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EVEN AN INNOCENT MATERIAL MISTAKE ON AN INSURANCE APPLICATION RENDERS THE POLICY UNENFORCEABLE.

The Second Department determined the trial court property granted the insurer’s motion for a judgment as a matter of law. The insured acknowledged that the property was configured as a three-family home, but that he indicated it was a two-family home on the application for insurance. Even an innocent material misrepresentation renders the policy unenforceable:

In order to establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy … . A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented … .

Here, the plaintiff’s own testimony established that his house was structurally configured as a three-family dwelling, and thus, the statement on his insurance application indicating that it was a two-family dwelling was a misrepresentation … . Although the plaintiff testified that he believed his house was a legal two-family dwelling, an insurer may rescind a policy if the insured made a material misrepresentation of fact even if the misrepresentation was innocently or unintentionally made … . Further, the defendant established that the plaintiff’s misrepresentation was material through the uncontroverted testimony of its witnesses and documentary evidence, including its underwriting guidelines, which established that the defendant did not insure three-family dwellings, and would not have issued the subject policy if the plaintiff and his wife had disclosed that the house contained three dwelling units … . Estate of Gen Yee Chu v Otsego Mut. Fire Ins. Co., 2017 NY Slip Op 01536, 2nd Dept 3-1-17

 

INSURANCE LAW (EVEN AN INNOCENT MATERIAL MISTAKE ON AN INSURANCE APPLICATION RENDERS THE POLICY UNENFORCEABLE)/MISREPRESENTATION (INSURANCE LAW, EVEN AN INNOCENT MATERIAL MISTAKE ON AN INSURANCE APPLICATION RENDERS THE POLICY UNENFORCEABLE)

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LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTIONED.

The Second Department determined plaintiff-lender did not negotiate a mortgage modification in good faith and was properly sanctioned by the tolling of interest, costs and attorney’s fees accrued during the four years of negotiations:

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution … . “The purpose of the good faith requirement . . . is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution” … . Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party’s conduct demonstrates a meaningful effort at reaching a resolution … .

Here, the totality of the circumstances supports the finding that the plaintiff failed to negotiate in good faith. The hearing evidence demonstrated that the plaintiff, among other things, engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided … . Aurora Loan Servs., LLC v Diakite, 2017 NY Slip Op 01528, 2nd Dept 3-1-17

 

FORECLOSURE (LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)/CIVIL PROCEDURE (FORECLOSURE, LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)

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INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF.

The Second Department determined the judge did not make a sufficient inquiry before allowing the sex offender to represent himself in this SORA proceeding:

Where a defendant makes a timely and unequivocal request to waive the right to counsel and represent herself or himself, “the trial court is obligated to conduct a searching inquiry’ to ensure that the defendant’s waiver is knowing, intelligent, and voluntary” … . “A waiver is voluntarily made when the trial court advises the defendant and can be certain that the dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant'” … . “A searching inquiry’ does not have to be made in a formulaic manner, . . . although it is better practice to ask the defendant about [her or] his age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … . …

… [W]e conclude that the Supreme Court failed to conduct the requisite searching inquiry to ensure that the defendant’s waiver of the right to counsel was unequivocal, voluntary, and intelligent … . The court made only minimal inquiry into the defendant’s age, experience, intelligence, education, and exposure to the legal system, and did not explain the risk inherent in proceeding pro se or the advantages of representation by counsel. The court’s failure to conduct a searching inquiry renders the defendant’s waiver of the right to counsel invalid and requires reversal … . People v Griffin, 2017 NY Slip Op 01577, 2nd Dept 3-1-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/ATTORNEYS (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/

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A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing County Court, determined a conviction by guilty plea can be challenged on actual innocence grounds. The defendant was entitled to a hearing on her motion to set aside her conviction both on her actual innocence claim and her ineffective assistance of counsel claim. Defendant was a nurse who bathed a profoundly disabled child. After the bath blisters appeared on the child’s skin. At the time she stated she didn’t think the water was hot. In her motion to set aside, she alleged that she was convinced during interrogation that the water must have been too hot and pled guilty for that reason. Expert evidence indicates the blisters may not have been burns, but rather were a reaction to antibiotics. A biopsy was consistent with an allergic reaction:

Having determined that a defendant’s plea of guilty does not absolutely bar that defendant from maintaining a freestanding actual innocence claim pursuant to CPL 440.10(1)(h), we address whether the County Court properly denied, without a hearing, that branch of the defendant’s motion which was to vacate the judgment based on actual innocence. Contrary to the People’s contention, the defendant is entitled to a hearing on her actual innocence claim. “A prima facie showing of actual innocence is made out when there is “a sufficient showing of possible merit to warrant a fuller exploration”‘ by the court” … . Here, by submitting her affidavit, [defendant’s expert’s] affirmation, and other material, such as the skin biopsy pathology report, the defendant made the requisite prima facie showing … . We also note that subsequent to the entry of the defendant’s plea of guilty, the civil action against the defendant and her former employer resulted in a jury verdict in their favor. We are mindful that the burden of proof in a civil trial is different than that in a criminal trial and that the evidence presented at each may differ. However, in the civil trial, the jury found that the defendant’s care was not a proximate cause of the child’s injuries, despite the fact that the defendant and her former employer were collaterally estopped from contesting liability. People v Tiger, 2017 NY Slip Op 01575, 2nd Dept 3-1-17

CRIMINAL LAW (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE CONVICTION, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/SET ASIDE CONVICTION, MOTION TO (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ATTORNEYS (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/INEFFECTIVE ASSISTANCE (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ACTUAL INNOCENCE (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)

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EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the evidence before the grand jury was sufficient to demonstrate defendant’s knowledge he possessed cocaine. The defendant received a package containing cocaine addressed to a name (not his name) he used to sign for it and the package was addressed to a location which was not where defendant resided. The defendant was arrested before the package was opened:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction” … . ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” … . ” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts, supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference” … . People v Jimenez, 2017 NY Slip Op 01566, 2nd Dept 3-1-17

CRIMINAL LAW(EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/GRAND JURIES (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/CONTROLLED SUBSTANCE, POSSESSION OF (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)

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UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

The Second Department determined defendant’s motion to suppress his statements should have been granted:

At the suppression hearing, a police detective testified that while the defendant was in custody, he administered Miranda warnings … and took the defendant’s written statement. On cross-examination, the detective admitted that 10 minutes prior to taking the defendant’s Mirandized written statement, he questioned the defendant without administering Miranda warnings. The written statement itself refers to incriminating statements made by the defendant during the earlier, pre-Miranda questioning. The Supreme Court denied suppression.

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . Here, the improper unwarned statements made by the defendant gave rise to a subsequent Mirandized written statement as part of a single continuous chain of events. Accordingly, both the oral statement and the written statement should have been suppressed. People v Ghee, 2017 NY Slip Op 01564, 2nd Dept 3-1-17

 

CRIMINAL LAW (UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/EVIDENCE (CRIMINAL LAW, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/SUPPRESS, MOTION TO (CRIMINAL LAW, STATEMENTS, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, SUPPRESSION, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)

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DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant did not demonstrate it was the alter ego of plaintiff’s employer (which would trigger the Worker’s Compensation Law as plaintiff’s sole remedy). Defendant’s summary judgment motion on that ground should have been denied. Plaintiff was injured by a defective floor condition where he worked. He sued the owner of the building and the holder of the lease, Clean Rite Cleaners – Flatbush Avenue, LLC:

At the time of the accident, the plaintiff was employed by nonparty CRC-Management Co., LLC (hereinafter CRC-Management), and, after the accident, he sought Workers’ Compensation benefits from CRC-Management. CRC-Flatbush moved, in effect, for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff’s causes of action were barred by the exclusive remedy provisions of the Workers’ Compensation Law. Among other things, CRC-Flatbush argued that it was “part of a single integrated entity” along with CRC-Management since they were both subsidiaries of nonparty Clean Rite Centers, LLC. …

… “[A] mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other” … . Here, CRC-Flatbush failed to make a prima facie showing either that it and the plaintiff’s employer, CRC-Management, operated as a single integrated entity, or that either company controlled the day-to-day operations of the other … . Moses v B & E Lorge Family Trust, 2017 NY Slip Op 01350, 2nd Dept 2-22-17

 

WORKER’S COMPENSATION LAW (DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/CORPORATION LAW (WORKER’S COMPENSATION LAE, NEGLIGENCE, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)/ALTER EGO (WORKER’S COMPENSATION LAW, CORPORATION LAW, DEFENDANT DID NOT DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE COMPLAINT SHOULD NOT HAVE BEEN GRANTED)

