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February Page I

Summaries of recently released decisions to be included in the next issue of the Digest (uncorrected)



Malpractice Cause of Action Stated Against an Attorney Who Died Just Before the Statute of Limitations on Plaintiffs’ Action Ran Out


In a full-fledged opinion by Justice Tom, the First Department determined that plaintiffs had stated a valid malpractice claim against an attorney who died just before the statute of limitations expired:


That a cause of action might accrue when the plaintiff actually sustains a loss, however, does not require the conclusion that an attorney is absolved of responsibility for any and all consequences of his neglect of the matter simply because it occurred prior to accrual of an actionable claim. Giving plaintiff the benefit of every possible favorable inference that can reasonably be drawn from the pleadings … , as we must on a pre-answer motion to dismiss … it appears that the inaction of counsel rendered the lapse of plaintiff's cause of action not merely possible---or even probable---but inevitable. On a motion directed at the sufficiency of the pleadings, the issue is whether the facts alleged fit within any cognizable theory of recovery, not whether the complaint is artfully pleaded …, and the circumstances of this matter do not warrant dismissal of the action, at this juncture, as against the … defendants. Cabrera v Collazo, 2014 NY Slip Op 00622, 1st Dept 2-4-14





Stipulation of No Contact Rendered Performance of Contracts Impossible/Contracts Rescinded


In a full-fledged opinion by Justice Acosta, the First Department determined that a stipulation entered into in Family Court, which prohibited all contact between the plaintiff, a well-known jazz singer, and defendant, the owner of a jazz club, made the performance of the contracts entered into by the plaintiff and defendant impossible.  Plaintiff was therefore entitled to rescission of the contracts.  Plaintiff and defendant (Valenti) had been in a romantic relationship which fell apart and plaintiff initially sought an order of protection from Family Court:


"[I]mpossibility excuses a party's performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Moreover, the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract" … . The excuse of impossibility is generally "limited to the destruction of the means of performance by an act of God, vis major, or by law" … .


In this case, performance of the contracts at issue has been rendered objectively impossible by law, since the stipulation destroyed the means of performance by precluding all contact between plaintiff and Valenti except by counsel… . Kolodin v Valenti, 2014 NY slip Op 00745, 1st Dept 2-6-14





Florida Choice of Law Provision Re: Covenants Not to Compete Unenforceable in New York/the Nonsolicitation Covenant at Issue Was Overbroad and Unenforceable


In a full-fledged opinion by Justice Whalen, the Fourth Department determined that Florida law re: covenants not to compete was “truly obnoxious” to New York law and the nonsolicitation covenant at issue was overbroad and unenforceable:


…[W]e conclude that Florida law prohibiting courts from considering the hardship imposed on the person against whom enforcement is sought is “ ‘truly obnoxious’ ” to New York public policy …, inasmuch as under New York law, a restrictive covenant that imposes an undue hardship on the employee is invalid and unenforceable for that reason ‘’’ .  Furthermore, while New York judicially disfavors such restrictive covenants, and New York courts will carefully scrutinize such agreements and enforce them “only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained”…, Florida law requires courts to construe such restrictive covenants in favor of the party seeking to protect its legitimate business interests (see Florida Statutes § 542.335 [1] [h]). * * *


A non-solicitation covenant is overbroad and therefore unenforceable “if it seeks to bar the employee from soliciting or providing services to clients with whom the employee never acquired a relationship through his or her employment” … .  Here, the non-solicitation covenant purported to restrict [defendant] from, inter alia, soliciting, diverting, servicing, or accepting, either directly or indirectly, “any insurance or bond business of any kind or character from any person, firm, corporation, or other entity that is a customer or account of the New York offices of the Company during the term of [the] Agreement” for two years following the termination of Johnson’s employment, without regard to whether defendant acquired a relationship with those clients. We conclude that the language of the non-solicitation covenant renders it overbroad and unenforceable … . Brown and Brown Inc… v Johnson…, 1109, 4th Dept 2-7-14





Trial Court’s Failure to Address Defendant’s Requests to Proceed Pro Se Required Reversal


The First Department determined defendant had been deprived of his constitutional rights when the trial court failed to conduct a “dispassionate inquiry” in response to defendant’s repeated requests to proceed pro se:


A criminal defendant's right to represent himself is a fundamental right guaranteed by both the federal and state constitutions. "[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so" … . The only function of the trial court, in assessing a timely request to proceed pro se, is to ensure that the waiver was made intelligently and voluntarily …. . This requirement is not satisfied "simply by repeated judicial entreaties that a defendant persevere with the services of assigned counsel, or by judicial observations that a defendant's interests are probably better served through a lawyer's representation" … .


