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PLAINTIFF’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE CASE WAS NOT CONCLUSORY OR SPECULATIVE AND RAISED A QUESTION OF FACT SUFFICIENT TO DEFEAT DEFENDANTS’ SUMMARY JUDGMENT MOTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the plaintiff’s expert evidence in this medical malpractice case was not conclusory or speculative and was sufficient to raise a question of fact. The decision is fact-specific and far too detailed to fairly summarize here:

… [T]he internist [plaintiff’s expert] specifically opined that earlier intubation …  would have produced a “70% chance of survival” by preventing the anoxic brain injury and allowing the sepsis, respiratory distress and ARDS symptoms to be treated. The internist also stated that earlier intubation would have made it “more likely than not” that decedent’s “clinical condition would have improved.” When giving plaintiffs the benefit of all reasonable inferences as the nonmoving parties, a rational juror could infer that decedent would have had a better chance at recovering from the necrotizing pancreatitis and related sepsis and ARDS if she had been intubated … prior to the second rapid response event … . Thus, we conclude that the internist’s affidavit was sufficient to raise a triable issue of fact as to causation, warranting denial of defendants’ summary judgment motion … . Sovocool v Cortland Regional Med. Ctr., 2023 NY Slip Op 03826, Third Dept 7-13-23

Practice Point: Although this med mal decision is fact-specific, it provides some insight into when an expert’s affidavit can be rejected as conclusory or speculative. The affidavit here was deemed sufficient to raise a question of fact.

 

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THE NEW YORK STATE CONSTITUTION REQUIRES THAT THE INDEPENDENT REDISTRICTING COMMISSION SUBMIT A SECOND VOTING-DISTRICT REDISTRICTING PLAN AFTER THE REJECTION OF THE FIRST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that the Independent Redistricting Commission (IRC) was required by statute to submit a second voting-district redistricting plan after the rejection of the first. The opinion provides a detailed analysis of the constitutional, legislative and administrative measures taken to reform the manner in which voting-district maps are drawn:

The IRC had an indisputable duty under the NY Constitution to submit a second set of maps upon the rejection of its first set (see NY Const, art III, § 4 [b]). The language of NY Constitution, article III, § 4 makes clear that this duty is mandatory, not discretionary. It is undisputed that the IRC failed to perform this duty. Matter of Hoffmann v New York State Ind. Redistricting Commission, 2023 NY Slip Op 03828, Third Dept 7-13-23

Practice Point: The constitutional, statutory and regulatory requirements for the approval of a voting-district redistricting plan are explained in depth.

 

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AFTER DECLARING A MISTRIAL, THE JUDGE DID NOT DISMISS THE INDICTMENT OR AUTHORIZE A NEW INDICTMENT; THE SUPERSEDING INDICTMENT WAS THEREFORE A NULLITY; BECAUSE THE DEFENDANT WAS CONVICTED OF TWO COUNTS IN THE SUPERSEDING INDICTMENT WHICH WERE IN THE ORIGINAL INDICTMENT (WHICH WAS STILL VALID) THOSE CONVICTIONS WERE ALLOWED TO STAND; THE CONVICTION ON THE COUNT WHICH WAS NOT IN THE ORIGINAL INDICTMENT WAS REVERSED; DOUBLE JEOPARDY DOES NOT ATTACH AFTER A MISTRIAL (THIRD DEPT).

​The Third Department, reversing defendant’s conviction on one of three counts, determined the superseding indictment which came down after a mistrial on the original indictment was a nullity because the trial judge did not dismiss the original indictment or authorize the People to re-present a new indictment. The issue was not preserved and the Third Department considered it in the interest of justice. Because defendant had been convicted of two counts which were in the original indictment, those convictions were allowed to stand because the original indictment was never dismissed. The Third Department noted that double jeopardy principles do not attach to a mistrial. The conviction on the third count, which was not in the original indictment, was reversed:

… [B]ecause the court did not, upon declaring the mistrial on the original indictment, “dismiss the indictment or authorize the People to re-present a new indictment to the [g]rand [j]ury[,] . . . the People were limited to retrying defendant upon the same accusatory instrument” … ; thus, the superseding indictment is a nullity … . However, reversal of the judgment of conviction is not required given that both indictments contained two identical counts … . * * * This conclusion, however, does not extend to count 1 of the superseding indictment, charging defendant with criminal possession of a controlled substance in the third degree … , which was not charged in the original indictment; therefore, we reverse that conviction. To the extent that defendant raises double jeopardy concerns, as the first trial ended in a mistrial, double jeopardy principles do not attach … . People v Gentry, 2023 NY Slip Op 03818, Third Dept 7-13-23

Practice Point: If, after a mistrial, the judge does not dismiss the indictment or authorize a new indictment, the original indictment remains. Double jeopardy does not attach.

