Opinion
2015–12299 Index No. 1752/12
11-28-2018
Maria L. FARIAS–ALVAREZ, etc., Appellant, v. INTERIM HEALTHCARE OF GREATER NEW YORK, et al., Respondents.
Feldman, Kleidman, Coffey, Sappe & Regenbaum, LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), for appellant. Mauro Lilling Naparty, LLP, Woodbury, N.Y. (Caryn L. Lilling and Seth M. Weinberg of counsel), for respondents.
Feldman, Kleidman, Coffey, Sappe & Regenbaum, LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), for appellant.
Mauro Lilling Naparty, LLP, Woodbury, N.Y. (Caryn L. Lilling and Seth M. Weinberg of counsel), for respondents.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiff appeals from a judgment of the Supreme Court, Orange County (Robert A. Onofry, J.), dated September 14, 2015. The judgment, upon a jury verdict in favor of the defendants and against the plaintiff on the issue of proximate cause, is in favor of the defendants and against the plaintiff dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
The plaintiff, Maria L. Farias–Alvarez, individually and as parent and natural guardian of Alejandra Alvarez (hereinafter Alejandra), commenced this action to recover damages for personal injuries Alejandra allegedly sustained on November 23, 2011, when she was bathed by the defendant Natascha N. Tiger, a nurse employed by the defendant Interim Healthcare of Greater New York.
At a jury trial, the plaintiff sought to establish that Alejandra, who was 10 years old at the time of the incident and severely disabled, was burned by scalding water when she was bathed by Tiger at Alejandra's home on November 23, 2011. The plaintiff submitted evidence that Tiger was investigated in connection with the incident by the Orange County Child Abuse Task Force and subsequently convicted, upon a plea of guilty, of one count of endangering the welfare of an incompetent or physically disabled person in the first degree (see Penal Law § 260.34 ). During Tiger's plea allocution, which was admitted into evidence at the trial in this action, she stated, "When I tested [the water], it was not hot." However, in response to further questioning by the plea court, Tiger admitted that she made "an error" when determining whether the water was at "the proper temperature."
During the trial in this action, the defendants sought to establish that Alejandra's injuries were not caused by scalding water, relying upon medical records and cross-examining the plaintiff's expert witnesses as to whether Alejandra's injuries were the result of toxic epidermal necrolysis (hereinafter TEN), a type of severe skin reaction, purportedly caused by a drug Alejandra had been prescribed prior to the incident in question. Of note, Alejandra's skin was biopsied at the hospital one day after the incident, and a pathology report, which the defendants did not discover until very late during the litigation, concluded that the biopsy was, inter alia, consistent with a diagnosis of TEN. Tiger has sought to set aside her conviction based upon, inter alia, the conclusions asserted in the belatedly discovered pathology report (see People v. Tiger, 149 A.D.3d 86, 48 N.Y.S.3d 685, revd 32 N.Y.3d 91, 85 N.Y.S.3d 397, 110 N.E.3d 509 ). The jury in this action rendered a verdict in favor of the defendants, concluding that Tiger's conduct was not a substantial factor in causing Alejandra's injuries. The plaintiff appeals.
The plaintiff contends that the Supreme Court failed to give the criminal plea proper collateral estoppel effect and that the sole question for the jury should have been the amount of damages. On the eve of trial, the plaintiff sought an in limine ruling, based upon the doctrine of collateral estoppel, that Tiger's criminal plea conclusively established that she was negligent as a matter of law and that her negligence proximately caused Alejandra's injuries. Further, the plaintiff argued that the defendants should be precluded from introducing any evidence that Alejandra's injuries were caused by TEN. The court, in effect, granted the plaintiff's application in part, by submitting only the question of proximate cause to the jury and, thus, in effect, awarding the plaintiff judgment as a matter of law on the issue of Tiger's negligence. The court further ruled that the defendants were precluded from introducing evidence regarding TEN in their case-in-chief, but permitted them to cross-examine the plaintiff's experts regarding the medical records concluding that Alejandra's injuries were caused by TEN.
We agree with the defendants' contention that the plaintiff's pretrial application, characterized as one for in limine relief, was the functional equivalent of an untimely motion for summary judgment on the issue of liability (see Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103 ; West Broadway Funding Assoc. v. Friedman, 74 A.D.3d 798, 798, 901 N.Y.S.2d 548 ; Marshall v. 130 N. Bedford Rd. Mount Kisco Corp., 277 A.D.2d 432, 717 N.Y.S.2d 227 ; Downtown Art Co. v. Zimmerman, 232 A.D.2d 270, 648 N.Y.S.2d 101 ). "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" ( Rondout Elec. v. Dover Union Free School Dist., 304 A.D.2d 808, 810–811, 758 N.Y.S.2d 394 ). Further, "in the absence of any showing of ‘good cause’ for the late filing of such a motion ( CPLR 3212[a] ) the Supreme Court should have denied the motion" ( West Broadway Funding Assoc. v. Friedman, 74 A.D.3d at 799, 901 N.Y.S.2d 548, citing Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). We note that, in light of the verdict in favor of the defendants, we do not otherwise review the propriety of the court's ruling on the plaintiff's in limine application.
The plaintiff's contention that improper remarks by defense counsel deprived her of a fair trial is largely unpreserved for appellate review (see Reilly v. St. Charles Hosp. & Rehabilitation Ctr., 143 A.D.3d 692, 694, 40 N.Y.S.3d 118 ; Frederic v. City of New York, 117 A.D.3d 899, 900, 985 N.Y.S.2d 914 ). To the extent the plaintiff's contention is preserved, viewing defense counsel's conduct in the context of the entire trial, we conclude that it was not pervasive or prejudicial, or so inflammatory as to deprive the plaintiff of a fair trial (see Lariviere v. New York City Tr. Auth., 131 A.D.3d 1130, 1132, 17 N.Y.S.3d 153 ; Oakes v. Patel, 87 A.D.3d 816, 819, 928 N.Y.S.2d 795, mod 20 N.Y.3d 633, 965 N.Y.S.2d 752, 988 N.E.2d 488 ; Jun Suk Seo v. Walsh, 82 A.D.3d 710, 710, 918 N.Y.S.2d 146 ; Wilson v. City of New York, 65 A.D.3d 906, 908, 885 N.Y.S.2d 279 ; Davis v. Nassau Ophthalmic Servs., 232 A.D.2d 358, 361, 648 N.Y.S.2d 454 ).
We agree with the Supreme Court's determination to deny the plaintiff's request for a Noseworthy charge (see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 ). Since Alejandra's inability to testify was the result of her severe, preexisting disability, and not the result of Tiger's alleged negligent conduct, the Noseworthy doctrine was not applicable (see Nunez v. New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 110 A.D.3d 686, 688–689, 972 N.Y.S.2d 618 ; Anderson v. House of Good Samaritan Hosp., 44 A.D.3d 135, 143, 840 N.Y.S.2d 508 ; see also PJI 1:62 ).
The Supreme Court providently exercised its discretion in excluding Alejandra from the courtroom during summations since she had profound physical and mental disabilities and was incapable of assisting counsel in the presentation of the case, and since her presence might well have impaired the jury's capacity for objective consideration of the facts (see Cruz v. St. Luke–Roosevelt Hosp. Ctr., 280 A.D.2d 317, 318, 722 N.Y.S.2d 490 ; Caputo v. Sarcona Trucking Co., 204 A.D.2d 507, 611 N.Y.S.2d 655 ).
The plaintiff's remaining contentions are without merit.
MASTRO, J.P., AUSTIN, MILLER and CONNOLLY, JJ., concur.