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ALTHOUGH THE FORMER “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA)” PROVIDED IMMUNITY TO HEALTHCARE PROVIDERS RE: COVID-19, HERE DEFENDANT NURSING HOME DID NOT DEMONSTRATE THE THREE REQUIREMENTS FOR IMMUNITY WERE MET (SECOND DEPT).

The Second Department reversing Supreme Court, determined defendant nursing home did not demonstrate the three statutory requirements for immunity for COVID-related treatment were met. Plaintiff alleged plaintiff’s decedent, during his admission to defendant’s facility in March 2020, was infected with SARS-CoV-2 and COVID-19:

… [T]he EDTPA [Emergency or Disaster Treatment Protection Act] initially provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” as long as three requirements were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith (Public Health Law former § 3082[1] …).

* * * [W]hile the EDTPA “immunized healthcare facilities from civil liability for certain acts or omissions in the treatment of patients for COVID-19 during the period of the COVID-19 emergency declaration” … , the defendant’s submissions did not establish that the three requirements for immunity were satisfied … . Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 2024 NY Slip Op 03029, Second Dept 6-5-24

Practice Point: The repeal of the former Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively.

Practice Point: A healthcare provider asserting immunity from COVID-related injury under the former EDTPA must demonstrate the three statutory requirements for immunity have been met.

 

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PLANTIFF HAD NOT INFORMED THE BANKRUPTCY COURT OF THIS PERSONAL INJURY CAUSE OF ACTION; DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT PURSUANT TO THE DOCTRINE OF JUDICIAL ESTOPPEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s failure to inform the Bankruptcy Court of this personal injury action triggered the doctrine of judicial estoppel entitling defendants to summary judgment dismissing the complaint:

While a chapter 13 bankruptcy debtor has standing to litigate cases that belong to the estate … , here the “[p]laintiff’s prolonged failure to disclose this lawsuit to the [b]ankruptcy [c]ourt renders him judicially estopped from pursuing it” … . The plaintiff took an inconsistent position in the bankruptcy proceeding by, in effect, representing that he did not have the instant legal claim. The characterization of his assets was accepted and endorsed by the bankruptcy court throughout the duration of the bankruptcy proceeding, which included, among other things, confirmation of the plaintiff’s plan … .

Based on the defense of judicial estoppel, [defendants] established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against each of them … . Cussick v R.L. Baxter Bldg. Corp., 2024 NY Slip Op 03028, Second Dept 6-5-24

Practice Point: Failure to inform the Bankruptcy Court of a cause of action (here a personal-injury suit) triggers the doctrine of judicial estoppel, prohibiting the plaintiff from bringing the suit.

 

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DEFENDANTS’ CONDOMINIUM WAS DAMAGED BY FIRE FORCING THEM TO LIVE ELSEWHERE FOR A YEAR; THE ALLEGATION PLAINTIFF DID NOT MAKE TIMELY REPAIRS DID NOT RELIEVE DEFENDANTS OF THEIR CONTRACTUAL OBLIGATION TO PAY THE COMMON CHARGES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the fact that defendants’ condominium was damaged by fire, forcing defendants to live elsewhere for a year, did not relieve defendants of the obligation to pay the common charges during that time:

… [P]laintiff submitted, inter alia, the declaration of condominium, the condominium bylaws, an affidavit from the president of the plaintiff’s management company attesting to the defendants’ failure to pay the common charges and related fees, and a ledger for the defendants’ account. Thus, the plaintiff established, prima facie, that it was authorized to collect certain assessments of common charges and fees, that the defendants violated the bylaws by failing to pay the monthly common charges, and that it was entitled to recover the unpaid common charges, late fees, and reasonable attorneys fees … .