Practice Point: If, after a mistrial, a superseding indictment is brought without the trial court’s authorization, the superseding indictment is a nullity and the original indictment remains in effect.

 

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, PETITIONER DID NOT MEET ITS BURDEN TO PROVE IT MADE DILIGENT EFFORTS TO ASSIST RESPONDENT MOTHER IN ADDRESSING HER MENTAL HEALTH; MOTHER’S PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined the petitioner did not prove it made diligent efforts toward reunification of mother and child, given mother’s mental health and the incomplete measures to address her mental health needs. Therefore mother’s parental rights should not have been terminated. The facts are far too complex to summarize here:

The petitioning agency “bears the burden of proving . . . that such diligent efforts were made,” and must do so by clear and convincing evidence … . To satisfy that burden, the agency “must develop a plan that is realistic and tailored to fit [the] respondent’s individual situation” … , and “make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … . The petitioning agency “should mold its diligent efforts to fit the individual circumstances so as to allow the parent to provide for the child’s future’ ” … .

… [The] “terms and conditions” placed upon respondent required … that she “undergo a complete mental health evaluation by a licensed professional approved by [petitioner]”; engage in a domestic violence program; attend all of the child’s medical appointments and all scheduled visitation; and “successfully complete Family Services of Chemung County’s Protective Parenting Program.” We agree with respondent and the AFC that petitioner did not prove, by clear and convincing evidence, that it made diligent efforts to assist respondent in satisfying these conditions. Matter of Willow K. (Victoria L.), 2023 NY Slip Op 03730, Third Dept 7-6-23

Practice Point: Here mother had serious mental health issues and the “terms and conditions” imposed upon mother required those issues to be addressed in specific ways. Petitioner did not prove it diligently provided sufficient assistance to mother in her attempts to meet those terms and conditions. Therefore mother’s parental rights should not have been terminated.

 

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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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A ROCKY LEDGE UNDER FOUR INCHES OF WATER IN A NATURAL SWIMMING HOLE SURROUNDED BY IRREGULAR ROCK WAS OPEN AND OBVIOUS AND PLAINTIFF ASSUMED THE RISK OF STRIKING HER FOOT ON THE ROCK LEDGE (THIRD DEPT).

The Third Department, reversing (modifying) the Court of Claims, determined defendant (a state-owned park with a natural swimming area surrounded by irregular rock) was not liable for plaintiff’s injury caused by striking a rock ledge covered by four inches of water. Defendant demonstrated the water was clear and the rock ledge was open and obvious. Defendant further demonstrated the swimming area had been made as safe as possible. In addition plaintiff assumed the risk of swimming there:

The open and obvious nature of the rock shelf obviated any duty on defendant’s part to warn park users of its presence … . * * *

While it may be true that a rocky underwater surface could be less optimal for swimming than an engineered swimming pool, it nevertheless remains the case that claimant’s striking of her foot on a rock ledge was a reasonably foreseeable risk inherent in swimming in the gorge, and the swimming conditions were as safe as they appeared to be … . McQuillan v State of New York, 2023 NY Slip Op 03734, Third Dept 7-6-23

Practice Point: A rocky ledge under four inches of water in a natural swimming hole surrounded by irregular rock was open and obvious. Plaintiff assumed the risk of striking her foot on the rock ledge.

 

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THE SPEEDY TRIAL REQUIREMENTS FOR A JUVENILE DELINQUENCY PROCEEDING WERE VIOLATED (THIRD DEPT).

The Third Department, reversing the juvenile delinquency adjudication and dismissing the petition, determined the speedy trial requirements were violated:

“Where [a] juvenile is not detained, an adjudication on the merits of the petition’s charges, known as the ‘fact-finding’ phase of the process, ‘shall commence not more than [60] days after the conclusion of the initial appearance,’ subject to adjournments for good cause and special circumstances” (…Family Ct Act § 340.1 [2]). A court may adjourn a fact-finding hearing “on its own motion or on motion of the presentment agency for good cause shown for . . . not more than [30] days if the respondent is not in detention” and “[t]he court shall state on the record the reason for any adjournment of the fact-finding hearing” … . However, “a judicial referral for adjustment under Family C[t] Act § 320.6 operates to toll the limitations period set forth in Family C[t] Act § 340.1” … . “Efforts at adjustment . . . may not extend for a period of more than three months without leave of the court, which may extend the period for an additional two months” … .

Here, the record establishes that the initial appearance on the petition was on February 1, 2021, at which time respondent appeared with counsel, was arraigned and entered a general denial to the petition (see Family Ct Act §§ 320.1; 320.4). Measured from the February 1 initial appearance date, 273 days passed before the scheduled November 1, 2021 fact-finding hearing.[FN3] Of the 273 days, tolling for the entire adjustment period of 153 days[*3], leaves 120 days before the scheduled fact-finding hearing, well-beyond the initial 60-day speedy trial period, as well as the 90-day speedy trial period, assuming without deciding that the 30-day adjournment was properly granted (see Family Ct Act § 340.1 [4], [5]). As such, the speedy trial requirements relative to juvenile delinquency proceedings were violated and the petition must be dismissed. Matter of Zachary L., 2023 NY Slip Op 03735, Third Dept 7-6-23

Practice Point: The speedy trial requirements for a juvenile delinquency proceeding, explained in this decision, were violated.

