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NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

The Second Department determined plaintiff insurance company's motion for summary judgment under the no-fault insurance law should have been denied. Plaintiff alleged defendant failed to comply with the requirement that defendant submit to an examination under oath (EUO). The Second Department determined plaintiff did not demonstrate the letters to defendant scheduling the EUO were timely and properly mailed:

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” … . ” The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” … . However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed … . “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” … .

As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs' counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed … . Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 2016 NY Slip Op 03485, 2nd Dept 5-4-16

INSURANCE LAW (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)/NO-FAULT INSURANCE (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)

COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action under Labor Law 740, the whistleblower statute:

Labor Law § 740 creates a cause of action in favor of an employee who has suffered a “retaliatory personnel action” as a consequence of, inter alia, “disclos[ing], or threaten[ing] to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety,” or as a consequence of “object[ing] to, or refus[ing] to participate in any such activity, policy or practice in violation of a law, rule or regulation” … . …

The complaint alleged, among other things, that the plaintiff was offered a promotion … . The complaint also alleged that the terms of the promotion would have placed the plaintiff under the supervision of the defendant Tonya Parker, who was not among the class of persons authorized by law or regulation to supervise a registered nurse in clinical activities. The complaint also alleged that the plaintiff pointed out that Parker was not authorized to supervise her, but the terms of the promotion were not changed. The complaint further alleged that after the plaintiff declined to accept the promotion, she was discharged from her position as Head of Nursing, and another nurse was given the position that plaintiff had turned down, under Parker's supervision. Fough v August Aichhorn Ctr. for Adolescent Residential Care, Inc., 2016 NY Slip Op 03469, 2nd Dept 5-4-16

EMPLOYMENT LAW (COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE)/LABOR LAW (COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE)/WHISTLEBLOWER STATUTE (COMPLAINT STATED A CAUSE OF ACTION UNDER LABOR LAW 740)

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EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Second Department determined the trial evidence supported defendant's request for a jury instruction of the justification defense. A new trial was ordered:

Here, based upon the testimony of the People's witnesses, there was a reasonable view of the evidence that would permit the jury to conclude that the defendant reasonably believed that the use of deadly force was necessary to prevent Jimmy [the victim] from using deadly force against the defendant or his friend, Ranjit … . There was testimony that, immediately before he was stabbed, Jimmy was belligerent and wielded a knife inside the defendant's home, and that he had threatened Ranjit's life. Significantly, Ranjit and another witness described Jimmy as the initial aggressor … . Moreover, this incident occurred in the defendant's dwelling and, thus, to the extent that he believed that Jimmy was about to use deadly physical force against him, he was under no duty to retreat … . People v Singh, 2016 NY Slip Op 03537, 2nd Dept 5-4-16

CRIMINAL LAW (EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/JUSTIFICATION DEFENSE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.

The Second Department determined providing the unredacted statement to the jury by mistake deprived defendant of a fair trial, without regard to whether the mistake contributed to defendant's conviction:

CPL 310.20(1) provides, “[u]pon retiring to deliberate, the jurors may take with them: . . . Any exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take.” Here, the defendant's written statement was admitted into evidence at trial, but the parties agreed to redact the statement so as to omit a portion of it indicating, in part, that the defendant's girlfriend “attempted to say I [the defendant] raped her [the defendant's girlfriend].” The parties further agreed that they would return to court before the jury received that exhibit. The redacted portion of the statement was unrelated to the robbery for which the defendant was standing trial. However, in violation of CPL 310.20(1) and the parties' express agreement, the defendant's statement was mistakenly provided to the jury, without the attorneys having been notified first, and without the statement having been fully redacted … . Instead of granting the defense attorney's motion for a mistrial, as it should have done in view of the highly prejudicial nature of the redacted portion of the statement, the Supreme Court gave an instruction regarding the statement that was ineffectual in curing the prejudice. “The right to a fair trial is self-standing,” and where error operates to deprive the defendant of a fair trial, an appellate court “must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction” … . People v Reid, 2016 NY Slip Op 03535, 2nd Dept 5-4-16

CRIMINAL LAW (PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)

MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED.