… [D]efendants failed to raise a triable issue of fact as to whether the common charges had been paid or as to the amount owed. The defendants also failed to raise a triable issue of fact as to whether their nonpayment was excused by the plaintiff’s alleged failure to make timely repairs to the unit … . “[A]n individual unit owner cannot withhold payment of common charges and assessments in derogation of the condominium’s bylaws based on defective conditions in his or her unit or in the common areas, or a disagreement with actions lawfully taken by the Board of Managers” … . Board of Mgrs. of Villas on the Lake Condominium v Policicchio, 2024 NY Slip Op 03026, Second Dept 6-5-24

Practice Point: A condominium owner cannot withhold payment of common charges based on defective conditions in the condominium or common areas. or based on disagreement with lawful actions by the Board of Managers.

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A TEACHER DURING THE SCHOOL DAY OVER THE COURSE OF A YEAR, PLAINTIFF RAISED QUESTIONS OF FACT UNDER BOTH RESPONDEAT SUPERIOR AND NEGLIGENT SUPERVISION CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act action, determined the respondeat superior and negligent supervision causes of action against the school alleging sexual abuse of the plaintiff by a teacher should not have been dismissed. Essentially the complaint alleged negligent supervision of both the teacher and the child. The defendant school did not demonstrate a lack of constructive notice of the abuse which allegedly took place over the course of a year in the same classroom during the school day:

“The employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring, . . . retention, or supervision of the employee” … .

… “[A] school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … . * * *

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . “In particular, given the frequency of the alleged abuse, which occurred over” the entirety of a school year, “and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse” … .. The defendants similarly failed to demonstrate, prima facie, that their supervision of both the teacher and the plaintiff was not negligent … . Sayegh v City of Yonkers, 2024 NY Slip Op 03065, Second Dept 6-5-24

Practice Point: Here it was alleged plaintiff was sexually abused by a teacher repeatedly over a year during the school day. There were questions of fact whether the school had constructive notice of the abuse which supported causes of action under a respondeat superior theory (negligent supervision of the teacher) and a negligent supervision theory (negligent supervision of the child).

 

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ABSENT MOTHER’S ADMISSION TO THE ALLEGED FAMILY OFFENSE OR CONSENT TO AN ORDER OF PROTECTION, THE COURT SHOULD NOT HAVE ISSUED A PERMANENT (TWO-YEAR) ORDER OF PROTECTION WITHOUT HOLDING A FACT-FINDING HEARING; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court and remitting the matter for fact-finding, determent the judge in this family offense proceeding should not have issued a permanent order of protection against mother without a fact-finding hearing. Unless a party admits the family offense or consents to an order of protection, the court may issue only a temporary order pending a fact-finding hearing:

… Family Court improperly issued an order of protection directing the mother, inter alia, to stay away from the father and the child for a period of two years, except for court-ordered parental access with the child. Upon expressing dissatisfaction with the mother’s behavior at the September 2023 conference, the court initially signaled an intent to issue a temporary order of protection. It then changed course and chose to issue an order of protection that it described as “permanent” and that would last “two years.” However, the court did so without holding a fact-finding hearing to determine whether the mother committed the family offenses alleged in the father’s petition. Nor did it obtain an admission from the mother that she committed such family offenses or secure her consent to the issuance of the order of protection. The court therefore failed “to observe the procedural steps set forth in Family Ct Act § 154-c(3)” before issuing that order … . … [S]ince a fact-finding hearing was not held and the court otherwise rendered its determination without receiving any evidence demonstrating that the mother committed the alleged family offenses, the record is not sufficient for this Court to render an independent determination on that question … . Matter of Acker v Teneyck, 2024 NY Slip Op 03043, Second Dept 6-5-24

Practice Point: Although a Family Court judge can issue a temporary order of protection during a family offense proceeding, the judge cannot issue a permanent order of protection unless the opposing party admits the family offense, consents to the order of protection, or the court holds a fact-finding hearing.

