The defendant moved for summary judgment to dismiss the complaint...cont

April 24, 2015,

The issue is whether or not the motion of the defendant should be granted.

Supreme Court denied the defendant's motion. It found that questions of fact existed as to where The defendant was at the time plaintiff first complained of trouble breathing and whether her location may have rendered her incapable of intervening quickly enough in case of an emergency. The court rejected AH's affidavit, finding that her lack of experience as a home infusion nurse rendered her opinion meaningless in a case where the standard of care to be applied was that of a home infusion specialist and not a generalist. The court credited the affidavits of both LH and the doctor, and expressly rejected the defendant's argument that plaintiff falls short of defeating her entitlement to summary judgment because it is irrefutable that Nurse The defendant had no authority to order or administer epinephrin.

Plaintiff’s expert submissions raised triable issues as to whether the defendant's alleged failure, after the onset of plaintiff's reaction, to properly maintain plaintiff's airway, to flush the IV, to perform CPR on a rigid surface, and to ensure a prompt response from emergency medical services, contributed to the severity of plaintiff's brain injury. The defendant moved for summary judgment to dismiss the complaint. Further, the defendant failed to even shift the burden to plaintiffs on the issue of whether she breached a professional duty by administering Solu-Medrol without an available supply of epinephrine.

It is basic that the party moving for summary judgment has the burden of establishing the absence of any factual issues to entitle it to judgment as a matter of law. Here, it was the defendant's obligation to establish the absence of a departure from good and accepted practice. However, AH's affidavit is completely silent regarding plaintiffs' allegation that the defendant had a duty to request a dose of epinephrine before beginning to infuse plaintiff with Solu-Medrol. As such, AH's affidavit is insufficient to shift the burden to plaintiffs to submit evidence creating an issue of fact. To the extent that AH states that the defendant acted in accordance with good and accepted nursing practices, without addressing specific personal injury allegations, such bare conclusory statements are also insufficient.

The concurrence has confused the parties' respective burdens on a summary judgment motion by arguing that the defendant should have been awarded summary judgment because plaintiffs failed to establish that it is common practice for Solu-Medrol infusion kits to include epinephrine. It ignores the fact that even AH's affidavit, which the motion court correctly determined, in relevant part, lacked probative value, does not state that epinephrine is not ordinarily prescribed by physicians in conjunction with the administration of Solu-Medrol. Rather, it states only that the defendant would have needed a specific order from a doctor. This statement is clearly insufficient to shift any burden to plaintiffs.

re epinephrine failed to shift the burden on that issue for the additional reason that, as the motion court correctly determined, AH was not qualified to render such an opinion. The court notes that our review of this issue is limited to whether the court providently exercised its discretion, and that the court will not disturb its determination absent a serious mistake or an error of law. Here, the motion court was correct as AH did not have any experience in home infusion. There is no evidence that her general nursing experience afforded her any insight into those skills unique to home infusion nurses. That absence is critical here. Because none of the experience AH did purport to have was necessarily transferable to the issue of whether The defendant should have carried out the infusion on plaintiff without having epinephrine available, and because she failed to lay any other foundation tending to support the reliability of her opinion, the motion court properly rejected AH's affidavit when considering the epinephrine issue

Even if AH had succeeded in shifting her burden on the epinephrine issue, plaintiffs amply demonstrated the existence of an issue of fact. Plaintiffs do not contend, as the defendant suggests, that the defendant should have prescribed epinephrine herself or otherwise obtained it without the proper authorization. Rather, plaintiffs claim that the defendant had a duty to inquire if epinephrine was available before she proceeded with the infusion. To impose such a duty on a nurse is not, as the defendant also suggests, to grant the nurse a license to practice medicine. Rather, it recognizes the critical role of nurses as a check against medical error.
The Court of Appeals discussed the crucial job nurses perform in B v B. In that case, the plaintiff suffered an eye injury at work and went to the emergency room the next day. An emergency room nurse and the supervising physician both separately took medical histories which failed to elicit information that would have led to proper treatment of the eye. The plaintiff sought to hold the hospital vicariously liable for the misconduct of the doctor and the nurse. The Court of Appeals had to consider whether the applicable statute of limitations was for negligence or for medical malpractice.

The court concluded that by not taking a proper medical history of the plaintiff, the nurse failed to carry out her role as an integral part of the process of rendering medical treatment to a patient.

Here, there is no evidence that the physician who prescribed the Solu-Medrol affirmatively decided that it was unnecessary to direct that epinephrine be included in the supply box that was delivered to plaintiffs' apartment. Consequently, it cannot be said as a matter of law that the defendant was simply carrying out a prescribed treatment plan. If, on the other hand, the physician's failure to ensure the availability of epinephrine was an oversight, or the result of a mistaken assumption by the doctor that Accuhealth would independently procure an epinephrine prescription, the defendant could have served as a critical backstop by assuring that epinephrine was available. After all, the injuries plaintiff suffered were a medically recognized consequence of the infusion. Again, the Court of Appeals in B v B identified one of the crucial roles of the modern professional nurse as that of one who coordinates the delivery of a myriad of patient services. Here, the allegation is that the defendant failed in that role, and that her actions constituted those of a passive, servile employee. Plaintiffs have certainly submitted sufficient evidence to require that a jury determine the issue.

The defendant moved for summary judgment to dismiss the complaint

April 22, 2015,

Defendant appeals from an order of the Supreme Court, Bronx County, entered on or about October 29, 2009, which denied her motion for summary judgment dismissing the complaint and all cross claims as against her.

Defendant is a registered nurse whose work is exclusively limited to the performance of home infusions of intravenous medication. On February 21, 1998, she visited the 12-year-old plaintiff at home to administer to her a dose of methylprednisolone (Solu-Medrol). The defendant worked for Accuhealth, Inc., a company which specialized in home infusions.
Solu-Medrol had been prescribed by an opthamologist who was treating plaintiff for uveitis, a vision-threatening form of eye inflammation. The physician had ordered that the medication be given for three-day periods on consecutive months. The first month that the medication was administered was January 1998, and plaintiff accepted the infusion without incident. The defendant performed the infusion, which takes approximately one hour, on one of the January days. Other nurses from Accuhealth covered the other two days. Although not entirely clear from the record, it does not appear that the physician who prescribed the Solu-Medrol worked for Accuhealth.

The injury in question occurred on the day that the February series of infusions began. When the defendant arrived at plaintiffs' apartment, the only medical equipment she had with her was a blood pressure cuff, a stethoscope and a one-way breather, which is used during cardiopulmonary resuscitation. All of the items which The defendant would need for the infusion itself, such as needles, intravenous lines, the pole to support the bag of medication and the medication itself, had been delivered directly to plaintiffs' apartment in anticipation of The defendant's visit. The infusion materials were shipped by Accuhealth, without the defendant's involvement.

