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Plaintiff Injured Falling Off Operating Table—Record Insufficient to Determine Whether Action Sounded in Medical Malpractice (Rendering It Untimely) or Negligence (Rendering It Timely)

The Third Department determined there was insufficient information in the record to determine whether plaintiff’s action sounded in negligence or medical malpractice.  Plaintiff was injured when she fell off the operating table.  The case hinged on whether the 2 1/2 year medical malpractice of the 3 year negligence statute of limitations applied. Supreme Court determined the medical malpractice statute applied and dismissed the complaint. The Third Department sent the matter back for the service of an amended complaint:

The sole issue here is whether the complaint sounds in medical malpractice such that it is subject to a 2½-year statute of limitations, which would make it untimely, or whether it alleges personal injury claims based on ordinary negligence that are subject to a three-year statute of limitations (compare CPLR 214-a, with CPLR 214 [5]). “Conduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” … .

The record here does not contain enough factual information to make such a determination. The complaint contains some language that generally refers to malpractice, such as that the “action arose from a surgery,” that plaintiff was “owed a duty by [d]efendants to use the due care of medical specialists in performing” the surgery, and that plaintiff fell after she “was extubated by the [a]nesthesiologist” or “while extubated by” him. While some of the medical records also indicate that plaintiff’s fall from the operating table may have been substantially related to the rendition of medical treatment, one medical note indicates that plaintiff rolled off the table due to the failure to remove an obstruction that prevented a stretcher from being placed next to the operating table. Plaintiff’s causes of action would sound in medical malpractice if she fell off the table due to improper pressure or movement in the removal of the breathing tube, or the failure to properly evaluate her safety and restraint needs while she was under anesthesia … .

On the other hand, her causes of action would sound in ordinary negligence if she never received any safety assessment, if the hospital staff failed to remove an obstruction between the operating table and stretcher and allowed her to fall between them, or if she was simply dropped by the staff members when they were transferring her from the operating table to the stretcher … . Newell v Ellis Hosp, 2014 NY Slip Op 02992, 3rd Dept 5-1-14

 

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New Paltz Local Wetlands Law Should Not Have Been Annulled

The Third Department, in a lengthy and detailed decision, reversed Supreme Court’s annulment of a Local Law enacted by the Town of New Paltz.  The law was enacted to prevent the “despoliation and destruction of wetlands.”  The court determined, among other issues, the town board had acted in compliance with the State Environental Quality Review Act (SEQRA), the law was not unconsitutionally vague, and the law was not preempted by other laws.  The  court described the “hard look” required by SEQRA, as well as the court’s review-role, as follows:

Initially, respondents contend that Supreme Court erred in concluding that the Board failed to take the “hard look” required by SEQRA before concluding that an environmental impact statement (hereinafter EIS) was not required. SEQRA requires an EIS when an agency action “may have a significant effect on the environment,” and such an impact is presumed to be likely where, as here, a type I action is involved (ECL 8-0109 [2]… 6 NYCRR 617.4 [a] [1]); however, a type I action does not, “per se, necessitate the filing of an [EIS]” … . A negative declaration may be issued, obviating the need for an EIS, if the lead agency — here, the Board — determines that “no adverse environmental impacts [will result] or that the identified adverse environmental impacts will not be significant” (6 NYCRR 617.7 [a] [2]…). Upon judicial review, we may not substitute our judgment for that of the Board, and may annul its decision “only if it is arbitrary, capricious or unsupported by the evidence” … . Matter of Gabrielli v Town of New Paltz, 2014 NY Slip Op 02826, Third Dept 4-24-14

 

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Aunt Met Her Burden of Establishing Extraordinary Circumstances Overcoming Mother’s Superior Right to Custody of Children/Appellate Division Has Authority to Make Those Findings Where Family Court Failed to Do So

After noting that Family Court failed to address whether petitioner, a maternal aunt, had established extraordinary circumstances overcoming the mother’s superior right to custody, the Third Department exercised its power to make the finding that petitioner had met her burden:

Notwithstanding Family Court’s failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed … . Based upon that review, we conclude that petitioner met her burden of establishing extraordinary circumstances. Petitioner testified that the older child had lived with her for approximately four years. The younger child had lived with petitioner for about one year, returned to the mother’s home and then resumed living with petitioner. According to petitioner, and as partially corroborated by the mother, the mother’s health issues significantly limited her ability to care for the children. The evidence at trial established that the mother, who has substantial pulmonary issues and requires the aid of oxygen, excessively and inappropriately depended upon the children to assist her with personal and health needs, as well as housekeeping duties. The mother even required the younger child to sleep near her because she was afraid she would stop breathing while sleeping. Additionally, the mother’s health issues hindered her ability to supervise the younger child, who had behavior issues and was getting into trouble at school while she was living with the mother. During various hospitalizations, the mother left the younger child with neighbors and/or relatives, some of whom were of questionable reliability.

It is abundantly clear that the mother was unable to both provide the younger child with a structured environment and to properly care for her; instead, the mother relied upon the child to take care of her. Further, when the younger child was residing with petitioner, the mother consistently pressured her to return to her home — claiming, among other thing, that she needed her home because she was dying — which was upsetting to the child. Multiple witnesses also testified to the unsanitary living conditions in the mother’s trailer, including several occasions when it was flea infested. When the younger child came to live with petitioner, her clothing was ill-fitting and she had significant untreated dental issues. Finally, inasmuch as the older child had been living with petitioner for many years, placing the younger child in petitioner’s care allowed the siblings to reside together. Matter of Roth v Messina, 2014 NY Slip Op 02637, 3rd Dept 4-17-14

 

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Court Properly Allowed Defendant to Proceed Pro Se Three Weeks Into His Murder Trial

The Third Department affirmed defendant’s conviction for murder, rejecting the claim that county court’s informing all the jurors that defendant’s prior conviction for the same offenses had been reversed, as well as the community’s knowledge about the case due to publicity, deprived defendant of a fair trial.  In addition, the Third Department concluded that the trial judge did not err in allowing the defendant to proceed pro se three weeks into the trial.  With respect to the propriety of allowing the defendant to represent himself, the court explained:

Here, there is no question that defendant’s mid-trial request to proceed pro se — made some three weeks after the trial commenced — was untimely … . Faced, however, with defendant’s repeated, articulate and impassioned pleas to represent himself, County Court elected — in an exercise of its discretion — to consider the merits of defendant’s request. Although defendant now faults County Court’s decision in this regard, we cannot say — under the particular facts of this case — that reversal upon this ground is warranted.

To be sure, the Court of Appeals has held that once a trial has commenced and witnesses have testified, a defendant’s “right [to proceed pro se] is severely constricted and the trial court must exercise its sound discretion and grant the request only under compelling circumstances” … . The rationale for this rule, however, stems from concerns regarding “the potential for obstruction and diversion” that may attend a defendant’s decision — or be part of a defendant’s strategy — to abandon representation in the midst of the trial, as well as a desire to “avert[] delay and confusion” … . Such concerns were not an issue here, however, and it is clear that, under appropriate circumstances and following sufficient inquiry, mid-trial requests to proceed pro se may be granted … . Based upon our review of the record as whole, and taking into consideration defendant’s insistence that he be allowed to proceed pro se, we are satisfied that County Court did not abuse its discretion in considering the merits of defendant’s request.

As to the sufficiency of County Court’s inquiry, suffice it to say that County Court — repeatedly and in great detail — apprised defendant of the perils and pitfalls of proceeding pro se and went to great lengths to dissuade defendant from doing so. Specifically, County Court cautioned defendant that, while he may have been well versed with the facts of his case, “[t]he practice of law [was] not a simple process” and entailed education and experience that defendant did not possess. County Court went on to note the then-impending testimony of the People’s handwriting and DNA experts and suggested that defendant consider the legal expertise that counsel could bring to examining those witnesses. Additionally, County Court advised defendant that, if he proceeded pro se, he would be held to the same standard as an attorney and would be responsible for the “day-to-day operation of the [trial],” which would include making appropriate objections and motions, cross-examining the People’s witnesses, conducting his defense and preparing a summation. In this regard, County Court expressly warned defendant that his ability to introduce certain evidence or effectively argue any applicable motions likely would be hampered by his lack of legal training, and defendant was afforded ample opportunity to consider (and reconsider) his request and to discuss the matter with counsel.

