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DEFENDANT STRUCK THE REAR OF PLAINTIFF’S STOPPED VEHICLE; DEFENDANT’S CLAIM THAT HIS FOOT SLIPPED OFF THE BRAKE PEDAL DID NOT PRESENT A NONEGLIGENT EXPLANATION OR TRIGGER THE EMERGENCY DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this rear-end collision case was entitled to summary judgment. Defendant’s allegation his foot slipped off the brake pedal because of rocks and pebbles under the floor mat did not present a nonnegligent explanation for striking plaintiff’s stopped vehicle:

[Defendant’s] assertion that he tried to apply the brakes on his vehicle to avoid a collision with the plaintiff’s vehicle, but his foot slipped off the brake pedal due to rocks and pebbles under the floor mat, was insufficient to raise a triable issue of fact as to as to whether there was a nonnegligent explanation for the happening of the accident, or whether the emergency doctrine applied … . Donnellan v LaMarche, 2023 NY Slip Op 05713, Second Dept 11-15-23

Practice Point: Here defendant struck the rear of plaintiff’s stopped vehicle. Defendant’s explanation that his foot slipped off the brake pedal was not enough to raise a question of fact about either a nonnegligent explanation or the applicability of the emergency doctrine.

 

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THE RECENT COURT OF APPEALS DECISION ALLOWING A VETERINARIAN’S OFFICE TO BE SUED IN NEGLIGENCE WHEN A PATRON WAS BITTEN BY A DOG IN THE WAITING ROOM DID NOT EXTEND TO A RESTAURANT OWNER WHO ALLOWS PATRONS TO BRING THEIR LEASHED DOGS TO THE RESTAURANT; THE STRICT LIABILITY “NOTICE OF VICIOUS PROPENSITIES” STANDARD APPLIED TO THE RESTAURANT OWNER (SECOND DEPT).

The Second Department, in an extensive, full-fledged opinion by Justice Genovesi, reversing Supreme Court, determined the strict liability “notice-of-vicious-propensity” requirement applied to a restaurant which allowed patrons to bring their leashed dogs. Here the infant plaintiff was bitten by a patron’s dog. The negligence cause of action was not dismissed by Supreme Court pursuant to a recent Court of Appeals decision which held that a veterinarian’s office could be sued in negligence by a patron bitten by another patron’s dog. The Second Department refused to extend the Court of Appeals ruling re: a veterinarian to a restaurant owner:

On this appeal, we are presented with the opportunity to examine the extent to which the Court of Appeals’ opinion in Hewitt v Palmer Veterinary Clinic, PC (35 NY3d 541), serves to alter the standard applied in actions to recover damages for personal injuries caused by domesticated animals. Specifically, we address those actions commenced against individuals other than the animal’s owner. In Hewitt, the Court of Appeals engaged in an intensely fact-specific inquiry wherein it determined that the vicious propensities notice requirement is not necessary in a negligence action against a veterinary practice or other such places with “specialized knowledge relating to animal behavior” (id. at 548). We conclude that the holding of Hewitt, in line with the jurisprudence of this area of law, does not serve to carve out a path for ordinary negligence actions against all premises owners, in contravention of the vicious propensities notice requirement. Cantore v Costantine, 2023 NY Slip Op 05708, Second Dept 11-15-23

Practice Point: Although the Court of Appeals recently held standard negligence principles could be applied to a dog bite in a veterinarian’s office, here the strict liability “notice of vicious propensities” requirement applied to a restaurant owner who allows patrons to bring their leashed dogs into the restaurant.

 

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THERE CAN BE MORE THAN ONE PROXIMATE CAUSE OF AN ACCIDENT; HERE PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY BUT DEFENDANT DRIVER’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE REMAINED VIABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bicyclist should have been awarded summary judgment in this vehicle-bicycle accident case, but defendant’s comparative-negligence affirmative defense should not have been dismissed:

On a motion for summary judgment on the issue of a defendant’s liability, a plaintiff is no longer required to show freedom from comparative negligence to establish his or her prima facie entitlement to judgment as a matter of law … . Although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability … , the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence … . “In general, a motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle’s horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position” … . * * *

… [P]laintiffs … failed to establish, prima facie, that the injured plaintiff was not comparatively at fault in the happening of the accident. There can be more than one proximate cause of an accident, and generally, it is for the trier of fact to determine the issue of proximate cause … . Based upon the evidence presented by the plaintiffs in support of their motion, triable issues of fact exist as to whether the injured plaintiff was negligent in failing to keep a proper lookout, whether he should have slowed down earlier given the traffic conditions, and whether he contributed to the happening of the accident … . Bornsztejn v Zito, 2023 NY Slip Op 05706, Second Dept 11-15-23

Practice Point: There can be more than one proximate cause of an accident. Here the defendant driver failed to see was should have been seen, so the plaintiff bicyclist was entitled to summary judgment on liability. However there was a question of fact whether plaintiff was comparatively negligent, so the comparative negligence affirmative defense remained viable on the issue of damages.