Within seconds after the Solu-Medrol began to flow into plaintiff's veins, plaintiff complained that she could not breathe. The defendant testified at her deposition that she was next to plaintiff at all times and immediately stopped the drip. She said she instructed plaintiff's mother, who was observing the infusion, to call 911 and tell the operator that her daughter was having difficulty breathing and to send an ambulance immediately. Plaintiff then began to have a seizure, and the defendant directed her mother to bring her a spoon with padding around it. The defendant used the spoon to force plaintiff's mouth open. She then inserted the one-way breather and began breathing into plaintiff's mouth through the device. Plaintiff's condition rapidly deteriorated and she went into full respiratory, and then cardiac, arrest. The defendant claims that she lowered plaintiff from the sofa, where she had been situated at the beginning of the infusion process, to the floor, where she began to administer CPR until the arrival of emergency medical services personnel. Tragically, by the time emergency responders were able to stabilize her condition, plaintiff had suffered significant oxygen loss, which resulted in permanent brain injury damage, leaving her unable to eat, speak or communicate.

It is not in dispute that plaintiff's condition was caused by an allergic reaction to the Solu-Medrol, which caused her to go into anaphylatic shock. This is a known side effect of the drug. It is also not in dispute that epinephrine is a prescription drug commonly given to counteract the effects of those allergens that can cause anaphylatic shock. The defendant did not have epinephrine with her on the day in question. She testified that epinephrine was not included in the box of supplies that Accuhealth had delivered to plaintiffs' apartment before her arrival. She further stated that she would not have been permitted to carry epinephrine with her without a prescription.

Plaintiff's mother testified at her deposition that, when plaintiff first complained about having difficulty breathing, the medical defendant was writing notes in the kitchen, approximately 20 feet from where plaintiff was situated in the living room. She stated that it took approximately one minute from the time she told the defendant that plaintiff could not breath until The defendant instructed her to call 911. She further contended that, after she brought the padded spoon to the defendant and The defendant commenced rescue breathing, The defendant asked her to help place plaintiff in a lying position on the couch, not on the floor as The defendant testified, where she performed CPR on plaintiff.

Plaintiffs commenced this action against the defendant, Accuhealth, the City and its Emergency Medical Service. As concerns The defendant, plaintiff’s bill of particulars alleged that she committed professional malpractice by, inter alia, failing to properly supervise and attend to plaintiff, failing to properly and immediately perform CPR on plaintiff, failing to personally advise the 911 operator of the nature of the emergency, and failing to have ensured that epinephrine was available to counteract the allergic reaction which caused plaintiff's anaphylaxis.

The defendant moved for summary judgment to dismiss the complaint. She primarily relied on the expert affidavit of AH, a registered nurse. AH opined that the defendant, in each and every aspect of her treatment of plaintiff, acted well within the standards of good and accepted nursing practice.

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The defendant BH Corp. ...cont

April 20, 2015,


Sixth, it is asserted that one of plaintiff's experts, Dr. BY, improperly testified from two reports that did not constitute business records. Dr. BY was a psychologist and director of a free program for rehabilitation of the brain injured at New York University Hospital. Plaintiff had been enrolled in that program.

The first report was in the nature of a graph which showed that plaintiff's progress as a file clerk was below normal. This graph was excluded from evidence. Over objection, Dr. BY was permitted to interpret it for the jury. A second report indicating the plaintiff's lack of progress on the job was admitted over the defendant BH Corp.'s motion to strike.

Each of these reports were prepared one week before trial by an unnamed assistant of Dr. BY. The reports were not prepared in the regular course of business but were specifically prepared to assist Dr. BY with his testimony at trial. To an extent, these reports furnished evidence that was cumulative. They buttressed Dr. BY's prior testimony that test results had demonstrated the plaintiff was unemployable. Nonetheless, these reports and any testimony concerning the substance of these reports should have been excluded. The admission of the one report and the testimony concerning the other confirmed the severity of plaintiff's brain injury. It is very likely that the jury placed particular significance upon these reports in assessing damages.

Seventh, the defendant BH Corp. avers that the trial court erroneously prevented it from cross-examining plaintiff's reconstruction expert, Reconstruction expert, concerning lacerations found on plaintiff's body after the occurrence. In reconstructing the event, the reconstruction expert had relied upon many indicia including the nature and extent of the injuries to the plaintiff. The trial court should have permitted greater latitude in cross-examination upon this subject. Nonetheless, in the context of this protracted trial, we find this error to be harmless. The defendant BH Corp. had effectively impeached Reconstruction expert by establishing that he was unaware that both defendant MD and the plaintiff had testified that the plaintiff had flown through the air before coming to rest on the grille. In this light, Reconstruction expert's testimony as to the lacerations was of minor value.

As an eighth issue, the defendant BH Corp. asserts that its cross-examination of plaintiff's engineer, the doctor, was severely limited on the topic of dwell time. Plaintiff’s expert testified that when a helmet exceeded impact safety standards, the brain was placed in a zone of danger. The trial court, for the most part, restricted the evidence at trial to that bearing upon the minimum safety standards of D.O.T. The defendant BH Corp. contends that it should have been allowed to show that other national safety standards did not place any significance upon the dwell time concept. Despite The defendant BH Corp.'s protestation in this regard, the record shows that it was able to elicit from plaintiff’s expert that these tests did not place the same emphasis on dwell time. For instance, upon cross examination, plaintiff’s expert admitted that the Snell Foundation had abandoned this concept before the occurrence. The defendant BH Corp.'s claim of error in this regard is not substantiated by the record.

Ninth, the defendant BH Corp. argues that the verdict was contrary to the weight of the evidence. A verdict should be set aside only where it seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence. By reason of the defendant BH Corp.'s failure to except to the charge on many critical points, the plaintiff was allowed to recover by merely showing that there was a violation of the minimum safety standards and that such violation caused the plaintiff's injury. Under this criterion, we find that the verdict was not against the weight of the evidence.

Tenth, error is alleged with regard to the portion of the charge which permitted the jury to apply a reduced burden of proof if it found that plaintiff actually suffered a loss of memory. In her testimony at her examination before trial and at trial, plaintiff did not seem to recall any of the details surrounding the occurrence except for the fact that she went flying through the air. Under this circumstance, the trial court properly allowed the jury to apply a charge under Schechter.

Finally, the defendant BH Corp. contends that the trial court should have granted a one day continuance so that the defendant BH Corp. could call a medical specialist. As the trial court observed, there was more than ample medical evidence in the record at that juncture. It cannot be said that the court abused its discretion in denying a continuance.

d October 27, 1982, awarding the plaintiff $450,988.55 against defendant JS, $300,665.73 against defendant MD, and $2,255,722.11 against defendant BH Corp., should be reversed, on the law, and the matter should be remanded for a new trial, with costs to abide the event.
Judgment, Supreme Court, Bronx County, entered on October 27, 1982, reversed, on the law, the judgment vacated and the matter remanded for a new trial with $75 costs and disbursements of this appeal to abide the event.

