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Request to File Late Notice of Claim Granted in Absence of Good Reason for Delay

Over a dissent, the Second Department determined Supreme Court properly allowed plaintiff to file a late notice of claim, in the absence of a good reason for the delay. The infant plaintiff was a student who injured her finger in a door at school:

The plaintiffs demonstrated that the defendant acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … .

Before the infant plaintiff was taken to the hospital by ambulance, her teacher told her that he would give her a dollar for every stitch she had, and he later called the infant plaintiff’s home to inquire about her. During that telephone call, the teacher and the infant plaintiff’s mother allegedly discussed a door at the school… Additionally, the school nurse completed a medical claim form, detailing the accident, the injury, and the treatment provided. Under these circumstances, the defendant acquired actual knowledge of the essential facts constituting the claim … .

Furthermore, the defendant will not be substantially prejudiced in maintaining a defense on the merits as a result of the plaintiffs’ delay in seeking leave to serve a late notice of claim, in light of the teacher’s involvement in the incident and the nurse’s documentation of the accident and injuries … . “[T]he absence of a reasonable excuse for the delay does not bar the granting of . . . leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice” … . Claud v West Babylon Union Free Sch Dist, 2013 NY Slip Op 06339, 2nd Dept 10-2-13

 

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Most of Police Internal Investigation Report Deemed Immune from Disclosure

In determining that most of a police department’s internal investigation report need not be disclose pursuant to a Freedom of Information Law (FOIL) request, the Second Department wrote:

The Freedom of Information Law (Public Officers Law art. 6; hereinafter FOIL) was enacted “to promote open government and public accountability” and “imposes a broad duty on government to make its records available to the public” … . Under FOIL, government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law § 87(2), which permits an agency to deny access, inter alia, to records which “are specifically exempted from disclosure by state or federal statute” (Public Officers Law § 87[2][a]… ). One such statute exempting records from disclosure is Civil Rights Law § 50-a(1), which provides, in relevant part, that “[a]ll personnel records used to evaluate performance toward continued employment or promotion” of police officers “shall be considered confidential and not subject to inspection or review.” However, “when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer” … . Matter of Cook v Nassau County Police Dept, 2013 NY Slip Op 06364, 2nd Dept 10-2-13

 

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Excessive Intervention and Improper Conduct by Trial Judge Required New Trial

In a medical malpractice case, the Second Department determined plaintiff was deprived of a fair trial by the trial judge’s excessive intervention and improper conduct:

“[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” . A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” … . Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance'” … . Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial===and often times in the presence of the jury—unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. Porcelli v Northern Westchester Hosp Ctr, 2013 NY Slip Op 06354, 2nd Dept 10-2-13

 

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Excessive Intervention by Trial Judge Required New Trial

Over a partial dissent, the Second Department granted defendant a new trial before a different justice in a medical malpractice case based upon the trial judge’s erroneous exclusion of evidence, excessive intervention in the trial, and an erroneous (“Noseworthy”) jury instruction. With respect to the judicial intervention, the Second Department wrote:

The defendant was … deprived of a fair trial by the court’s excessive intrusion into the examination of witnesses, and by the nature and extent of its questioning and comments … . It is axiomatic that the trial court “has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” … . Nonetheless, a trial court must be “mindful that its participation in the questioning of witnesses has the potential to influence the jury and, thus, when it intervenes to clarify testimony or elicit a responsive answer, it must be careful to do so in an evenhanded and temperate manner” … . Here, while the trial court had the authority to elicit and clarify the defense witnesses’ testimony, the record shows that on repeated occasions, including those specifically discussed by our dissenting colleague, it did not do so in an evenhanded and temperate manner. The court conveyed an impression of incredulity with respect to the defense witnesses’ opinions, as reflected by the record … . Moreover, the court’s incredulity had an improper cumulative effect … . Nunez v New York City Health & Hosps Corp…, 2013 NY Slip Op 06350, 2nd Dept 10-2-13

 

Error to Dismiss Failure-to-Mitigate-Damages Affirmative Defense in Contract Dispute

In a contract dispute, the Second Department determined Supreme Court should not have dismissed the defendant-Everfoam’s affirmative defense alleging plaintiffs failed to mitigate damages, noting that the duty to mitigate arises from the common law and need not be expressly bargained for in the contract:

…[T]he Supreme Court erred in awarding summary judgment dismissing Everfoam’s fourth affirmative defense alleging that the plaintiffs failed to mitigate damages, based on its determination that “no such duty exists within the parties’ contract.” To the contrary, the duty to mitigate damages arising from a breach of contract is a duty that arises from common law and, therefore, need not be expressly bargained for in a contract to be enforceable … . Accordingly, assuming liability, Everfoam should be entitled to limit damages, if any, if the plaintiffs failed to make “reasonable exertions to minimize the injury” … . Mack-Cali Realty LP v Everfoam Insulation Sys Ind, 2013 NY Slip Op 06348, 2nd Dept 10-2-13

 

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Ineffective Assistance of Counsel Mandated New Trial—Difference Between Federal and State Ineffectiveness Criteria Explained

In determining the defendant was entitled to a new trial because of the ineffectiveness of his trial counsel, the Second Department explained the difference between the federal and state criteria for ineffective assistance.  Supreme Court had vacated defendant’s murder conviction (ineffective assistance) but allowed the conviction for criminal possession of a weapon to stand.  The Second Department explained that, even though there was evidence to support the criminal possession of a weapon charge, the state ineffective assistance criteria required a new trial on all counts:

A defendant is guaranteed the effective assistance of counsel under both the federal and state constitutions (see US Const, amend VI; NY Const, art I, § 6…). The state standard is considered “somewhat more favorable to defendants,” focusing on “the fairness of the process as a whole rather than its particular impact on the outcome of the case” …. “[T]he constitutional requirements [for the effective assistance of counsel] are met when the defense attorney provides meaningful representation” …. While prejudice to the defendant is a necessary factor under the federal standard, embodied in a “but for” test …, under the state standard, “a defendant’s showing of prejudice is a significant but not indispensable element in assessing meaningful representation” …. “To meet the New York standard, a defendant need not demonstrate that the outcome of the case would have been different but for counsel’s errors” … . Generally, harmless error analysis is inapplicable to an ineffective assistance of counsel claim arising from counsel’s performance at trial … .

Here, the litany of failures by defense counsel documented by the Supreme Court established that the defendant was denied “meaningful representation” by his trial attorney. Notwithstanding the fact that there was strong evidence that the defendant possessed a loaded firearm during the incident in question, the New York State constitutional standard for the effective assistance of counsel “is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . People v Canales, 2013 NY Slip Op 06376, 2nd Dept 10-2-13

 

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“Anders” Brief Rejected

In rejecting an “Anders” brief, the Second Department noted:

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) was deficient. The body of the brief—which was only 1½ pages in length—did not contain a statement of facts, and did not contain any case citations. The brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” … or that he diligently examined the record, we must assign new counsel to represent the appellant… .  People v McNair, 2013 NY Slip Op 06389, 2nd Dept 10-2-13

 

Criteria for Suspension of Judgment in Neglect Proceeding

In reversing Family Court, the Second Department explained the criteria for a suspension of judgment in a permanent neglect proceeding:

A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords “a brief grace period designed to prepare the parent to be reunited with the child” … . In essence, an order suspending judgment provides the parent with a second chance, but it may be utilized only when the court determines that a second chance is in the child’s best interests (see Family Ct Act §§ 631, 633…). Moreover, the maximum duration of a suspended judgment is one year, unless the court finds at the conclusion of that period that “exceptional circumstances” require an extension of that period for one additional period of up to one year (Family Ct Act § 633[b]…). * * *

Family Court Act § 633© provides that an order suspending judgment “must set forth the . . . terms and conditions of the suspended judgment” (see also 22 NYCRR 205.50[b]) so that the Family Court may determine whether the parent has violated it … . Matter of Jesse D…, 2013 NY slip Op 06001, 2nd Dept 9-25-13

 

Emergency Doctrine Explained; Admissibility of Deposition Excerpts Re: Summary Judgment Motion Explained; Bicyclist Injured When Path Allegedly Blocked to Protect Child

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants. The plaintiff-bicyclist was injured when, it is alleged, one of the defendants stepped into the bicyclist’s path to protect children who were crossing the street. The court explained the admissibility requirements for excerpts of deposition testimony and an unsworn police report, as well as the emergency doctrine:

The unsigned excerpts of …defendants’ deposition testimony, which the defendants submitted in support of their motion, were admissible under CPLR 3116(a) since they were submitted by the party deponents themselves and, accordingly, those transcripts were adopted as accurate by those deponents … . Additionally, although the defendants initially failed to submit the certification page of the depositions of nonparties …, as well as those for the depositions of …defendants, they submitted those certifications in reply papers in response to the plaintiffs’ arguments in opposition … . Under the circumstances of this case, the late submission did not prejudice the plaintiffs, and the Supreme Court properly considered these certifications …. Furthermore, although unsigned, as noted above, the transcripts … were certified, and the plaintiffs did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the defendants’ motion for summary judgment … . However, the unsigned, uncertified excerpt of the injured plaintiff’s deposition was not in admissible form, nor was the uncertified, unsworn police report submitted by the defendants. Accordingly, neither of these items should have been considered in determining whether the defendants satisfied their prima facie burden … . * * *

“Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . ” This is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains that of a reasonable [person] under the given circumstances, except that the circumstances have changed'” … . ” Both the existence of an emergency and the reasonableness of a party’s response thereto will ordinarily present questions of fact'” … . Pavane v Marte, 2013 NY Slip Op 05991, 2nd Dept 9-25-13

 

14-Day Election Law Statute of Limitations, Not Article 78 Statute of Limitations, Applied

The Second Department determined that a putative Article 78 proceeding seeking to exclude candidates from the ballot based upon alleged violations of the Election Law was governed by the Election Law, not the Article 78, statute of limitations:

Notwithstanding the characterization of this proceeding as one pursuant to CPLR article 78, the petitioners seek to exclude candidates from the ballot based on their alleged failure to comply with the nomination and designation procedures of Election Law article 6, as supplemented by the general provisions of Election Law § 1-106. Accordingly, this proceeding is governed by the statute of limitations set forth in Election Law § 16-102(2) … . Since it is undisputed that this proceeding was not commenced within 14 days after the last day to file the designating and opportunity-to-ballot petitions at issue, as required by Election Law § 16-102(2), the Supreme Court properly dismissed the proceeding as untimely.  Matter of Ciotti v Westchester County Bd of Elections, 2013 NY Slip Op 06000, 2nd Dept 9-25-13

 

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