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Question of Fact Whether Failure to Wear a Harness Precluded Recovery in a Labor Law 240 (1) Action

The Second Department determined defendant had raised a question of fact whether plaintiff’s actions were the sole proximate cause of the accident (which would preclude recovery in a Labor Law 240 (1) action).  Plaintiff was injured when plywood flooring collapsed. However the defendant presented evidence plaintiff was aware he was required to wear a harness which would have prevented him from falling to the floor below:

” Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites'” … . To prevail on a cause of action pursuant to Labor Law § 240(1), the plaintiff must establish a violation of the statute and that the violation was a proximate cause of his injuries … . Although contributory negligence on the part of the worker is not a defense to a Labor Law § 240(1) claim …, where a plaintiff’s actions are the sole proximate cause of his injuries, liability under Labor Law § 240(1) does not attach … .

Here, although the plaintiff met his prima facie burden of establishing a violation of Labor Law § 240(1) … the defendants produced evidence that a safety harness and line were available to the plaintiff, that he was aware that he was required to anchor the line on the floor where he was working, and that the anchors, harness, and line would have prevented him from falling to the 14th floor, but that the plaintiff had consciously decided not to anchor his line on the 15th floor as instructed. The defendant’s submissions were sufficient to raise a triable issue of fact as to whether the plaintiff’s actions were the sole proximate cause of his accident … . Bascombe v West 44th St Hotel LLC, 2015 NY Slip Op 00712, 2nd Dept 1-28-15

 

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Criteria for Piercing the Corporate Veil Explained/Appellate Review Powers Re: a Bench Trial Described

The Second Department determined Supreme Court (in a bench trial) had properly pierced the corporate veil to find the owner personally liable.  The court described the criteria for piercing the corporate veil and noted that, in reviewing a bench trial, the appellate court has the same fact-finding powers as the trial court:

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial court had the advantage of seeing and hearing the witnesses” … .

“The general rule . . . is that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability” … . The doctrine of piercing the corporate veil is an exception to this general rule, allowing the imposition of individual liability on owners for the obligations of their corporation “to prevent fraud or to achieve equity” … . “A plaintiff seeking to pierce the corporate veil must demonstrate that a court in equity should intervene because the owners of the corporation exercised complete domination over it in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that resulted in injury to the plaintiff” … . AZTE Inc v Auto Collection Inc, 2015 NY Slip Op 00711, 2nd Dept 1–28-15

 

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Injury Caused by Another Student In Gym Class Could Not Have Been Prevented by Supervision/Unsigned Depositions Which Were Certified by the Stenographer Should Have Been Considered by the Court

The Second Department determined summary judgment should have been granted to the defendant in an action stemming from infant-plaintiff’s participation in a gym-class basketball game.  The actions of another player, which caused the injury, could not have been prevented by supervision.  The Second Department noted that the unsigned deposition transcripts, which were certified by the stenographer, should have been considered by Supreme Court:

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the New York City Department of Education (hereinafter the DOE). In support of their motion, the defendants submitted the transcripts of the deposition testimony of the infant plaintiff and teachers … . While those transcripts were unsigned, they were certified by the stenographer, and the plaintiffs do not challenge their accuracy. Thus, contrary to the plaintiffs’ contention, the transcripts were admissible and should have been considered by the Supreme Court on the defendants’ motion … . This evidence demonstrated, prima facie, that the spontaneous act of the other student in grabbing the infant plaintiff’s left arm from behind and throwing or dragging him to the ground as the infant plaintiff attempted to shoot a basketball during a basketball game in gym class occurred in such a short span of time that it could not have been prevented even by the most intense supervision … . Moreover, the other student’s alleged prior conduct was insufficient to place the DOE on notice of the conduct that led to the infant plaintiff’s injury … . Thomas v City of New York, 2015 NY Slip Op 00748, 2nd Dept 1-28-15

 

Purchaser of Real Property, Who Is Aware of a Pending Lawsuit Involving the Property When the Purchase Is Made, Is Bound By the Outcome of the Lawsuit

The Second Department noted that a purchaser of real property who is aware of a pending lawsuit involving the property is bound by the outcome of that suit:

A purchaser of real property who has actual knowledge of a pending lawsuit with respect to the property is bound by the consequences of that lawsuit …, except in circumstances not relevant in this case … . DeMaio v Capozello, 2015 NY Slip Op 00719, 2nd Dept 1-28-15

 

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Criteria for Collateral Estoppel Explained (Criteria Not Met Here)

The Second Department reversed Supreme Court finding that plaintiff’s housing discrimination action was not precluded by the landlord’s prior successful eviction action under the doctrine of collateral estoppel.  Although it was determined that there was a nondiscriminatory reason for the eviction, the eviction proceeding did not address issues raised in the discrimination action.  The court explained the criteria for collateral estoppel:

“The doctrine of collateral estoppel . . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” … . “The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue” … . “Preclusive effect, however, will only be given where the particular issue was actually litigated, squarely addressed and specifically decided'” … . “Generally, for a question to have been actually litigated’ so as to satisfy the identity requirement, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding'” … .

Here, while the Supreme Court and the landlords characterize the instant action as one to recover damages for “wrongful eviction,” that is not the essence of the plaintiff’s claim. Rather, the complaint alleges that, upon learning that the plaintiff suffered from a mental illness, the defendants engaged in a course of “harassment, discrimination and hostile conduct” against him that spanned several years and predated the decision to enforce the rule pertaining to carpeting of the floor against him. The prior summary proceeding did not decide whether the plaintiff was subjected to harassment based on his mental illness, whether such harassment affected a term, condition, or privilege of his housing, or any other elements of his cause of action to recover damages for housing discrimination based on disability in violation of Executive Law § 296(5) … . Curley v Bon Aire Props Inc, 2015 NY Slip Op 00718, 2nd Dept 1-28-15

 

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Discovery of Name and Address of Nonparty Patient Alleged to Have Witnessed Negligence or Malpractice Prohibited Because Such Disclosure Would Reveal Privileged Information Re: the Nonparty Patient’s Diagnosis and Treatment (by Virtue of the Unit in Which the Nonparty Patient and Plaintiff’s Decedent Were Housed)

The Second Department determined plaintiff was not entitled to the name of a psychiatric patient who was a roommate of plaintiff’s decedent.  Generally, the name and address of a nonparty patient who is alleged to have observed negligence or malpractice are discoverable.  But CPLR 4505(a) prohibits revealing the nonparty patient’s name and address when, as here, the information will reveal privileged information concerning the nonparty patient’s diagnosis and treatment:

“As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient’s privilege of confidentiality of treatment” … . However, where it is not possible to comply with a demand for the name and address of a patient without disclosing privileged information concerning diagnosis and treatment, discovery is prohibited pursuant to CPLR 4504(a) … .

Contrary to the plaintiff’s contention, the Supreme Court properly concluded that [*2]discovery of the decedent’s hospital roommate’s identifying information was prohibited under CPLR 4504(a). The decedent was housed in a unit of the [hospital] that was designated for patients ages 12 to 15 years old who suffered from certain psychiatric disorders. Since the roommate’s location in that unit of the Holliswood Hospital would, by simple deduction, reveal her medical status, disclosure was prohibited … . Kneisel v QPH Inc, 2015 NY Slip Op 00503, 2nd Dept 1-21-15

 

Claimed Gestation Period of 303 Days Requires Reliable Medical Evidence It Is Scientifically Possible/Acknowledgment of Paternity by Another Did Not Preclude Petitioner from Bringing His Paternity Action

The Second Department determined that petitioner must produce reliable medical evidence that a 303-day gestation period (the time between sexual intercourse and birth) is scientifically possible before proceeding with a paternity action.  The court noted that an acknowledgment of paternity by another did not preclude petitioner from bringing his paternity action:

Appellate courts have held that the generally accepted period of gestation is between 38 and 40 weeks… . However, pregnancy periods can exceed that timeframe … . Indeed, in 1992, the Appellate Division, [3rd] Department, held that a period of gestation measured from the last menstrual period prior to the child’s birth can be between 265 and 299 days … . In the beginning of the last century, this Court, citing Code Napoleon, found that the period between sexual intercourse and birth could be up to 300 days … . Here, the petitioner alleges that 303 days, or 43 weeks and 2 days, elapsed between the last date of sexual intercourse with the mother and the birth of the child.

