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FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL.

The Second Department, after finding the court’s allowing the wearing of T-shirts memorializing the murder victim and three (unpreserved) instances of prosecutorial misconduct harmless individually, the cumulative effect of the “harmless” errors was deemed sufficient to reversed defendant’s conviction:

On the second day of trial, defense counsel advised the Supreme Court that “quite a few members of the deceased’s family are present in the court, they are all wearing T-shirts with his photograph on it, displayed in a fairly prominent position on the front of their T-shirts.” Defense counsel requested that the court instruct the spectators to remove the T-shirts or turn them inside out. After asking the members of the audience to stand up for a moment so as to view the T-shirts, the court stated that there was no basis to limit their right to wear items or make a statement since they had a First Amendment right to do so. The court also stated: “It should be noted that the Court, in viewing the audience, saw nothing outstanding other than T-shirts with some pictures and some words. One of the picture[s] may be of the [victim], I can’t tell from this distance. But, at any rate, that’s my ruling for the record, over counsel’s objection.” * * *

The prosecutor improperly appealed to the jury’s sympathy by eliciting testimony from the victim’s mother that the victim’s wife was expecting a child and expressing sympathy for her loss … . * * *

That error was compounded when, during summation, the prosecutor improperly appealed to the jury’s sympathy by commenting that when the victim left his house on the night in question, he had no idea that he was “never going to see his family again” and “never going to be able to see his girlfriend again,” and stating that it was a “tragedy” that his “24-year-old life was taken away by this man here (indicating), [the defendant]” … . The prosecutor committed misconduct of a different sort during summation when, while playing a surveillance video introduced into evidence at trial, she identified certain barely visible figures on the screen as the victim and the defendant. Throughout the course of these comments, the Supreme Court repeatedly instructed the jury that it alone should assess the video and not rely on the prosecutor’s comments, but the prosecutor persisted in her characterization of the figures on the screen.  People v Holiday, 2016 NY Slip Op 05816, 2nd Dept 8-17-16

CRIMINAL LAW (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/HARMLESS ERROR (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)/CUMULATIVE EFFECT OF INDIVIDUAL ERRORS (CRIMINAL LAW, (FAILURE TO PROHIBIT T-SHIRTS MEMORIALIZING THE VICTIM AND THREE UNPRESERVED INSTANCES OF PROSECUTORIAL MISCONDUCT WERE HARMLESS ERRORS INDIVIDUALLY, BUT THE CUMULATIVE EFFECT REQUIRED A NEW TRIAL)

PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST.

The Second Department, reversing Supreme Court, determined defendant need not pay prejudgment interest when it paid the policy limits into the court pursuant to CPLR 2601 to stop the accrual of interest on that amount:

In this action to recover damages for medical malpractice, after a jury trial, a judgment was entered in favor of the plaintiffs and against, among others, the defendant New York Methodist Hospital (hereinafter NYMH) in the total present value sum of $13,815,290. In an order dated September 24, 2014, the Supreme Court granted NYMH’s motion pursuant to CPLR 2601, inter alia, for leave to pay the limits of its insurance policy, $7,500,000, into court in order to stop the accrual of interest on that amount. * * *

… CPLR 2601 does not mandate that any specific amount of money be paid into court or require that interest on the amount to be paid into court from the date of the verdict to the date of deposit be paid at or around the time of deposit. Therefore, NYMH was not required to pay into court an additional $619,520.55, which represented the accrued interest from the date of the verdict to the date of deposit. Accordingly, the order must be reversed. Sence v Atoynatan, 2016 NY Slip Op 05804, 2nd Dept 8-17-16

 

CIVIL PROCEDURE (PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST)/PREJUDGMENT INTEREST (PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST)/INTEREST (PREJUDGMENT INTEREST NEED NOT BE PAID INTO THE COURT PURSUANT TO CPLR 2601 WHEN SUCH A PAYMENT IS MADE TO STOP THE ACCRUAL OF INTEREST)

EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE.

The Second Department, reversing Supreme Court, determined defendant animal shelter could not be held liable for a dog bite, even if the shelter breached its duty to inform plaintiff, who adopted the dog, of the dog’s vicious propensities. The plaintiff observed the dog’s vicious propensities after bringing the dog home. Therefore, the animal shelter’s breach was not the proximate cause of the bite:

“For [two hundred] years … , the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … . “If such animal be delivered [by the owner] to another, he [or she] must inform such person of the animal’s vicious characteristics, so far as known, or ascertainable by the exercise of reasonable care. If such information be given, or the person to whom the animal is delivered knows, or before injury ascertains, the vicious character of the animal, the owner is not liable” … . The rationale for such rule is self-evident—informing a person who takes possession of an animal about the animal’s vicious propensities allows that person to take precautionary measures to protect himself or herself and others from harm caused by that animal’s vicious propensities.

