The Court of Appeals reversed summary judgment to defendant physician vis-à-vis causation, on the ground that defendant’s expert’s affidavit failed to meet defendant’s initial burden on his motion.

Parsing plaintiff’s bill of particulars, a majority of the Court of Appeals (Judges DiFiore, Pigott, Garcia, and Fahey) reversed the First Department’s grant of summary judgment to medmal-defendant physician on proximate causation, on the ground that defendant failed to meet his initial burden on his motion.  The Court of Appeals expressly left open, however, the appropriate standard that governs the opposing party’s burden once the burden shifts to the opposition party in a medmal motion for summary judgment.

Defendant moved for summary judgement on the issue of proximate cause and submitted in support the affidavit of his medical expert which characterized plaintiff’s allegations of malpractice as “center[ed] around an alleged contraindicated prescription by [defendant] to plaintiff of Lipitor separately and/or in conjunction with Azithromycin”.  The majority ruled that plaintiff’s bill of particulars asserted that the negligent CONCURRENT administration of two drugs (Lipitor and azithromycin) proximately caused plaintiff’s injuries, not just that the administration of one drug (Lipitor) exacerbated plaintiff’s adverse reaction to the other (azithromycin).

According to the majority opinion, defendant’s expert did not address the effect of azithromycin administered alone or in conjunction with Lipitor, and addressed azithromycin only in conclusory statements unsupported by any reference to medical research.

In opposition, plaintiff and his experts asserted that defendant’s expert did not adequately address the concurrent azithromycin prescription and did not cite to any medical research in support of his conclusions about the combined effect. Accordingly, plaintiff argued, defendant failed as a matter of law to eliminate all triable issues of fact regarding whether the combined effect of the drugs could have proximately caused plaintiff’s injury (a heart block).

The Court of Appeals sided with plaintiff and held that defendant’s expert proffered only conclusory assertions unsupported by any medical research that defendant’s actions in prescribing both drugs concurrently did not proximately cause plaintiff’s injury and did not adequately address plaintiff’s allegations that the concurrent Lipitor and azithromycin prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the azithromycin prescription, defendant’s expert failed to demonstrate the absence of any material issues of fact as to proximate causation, so defendant was not entitled to summary judgment. And because defendant failed to meet his prima facie burden, it was unnecessary to review the sufficiency of the plaintiff’s opposition papers.

Judge Fahey concurred in the majority decision but wrote separately to emphasize that the Court took no position on the split of authority between the First and Second Departments on plaintiff’s burden of coming forward with evidence once defendant makes his prima facie showing on a motion for summary judgment.

In dissent, Judge Stein, joined by Judge Rivera and Judge Abdus-Salaam, would have affirmed summary judgment to defendant because a fair reading of plaintiff’s bill of particulars showed that plaintiff’s claim centered on plaintiff’s adverse reaction to Lipitor that was exacerbated by prescribing the concurrent administration of Azithromycin.  Because defendant met his initial burden on his motion, the burden should have shifted to plaintiff who failed (in the dissent’s view) to raise a question of fact because of an insurmountable gap between the data relied on by plaintiff’s experts and their conclusion that Lipitor either alone or in conjunction with the other drug caused plaintiff’s injuries. Pullman v. Silverman, 2016 NY Slip Opn 07107 (Nov. 1 2016) http://www.nycourts.gov/reporter/3dseries/2016/2016_07107.htm

Business records – affiant’s failure to assert familiarity with plaintiff’s record-keeping practices and procedures was fatal to plaintiff’s motion for summary judgment of foreclosure.

The Second Department reversed summary judgment of foreclosure to plaintiff and awarded defendant-borrower one bill of costs.

Defendant-borrower had executed a note in favor of Original Lender and a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS) acting as nominee for Original Lender.   Original Lender thereafter assigned the mortgage to plaintiff.   Plaintiff commenced this action alleging that defendant had defaulted on his loan payments.  After commencement of the action, plaintiff then assigned the mortgage to Subsequent Assignee, who continued the prosecution of this action under plaintiff’s name as plaintiff.

Defendant answered and asserted as an affirmative defense that plaintiff lacked standing to commence the action.  Plaintiff moved for summary judgment on the complaint and defendant cross-moved for leave to amend his answer to assert certain counterclaims.  Supreme Court granted plaintiff’s motion for summary judgment on the complaint and denied defendant’s cross motion to amend his answer.