To be sure, County Court’s inquiry could have been more seamless, but the Court of Appeals has expressly rejected a strict, formulaic approach in this regard, requiring only that the record as a whole “affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . People v Dashnaw, 2014 NY Slip Op 02624, 3rd Dept 4-17-14

 

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Temporary Restraining Order Prohibiting Broadcast About a Murder of Which Plaintiff Was Convicted Constituted Impermissible Prior Restraint of Speech

The Third Department determined the temporary restraining order granted by Supreme Court, which prohibited the broadcast of a movie about a murder of which plaintiff was convicted, constituted an impermissible prior restraint of free speech:

“A ‘prior restraint’ on speech is ‘a law, regulation or judicial order that suppresses speech . . . on the basis of the speech’s content and in advance of its actual expression'” … . It is well settled that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” … . As explained by the United States Supreme Court, “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them . . . beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable” … . Although the prohibition against prior restraint is not absolute, any restraint on speech comes with “a ‘heavy presumption’ against its constitutional validity” … . Censorship in advance of publication will be constitutionally tolerated only upon “a showing on the record that such expression will immediately and irreparably create public injury” … .

Plaintiff has failed to show such immediate and irreparable public harm. “Romeo Killer: The Christopher Porco Story” purports to depict the events leading up to and surrounding plaintiff’s murder trial, a matter of significant public interest. Its broadcast would not create the type of imminent and irreversible injury to the public that would warrant the extraordinary remedy of prior restraint. Rather, any alleged harm or injury flowing from the content of the film would be limited to plaintiff alone. That portions of the movie may be fictionalized, dramatized or embellished does not constitute a sufficient basis for the imposition of a prior restraint enjoining its broadcast … . While judicial redress following publication is available if it is ultimately proven that defendant abused its rights of speech, it was constitutionally impermissible under these circumstances to forbid that speech prior to its actual expression… . Porco v Lifetime Entertainment Servs LLC, 2014 NY Slip Op 02641, 3rd Dept 4-17-14

 

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Explicit Terms of the Controlling Statute Required that Petitioner Be a Party to a Written Agreement In Order to Be Eligible for an Empire Zone Tax Credit/Therefore, Even though Petitioner Made the Required “Payment In Lieu of Taxes” Pursuant to a Sublease from a Party to the Agreement, Petitioner Was Not Eligible for the Credit

The Third Department determined the controlling statute required a written agreement between a qualified empire zone enterprise (QEZE) and the Town of Rotterdam Industrial Development Agency (IDA)  in order to be eligible for an empire zone tax credit.  Because the petitioner was not a party to the “payment in lieu of taxes (PILOT)” agreement, the tax credit was not available to it, even though the petitioner made the PILOT payments pursuant to a sublease from a party to the agreement (FM Ventures):

For the tax years in dispute, Tax Law former § 15 (e) set forth three types of payments that constituted eligible real property taxes for purposes of an empire zone credit. Two involved payment of taxes; first, by a QEZE that owned the real property and, second, a QEZE that was a lessee of real property. The third applied to petitioner’s situation since it addressed PILOT payments by a QEZE. It provided in relevant part: “In addition, the term ‘eligible real property taxes’ includes [PILOTs] made by the QEZE to the state, a municipal corporation or a public benefit corporation pursuant to a written agreement entered into between the QEZE and the state, municipal corporation, or public benefit corporation” (Tax Law former § 15 [e] [emphasis added]).

