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FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES.

The Second Department determined a Frye hearing was necessary “to resolve the question of whether the diagnosis of ‘other unspecified paraphilic disorder’ has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible …”. Two psychologists evaluated the appellant sex offender and found he suffered from “other unspecified paraphilic” disorder. The defense asked for a Frye hearing to ascertain whether the diagnosis was generally accepted in the psychiatric and psychological communities. The request was denied. The jury found appellant suffered from a mental abnormality within the meaning of the Mental Hygiene Law and the court determined appellant was a sex offender requiring strict and intensive supervision and trreatment:

“[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS “is a controversial diagnosis” … and that the Court of Appeals had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has received general acceptance in the psychiatric community ” … . However, the Court of Appeals declined to reach this issue in Donald DD. because no Frye hearing had been requested or held … . Here, given the fact that “other unspecified paraphilic disorder” was the primary diagnosis upon which the State’s experts relied to show that the appellant’s attempted kidnapping offense was sexually motivated and that he suffered from a mental abnormality, the Supreme Court should have conducted a Frye hearing to resolve the question of whether the diagnosis of “other unspecified paraphilic disorder” has achieved general acceptance in the psychiatric and psychological communities … . Matter of State of New York v Hilton C., 2016 NY Slip Op 05158, 2nd Dept 6-29-16

MENTAL HYGIENE LAW (FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/EVIDENCE (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/EXPERT EVIDENCE (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/MENTAL ABNORMALITY (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/FRYE HEARING (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)/SEX OFFENDERS (MENTAL HYGIENE LAW, FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES)

RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6);QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY.

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant was entitled to the homeowner’s exemption from liability under Labor Law 240(1) and 241(6). Homeowners who renovate property for commercial purposes cannot assert the exemption. Here there was a question of fact about the homeowner’s intention at the time of the injury:

Although the Labor Law generally imposes liability for worker safety on property owners and contractors, it exempts from liability “owners of one and two-family dwellings who contract for but do not direct or control the work” … . The exemption “was not intended to insulate from liability owners who use their one- or two-family houses purely for commercial purposes” … .

“[R]enovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose” … . However, where a one- or two-family property serves both residential and commercial purposes, “[a] determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury” … . Batzin v Ferrone, 2016 NY Slip Op 05108, 2nd Dept 6-29-16

 

LABOR-CONSTRUCTION LAW (RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6); QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY)/HOMEOWNERS’ EXEMPTION (LABOR LAW, RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6); QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY)

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COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT.

The Second Department determined plaintiff had stated causes of action for age discrimination and a hostile work environment. The court outlined the relevant law and applied the facts alleged to the legal principles. The law was described as follows:

To state a cause of action alleging age discrimination under the New York Human Rights Law (Executive Law § 296), a plaintiff must plead facts that would tend to show (1) that he or she was a member of a protected class, (2) that he or she was actively or constructively discharged or suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she was terminated or suffered an adverse employment action, and (4) that the discharge or adverse employment action occurred under circumstances giving rise to an inference of age discrimination … . * * *

To state a cause of action alleging a hostile work environment under Executive Law § 296, a plaintiff must plead facts that would tend to show ” that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected class]'” … . The United States Supreme Court has observed that courts examining hostile work environment causes of action should consider, among other things, ” the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” … . Godino v Premier Salons, Ltd., 2016 NY Slip Op 05118, 2nd Dept 6-29-16

EMPLOYMENT LAW (COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/AGE DISCRIMINATION (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HOSTILE WORK ENVIRONMENT (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HUMAN RIGHTS LAW  (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)

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PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because he was improperly cross-examined about an admission allegedly made to his attorney:

The defendant contends that he was deprived of a fair trial because the Supreme Court allowed the prosecutor, on cross-examination, to question him, in violation of the attorney-client privilege, as to whether he made a certain admission to his attorney which contradicted his trial testimony. Although the defendant failed to preserve this claim for appellate review … , we nevertheless reach it in the exercise of our interest of justice jurisdiction … . Allowing this questioning was error, as it concerned a statement the defendant allegedly made to his attorney … . The error was not harmless, as the proof of the defendant’s guilt was not overwhelming and the questioning was highly damaging to the defendant’s credibility, the jury’s assessment of which, compared to that of the complainant, was the central issue in the case … . Under the circumstances of this case, the court’s instructions to the jury in its preliminary instructions and final charge that questions in and of themselves were not evidence, and that the jurors were prohibited from inferring any facts from the mere asking of a question, cannot be deemed to have obviated any prejudice resulting from the error … . People v Loiseau, 2016 NY Slip Op 05172, 2nd Dept 6-29-16

CRIMINAL LAW (PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S QUESTIONING DEFENDANT ABOUT AN ADMISSION ALLEGEDLY MADE TO HIS ATTORNEY REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined a motion to intervene in a foreclosure action was untimely and should have been dismissed. The potential intervenor (Shelepers) knew of the foreclosure action at the time the property was transferred to it but waited four months to bring the motion:

Intervention under CPLR 1012 and 1013 requires a timely motion … . Here, Shelepers purchased the subject property with the knowledge that this foreclosure action was pending, and yet it waited over four months before seeking leave to intervene. Under the circumstances of this case, Shelepers’ motion for leave to intervene in the action was untimely … . Castle Peak 2012-1 Loan Trust v Sattar, 2016 NY Slip Op 05111, 2nd Dept 6-29-16

CIVIL PROCEDURE (UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED)/INTERVENE, MOTION TO (UNTIMELY MOTION TO INTERVENE SHOULD NOT HAVE BEEN GRANTED)

PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED.