Because defendant challenged plaintiff’s standing to commence the action, plaintiff was required to prove prima facie that it had standing in addition to proving prima facie the other elements of its action (to wit, the mortgage, the unpaid note, and defendant’s evidence of default).  To establish prima facie that plaintiff had standing, plaintiff had to demonstrate that it was the holder or assignee of the underlying note when the action is commenced by showing either a written assignment of or physical delivery of the note.

Here, plaintiff failed to establish prima facie that it had either a written assignment or physical delivery of the note.  Plaintiff submitted the affidavit of the assistant secretary of Subsequent Assignee who stated “pursuant to the business records of” plaintiff, plaintiff had physical possession of the note when it commenced the action.  But the assistant secretary of Subsequent Assignee failed to attest that she was personally familiar with the record-keeping practices and procedures of plaintiff.  So the assistant secretary’s assertions based on those records were inadmissible.

Plaintiff unsuccessfully attempted to cure the omission by submitting in reply the affidavit of its vice president, which could not be considered in reply.   And although plaintiff’s motion papers showed that MERS as nominee had assigned the note and mortgage to plaintiff before the action was commenced, plaintiff failed to establish the note had been delivered to MERS before MERS assigned it to plaintiff.   So because plaintiff failed to meet its prima facie burden, Supreme Court should have denied it summary judgment without regard to the sufficiency of defendant’s opposition papers.

But Supreme Court properly denied defendant’s cross motion for leave to amend his answer to assert counterclaims because the counterclaims were either patently devoid of merit or their belated addition would have prejudiced the plaintiff.  Defendant failed to offer a reasonable excuse for his nearly five-year delay in seeking to add them.

Aurora Loan Services, LLC v. Baritz, 2016 NY Slip Op 07154 (Nov. 2, 2016) http://nycourts.gov/reporter/3dseries/2016/2016_07154.htm.

Plaintiff’s motion made midtrial to challenge the sufficiency of defendant’s expert disclosure was properly denied as untimely.  Defendant’s expert disclosure was made timely and the alleged deficiency was apparent upon receipt.

Plaintiff’s decedent entered defendant hospital with symptoms of pneumonia and died early the next morning after being admitted to an area of the hospital that lacked continuous monitoring of patients’ vital signs. The autopsy report identified the cause of death as bronchopneumonia complicated by diabetes.  Decedent’s mother sued for wrongful death and for conscious pain and suffering.

Defendant had timely served CPLR 3101 (d) expert disclosure which stated without more that the expert would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries and contributing factors.”  Upon receipt of the disclosure, plaintiff had objected solely on the ground that the statement did not provide the dates of the expert’s medical residency, which objection defendant had cured.

At trial, the hospital treating physician testified that decedent’s death was caused in part by pneumonia, but on cross examination stated that he believed decedent instead died from acute cardiac arrhythmia. Plaintiff’s expert also testified that decedent’s death was caused in part by pneumonia, but acknowledged on cross examination that a cardiac event was a possible cause of death.

Immediately before defendant’s expert took the stand, and without requesting an adjournment, plaintiff moved to preclude defendant’s expert from giving any testimony regarding any possible causes of the decedent’s death on the grounds that defendant’s expert disclosure statement did not include “any reasonable detail whatsoever” as to the possible causes of decedent’s death.  The trial court denied the application as untimely. Defendant’s expert then testified that he disagreed with plaintiff’s expert and the autopsy report regarding the cause of death, that decedent’s vital signs instead showed no indication of worsening respiration, that decedent’s other health issues increased his risk for cardiac problems, and that the cause of death was sudden, lethal cardiac arrhythmia.

The jury found defendant liable for failing to place decedent in an area of the hospital with continuous monitoring and awarded plaintiff damages for wrongful death but awarded zero for conscious pain and suffering.  Plaintiff moved under CPLR 4404(a) to strike all testimony about cardiac arrhythmia as the cause of death and to set aside the $0 award for conscious pain and suffering, arguing that the expert disclosure statement failed to include the theory that decedent died of cardiac arrhythmia and so the disclosure was deficient. The trial court again denied the motion as “untimely made at the time of trial.”

The Appellate Division affirmed, holding that plaintiff failed to timely object to the lack of specificity in the expert disclosure statement and that plaintiff was not justified in assuming that the defense expert’s testimony would agree with the autopsy report’s conclusion. The Appellate Division held that where plaintiff’s own proof acknowledged that sudden cardiac arrhythmia was a possibility based on decedent’s medical history and condition, and where evidence in the record supported this theory, the testimony need not be stricken as an unfair surprise. One justice dissented and granted leave to appeal to the Court of Appeals.