The Second Department determined there was manifest necessity for a mistrial in this murder case. Defendant’s petition to prohibit a second trial was therefore properly denied:

In general, “double jeopardy will bar a retrial when a mistrial is granted over the defendant’s objection, unless the mistrial is granted as the product of manifest necessity'” … . “Manifest necessity for a mistrial has been found where the court concludes, after conducting a probing and tactful inquiry,’ that a juror is grossly unqualified to continue serving” and there are no alternates available … . Before declaring a mistrial, the court has “the duty to consider alternatives to a mistrial and to obtain enough information so that it is clear that a mistrial is actually necessary” … . A trial court’s determination that a mistrial is necessary is entitled to deference, as that court is in the best position to assess the circumstances … . Likewise, “the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected” will be accorded “the highest degree of respect” … .

Here, when the jury reconvened after the Sirois hearing, one juror (No. 10) had been excused, leaving 12 jurors, and the excusal of two more jurors (Nos. 7 and 9) was imminent, leaving only 10 jurors. Furthermore, although the mistrial was declared on the eighth business day after the presentation of evidence had commenced, only one partial day of evidence presentation had occurred, despite the Supreme Court’s initial estimate that the trial would take approximately two weeks (i.e., 10 business days). Matter of Whyte v Nassau County Dist. Attorney’s Off., 2016 NY Slip Op 03517, 2nd Dept 5-4-16

CRIMINAL LAW (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MISTRIAL (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MANIFEST NECESSITY (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/DOUBLE JEOPARDY (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)

BENEFICIARIES OF ESTATE DID NOT HAVE STANDING TO BRING AN ACTION TO PRESERVE AN ESTATE ASSET, ONLY THE PERSONAL REPRESENTATIVE OF THE ESTATE HAS THAT POWER.

The Second Department determined plaintiffs, who were beneficiaries of decedent's estate, did not have standing to bring an action seeking to recover and preserve an asset allegedly wrongfully diverted from decedent's estate prior to her death. Only a personal representative of the estate could bring the action:

EPTL 11-3.2(b) provides that a cause of action for injury to person or property is not lost because of the death of the person in whose favor the cause of action existed, as the cause of action may be commenced or continued by the decedent's personal representative. “[A] beneficiary, absent extraordinary circumstances . . . , cannot act on behalf of [an] estate or exercise [a] fiduciary's rights with respect to estate property” … . Rather, “[t]he appropriate avenue is to be appointed a representative pursuant to the requirements of the EPTL” … .

Here, the Supreme Court correctly determined that the plaintiffs lacked standing to commence an action to recover and preserve an asset alleged to have been wrongfully diverted from the decedent's estate prior to her death … . The plaintiffs, as individual beneficiaries of the decedent's estate, had no independent right to maintain an independent cause of action for the recovery of estate property, as such a right belonged to the personal representative of the decedent's estate … . Stallsworth v Stallsworth, 2016 NY Slip Op 03161, 2nd Dept 4-27-16


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MOTION TO AMEND NOTICE OF CLAIM TO ADD NEW THEORY OF LIABILITY SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff's motion to amend the notice of claim should not have been granted. The notice of claim alleged plaintiff fell because of an uneven, broken sidewalk. The amended notice of claim alleged plaintiff slipped on snow or ice:

“Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial technical mistakes, defects or omissions, not substantive changes in the theory of liability'” … . Here, the proposed amendments to the notice of claim included a substantive change to the facts and added a new theory of liability. “Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e[6]” … . Moreover, under the circumstances of this case, the granting of leave to serve and file the proposed amended notice of claim prejudiced NYCHA by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Nor would it have been proper to grant the plaintiff's cross motion on the basis that it was, in effect, for leave to serve and file a late notice of claim. The plaintiff's motion was not made until May 13, 2014, or almost two years and four months after the happening of the accident on January 21, 2012. The plaintiff's failure to petition for leave to serve a late notice of claim within 1 year and 90 days of the date that his claim accrued deprived the Supreme Court of authority to permit late service of a notice of claim … . Robinson v City of New York, 2016 NY Slip Op 03156, 2nd Dept 4-27-16


