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STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT).

The Third Department affirmed the dismissal of a student from the State University of New York for violations of the student code of conduct. The decision is too detailed to fairly summarize here, but it provides a comprehensive explanation of the procedures and proof required of a state university in a disciplinary action against a student:

Although administrative determinations may be based entirely on hearsay evidence as long as “such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted”… , the record contains direct evidence against petitioner, as well as hearsay. * * *

Generally, due process requires that the accused student in a college disciplinary proceeding be given written notice of the charges prior to a hearing, the names of the witnesses against him or her, an opportunity to hear and confront evidence against him or her and to present a defense and to be advised in writing of the factual findings and discipline imposed… . However, “there is no general constitutional right to discovery in . . . administrative proceedings” … . …

The code does not contain a requirement that a party provide any documents or information that the party does not intend to submit as evidence at the hearing. It is undisputed that the investigator complied with the code’s directive by timely providing to the Community Standards Office the names of his proposed witnesses and the evidence he later presented at the hearing, which were provided to petitioner well in advance of the hearing. * * *

Pursuant to the code, to obtain relief on an administrative appeal based on new evidence, the student must not only show that the evidence was unavailable at the time of the hearing, but must also provide “[a] summary of the new evidence and its potential impact.” …

… [A] student has no right to counsel in disciplinary proceedings … . The code permits a student to have an advisor, but that person may only advise the student and cannot address the Student Conduct Board during the hearing. Matter of Agudio v State Univ. of N.Y., 2018 NY Slip Op 05647, Third Dept 8-2-18

EDUCATION-SCHOOL LAW (STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/COLLEGES AND UNIVERSITIES (STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/DISCIPLINARY PROCEEDINGS (COLLEGES AND UNIVERSITIES, STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))/STUDENTS (COLLEGES AND UNIVERSITIES, STUDENT PROPERLY DISMISSED FROM A STATE UNIVERSITY FOR VIOLATIONS OF THE STUDENT CODE OF CONDUCT, PROCEDURES AND PROOF REQUIREMENTS EXPLAINED (THIRD DEPT))

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NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT).

The Third Department determined defendant insurance brokers’ motion for summary judgment in this breach of contract-negligence action by the insureds was properly granted. The Insureds’ alleged there was an agreement to increase the insurance coverage on the insureds’ home which was destroyed by fire after renovations had been made and there was a special relationship between the brokers and the insureds. There evidence did not support either theory:

As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage” … . Thus, “[t]o set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy” … . * * *

Stressing that “special relationships in the insurance brokerage context are the exception, not the norm” … , the Court of Appeals has identified three “exceptional situations” that may give rise to a special relationship: “(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . Hefty v Paul Seymour Ins. Agency, 2018 NY Slip Op 05547, Third Dept 7-26-18

INSURANCE LAW (NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/NEGLIGENCE (INSURANCE LAW, NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))/SPECIAL RELATIONSHIP (INSURANCE LAW, (NO AGREEMENT TO INCREASE INSURANCE COVERAGE OF HOME DESTROYED BY FIRE AFTER RENOVATIONS, NO SPECIAL RELATIONSHIP BETWEEN THE INSURANCE BROKERS AND THE INSUREDS (THIRD DEPT))

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PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT).

The Third Department the petitioners, parents of children in the East Ramapo Central School District, had standing to bring an Article 78 (mandamus) proceeding seeking to enforce the children’s constitutional right to a sound basic education, but the petition must be dismissed because mandamus lies only for mandatory, not discretionary, actions:

… [P]etitioners have sufficiently alleged a threatened harm to the children’s constitutional right to receive a sound basic education based upon respondents’ alleged failure to take corrective action as identified in the petition’s cited reports … .

Notwithstanding the foregoing, we conclude that the petition was properly dismissed. Mandamus to compel is “an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought” … . It is beyond cavil that students are entitled to a sound basic education (see NY Const art XI). The manner in which such goal is achieved, however, involves discretionary decisions by respondents … . As such, to the extent that petitioners seek to compel respondents to implement specific recommendations set forth in the reports cited in the petition — an act involving “the exercise of reasoned judgment which could typically produce different acceptable results”… — they are not entitled to such relief. Matter of Curry v New York State Educ. Dept., 2018 NY Slip Op 05393, Third Dept 7-19-18

EDUCATION-SCHOOL LAW (PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))/CONSTITUTIONAL LAW (EDUCATION-SCHOOL LAW, PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))/CIVIL PROCEDURE (MANDAMUS, EDUCATION-SCHOOL LAW, PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))/MANDAMUS (EDUCATION-SCHOOL LAW, PARENTS HAD STANDING TO BRING A MANDAMUS ACTION SEEKING A SOUND BASIC EDUCATION FOR THEIR CHILDREN, HOWEVER MANDAMUS LIES ONLY FOR GOVERNMENT ACTIONS WHICH ARE MANDATORY, NOT THE DISCRETIONARY ACTIONS SOUGHT BY THE PETITION HERE (THIRD DEPT))

NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT).

