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Plaintiff Entitled to Summary Judgment in Rear-End Collision Case—Plaintiff’s Statements in Hospital Record Not Admissible—No Relation to Diagnosis and Not Admissions

The Second Department determined plaintiff was entitled to summary judgment on liability in a rear-end collision case. Plaintiff was driving 30 miles an hour when her car was struck from behind, indicating defendant-driver did not maintain a safe distance between the two cars. The court noted that statements made by the plaintiff which were memorialized in a hospital record were inadmissible because the statements were not necessary for diagnostic purposes and were not admissions:

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating, through her affidavit, that she was operating her vehicle in a lane of the Cross Bronx Expressway, proceeding straight ahead at approximately 30 miles per hour with her foot on the gas pedal, when her vehicle was struck in the rear within her lane of travel, suddenly and without warning, by the defendants’ vehicle. Thus, the plaintiff established, prima facie, that [defendant-driver] was negligent in failing to maintain a safe distance behind her vehicle, and that she did not contribute to the happening of the accident … . * * *

… [T]he defendants could not rely on certain statements in the plaintiff’s hospital records to raise a triable issue of fact, since, under the circumstances presented here, the details of how the plaintiff sustained particular injuries and how the accident occurred in this matter were not useful for purposes of her medical diagnosis or treatment and, accordingly, a medical chart entry containing such hearsay statements could not be considered to have been prepared in the regular course of the hospital’s business … . Accordingly, the statements contained in the chart entry are not admissible under the business records exception to the hearsay rule. Moreover, the entry was not inconsistent with the plaintiff’s description of the accident, as provided in her affidavit. Consequently, the entry was not admissible as an admission by the plaintiff … . Service v McCoy, 2015 NY Slip Op 06801, 2nd Dept 9-16-15

 

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Source of Information in Police Report Unknown—Reversible Error to Admit Hearsay in the Report

The Second Department determined a new trial was necessary in this pedestrian-injury case because defendant was allowed to place inadmissible hearsay, contained within a police report, in evidence. Plaintiff alleged she was struck by defendants’ car when she was crossing the street in a crosswalk with the light in her favor. Defendants alleged plaintiff was riding a bicycle and darted out between two cars. The police report supported defendants’ version. However, the officer who wrote the report testified he had no recollection of the source of the information in the report. The Second Department explained why none of the exceptions to the hearsay rule applied to the information in the report:

“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule” … . Pursuant to CPLR 4518(a), a police accident report is admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties … . If information contained in a police accident report was not based upon the police officer’s personal observations, it may nevertheless be admissible as a business record “if the person giving the police officer the information contained in the report was under a business duty to relate the facts to him [or her]” … . If the person giving the police officer the information was not under a business duty to give the statement to the police officer, such information “may be proved by a business record only if the statement qualifies [under some other] hearsay exception, such as an admission” … . In other words, “each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . “The proponent of hearsay evidence must establish the applicability of a hearsay-rule exception” … . Memenza v Cole, 2015 NY Slip Op 06789, 2nd Dept 9-16-15

 

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Plaintiff Raised a Triable Issue of Fact Under the Doctrine of Res Ipsa Loquitur—Plaintiff Alleged a Bone Was Fractured During Surgery

The Second Department determined plaintiff had raised a triable issue fact in a medical malpractice action under the doctrine of res ipsa loquitur. The complaint alleged that, during surgery on her shoulder, a bone was fractured. The court explained the analytical criteria:

“[R]es ipsa loquitur [is] available in a narrow category of factually simple medical malpractice cases requir[ing] no expert to enable the jury to reasonably conclude that the accident would not happen without negligence” … . The doctrine is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “The doctrine is generally available to establish a prima facie case when an unexplained injury in an area which is remote from the treatment site occurs while the patient is anesthetized” … . “In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by [the] defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Swoboda v Fontanetta, 2015 NY Slip Op 06804, 2nd Dept 9-16-15

 

Several Similar Thefts from the Same Store Constituted a Single, Continuing Crime

The Second Department, over a dissent, determined defendant, who stole items from a store on a series of separate occasions, had committed a continuing crime and therefore was properly prosecuted for stealing merchandise worth more than $1000.00:

The evidence presented at trial demonstrated that the defendant took similar expensive electronic merchandise from the same store on each occasion, under virtually the same circumstances, and with the assistance of the driver of the minivan. Contrary to the position of our dissenting colleague, we find that this evidence sufficiently established that the defendant stole merchandise “with a single [ongoing] intent, carried out in successive stages” (People v Rossi, 5 NY2d at 401), and that this was not merely a series of distinct petty thefts (see People v Daghita, 301 NY 223, 225 [affirming the defendant’s conviction of a single continuing grand larceny where he stole a “considerable quantity of merchandise over a period of time” from the same store and “used a large portion of it to furnish his home and to outfit his family”]; see also People v Henderson, 163 AD2d 888; cf. People v Seymour, 77 AD3d 976, 980 [insufficient proof that two thefts from the same store constituted a common scheme or plan, where the defendant stole one television during the first incident, a variety of merchandise during the second incident, and each theft was perpetrated in a different manner, since “there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud”]). People v Malcolm, 2015 NY Slip Op 06829, 2nd Dept 9-16-15

 

Failure to Provide Reason for Denial of Youthful Offender Status Required Remittal

The Second Department remitted the matter to Supreme Court because Supreme Court did not place on the record its reasons for denying youthful offender status to the defendant, and there was no indication that Supreme Court considered whether to afford defendant youthful offender status:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires that the sentencing court actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … . Here, the Supreme Court stated that “[t]here is no youthful offender adjudication” when it imposed sentence in accordance with the defendant’s plea agreement. However, the court did not place on the record any reason for not adjudicating the defendant a youthful offender, and there is nothing in the record to indicate that it actually independently considered youthful offender treatment instead of denying such treatment because it was not part of the plea agreement. Under these circumstances, we vacate the defendant’s sentence, and remit the matter … for a determination of whether the defendant should be afforded youthful offender treatment. People v T.E., 2015 NY Slip Op 06827, 2nd Dept 9-16-15

 

Tree Removal Was First Step in Making Structural Repairs, Injury During Tree Removal Covered Under Labor Law 240 (1)

The Second Department determined removal of a tree which had fallen on a house, causing structural damage, was the first step in repairing the structure. Therefore, plaintiff, who fell while attempting the remove the tree, was engaged in an activity covered by Labor Law 240 (1) and 241 (6):

“… [T]he protections of Labor Law § 240(1) are to be afforded to tree removal when undertaken during the repair of a structure … . * * * Since the plaintiff was engaged in activities ancillary to the repair of the building from which he fell, the provisions of Labor Law § 241(6) are also applicable to the facts of this case.” Moreira v Osvaldo J. Ponzo, 2015 NY Slip Op 06792, 2nd Dept. 9-16-15

 

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The Unjustified Denial of Defense Counsel’s Request to Withdraw a Peremptory Challenge Was, Under the Facts, Subject to a Harmless Error Analysis

The Second Department determined the trial court erred when it denied defense counsel’s request to withdraw a peremptory challenge to a juror. However, the error was deemed harmless because of the nature of the evidence against the defendant. On appeal the Second Department primarily addressed whether the harmless error analysis applied to the withdrawal of a peremptory challenge:

The defendant contends that the Supreme Court’s improper denial of his request to withdraw his peremptory challenge is not subject to harmless error analysis, since the error deprived him of his constitutional right to a jury in whose selection he had a voice … . We disagree. While peremptory challenges “are a mainstay in a litigant’s strategic arsenal,” they are “not a trial tool of constitutional magnitude” … . The right to exercise peremptory challenges “is protected by the Criminal Procedure Law, which provides that each party must be allowed’ an equal number of peremptory challenges and that a court must exclude’ any juror challenged” … . Therefore, “the unjustified denial of a peremptory challenge violates CPL 270.25(2) and requires reversal without regard to harmless error” … . However, there is no statutory right to withdraw a peremptory challenge. Further, the instant case does not involve a situation in which the People attempted to peremptorily challenge a juror who had been accepted by the defense in violation of CPL 270.15(2), inasmuch as the People did not object to the defendant’s request to withdraw the peremptory challenge … . Moreover, the defendant was not prejudiced by the loss of the peremptory challenge since, at the conclusion of jury selection, defense counsel had exercised only 9 of his 15 peremptory challenges … . Accordingly, under the circumstances of this case, the error was harmless. People v Marshall, 2015 NY Slip Op 06830, 2nd Dept 9-16-15

