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Expert Affidavit in Support of Hospital’s Motion for Summary Judgment Not Sufficient

In this medical malpractice case, the plaintiff alleged a delay in performing an emergency cesarean section resulted in oxygen-deprivation-injury to her baby.  In affirming the denial of summary judgment to the hospital, the Third Department noted that the affidavits submitted on behalf of the hospital did not directly address with substantive facts the evidence of a delay in assembling the surgical team:

To establish a party’s entitlement to summary judgment, a physician’s affidavit “must be detailed, specific and factual in nature” and may not simply assert in conclusory fashion that a defendant complied with the standard of care without relating the contention to the particular facts at issue …. In the absence of any factual discussion of the delay, [the] general assertion that NDH “acted at all times in a prompt, timely, and reasonable manner” lacks specificity. Accordingly, NDH failed to establish its prima facie entitlement to summary judgment, and it is unnecessary to address the sufficiency of plaintiffs’ opposing papers … . Olinsky-Paul v Jaffe, et al, 514904, 3rd Dept 4-11-13

 

 

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Continuing Course of Treatment Doctrine Not Applicable

In a medical malpractice action, plaintiff alleged her pediatrician [Walders] was negligent in failing to properly address the condition of her foot, which turned out to be a symptom of a disorder that went undiagnosed for many years.  In upholding the trial court’s determination that the “continuing course of treatment” doctrine (which would toll the statute of limitations) did not apply, the Third Department explained:

A  “course  of treatment  speaks  to affirmative and ongoing conduct by the physician” which is recognized as such by both the patient and  physician … .Notably, a  “[r]outine examination of a seemingly healthy  patient, or  visits concerning  matters  unrelated  to  the condition  at issue giving rise to  the  claim, are  insufficient to invoke  the  benefit of the  [continuous  treatment]  doctrine” … . Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiff’s mother does not, by itself, establish an ongoing course of treatment … . Dugan v Troy Pediatrics, LLP, 515407, 3rd Dept 4-11-13

 

 

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Appellate Courts Have Jurisdiction Pursuant to Article 78 to Review Denial of Request for Reconsideration of Disciplinary Determination by the Department of Education’s Office of Professional Discipline

The Third Department determined it has jurisdiction, pursuant to CPLR Art. 78, to review the denial of a request for reconsideration of a disciplinary determination by the Director of the Office of Professional Discipline (Department of Education):

Preliminarily, we reject respondent’s assertion that our Court lacks original subject matter jurisdiction over this proceeding. Respondent relies on the fact that only review of “decisions of the board of regents” should be brought to the Appellate Division in the first instance (Education Law § 6510 [5]); all other CPLR article 78 proceedings must be commenced in Supreme Court (see CPLR 7804 [b]; 506 [a], [b]). Here, the Board of Regents never acted upon petitioner’s application because respondent, the Director of OPD, has discretion to determine whether reconsideration of a disciplinary determination is warranted and, only if it is, to then refer the matter to a regents review committee that submits a report to the Board of Regents for a final determination …. We have, however,  previously held that where, as here, respondent  denies an  application for reconsideration, thereby determining  that it does not warrant referral to the Board of Regents, this Court has jurisdiction to review such denial under Education Law § 6510 (5)… .  Matter of Reddy v Catone…, 514467, 3rd Dept 4-11-13

 

 

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Immunity for Land Owners Allowing Use of Land by Snowmobilers

Plaintiff’s decedent was killed while riding a snowmobile on a trail on privately owned land.  Plaintiff’s snowmobile struck the side of a tractor-trailer carrying logs.  The private logging road where the accident occurred was also used as a snowmobile trail.  Plaintiff sued the owner of the land.  The Third Department upheld the trial court’s ruling that the landowner was immune from suit under General Obligations Law 9-103, because the statutory “consideration exception” did not apply.  Plaintiff contended that certain “recreational leases” (for hunting and fishing) constituted “consideration” for the use of the trail, triggering the immunity exception.    The Third Department determined those leases had nothing to do with snowmobiling and noted:

General Obligations Law § 9-103 provides immunity, subject to certain exceptions, to landowners, lessees and occupiers who make their land available to the public for various enumerated recreational  activities, including  snowmobiling. As relevant here, the consideration exception provides that immunity does not exist “for injury suffered in any case where permission . . . was granted  for a  consideration, other  than  the  consideration, if any, paid to said landowner by the state or federal government” (General Obligations Law § 9–103 [2] [b]). It is the plaintiff who has the burden of establishing that the  claimed exception applies and, as the Court of Appeals has instructed, we must strictly construe the exception so as not to defeat the statute’s broad purpose … .  Ferland … v GMO Renewable Resources LLC, et al, 514045, 3rd Dept 4-11-13

 

 