The Third Department determined a registered nurse who worked for Human Care which provided home health care services was an employee entitled to unemployment insurance benefits:

Human Care maintains a list of registered nurses, designated as field nurse supervisors, who provide home health care services to its patients on an on-call basis. Human Care hired claimant as a field nurse supervisor following an interview and screening of her experience and license credentials. Upon hiring claimant, Human Care required claimant to sign a job summary detailing the various duties and responsibilities of a field nurse supervisor, which included completing clinical and progress notes, informing Human Care’s Director of Patient Services of any changes in a patient’s condition and needs and submitting all required paperwork to the Director within 48 hours of a visit. The job summary further stated that field nurse supervisors reported to the Director and were required to follow Human Care policies and procedures. Claimant was provided with Human Care’s handbook of policies and procedures. With respect to individual assignments, the Director would contact claimant when a client needed services and advise what services were to be provided. Claimant was free to accept or decline any assignment and, if she was unable to complete an assignment that she had accepted, Human Care would find a replacement. Claimant was required to complete and submit a written “base assessment” of the client to the Director for review. Additionally, Human Care set the fee paid to claimant for her services, which was not negotiable, and billed its clients or the clients’ insurance companies for claimant’s services.  Matter of Dillon (Commissioner of Labor), 2018 NY Slip Op 05386. Third Dept 7-19-18

UNEMPLOYMENT INSURANCE (NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT))/NURSES (UNEMPLOYMENT INSURANCE, NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT))/HOME HEALTH CARE (UNEMPLOYMENT INSURANCE, NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT))

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OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT).

The Third Department, over a dissent, determined the officer who stopped the car in which defendant was a passenger had a reasonable basis to frisk the defendant for safety. The frisk resulted in the seizure of a handgun. At the time of the frisk, the officer knew the defendant was out past his parole curfew and suspected defendant had violated his conditions of parole by consuming alcohol. In addition, defendant was riding in an unregistered car and the driver did not have a license:

A suspect’s status as a parolee is a relevant factor to consider when evaluating the reasonableness of a particular search or seizure  … , particularly where, as here, the officer had reason to believe that defendant was then and there violating both the curfew and alcohol conditions of his parole. The hour was late and the driver was driving an unregistered vehicle without a license. Defendant’s evasive, if not flippant, “sales” response as to why he was on parole, coupled with his repeated denial of alcohol use, heightened the volatility of the situation. Cumulatively, these factors validate County Court’s conclusion that the officer had a reasonable basis to conduct the frisk to assure his own safety … . People v Carey, 2018 NY Slip Op 05376, Third Dept 7-19-18

CRIMINAL LAW (OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/STREET STOPS (FRISK, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/PAT DOWN SEARCH  (OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/SEARCH AND SEIZURE (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/SUPPRESSION (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/FRISK (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))

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HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEP

The Third Department, annulling the disciplinary determination and expunging it, determined the hearsay upon which the determination was based was not demonstrated to be sufficiently reliable:

“While hearsay evidence in the form of confidential information may provide substantial evidence to support a determination of guilt, the information must be sufficiently detailed to allow the Hearing Officer to make an independent assessment to determine its reliability and credibility” … . The only witness called to testify at the hearing was the lieutenant who oversaw the investigation. The lieutenant relied upon information provided by other officers, who reported receiving information from unspecified informants that petitioner was involved in this fight. During his confidential and hearing testimony, the lieutenant recounted that the officers informed him that they had received information from informants, whom they had used in the past and found reliable, that petitioner had engaged in this fight. The lieutenant deemed the reports to be “consistent” and “credible,” but provided no details of their accounts. Moreover, the lieutenant had not interviewed any of the informants and did not know if any of them had actually witnessed the fight. The questioning of the lieutenant about the officers’ and informants’ accounts was cursory, rather than “thorough and specific” as required to provide the Hearing Officer with a basis to gauge the informants’ “knowledge and reliability” … .