 

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Homeowner’s Exception Did Not Apply to a Horse Barn Used for Commercial Purposes Despite Presence of an Apartment in the Barn

The Second Department determined the “homeowner’s exception” to the applicability of the Labor Law did not apply to a barn used to house horses for commercial purposes, even though the barn included an apartment used by one of the horse farm’s shareholders. The court also noted that the “recalcitrant worker” affirmative defense should not have been dismissed “sua sponte” in the absence of a motion to dismiss it.  With respect to the homeowner’s exception, the court explained:

“… [T]he plaintiff met his prima facie burden of demonstrating that he was not performing work at a residence within the meaning of the homeowner’s exemption under Labor Law §§ 240(1) and 241(6) … . Among other things, the plaintiff demonstrated that the defendant described itself as “essentially . . . a business for keeping horses,” its owners were extensively involved in both keeping and racing horses, and approximately eight horses were boarded at the subject property at the time of the accident. The plaintiff’s submissions also established that when the defendant corporation originally purchased the subject property, the large barn was in a state of disrepair. The defendant renovated the large barn and added many improvements to the property, including multiple paddocks, an additional barn, and an “Equicisor,” a “72-foot circular automated horse exercising machine.” One of the defendant’s shareholders described the apartment in the rear of the barn as a part-time “office residence” where he might stay a ‘few days’ per week, although the amount of time he stayed varied depending on the season and the horse racing schedule. Under these circumstances, the plaintiff established, prima facie, that the defendant’s boarding stable, which was used primarily for commercial purposes, did not constitute a residence within the meaning of the homeowner’s exemption …”. Rossi v Flying Horse Farm, Inc., 2015 NY Slip Op 06798, 2nd Dept 9-16-15

 

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Although Plaintiff Could Not Establish a Valid Mechanic’s Lien, Supreme Court Should Have Allowed the Action to Proceed As If it Were Brought As a Breach of Contract

The Second Department determined plaintiff’s complaint seeking foreclosure of a mechanic’s lien (re: work done pursuant to a contract) should not have been dismissed on the ground the notice of pendency (of the mechanic’s lien) had expired. Because the complaint alleged the existence of a contract, performance of plaintiff’s  obligation thereunder, the amount unpaid balance, and sought a personal judgment for any deficiency after the foreclosure sale, plaintiff’s action should have been allowed to proceed:

“… [U]nder the plain language of the Lien Law, the Supreme Court had the authority to retain the action and award a money judgment even though the lien had expired … . Section 17 of the Lien Law provides that the ‘failure to file a notice of pendency of action shall not abate the action as to any person liable for the payment of the debt specified in the notice of lien, and the action may be prosecuted to judgment against such person.’ The same rule applies where, as here, the notice of pendency expired during the pendency of the plaintiff’s action … . Section 54 of the Lien Law provides that if ‘the lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this article, he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract, against any party to the action.’ The complaint in this action alleged the existence of the contract, the plaintiff’s performance of its obligation thereunder, and the unpaid balance of the agreed price. Additionally, the ad damnum clause included a request for a personal judgment against the defendants for any deficiency remaining after a foreclosure sale. These allegations were sufficient to support an award of a personal judgment against the defendants even if the mechanic’s lien was defective …”. Aluminum House Corp. v Demetriou, 2015 NY Slip Op 06767, 2nd Dept 9-16-15

 

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Lack of Standing Not a Jurisdictional Defect, Sua Sponte Dismissal of Complaint Not Warranted

The Second Department, in reversing Supreme Court’s sua sponte dismissal of a foreclosure action on “lack of standing” grounds, noted that the “lack of standing” defense was waived by the defendants (not raised in answer), sua sponte dismissal was an abuse of discretion, and “lack of standing” is not a jurisdictional defect. The court explained:

“The Supreme Court abused its discretion in, sua sponte, directing the dismissal of the complaint for lack of standing. ‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ … . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint. Since the defendants … did not answer the complaint, and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint …”. FCDB FF1 2008-1 Trust v Videjus, 2015 NY Slip Op 06777, 2nd Dept 9-16-15

 

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