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Whether Lost Evidence Was Relevant to Plaintiff’s Case Presented a Jury Question—Only If the Jury Determines the Evidence Was Relevant Can the Jury Consider the Adverse Inference Charge for Spoliation of Evidence

The Second Department determined there was a question of fact whether the failure to preserve a broken jar, the cause of plaintiff’s injury, warranted an adverse inference charge.  Whether the jar was relevant to the plaintiff’s case was a question raised by conflicting expert opinions. The question of fact must first be resolved by the jury before the adverse inference charge could be applied by the jury:

While the lesser sanction of an adverse inference may be appropriate for spoliation of the subject jar …, under the circumstances of this case, an issue of fact exists as to whether spoliation of relevant evidence occurred. The sanction of an adverse inference for spoliation of evidence is not warranted when the evidence destroyed is not relevant to the ultimate issues to be determined in the case … . …[T]he plaintiff submitted an expert affidavit averring that she could have determined how long the jar had been broken by analyzing the mold contained in the jar, and the defendant submitted an expert affidavit disputing that such a conclusion could have been reached. If the opinion of the defendant’s expert were credited, then an adverse inference would not be warranted, because the lost evidence would not have been relevant to the plaintiff’s case … . Thus, this issue of fact should be placed before the jury, along with the inferences to be drawn therefrom … . The jury should be instructed that, if it credits the opinion of the defendant’s expert that no conclusion could have been reached with reasonable certainty regarding how long the jar had been broken by analyzing the mold contained in the jar, then no adverse inference should be drawn against the defendant. On the other hand, the jury should be advised that, if it credits the opinion of the plaintiff’s expert that she could have determined how long the jar had been broken by analyzing the mold inside, then it would be permitted to draw an adverse inference against the defendant … . Pennachio v Costco Wholesale Corp, 2014 NY Slip Op 05165, 2nd Dept 7-9-14

 

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Plaintiffs Could Not Demonstrate the Alleged Malpractice Was Proximate Cause of Damages—Summary Judgment Properly Granted to Defendants—Elements of Attorney Malpractice Action Explained

The Second Department determined that any deficiencies in the attorney’s motion papers, seeking to vacate a default, were not the proximate cause of the plaintiffs’ damages, therefore the malpractice action was properly dismissed.  The court explained the elements of an attorney malpractice action:

To sustain a cause of action alleging legal malpractice, a plaintiff must establish that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,” and that the attorney’s breach of this duty proximately caused the plaintiff actual and ascertainable damages … .

Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence … . “[A]s to [this] second prong, the plaintiff must plead and prove actual, ascertainable damages as a result of an attorney’s negligence” … .

“To obtain summary judgment dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of [his or her] legal malpractice cause of action”… . Di Giacomo v Langella, 2014 NY Slip Op 05150, 2nd Dept 7-9-14

 

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Material Misrepresentation Justified Rescission of Policy

The Second Department determined that plaintiff’s representation to the insurance carrier that the property was a two-family dwelling, when it actually was a three-family dwelling, was a material misrepresentation justifying rescission of the policy:

“To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy” … . “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented” … . “To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” … . * * *

…[T]he defendant submitted an affidavit from its underwriting manager and its “Homeowners Selection Rules,” which showed that it would not have issued the same policy if the application had disclosed that the subject premises was a three-family dwelling … . Lema v Tower Ins Co of NY, 2014 NY Slip Op 05162, 2nd Dept 7-9-14

 

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Child Should Have Been Placed with Grandmother—Placement Criteria Explained

The Second Department determined Family Court should not have denied the petition to place the child with the grandmother.  The court explained the placement procedure and criteria:

Family Court Act § 1017 sets out the steps to be followed in determining the appropriate placement of a child when the child is initially removed from his or her home. When the decision to remove the child was made, the DSS was obligated to locate the child’s relatives, including her grandmother, and inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child (see Family Ct Act § 1017[1]). The Family Court was then required to determine if the child could suitably reside with any such relative (see Family Ct Act § 1017[1][a], [b]). If a suitable relative existed, the Family Court would either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent (see Family Ct Act § 1017[2][a]). Only if no suitable relative could be located would the Family Court consider whether another placement would be appropriate (see Family Ct Act former § 1017[2][b]). With respect to an out-of-state relative, Social Services Law § 374-a requires that an ICPC home study must first be conducted before placing the child with that individual.