Here, even if the defendant breached its duty to disclose the dog’s vicious propensities known to it, or “ascertainable by the exercise of reasonable care” at the time of the plaintiff’s adoption … , by failing to inform the plaintiff that the dog had previously bitten someone in the face, any such breach was not a proximate cause of the plaintiff’s injuries. The dog’s displays of aggressive behavior during the three and a half months the plaintiff owned it, and the fact that it first bit the plaintiff on July 13, 2012, gave the plaintiff sufficient knowledge of the dog’s vicious propensities before she was bitten again on September 3, 2012 … . Tighe v North Shore Animal League Am., 2016 NY Slip Op 05807, 2nd Dept 8-17-16

 

ANIMAL LAW (EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE)/DOG BITE (EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE)

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LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL.

The Second Department determined the jury was properly instructed to consider a tenant’s liability for a sidewalk slip and fall based upon the terms of the lease:

… [T]he Supreme Court properly submitted the issue of the tenant’s negligence to the jury. “Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property” … . Generally, the “provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as the plaintiff” … . However, where a lease agreement is “so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner’s duty to maintain the sidewalk,” the tenant may be liable to a third party … . Here, the owner demonstrated that a rider to the subject lease requiring the tenant to, at its own cost and expense, keep and maintain the sidewalk “in thorough repair and good order,” was so comprehensive and exclusive as to entirely displace the owner’s duty to maintain the sidewalk … . Paperman v 2281 86th St. Corp., 2016 NY Slip Op 05747, 2nd Dept 8-10-16

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SLIP AND FALL (LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SIDEWALKS (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)

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ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department determined mother’s custody petition should not have dismissed. Although mother was presumptively entitled to custody as the sole surviving parent, she was seeking findngs which would allow the children to apply for special immigrant juvenile status (SIJS):

SIJS is a form of immigration relief that affords undocumented children a pathway to lawful permanent residency and citizenship … . Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence … . “Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services [hereinafter USCIS] for SIJS” … . Ultimately, the determination of whether to grant SIJS to a particular juvenile rests with USCIS and its parent agency, the Department of Homeland Security. Thus, when making the requisite SIJS findings, the state or juvenile court is not actually “rendering an immigration determination” … . * * *

Here, although the mother was presumptively entitled to custody of the children as their surviving parent … , “[a] natural parent has standing to seek legal custody of his or her child” … , and “[u]nopposed petitions for custody brought by a natural parent have been granted” for SIJS purposes … .

Accordingly, the Family Court should not have dismissed the custody petition without conducting a hearing and considering the children’s best interests. Instead, the court should have proceeded to conduct a hearing on the petition, which sought a custody order as well as an order making the requisite declaration and special findings so as to enable the children to petition for SIJS … . Matter of Castellanos v Recarte, 2016 NY Slip Op 05755, 2nd Dept 8-10-16

 

FAMILY LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

IT WAS IN THE BEST INTERESTS OF SIBLINGS TO REMAIN TOGETHER, CUSTODY OF BOTH CHILDREN SHOULD HAVE BEEN AWARDED TO FATHER IN THIS MODIFICATION PROCEEDING.

The Second Department determined Family Court properly awarded custody of Jonathan to father, finding modification of custody was justified by changed circumstances. However Family Court erred in failing to award father custody of Jonathan’s sibling, Madison. It was deemed to be in Madison’s best interests to continue living with Jonathan:

… [T]he Supreme Court’s determination that the evidence did not demonstrate a sufficient change in circumstances warranting modification of the custody provisions of the settlement agreement so as to award the father residential custody of the parties’ child Madison is not supported by a sound and substantial basis in the record. It “has long [been] recognized that it is often in the child’s best interests to continue to live with his [or her] siblings” … , and “the courts will not disrupt sibling relationships unless there is an overwhelming need to do so” … . It is undisputed that Jonathan and Madison have a close relationship, and, based upon the recommendations of the children’s therapist that they should not be separated, the position of the attorney for the children that they should remain with the same custodial parent, and evidence that the father demonstrated more of an ability and willingness to assure meaningful contact between the children and the mother, and to foster a healthier relationship between the children and the mother, than the mother would have fostered between the children and the father, the court should have awarded residential custody of Madison to the father … . Cook v Cook, 2016 NY Slip Op 05743, 2nd Dept 8-10-16

FAMILY LAW IT WAS IN THE BEST INTERESTS OF SIBLINGS TO REMAIN TOGETHER, CUSTODY OF BOTH CHILDREN SHOULD HAVE BEEN AWARDED TO FATHER IN THIS MODFICATION PROCEEDING/CUSTODY IT WAS IN THE BEST INTERESTS OF SIBLINGS TO REMAIN TOGETHER, CUSTODY OF BOTH CHILDREN SHOULD HAVE BEEN AWARDED TO FATHER IN THIS MODFICATION PROCEEDING)

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JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL.