While the lieutenant relied upon a to/from memorandum from the sergeant who apparently interviewed some of the informants, that memorandum contains no details regarding the basis for their knowledge or any specificity about their accounts, and does not assert that they had witnessed the fight or any information regarding their past reliability. Under these circumstances, the record is devoid of any basis upon which to conclude that the informants ever provided “detailed and specific” accounts, or that the Hearing Officer had information from which to “gauge the basis for the informant[s’] knowledge of the [fight] and [their] reliability” … . Matter of Maisonett v Venettozzi, 2018 NY Slip Op 05257, Third Dept 7-12-18

DISCIPLINARY HEARINGS (INMATES) (HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES)  (HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))/HEARSAY (DISCIPLINARY HEARINGS (INMATES)  (HEARSAY NOT DEMONSTRATED TO BE RELIABLE, DISCIPLINARY DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT))

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MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT).

The Third Department determined that a medical journal kept by plaintiff’s decedent after an injury at the direction of her attorney was protected by attorney-client privilege, where as a record of her medications were not:

Upon examination of the notes turned over to Supreme Court for an in camera review, we conclude that they are a mixed collection, some of which are shielded by the attorney-client privilege and some of which are not. The three-page portion labeled “injury journal” is, as described by decedent’s attorney, a seamless report of the incident at the health club and the medical care that decedent received shortly thereafter. The medication log is on a separate page and includes other notes of a personal nature. We agree with Supreme Court that the medication log was made for the purpose of keeping a medical record rather than as a confidential communication made for the purpose of legal services. Accordingly, in the absence of evidence that the medication log constituted a communication of legal character between decedent and [her attorney], plaintiff may not invoke the attorney-client privilege to shield its disclosure … . Wrubleski v Mary Imogene Bassett Hosp., 2018 NY Slip Op 05256, Third Dept 7-12-18

ATTORNEYS (PRIVILEGE, MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT))/PRIVILEGE (ATTORNEY-CLIENT, MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT))/INJURY LOG (ATTORNEY-CLIENT PRIVILEGE,  MEDICAL JOURNAL KEPT BY PLAINTIFF’S DECEDENT AFTER SHE WAS INJURED AT THE DIRECTION OF HER ATTORNEY PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, MEDICATION LOG IS NOT PROTECTED (THIRD DEPT))

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DETERMINATION PETITIONER VIOLATED THE COLLEGE’S SEXUAL ASSAULT POLICY AND THE ADMINISTRATIVE PROCEDURE USED BY THE COLLEGE DEEMED PROPER (THIRD DEPT).

The Third Department determined the petitioner was properly disciplined for violation of a college’s sexual assault policy and the procedure followed by the college was proper:

“Where, as here, no hearing is required by law, a court reviewing a private university’s disciplinary determination must determine ‘whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious'” … . A university’s determination will be annulled only where it has failed to substantially comply with its procedures or where its determination lacks a rational basis … . …

With respect to hearing submissions, respondent’s procedure permits each party to submit proposed questions or topics for individuals who might testify during the hearing. The procedure specifically grants the chair of the Hearing Panel discretion to “determine which of the parties’ requested questions will be asked or topics covered,” and permits the chair to disregard questions that are irrelevant, prohibited by applicable procedures or law, unduly prejudicial or cumulative. While the Hearing Panel declined to ask the complainant all of the questions that petitioner proposed prior to the hearing, many of the topics of such questions were addressed elsewhere in the record and were thus available for the Hearing Panel’s review. Moreover, as Supreme Court correctly pointed out, the right of confrontation or cross-examination is not directed or guaranteed under respondent’s procedures, nor is it required by the Enough is Enough Law … . Indeed, “[a] student subject to disciplinary action at a private educational institution is not entitled to the full panoply of due process rights,” and “[s]uch an institution need only ensure that its published rules are substantially observed” … . Matter of Doe v Cornell Univ., 2018 NY Slip Op 05255, Third Dept 7-12-18