The defendant BH Corp. ...cont

April 18, 2015,


The defendant BH Corp. raises many issues in its brief. Many of these issues do not receive separate headings. In discussing these issues, we have joined and rearranged the issues where appropriate.

The defendant BH Corp. did not except to these portions of the charge. Thus, the above excerpts constitute the law of the case. The defendant BH Corp. was and is bound by the charge on this point as a result of its failure to except.

For purposes of the retrial hereinafter ordered, we make the following comments. If the jury accepts the validity of the SWRI report, then the report may be considered as some evidence that the defendant BH Corp. violated a minimum safety standard. The report plus all other evidence in the record should be considered by the jury in determining whether there was an actual violation of the minimum safety standards set forth in F.M.V.S.S. No. 218. At the retrial, the jury must also consider the fact that the D.O.T. has dropped the investigation in this matter. An actual violation of the minimum safety standards must necessarily translate into a specific defect in the Super Magnum model. The jury must find, of course, that the specific defect was the proximate cause of plaintiff's injury. The foregoing comments are not intended to be restrictive. Plaintiff, if so advised, may introduce such other evidence as may show a defect and the consequences of that defect.

Second, it should be stressed that the defendant BH Corp. did not object to the submission of the case upon the four theories mentioned above. Therefore, the defendant BH Corp. has not reserved its right to contend upon appeal that the case should have only been submitted on the theory of strict products liability.

The present action is a second collision case as against the defendant BH Corp. Under the crashworthiness or second collision doctrine, plaintiff was required to prove that her injuries were more severe than they would have been had the helmet been properly designed. The jury should not have been permitted to infer that the helmet was defective from the circumstances surrounding the occurrence. As a consequence of the collision, plaintiff would have necessarily sustained some injuries. Hence, the jury could not infer that the helmet was defective from the mere fact that plaintiff was injured. Plaintiff was required to show by independent proof that a defect in the helmet caused enhanced injuries. The error in these portions of the charge requires a new trial.

While the defendant BH Corp. did except to these portions of the charge, it failed to pursue the second collision doctrine in other phases of the charge. For example, the defendant BH Corp. never requested that its damages be limited to any enhancement caused by the defect in the helmet if such defect were found. Again, by failing to except at the trial level, the defendant BH Corp. may not raise this error on appeal.

As a fourth point, the defendant BH Corp. maintains that the trial court abused its discretion in limiting the direct examination of the defendant BH Corp.'s expert, Dr. G. This expert was a neurological surgeon who had treated over one thousand trauma injury to the brain. The defendant BH Corp. attempted to examine Dr. G with regard to the protection afforded to the plaintiff by the helmet. The trial court sustained an objection by plaintiff. Under the second collision doctrine, Dr. G's testimony on this issue was very relevant. The defendant BH Corp. should have been permitted to show that the helmet reduced the injuries and did not cause any enhanced injuries.

Fifth, error is alleged with reference to the admission of the police report. This report was inexplicably admitted during the testimony of defendant MD. The police report indicates that a police officer was at the scene. The report is signed by police officer. Neither Byrne nor the police officer testified at trial. Therefore, no foundation was laid for the admission of this exhibit.

It should be stressed that this exhibit was particularly important to the resolution of the liability issues. It contained a schematic showing the point of impact to be on JS's side of Schley Avenue. Additionally, it indicated that JS's motorcycle did skid forty feet before the impact. Based upon the schematic in the police report, plaintiff's reconstruction expert, Reconstruction expert, had made his own drawing of the event. JS and The defendant BH Corp. were denied the right to test the accuracy of the police report because neither of the responding officers was present at trial. It was impossible for the defendants to test whether the accident report was based upon eyewitness observations of the officers or whether it was based upon hearsay.


To Be Cont...

The defendant BH Corp.

April 16, 2015,

This action arises from a collision that occurred on August 25, 1977 on Schley Avenue in Bronx County. Traffic was permitted to flow on Schley Avenue in a northerly and southerly direction. Plaintiff was a passenger on a motorcycle driven by defendant JS in a northerly direction. The motorcycle came into contact with an automobile driven by defendant MD in a southerly direction. MD had been double-parked immediately prior to the occurrence. He had driven his vehicle to the left in order to enter a traffic lane on Schley Avenue. As the defendant MD vehicle was entering the traffic lane, the collision occurred.

Conflicting evidence was presented at trial as to the facts and circumstances surrounding the collision. Of particular importance were questions relating to whether (i) the impact had taken place on JS's side of Schley Avenue and (ii) the speed of the motorcycle. As a result of the collision, plaintiff landed approximately seventy-two feet from the point of impact. A further issue of importance was presented as to whether the plaintiff flew through the air after the impact or whether she rolled to that position after being thrown from the motorcycle. Although plaintiff was wearing a Super Magnum helmet manufactured by defendant BH Corp., she sustained brain injury damage together with other injury in the occurrence. The helmet cracked during this incident.

Plaintiff prosecuted this case upon four theories: (i) negligence, (ii) strict products liability, (iii) breach of express warranty and (iv) breach of implied warranty. In order to establish her case against the defendant BH Corp., plaintiff introduced proof to show that the defendant BH Corp. had violated minimum safety standards promulgated by the Department of Transportation (D.O.T.) The D.O.T. requested the Southwest Research Institute (SWRI) to perform compliance tests on the Super Magnum model during the 1970's. This model passed all tests until October and November of 1976 when four out of six test helmets had dwell time readings in excess of the safety standards. Suffice it to say that plaintiff's expert, the doctor, testified as to the correlation between dwell time and the chance of brain damage.

Plaintiff's case was also buttressed to a limited extent by the testimony of the defendant BH Corp.'s Director of Research and Development. The testimony of the latter suggested at one point that the helmet's liner did not properly respond under the severe impact in this case.
The defendant BH Corp., on the other hand, adduced evidence tending to indicate that the Super Magnum model met the minimum safety standards of D.O.T. It was the defendant BH Corp.'s contention that testing protocol was not followed in the testing by SWRI of the first four helmets. It was the defendant BH Corp.'s further contention that SWRI's equipment was not properly calibrated during the testing of the last two helmets. Another of the defendant BH Corp.'s experts, Dean LF, testified that the Super Magnum model had provided the plaintiff with more protection than any other model then on the market.

The D.O.T. never took any formal action nor did it make any informal determinations with regard to the SWRI test reports of non-compliance. Eventually, during the trial of this action, the D.O.T. terminated its investigation in this matter. The parties did not learn of this termination until after the personal injury trial had ended and a verdict rendered for the plaintiff.