“One purpose of Family Court Act § 1017 is to help safeguard the infant’s physical, mental and emotional well-being. . . Placement with a suitable relative can help the child by maintaining family ties and reducing the trauma of removal. In making a determination of placement [the] Family Court must consider not only the custodian’s ability to provide adequate shelter, but all the facts and circumstances relevant to the child’s best interest” … . Matter of Paige G, 2014 NY Slip Op 05182, 2nd Dept 7-9-14

 

Portion of Assisted Outpatient Treatment (AOT) Order Not Supported by Testimony Should Not Have Been Included

The Second Department determined Supreme Court did not have the authority, under Mental Hygiene Law 9.60, to go beyond the treatment plan and recommendations testified about by the psychiatrist in a proceeding to order Raymond G to comply with Assisted Outpatient Treatment (AOT).  In the absence of any recommendations about Raymond G’s use of his car, the court ordered the impoundment of his car. The Second Department reversed that part of the AOT order and explained what can be included in an AOT order under the terms of the controlling statute:

Mental Hygiene Law § 9.60, commonly known as Kendra’s Law, “provides a framework for the judicial authorization of involuntary outpatient treatment programs for persons suffering from mental illnesses” (Matter of William C., 64 AD3d 277, 279). It sets forth, inter alia, the types of outpatient services that may be ordered by the court as part of an AOT plan, the requirements for the petition, and the procedures for a hearing on the petition (see Mental Hygiene Law § 9.60[a][1]; [e][2]-[3]; [h][1]). * * *

The statute requires that the petition be accompanied by an affirmation or affidavit of an examining physician who recommends AOT (see Mental Hygiene Law § 9.60[e][3][I]), and directs that the court “shall not order [AOT]” unless it is provided with a proposed written treatment plan developed by a physician appointed by the applicable community services or hospital director, which includes “all categories of services, as set forth in [§ 9.60(a)(1)], which such physician recommends that the [patient] receive,” “no later than the date of the hearing on the petition” (Mental Hygiene Law § 9.60[i][1]). Further, the statute provides that the court “shall not order [AOT] unless [the] physician appearing on behalf of [the] director testifies to explain the written proposed treatment plan [and] state[s] the categories of [AOT] recommended, the rationale for each such category, [and] facts which establish that such treatment is the least restrictive alternative” (Mental Hygiene Law § 9.60[i][3]).

Following the hearing, the court “may” order AOT if it finds by “clear and convincing evidence that the [patient] meets the criteria for [AOT], and there is no appropriate and feasible less restrictive alternative” (Mental Hygiene Law § 9.60[j][2]). The order must include specific findings “by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the [patient],” and “state an [AOT] plan, which shall include all categories of [AOT], as set forth in [§ 9.60(a)(1)], which the [patient] is to receive” (Mental Hygiene Law § 9.60[j][2]). The order “shall not include any such category that has not been recommended in both the proposed written treatment plan and the [physician’s hearing] testimony” (Mental Hygiene Law § 9.60[j][2]).  Matter of Raymond G…, 2014 NY Slip Op 05183, 2nd Dept 7-9-14

 

Rationale for Allowing a Late Motion for Summary Judgment When It Is Identical in Substance to a Timely Motion for Summary Judgment Made by Another Party Explained

The Second Department determined an untimely motion for summary judgment should not have been granted.  The court explained that an untimely motion may be entertained when it is identical in substance to a timely summary judgment motion made by another party in the action.  But that was not the case here.  The timely motion made by the MTA defendants, who were deemed not liable, did not determine the liability of the LIPA defendants.  Therefore, plaintiff’s untimely motion for summary judgment against the LIPA defendants could not “rely” on the motion made by the MTA defendants:

The plaintiff’s motion for summary judgment on the issue of liability was made more than 90 days after the filing of the note of issue, in violation of the terms of a certification order requiring motions for summary judgment to be filed within 90 days of the filing of a note of issue (see CPLR 3212[a]…). Although an untimely motion or cross motion for summary judgment may be considered by the court, in the exercise of its discretion, where a timely motion for summary judgment was made on nearly identical grounds …, that rule did not apply here. The reason why an untimely motion for summary judgment may be considered if another party made a motion on nearly identical grounds is that, pursuant to CPLR 3212(b), the court has the authority, on a motion for summary judgment, to search the record and award relief to a nonmoving party … . In the instant case, the MTA defendants, the original movants, established as a matter of law that they were not at fault in the happening of the accident. However, the fact that the MTA defendants were not at fault in the happening of the accident did not mean that the LIPA defendants were at fault and, therefore, that the plaintiff was entitled to summary judgment against the LIPA defendants. Accordingly, the plaintiff’s motion for summary judgment on the issue of liability against the LIPA defendants should have been denied as untimely.  Williams v Wright, 2014 NY Slip Op 05172, 2nd Dept 7-9-14