Defendant's requests to proceed pro se were denied by the court without any inquiry whatsoever. People v Lewis, 2014 NY Slip Op 00592, 1st Dept 2-4-14





Failure to Address Youthful Offender Eligibility Required Remittal


The Fourth Department determined the trial court did not consider whether the defendant should be adjudicated a youthful offender and sent the matter back:


At sentencing, defense counsel made several applications for defendant to be treated as a youthful offender, but the court did not expressly rule on them; instead, the court imposed a sentence that was incompatible with youthful offender treatment. 


“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant.  After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  A sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it because, inter alia, “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … .  “[W]e cannot deem the court’s failure to rule on the. . . [applications] as . . . denial[s] thereof” … .  Furthermore, even if the court had denied the applications, there is no information in the record from which we could ascertain whether the court properly did so in the exercise of its discretion, or whether it improperly acceded to the prosecutor’s plea conditions.  People v Potter, 1199, 4th Dept 2-7-14




Failure to Turn Over Brady Material Until the Day of Trial Required Reversal


The Fourth Department determined the prosecution’s failure to turn over Brady material (911 tape recording) until the day of trial required reversal:


“To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material . . . In New York, where a defendant makes a specific request for [an item of discovery], the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … .  


Here, the 911 recording is exculpatory because it includes the voice of an unidentified person referring to a white male suspect, and defendant herein is a black male.  Although defendant received the 911 recording as part of the Rosario material provided to him on the first day of trial, he was not “given a meaningful opportunity to use the exculpatory evidence”… . People v Carver, 1311, 4th Dept 2-7-14




Counsel’s Failure to Object to References to Defendant’s Nickname Constituted Ineffective Assistance/Court’s Dismissal of an Entire Jury Panel Was Reversible Error


The Fourth Department reversed defendant’s conviction finding defense counsel ineffective for failure to object to the repeated references (by witnesses and the prosecutor) to the defendant’s nickname “killer.”  In addition, the Fourth Department determined the trial judge committed reversible error when he dismissed an entire jury panel:


Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” (…see CPL 270.05 [2]).  By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial …, the court deprived defendant of a jury chosen “at random from a fair cross-section of the community” (Judiciary Law § 500…). People v Collier, 8, 4th Dept 2-7-14




Court Was Not Authorized to Deny a 440 Motion Without a Hearing Where People Submitted No Opposition to the Defendant’s Adequate Papers


The Fourth Department determined the trial court was not authorized to deny a 440 motion to vacate defendant’s conviction without a hearing because the defendant submitted affidavits supporting the motion and the People submitted no opposition:


County Court erred in denying without a hearing defendant’s motion seeking to vacate the judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [1]) on the grounds that material evidence adduced at his trial was false and was known by the prosecutor to be false prior to the entry of judgment and that the judgment was obtained in violation of his due process rights (see CPL 440.10 [1] [c], [h]).  Defendant submitted two affidavits from a prosecution witness that “tend[ ] to substantiate all the essential facts” necessary to support defendant’s claims (CPL 440.30 [4] [b]).  The People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing (see CPL 440.30 [2], [4]) and, therefore, the court “was not statutorily authorized to deny defendant’s motion without a hearing”… . People v Parsons, 48, 4th Dept 2-7-14




Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds


The Fourth Department determined defendant’s 440 motion to vacate his conviction should not have been denied without a hearing:


Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by a court record and are supported by other affidavits, and “it cannot be said that ‘there is no reasonable possibility that [they are] true’ ” …   Specifically, defendant averred that defense counsel advised him that, if he pleaded guilty and cooperated with the District Attorney’s office in its investigation of other criminal matters, he would receive a sentence of no more than five years of incarceration.  Three other people averred that defense counsel told defendant’s fiancé, mother and father that defendant would receive “no more than” a five-year sentence.  At the time of the plea, the court informed defendant that the agreed-upon sentence was a term of incarceration of 10 years, but noted that it would approve a lesser sentence if one were recommended by the People “based upon any cooperation [from defendant that the People] deem[ed] satisfactory and helpful.”  After defendant met with representatives of the District Attorney’s office to fulfill his obligation under the cooperation agreement, the court sentenced him to a term of incarceration of 10 years.  According to defendant, defense counsel miscommunicated to him the level of cooperation necessary for the People to recommend a lesser sentence and misled him concerning what his sentence would be if he entered a plea to the indictment. The affidavits submitted by defendant in support of the motion raise factual issues that require a hearing … .  People v Hill, 108, 4th Dept 2-7-14




Defense Counsel’s Failure to Move for Suppression Constituted Ineffective Assistance


The Fourth Department determined that the failure of defense counsel to make a suppression argument constituted ineffective assistance of counsel:


The facts of this case are similar to those in People v Clermont (22 NY3d 931), where the Court of Appeals held that the defendant was deprived of effective assistance of counsel at his suppression hearing.  The Court reasoned that defense counsel’s failure to marshal the facts adduced at the hearing, “coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  * * *


Here, as in Clermont, suppression was the only viable defense strategy.  Nevertheless, defense counsel inexplicably failed to move for suppression of the cocaine or the knife seized by the police from defendant’s vehicle.  Defense counsel also failed to move for suppression of defendant’s incriminating statement to the officer about the knife, which the court thereafter suppressed in response to defendant’s pro se motion.  Like the attorney in Clermont, defense counsel did not marshal the facts for the court, made no legal argument regarding suppression, and submitted no post-hearing memorandum.  In short, as in Clermont, defense counsel “never supplied the hearing court with any legal rationale for granting suppression” (id. at 933).  People v Layou, 1309, 4th Dept 2-7-14






Verdict Properly Set Aside Based Upon Trial Court’s Own Denial of Defendant’s Request for an Adjournment to Retain New Counsel/Criteria for Trial Court’s Setting Aside a Verdict Explained


The Fourth Department, after explaining the criteria for setting aside a verdict, ruled the trial court had properly set aside the verdict in this case due to the trial court’s own erroneous denial of defendant’s request for an adjournment to seek new counsel:


“Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on ‘[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court’ ” … . “The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact . . . , to reverse or modify a judgment when the verdict is against the weight of the evidence . . . , and to reverse ‘[a]s a matter of discretion in the interest of justice’ ”… . * * *


In our view, the court’s refusal to grant defendant’s request for an adjournment was “an abuse of discretion as a matter of law” and effectively denied defendant the fundamental right to be represented by counsel of his own choosing …   On the date scheduled for suppression hearings, defense counsel, who had been retained by defendant’s family while defendant was incarcerated, withdrew defendant’s requests for suppression and sought an expedited trial without defendant’s knowledge or consent.  At the next court appearance, defendant requested an adjournment of the expedited trial to afford him time in which to retain another attorney.  The court, in denying that request, did not afford defendant “[a] reasonable time and a fair opportunity to secure counsel of his own choice”…, particularly in view of the fact that the trial was expedited without defendant’s knowledge or consent… .  Inasmuch as we conclude that defendant was denied the fundamental right to be represented by counsel of his own choosing, reversal of the judgment of conviction on that ground would be required as a matter of law upon an appeal therefrom (see CPL 330.30 [1]), and the court therefore properly set aside the verdict. People v Rohadfox, 1367, 4th Dept 2-7-14




Unlawful Imprisonment Charge Merged With Assault Charge


The Fourth Department determined the doctrine of judicial merger required dismissal of the unlawful imprisonment charge because it merged with the charged assault:


“Under the doctrine of judicial merger, an unlawful imprisonment or kidnapping that is incidental to and inseparable from the commission of another crime merges with such other crime” … .  In determining whether the merger doctrine applies herein, “our guiding principle is whether [defendant’s] restraint [of the victim] was so much the part of another substantive crime [, i.e., the crime of assault,] that the substantive crime could not have been committed without such acts [constituting the crime of unlawful imprisonment] and that independent criminal responsibility may not fairly be attributed to them” … .  Here, the brief “abduction” of the victim, i.e., the moment when defendant grabbed the victim and pulled him outside the dwelling at issue, was “merely ‘preliminary, preparatory, or concurrent action’ in relation to the ultimate crime [of assault]” …, and we thus conclude that the unlawful imprisonment count merged with the assault count… . People v James, 1314, 4th Dept 2-7-14





Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper


The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:


The court properly admitted a statement made at arraignment by defendant's counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant's authorized agent when she provided this information to the arraignment court for her client's benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client's version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14





Natural Mother Appointed Guardian of Her Children to Facilitate Undocumented Children’s Pursuit of Special Immigrant Juvenile Status


In a full-fledged opinion by Justice Chambers, the Second Department reversed Family Court and awarded mother guardianship of her children so the undocumented children could pursue special immigrant juvenile status (SIJS) to become lawful residents of the United States.  In El Salvador the children had been threatened with death if they did not join a local gang, and the children’s grandmother had been killed by the gang:


The Immigration and Nationality Act, which established SIJS (see 8 USC § 1101[a][27][J]; Pub L 101-649, § 153, 104 US Stat 4978 [101st Cong, 2d Sess, Nov 29, 1990]), employs "a unique hybrid procedure that directs the collaboration of state and federal systems" … . The child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Further, a state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child's best interests to be returned to his or her home country … . Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services (hereinafter USCIS) for SIJS … . In addition, to be eligible for SIJS, the child must be unmarried and under 21 years of age (see 8 CFR 204.11[c][1], [2]). Ultimately, the Secretary of the Department of Homeland Security must consent to the grant of SIJS… . The Secretary's consent ensures that the child is seeking SIJS for the purpose of obtaining relief from abuse, neglect, or abandonment, and not primarily for the purpose of obtaining lawful permanent residency status … . Since ultimately the Secretary must give consent, the Family Court "is not rendering an immigration determination" … .


In the case before us, there are sufficient allegations in the guardianship petitions and supporting papers to suggest that naming the mother as guardian of the subject children would be in their best interests … . * * * Naming the mother as guardian of the children may potentially enable the children to pursue legal status in the United States. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils present in El Salvador … . In sum, assuming the truth of the allegations, we disagree with the Family Court's conclusion that there is "no reason" to appoint the mother as guardian of the children. Matter of Marisol NH 2014 NY Slip Op 00664, 2nd Dept 2-5-14


The Second Department reached the same conclusion in another case decided the same day: Matter of Maura AR-R (Santos FR), 2014 NY Slip Op 00669, 2nd Dept 2-5-14





Redaction of Information Which Could Possibly Endanger Witnesses in a Homicide Investigation Is Required


Over a dissent, the First Department determined that information which could endanger confidential witnesses in a homicide investigation should be redacted from documents released pursuant to a FOIL request:


We agree with the dissent's observation that the public safety exemption of Public Officers Law § 87(2)(f) does not warrant a blanket exception for DD5s …that reveal the identity of individuals (see Gould v New York City Police Dept., 89 NY2d 267, 277 [1996]…). However, the dissent's rationale for release of this information, i.e., that "they may provide further information that would benefit [petitioner’s] case" is at odds with both the public safety and privacy exemptions of Public Officers Law § 87.