The jury returned a verdict in plaintiff's favor on all theories except breach of express warranty. Plaintiff was awarded (i) $450,000 for pain, suffering and disability, (ii) $1,750,000 for future medical costs, (iii) $450,000 for custodial care, and (iv) $350,000 for diminution of total earnings. The apportionment was 15% to JS, 10% to defendant MD, and 75% to the defendant BH Corp. JS and the defendant BH Corp. now appeals.


To Be Cont....

The defendant BH Corp. raises many issues in its brief. Many of these issues do not receive separate headings. In discussing these issues, we have joined and rearranged the issues where appropriate.

The defendant BH Corp. did not except to these portions of the charge. Thus, the above excerpts constitute the law of the case. The defendant BH Corp. was and is bound by the charge on this point as a result of its failure to except.

For purposes of the retrial hereinafter ordered, we make the
following comments. If the jury accepts the validity of the SWRI report, then the report may be considered as some evidence that the defendant BH Corp. violated a minimum safety standard. The report plus all other evidence in the record should be considered by the jury in determining whether there was an actual violation of the minimum safety standards set forth in F.M.V.S.S. No. 218. At the retrial, the jury must also consider the fact that the D.O.T. has dropped the investigation in this matter. An actual violation of the minimum safety standards must necessarily translate into a specific defect in the Super Magnum model. The jury must find, of course, that the specific defect was the proximate cause of plaintiff's injuries. The foregoing comments are not intended to be restrictive. Plaintiff, if so advised, may introduce such other evidence as may show a defect and the consequences of that defect.

Second, it should be stressed that the defendant BH Corp. did not object to the submission of the case upon the four theories mentioned above. Therefore, the defendant BH Corp. has not reserved its right to contend upon appeal that the case should have only been submitted on the theory of strict products liability.

The present action is a second collision case as against the defendant BH Corp. Under the crashworthiness or second collision doctrine, plaintiff was required to prove that her injuries were more severe than they would have been had the helmet been properly designed. The jury should not have been permitted to infer that the helmet was defective from the circumstances surrounding the occurrence. As a consequence of the collision, plaintiff would have necessarily sustained some injuries. Hence, the jury could not infer that the helmet was defective from the mere fact that plaintiff was injured. Plaintiff was required to show by independent proof that a defect in the helmet caused enhanced injuries. The error in these portions of the charge requires a new trial.

While the defendant BH Corp. did except to these portions of the charge, it failed to pursue the second collision doctrine in other phases of the charge. For example, the defendant BH Corp. never requested that its damages be limited to any enhancement caused by the defect in the helmet if such defect were found. Again, by failing to except at the trial level, the defendant BH Corp. may not raise this error on appeal.

As a fourth point, the defendant BH Corp. maintains that the trial court abused its discretion in limiting the direct examination of the defendant BH Corp.'s expert, Dr. G. This expert was a neurological surgeon who had treated over one thousand trauma injuries to the brain. The defendant BH Corp. attempted to examine Dr. G with regard to the protection afforded to the plaintiff by the helmet. The trial court sustained an objection by plaintiff. Under the second collision doctrine, Dr. G's testimony on this issue was very relevant. The defendant BH Corp. should have been permitted to show that the helmet reduced the injuries and did not cause any enhanced injuries.

Fifth, error is alleged with reference to the admission of the police report. This report was inexplicably admitted during the testimony of defendant MD. The police report indicates that a police officer was at the scene. The report is signed by police officer. Neither Byrne nor the police officer testified at trial. Therefore, no foundation was laid for the admission of this exhibit.

It should be stressed that this exhibit was particularly important to the resolution of the liability issues. It contained a schematic showing the point of impact to be on JS's side of Schley Avenue. Additionally, it indicated that JS's motorcycle did skid forty feet before the impact. Based upon the schematic in the police report, plaintiff's reconstruction expert, Reconstruction expert, had made his own drawing of the event. JS and The defendant BH Corp. were denied the right to test the accuracy of the police report because neither of the responding officers was present at trial. It was impossible for the defendants to test whether the accident report was based upon eyewitness observations of the officers or whether it was based upon hearsay.

Sixth, it is asserted that one of plaintiff's experts, Dr. BY, improperly testified from two reports that did not constitute business records. Dr. BY was a psychologist and director of a free program for rehabilitation of the brain injured at New York University Hospital. Plaintiff had been enrolled in that program.

The first report was in the nature of a graph which showed that plaintiff's progress as a file clerk was below normal. This graph was excluded from evidence. Over objection, Dr. BY was permitted to interpret it for the jury. A second report indicating the plaintiff's lack of progress on the job was admitted over the defendant BH Corp.'s motion to strike.

Each of these reports were prepared one week before trial by an unnamed assistant of Dr. BY. The reports were not prepared in the regular course of business but were specifically prepared to assist Dr. BY with his testimony at trial. To an extent, these reports furnished evidence that was cumulative. They buttressed Dr. BY's prior testimony that test results had demonstrated the plaintiff was unemployable. Nonetheless, these reports and any testimony concerning the substance of these reports should have been excluded. The admission of the one report and the testimony concerning the other confirmed the severity of plaintiff's brain damage. It is very likely that the jury placed particular significance upon these reports in assessing damages.
Seventh, the defendant BH Corp. avers that the trial court erroneously prevented it from cross-examining plaintiff's reconstruction expert, Reconstruction expert, concerning lacerations found on plaintiff's body after the occurrence. In reconstructing the event, the reconstruction expert had relied upon many indicia including the nature and extent of the injuries to the plaintiff. The trial court should have permitted greater latitude in cross-examination upon this subject. Nonetheless, in the context of this protracted trial, we find this error to be harmless. The defendant BH Corp. had effectively impeached Reconstruction expert by establishing that he was unaware that both defendant MD and the plaintiff had testified that the plaintiff had flown through the air before coming to rest on the grille. In this light, Reconstruction expert's testimony as to the lacerations was of minor value.

As an eighth issue, the defendant BH Corp. asserts that its cross-examination of plaintiff's engineer, the doctor, was severely limited on the topic of dwell time. Plaintiff’s expert testified that when a helmet exceeded impact safety standards, the brain was placed in a zone of danger. The trial court, for the most part, restricted the evidence at trial to that bearing upon the minimum safety standards of D.O.T. The defendant BH Corp. contends that it should have been allowed to show that other national safety standards did not place any significance upon the dwell time concept. Despite The defendant BH Corp.'s protestation in this regard, the record shows that it was able to elicit from plaintiff’s expert that these tests did not place the same emphasis on dwell time. For instance, upon cross examination, plaintiff’s expert admitted that the Snell Foundation had abandoned this concept before the occurrence. The defendant BH Corp.'s claim of error in this regard is not substantiated by the record.
Ninth, the defendant BH Corp. argues that the verdict was contrary to the weight of the evidence. A verdict should be set aside only where it seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence. By reason of the defendant BH Corp.'s failure to except to the charge on many critical points, the plaintiff was allowed to recover by merely showing that there was a violation of the minimum safety standards and that such violation caused the plaintiff's injuries. Under this criterion, we find that the verdict was not against the weight of the evidence.

