement violated rule 1.5(d)(5)(i) of the Rules of Professional Conduct (22 NYCRR § 1200.0). Contrary to the defendant’s argument, the enforcement of an equitable distribution award reduced to a money judgment is not exempt from rule 1.5(d)(5)(i) ,,, . The plaintiff also demonstrated prima facie that the defendant violated the rules set forth in 22 NYCRR 1400.3. In that respect, the retainer agreement did not specify how the defendant’s fee would be calculated if the plaintiff discharged the defendant “during the course of the representation” and did not specify how frequently itemized bills would be provided (22 NYCRR 1400.3). Additionally, the plaintiff did not receive itemized bills from the defendant … . In opposition, the defendant failed to raise a triable issue of fact. Medina v Kraslow, 2017 NY Slip Op 02979, 2nd Dept 4-19-17

ATTORNEYS (ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)/FAMILY LAW (ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)/CONTINGENCY FEES (FAMILY LAW, ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)

BECAUSE THE ZONING BOARD DID NOT ADDRESS THE MERITS OF AN APPLICATION FOR A VARIANCE, SUPREME COURT COULD NOT ADDRESS THE MERITS.

The Second Department, remitting the matter to the zoning board of appeals, noted that Supreme Court should not have considered the merits of petitioners’ application for renewal of a variance because the board did not address the merits. The board denied the application under the doctrine of res judicata which the parties agreed was not applicable:

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The Supreme Court improperly, in effect, denied the petition and dismissed the proceeding after reviewing the merits of the subject portion of the petitioners’ application. In considering the petitioners’ request to renew the use variance allowing the subject property to be used as a two-family dwelling without the condition that the subject property be owner-occupied, the Board did not reach the merits of that portion of the application. Instead, the Board relied upon the doctrine of res judicata to deny the petitioners’ request for renewal of the use variance without an owner-occupied condition and stated that, as a result, it was not engaging in an analysis of the merits of imposing an owner-occupied condition, which had been rendered academic. On appeal, the parties do not challenge the court’s determination that the Board’s reliance upon the doctrine of res judicata was improper.

However, upon concluding that the Board improperly invoked the doctrine of res judicata, the Supreme Court should not have then analyzed the merits of the subject portion of the petitioners’ application. “Judicial review of an administrative determination is limited to the grounds invoked by the agency in making its decision” … . “If the grounds relied upon by the agency are inadequate or improper, a reviewing court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Matter of Rodriguez v Weiss, 2017 NY Slip Op 02794, 2nd Dept 4-12-17

 

ZONING (BECAUSE THE ZONING BOARD DID NOT ADDRESS THE MERITS OF AN APPLICATION FOR A VARIANCE, SUPREME COURT COULD NOT ADDRESS THE MERITS)/ADMINISTRATIVE LAW (ZONING, BECAUSE THE ZONING BOARD DID NOT ADDRESS THE MERITS OF AN APPLICATION FOR A VARIANCE, SUPREME COURT COULD NOT ADDRESS THE MERITS)

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PLAINTIFF PROPERLY OPTED TO SUE EMPLOYER FOR WORKPLACE INJURY, EMPLOYER DID NOT CARRY WORKERS’ COMPENSATION INSURANCE.

The Second Department determined plaintiff’s personal injury action against his employer (Montalvo) should not have been dismissed. The employer did not have Workers’ Compensation insurance and plaintiff properly opted to sue:

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Generally, “Workers’ Compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” … . “This precludes suits against an employer for injuries in the course of employment” … . Here, however, the plaintiff properly elected his remedy of pursuing this action against Montalvo under Workers’ Compensation Law §§ 11 and 50, since Montalvo did not carry Workers’ Compensation coverage at the time of the accident … , a fact conceded by Montalvo’s counsel in a statement that constituted a judicial admission … . Accordingly, the trial court should not have granted Montalvo’s trial motion pursuant to CPLR 3211(a)(7). Rosario v Montalvo & Son Auto Repair Ctr., Ltd., 2017 NY Slip Op 02837, 2nd Dept 4-12-17

WORKERS’S COMPENSATION LAW (PLAINTIFF PROPERLY OPTED TO SUE EMPLOYER FOR WORKPLACE INJURY, EMPLOYER DID NOT CARRY WORKERS’ COMPENSATION INSURANCE)/EMPLOYMENT LAW (PLAINTIFF PROPERLY OPTED TO SUE EMPLOYER FOR WORKPLACE INJURY, EMPLOYER DID NOT CARRY WORKERS’ COMPENSATION INSURANCE)

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REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE.

The Second Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment in the Real Property Actions and Proceedings Law (RPAPL) 1501 action to set aside the deed and mortgages which were the bases for foreclosure by defendant Wells Fargo bank. Plaintiff demonstrated the initial deed was a forgery. Wells Fargo argued the proper procedure required that plaintiff move to vacate the judgment of foreclosure:

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RPAPL 1501(1) provides that any person who “claims an estate or interest in real property” may “maintain an action against any other person . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, . . . the defendant might make.” A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid … .

Contrary to Wells Fargo’s contention, the plaintiff, who, like the decedent, was not a defendant in the foreclosure action… , properly commenced the instant action … .