 

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THE DATE BY WHICH AN OPTION TO RENEW A LEASE IS TO BE EXERCISED CAN BE WAIVED BY THE ACCEPTANCE OF AN UNTIMELY ELECTION TO RENEW; THE REQUEST FOR A NEW LEASE WITH THE SAME MATERIAL TERMS DOES NOT AFFECT THE VALIDITY OF THE ELECTION TO RENEW (THIRD DEPT).

​The Third Department, reversing Supreme Court, determined there were questions of fact about whether defendant tenant had exercised its option to renew the lease. The court noted that the date by which an option to renew must be exercised is for the benefit of the landlord and therefore can be waived by the landlord:

… [W]e agree with plaintiff that, to the extent that Supreme Court concluded that defendant could not have exercised the option to renew because the option lapsed after November 30, 2018, that finding was erroneous. Although an “optionee must exercise the option in accordance with its terms within the time and in the manner specified in the option” … , the relevant case law establishes that the notice provision associated with the option was “solely for plaintiff’s benefit as the landlord and may be waived, even in the absence of a written waiver” … . Here, plaintiff’s assertion that he confirmed and accepted defendant’s untimely election constitutes such waiver.

… [W]here an option is exercised and all of the essential and material terms of the parties’ agreement are provided for in the original lease, the fact that a party contemplates “the subsequent execution of a more formal writing [that was] not done will not impair [the] effectiveness” of the election … . Nor would plaintiff’s inquiry as to whether defendant would like a future option to renew render defendant’s exercise of the option conditional … .

The core question is whether defendant exercised its option to renew, as a matter of law. Moore v Schuler-Haas Elec. Corp., 2023 NY Slip Op 03739, Third Dept 7-6-23

Practice Point: The date by which an option to renew a leased is to be exercised is for the benefit of the landlord and therefore can be waived by the acceptance of an untimely election. The request for a new lease with the same material terms does not invalidate the election to renew.

 

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AT THE TIME OF THE JUVENILE’S ADMISSION TO POSSESSION OF STOLEN PROPERTY THE JUDGE DID NOT INFORM HIM OR HIS MOTHER OF THE EXACT NATURE OF HIS “PLACEMENT OUTSIDE THE HOME OR ITS POSSIBLE DURATION” AS REQUIRED BY FAMILY COURT ACT SECTION 3213(1); ORDER REVERSED (THIRD DEPT).

The Third Department, reversing the juvenile’s admission in this juvenile delinquency proceeding, determined the juvenile and his mother were not adequately informed of the consequences of the admission to possession of stolen property:

… [T]he allocution in which respondent admitted to [possession of stolen property] was fatally defective because Family Court … failed to comply with the requirements of Family Ct Act § 321.3 (1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home . . . for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” … . “Inasmuch as the provisions of Family Ct Act § 321.3 (1) are mandatory and cannot be waived, the order must be reversed” … . Matter of Tashawn MM., 2023 NY Slip Op 03745, Third Dept 7-6-23

Practice Point: At the time of a juvenile’s admission in a juvenile delinquency proceeding, the juvenile must be informed of the exact nature of any “placement outside of the home and its possible duration.” The failure to so inform the juvenile requires reversal of the placement order.

 

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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney. 

… [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with appointing an attorney for the children should there be a hearing before it. Petitioner Lawyers for Children had initially contracted with the Office of Court Administration (hereinafter OCA) respecting voluntary foster care placements and, since the legislative changes in 1999, has consistently represented children in New York City who have been voluntarily placed outside of the home. Similarly, petitioner Legal Aid Society contracted with OCA and receives assignments through New York City Family Court. Petitioner Legal Aid Bureau of Buffalo, Inc., likewise, has contracted with OCA and receives funding to represent children in child welfare matters.

In December 2021, respondent Office of Children and Family Services (hereinafter OCFS) promulgated regulations creating the Host Family Homes program, a system for the temporary care of children by pre-vetted volunteers without resorting to the voluntary placement process in the Social Services Law … . * * * Children cared for by a host family under this program were not entitled to assigned counsel, although they could communicate with an attorney … . * * *

… [P]etitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide … . Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2023 NY Slip Op 03747, Third Dept 7-6-23

Practice Point: Lawyers for Children is contractually obligated to provide attorneys in child welfare matters. Lawyer for Children has standing to challenge the Host Family Homes program which places children in foster care without the participation of attorneys.

 

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