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THE DOCTOR ORDERED A CERTAIN DOSAGE OF MEDICATION BE ADMINISTERED FOR “1” MINUTE TO ADDRESS SYMPTOMS OF A STROKE, BUT A NURSE MISTAKENLY PROGRAMMED THE MACHINE TO ADMINISTER THE MEDICATION FOR “11” MINUTES; THE ACTION SOUNDS IN MEDICAL MALPRACTICE, NOT ORDINARY NEGLIGENCE (THIRD DEPT).

The Third Department determined Supreme Court properly ruled this case sounded in medical malpractice, not ordinary negligence, and explained the difference. Plaintiff had been given the wrong dosage of tPA upon arrival at the hospital to address symptoms of a stroke. Due to a mistake, the machine was programmed to administer a quantity of the drug for “11” minutes, instead of the “1” minute ordered by the doctor. The mistake was noticed after three minutes:

… [T]he case is one of medical malpractice only. “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 distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” … . As relevant here, plaintiffs’ claims are based upon allegations that defendants acted negligently in their medical care and treatment of plaintiff — i.e., defendants’ actions or omissions with respect to the proper dosing of tPA, the progression of the stroke with or without the proper administration of tPA, the medical benefits and risks of tPA based on the proper or improper administration of the medication, and the potential loss of the opportunity to attain tPA’s benefits based on its improper administration. Although it is undisputed that a nurse inadvertently mis-administered the tPA by erroneously programming the pump, she was assisting the physician by administering the prescribed medication and was an integral part of the process of rendering medical treatment to the patient. The nurse’s error does not transform this case to one of simple negligence rather than medical malpractice … . Holland v Cayuga Med. Ctr. at Ithaca, Inc., 2021 NY Slip Op 03896, Third Dept 6-17-21

 

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THE EVIDENCE DID NOT DEMONSTRATE THE DEVELOPMENT OF A PARENT-CHILD RELATIONSHIP BETWEEN RAYMOND F AND THE CHILD; THEREFORE RAYMOND F’S REQUEST FOR A GENETIC MARKER TEST SHOULD NOT HAVE BEEN DENIED (THIRD DEPT).

The Third Department, reversing Family Court, determined Raymond F’s request for a genetic marker test should not have been denied. The evidence did not demonstrate a parent-child relationship such that Raymond F should be equitably estopped from denying paternity:

The application of the doctrine of equitable estoppel does not involve the equities between adult participants to the paternity proceedings … . “Rather, in the context of a paternity proceeding, it is the child’s justifiable reliance on a representation of paternity that is considered and, therefore, the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the subject child” … . …

The trial testimony established that the mother and Trini G., the mother’s boyfriend with whom she and her children lived for nine years (from the time the child was two to three months old), “co-parented” all of the children by contributing financially to their care and feeding, bathing and playing with them. Trini G. referred to the child as “stepson” and the child called him “daddy.” The record established that Reymond F. had no contact with the child since birth, except during sporadic visits between Reymond F. and his two older children. Reymond F. testified that he did not do “anything” with the child during these visits, was not called “dad” and did not call the child “son.” He further testified that he never called the child on the phone, never gave him gifts and never checked on his educational or medical issues. The mother testified that, while she did not encourage the child to have a relationship with Reymond F., the child knew that Reymond F. was his biological father. Matter of Montgomery County Dept. of Social Servs. v Trini G., 2021 NY Slip Op 03489, Third Dept 6-3-21

 

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THE ARBITRATOR EXCEEDED HIS AUTHORITY UNDER THE COLLECTIVE BARGAINING AGREEMENT BY DISMISSING TWO CHARGES BECAUSE OF THEIR PUPORTED FACIAL DEFICIENCIES AND FAILING TO ASSESSS THE EVIDENCE IN SUPPORT OF THE CHARGES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator’s dismissal of two of the disciplinary charges against a corrections officer (Norde) based solely on alleged defects in the charges, as opposed to the relevant evidence, exceeded the arbitrator’s authority under the collective bargaining agreement (CBA):

