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DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants did not submit sufficient evidence to warrant dismissal of the “lack of informed consent” cause of action. Plaintiff alleged the breast implants she received were not of the type and size she requested . The proof submitted by the defendants did not demonstrate the consent form at issued complied with the standard for disclosure in this context:

Although the defendants demonstrated that they cannot be held liable for lack of informed consent based upon the size of the implants used, the defendants failed to establish that they cannot be held liable for lack of informed consent based on the type of implants used. The consent forms signed by the plaintiff stated that she would be receiving “gel” implants, but did not identify the particular brand or manufacturer of the implants. Although the defendants’ expert averred that the operative report indicated that “Palaia explained the risks, benefits and alternatives to [the plaintiff] prior to the procedure,” and noted that consent forms were signed, he failed to aver that “the consent form complied with the prevailing standard for such disclosures applicable to reasonable practitioners performing the same kind of surgery” … . Whitnum v Plastic & Reconstructive Surgery, P.C., 2016 NY Slip Op 05710, 2nd Dept 8-3-16

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/INFORMED CONSENT (MEDICAL MALPRACTICE, DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant failed to make out a prima facie case warranting summary judgment. Plaintiff was injured playing basketball on defendant’s property when he fell on a flower pot which was near the post supporting the backboard. The evidence failed to eliminate a triable issue whether the placement of the flower pot unreasonably increased the inherent risks:

 

… [D]efendants failed to establish, prima facie, that the doctrine of primary assumption of the risk barred the plaintiff’s recovery. The evidence submitted by the defendants, including testimony as to the size and placement of the flowerpot in close proximity to the paved court, failed to eliminate a triable issue as to whether its placement unreasonably increased the inherent risks of the activity … . Moreover, contrary to their contention, the defendants failed to establish, prima facie, that they did not create or have actual or constructive notice of the alleged condition … .  Simone v Doscas, 2016 NY Slip Op 05709, 2nd Dept 8-3-16

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/ASSUMPTION OF RISK (DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/BASKETBALL (ASSUMPTION OF RISK, DEFENDANTS DID NOT DEMONSTRATE PLACEMENT OF A FLOWER POT NEAR THE BASKETBALL COURT DID NOT UNREASONABLY INCREASE THE INHERENT RISKS OF PLAYING BASKETBALL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

GRANDMOTHER ENTITLED TO HEARING ON HER PETITION FOR CUSTODY, HEARING SHOULD BE HELD IN DISPOSITIONAL PORTION OF PROCEEDINGS TO TERMINATE MOTHER’S PARENTAL RIGHTS.

The Second Department, in a case related to the two cases summarized immediately above, determined grandmother’s petition for custody should not have been dismissed without a hearing. Mother’s parental rights were terminated based upon mental illness and permanent neglect. The Second Department held that grandmother’s petition for custody should be part of the dispositional hearing in the mother’s parental rights proceedings:

A grandparent has standing to seek custody of a child pursuant to Family Court Act article 6 when the child is in foster care, and is generally entitled to a hearing … . While the grandmother was not entitled to an immediate hearing on her custody petition prior to the determination made at the conclusion of the fact-finding hearing in the termination proceedings against the mother … , the proper procedural course would have been for the Family Court to consider her custody petition in the context of a dispositional hearing in the underlying termination proceedings, wherein the court would determine the best interests of the child … . The grandmother did not testify at the fact-finding hearing or any of the permanency hearings held in relation to the termination proceedings against the mother, and was therefore never afforded the right to be heard on the issues … . Accordingly, the Family Court erred in failing to resolve the custody petition before freeing the child for adoption … . Matter of Weiss v Weiss, 2016 NY Slip Op 05717, 2nd Dept 8-3-16

FAMILY LAW (GRANDMOTHER ENTITLED TO HEARING ON HER PETITION FOR CUSTODY, HEARING SHOULD BE HELD IN DISPOSITIONAL PORTION OF PROCEEDINGS TO TERMINATE MOTHER’S PARENTAL RIGHTS)/CUSTODY (GRANDMOTHER ENTITLED TO HEARING ON HER PETITION FOR CUSTODY, HEARING SHOULD BE HELD IN DISPOSITIONAL PORTION OF PROCEEDINGS TO TERMINATE MOTHER’S PARENTAL RIGHTS)/GRANDPARENTS (FAMILY LAW, GRANDMOTHER ENTITLED TO HEARING ON HER PETITION FOR CUSTODY, HEARING SHOULD BE HELD IN DISPOSITIONAL PORTION OF PROCEEDINGS TO TERMINATE MOTHER’S PARENTAL RIGHTS)

GRANDMOTHER ENTITLED TO HEARING ON WHETHER SHE HAS STANDING TO PETITION FOR VISITATION.