 

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Proof Vehicle Was Stolen at the Time of the Accident Defeated Action Based Upon Vehicle-Owner’s Vicarious Liability

The Second Department determined defendant’s evidence that her vehicle had been stolen at the time of the accident entitled her to summary judgment in an action based upon the vehicle-owner’s vicarious liability:

Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law …, the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner’s express or implied consent … . This statute creates a presumption that the driver was using the vehicle with the owner’s express or implied permission …, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner’s consent … . Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use … . Fuentes v Virgil, 2014 NY Slip Op 04899, 2nd Dept 7-2-14

 

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Amendment of Notice of Claim Including Substantive Changes to the Facts and New Theories of Liability Should Not Have Been Allowed—Original Notice of Claim Inadequate

The Second Department reversed Supreme Court finding that plaintiff’s motion to amend the notice of claim should have been denied and the complaint dismissed:

Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial “technical mistakes, defects, or omissions, not substantive changes in the theory of liability” … . Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s cross motion for leave to serve and file an amended notice of claim. The proposed amendments to the notice of claim included substantive changes to the facts, adding that the plaintiff was injured after he climbed a ladder to go over a fence, changing the situs of the accident, and identifying the plaintiff as a worker at the site. The proposed amendments to the notice of claim also added a theory of liability under the Labor Law. Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . Granting leave to serve and file the proposed amended notice of claim would prejudice the Housing Authority by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Moreover, the Supreme Court should have granted the Housing Authority’s motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was inadequate. A notice of claim must provide timely notice of the essential facts and legal theories supporting the claims alleged in the complaint … . The test of the sufficiency of a notice of claim is whether it includes enough information to enable the defendant to promptly investigate the allegations at issue … . The plaintiff’s original notice of claim did not sufficiently apprise the Housing Authority of the relevant facts or legal theories supporting the plaintiff’s claims to enable the Housing Authority to promptly and adequately investigate the allegations at issue in the complaint, resulting in prejudice to the Housing Department … . Ahmed v New York City Hous Auth, 2014 NY Slip Op 04883, 2nd Dept 7-2-14

 

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Village’s Actual Notice of a Sidewalk Defect Does Not Override Written Notice Requirement

The Second Department determined that actual notice of a defect in a sidewalk does not override the requirement of written notice. The abutting landowner had notified Village personnel of the defect orally and the Village architect had indicated the defect would be repaired:

The Village established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the affidavit of its Village Clerk, who averred that her search of the Village’s records revealed no prior written notice of any hazardous condition on the sidewalk where the accident occurred … . In opposition, the plaintiff and the homeowners failed to raise a triable issue of fact. Their submissions failed to show that the Village affirmatively created the alleged hazardous condition …, or caused the alleged hazardous condition to occur by its special use of the sidewalk …. Actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a sidewalk defect … . Velho v Village of Sleepy Hollow, 2014 NY Slip Op 04916, 2nd Dept 7-2-14

 

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Family Court Should Have Determined Child Eligible to Apply for Special Immigrant Juvenile Status

The Second Department reversed Family Court finding that an order making the requisite Special Immigrant Juvenile Status findings should have been granted:

Here the Family Court properly found that the child is under the age of 21, unmarried, and that it would not be in his best interests to be returned to Honduras … . In addition, inasmuch as the Family Court granted the guardianship petition, the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i)… . However, contrary to the court’s determination, based upon our independent factual review, we find that the record, including detailed affidavits from the child, fully supports the petitioner’s contention that, because his father neglected and abandoned him, reunification with his father is not a viable option … . The fact that the child’s mother did not also neglect and abandon him does not preclude the issuance of the order requested … . Matter of Miguel C, -N, 2014 NY Slip Op 04923, 2nd Dept 7-2-14

Same result in Matter of Gabriela Y U M…, 2014 NY Slip Op 04937, 2nd Dept 7-2-14

 

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