The Gould Court recognized that unlimited disclosure of identifying information on the DD5s is not warranted. It stated that "[d]isclosure of such documents could potentially endanger the safety of witnesses, invade personal rights, and expose confidential information of nonroutine police procedures. The statutory exemptions contained in the Public Officers Law, however, strike a balance between the public's right to open government and the inherent risks carried by disclosure of police files" (Gould, 89 NY2d at 278, citing Public Officers Law § 87[2][b], [e], [f]). * * *


…[I]n the context of a homicide investigation, "we do not find that there must be a specific showing by respondents that petitioner, who is presently incarcerated, has threatened or intimidated any of the witnesses in his criminal case . . . in order to warrant redaction of certain identifying information" …. . … "The agency in question need only demonstrate a possibility of endanger[ment]' in order to invoke this exemption" … . In fact, "[e]ven in the absence of such a threat, certain information found in DD-5s could, by its inherent nature, give rise to the implication that its release, in unredacted form, could endanger the life and safety of witnesses or have a chilling effect on future witness cooperation" … . Matter of Exoneration Initiative v New York City Police Dept, 2014 NY Slip Op 00728, 1st Dept 2-6-14





Subcontractor Which Does Not Supervise or Control Injured Worker May Be Liable Under Common Law Negligence Where It Creates an Unreasonable Risk of Harm


In the course of a decision which discussed several Labor Law issues, the Second Department noted when a subcontractor (here MCN) may be held liable under common law negligence, even where the subcontractor has no authority to supervise or control the injured party’s work:


A subcontractor may be held liable for negligence where the work it performed created the condition that caused the plaintiff's injury, even if it did not possess any authority to supervise or control the plaintiff's work or work area … . In response to MCN's prima facie showing with respect to this cause of action, the plaintiff raised a triable issue of fact as to whether MCN's employee created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries… . Van Nostrand v Race & Rally Constr Co Inc, 2014 NY Slip Op 00651, 2nd Dept 2-5-14





Interplay Between New York Labor Law and Federal Longshore Workers’ Compensation Act Discussed


Plaintiff was injured when he fell on a “float stage” which was used to transport workers and materials on navigable waters.  The First Department discussed the interplay between the Labor Law (elevation-related fall) and the Longshore Workers’ Compensation Act:


Since the accident in which plaintiff Joseph Pipia (hereinafter plaintiff) was injured occurred in navigable waters, and plaintiff, an employee who was covered by the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 USC § 901 et seq.), has been receiving benefits thereunder, federal maritime law is applicable to this case … . Plaintiff may not sue his employer, JES, since the LHWCA "precludes recovery of damages against [the injured worker's] employer" …. . …


Plaintiff is also barred from asserting any claims other than Labor Law § 200 and common-law negligence claims against Trevcon, the vessel owner (see 33 USC § 933…). Contrary to plaintiff's contention, the float stage involved in his accident constituted a "vessel" for purposes of the LHWCA … . While it consisted of wooden planks bolted together, had limited weight capacity and could only be moved short distances from the pier, it was regularly used to carry workers and materials around the water. Although it generally was tied to land structures with a line, it sometimes was untied to allow a worker to move to a different location to pick up materials from the pier. … "[A] reasonable observer, looking to the [float stage]'s physical characteristics and activities, would . . . consider it to be designed to [a] practical degree for carrying people or things on water"… . Pipia v Turner Constr Co, 2014 NY Slip Op 00612, 1st Dept 2-4-14





Question of Fact Whether Snow Removal Contractor Created Hazardous Condition by Inadequate Salting


In a slip and fall case, the First Department determined there was a question of fact whether defendant, who contracted to provide snow and ice removal, had created or exacerbated a hazardous ice condition by not adequately salting the ice:


…[T]he record presents a triable issue of fact as to whether Waldorf owed plaintiff a duty of care by having "launched a force or instrument of harm" in failing to exercise reasonable care in the performance of its snow and ice removal duties … . The evidence, including photographs and videos taken at the scene of the accident showing the icy condition and deposition testimony that there was no sand or salt in the area where plaintiff fell, raises questions as to whether Waldorf had adequately salted the … pathway, and therefore, whether it created or exacerbated the hazardous ice condition… . Jenkins v Related Cos LP, 2014 NY Slip Op 00727, 1st Dept 2-6-14




In the Absence of a Defect, Inherently Smooth Floors Do Not Give Rise to Liability


In a slip and fall case, the First Department noted that inherently smooth floors do not give rise to liability in the absence of a defect.  The plaintiff slipped and fell on a cotton bath mat on a smooth bathroom floor:


In cases involving inherently smooth, and thus potentially slippery tiled or stone floors, absent competent evidence of a defect in the surface or some deviation from an applicable industry standard, no liability is imposed … . The same standard applies to allegedly defective bath mats … .


