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The Town’s Actual or Constructive Notice of a Sidewalk Defect Does Not Obviate the Written Notice Requirement

The Second Department determined summary judgment was properly awarded to the town (re: an allegedly defective sidewalk where plaintiff fell) because the “written notice manually transcribed by the complainant” requirement was not met. The fact that there existed writings and email generated by the town concerning the defect, and the fact that the town may have had constructive or actual notice of the defect, did not obviate the written notice requirement:

“A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies” … . ” The only two recognized exceptions to a prior written notice requirement are the municipality’s affirmative creation of a defect or where the defect is created by the municipality’s special use of the property'” … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … . Here, the Town has adopted a prior written notice law stating that written notices must be “manually subscribed by the complainant” and submitted to the Town Superintendent of Highways or the Town Clerk (Code of the Town of North Hempstead § 26-1). Wolin v Town of N. Hempstead, 2015 NY Slip Op 04846,, 2nd Dept 6-9-15

 

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Allegations Supported the Existence of an “Implied Physician-Patient Relationship” Giving Rise to a Duty Owed to Plaintiff by the On-Call Surgeon—The On-Call Surgeon Was Notified of Plaintiff’s Facial Lacerations But Told Hospital Personnel (by Phone) His Services Were Not Required to Treat the Plaintiff—Plaintiff Alleged Suturing by a Physician’s Assistant Resulted in Excess Pain and Scarring

Plaintiff alleged that the defendant on-call plastic surgeon should have treated infant plaintiff whose facial lacerations were sutured by a physician’s assistant (resulting in excess pain and scarring). The defendant on-call plastic surgeon, after being notified of plaintiff’s condition by phone, informed hospital personnel his services were not needed to treat the plaintiff. The surgeon brought a motion to dismiss for failure to state a cause of action, and a motion for summary judgment, on the ground that he did not treat the plaintiff and, therefore, there existed no physician-patient relationship giving rise to a duty on his part.  The Second Department, after explaining the criteria for both types of motions, determined the motions were properly denied. Although the surgeon did not treat the plaintiff, a question was raised whether an “implied physician-patient relationship” existed by virtue of the surgeon’s communication with hospital personnel indicating his services were not needed for the plaintiff’s wounds:

“In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . ” A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)'” … . “If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'” … . In a case where a defendant has submitted evidentiary material in support of a motion to dismiss pursuant to CPLR 3211(a)(7), the motion must be denied ” unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'” … .

Summary judgment, in contrast to a motion to dismiss, is designed to expedite civil cases by eliminating claims which can properly be resolved as a matter of law … . It is a drastic remedy which “should only be employed when there is no doubt as to the absence of triable issues” … . On a motion for summary judgment, the party seeking judgment as a matter of law has the burden of tendering evidentiary proof in a form admissible at trial to show the absence of triable issues of fact … . The failure to eliminate all material issues of fact results in the denial of the motion, regardless of the sufficiency of the opposing papers … .

In support of his motion, the defendant argued that no physician-patient relationship existed that gave rise to any duty, as he did not examine or treat the infant plaintiff and did not dispense any medical advice on which anyone relied. Certainly, for there to be a cause of action sounding in medical malpractice, a physician-patient relationship must exist that gives rise to a duty of care …, and the absence of such a relationship precludes the cause of action … .

The physician-patient relationship is typically created when “professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment” … . However, the law also recognizes circumstances where the existence of a physician-patient relationship is implied by circumstances. “An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional” … .

The Supreme Court properly denied the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him for failure to state a cause of action or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against him. The defendant, in his role as the on-call plastic surgeon for Southside Hospital, allegedly made a medical determination over the phone that the infant plaintiff’s facial laceration was not an emergency requiring his expertise as a board-certified plastic surgeon. The defendant’s determination allegedly resulted in the suturing of the wound, without sedation, by a physician’s assistant, beyond the time frame that was medically advisable and which resulted in scarring. Pizzo-Juliano v Southside Hosp., 2015 NY Slip Op 04626, 2nd Dept 6-5-3-15

 

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New Trial Required Because State’s Experts Testified Based On Hearsay Not Demonstrated to Have Been Reliable

The Second Department determined a new civil commitment trial was required because the experts based their testimony in part upon hearsay which had not been demonstrated to be reliable:

As recently held by the Court of Appeals in Matter of State of New York v Floyd Y. (22 NY3d 95, 109), “[d];ue process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding. In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the probative value in helping the jury evaluate the [expert’s]; opinion substantially outweighs [its]; prejudicial effect’ (cf. Fed Rules Evid rule 703). These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it.”… .

