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PRIMA FACIE CASE OF NEGLECT REBUTTED BY MOTHER’S EXPERT.

Reversing Family Court, the Second Department determined expert testimony on behalf of the mother rebutted the petitioner’s prima facie case of neglect. The court noted the nature of petitioner’s prima facie proof is akin to the doctrine of res ipsa loquitur in negligence. Proof of an injury to a child which would not occur if the child had been in the care of a responsible caregiver is enough to make out a prima facie case. Expert testimony demonstrating the injuries may have occurred when the child was not in the mother’s care and further demonstrating alternate causes of the injuries was sufficient to rebut the prima facie case of neglect/abuse:

Section 1046(a)(ii) of the Family Court Act permits a finding of abuse based upon evidence of an injury to a child which would ordinarily not occur absent acts or omissions of the responsible caretaker, and “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . “If the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of parental culpability,’ although the burden of proof always remains with the petitioner” … .

The petitioner established a prima facie case of abuse … . Contrary to the petitioner’s contention, however, the mother presented sufficient evidence to rebut the petitioner’s case, through the testimony of her expert witness. The mother’s expert witness testified that the injuries … occurred during a period of time when the petitioner had not established that [the child] was in the exclusive care of the mother. Additionally, the expert opined that the injuries could have resulted from alternate mechanisms. Thus, the petitioner failed to establish, by a preponderance of the evidence, that the mother abused [the child] … . Matter of Miguel G. (Navil G.). 2015 NY Slip Op 08834, 2nd Dept 12-2-15

FAMILY LAW (NEGLECT NOT ESTABLISHED, PETITIONER’S CASE REBUTTED)/NEGLECT (PETITIONER’S PRIMA FACIE CASE REBUTTED BY EXPERT TESTIMONY)/EXPERT TESTIMONY (SUFFICIENT TO REBUT PRIMA FACIE CASE OF NEGLECT)

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Inaccurate Advice About the Deportation Consequences of a Guilty Plea Constitutes Ineffective Assistance; Defendant Entitled to a Hearing on His Motion to Vacate His Conviction in this Pre-Padilla Case

The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction (by guilty plea) in this pre-Padilla case. Defendant alleged he was told deportation was not likely, or was a “possibility,” when, in fact, deportation was mandatory. That allegation, plus an assertion he would have negotiated a different plea which did not require deportation had he known the actual consequences of his plea, was sufficient to warrant a hearing:

In Padilla v Kentucky (559 US 356), the United States Supreme Court ruled that the Sixth Amendment to the United States Constitution requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea. However, that decision is not applied retroactively to state court postconviction proceedings … . Since the defendant’s judgment of conviction became final when his time to take an appeal expired—long before Padilla was decided in 2010—Padilla is not applicable here. Therefore, “counsel’s failure to warn a defendant that a guilty plea might lead to removal from the United States” …  does not, in this case, amount to ineffective assistance of counsel.

However, “inaccurate advice about a guilty plea’s immigration consequences constitute[s]” ineffective assistance of counsel … . People v Pinto, 2015 NY Slip Op 08441, 2nd Dept 11-18-15

 

Plaintiff Did Not Know Cause of Fall

The Second Department determined summary judgment was properly granted to defendant in a slip and fall case. Plaintiff apparently tripped on a rug. After the fall plaintiff noticed a part of the rug which was bent upwards. However there was no evidence thr rug was in that condition before the fall, forcing resort to speculation about the cause of the fall:

“In a slip [or trip] and fall case, a defendant moving for summary judgment has the initial burden of establishing, prima facie, that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . However, “[a] plaintiff’s inability to identify what had caused him or her to fall is fatal to his or her case, and a defendant moving for summary judgment dismissing the complaint can meet its initial burden as the movant simply by demonstrating that the plaintiff did not know what had caused him or her to fall” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting the transcript of the plaintiff’s deposition, during which she testified that she did not notice the subject rug at any time prior to her fall, and that it was only after she fell that she observed a part of the rug to be in a folded condition … . The defendant also submitted the deposition testimony and an affidavit from the employee the plaintiff was following when she fell. The employee stated that she did not see any condition with respect to the subject rug which would cause anyone to trip. The defendant also submitted surveillance footage from the day of the plaintiff’s fall depicting the rug, which does not show that the rug was in a defective condition prior to the plaintiff falling. Without proof that there was a defective condition present with respect to the subject rug when the plaintiff fell, and the possibility that the folded condition of the rug the plaintiff observed after she fell was caused by her tripping, a jury would be required to impermissibly speculate as to the cause of her fall… . Giannotti v Hudson Val. Fed. Credit Union, 2015 NY Slip Op 08383, 2nd Dept 11-18-15

 

Question of Fact Raised About Whether Signature on Promissory Note Was Forged

In this action on a promissory note, the Second Department reversed Supreme Court, finding that defendant raised a triable issue of fact whether his signature was forged. The court noted that expert evidence is not necessary to raise a question of fact in this context:

Something more than a mere assertion of forgery is required to create an issue of fact contesting the authenticity of a signature … . Here, in addition to his own affidavit, the defendant submitted a copy of his driver license as an example of his signature, and an affidavit from the individual who allegedly witnessed execution of the note. Review of the defendant’s signature on his driver license and the signature on the note reveal some difference to the untrained eye. More importantly, the individual who is identified as the witness on the note stated in his affidavit that he had no recollection of witnessing the defendant signing the note, and that he believed that his own signature thereon was forged. Furthermore, while the defendant did not submit an expert affidavit, an expert opinion is not required to raise a triable issue of fact regarding a forgery allegation … . Finally, the defendant’s signature on the note was not notarized, and thus, there is no presumption of due execution … . Kitovas v Megaris, 2015 NY Slip Op 08388,2nd Dept 11-18-15

 

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County Did Not Demonstrate Its Entitlement to Qualified Immunity Re: Obstructed Intersection

The Second Department determined the county did not demonstrate (as a matter of law) it was entitled to qualified immunity for  the placement of a sensor station and the failure to trim the nearby hedges. The complaint alleged the sensor station and hedges obstructed plaintiff’s view of oncoming traffic, resulting in an accident. The county’s motion for summary judgment was properly denied. The court explained the analytical criteria:

A governmental body owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, a governmental body is accorded a qualified immunity from liability arising out of a highway safety planning decision … . Such immunity is predicated upon an ability to demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process … .

Contrary to the County’s contention, it did not sustain its prima facie burden on the issue of qualified immunity. The County failed to demonstrate, inter alia, that its placement of the sensor station cabinet and its decision to refrain from trimming the hedge were highway safety planning decisions resulting from a deliberative decision-making process of the type afforded immunity from judicial interference … . Iacone v Passanisi, 2015 NY Slip Op 08386, 2nd Dept 11-18-15

 

Tracked In Water, Failure to Demonstrate When Area Last Inspected Precluded Summary Judgment

The Second Department, reversing Supreme Court, determined defendant’s failure to demonstrate when the area where the slip and fall occurred was last inspected precluded summary judgment in defendant’s favor. Evidence of general cleaning procedures is not enough to demonstrate a lack of constructive notice of an alleged dangerous condition (tracked in water here):

While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … .

To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … .

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. Neither the affidavit of the defendant’s operations manager, nor the deposition testimony of the defendant’s asset protection manager established when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff’s fall.  Milorava v Lord & Taylor Holdings, LLC, 2015 NY Slip Op 08390, 2nd Dept 11-18-15

 

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Fraud Allegations In Connection With a Real Estate Sale Must Be Analyzed within the Doctrine of Caveat Emptor

The Second Department, reversing Supreme Court, determined plaintiffs’ complaint alleging fraudulent misrepresentation and fraudulent concealment in connection with a real estate purchase should have been dismissed. It was alleged the defendant made misrepresentations re: termite damage and mold. The court explained that allegations of fraud in a real estate transaction must be analyzed within the doctrine of caveat emptor. Here the plaintiffs were aware that the house had been treated for wood destroying insects, an inspection report had been issued, and plaintiffs had conducted their own inspection. The defendant made no representations on which plaintiffs relied and did not actively conceal the condition of the property or thwart plaintiffs’ efforts to discover damage:

“In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” …  . However, in the context of real estate transactions, a claim of fraudulent misrepresentation must be analyzed within the doctrine of caveat emptor. ” New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment'” … . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property” … . * * *

” To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor'” … . Here, the defendant showed, prima facie, that she did not thwart the plaintiffs’ efforts to discover any termite or mold damage. Indeed, the plaintiffs conducted an inspection of the property for the purpose of determining if there were wood destroying insects, and they themselves saw some evidence that the property had been treated for insect activity during their … visit, but undertook no further investigation … . The mere fact that the defendant undertook previous repair work on the house is not tantamount to concealment of a defective condition.  Hecker v Paschke, 2015 NY Slip Op 08385, 2nd Dept 11-18-15

 

Video Recording of Independent Medical Exam (IME) Should Be Disclosed Prior to Trial; Court’s Permission to Record IME Is Required; Request for Another IME by a Different Doctor Should Have Been Granted

The Second Department, in a full-fledged opinion by Justice Roman, determined: (1) a video of an independent medical exam (IME) surrepticiously made by plaintiff’s attorney should have been turned over to the defense prior to trial; (2) the court’s permission for recording an IME is required; and (3) under the unique circumstances of this case, the request for an IME by a different doctor should have been granted. The opinion is very long and fact-specific and cannot be fairly summarized here. With respect to the additional IME and the IME video, the Second Department wrote:

Pursuant to CPLR 3121(a), if a plaintiff’s physical condition is in controversy, the defendant may require the plaintiff to submit to a physical examination … . There is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, and a subsequent examination is permissible provided the party seeking the examination demonstrates the necessity for it … . Furthermore, after a note of issue has been filed, as in this case, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination … .

In the present case, unusual and unanticipated circumstances warranting a new IME abound. Foremost among them is Dr. Katz’s unavailability to the appellants as a witness at a retrial, due to his refusal to appear voluntarily, which, in turn, resulted from the Supreme Court’s repeated accusation that Dr. Katz “lied” or committed “perjury” at the first damages trial. These extraordinary circumstances were set in motion when the plaintiff’s attorney chose to surreptitiously videotape Dr. Katz’s second IME of the plaintiff, and chose to withhold that recording from defense counsel despite the requirements of CPLR 3101(i). * * *

… [T]he failure of plaintiff’s counsel to seek and obtain the Supreme Court’s permission to videotape the second IME was, by itself, a sufficient reason to prohibit the use of the recording at trial. Further compounding the improper conduct of plaintiff’s counsel in making the recording without procuring the court’s approval in advance was the failure to disclose the recording to defense counsel prior to trial, which was a clear violation of CPLR 3101. Subsection (a) of that statute provides that: “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party” (CPLR 3101[a] [emphasis added]). Subsection (i) provides, in relevant part, as follows:

“In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use” (CPLR 3101[i]). Bermejo v New York City Health & Hosps. Corp., 2015 NY Slip Op 08374, 2nd Dept 11-18-15

 

Question of Fact Whether Hospital Had a Duty to Safeguard Plaintiff from Actions by Third Parties

The Second Department determined there was a question of fact about whether defendant hospital (“Winthrop defendants”) had a duty to safeguard plaintiff-patient from harm caused by the emergency medical technicians (EMT’s) who transported plaintiff to the hospital. Plaintiff was brought to the hospital by ambulance for dialysis. The EMT’s placed plaintiff on a scale and left. Plaintiff fell when he was on the scale:

A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety” … . “This sliding scale of duty is limited, however; it does not render a hospital an insurer of patient safety or require it to keep each patient under constant surveillance. As with any liability in tort, the scope of a hospital’s duty is circumscribed by those risks which are reasonably foreseeable” … .

Here, the Winthrop defendants failed to establish, prima facie, that they did not breach a duty owed to the decedent. The decedent was transported to the Winthrop defendants’ facility for dialysis treatment, and a witness for the Winthrop defendants testified at his deposition that the weighing of the decedent, on the Winthrop defendants’ premises, was a critical component of that treatment. It was reasonably foreseeable that a patient suffering from end-stage renal disease, who was transported to the Winthrop defendants’ facility by ambulance and in a stretcher, could fall while being weighed-in at the dialysis unit, if not properly supervised. Thus, the decedent’s injury was reasonably foreseeable to the Winthrop defendants.

In support of their motion, the Winthrop defendants submitted deposition testimony indicating that it was customary practice for EMTs of transportation companies to be responsible for weighing patients brought to the dialysis unit on a stretcher prior to transferring care of the patient to the Winthrop defendants’ dialysis nurses. However, they did not present any evidence that there was any written policy or agreement to that effect. Under these circumstances, the deposition testimony submitted by the Winthrop defendants failed to establish, prima facie, that they did not owe a duty to the decedent. Patel v American Med. Response, Inc., 2015 NY Slip Op 08395, 2nd Dept 11-18-15

 

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Emergency Exception to Warrant Requirement Misapplied

The police officers chased defendant when defendant ran and an officer thought he saw a handle of a gun on defendant’s person. The officers entered defendant’s house and found drugs. The Second Department determined the drugs should have been suppressed because there was no emergency justifying the warrantless entry and search of the house:

Under the emergency exception, the police may make a warrantless entry into a protected area if (1) they have reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property, (2) the search was not primarily motivated by an intent to arrest and seize evidence, and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … . … There was no evidence of any circumstances which would have provided a reasonable basis for the patrol officers to believe that there was an emergency at hand and an immediate need for police assistance for the protection of life or property inside the house … .

Furthermore, even where exigent circumstances justify the warrantless entry into a protected area, the scope and duration of the warrantless search must be limited by and reasonably related to the exigencies of the situation … . Here, the subject drugs were not discovered by the ESU officers during their protective sweep. Rather, they were discovered by the patrol officers, who conducted an evidentiary search after the ESU officers had secured the house and removed the defendant, who was the only occupant. At the time of the patrol officers’ search, any purported exigency had abated, the police were in complete control of the house, and there was no danger that the defendant, who was in custody, would dispose of or destroy the weapon. Accordingly, the police were required to obtain a warrant prior to conducting the evidentiary search … . Moreover, contrary to the suppression court’s findings, it is of no avail that the contraband was found in plain view, since the patrol officers’ warrantless entry was illegal … . People v Scott, 2015 NY Slip Op 08445, 2nd Dept 11-18-15

 

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