The motion court properly found that defendants made a prima facie showing that the accident was not attributable to a defect in the floor or the bath mat, and that they were therefore entitled to summary judgment. Kalish v HEI Hospitality LLC, 2014 NY Slip Op 00729, 1st Dept 2-6-14




Vehicle Owner’s Uncontradicted Deposition Testimony Not Enough to Overcome Presumption Vehicle Driven with Owner’s Consent


The Second Department determined that the defendant vehicle owner (Witsell) did not overcome the presumption her vehicle was being driven with her consent:


Vehicle and Traffic Law § 388(1) "makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner'”… .. Under this statute, there is a presumption that the operator of a vehicle operates it with the owner's permission … . The presumption may be rebutted by substantial evidence that the owner did not give the operator consent …


Here, Witsell failed to establish her entitlement to judgment as a matter of law. … "The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use" … . Since Witsell failed to meet her initial burden as the movant, the burden never shifted to the party opposing the motion to raise a triable issue of fact… . Ellis v Witsell, 2014 NY Slip Op 00630, 2nd Dept 2-5-14





Medical Malpractice Stemming from “Lack of Informed Consent” Explained/Signing a Generic Consent Form Does Not Preclude Suit


The Second Department determined that a question of fact had been raised about medical malpractice stemming from a lack of informed consent.  The plaintiff’s signing of a generic consent form did not entitle the doctor to summary judgment:


…"[L]ack of informed consent is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence" … . A cause of action premised on a lack of informed consent "is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'" … . Thus, "[t]o establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" … . Walker v Saint Vincent Catholic Med Ctrs, 2014 NY Slip Op 00653, 2nd Dept 2-5-14




Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning Case/Notice Criteria Explained


In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics argument should be rejected.  In addition the Fourth Department explained the notice criteria in lead-paint cases:


We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to “preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” must be dismissed.  “ ‘[A]n evidentiary ruling, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ”… .


[Justice Fahey, in a concurring opinion, wrote:] … I am troubled by the concept that an individual’s family history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay.  I acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose here.  To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a eugenics argument, cannot be countenanced and is something I categorically reject.  


[With respect to notice, the Fourth Department explained:] .  “It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” … .  Under the circumstances of this case, we conclude that there is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment “for such a period of time that, in the exercise of reasonable care, it should have been corrected” …  With respect to constructive notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d 9, 15) wrote that constructive notice of a hazardous, lead-based paint condition may be established by proof “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before leadbased interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.” Heyward v Shanne, 1358, 4th Dept 2-7-14





Malpractice by Chiropractor Governed by Three-Year Statute of Limitations


In a full-fledged opinion by Justice Sweeney, the First Department determined that a malpractice action against a chiropractor (Dr. Fitzgerald) is governed by the three-year statute of limitations (CPLR 214(6)), not the 2 ½ year statute of limitations (CPLR 214-a) governing actions against physicians and those providing medical services at the direction of a physician:


Here, plaintiff was not referred to Dr. Fitzgerald by a licensed physician and Dr. Fitzgerald's chiropractic treatment was not an integral part of the process of rendering medical treatment to a patient or substantially related to any medical treatment provided by a physician. Indeed, plaintiff did not even inform her physicians, including her primary care physician, that she was receiving chiropractic treatment for her neck and back. Further, the record establishes that the treatment provided by Fitzgerald, consisting of adjusting or applying force to different parts of the spine, massages, heat compression, and manipulation of plaintiff's neck, constituted chiropractic treatment (see Education Law § 6551). The fact that defendant provided treatment to the human body to address a physical condition or pain, which may be within the broad statutory definition of practicing medicine (Education Law § 6521), does not, by itself, render the treatment "medical" within the meaning of CPLR 214-a, since the use of such a broad definition would result in the inclusion of many "alternative and nontraditional approaches to diagnosing [and] treating . . . human disease'" which are clearly nonmedical in nature … .