Noting that trial courts possess broad discretion in the supervision of expert disclosure, the Court of Appeals affirmed, finding as a matter of law that there was no abuse of discretion as a matter of law: assuming defendant’s disclosure was deficient, the deficiency was readily apparent upon plaintiff’s receipt of the disclosure and no analogy could be made between the issue here of insufficiency and those cases where a party’s disclosure was misleading or where the trial testimony was inconsistent with the disclosure.  The trial court’s ruling did not endorse the sufficiency of the statement but instead addressed the motion’s timeliness. The lower courts were entitled to determine that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised and potentially cured before trial.

Lastly, the Court of Appeals rejected plaintiff’s claim that the testimony regarding cardiac arrhythmia should have been excluded as speculative, because there was ample evidence in the record on which to premise cardiac arrhythmia.

Rivera v. Montefiore Med. Ctr., 2016 NY Slip Op 06854 (Court of Appeals Oct. 20, 2016)

http://www.nycourts.gov/reporter/3dseries/2016/2016_06854.htm

CPLR 4518(a), not 4539(b), was the proper basis for admitting a record of testing the simulator solution during a breathalyzer test, because the record was originally created electronically.

The Court of Appeals affirmed County Court’s reliance on CPLR 4518, not CPLR 4539(b), to admit into evidence the People’s exhibit of a record of testing the simulator solution used during the breath test that was administered to defendant. Defendant objected on the ground that the certifications contained within the exhibit did not include a verification to show that the record could not be tampered with pursuant to CPLR 4539(b).

The Court of Appeals noted that CPLR 4539 (b) does not apply to documents like the record of simulator solution testing that were originally created in electronic form.  CPLR 4539(b) applies only when a document that originally existed in hard copy form is scanned to store a digital “image” of the hard copy document, and then a “reproduction” of the digital image is printed in the ordinary course of business.   Subdivision (b), which was added to CPLR 4539 in 1996, requires an authentication by competent testimony or affidavit to include information about the manner or method by which tampering or degradation of the reproduction is prevented when a reproduction is created by any process which stores an image of any writing, entry, print or representation.   CPLR 4539 (a), in turn, allows reproductions made in the regular course of business to be admissible as the original.

Therefore, County Court correctly held that the applicable statute was CPLR 4518(a), which was amended in 2002 to provide that an electronic record shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record.   CPLR 4518(a) further provides that the court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record, but all other circumstances of the making of the memorandum or record may be proved to affect its weight, and shall not affect its admissibility.

Lastly, County Court properly held that the record of simulator solution testing and the records pertaining to the maintenance and calibration of the breath test instrument were admissible based upon the attached state agency certifications, and County Court did not err in disregarding the inaccurate certifications submitted by the Oneida County Sheriff’s Office with respect to those records.

People v. Kangas, 2016 NY Slip Op 06857 (Court of Appeals Oct. 20, 2016)

http://www.nycourts.gov/reporter/3dseries/2016/2016_06857.htm

Water on locker room floor was not “necessarily incidental to use of the area”.

Water on locker room floor was not “necessarily incidental to use of the area”, so defendant’s motion for summary judgment was properly denied.

 Plaintiff alleged he slipped on water in a locker room in the vicinity of a swimming pool and showers. The majority rejected the argument that water in the locker room was necessarily incidental to the use of the locker room, which would have justified summary judgment to defendant.  The majority distinguished two prior cases granting defendant summary judgment, one where plaintiff slipped on water around an indoor swimming pool and the other where plaintiff slipped on water in the area of the gym’s showers.   In those two previous cases, it had been held that the mere presence of water on a tiled floor adjacent to the gym’s shower or swimming pool could not impart liability because water was necessarily incidental to the use of the area.

But in the present case, plaintiff had left the pool area and he was not in the shower area: he was in a corridor between the pool and the men’s locker room which was a central spot from which a patron could access the showers, sinks, sauna, and steam room as well as the pool-access corridor. The location was also within a few feet of a bathing suit spinner machine and a nearby floor drain.

Plaintiff testified that one of the shower stalls would periodically overflow into the corridor and soak the carpeting at the entrance to the locker room, and that staff periodically placed towels on the carpet at the entrance to the locker room to protect to the carpet.

One member of defendant’s staff testified that the staff mopped the area in question every 15 to 20 minutes, but no one testified as to the last time the area in question was mopped and defendant had no log or check lists of maintenance performed.  The maintenance supervisor testified that the staff put out “wet floor” signs so that the staff didn’t have to mop as often.

Grossman v TCR, 2016 NY Slip Op 06114 (1st Dep’t Sept. 22, 2016) http://nycourts.gov/reporter/3dseries/2016/2016_06114.htm