“Indirect Audit” to Determine Cash Receipts in Restaurant Okay

The audit division of the Department of Taxation and Finance found the petitioner’s cash sales receipts inadequate to perform an audit.  The audit division therefore used a one-day “indirect audit” to estimate what petitioner’s cash sales were (a one-day observation of the operation of the restaurant).  In upholding the method used by the audit division to determine under-reporting of cash receipts, the Third Department wrote:

Where,  as here, a  taxpayer fails to maintain sufficient records, the Division may  resort to an  indirect audit and  the taxpayer challenging such an  audit has  the “burden of  establishing by  clear and  convincing evidence  that the audit method or tax assessment [was] erroneous” … .   Although  a  longer audit period might have produced a more accurate representation of petitioner’s business activity, nonetheless petitioner failed to meet  its heavy  burden of establishing the unreasonableness or inaccuracy of the length used and method employed by the Division in its indirect audit under  the circumstances … .  Matter of Hwang v Tax Appeals Tribunal …, 512991, 3rd Dept 4-11-13

 

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Conduct in Prison Justified Upward Departure (SORA)

The Third Department upheld the SORA court’s upward departure from the SORA guidelines based upon the defendant’s exhibitionist sexual conduct in prison.  The Third Department wrote:

Even if, under factor 13, defendant had been assessed the full 20 points for unsatisfactory conduct while confined “with sexual misconduct” (for a total of 55 points, still a presumptive level I), as he urges should have occurred instead of an upward departure, this factor still would not adequately take into consideration the public nature of this conduct and the use of children’s images  to facilitate his arousal. People v Walker, 513776, 3rd Dept, 4-11-13

 

 

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Criteria for Motion to Vacate Based on Newly Discovered Evidence Explained

In upholding the trial court’s denial (without a hearing) of a 440 motion to vacate the defendant’s conviction based upon newly discovered evidence (i.e., a statement made by a juror to an investigator), the Third Department wrote:

Nor do we discern any error in County Court’s summary denial of that part of defendant’s motion that was based upon his claim of newly discovered evidence.  As relevant here, “[t]o justify vacatur under  CPL  440.10 (1) (g), the newly  discovered evidence ‘must . . . be  such  as will probably change the result if a new  trial is granted . . . [and] be  material to the issue'” …. A hearing is not necessary when the court can “adequately review the matter based upon the contents of the record and the motion papers”… .  People v Carter, 104989, 3rd Dept 4-11-13

 

 

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New Factual Claim Made for the First Time at Trial by Defendant Triggered “Inconsistent Statements” Jury Charge; Prior Injuries to Child Admissible under Molineux

In this case the defendant was convicted of manslaughter in the death of a three-year-old child.  In his statement to the police, the defendant said the child fell while she was in the shower. At trial the defendant testified the child also fell on the stairs.  The trial court gave an “inconsistent statements” charge to the jury, finding it would have been reasonable and logical for the defendant to have mentioned the fall on the stairs in his statement to police.  In upholding the trial court, the Third Department wrote:

In its general instructions to the jury, County Court included a charge regarding a witness testifying to a fact that the witness omitted at a prior time when it would have been reasonable and logical to have stated the fact (see CJI2d[NY] Credibility of Witnesses  [Inconsistent Statements]).Defendant contends that this constituted error. Defendant had given a detailed voluntary statement to police regarding the pertinent events surrounding the victim’s death. He did not include in that statement an account of the victim purportedly falling on the stairs while coming to eat lunch, but he testified regarding such event at trial. Since it would be reasonable to expect defendant to mention all potential injuries sustained by the victim while in his care that day, including this charge did not constitute reversible error.

In addition, the Third Department found no error in the trial court’s allowing evidence of prior injuries revealed by the autopsy and two injuries incurred by the child when she was in defendant’s care.  This evidence of “similar uncharged crimes” was deemed admissible under Molineux to demonstrate “the absence of an accident” as the cause of the child’s injuries.  People v Tinkler, 103766, 3rd Dept 4-11-13

 

 

 

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Procedure for Testing Adequacy of Causes of Action in Article 78 Petition; Criteria for Bad Faith Abolishment of Position

The Third Department upheld Supreme Court’s determination that the petitioner had stated a cause of action in his Article 78 proceeding for bad faith abolishment of his tenured Assistant Superintendent position.  The Third Department noted that the proper criteria for analysis in this Article 78 proceeding is the same as in a pre-answer motion to dismiss under CPLR 3211:

In a CPLR article 78 proceeding, objections in point of law may be raised either through  a pre-answer motion  to dismiss or – as here – in the verified answer  (see CPLR  7804  [f]). Such objections are appropriately afforded review similar in nature to that applied to defenses raised in a pre-answer motion to dismiss pursuant to CPLR 3211 (a).  *  *  *

A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it “has made a good faith determination based on economic considerations” … . *  *  * We agree with Supreme Court that [petitioner’s] specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of his position “was motivated by reasons other than a desire to promote institutional efficiency and economy” and thus state a cause of action … .  Matter of Lally v Johnson City School District, 515488, 3rd Dept 4-4-13

 

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