…Here, there is no doubt that Dr. Fitzgerald's treatment was separate and apart from any other treatment provided by a licensed physician and was not performed at a physician's request. Accordingly, as with the psychologist in Karasek [92 NY2d 171], and the optometrist in Boothe [107 AD2d 730], defendant is not entitled to invoke the benefit of the shortened limitations period applicable to medical, dental and podiatric malpractice, and is subject to the three-year statute of limitations of CPLR 214(6). Perez v Fitzgerald, 2014 NY Slip Op 00744, 1st Dept 2-6-14





Accident Occurred Within 15-Day Grace Period Allowed for Repair of Road Defects/City Could Not Be Held Liable


The First Department reversed Supreme Court and held that the 15-day grace period allowed for the repair of an identified roadway defect precluded plaintiff’s lawsuit:


Eight days before plaintiff's accident, a City highway inspector employed by the Department of Transportation prepared a Highway Inspection and Quality Assurance Report identifying a two-inch-deep defect in the street at the location of the accident, and issued a Corrective Action Request for repairs. These documents constitute a "written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition," i.e., one of the three alternative prerequisites to bringing an action against the City for personal injuries caused by a defect in the public street (see Administrative Code of City of NY § 7-201[c][2]…). However, the same provision of the Administrative Code also provides the City with a 15-day grace period within which to repair or otherwise render safe the defective condition (§ 7-201[c][2]). Since the "written acknowledgement" was received by the City only eight days before the accident, this action may not be maintained against the City. Berrios v City of New York, 2014 NY Slip Op 00733, 1st Dept 2-6-14




Under City Administrative Code, Accident Occurred Before Time Had Expired for Property Owner to Address Ice on Abutting Sidewalk/Lessee Did Not Exacerbate the Dangerous Condition/No Liability for Slip and Fall


The Second Department determined that neither the owner nor the lessee of commercial property could be held liable for a slip and fall on ice covering the abutting sidewalk.  Under the Administrative Code of the City of New York the owner had until 11:00 am to address the ice that formed the night before (the accident occurred prior to 11:00 am). And the lessee was not liable because it did not undertake any ice removal efforts which made the condition more hazardous:


"The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so" … . Section 7-210 of the Administrative Code of the City of New York (hereinafter section 7-210) places such a duty on commercial property owners, and imposes tort liability for injuries arising from noncompliance (see Administrative Code § 7-210[a], [b]…). "[T]he language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123" … . Pursuant to Administrative Code section 16-123(a), owners of abutting properties have four hours from the time the precipitation ceases, excluding the hours between 9:00 p.m. and 7:00 a.m., to clear ice and snow from the sidewalk (see Administrative Code § 16-123[a]…). Here, the owners had until 11:00 a.m. on the day of the accident to comply with the ordinance. Since that period had not yet expired at the time of the injured plaintiff's fall, the owners demonstrated, prima facie, that they could not be liable for any failure to clear the sidewalk at the time of the accident … .


The tort liability imposed by section 7-210 extends to "the owner of real property abutting [the subject] sidewalk" (Administrative Code § 7-210[b]). In the absence of a statute or ordinance imposing tort liability on the lessee, it can be held liable only if it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous … . Schron v Jean’s Fine Wine & Spirits Inc, 2014 NY Slip Op 00648, 2nd Dept 2-5-14





Criteria for Review of a Zoning Amendment Explained


In upholding the propriety of the amendment, the Fourth Department explained the criteria for review of a zoning amendment:


It is well settled that a zoning amendment enjoys a “strong presumption of validity” …, and the decision of defendant Common Council of the City to amend the zoning ordinance should not be disturbed where, as here, the amendment is in accordance with the City’s comprehensive plan … .  Further, “[c]ompliance with the statutory requirement is measured . . . in light of the long-standing principle that one who challenges such a legislative act bears a heavy burden” … .  “ ‘If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control’ ” … . “Thus, where the plaintiff fails to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld” … .  Restuccio…v City of Oswego…, 1284, 4th Dept 2-7-14




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