… [R]espondent complied with the CBA by pleading in the notice of discipline that the exception [to the usual time limits] applied, and by citing and quoting the language of the specific criminal statute that Norde had allegedly violated; respondent would then need to prove the elements of that statute at the hearing to establish the basis of the timeliness exception … . Accordingly, by requiring respondent to prove the underlying crime in the notice to support the CBA’s time exception, the arbitrator essentially added a term to the CBA and, thus, exceeded his authority … . …

… [T]he arbitrator modified the CBA and exceeded his authority by dismissing the first two charges as facially deficient due to an alleged lack of particularization in the notice of discipline. As the charges in the notice were sufficiently stated, the arbitrator should have rendered a determination as to Norde’s guilt based on the evidence presented at the hearing. Matter of New York State Corr. Officers & Police Benevolent Assn., Inc. (New York State Dept. of Corr. & Community Supervision), 2021 NY Slip Op 03504, Third Dept 6-3-21

 

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WHERE THE ORDER DISMISSING A COMPLAINT PURSUANT TO CPLR 3215 AFTER A SEVEN-YEAR DELAY IN SEEKING A DEFAULT JUDGMENT DID NOT SPECIFICALLY SET FORTH CONDUCT DEMONSTRATING A GENERAL PATTERN OF DELAY THE SAVINGS CLAUSE OF CPLR 205 APPLIES AND THE ACTION MAY BE RE-COMMENCED WITHIN SIX MONTHS OF THE DISMISSAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the initial foreclosure action was not dismissed for failure to prosecute and, therefore, the savings provision of CPLR 205 applied. The court noted that the seven-year delay in seeking a default judgment which resulted in the dismissal did not constitute “neglect to prosecute:”

For purposes of the savings provision of CPLR 205 (a), “[w]here a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Here, the first action was dismissed as abandoned pursuant to CPLR 3215 (c). In making this determination, Supreme Court noted that plaintiff waited almost seven years before moving for a default after defendant failed to answer and that plaintiff failed to establish a reasonable excuse for the delay in seeking the default. Therefore … Supreme Court’s order dismissing the first action did not set forth on the record conduct that “demonstrate[d] a general pattern of delay” … . As such, under these circumstances, the second action does not fall outside the savings provision … . * * *

… [T]he Second Department recently ruled that the savings provision was still applicable to a subsequent action when the prior action was dismissed pursuant to CPLR 3215 (c) for failure to move for a judgment against a defendant for “almost seven years” because the trial court did not include findings of specific conduct demonstrating a general pattern of delay in proceeding with litigation … . U.S. Bank N.A. v Jalas, 2021 NY Slip Op 03506, Third Dept 6-3-21

 

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PLAINTIFF ALLEGED THE INCREASED TRAFFIC RELATED TO AN EVENT AT DEFENDANT COUNTRY CLUB CREATED A DANGEROUS CONDITION CONTRIBUTING TO A COLLISION WITH A VEHICLE ATTEMPTING TO ENTER THE COUNTRY CLUB PREMISES; PLAINITIFFS WERE ENTITLED TO DISCOVERY FROM THE COUNTRY CLUB REGARDING CROWD CONTROL, MARKETING, EVENT PLANNING, SAFETY PLANS, ETC. (THIRD DEPT).

The Third Department determined plaintiffs’ motion to compel discovery from defendant country club was properly granted. Plaintiffs were injured in a collision when defendant driver made a left turn across plaintiffs’ lane of travel to enter the country club premises to attend a special event. Plaintiffs alleged that defendant country club did not take adequate measures to control the increased traffic generated by the event, thereby creating a dangerous condition:

Plaintiffs’ complaint alleges a cause of action for negligence based on, as relevant here, breach of a special duty of care by defendant. The crux of plaintiffs’ theory of liability against defendant is that it organized and hosted an event that it knew or should have known would generate a large amount of traffic to the site, but failed to account for the impact of same, and said failure was a proximate cause of plaintiffs’ injuries. A review of plaintiffs’ demands evinces that they generally sought information regarding crowd control, marketing/advertisement materials, ticket sales, minutes concerning the planning of the event, copies of emergency management plans, safety plans and copies of any and all reports of past medical emergencies at the event. For the most part, the demands were concerned with the event held in 2019, as well as those held in the preceding five years. A review of the record reveals that the discovery sought is aimed at determining whether defendant created a dangerous condition by holding a large event, thus increasing vehicular and pedestrian traffic, with notice of the danger and failing to take appropriate precautions … . Rote v Snyder, 2021 NY Slip Op 03508, Third Dept 6-3-21