Any material deviation from the generally accepted average period of gestation must be explained with a reliable medical opinion … . Although no such evidence was presented at the hearing, under the circumstances of this case, a new hearing should be conducted to afford the petitioner an opportunity to present such evidence. Since the petitioner has the burden of proof, he must present reliable medical evidence to demonstrate that the 303-day gestational period alleged here is scientifically possible

A prior acknowledgment of paternity made in accordance with Family Court Act § 516-a does not serve as an insuperable bar to a claim of paternity by one who is a stranger to the acknowledgment … . * * * Therefore, upon remittal, if the petitioner satisfies his burden of demonstrating at the hearing, with reliable medical evidence, that a 303-day gestational period is scientifically possible, then the Family Court must determine whether to direct a DNA or genetic marker test in the child’s best interest.

 

Conviction Reversed Because Court Failed to Inquire About the Reasons for Defendant’s Request for Substitution of Counsel After Trial Began

The Second Department, over a dissent, reversed defendant’s conviction because the trial judge did not take any steps to determine the reasons for defendant’s request for new counsel after the trial had started:

Defendant is entitled to a new trial because the court improperly denied his request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary … . At the beginning of the fourth day of trial, defendant asked to speak to the court. In denying his request, the court clearly assumed that he wanted to make a statement pertaining to his defense, even after defendant indicated that the subject matter was “my attorney and advice” and that the attorney was not “doing his proper work.” Defendant then asked to hand up papers that defense counsel immediately identified as “a notice of motion for reassignment of counsel,” but the court refused to look at the papers, and stated, “I will not reassign counsel. The motion is denied.”

…In People v Sides (75 NY2d 822 [1990]), for instance, the trial court was found to have erred in failing to ask “even a single question” about the nature of the disagreement after both the defendant and his counsel spoke of a breakdown in communications and trust … . Here, the court did not even learn the nature of the disagreement, let alone ask any questions about it. While not all requests for new counsel contain the specific factual allegations to show that the complaints and request are “serious,” which then triggers the court’s obligation to make a “minimal inquiry” into the nature of the disagreement and its potential for resolution …, here defendant was not given an opportunity to make any allegations. This is not a situation where a defendant rested on unelaborated claims; the court expressly declined to listen to defendant or read his submissions … . People v McCummings, 2015 NY Slip Op 00610, 1st Dept 1-22-15

 

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No Foundation Provided for Use of a Notarized Statement for Impeachment (As a Prior Inconsistent Statement)

The Second Department determined the trial court had properly prohibited the defense from cross-examining a complaining witness about a notarized statement the witness denied signing.  The court explained the foundation-requirements for admitting a prior inconsistent statement:

The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” … . “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” … . Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence'” … . People v Haywood, 2015 NY Slip Op 00555, 2nd Dept 1-21-15

 

Conviction Reversed—Court Denied For Cause Challenge to Biased Juror Without Eliciting an Unequivocal Assurance the Juror Will Be Impartial

The Second Department reversed defendant’s conviction because an admittedly biased juror was not eliminated after defendant’s “for cause” challenge.  (Defendant exhausted his peremptory challenges.):

When a question is raised regarding a prospective juror’s ability to render an impartial verdict, the prospective juror must expressly state in unequivocal terms that “his prior state of mind concerning either the case or either of the parties will not influence his verdict, and he must also state that he will render an impartial verdict based solely on the evidence” … . In considering whether such statements are unequivocal, the juror’s testimony must be taken as a whole, and where there remains any doubt, the prospective juror should be discharged for cause … . Thus, when a potential juror states that he or she questions or doubts that he or she can be fair in the case, the trial judge should either elicit some unequivocal assurance of the juror’s ability to be impartial or excuse the juror … .

Here, as the prospective juror stated that she could not believe that police officers would get on the witness stand and lie about a person selling drugs, the court erred in denying the defendant’s challenge for cause without first eliciting some unequivocal assurance of the juror’s ability to be impartial … . People v Harris, 2015 NY Slip Op 00554, 2nd Dept 1-21-15

 

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