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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

 

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

 

Height Differential Open and Obvious

The Second Department, reversing Supreme Court, determined the condition which caused plaintiff to fall was open and obvious (nonactionable). Plaintiff tripped where there was a height differential between a bed of decorative stones and the abutting walkway:

Here, the evidence submitted by the defendant in support of its motion, including photographs of the accident site, demonstrated, prima facie, that it was entitled to judgment as a matter of law. Contrary to the plaintiff’s contention, the height differential between the cement walkway and the abutting bed of stones was open and obvious and not inherently dangerous … . Mucciariello v A & D Hylan Blvd. Assoc., LLC, 2015 NY Slip Op 08391, 2nd Dept 11-18-15

 

Six-Year Statute of Limitations for Reformation of Deed Exceeded, No Evidence the Exception to the Statute Applied

The Second Department determined the action to reform a deed (correction of alleged scrivener’s error) was time-barred. The six-year statute was exceeded and there was no proof the exception to the six-year statute applied:

A cause of action seeking reformation of an instrument on the ground of mistake, including an alleged scrivener’s error, is governed by the six-year statute of limitations pursuant to CPLR 213(6), which begins to run on the date the mistake was made … . However, “a well-recognized exception exists as to one who is in possession of real property under an instrument of title,’ whereby the statute of limitations never begins to run against his [or her] right to reform that instrument until he [or she] has notice of a claim adverse to his [or hers] under the instrument, or until his [or her] possession is otherwise disturbed'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the alleged scrivener’s error occurred on August 8, 2005, and that the plaintiff did not commence this action until February 2013, more than six years after the alleged mistake … . In opposition, the plaintiff failed to raise a question of fact as to the applicability of the exception to the statute of limitations based on his alleged “possession of real property under an instrument of title” … . The plaintiff failed to submit any evidence with respect to whether or when he was in possession of the subject property. Lopez v Lopez, 2015 NY Slip Op 08389, 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

 

Single Step Was Open and Obvious

The Second Department, reversing Supreme Court, determined defendant was entitled to summary judgment in a slip and fall case because the alleged defective condition, a single step riser, was open and obvious and complied with building code requirements:

The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the subject step complied with the relevant Building Code requirements and that it was open and obvious and not inherently dangerous … . The burden then shifted to the plaintiff to defeat the defendants’ motion with “proof demonstrating the existence of an issue of fact as to whether other circumstances prevailed which could lead the trier of fact to conclude that a dangerous condition existed which was a substantial cause of the [accident] resulting in the plaintiff[‘s] . . . injury” … . Contrary to the Supreme Court’s determination, the plaintiff failed to raise a triable issue of fact. Fishelson v Kramer Props., LLC, 2015 NY Slip Op 08380, 2nd Dept 11-18-15

 

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Portable Breath Test Device (PBT) Results Should Not Have Been Admitted, Driving While Intoxicated Conviction Reversed

The Second Department reversed defendant’s driving while intoxicated (DWI) conviction because the results of the portable breath test device (PBT) were allowed in evidence in the People’s direct case:

Generally, the result of a PBT, such as an Alco-sensor, “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Contrary to the trial court’s determination, isolated remarks during defense counsel’s opening statement did not open the door for the People to introduce incriminating testimony about the PBT result as part of their case-in-chief, particularly in the absence of appropriate limiting instructions … . We note that the opening remarks at issue, regarding the officer discarding the PBT “cap,” were at least partly offered in support of the defense theory that the defendant was not aware that he was the subject of a lawful arrest on the night in question, which theory was offered to undermine the charges of assault in the second degree and resisting arrest. Further, we find that the People adequately responded to this remark by eliciting the officer’s testimony that he disposed of the plastic cap because it was unsanitary, and this was standard procedure. Nonetheless, the People elicited testimony that, according to the PBT, the defendant’s BAC was .128%, significantly higher than the legal limit of .08%, before defense counsel had an opportunity to raise this issue during cross-examination … . Under these circumstances, it cannot be said that the defendant opened the door for the People to adduce evidence of an insufficiently reliable PBT result in order to prove the defendant’s intoxication … .

Thereafter, the trial court did not provide the jury with any limiting instructions regarding the PBT result …, but instead directed the jury to consider the PBT result as direct proof of the defendant’s intoxication. The court told the jury that the PBT was a “generally accepted instrument in determining blood alcohol content,” and that no scientific expert was necessary. This was error … . Under the circumstances, including the lack of evidence of admissible field sobriety tests, we find that this error was not harmless beyond a reasonable doubt. People v Krut, 2015 NY Slip Op 08439, 2nd Dept 11-18-15

 

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Question of Fact Whether City Created Hazardous Condition

The Second Department, reversing Supreme Court, determined there was a question of fact whether the city created the allegedly hazardous condition (an expansion joint cover plate on a bridge which was struck by plaintiff’s bicycle):

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . In addition, “[a] municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality … .

Here, the City failed to establish, prima facie, that the subject metal expansion joint cover plate did not present a hazardous or defective condition … . Although the plaintiff does not dispute that the City did not have prior written notice of the alleged hazardous or defective condition, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition … . Oser v City of New York, 2015 NY Slip Op 08393, 2nd Dept 11-18-15

 

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Statements Made by Defendant Indicating He Was On a First Name Basis with Police Officers and that He Had Been in Jail Should Not Have Been Admitted Because the Statements Were Not Relevant to a Material Issue in the Case, The Error Was Harmless However

Although the error was deemed harmless, the Second Department determined statements made by the defendant indicating he was on a first name basis with police officers and mentioning he had been in jail should not have been admitted in evidence:

Evidence of prior crimes or bad acts is not admissible to show a defendant’s predisposition to criminal conduct … . Such evidence, however, is admissible when it is relevant to a material issue in the case, and the probative value of the evidence outweighs the potential prejudice to the defendant … . We agree with the defendant that the County Court erred in allowing these statements to be admitted into evidence, as the prosecutor failed to establish that any of the comments were relevant to a material issue in the case … . People v McPhillips, 2015 NY Slip Op 08440, 2nd Dept 11-18-15

 

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Evidence of Constructive Possession of Contraband Insufficient, Convictions Reversed

The defendant was convicted of possession of marijuana and weapons found in a bedroom of an apartment in which defendant and several others were present. The Second Department determined there was insufficient evidence that defendant constructively possessed the contraband and reversed:

The element of constructive possession may be established, inter alia, where it is shown that the defendant exercised ” dominion or control'” over the property by exercising a sufficient level of control over the place where the contraband is found or over the person from whom the contraband is seized … . “Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case” … . “Where . . . the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused, the circumstances must be satisfactorily established and must be of such a character as, if true, to exclude to a moral certainty every other hypothesis except that of the accused’s guilt” … .

Viewing the evidence in the light most favorable to the People …, it was legally insufficient to establish the possession elements of the weapons possession and marijuana possession counts, as charged here. Although the defendant was present in the apartment when the search warrant was executed, “it is settled that one’s mere presence in an apartment or house where contraband is found does not constitute sufficient basis for a finding of constructive possession” … . There was no evidence specifically connecting the defendant to the bedroom where the contraband was found, or otherwise connecting the defendant to the contraband. Under these specific circumstances, the People failed to prove that the defendant exercised dominion and control over the contraband, and therefore failed to prove the possession element of the counts as charged … . People v Brown, 2015 NY Slip Op 08428. 2nd Dept 11-18-15

 

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