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CODE PROVISION DID NOT SPECIFICALLY IMPOSE TORT LIABILITY ON ABUTTING LANDOWNERS FOR BREACH OF THE DUTY TO MAINTAIN THE SIDEWALK, LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined, under the town code, defendant abutting landowner was not liable for a sidewalk slip and fall. Although the code provision imposed a duty to maintain the sidewalk on the abutting landowner, the provision did not specifically impose tort liability:

Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner … . ” However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates [him or her] to maintain the sidewalk'” … . ” In order for a statute, ordinance or municipal charter to impose tort liability upon an abutting owner for injuries caused by his or her negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he [or she] will be liable to those who are injured'” … . Kilfoyle v Town of N. Hempstead, 2016 NY Slip Op 03141, 2nd Dept 4-27-16


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STATEMENT IN HOSPITAL RECORD ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE AS PART OF A BUSINESS RECORD AND AS A PARTY ADMISSION, STATEMENT SHOULD NOT HAVE BEEN EXCLUDED FROM TRIAL.

The Second Department determined defendant was entitled to a new trial on liability because a statement attributed to the plaintiff in a hospital report should not have been excluded. Plaintiff alleged she was struck by defendant's vehicle as she walked behind it. The statement attributed to plaintiff indicated only that she fell in the road. The nurse who wrote the statement would have testified the plaintiff made the statement. The statement was admissible as part of a business record (hospital record) because it was germane to treatment or diagnosis. The statement was also admissible as a party admission:

“Such records are admissible if the proponent offers either foundational testimony under CPLR 4518(a) or certification under CPLR 4518(c)” … . The defendants should have been permitted to call the nurse to testify to establish a foundation for the admission of the entry from the hospital record as a business record. A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient … . Further, “if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is evidence connecting the party to the entry'” … . In this case, the nurse, had she been permitted to testify, would have provided the evidence connecting the plaintiff to the entry, and, since the entry was inconsistent with the plaintiff's position at trial, which was that she was struck by the vehicle, the entry would be admissible as a party admission. Berkovits v Chaaya, 2016 NY Slip Op 03131, 2nd Dept 4-27-16


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DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE, THE JURY FOUND DEFENDANT NEGLIGENT AND THERE WAS NO REASONABLE VIEW OF THE EVIDENCE IN WHICH DEFENDANT’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF THE ACCIDENT.

The Second Department determined plaintiffs' motion to set aside the defense verdict as against the weight of the evidence should have been granted. Defendant acknowledged she turned right coming out of a parking lot but was looking to her left. Defendant struck the pedestrian plaintiffs. The jury found defendant was negligent but that her negligence was not a proximate cause of the accident. The court noted that the plaintiffs may also have been negligent, but there was no reasonable view of the evidence in which defendant's negligence was not a proximate cause:

… [T]he jury's determination that the defendant's negligence was not a proximate cause of the accident did not rest upon any fair interpretation of the evidence … . The issues of negligence and proximate cause are so inextricably interwoven in this case that the jury's finding that the defendant was negligent cannot be reconciled with its finding that the negligence was not a proximate cause of the accident … . That is, the defendant admitted that she turned right out of a parking lot while looking to her left despite the fact that she knew that pedestrians crossed 71st Avenue at that location to access the parking lot from which she was exiting. Notwithstanding any negligence on the part of the plaintiffs, the defendant's negligence in driving in one direction while looking in the other direction and thereby failing to see pedestrians who were there to be seen in the middle of the street was a substantial, not a slight or trivial, cause of this accident … . Accordingly, although the plaintiffs may also have been negligent, no fair interpretation of the evidence supports the jury's finding that the defendant's negligence was not a proximate cause of the accident. Cruz v Jeffrey, 2016 NY Slip Op 03134, 2nd Dept 4-27-16


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