Tenth, error is alleged with regard to the portion of the charge which permitted the jury to apply a reduced burden of proof if it found that plaintiff actually suffered a loss of memory. In her testimony at her examination before trial and at trial, plaintiff did not seem to recall any of the details surrounding the occurrence except for the fact that she went flying through the air. Under this circumstance, the trial court properly allowed the jury to apply a charge under Schechter.

Finally, the defendant BH Corp. contends that the trial court should have granted a one day continuance so that the defendant BH Corp. could call a medical specialist. As the trial court observed, there was more than ample medical evidence in the record at that juncture. It cannot be said that the court abused its discretion in denying a continuance.

d October 27, 1982, awarding the plaintiff $450,988.55 against defendant JS, $300,665.73 against defendant MD, and $2,255,722.11 against defendant BH Corp., should be reversed, on the law, and the matter should be remanded for a new trial, with costs to abide the event.
Judgment, Supreme Court, Bronx County, entered on October 27, 1982, reversed, on the law, the judgment vacated and the matter remanded for a new trial with $75 costs and disbursements of this appeal to abide the event.

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Respondent, M.F., is charged with murder

April 14, 2015,

Respondent, M.F., is charged with Murder in the Second Degree. At the time of the accident, respondent was 13 years old. This case stems from the death of respondent's newborn baby. On January 14, 2005, the deceased was found inside a paper bag on the steps of church. Respondent was arraigned in Bronx Criminal Court for the murder of the deceased on March 21, 2005, the case was removed to Bronx Family Court where respondent made her initial appearance on March 22, 2005. The fact finding began on March 7, 2006 and concluded on November 30, 2006.

On it's direct case, the presentment agency, represented by the Office of the Bronx District Attorney, put forth several witnesses. AMP, respondent's friend, KP, AMP's sister, Emergency Medical Technician and Paramedic, Detective IB, Detective Joseph JN, Detective RG, Medical Examiner and L.B., the father of the deceased baby.

Emergency Medical Technician and paramedic testified that on January 14, 2005 he was working the overnight shift with his partner. At approximately 8:24 p.m., EMT responded to an assignment at East 183rd Street. Upon arrival at the Prince of Baptist Church located at183rd Street between Park Ave. and Washington Ave., EMT observed a happy birthday bag. Looking into the bag, EMT observed a limb that he determined to be flesh and called the police. EMT observed the weather conditions to be 14 degrees and pitch black. Once the bag was brought into the ambulance, EMT observed a baby wrapped in t-shirts with his umbilical cord and placenta intact. He unwrapped the baby and checked the umbilical cord for a pulse, there was nothing. The baby's temperature was equal to that of the temperature outdoors and he had cranial facial trauma with blood around the nose and mouth. EMT also hooked up the baby to a cardiac monitor to determine electrical activity, there was none. EMT conceded that he had no personal knowledge of the time of death, or infliction of the fatal injury. However, based on his observations and tests, EMT determined that the baby was dead and pronounced the time of death to be 8:28 p.m. EMT transported the deceased to the morgue.

NYPD Detective IB, of the 48th precinct was assigned to investigate this injury case on January 14, 2005. Det. IB arrived at the Prince of Baptist Church after the deceased had been removed from the steps. Det. IB had the opportunity to view the deceased inside the ambulance. On January 15, 2005, Det. IB attended the autopsy of the deceased where the medical examiner determined the cause of death to be blunt force trauma. As a result of this information, Det. IB declared this case a homicide. On January 15, 2005, J. L. went to the 48th precinct and spoke with Det. IB. J. L. relayed information that led Det. IB to AMP who informed the detective of the respondent's address. Det. IB along with Det. RG, Det. M and the lieutenant entered the respondent's apartment on the consent of her mother. Inside the apartment, Det. IB observed what appeared to be blood on the respondent's bedroom windowsill. The respondent and her mother agreed to accompany the detectives to the 48th precinct. The respondent and her mother were informed of respondent's Miranda rights which were waived and respondent gave a written statement. Respondent was transferred to the St. Barnabas Hospital for psychiatric stabilization and then to the psychiatric facility where she remained throughout the pendency of this case. On January 19, 2005, pursuant to valid search warrant Det. IB entered the respondent's apartment and again observed what appeared to be blood on the windowsill and the window guard on the right bedroom window. Det. IB observed a stopper on the window which prevented it from opening all the way. Det. IB also went out into the alleyway and observed the cement floor underneath the respondent's bedroom window. The window guard was removed, vouchered as evidence and taken to the medical examiner. Det. IB arrested the respondent on March 22, 2005.

Detective JN of the Crime Scene Unit was assigned the instant case on January 19, 2005. Det. JN went to respondent's home along with Det. Steiner, Det. IB, Det. and the medical examiner who performed the autopsy on the deceased. Respondent's mother and father were also present. Det. JN took photographs and measurements of the south window and window guard in the respondent's bedroom. He also made a rough sketch of the window guard. Det. JN then called emergency services to remove the window guard which was then turned over to the medical examiner. A computer generated sketch compiled from the rough draft that Det. JN created illustrates that the measurements of the left side of the window guard to be 4½", 4½", 4½" and 4½" from the bottom to the top. The center vertical measurements from bottom to top measured 4", 4", 4" with the top measurement equaling 2. The right vertical measurements were 4½", 4½", 4½" and 3" from top to bottom respectively. Det. JN also measured the maximum vertical distance the window opened from the bottom ledge to the safety stop as 1 and 4.


To Be Cont...

Continue reading "Respondent, M.F., is charged with murder" »

The Medical Examiner found that the victim suffered a gunshot wound ...cont

April 12, 2015,

To be found guilty of intentional murder, a defendant must intend to cause the death of another person and actually cause the death of that person. Proof of causation is mandatory for any homicide prosecution.

If a defendant's actions are "a sufficiently direct cause" of the death, criminal liability exists. The question is whether the "ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused." If the defendant set in motion "the chain of events which ultimately resulted in the victim's death" homicide can be attributed to the defendant. As long as the defendant's actions are "at least a contribut[ory] cause" of death, homicide charges are appropriate.

When death is attributed to more than one cause, the issue of causation becomes more complicated. If multiple injury cause death together, each participant is criminally liable for the death if his actions were factors in the victim's demise.

In the case at bar, the intervening event was the victim's refusal of nourishment and medical treatment--in effect, his suicide. A review of the case law sheds little light on this situation.
Apparently no New York courts have dealt directly with the issue of suicide as an intervening event and whether it breaks the chain of causation. However, treatment of the issue of removal of life support systems does aid the analysis. A court of concurrent jurisdiction found a defendant properly charged with manslaughter in the first degree for the death of a victim she mortally wounded after a nurse turned off the victim's life support system. Although it was unclear whether the victim's cardiac arrest was caused by the removal of the life support system, the court found that the defendant who stabbed the victim was criminally liable because "the clear medical evidence was that at the moment of death the initial stabbing continued to operate as a significant direct contribution thereto."