The Second Department, reversing defendant’s conviction, determined defendant should not have been jointly tried with a co-defendant because of an irreconcilable conflict between his defense, and that of the co-defendant:

Where, as here, joinder is lawful, because the defendant and the codefendant were “jointly charged with every offense alleged” in their separate indictments, and “all the offenses charged [were] based upon the same criminal transaction” … , a defendant’s motion for a separate trial is “addressed to the discretion of the trial court, which may for good cause shown’ order severance. Good cause under the statute includes, but is not limited to, a finding that a defendant will be unduly prejudiced by a joint trial'” … . “[A] strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses” … . However, “compromise of a defendant’s fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated” … . ” [S]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt'” … . People v Lessane, 2016 NY Slip Op 05765, 2nd Dept 8-10-16

CRIMINAL LAW (JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)/EVIDENCE (CRIMINAL LAW, JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)/JOINDER (CRIMINAL LAW, JOINDER OF DEFENDANT AND CO-DEFENDANT FOR TRIAL WAS LAWFUL BUT, BECAUSE OF IRRECONCILABLE DEFENSES, JOINDER RESULTED IN DENIAL OF DEFENDANT’S RIGHT TO A FAIR TRIAL)

PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED.

The Second Department, affirming the denial of defendant’s suppression motion, explained the analytical criteria for a pat-down search of defendant’s person after a vehicle stop:

“In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . However, a police officer’s questions regarding whether an individual has a weapon is a common-law inquiry which must be supported by founded suspicion … . In addition, a pat-down search of a suspect’s outer clothing is reasonable and constitutionally permissible when an officer observes facts and circumstances that give rise to a reasonable suspicion that a person is armed or poses a threat to his or her safety … . Among the factors relevant to determining whether a pat-down search is justified are “the substance and reliability of the report that brought the officers to the scene, the nature of the crime that the police are investigating, the suspect’s behavior and the shape, size, and location of any bulges in the suspect’s clothing” … .

Under the circumstances of this case, including, among other things, the time of night, the fact that the livery cab in which the defendant was a passenger was speeding, the neighborhood, the officer’s observations of the defendant make what he interpreted as a furtive movement indicating that he was hiding something, the defendant’s refusal to answer questions or look at the officer in comparison to the other passenger’s animated responses, and the abnormal bulge in an unusual spot near the defendant’s groin, the officer was justified in inquiring about the bulge and performing the minimally intrusive measure of touching the bulge to verify that it was, in fact, a gun and not, as the defendant stated, cash … . People v Graves, 2016 NY Slip Op 05763, 2nd Dept 8-10-16

 

CRIMINAL LAW (PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED)/SEARCHES AND SEIZURES (PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED)/VEHICLE STOPS (CRIMINAL LAW, (PAT-DOWN SEARCH AFTER VEHICLE STOP OKAY, CRITERIA EXPLAINED)

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CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED.

The Second Department determined: (1) information procured by an attorney’s freedom of information law requests was not protected by work-product privilege; (2) defendants’ conduct during discovery was not willful and contumacious; and (3) an adverse inference instruction was an appropriate sanction for spoliation of evidence. The Second Department offered detailed summaries of the criteria for work-product privilege, sanctions for conduct during discovery, and spoliation of evidence which are worth reading. With respect to attorney work-product privilege, the court wrote:

The CPLR exempts attorney work product from disclosure … . However, “the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . Furthermore, “[n]ot every manifestation of a lawyer’s labors enjoys the absolute immunity of work product. The exemption should be limited to those materials which are uniquely the product of a lawyer’s learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy” … .

Here, the plaintiffs contend that materials obtained by their attorney via requests pursuant to state and federal freedom of information laws are privileged attorney work product. However, this material cannot be characterized as being “uniquely the product of [the plaintiffs’ counsel’s] learning and professional skills” or as reflecting his “legal research, analysis, conclusions, legal theory or strategy” … . Cioffi v S.M. Foods, Inc., 2016 NY Slip Op 05741, 2nd Dept 8-10-16

 

ATTORNEYS (CRITERIA FOR ATTORNEY WORK-PRODUCT PRIVILEGE, WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/PRIVILEGE (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/WORK PRODUCT (ATTORNEY WORK PRODUCT PRIVILEGE CRITERIA EXPLAINED)/CIVIL PROCEDURE (WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY, AND SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/DISCOVERY (CIVIL, CRITERIA FOR FINDING WILLFUL AND CONTUMACIOUS CONDUCT DURING DISCOVERY CLEARLY EXPLAINED)/EVIDENCE (CIVIL, CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE CLEARLY EXPLAINED)

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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)

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