Who’s to Say Who’s an Expert? …Expert witness cannot usurp the role of the judge…

Posted on March 27, 2023 by Richard Klass

Man with exaggerated round glasses and messy hair, dressed in white coat, with hands holding a range of microphones towards his mouth. Illustrating article about expert witnesses for Richard Klass, attorney, New York

The nursing home resident needed to be transported by ambulette to her medical appointment. Being that the resident was wheelchair-bound, she was to be accompanied to the appointment by her nurse’s aide. The ambulette driver met them inside the nursing facility, wheeled the resident to the ambulette, raised the wheelchair onto the lift and wheeled the resident into the ambulette. The driver then strapped the seatbelt on the resident; however, it was alleged the driver failed to secure the wheelchair to the ambulette.

As the driver started driving to the medical appointment, the ambulette stopped short. Since the wheelchair had not been secured to the ambulette, this caused the resident to slide out from her wheelchair. Unfortunately, the resident’s foot bent underneath her and she fractured her tibia.

Safety measures that should have been taken

The resident died six months after the ambulette incident. Her daughter retained Richard A. Klass, Esq., Your Court Street Lawyer, to sue the nursing home and ambulette service for personal injuries sustained by her mother which had caused her severe pain.

The president of the ambulette transportation service testified that the driver should have secured the wheelchair by strapping the wheels to the floor of the vehicle so that the wheelchair would not move. He also testified that a shoulder belt was needed, as a seatbelt couldn’t hold the person well enough as a wheelchair tends to roll. The ambulette transportation service president stated it was the responsibility of the driver to make sure that the person being transported was properly secured in the ambulette.

Summary judgment motion by the nursing home

Based on the above testimony, the nursing home moved for summary judgment, seeking the dismissal of the lawsuit against the nursing home. The nursing home claimed that it was not the responsibility of the nurse’s aide accompanying the resident to make sure that the resident was properly secured in the ambulette when being transported to medical appointments. In support of its motion, the nursing home put forth an affidavit from an engineer designated as an expert witness who stated that it was “clearly the responsibility of the driver to ensure that the patient is securely fastened as it is the driver’s responsibility to ensure the safety of the patient during transportation.” He further opined that, “it is not the responsibility of the attendant to ensure that the patient is securely fashioned [sic].”

Expert witness cannot usurp the role of the judge.

In opposition to the motion, it was urged that the nursing home didn’t really offer any evidence to support its fundamental obligation to its residents – to ensure that its residents are safe. The daughter cited to the decision in D’Elia v. Menorah Home and Hospital for Aged and Infirm, 51 AD3d 848 [2 Dept. 2008], where the court held that “a medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his or her own safety.” It was argued that there were issues of fact as to whether the nursing home failed to implement available precautions to protect the resident from the foreseeable risk of not being properly secured in the ambulette.

As to the expert witness’ affidavit, it was alleged to only contain opinions from the engineer as to what was “clear” to him as to the duties of the parties, without relying on anything more. Substantial New York case holds for the proposition that an expert cannot offer mere opinions as to legal obligations. See, Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 69 [1 Dept. 2002].[1]

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Endnote

[1] “expert witnesses should not * * * offer opinion as to the legal obligations of parties * * *; that is an issue to be determined by the trial court. Expert opinion as to a legal conclusion is impermissible” (Colon v Rent-A-Center, Inc., 276 AD2d 58, 61). An expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party’s conduct.”

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #ambulette #expert #nursinghome #litigation

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

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Act like Audrey. Dress like Jackie. Party like Gatsby. LawCURRENTS Winter 2023

Posted on January 3, 2023 by Richard Klass

She rented a Hamptons house for the summer. At the time of entering into the lease with the landlord, she paid $12,000 for the security deposit required under the lease.[1]

Failure to return the security deposit

At the end of the summer, the tenant requested the return of her security deposit. The landlord failed to comply with the lease and return the money. The landlord never provided the tenant with an itemized statement alleging any basis to retain any portion of the money. The tenant retained Richard A. Klass, Esq., Your Court Street Lawyer, to sue the landlord, claiming she was liable to Plaintiff for the amount of the security deposit with interest from the date the tenant vacated the premises.

NYS Security Deposit Law

On June 14, 2019, the New York State Legislature enacted the Housing Stability and Tenant Protection Act of 2019 (HSTPA), which made widespread changes to various laws affecting tenants’ rights. One of the major changes made under the HSTPA was to strengthen the rent security deposit laws. General Obligations Law § 7-108 provides that, within 14 days after a tenant has vacated the premises, the landlord has to provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and return any remaining portion of the deposit to the tenant. If the landlord fails to provide the itemized statement and deposit within 14 days, then the landlord forfeits any right to retain a portion of the security deposit.[2]

Motion for Summary Judgment

Once discovery proceedings were completed and both parties exchanged documentation concerning the claim, the tenant moved for summary judgment. It was urged that summary judgment be granted in favor of the tenant against the landlord for the full return of her security deposit. According to the tenant’s affidavit, at the end of the lease term and after she vacated the premises, the landlord failed to return her security deposit despite her repeated demands.