 

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SECOND DEPARTMENT TO JUDGES: DON’T DISMISS A COMPLAINT SUA SPONTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, made the following point explicit: a sua sponte dismissal of a complaint is almost never appropriate and almost always will be reversed:

Sua sponte dismissals are not appealable as of right (see CPLR 5701[a][2] …). The reason is that such dismissals are not, by definition, the product of motions made on notice for that particular relief as otherwise statutorily required. Nevertheless, the Second Department has consistently recognized the gravity of sua sponte dismissals and the lack of opportunity for aggrieved parties to have been heard on the dispositive issue at the trial level. Those circumstances have caused the Second Department to typically grant discretionary applications for leave to appeal (see CPLR 5701[c]), or relatedly, to deem notices of appeal to be applications for leave to appeal, which have been liberally granted … . * * *

The importance that courts not dismiss actions sua sponte absent extraordinary circumstances is grounded in a fundamental concept that lawyers and judges know well—that due process requires parties to be given notice and an opportunity to be heard about litigation issues … . Courts are to be bastions of due process. It is not the role of the court, within the moat of that bastion, to seize upon an issue not raised by any party in a motion and to unilaterally dismiss an action on the basis of that discrete issue, without providing the party whose claim is dismissed so much as notice of the issue and an opportunity for all parties to be heard on it. The Court of Appeals has cautioned the judiciary that “[w]e are not in the business of blindsiding litigants, who expect us to decide [matters] on rationales advanced by the parties, not arguments their adversaries never made” … . Wells Fargo Bank, N.A. v Louis, 2024 NY Slip Op 02948, Second Dept 5-29-24

Practice Point: Judges should not dismiss complaints sua sponte because the parties are not given proper notice of the relevant issue and the parties do not have the opportunity to be heard on it.

 

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ALTHOUGH PLAINTIFF DID NOT KNOW WHICH STEP SHE SLIPPED AND FELL FROM, THERE WAS EVIDENCE ALL THE STEPS WERE UNLEVEL AND SLOPING; DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE STAIRWAY WAS LATENT AND NOT DISCOVERABLE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not demonstrate plaintiff could not identify the cause of her stairway fall and defendant did not demonstrate the nonlevel and sloping condition of the steps was latent and could not have been discovered:

… [T]he plaintiff testified that her fall was caused by the fact that the “stairs were not level . . . not straight.” Although the plaintiff testified that she might have lost her balance on either the fourth step from the top of the staircase or the fourth step from the bottom of the staircase, the report of the plaintiff’s expert witness … stated that the treads on the staircase were “uneven and pitched forward,” creating an “inherent walking hazard,” and that the “out-of-level and sloping condition” affected “the entire staircase.”

* * * “In moving for summary judgment on the ground that [a] defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection”…..  Here, the evidence proffered in support of the defendant’s motion failed to establish, prima facie, that the nonlevel and sloping condition that allegedly caused the plaintiff to fall amounted to a latent condition and could not have been discovered upon a reasonable inspection. Toro v McComish, 2024 NY Slip Op 02945, Second Dept 5-29-24

Practice Point: Here the unlevel and sloping condition of the steps in the stairway where plaintiff fell was not shown to be latent and undiscoverable upon inspection.

 

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THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CRIME; APPEAL HEARD DESPITE FAILURE TO PRESERVE THE ISSUE BY MOVING TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the defendant’s factual recitation preceding the plea negated elements of the offense. The court heard the appeal despite a failure to preserve the error by moving to withdraw the plea:

Although the defendant failed to preserve for appellate review his contention concerning the factual recitation with respect to the charge of attempted burglary in the second degree, where, as here, the defendant’s factual recitation clearly casts significant doubt upon his guilt or otherwise calls into question the voluntariness of the plea, the defendant may challenge the sufficiency of the plea allocution on direct appeal despite the failure to move to withdraw his plea of guilty on that ground … .