Whether the second actor committed a crime "should no longer provide escape to the initial perpetrator whose vicious act propelled the victim to certain and extended death and which act at the time of the victim's release from artificial life supports, continued to be a substantial contribution to that death."

The personal injury court found no difference if the removal of the life support system had been accomplished by the victim herself. In Vaughn, the victim was not recuperating and was being supported by artificial life supports. In the instant case, however, the victim was recuperating and was not in extremis.

Applying the rationale of the above cited cases to the facts herein, this Court concludes that the People have met their burden of proving causation. The victim acted voluntarily in refusing nourishment and medical treatment. However, his inability to ingest food orally was directly caused by the gunshot wound he suffered.

The gunshot wound created the difficulty swallowing and the difficulty swallowing prevented him from ingesting food orally. The gunshot wound set in motion a chain of events resulting in hospitalization, difficult swallowing, and forced feeding, the cessation of which resulted in death. The gunshot wound forged a causative link between the initial injury and death and was a sufficiently direct and contributing event which eventually resulted in death. The suicide does not operate as an intervening act that excuses criminal liability because death was not solely attributable to this secondary agency.

The Medical Examiner found that the victim suffered a gunshot wound

April 11, 2015,

The defendant was indicted for Murder in the Second Degree and other related crimes. During this nonjury trial, the issue of causation of death was presented to this Court. The defense alleged that the victim had recovered from the gunshot wound he suffered and actually committed suicide by refusing nourishment and medical treatment.

A Bronx County Injury lawyer said that on October 17, 1991, the victim suffered a gunshot wound to his head while driving a cab in Bronx County. He was removed to Lincoln Hospital where he was diagnosed with a gunshot wound to the neck with transection of the right internal carotid artery and facial nerve paralysis. The victim contracted pneumonia which was treated and eventually cured. Since the victim continued to have difficulty speaking and swallowing a month after his admission, testing was performed but revealed no significant personal injury.

The victim communicated by writing on a note pad and nodding in response to questions. He was interviewed in this manner by Detectives concerning the incident. The victim commenced and participated in rehabilitation for speaking, swallowing and walking at a Hospital on November 13, 1991.

On December 4, 1991 the victim improved sufficiently to permit his transfer to another Hospital for further rehabilitation. On admission he was found, among other diagnosis, to be unable to swallow and to require feeding by tube. The victim became depressed and distraught at his slow accident progress. On December 19, 1991, the victim pulled out his feeding tube and refused its reinsertion even after being advised of its vital necessity.

Although the victim expressed a desire to return to regular food, he did not eat any when it was provided to him. He ingested only ice water and liquids.

On December 27, 1991, an autopsy was performed. The external examination revealed a severely emaciated body with almost a completed absence of subcutaneous body fat and atrophy of the skeletal muscles. The Medical Examiner found that the victim suffered a gunshot wound to the head and neck with a line of metallic fragments in the wound's path between the right ear and left cheek.


To Be Cont...

Defendant was charged with Burglary,

April 10, 2015,

Defendant was charged with Burglary, Petit Larceny and Criminal Mischief arising from alleged incidents in complainant's apartment on two separate occasions. After a preliminary hearing before another judge, the felony charges were reduced and the matter held for trial. Defendant now moves for discovery of complainant's medical records and for a psychiatric examination of the complainant.

A Bronx County Injury lawyer said that the complainant is a fifty four year old disabled veteran. At the preliminary hearing, he testified that he had suffered brain injury during World War II. As he put it, ". . . the rockets came and messed up my brains and paralyzed me." He also testified that he could not remember certain things such as the dates of the alleged incidents or how long he had lived in his present apartment; that he could not think "too good" and gets "mixed up"; and that he is not able to follow questions "too fast."

On the whole, his testimony was confused, frequently tangential, and sometimes contradictory, although a picture of the underlying incidents did emerge. On the day in question, he answered a knock on his door, thinking it was the television repairman whom he had called for earlier. Instead, several people pushed him aside and came into his apartment whereupon they stole his food, money and phonograph records.

He changed his testimony several times as to how many people were involved and who they were. He became confused also about how they had entered the apartment, sometimes saying they entered through the door and at other times through the window, and finally stated that he could not remember.

Due process considerations require the disclosure to an accused of evidence favorable to him which is material to guilt or punishment. It is recognized that "the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence; and accordingly, courts have required disclosure of evidence tending to affect the credibility of a particular witness.
Evidence of the mental illness of a witness is a fact that a jury is entitled to know so that it may "assess and evaluate the testimony given by him and not accept it as the statement of a 'normal' individual," This is so because such evidence bears "not just upon the witness' general trustworthiness" of the complainant but also upon "the reliability of his specific testimony,"

The post conviction discovery of evidence of a witness' mental condition has been sufficient to order a new trial in several instances. In a case, the People had refused defendant's request for the criminal record of the key prosecution witness which would have led to evidence of the witness' mental commitment for a prior ongoing mental condition. The Injury Court held that the suppression was a violation of due process under the case, because the witness, who was uncontradicted, must have played a crucial role in the jury's verdict and, therefore, evidence of his aberrant mental condition would have been material on the question of the defendant's guilt.

The major issue in this case involves the reliability of the complainant who is the sole eyewitness to the alleged crime. The preliminary hearing illustrates the complainant's difficulty in recollecting events and communicating to others his perceptions and observations of those events. He claims this difficulty is due to brain damage. The only information that defendants now have is that complainant was once hospitalized and has been the subject of psychiatric evaluations.

Where, as here, there is knowledge of a longstanding, ongoing mental condition of a complainant who is the sole eyewitness to the crime, and where such condition may affect the accuracy, perception and comprehension of his testimony, evidence must be disclosed to the defendants concerning such a condition.

The People argue that since this is a pre-trial motion and the cases cited above involved post-trial motions for a new trial on the ground that the conviction resulted from the testimony of a witness whose mental state is later discovered to be questionable, there are no grounds for disclosure at this time. That argument cannot succeed. The basis for reversal was that the evidence was so material to the issue of guilt or innocence that it would play a part in the jury's consideration.
In ordering the disclosure, this Court is merely applying the established principle of admitting extrinsic evidence of a witness' mental defect or deficiency to impeach his credibility, including the admission of medical hospital records.