Here, both of the State’s experts testified to the appellant’s convictions, as well as unproven acts, which formed the basis of their opinion that the appellant suffered from a mental abnormality. The experts provided considerable hearsay testimony concerning these unproven acts, relying, inter alia, upon hearsay evidence within probation reports and other documents, and not personal knowledge. The State failed to demonstrate through other evidence that the aforementioned hearsay testimony was reliable … . As the State failed to establish that the hearsay was reliable, the Court need not determine whether the probative value of such hearsay outweighed its prejudicial effect… . Matter of State of New York v Walter R, 2014 NY Slip Op 04020, 2nd Dept 6=4=14

 

Bank Did Not Demonstrate It Had Possession of the Note Prior to Commencing Foreclosure Action—Bank Did Not Have Standing to Bring the Action

The Second Department determined plaintiff-bank did not demonstrate it had possession of the note at the time the action was commenced, and therefore the bank did not have standing to bring the foreclosure action:

In a mortgage foreclosure action, where, as here, the plaintiff’s standing to commence the action is placed in issue by a defendant, “the plaintiff must prove its standing in order to be entitled to relief” … . “[A] plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” … . “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” … .

Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. The relevant affidavits the plaintiff submitted contained conclusory statements regarding the plaintiff’s possession of the note, without any factual details of a physical delivery and, thus, failed to establish that the plaintiff had physical possession of the note prior to commencing the action … . The copy of the note the plaintiff submitted in support of its motion included an indorsement to the plaintiff but, because the indorsement was undated, it is not clear whether the indorsement was effectuated prior to the commencement of this action … . Although the written assignment of the mortgage that the plaintiff submitted was dated and recorded prior to the date this action was commenced, that assignment only transferred the mortgage. The plaintiff failed to show that the note also was assigned at that time … . Flagstar Bank, FSB v Anderson, 2015 NY Slip Op 04606, 2nd Dept 6-3-15

Similar issue and result in Bank of Am., N.A. v Kyle, 2015 NY Slip Op 04705, 3rd Dept 6-4-15

 

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Testimony by the Vehicle Owner that His Vehicle Was “Missing” at the Time of the Accident Did Not Overcome the Statutory Presumption the Vehicle Was Being Driven with the Owner’s Consent at the Time of the Accident

The Second Department determined the evidence at a framed issue hearing was insufficient to overcome the statutory presumption that Woodley’s vehicle was being driven with the owner’s consent at the time of the accident.  The driver of the Woodley vehicle at the time of the accident was not known.  Woodley testified only that the vehicle was “missing” at the time of the accident.  Woodley also testified that only he and his wife had keys to the vehicle and the keys were found in the vehicle after the accident:

Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s permission … . “The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use” … .

Although evidence that a vehicle was stolen at the time of the accident may overcome the presumption of permissive use …, under the particular circumstances present here, the vehicle owner’s testimony that the vehicle was missing at the time of the accident, without more, was insufficient to overcome the presumption. Matter of State Farm Ins Co v Kathleen Walker-Pinckney, 2014 NY Slip Op 04018, 2nd Dept 6-4-14

 

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Finding of Neglect of One Child by Consent Is Admissible In a Derivative Neglect Proceeding Re: Another Child—Criteria for Derivative Neglect Explained

The Second Department determined Family Court erred when it held that a finding of neglect of one child (Akasha) by consent could not be used to demonstrate the neglect of another child (William, Jr.).  The court went on to explain the criteria for a derivative neglect finding (not all of which is quoted here):

The entry of a finding of neglect of one child may not be made without a factual basis, even upon consent … . Thus, entry of a finding of neglect as to a child clearly constitutes proof that that child was neglected, even if the order was entered upon consent … . Accordingly, such a fact-finding order is admissible with respect to the issue of whether the parent derivatively neglected another child (see Family Ct Act § 1046[a];[i]…). Consequently, the Family Court erred in holding that the neglect finding as to Akasha was not admissible evidence in the neglect proceeding as to William, Jr. The neglect finding as to Akasha was proof that the mother neglected Akasha and was, thus, admissible evidence in the proceeding regarding William, Jr., even though the finding as to Akasha was entered on the mother’s consent.