 

DOCUMENTS CREATED AND HELD BY A PRIVATE ENTITY PURSUANT TO THE REGULATIONS OF A STATE AGENCY ARE NOT “RECORDS” WHICH THE STATE AGENCY MUST DISCLOSE PURSUANT TO THE FREEDOM OF INFORMATION LAW, DESPITE THE FACT THAT THE AGENCY CAN DEMAND PRODUCTION OF THE DOCUMENTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined documents created and held by a private entity (Union) pursuant to a state agency’s (New York Department of Labor’s) regulations regarding apprenticeship programs are not “records” which the Department of Labor is required to produce under the Freedom of information Law (FOIL):

… [R]espondent [New York Department of Labor] did not delegate a duty to the Union nor did the Union perform any essential service on respondent’s behalf. The mere fact that respondent has the discretionary regulatory authority to ask the Union for the requested documents does not, ipso facto, render all documents that are created and maintained by the Union with respect to its apprenticeship programs subject to disclosure (see Public Officers Law § 86 [4]). Practically speaking, to so hold would render any document that was created or maintained by a private entity in order to comply with a corresponding agency regulation requiring the production and retention thereof a “record” subject to disclosure under FOIL (see Public Officers Law § 86 [4]) … . …

Although we recognize that “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” … , we do not find the definition of “record” to be so broad and all-encompassing as to bring within its ambit any document that a private entity might create and maintain pursuant to a state agency’s regulation under the guise that said records are held “for” that agency (see Public Officers Law §§ 86 [4]; 87 [2]; 89 [3] [a] …). Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 2021 NY Slip Op 03509, Second Dept 6-3-21

 

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THERE WERE PARALLEL DISCIPLINARY PROCEEDINGS STEMMING FROM PETITIONER’S ALLEGED ABUSE OF A PSYCHIATRIC PATIENT; THE ARBITRATOR’S FINDING THAT PETITIONER DID NOT ABUSE THE PATIENT WAS ENTITLED TO PRECLUSIVE EFFECT IN THE PARALLEL PROCEEDING (THIRD DEPT).

The Third Department, reversing the determination of the Administrative Law Judge (ALJ) in this employment disciplinary matter, determined the prior finding by the arbitrator in a parallel proceeding that petitioner did not abuse the psychiatric patient was entitled to preclusive effect:

Petitioner’s sole contention on appeal is that the ALJ erred in not giving preclusive effect to the arbitrator’s determination that petitioner’s conduct did not constitute physical abuse. We agree. “The underlying purpose of the doctrines of res judicata and collateral estoppel is to prevent repetitious litigation of disputes which are essentially the same” … . … [R]espondent contends that the issue decided by the arbitrator was not the identical issue before the ALJ. …

Respondent’s “Report of Investigation Determination” and OMH’s [Office of Mental Health’s] notice of discipline were issued four days apart and both referenced the same case number and charged petitioner with physically abusing the service recipient. Although neither the notice of discipline nor the arbitrator’s decision specifically cite the relevant portion of the Social Services Law associated with physical abuse, the arbitrator specifically took notice of said provision at the disciplinary hearing … . … [T]he arbitrator and the ALJ both reviewed the same videos of the underlying incident and petitioner’s interview. Although the arbitrator and the ALJ both agreed that petitioner pushed the service recipient’s head down into the restraint bed, the arbitrator concluded that petitioner was “cradling the neck of [the service recipient] at that time” such that his conduct did not constitute physical abuse. … [T]his was the same factual issue the ALJ later confronted. Matter of Anonymous v New York State Justice Ctr. for the Protection of People with Special Needs, 2021 NY Slip Op 03510, Third Dept 6-2-21

 

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ALL EIGHT OF THE SCHOOL DISTRICTS EXAMINED VIOLATED THE CONSTITUTIONAL REQUIRMENT TO PROVIDE A SOUND EDUCATION TO THE AT-RISK STUDENT POPULATIONS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the plaintiffs established a violation of the constitutional requirement to provide a sound education to the at-risk student population in all of the school districts named in the action—Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie, and Utica:

… [P]laintiffs in this case have demonstrated a … set of coalescing circumstances with respect to the at-risk student population in the subject school districts sufficient to establish a constitutional violation. Each of the subject school districts had a high percentage of at-risk students during the stipulated academic years — those who came from impoverished backgrounds, had disabilities, or whose primary language was one other than English. The compelling evidence demonstrated that, in order to place a sound basic education within the reach of such students, they require early interventions, more time on task and other supplemental programming, as well as support from adequate numbers of guidance counselors, social workers or other similar professionals. Despite these enhanced needs, the districts lacked a combined total of over $1.1 billion in funding … , necessitating further cuts to already diminished staff and essential services. Most unfortunately, the performance of the students in these districts suffered as a result. Working from the premise … that all children can succeed when given appropriate instructional, social and health services, we find — based upon the evidence of inadequate inputs, poor outputs and a causal connection to defendant’s school financing system — that plaintiffs have established a constitutional violation with respect to the at-risk student population in each of the subject school districts. Maisto v State of New York, 2021 NY Slip Op 03350, Third Dept 5-27-21

 

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PURSUANT TO ECL 23-2711, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO ISSUE A MINING PERMIT BECAUSE THE TOWN LAW PROHIBITED MINING (THIRD DEPT).

The Third Department, reversing Supreme Court, over an extensive dissent, determined the mining permit issued by the Department of Environmental Conservation (DEC) must be annulled pursuant to Environmental Conservation Law (ECL) 23-2711 because the local law prohibiting mining. The permit purported to allow the expansion of an existing mining operation:

ECL 23-2703 (3) provides that, in the event that an application for a permit is received from an applicant whose mine falls within an area described in the statute, the agency may not process the application if the local zoning laws prohibit same. ECL 23-2703 (3) is not vague or ambiguous; it is concise and clear. Contrary to all other permit applications received by DEC, an application received from an area protected under ECL 23-2703 (3) must be put on hold until the status of the local laws is determined … . There is no qualification on what type of permit applications must be put on hold; rather, by its certain language, the statute applies to all applications. … . …

ECL 23-2703 (3) clearly recognizes that the local laws of the municipality are determinative as to whether an application can be processed. Here, where it is unchallenged that the Town’s laws prohibit zoning [SIC mining?], DEC cannot process the application, let alone issue the permit. It cannot do by fiat what is prohibited under the law. Therefore, the act of issuing the permits here, in contravention of ECL 23-2703 (3), was arbitrary and capricious. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351, Third Dept 5-27-21

 

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UNDER THE CIRCUMSTANCES OF THE TRAFFIC STOP, THE CORRECT STANDARD TO APPLY TO THE CANINE SNIFF OF DEFENDANT’S PERSON WAS REASONABLE SUSPICION, NOT PROBABLE CAUSE; THE SUPPRESSION MOTION WAS PROPERLY DENIED; THE DISSENT DISAGREED (THIRD DEPT).

The Third Department, over a concurrence and a dissent, determined the canine sniff after a traffic stop was justified by reasonable suspicion. The concurrence argued the court could not reach the proper standard for the canine sniff because the motion court did not rule on it. The dissent argued the probable cause standard should apply:

Defendant correctly asserts that the canine’s contact sniff of his person intruded upon his personal privacy as secured under both the Fourth Amendment of the US Constitution and article 1, § 12 of the NY Constitution … . The question presented is whether the search ran afoul of either constitutional provision and what standard applies to make that assessment — an issue of first impression for this Court.

Considering the context of a vehicle traffic stop and how events unfolded, we conclude that a reasonable suspicion standard should apply, not one of probable cause … . A canine sniff is a minimal intrusion compared to a full-blown search of a person, intended only to detect the possession of narcotics … . Without prompting from [officer] Bracco, the canine twice was “in odor” of its own accord, providing a reasonable and articulable basis for Bracco to suspect that defendant possessed narcotics on his person. Given the necessity for prompt action, it was not unreasonable for Bracco to allow the canine to approach defendant. There was contact between the canine and defendant’s person, but the record suggests that contact was brief and the canine quickly alerted. In these circumstances, we conclude that the search was valid and the suppression motion properly denied. People v Butler, 2021 NY Slip Op 03222, Third Dept 5-20-21

 

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