Wells Fargo otherwise failed to carry its prima facie burden on its motion by demonstrating the absence of a triable issue of fact as to whether the subject deed was valid … . Accordingly, the Supreme Court erred in granting Wells Fargo’s motion … . Deramo v Laffey, 2017 NY Slip Op 02772, 2nd Dept 4-12-17

REAL PROPERTY (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)/FORECLOSURE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)/DEEDS (FORGED, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)

TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER.

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the defendant manufacturer of a Bobcat skid loader was not entitled to a jury instruction on the so-called Scarangella defense in this products liability case. Plaintiff’s decedent was killed by a small tree which entered the open cab of the Bobcat. The Bobcat was rented without a door on the cab. A door was available as a safety device. The Scarangella defense, in limited circumstances, places the ultimate decision whether to employ an available safety device on the buyer rather than the manufacturer. In Scarangella the safety device was a back-up alarm for school buses. The purchaser of the buses opted not to have the alarms installed. Only the buyer’s employees operated the buses and all were aware of the blind spot behind the buses:

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The Court of Appeals [in Scarangella] determined that a departure from the rationale for imposing strict liability against the bus seller was warranted because the plaintiff’s employer was a “highly knowledgeable consumer,” the risk of harm was not substantial because the buses were only operated in reverse in the parking yard, and the plaintiff’s employer was in the best position to assess the dangers of not having the alarm (id. at 661). The Court held that a product is not defective and a manufacturer or seller is not liable as a matter of law if it establishes that (1) the buyer was thoroughly knowledgeable about the product and its use and was aware that the safety feature was available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional feature; and (3) the buyer was in a position to balance the benefits and risks of not having the optional safety device “in the specifically contemplated circumstances of the buyer’s use of the product” … . Where all three prongs are satisfied, the “buyer,” not the manufacturer or seller, is in a better position to assess the safety of the product without the optional safety feature, and a court should not submit a defective design claim against a manufacturer or seller to the jury, as there is no justification for the accepted rationale imposing strict liability upon the manufacturer or seller … . If one or more of the three prongs is not satisfied, however, the manufacturer or seller is in a better position than the buyer to discover design defects and, therefore, liability can be imposed. * * *

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The circumstances of this case demonstrate that the Supreme Court properly determined that the Scarangella exception is inapplicable. When the loader was sold to Taylor, the Bobcat defendants knew that Taylor would rent it out to consumers for their personal use. In other words, the Bobcat defendants knew that Taylor would be renting the loader to persons over whom Taylor had no control, and who might lack any experience operating heavy equipment. This is in sharp contrast to Scarangella, where the individuals at risk from the absence of back-up alarm equipment were almost exclusively the buyer’s employees, and it was readily inferable that these employees were fully aware of a bus driver’s blind spot in backing up a bus and the resultant hazard, and could be expected to exercise special care whenever positioned in proximity to the rear of any bus that was idling or moving in reverse in the yard. Where, as here, the buyer is purchasing the product for use not by its employees but by the general public, over whom the buyer will exercise no control once the product is rented, it would be inappropriate to apply an exception to liability that is premised on the buyer being in a superior position to make the risk-utility assessment. Fasolas v Bobcat of N.Y., Inc., 2017 NY Slip Op 02777, 2nd Dept 4-12-17

 

PRODUCTS LIABILITY (TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)/BOBCAT (PRODUCTS LIABILITY, SKID LOADER, TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)/SKID LOADER  (PRODUCTS LIABILITY, BOBCAT TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)/SCARANGELLA DEFENSE (PRODUCTS LIABILITY, LOADER, TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER)

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED.

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to defendant podiatrist in this malpractice action. The defendant’s expert did not address the precise claims of malpractice made in the pleadings and did not demonstrate plaintiffs gave informed consent to the procedure. On the issue of informed consent, the court wrote:

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To succeed on a cause of action to recover damages for podiatric malpractice based on lack of informed consent, a plaintiff must demonstrate (1) the failure of the podiatric practitioner providing the professional treatment or diagnosis to disclose to the patient the alternatives thereto and the reasonably foreseeable risks and benefits involved that a reasonable podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation, and (2) that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought … . Here, the plaintiffs’ deposition testimony indicates that they were not fully advised of the risks, benefits, and alternatives to the surgical procedure. Further, the generic consent form signed by the infant plaintiff’s mother did not establish the defendants’ prima facie entitlement to judgment as a matter of law since it did not disclose the risks specific to the surgical procedure performed, and the defendants’ expert failed to aver that the consent form complied with the prevailing standard for such disclosures applicable to reasonable podiatrists performing the same kind of surgery ,,, , Parrilla v Saphire, 2017 NY Slip Op 02803, 2nd Dept 4-12-17

NEGLIGENCE (MEDICAL MALPRACTICE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED)/MEDICAL MALPRACTICE (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED)/INFORMED CONSENT  (MEDICAL MALPRACTICE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS PODIATRIC MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED, REQUIREMENTS FOR A LACK OF INFORMED CONSENT CAUSE OF ACTION EXPLAINED)

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