Further, while the proof of the neglect as to Akasha was admissible with respect to this proceeding alleging derivative neglect of William, Jr., “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings”… . Rather, “the focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood. * * *  Matter of William N, 2014 NY Slip Op 04012, 2nd Dept 6-4-14

 

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Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment

The Second Department determined summary judgment should have been granted in an intersection collision case.  The plaintiff had the right of way and defendants’ vehicle failed to yield.  No question of fact was raised about plaintiff’s comparative fault:

The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield … . However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection, including keeping a proper lookout and to see what can be seen through the proper use of his or her senses … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . Bennett v Granata, 2014 NY Slip Op 03968, 2nd Dept 6-4-14

 

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Before a Sex Offender Can Be Allowed to Represent Himself in a Mental Hygiene Law Section 10 Proceeding (to Determine Whether the Offender Should Be Civilly Confined), the Court Must Conduct the Same “Searching Inquiry” Required in Criminal and Certain Family Court Proceedings to Determine Whether the Offender Understands the Risks of Going Forward Without Counsel

In a full-fledged opinion by Justice Leventhal the Second Department determined that the state had proven the offender was a dangerous sex offender requiring civil confinement.  In so finding, the Second Department went through in detail the proof required to justify civil commitment of a sex offender.  That aspect of the opinion is not addressed here.  The offender represented himself in the civil commitment proceeding.  The Second Department determined that, just as in a criminal trial, before allowing an offender to proceed pro se, the court is required to engage in a “searching inquiry” to make sure the offender understands the consequences of representing himself.  Because no searching inquiry was done here, the Second Department determined the offender’s waiver of his right to counsel was ineffective:

…[A] respondent in a SOMTA (Sex Offender Management and Training Act [Mental Hygiene Law Section 10]) proceeding arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite (see Mental Hygiene Law § 10.09), and can last the remainder of a respondent’s life. Therefore, we hold that a respondent in a SOMTA proceeding can effectively waive his or her statutory right to counsel only after the court conducts a searching inquiry to ensure that the waiver is unequivocal, voluntary, and intelligent. Applying these principles here, we find that the Supreme Court failed to secure an effective waiver of the appellant’s right to counsel.* * *

…[T]he appellant could not make an intelligent and voluntary choice to waive the assistance of counsel without being apprised, in any manner, of the dangers and disadvantages of self-representation … . Indeed, the fact that the appellant was alleged to be suffering from a mental abnormality requiring confinement to a mental institution made it all the more imperative that the Supreme Court adequately warn him of the risks inherent in proceeding pro se, and impress upon him the disadvantages of going to trial without the assistance of counsel. Notwithstanding the concerns voiced by the Assistant Attorney General, the Supreme Court erroneously insisted that it had fulfilled its obligations by merely placing on the record that the appellant did not want an attorney, that he understood he would represent himself, and that he could read and write.  Matter of State of New York v Raul L, 2014 NY Slip Op 04019, 2nd Dept 6-4-14

 

Knowledge that Water Will Be Tracked In Is Not Constructive Knowledge of a Dangerous Condition—Property Owner Is Not Required to Cover All of the Floor with Mats or Continuously Mop Up Tracked-In Rain

In reversing Supreme Court and granting summary judgment to the defendant, the Second Department noted that knowledge that water might be tracked in when it rains was not sufficient to demonstrate constructive knowledge of a dangerous condition:

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the allegedly dangerous condition of accumulated water on the floor upon which the plaintiff slipped and fell, or have actual or constructive notice of the condition … . In opposition, the plaintiff failed to raise a triable issue of fact. The defendants were not required to cover all of the floor with mats or continuously mop up all moisture resulting from tracked-in rain … . Moreover, “[a]; general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition” … . Sarandrea v St Charles School, 2014 NY Slip Op 03999, 2nd Dept 6-4-14

 

School Not Liable for Three-Year-Old’s Failure to Get Off the Bus After Arrival at the School—Child Had Not Yet Entered the Orbit of the School’s Authority—Although School Voluntarily Undertook the Duty to Determine the Whereabouts of Absent Students, the Parents Were Not Aware of that Policy and Therefore Could Not Have Relied On It

The Second Department reversed Supreme Court and dismissed the complaint against a private school.  The infant plaintiff, a three-year-old with special needs, was left on the bus which transported him to school for six hours.  The Second Department determined the child had not yet entered the “orbit of” the school’s authority.  In addition, although the school voluntarily undertook to determine the whereabouts of absent children, there was no showing the child’s parents were aware of the policy:

A school’s duty to its students is dependent on its physical custody of those students (see Stephenson v City of New York, 19 NY3d 1031, 1033). Custody ceases when the student has passed out of the “orbit of” the school’s “authority” … . Here, it is undisputed that Nicholas never passed into the physical custody of the school, as he never left the bus. * * *

Voluntary conduct may give rise to liability, even if there would otherwise be no duty to act, if “the defendant’s affirmative action adversely affected the plaintiff and the defendant failed to act reasonably”… . In order for a party to be negligent in the performance of an assumed duty, however, the plaintiff must have known of and detrimentally relied upon the defendant’s performance, or the defendant’s actions must have increased the risk of harm to the plaintiff … . Arroyo v We Transp Inc, 2014 NY Slip Op 03965, 2nd Dept 6-4-14

 

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