EDUCATION-SCHOOL LAW (DETERMINATION PETITIONER VIOLATED THE COLLEGE’S SEXUAL ASSAULT POLICY AND THE ADMINISTRATIVE PROCEDURE USED BY THE COLLEGE DEEMED PROPER (THIRD DEPT))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, DETERMINATION PETITIONER VIOLATED THE COLLEGE’S SEXUAL ASSAULT POLICY AND THE ADMINISTRATIVE PROCEDURE USED BY THE COLLEGE DEEMED PROPER (THIRD DEPT))/EVIDENCE (EDUCATION-SCHOOL LAW, DISCIPLINARY PROCEEDINGS, SEXUAL ASSAULT, DETERMINATION PETITIONER VIOLATED THE COLLEGE’S SEXUAL ASSAULT POLICY AND THE ADMINISTRATIVE PROCEDURE USED BY THE COLLEGE DEEMED PROPER (THIRD DEPT))/SEXUAL ASSAULT (EDUCATION-SCHOOL LAW, DISCIPLINARY PROCEEDINGS, SEXUAL ASSAULT, DETERMINATION PETITIONER VIOLATED THE COLLEGE’S SEXUAL ASSAULT POLICY AND THE ADMINISTRATIVE PROCEDURE USED BY THE COLLEGE DEEMED PROPER (THIRD DEPT))

QUESTION OF FACT WHETHER PLAINTIFF, A YOUTH HOCKEY PLAYER INJURED BY A TIPPING BENCH IN THE LOCKER ROOM, WAS IN THE CUSTODY OF THE COACH OR HIS FATHER IN THIS NEGLIGENT SUPERVISION ACTION (THIRD DEPT). ​

The Third Department determined there was a question of fact whether plaintiff, a youth hockey player (Beninati), was in the custody and control of the coach or plaintiff’s father at the time he was injured falling off a tipping bench in the locker room:

Where a child participates in an athletic activity, such as the youth hockey program involved here, we recognize that the team and its coach owe a duty of care to adequately supervise the child while participating in the event … . That custodial duty, however, ceases once the child is returned to the care and control of his or her parent … . “A plaintiff claiming negligent supervision must demonstrate both that the defendant breached its duty to provide adequate supervision [as would a reasonably prudent parent placed in comparable circumstances], and that this failure was the proximate cause of the plaintiff’s injuries”… .

The pivotal question presented is whether Beninati was in the custody of his father or the coach at the time that he was injured. Beninati v City of Troy, 2018 NY Slip Op 05254, Third Dept 7-12-18

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF, A YOUTH HOCKEY PLAYER INJURED BY A TIPPING BENCH IN THE LOCKER ROOM, WAS IN THE CUSTODY OF THE COACH OR HIS FATHER IN THIS NEGLIGENT SUPERVISION ACTION (THIRD DEPT))/NEGLIGENT SUPERVISION (QUESTION OF FACT WHETHER PLAINTIFF, A YOUTH HOCKEY PLAYER INJURED BY A TIPPING BENCH IN THE LOCKER ROOM, WAS IN THE CUSTODY OF THE COACH OR HIS FATHER IN THIS NEGLIGENT SUPERVISION ACTION (THIRD DEPT))

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ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT).

The Third Department determined defendant’s motion to set aside the verdict in this stairway-fall case was properly denied. Plaintiff’s decedent was found at the bottom of a deteriorating concrete exterior staircase and later died from his injuries. Although plaintiff’s decedent made some remarks to emergency personnel about the fall, he died before he could be deposed. The Third Department described the evidentiary standards in such a case and found that the “Noseworthy” jury instruction was properly given:

… [P]laintiff had to rely entirely on circumstantial evidence to establish that defendant’s negligence was the proximate cause of decedent’s fall. In doing so, plaintiff was not “required to rule out all plausible variables and factors that could have caused or contributed to the accident” … . Rather, plaintiff had to prove that defendant’s negligence was the more likely cause of decedent’s fall than any other potential cause… . Plaintiff’s proof had to “render other causes sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation” … . …

We are also unpersuaded by defendant’s contention that Supreme Court erred in giving a jury charge based upon Noseworthy v City of New York (298 NY 76 [1948]), which — in cases where the alleged negligent act or omission resulted in death — imposes a lighter burden of persuasion on the plaintiff by allowing the jury “greater latitude in evaluating such factual issues as the decedent might have testified to had [he or she] lived” … . The theory behind the Noseworthy charge is “that it is unfair to permit a defendant who has knowledge of the facts to benefit by remaining mute in a wrongful death action where the decedent is unavailable to describe the occurrence” … . The charge, however, is inapplicable “where the plaintiff and the defendant have equal access to the facts surrounding the decedent’s death” … . Tyrell v Pollak, 2018 NY Slip Op 05251, Third Dept 7-12-18

NEGLIGENCE (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/SLIP AND FALL (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/JURY INSTRUCTIONS (NOSEWORTHY, ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/NOSEWORTHY (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))

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