 

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PLAINTIFF’S EXPERTS WERE NOT QUALIFIED TO OFFER AN OPINION ON THE TREATMENT PROVIDED BY DEFENDANT MEDICAL ONCOLOGIST; THEREFORE THE EXPERTS DID NOT DEMONSTRATE DEFENDANT OWED PLAINITFF A DUTY OF CARE, A QUESTION OF LAW FOR THE COURT (SECOND DEPT).

The Second Department, in a comprehensive decision, over a comprehensive dissent, determined that the summary judgment motion by one of plaintiff’s treating physicians was properly granted in this medical malpractice case. Neither of plaintiff’s experts was qualified to assess the defendant medical oncologist’s (Hindenberg’s) care of plaintiff. Therefore the expert affidavits did not demonstrate defendant owed a duty of care to the plaintiff (Petillo), which is a question of law for the court:

… [I]n order to reach any discussion[s] about deviation from accepted medical practice, it is necessary first to establish the existence of a duty”… . “‘Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient'” … . “The existence and scope of a physician’s duty of care is a question of law to be determined by the court” … . * * *

Petillo’s internal medicine and infectious disease expert failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist … . The expert did not claim to have any skill, training, education, knowledge, or experience in the field of medical oncology. While the expert gave an opinion that Hindenburg departed from the standards of care applicable to internal medicine, Petillo was not referred to Hindenburg as an internist and Hindenburg did not treat Petillo as an internist, rendering the standard of care for an internist inapplicable.

Petillo’s surgical oncologist expert also failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist. This expert, a board-certified surgeon who practices in the field of surgical oncology, a specialty distinct from medical oncology, failed to establish that he had the skill, training, education, knowledge, or experience in the field of medical oncology sufficient to provide a foundation to opine on the clinical standard of care and departures of a medical oncologist. Abruzzi v Maller, 2023 NY Slip Op 05704, Second Dept 11-15-23

Practice Point: Before an expert can offer an admissible opinion on the care provided by a doctor in a medical malpractice case, the expert must demonstrate he or she is qualified to assess the care provided by the defendant doctor, here a medical oncologist. The failure to demonstrate the necessary qualifications to assess the care provided by the defendant specialist, constituted the failure to demonstrate the defendant doctor owed a duty to the plaintiff, a question of law for the court.

 

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THE EVIDENCE PRESENTED IN SUPPORT OF THE DEFENDANT TOWN’S AND POLICE-OFFICER’S MOTION FOR SUMMARY JUDGMENT WAS UNEQUIVOCAL AND DEMONSTRATED THE OFFICERS DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD WHEN PURSUING PLAINTIFF MOTORCYCLIST, WHO CRASHED AND WAS SERIOUSLY INJURED; THERE WAS NO INDICATION FURTHER DISCOVERY WOULD UNCOVER ADDITIONAL EVIDENCE; THE MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town and police–officer defendants were entitled to summary judgment in this motorcycle-accident case. The plaintiff motorcyclist (Ronnie) was speeding when the defendant officers attempted to follow him with their emergency lights on. Both officers pulled back because of the plaintiff’s speed, losing sight of plaintiff. The officers came upon plaintiff in the woods after he had crashed. Supreme Court ruled that the defendants had demonstrated entitlement to summary judgment but found that the summary judgment motion was premature and should await further discovery. The Second Department held the motion was not premature because there was no indication additional evidence would be uncovered:

… [T]he defendants’ motion was not premature. The plaintiff “failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the [defendants]” … . Here, the officers directly involved in the attempt to stop Ronnie provided sworn affidavits, which were unequivocal and consistent with the other evidence in the case. There is no basis to conclude that depositions or other discovery would render a different account of the accident. The plaintiff’s mere hope or speculation that discovery would render evidence sufficient to defeat the defendants’ motion was not a sufficient basis to deny the motion … . Rojas v Town of Tuxedo, 2023 NY Slip Op 05751, Second Dept 11-15-23

Practice Point: Where the evidence supports summary judgment and there is no indication further discovery will uncover additional evidence, the summary judgment motion should not be denied as “premature.”

 

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RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined respondent, the children’s uncle who lived with the children’s family, was a person legally responsible for the children who had sexually abused the children:

“Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court” … . These factors are not exhaustive, “but merely illustrate some of the salient considerations in making an appropriate determination” … . * * *

… [T]he respondent, the paternal uncle of Yasmin P. and Hilary P., continually resided in the same apartment with Yasmin P. and Hilary P. for approximately five years. In addition, the respondent’s brother testified during the fact-finding hearing that the respondent told him that the respondent considered both the respondent’s family and the respondent’s brother’s family, including Yasmin P. and Hilary P., to be one big family (see Family Ct Act § 1012[g] …). The respondent also exercised control over Yasmin P.’s and Hilary P.’s environment during the relevant period by freely accessing their bedroom and the common areas of the apartment, including when Yasmin P. and Hilary P. were home and their parents were away at work or running errands, and by controlling Yasmin P. with commands or the promise of gifts. Accordingly, the evidence adduced at the fact-finding hearing established that the respondent was a person legally responsible for Yasmin P. and Hilary P. Matter of Marjorie P. (Gerardo M. P.), 2023 NY Slip Op 05734, Second Dept 11-15-23

Practice Point: Here the children’s uncle, who lived with the children’s family, should have been deemed a person legally responsible for the children in this sexual abuse proceeding.