The pertinent language affirmatively requires in clear terms that, to qualify for the credit under such provision, the PILOT payments must be made pursuant to a written agreement between the QEZE and the appropriate entity. Here, FM Ventures had entered into the August 2005 PILOT agreement with the IDA. Petitioner was not a party to that agreement. Although petitioner’s separate agreement with FM Ventures provided that petitioner would make the payments and the various entities may have desired to structure the transactions so that petitioner could receive the empire zone tax credit, unfortunately petitioner’s PILOT payments do not qualify for such credit under the statutory language. It was petitioner’s burden to show that it was clearly entitled to the credit and, in fact, the statute manifestly provides otherwise. We cannot, under long settled principles of statutory interpretation, essentially rewrite an unambiguous provision of a statute by ignoring explicit language, no matter how equitable such a result may appear … . Matter of Golub Corp v New York State Tax Appeals Trib, 2014 NY Slip Op 02638, 3rd Dept 4-17-14

 

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No Duty to Defend Where Causes of Action Are Excluded from Coverage Under the Terms of the Policy

The Third Department determined that the terms of two insurance policies prohibited plaintiff’s suit for a declaration the insurance companies had a duty to defend and indemnify plaintiff.  The causes of action brought against plaintiff (tortious interference with contract, unfair and deceptive trade practices and misappropriation of trade secrets) did not constitute a violation of “a person’s right to privacy” within the meaning of the policies. And the causes of action explicitly excluded from coverage, therefore the insurance companies were not obligated to provide a defense:

…[P]laintiff’s actions —–tortious interference with contract and business relations, unfair and deceptive trade practices and misappropriation of trade secrets –do not constitute a violation of “a person’s right of privacy” within the meaning of either Twin City’s or CastlePoint’s policy.

…[I]it is well settled that “[a]n insurer need not provide a defense . . . when it demonstrates that the complaint’s allegations cast that pleading solely and entirely within the policy exclusions, and further, that . . . the allegations, in toto, are subject to no other interpretation” … . Here, Twin City relies upon three exclusions relative to the personal and advertising injury coverage otherwise afforded by its policy — the intentional conduct exclusion, the breach of contract exclusion and the trademark exclusion [FN4]. In the context of an insurance policy, “the phrase ‘arising out of’ is ordinarily understood to mean originating from, incident to, or having connection with . . . [and] requires only that there be some causal relationship between the injury and the risk for which coverage is provided or excluded” … . Without belaboring the point, suffice it to say that our review of the underlying complaint leads us to conclude that all of the allegations contained therein with respect to plaintiff fall within at least one of the cited exclusions. Accordingly, coverage was properly denied for this reason as well. Sportsfield Specialties Inc v Twin City Fire Ins Co, 2014 NY Slip Op 02646, 3rd Dept 4-17-14

 

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Complaint Stated Causes of Action for a Constructive Trust and Quantum Meruit

Plaintiff alleged the expenditure of resources for the development of a quarry on defendant’s land. Defendant had changed the locks to the property and refused plaintiff further access. In determining that plaintiff had stated causes of action for a constructive trust and quantum meruit, the Third Department explained the relevant criteria:

Supreme Court correctly denied the motion to dismiss the cause of action seeking to impose a constructive trust on the business property. This equitable remedy may be imposed “when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest” … . To prove entitlement to this relief, a plaintiff must establish “a confidential or fiduciary relationship, a promise, a transfer in reliance thereon and unjust enrichment” … . The element of transfer has been interpreted to include the expenditure of effort and resources in reliance upon a promise to share in a property interest … .

Here, the complaint alleges that plaintiff had a confidential or fiduciary relationship with defendant, that defendant made promises that plaintiff and defendant had a partnership and that plaintiff had vested rights and interests in the quarry business and property, that plaintiff relied on these promises and the fiduciary relationship in contributing resources to develop the business, and that defendant breached these promises and would be unjustly enriched in the absence of a constructive trust. Deeming these allegations to be true, construing them liberally, and granting plaintiff the benefit of every favorable inference, as we must …, we find that the amended complaint adequately states a cause of action for the imposition of a constructive trust… .