Nor can disclosure be precluded by a claim of privilege. The statutory rule prohibiting the disclosure of communications between a patient and his physician is subject to waiver, CPLR § 4504, CPL § 60.10. A patient may waive his privilege either expressly by testifying in detail as to his injury or illness; or impliedly by conduct. The complainant has already testified that he suffers from brain damage which impairs his thinking and communication abilities. This was a voluntary statement and qualifies as a waiver regarding further inquiry into his mental condition.
In addition, the state's policy interest in protecting the confidentiality of the physician-patient relationship must yield to the mandate of constitutional due process considerations when the need for disclosure is present.

Continue reading "Defendant was charged with Burglary," »

In the case at bar, the intervening event was the victim's refusal of nourishment

April 9, 2015,

The defendant was indicted for Murder in the Second Degree and other related crimes. During this nonjury trial, the issue of causation of death was presented to this Court. The defense alleged that the victim had recovered from the gunshot wound he suffered and actually committed suicide by refusing nourishment and medical treatment.

A Bronx County Injury lawyer said that on October 17, 1991, the victim suffered a gunshot wound to his head while driving a cab in Bronx County. He was removed to Lincoln Hospital where he was diagnosed with a gunshot wound to the neck with transection of the right internal carotid artery and facial nerve paralysis. The victim contracted pneumonia which was treated and eventually cured. Since the victim continued to have difficulty speaking and swallowing a month after his admission, testing was performed but revealed no significant injury.

The victim communicated by writing on a note pad and nodding in response to questions. He was interviewed in this manner by Detectives concerning the incident. The victim commenced and participated in rehabilitation for speaking, swallowing and walking at a Hospital on November 13, 1991.

On December 4, 1991 the victim improved sufficiently to permit his transfer to another Hospital for further rehabilitation. On admission he was found, among other diagnosis, to be unable to swallow and to require feeding by tube. The victim became depressed and distraught at his slow progress. On December 19, 1991, the victim pulled out his feeding tube and refused its reinsertion even after being advised of its vital necessity.

Although the victim expressed a desire to return to regular food, he did not eat any when it was provided to him. He ingested only ice water and liquids.

On December 27, 1991, an autopsy was performed. The external examination revealed a severely emaciated body with almost a completed absence of subcutaneous body fat and atrophy of the skeletal muscles. The Medical Examiner found that the victim suffered a gunshot wound to the head and neck with a line of metallic fragments in the wound's path between the right ear and left cheek.

To be found guilty of intentional murder, a defendant must intend to cause the death of another person and actually cause the death of that person. Proof of causation is mandatory for any homicide prosecution.

If a defendant's actions are "a sufficiently direct cause" of the death, criminal liability exists. The question is whether the "ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused." If the defendant set in motion "the chain of events which ultimately resulted in the victim's death" homicide can be attributed to the defendant. As long as the defendant's actions are "at least a contribut[ory] cause" of death, homicide charges are appropriate.

When death is attributed to more than one cause, the issue of causation becomes more complicated. If multiple injuries cause death together, each participant is criminally liable for the death if his actions were factors in the victim's demise.

In the case at bar, the intervening event was the victim's refusal of nourishment and medical treatment--in effect, his suicide. A review of the case law sheds little light on this situation.
Apparently no New York courts have dealt directly with the issue of suicide as an intervening event and whether it breaks the chain of causation. However, treatment of the issue of removal of life support systems does aid the analysis. A court of concurrent jurisdiction found a defendant properly charged with manslaughter in the first degree for the death of a victim she mortally wounded after a nurse turned off the victim's life support system. Although it was unclear whether the victim's cardiac arrest was caused by the removal of the life support system, the court found that the defendant who stabbed the victim was criminally liable because "the clear medical evidence was that at the moment of death the initial stabbing continued to operate as a significant direct contribution thereto."

Whether the second actor committed a crime "should no longer provide escape to the initial perpetrator whose vicious act propelled the victim to certain and extended death and which act at the time of the victim's release from artificial life supports, continued to be a substantial contribution to that death."

The court found no difference if the removal of the life support system had been accomplished by the victim herself. In Vaughn, the victim was not recuperating and was being supported by artificial life supports. In the instant case, however, the victim was recuperating and was not in extremis.

Applying the rationale of the above cited cases to the facts herein, this Court concludes that the People have met their burden of proving causation. The victim acted voluntarily in refusing nourishment and medical treatment. However, his inability to ingest food orally was directly caused by the gunshot wound he suffered.

The gunshot wound created the difficulty swallowing and the difficulty swallowing prevented him from ingesting food orally. The gunshot wound set in motion a chain of events resulting in hospitalization, difficult swallowing, and forced feeding, the cessation of which resulted in death. The gunshot wound forged a causative link between the initial injury and death and was a sufficiently direct and contributing event which eventually resulted in death. The suicide does not operate as an intervening act that excuses criminal liability because death was not solely attributable to this secondary agency.

Continue reading "In the case at bar, the intervening event was the victim's refusal of nourishment" »

The plaintiff, a Queens resident, was arrested ...cont

April 7, 2015,

The issue in this case is whether CPLR 504(3) mandate that an action against the City of New York must be brought and venued only in the county where a "continuing tort" first occurred; or can the action be commenced by the plaintiff in any County in the City of New York where the tort continued.

Venue, the proper situs of a proceeding, does not involve the jurisdiction of the court to hear and determine the action, and venue issues, unlike those involving personal and subject matter jurisdiction, do not result in the enlargement or impairment of substantive rights. Although personal and subject matter jurisdiction require compliance with constitutional mandates, venue issues are not so burdened, and the situs of an action may be located anywhere within the geographical jurisdiction of the court as deemed appropriate by applicable statute or rule. The commencement of an action or proceeding in an inappropriate county territorial subdivision of the Supreme Court of the State of New York, would not, with one exception not here relevant,1 result in a dismissal of the action, but would merely require a "change of venue," i.e., a transfer of the action to the appropriate county. It appears that the only mechanisms for changing venue are by consent of the parties, or by an order of the court rendered pursuant to a motion.

For the Supreme Court of the State of New York, the prescribed venue of an action is now codified at and statutorily authorized by Article 5 of the CPLR. Unless the parties have by prior written agreement fixed the venue of an action, CPLR Article 5 permits the plaintiff the right to make the initial selection of an appropriate venue.

CPLR 509 provides that "notwithstanding any provisions of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order [of the court] upon motion, or by consent." It is settled that upon a motion by defendant to change said venue defendant bears the burden to establish that the plaintiff's choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. In addition, it is settled that "unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed."

The proper venue for actions against public entities is set forth in CPLR 504, which states in relevant part, that: "Notwithstanding the provisions of any charter heretofore granted by the state and subject to the provisions of subdivision (b) of section 506, the place of trial of all actions against counties, cities, towns, villages, school districts and district corporations or any of their officers, boards or departments shall be, for: 3. the City of New York, in the county within the city in which the cause of action arose, or if it arose outside of the city, in the county of New York."
Undoubtedly, an action against the City of New York must be brought in the county where the action arose, if it arose within the City. It must be noted however, that CPLR 504 is only a venue statute and it provides no guidance to a court in ascertaining where a cause of action "arose". Thus, when disputes arise as to venue, the court must resolve same on a case by case basis.
In any event, it does not seem to be disputed that (apart from the venue issue) a continuous tort, such as a false imprisonment, occurs and continues in every county to which a claimant is taken and victimized. However, some courts construing statutes such as CPLR 504 have reasoned that, for purposes of venue, the word "arose" must be read to mean only where the first act occurs which provides the basis for the cause of action.