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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED; DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, over an extensive two-justice dissent, determined plaintiff’s motion for summary judgment based upon the common law right of sepulcher should have been denied and the defendant’s motion for summary judgment dismissing the cause of action based upon failure to timely perform an autopsy should have been granted. Plaintiffs elected to terminate a pregnancy because genetic testing indicated the fetus could not live. The defendant hospital provided plaintiffs with a burial form and plaintiffs consented to having the hospital bury the fetus. When plaintiffs allegedly were told the sex of the fetus was male (the genetic testing indicated the fetus was female), the plaintiffs asked for an autopsy. The fetus had been misplaced and was ultimately found in a bin with body parts. The autopsy was performed and confirmed the fetus was female. The hospital argued that the right of sepulcher only applied to “bodies” and the fetus, which was less than 20 weeks old, was not a “body.” The Second Department held that the hospital had essentially waived that argument by agreeing to bury the fetus. Although the plaintiffs, by signing the burial form, relinquished their right to prompt possession of the body, the cause of action alleging the mishandling of the remains was viable. The Second Department went on to hold that there was no cause of action for negligent infliction of emotional distress stemming from the delay of an autopsy:

The common-law right of sepulcher “gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and . . . damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … . Here, although the plaintiffs relinquished their right to prompt possession of the fetal remains when Linru Fan executed a written consent form authorizing the Hospital to arrange for the burial, the plaintiffs also alleged that the Hospital violated their right to sepulcher by mishandling the fetal remains … . However, damages attributable to emotional distress caused by the failure to timely perform an autopsy on the fetus are not recoverable … . Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, 2017 NY Slip Op 01405, 2nd Dept 2-22-17

SEPULCHER, RIGHT OF (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)/AUTOPSY (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BASED UPON THE RIGHT OF SEPULCHER SHOULD NOT HAVE BEEN GRANTED, DEFENDANT HOSPITAL’S MOTION TO DISMISS THE CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD HAVE BEEN GRANTED)

A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY.

The Second Department, in a decision too complex to fairly summarize here, determined a party’s (Myrtle’s) failure to execute a recorded memorandum referencing a purchase and sale agreement and assignment resulted in the failure to give priority to a claim to the property by a another party to the agreement (All Year):

Real Property Law § 294(2) provides, inter alia, “[i]n lieu of the recording of an executory contract, there may be recorded a memorandum thereof, executed by the parties.” Here, in lieu of recording the purchase and sale agreement and assignment thereof, All Year and Cumberland executed and recorded a memorandum referencing the purchase and sale agreement and the assignment. However, Myrtle, which was a party to both the purchase and sale agreement and the assignment, did not execute the memorandum. As Myrtle did not execute the memorandum, it was improperly recorded in lieu of the purchase and sale agreement and assignment, and its recording did not serve to give All Year’s claim to the property priority over Brookland’s claim. Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 2017 NY Slip Op 01402, 2nd Dept 2-22-17

REAL PROPERTY LAW (A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/RECORDING (REAL PROPERTY LAW, PURCHASE AND SALE AGREEMENT, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/PRIORTY (REAL PROPERTY, RECORDING, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)

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SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND.

The Second Department determined Supreme Court should not have imposed sanctions on defendants in this medical malpractice action. The action was premised on the failure of a suture which had to be repaired by a subsequent surgery. The suture at issue was thrown away at the time of the second surgery. Plaintiff failed to demonstrate the defendants threw away the suture with a culpable state of mind:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind,’ and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . Where evidence has been intentionally or willfully destroyed, its relevance is presumed … . However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party’s claim or defense … . * * *

… Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion to impose sanctions against the defendants for the wilful spoilation and destruction of evidence, as the plaintiff failed to demonstrate that the defendants were obligated to preserve the broken suture at the time of its destruction, that the suture was destroyed with a “culpable state of mind,” and/or that the destroyed suture was relevant to the plaintiff’s claim … . In any event, the plaintiff failed to establish that the defendants were on notice that the suture might be needed for future litigation … . Golan v North Shore-Long Is. Jewish Health Sys., Inc., 2017 NY Slip Op 01342, 2nd Dept 2-22-17

 

NEGLIGENCE (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/MEDICAL MALPRACTICE (EVIDENCE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/EVIDENCE (MEDICAL MALPRACTICE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/SPOLIATION (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)

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