The Second Department, in a case related to the cases summarized immediately above and below, determined Family Court should not have dismissed grandmother’s petition for visitation on standing grounds without first conducting a hearing:

Where a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must undertake a two-part inquiry … . First, the court must determine whether the grandparent has standing to petition for visitation based on the death of a parent or equitable circumstances … . Where the court concludes that the grandparent has established standing, the court must then determine whether visitation with the grandparent is in the best interests of the child … . In determining whether equitable circumstances confer standing, the court must examine all relevant facts … . “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,” including whether the grandparent has a meaningful relationship with the child … .

Here, the grandmother’s petition alleged the existence of a sufficient relationship with the child to confer standing upon her to seek visitation … . Further, the information before the Family Court was insufficient to enable it to undertake a comprehensive independent review of the standing issue, without a hearing … . Matter of Weiss v Orange County Dept. of Social Servs., 2016 NY Slip Op 05716, 2nd Dept 8-3-16

 

FAMILY LAW (GRANDMOTHER ENTITLED TO HEARING ON WHETHER SHE HAS STANDING TO PETITION FOR VISITATION)/VISITATION (GRANDMOTHER ENTITLED TO HEARING ON WHETHER SHE HAS STANDING TO PETITION FOR VISITATION)/GRANDPARENTS (FAMILY LAW, GRANDMOTHER ENTITLED TO HEARING ON WHETHER SHE HAS STANDING TO PETITION FOR VISITATION)

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MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT.

The Second Department determined mother’s motion to vacate the dispositional portions of the orders terminating her parental rights based upon mental illness and permanent neglect should have been granted. Mother defaulted, but moved to vacate both the fact-finding a dispositional aspects of the orders:

Family Court improvidently exercised its discretion in denying that branch of the mother’s motion which was to vacate the dispositional portions of the orders of fact-finding and disposition. Although, in the context of a proceeding pursuant to Social Services Law § 384-b to terminate parental rights based on mental illness, a separate dispositional hearing is not necessarily required in every case … , the circumstances of this case were not such that a separate dispositional hearing was unwarranted … . Furthermore, in the case of permanent neglect, the Family Court may not dispense with a dispositional hearing in the absence of the consent of the parties … . Consequently, the mother was entitled to vacatur of the dispositional portions of the orders of fact-finding and disposition in the interest of justice … . Matter of Isabella R.W. (Jessica W.), 2016 NY Slip Op 05715, 2nd Dept 8-3-16

FAMILY LAW (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)/PARENTAL RIGHTS, TERMINATION OF (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)/PERMANENT NEGLECT (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)

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AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES. 

The Second Department, reversing Supreme Court, determined that the letter of intent constituted merely “an agreement to agree” which could not support breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel or fraud causes of action:

 

The letter of intent provided that parties “shall negotiate to arrive at mutually acceptable Definitive Agreements” regarding the potential joint venture and loan. The letter of intent further provided that the parties “each reserve the right to withdraw from further negotiations at any time if, in the sole judgment of either or both, it is in either Party’s best interest to do so, without further liability or obligation to the other.” * * *

The Supreme Court should have granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint, as documentary evidence, in the form of the letter of intent, utterly refuted the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law … . ” [I]t is rightfully well settled in the common law of contracts in this State that a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable'” … . Here, the letter of intent demonstrated that the plaintiff’s allegations of breach of contract related to a mere agreement to agree … . Further, causes of action sounding in promissory estoppel and fraud require reasonable reliance on an alleged promise or misrepresentation … . Here, in light of the language of the letter of intent, any reliance on the defendants’ alleged promises and representations would, as a matter of law, have been unreasonable … . Finally, the language of the letter of intent utterly refuted the plaintiff’s allegations regarding an alleged breach of the covenant of good faith and fair dealing … . New York Military Academy v NewOpen Group, 2016 NY Slip Op 05706, 2nd Dept 8-3-16

 

CONTRACT LAW (AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES)/AGREEMENT TO AGREE (AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES)/LETTER OF INTENT (AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES)/COVENANT OF GOOD FAITH AND FAIR DEALING (AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES)/PROMISSORY ESTOPPEL (AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES)/FRAUD (AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES)

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ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED.