The cause of action in quantum meruit requires a showing of “a plaintiff’s performance of services in good faith, acceptance of those services by a defendant, an expectation of compensation and proof of the reasonable value of the services provided” … . The complaint alleges that plaintiff acted in good faith and in the expectation of compensation in making the previously-discussed contributions to the business, that defendant accepted its services and contributions, and that plaintiff has been damaged in the amount of the reasonable value of its contributions. Plaintiff further submitted the affidavit of its principal (see CPLR 3211 [a] [7]…) , alleging that plaintiff contributed more than $200,000 toward the business as well as all of the knowledge, labor, equipment and other resources necessary for its development, that a substantial amount of processed material that it had paid to create remained on the property when plaintiff was locked out in 2011, and that defendants have continued to benefit from plaintiff’s contributions thereafter by selling materials from the business without compensating plaintiff accordingly. Thus, despite defendants’ contention that plaintiff’s services were performed primarily for its own benefit, we agree with Supreme Court that the complaint states a cause of action in quantum meruit … . Rafferty Sand & Gravel LLC v Kalvaitis, 2014 NY Slip Op 02656, 3rd Dept 4-17-14

 

Displaying What Appeared to Be a Firearm to Someone Other than the Robbery Victim During Flight from the Robbery Scene Supported Second Degree Robbery Conviction

After noting that merely telling the cashier he had a gun was not enough to meet the criteria for displaying a firearm in the course of a robbery, the Third Department determined that defendant’s “displaying” of what “appeared to be” a firearm to someone other than the victim of the robbery, as he was fleeing from the store he robbed, was sufficient to support his conviction for robbery in the second degree:

To prove the display element, “[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display” … . While the object displayed need not in fact be a firearm …, “it must appear to the victim by sight, touch or sound that he [or she] is threatened by a firearm” …. The display requirement “cannot be read so broadly as to include mere statements that a robber is armed with a gun” … . While such statements can give meaning to a robber’s otherwise ambiguous actions, such as “a hand consciously concealed in clothing” …, “words alone will not constitute a display of what appears to be a firearm” … .

Here, the cashier testified that defendant said the word “gun” when demanding that she turn over the money, but she did not testify to witnessing any action on his part that would constitute a display of a firearm, nor did she testify that she believed he possessed a firearm. Thus, her testimony is insufficient to establish that defendant displayed a firearm during the robbery. But the inquiry does not end there. Although several cases address the issue as whether the victim perceived the gun …, the statute does not mention to whom the apparent weapon must be displayed (see Penal Law § 160.10 [2] [b]; …). The language of the statute — namely, that the display can occur in the course of “immediate flight” from the robbery and not just during the commission thereof — implies that the display may be directed at an individual other than the victim of the robbery, with the implication that the apparent weapon must be displayed for the purpose of allowing the defendant to deter someone from attempting to either recover possession of the stolen property or impede the defendant’s escape (Penal Law § 160.10 [2] [b]). People v Colon, 2014 NY Slip Op 02626, 3rd Dept 4-17-14

 

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Res Ipsa Loquitur Doctrine Raised Question of Fact About Whether Anesthesiologist, Who Was Alone With the Unconscious Decedent at the Time of Death, Was Negligent

The Third Department noted that the doctrine of res ipsa loquitur raised a question of fact about whether an anesthesiologist (Waid) was negligent:

…[P]laintiff submitted a detailed expert affidavit … . The expert opined that Waid, through overinflation or improper insertion of the endotracheal tube, caused the hemorrhage that immediately led to decedent’s death. Although the exact source of bleeding was never identified, the expert explained possible ways that Waid may have caused the hemorrhage and stated that such bleeding does not ordinarily occur in the absence of negligence, Waid had exclusive control over decedent’s body and the medical instrumentalities at the time, and decedent was unconscious so he could not have contributed to the situation. Therefore, questions of fact exist and plaintiff may rely on the doctrine of res ipsa loquitur to attempt to establish Waid’s negligence… .  Cole v Champlain Val Physicians’ Hosp Med Ctr, 2014 NY Slip Op 02654, 3rd Dept 4-17-14

 

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