 

THE “CONSENT TO SEARCH” PROBATION CONDITION WAS NOT SUPPORTED BY THE NATURE OF DEFENDANT’S OFFENSE (SECOND DEPT).

The Second Department, eliminating the “consent to search” probation condition, determined the condition was not supported by the nature of defendant’s offense:

Appeal by the defendant from a judgment … convicting him of assault in the second degree, upon his plea of guilty, and sentencing him to a definite term of incarceration of one day, to be followed by a term of probation, which included as a condition Condition No. 28, requiring the defendant to consent to a search by a probation officer or a probation officer and his or her agent of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon, or contraband found during the search. * * *

… [T]he defendant was a first-time offender and was not armed with a weapon at the time he committed the offense. Additionally, the defendant has not been assessed as being in need of alcohol or substance abuse treatment. Under the circumstances, the consent to search condition of probation was improperly imposed because it was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life …. . People v Mensah, 2023 NY Slip Op 05622, Second Dept 11-8-22

Practice Point: Here the nature of defendant’s offense (assault second), coupled the lack of evidence that defendant abused drugs or alcohol, failed to support the “consent to search” probation condition.

 

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FATHER DID NOT DEMONSTRATE THE CHILD WAS CONSTRUCTIVELY EMANCIPATED; THEREFORE FATHER’S SUPPORT OBLIGATION SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not meet his burden of proof in his attempt to demonstrate the constructive emancipation of the child such that his support obligation should be terminated:

“It is fundamental public policy in New York that parents are responsible for their children’s support until age 21” … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” … . “[W]here it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent” … . “The burden of proof as to emancipation is on the party asserting it” … .

Here, contrary to the father’s contention, the evidence adduced at the hearing failed to demonstrate that he made serious efforts to maintain a relationship with the child during the relevant time period, or that the child actively abandoned her relationship with him … . Matter of Rosenkrantz v Rosenkrantz, 2023 NY Slip Op 05609, Second Dept 11-8-23

Practice Point: The proof requirements for constructive emancipation of a child were not met; criteria explained.

 

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MOTHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED UPON FATHER’S FAILURE TO APPEAR; FATHER’S ATTORNEY EXPLAINED FATHER’S ABSENCE AND REQUESTED AN INQUEST; AN APPEAL FROM AN ORDER ENTERED UPON A PARTY’S DEFAULT BRINGS UP FOR REVIEW ONLY THE CONTESTED MATTERS BEFORE THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition for sole custody should not have been granted upon father’s failure to appear. Father’s attorney explained father’s absence and asked that the matter be set down for an inquest. The Second Department noted that, upon appeal from an order made upon a party’s default, only the contested matters before the trial court can be heard:

“A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . Generally, the court’s determination should be made only after “a full and plenary hearing and inquiry” … or, where a party failed to appear, after an inquest … .

Here, the Family Court granted the mother’s petition to modify the prior order, upon the father’s default, without receiving any testimony or other evidence, despite the fact that the father’s attorney proffered a reasonable explanation for the father’s absence and that the father did not have a history of missing court dates … . Under the circumstances, the court improvidently exercised its discretion in denying the application of the father’s attorney to set the matter down for an inquest … .  Matter of Otero v Walker, 2023 NY Slip Op 05607, Second Dept 11-8-23

Practice Point: Generally where a party defaults in a custody matter, an inquest should be held before any ruling.

Practice Point: Upon appeal from an order made upon a party’s default, only the contested matters before the trial court come up for review.

 

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THE FOIL REQUEST FOR THE NUMBER AND LOCATION OF LICENSE PLATE READERS (LPR’S) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a dissent, determined the FOIL request for the location of license plate readers (LPR’s) should have been granted. The majority decision and the dissent include comprehensive discussions of the relevant caselaw which are far too extensive to fairly summarize here:

In light of the presumption of accessability and the narrow interpretation we are required to apply to a claimed exemption, under the circumstances of this case, we find that the respondents failed to sustain their burden of proving that the law enforcement records exemption pursuant to Public Officers Law § 87(2)(e)(iv) applied to the records pertaining to the number and location of the LPRs sought by the petitioner’s request … . Matter of Lane v Port Wash. Police Dist., 2023 NY Slip Op 05605, Second Dept 11-8-23

Practice Point: Here the majority’s and dissent’s discussion of FOIL request for the number and location of license plate readers (LPR’s), which the majority held should have been granted, includes a comprehensive discussion of the relevant caselaw.

 

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