In any event, this Court now concludes that, in actions against the City of New York (for continuing torts such as false imprisonment), venue can be properly placed by plaintiff in any County in the City of New York in which the tort occurs or continues. In other words, the Court concludes that the tort continues to "arise" in every venue where it is committed. The Court finds that since one of the alleged torts (false imprisonment) "arose" (at least in part) in the County of the Bronx; the action was properly commenced by plaintiff in Bronx County; and thus this court has the obligation and authority to decide the merits of the personal injury motion and cross-motion.

Despite the above conclusion, the defendant's motion to change venue to Queens County is granted, but not upon the grounds asserted by defendant.

There is another more compelling reason to grant the defendant's motion to change venue, that is, to prevent forum shopping. It appears that since the closure of the detention centers in Queens and Brooklyn, a majority of persons arrested for crimes allegedly committed in those counties are temporarily imprisoned in Bronx County on Riker's Island2 pending prosecution and trial in the County where they were arrested. If temporary imprisonment in Bronx County, pending prosecution and trial in another county, was the only factor justifying venue, Bronx County could conceivably be inundated with actions and claims which, in essence, almost entirely "arose" in another county. Such an outcome would undermine and be in derogation of the policy objective underlying CPLR 504 (3).

The court notes that in this case the crime was allegedly committed in Queens by a Queens’s resident, and all of the alleged torts (except for false imprisonment) "arose" in their entirety in the County of Queens. Plaintiff was arrested and initially imprisoned in Queens, and fully prosecuted in that County. It is presumed that all records concerning these events are located in Queens, and that it may be more convenient for witnesses to appear there. Had the circumstances been different (for example, if plaintiff had been arrested and initially detained in Queens based on a crime committed in Bronx County; and he was imprisoned and fully prosecuted in the Bronx), the court would not be inclined to grant defendant's motion to change venue to the County of Queens, despite the fact that the arrest and initial detention (false imprisonment) first "arose" in Queens.
Thus, a change of venue to the County of Queens is proper and appropriate in the case under consideration. Before doing so, however, since the action was properly commenced in Bronx County in the first instance, this Court must fulfill its obligation pursuant to GML 50-e(7) and must therefore consider and determine plaintiff's application to file a late notice of claim.

For the reasons stated above, the Court grants plaintiff's motion to file a late notice of claim (a copy of which is annexed to the application) and deems the same to have been served timely — nunc pro tunc; and the Court also grants the defendant's cross-motion, however, only to that portion which seeks a change of venue to Queens County; and is otherwise denied.

The plaintiff, a Queens resident, was arrested

April 6, 2015,

A Bronx Estate Lawyer said that, plaintiff moves by order to show cause to deem his late notice of claim to have been timely served upon the defendant City of New York, nunc pro tunc. The defendant opposes and cross moves for the venue of the matter to be changed from Bronx County to Queens County, or, in the alternative for dismissal of the complaint.

The plaintiff, a Queens resident, was arrested on January 17, 2006 outside of his home in Queens County and charged in that County with obstructing governmental administration and resisting arrest. Upon his arrest he was taken to the 107th precinct in Queens County, and thereafter confined, pending trial, in different facilities, including Riker's Island, which is in the territorial waters of Bronx County. Pending trial, he was confined at Riker's Island, in Bronx County until January 30, 2006. The plaintiff ultimately went to trial in the County of Queens and on June 1, 2006 was acquitted of all personal injury charges brought against him. He did not commence any civil proceedings or retain an attorney to do so until after his acquittal.

A Bronx Estate Administration Lawyer said that, plaintiff retained his present attorney on August 24, 2006; and on August 29, 2006, filed a (partially untimely) notice of claim against the City, alleging false arrest, false imprisonment, assault and battery, negligent hiring and retention, malicious prosecution and a violation of the plaintiff's constitutional rights. Although the notice of claim for malicious prosecution was timely filed the 90 day period had expired for claims alleging false arrest, false imprisonment, assault and negligent retention. The alleged civil rights/constitutional violations are not subject to the notice of claims requirements. In any event, a 50-h hearing was held on October 18, 2006, at which the plaintiff gave testimony as to the underlying incident which gave rise to each cause of action.

A Bronx Estate Litigation Lawyer said that, the plaintiff commenced an action by the filing of a summons and verified complaint in Bronx County on January 5, 2007. As in the notice of claim, the complaint alleges causes of action for false arrest, false imprisonment, negligent hiring and retention, malicious prosecution, and a violation of the plaintiff’s constitutional rights.

On January 26, 2007, the defendant served its answer to the personal injury complaint, and included with its answer a demand, pursuant to CPLR 504(3) to change venue to the county of Queens. By Order to Show Cause, dated March 16, 2007, the plaintiff moved pursuant to GML Section 50 to extend his time to serve a notice of claim (for false arrest, false imprisonment, assault and battery) and to have it deemed to have been timely served upon the defendant City of New York. The City cross moved for a change of venue to the County of Queens, or in the alternative for dismissal of the action.

Plaintiff argues initially that all causes of action are properly venued since one of them (false imprisonment) took place in part in Bronx County, and contends therefore that the court has both the jurisdiction and discretion to grant the motion. Plaintiff argues further that since the claims for malicious prosecution and violation of civil rights are timely, and since the City's investigation on those claims is the same as for all the remaining claims, there is clearly no prejudice to the City to permit a late service of a notice of claim for the tardy claims and to allow the entire action to proceed. Plaintiff argues that, in any event, there will be no prejudice to the defendants if this relief is granted since the defendant had actual knowledge of, and an opportunity to investigate the facts underlying each claim since it was defendant's agents that made the arrest and participated in the prosecution of the plaintiff.

The City contends that the venue of the matter (including this motion) should be transferred from the Bronx to Queens County pursuant to CPLR 504 (3) since the plaintiff was arrested and prosecuted in Queens, and thus the accident, which "gave rise" to the claims, first occurred in the County of Queens. The City argues, in the alternative, that the motion to file a late notice of claim should be denied because: (1) plaintiff has provided no reasonable excuse for the delay in filing; (2) the city was denied an opportunity to investigate the claims; and (3) the action as well as this motion, were improperly commenced and venued in Bronx County, rather than in the County of Queens (the claimed proper venue for this these actions); and further that the complaint should be dismissed since the filing of a notice of claim is a condition precedent to bringing the action.


To Be Cont...

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