The crime of attempted burglary in the second degree provides, in relevant part, that a person is guilty of that offense when, inter alia, he or she knowingly enters a dwelling unlawfully with the intent to commit a crime therein (Penal Law §§ 110.00, 140.25[2]). During his plea allocution, the defendant stated that he did not enter the home knowingly. Upon further questioning by the County Court, the defendant stated that he had “no intent” to commit the crime. The defendant’s factual recitation therefore negated an essential element of attempted burglary in the second degree, which was not corrected by further inquiry by the court, thereby calling into question the voluntariness of the defendant’s plea … . People v Martinez, 2024 NY Slip Op 02938, Second Dept 5-29-24

Practice Point: When the plea allocution negates elements of the crime and the judge does not inquire further, the question whether the plea was voluntary is raised.

Practice Point: When it is clear from the record that the plea allocution negated elements of the crime, the issue will be heard on direct appeal even if not preserved by a motion to withdraw the plea.

 

THE COVID TOLL OF THE SPEEDY TRIAL STATUTE RENDERED THE INDICTMENT TIMELY (SECOND DEPT).

The Second Department, reversing County Court, determined that the COVID toll of the speedy trial statute rendered the indictment timely:

Contrary to the determination of the County Court, while it was in effect, Executive Order No. 202.87 constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity for a toll in each particular case … .

Because Executive Order No. 202.87 served to toll the speedy trial statute, the period from December 30, 2020, to January 25, 2021, was not chargeable to the People … . People v Fuentes, 2024 NY Slip Op 02933, Second Dept 5-29-24

Practice Point: The Executive Order imposing the COVID toll of the speedy trial statute rendered the indictment in this case timely.

Same issue and result in People v Lawson, 2024 NY Slip Op 02937, Second Dept 5-29-24.

Same Issue and result in People v McPhaul, 2024 NY Slip Op 02939, Second Dept 5-29-24.

 

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THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER THE PLEA BUT THE PROCEEDINGS WERE DISMISSED ON SPEEDY TRIAL GROUNDS AND THE RECORDS SEALED; THE POST-PLEA ARRESTS WERE THEREFORE A NULLITY AND SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING JUDGE (SECOND DEPT). ​

The Second Department determined defendant’s sentence was based upon post-plea arrests which resulted in dismissal on speedy trial grounds and for which the records had been sealed. Criminal records sealed pursuant to Criminal Procedure Law (CPL) 160.50(1) have thereby been rendered a nullity. Therefore the sealed proceedings can not be the basis for a sentence:

… [T]he defendant … pleaded guilty to criminal possession of a firearm … and criminal possession of a weapon in the fourth degree …  as part of a negotiated disposition. It was agreed that if the defendant successfully completed one year of interim probation and complied with certain conditions during that time, including a no-arrest condition, the criminal possession of a firearm charge would be dismissed and he would be sentenced to a conditional discharge on the conviction of criminal possession of a weapon in the fourth degree. However, if the defendant failed to satisfy the conditions, he would be sentenced to a one-year term of imprisonment on the conviction of criminal possession of a firearm.

It is undisputed that during the term of the defendant’s interim probation, he was arrested three times. The proceedings with regard to those arrests were dismissed on speedy trial grounds and the records sealed. However, after an Outley hearing … , the Supreme Court determined that there was “a legitimate basis for [the defendant’s] arrest” and that the defendant failed to comply with the terms of his interim probation. Based upon that determination, the court sentenced the defendant to a one-year term of imprisonment on the conviction of criminal possession of a firearm. * * *

The proceedings resulting from the defendant’s postplea arrests were dismissed on speedy trial grounds, which were terminations in his favor … , and the records of those proceedings were sealed pursuant to CPL 160.50(1). Thus, the “arrest[s] and prosecution[s] [are] deemed a nullity” … , and the sealed records were “not available for consideration at sentencing” … . People v Desdunes, 2024 NY Slip Op 02932, Second Dept 5-29-24

Practice Point: Arrests and prosecutions dismissed on speedy trial grounds and sealed pursuant to CPL 160.50(1) are a nullity and cannot be considered in sentencing.

 

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