The Second Department determined summary judgment in this Labor Law 240(1) and 241(6) action should not have been awarded to plaintiff. Although plaintiff had made out a prima facie case against defendant YAM, the motion was premature in that plaintiff had not yet been deposed:

… [T]he plaintiff made a prima facie showing that YAM failed to provide him with adequate safety devices, as required by Labor Law § 240(1), and that this violation of the statute was a proximate cause of the accident … . The plaintiff also made a prima facie showing that he was injured while he was engaged in an activity covered under Labor Law § 241(6), that there was a violation of an applicable provision of the Industrial Code, and that the violation was a proximate cause of the accident … .

Nonetheless, the plaintiff’s motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against YAM was premature since there has been almost no discovery in the case and the plaintiff has not been deposed. In the absence of such discovery, YAM’s ability to defend is impaired, since it is limited to the plaintiff’s own unchallenged account of the accident, set forth in the affidavit he submitted in support of his motion for summary judgment, and YAM has not had an opportunity to explore potential defenses … . Churaman v C&B Elec., Plumbing & Heating, Inc., 2016 NY Slip Op 05703, 2nd Dept 8-3-16

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/SUMMARY JUDGMENT (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)

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ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED.

The Second Department, reversing the defense verdict, determined the trial court should not have given the jury the “error in judgment” charge in this medical malpractice action. Plaintiff alleged defendant negligently diagnosed a lump as benign without any further diagnostic tests. The “error in judgment” theory does not apply in that circumstance:

… Supreme Court erred in giving an “error in judgment” charge (PJI 2:150 ¶ 5) over the plaintiff’s objection. “That charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … . Contrary to the defendant’s contention, this case does not present a choice between one of two or more medically acceptable alternative treatments or techniques … . Rather, the defendant testified that he diagnosed the decedent, in January of 2002, with a benign condition “that was not urgent,” and he neither suspected cancer nor considered the option of sending the decedent for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent with a benign condition in January of 2002, and the “error in judgment” charge was not warranted … . Lacqua v Silich, 2016 NY Slip Op 05628, 2nd Dept 7-27-16

NEGLIGENCE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/MEDICAL MAPRACTICE ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/JURY CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/ERROR IN JUDGMENT CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)

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NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT.

The Second Department determined the City emergency response personnel did not enter into a special relationship with plaintiff’s decedent based upon the 911 operator’s assurance an ambulance was on its way. There was some confusion about where plaintiff’s decedent was located which resulted is some delay in the arrival of help:

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that no special relationship existed between it and the decedent … . The defendant demonstrated, prima facie, that the firefighters did not assume an affirmative duty to act on the decedent’s behalf, and, in opposition, the plaintiffs failed to raise a triable issue of fact … . Moreover, even assuming that the 911 operator’s assurance that an ambulance was on its way constituted an assumption by the defendant of an affirmative duty to act on behalf of the decedent, the defendant demonstrated, prima facie, that the decedent and the plaintiffs did not rely to their detriment on that assurance. In opposition, the plaintiffs failed to raise a triable issue of fact. The record does not show that the plaintiffs were lulled by any assurance made by the 911 operator into a false sense of security that caused them “to forego other available avenues of protection” … . Holloway v City of New York, 2016 NY Slip Op 05627, 2nd Dept 7-27-16

MUNICIPAL LAW (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/ GOVERNMENTAL IMMUNITY (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)/NEGLIGENCE (GOVERNMENTAL IMMUNITY, (NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, CITY IMMUNE FROM SUIT)

SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED.

The Second Department determined a worksite “safety consultant” (PSS) did not exercise sufficient supervisory control to be held liable under the Labor Law. Plaintiff was injured when he fell through a plywood covered hole in a ramp. The decision has detailed recitations of the black letter law requirements for Labor law 240(1), 241 (6) and 200 causes of action:

PSS submitted evidence demonstrating that its role at the work site was only one of general supervision, and that it did not have the authority to control the work performed or the safety precautions taken by the general contractor and the plaintiff’s employer, which is insufficient to impose liability on a safety consultant under the Labor Law … .

“To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'” … . ” A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed'” … . ” [T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'” … . Where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a contractor may be liable under Labor Law § 200 ” only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it'” … . Moreover, an entity is not deemed to be an agent of an owner or contractor for purposes of Labor Law § 200 if it “lacked sufficient control over the premises and the activity that brought about the injury” … . Marquez v L & M Dev. Partners, Inc., 2016 NY Slip Op 05631, 2nnd Dept 7-27-16

 

LABOR LAW (SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED)/SAFETY CONSULTANT (LABOR LAW, (SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED)

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