The Second Department, reversing Supreme Court, determined the action should not have been dismissed pursuant to CPLR 3216 for neglect to proceed. The court noted that plaintiff need not show both and justifiable excuse and meritorious cause of action to avoid dismissal:

CPLR 3216 is “extremely forgiving” … in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed” … . While the Supreme Court is prohibited from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for the delay in the prosecution of the action and a potentially meritorious cause of action … , a dual showing of justifiable excuse and meritorious cause of action is not strictly necessary for a plaintiff to avoid dismissal of the action … . Bell v United Parcel Serv., Inc., 2016 NY Slip Op 05110, 2nd Dept 6-29-16

CIVIL PROCEDUR (NEGLECT TO PROCEED, PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)/NEGLECT TO PROCEED (PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)/CPLR 3216 (NEGLECT TO PROCEED, PLAINTIFF NEED NOT SHOW BOTH A JUSTIFIABLE EXCUSE AND A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR NEGLECT TO PROCEED)

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PHYSICIAN’S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM.

The Second Department determined the actions against two physicians tasked with reading plaintiff's spinal MRI should have been dismissed. There was unrefuted evidence the MRI's were read correctly and the doctors' duties did not extend beyond the interpretation of the MRI:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, both West and Davis established, prima facie, that they discharged their respective duties to the injured plaintiff in accordance with accepted practices. West's expert concluded that West's interpretation of the … MRI film was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, but instead opined that West should have ordered a diffusion MRI to look for evidence of the injured plaintiff's condition. However, as West correctly contends, he had no such duty to do so. West's role was to interpret the MRI film and document his findings. He did not assume a general duty of care to independently diagnose the injured plaintiff's medical condition … .

Similarly, the plaintiffs' argument that Davis had a duty to examine the injured plaintiff in person and to ensure that high-dose steroids were properly administered also is without merit. Davis's duty as a neurosurgical consultant was to determine whether neurosurgery was necessary. He determined that it was not. His expert stated that this conclusion was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, and did not argue that neurosurgery was necessary. Meade v Yland, 2016 NY Slip Op 04697, 2nd Dept 6-15-16

NEGLIGENCE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/MEDICAL MALPRACTICE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/DUTY OF CARE (PHYSICIANS, PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)

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COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY.

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for aiding and abetting the breach of a fiduciary duty. Plaintiff’s former partner left the partnership and joined defendant accounting firm, taking a client with him. Partners owe one another a fiduciary duty. The complaint alleged the defendant firm aided and abetted the former partner in breaching that duty. The court outlined the relevant law:

To recover damages for aiding and abetting a breach of fiduciary duty, a plaintiff must plead and prove that a fiduciary duty owed to the plaintiff was breached, that the defendant knowingly induced or participated in the breach, and that the plaintiff was damaged as a result of the breach … . Knowing participation in a breach of fiduciary duty occurs when the defendant provides substantial assistance to the primary violator … . ” Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur . . . . However, the mere inaction of an alleged aider or abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff'” … . Smallberg v Raich Ende Malter & Co., LLP, 2016 NY Slip Op 04704, 2nd Dept 6-15-16

 

PARTNERSHIP LAW (COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY)/FIDUCIARY DUTY (PARTNERSHIP LAW, COMPLAINT STATED A CAUSE OF ACTION FOR AIDING AND ABETTING BREACH OF A FIDUCIARY DUTY)

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PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT.

The Second Department determined plaintiff created an issue of fact in this rear-end collision case by submitting a police report indicating defendant driver slid on snow and ice. The court noted plaintiff waived any objection to the admissibility of the report by submitting it in support of plaintiff's motion for summary judgment:

In support of the motion, the plaintiff submitted, inter alia, a copy of the police accident report. The police accident report indicated that the defendant driver stated that snow and ice on the road caused him to hit the plaintiff's vehicle, which demonstrated the existence of a triable issue of fact as to whether the defendant driver had a nonnegligent explanation for his actions … . Since the plaintiff submitted the police report in support of his motion, he waived any objection to its admissibility … . Orcel v Haber, 2016 NY Slip Op 04700, 2nd Dept 6-15-16

NEGLIGENCE (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/EVIDENCE (POLICE REPORT, SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/SUMMARY JUDGMENT (PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)/CIVIL PROCEDURE (SUMMARY JUDGMENT MOTION, PLAINTIFF SUBMITTED POLICE REPORT IN SUPPORT OF SUMMARY JUDGMENT MOTION, REPORT CREATED A QUESTION OF FACT, PLAINTIFF WAIVED ANY OBJECTION TO ITS ADMISSIBILITY BY SUBMITTING IT)

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OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant out-of-possession landlord did not demonstrate it did not cause the alleged radiator-defect which injured plaintiff. Therefore the landlord's motion for summary judgment was properly denied:

“[A]n out-of-possession landowner is generally not responsible for injuries that occur on its premises unless the landowner has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . However, ” liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect'” … .

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. Although the defendant demonstrated that it did not owe a duty to provide the plaintiff with a radiator cover …, the defendant failed to establish that it did not cause the radiator to become and remain in a defective, broken, and overheated condition. Gowen v Gabrielle Realty Holdings, LLC, 2016 NY Slip Op 04695, 2nd Dept 6-15-16

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)

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