Summary judgment is proper when there are no issues of triable fact (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]). Issue finding rather than issue determination is its function (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957]). The evidence will be construed in the light most favorable to the one moved against (Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 [3rd Dept.1964]). “Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied.” (Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 [2d Dept.1989]). To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor (GTF Mktg., Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755 [1985]). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v. Algaze, 84 N.Y.2d 1019, 622 N.Y.S.2d 674, 646 N.E.2d 1101 [1995]).

Landlord failed to provide any proof

It was incumbent on the landlord to put forward in opposition to the motion her evidence in admissible form in order to raise an issue of fact. She has failed to do so. As held by the NYS Court of Appeals in Zuckerman v City of New York, 49 NY2d 557, 562 [1980], “We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form.”

In her affidavit the landlord made the unsupported allegation that the tenant was notified of all damage “with [sic]” 14 days of the lease termination. However, she did not provide proof of compliance with General Obligations Law § 7-108(1-a)(e). There was NO itemized statement as required by statute (“the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant.”). The email exchanges produced by the landlord in opposition did not indicate why certain areas and items needed to be cleaned or even whether items needed to be cleaned due to damage resulting from the tenancy or just being dirty from normal wear and tear. It was pointed out that General Obligations Law § 7-108(1-a)(f) provides: “In any action or proceeding disputing the amount of any amount of the deposit retained, the landlord shall bear the burden of proof as to the reasonableness of the amount retained.”

Summary Judgment Granted

In granting the tenant’s motion for summary judgment, the judge determined that the landlord “failed to proffer evidence to sufficiently rebut the plaintiff’s prima facie case. The emails nor the itemized invoices submitted indicated the basis for retaining the security deposit.” The judge granted judgment directing that the landlord pay the tenant back her $12,000 security deposit.

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Endnotes

[1] 3 (a) SECURITY DEPOSIT: Upon signing this lease agreement, Tenant shall pay the amount of $12,000 to the order of Landlord by bank/cashier’s check drawn on a U.S. bank or by electronic wire transfer, to be held as security by Landlord in a segregated account, as required by law. The security deposit may not be used as payment of rent. It is expressly understood and agreed that Tenant’s liability to perform the terms of this lease is in no way limited to the amount of the security deposit. Within fourteen (14) days after the tenant has vacated the premises, Landlord shall provide Tenant with an itemized statement indicating the basis for the amount of any deposit retained and shall return any remaining portion of the deposit to the Tenant.

[2] General Obligations Law § 7-108 provides, in relevant part:

This section shall apply to all dwelling units in residential premises, unless such dwelling unit is specifically referred to in section 7-107 of this title.

1-a. Except in dwelling units subject to the city rent and rehabilitation law or the emergency housing rent control law, continuing care retirement communities licensed pursuant to article forty-six or forty-six-A of the public health law, assisted living providers licensed pursuant to article forty-six-B of the public health law, adult care facilities licensed pursuant to article seven of the social services law, senior residential communities that have submitted an offering plan to the attorney general, or not-for-profit independent retirement communities that offer personal emergency response, housekeeping, transportation and meals to their residents:

(a) No deposit or advance shall exceed the amount of one month’s rent, unless the deposit or advance is for a seasonal use dwelling unit as provided for in subdivisions four and five of this section, or unless the deposit or advance is for an owner-occupied cooperative apartment as provided for in subdivision six of this section.

(b) The entire amount of the deposit or advance shall be refundable to the tenant upon the tenant’s vacating of the premises except for an amount lawfully retained for the reasonable and itemized costs due to non-payment of rent, damage caused by the tenant beyond normal wear and tear, non-payment of utility charges payable directly to the landlord under the terms of the lease or tenancy, and moving and storage of the tenant’s belongings. The landlord may not retain any amount of the deposit for costs relating to ordinary wear and tear of occupancy or damage caused by a prior tenant.

(c) After initial lease signing but before the tenant begins occupancy, the landlord shall offer the tenant the opportunity to inspect the premises with the landlord or the landlord’s agent to determine the condition of the property. If the tenant requests such inspection, the parties shall execute a written agreement before the tenant begins occupancy of the unit attesting to the condition of the property and specifically noting any existing defects or damages. Upon the tenant’s vacating of the premises, the landlord may not retain any amount of the deposit or advance due to any condition, defect, or damage noted in such agreement. The agreement shall be admissible as evidence of the condition of the premises at the beginning of occupancy only in proceedings related to the return or amount of the security deposit.

(d) Within a reasonable time after notification of either party’s intention to terminate the tenancy, unless the tenant terminates the tenancy with less than two weeks’ notice, the landlord shall notify the tenant in writing of the tenant’s right to request an inspection before vacating the premises and of the tenant’s right to be present at the inspection. If the tenant requests such an inspection, the inspection shall be made no earlier than two weeks and no later than one week before the end of the tenancy. The landlord shall provide at least forty-eight hours written notice of the date and time of the inspection. After the inspection, the landlord shall provide the tenant with an itemized statement specifying repairs or cleaning that are proposed to be the basis of any deductions from the tenant’s deposit. The tenant shall have the opportunity to cure any such condition before the end of the tenancy. Any statement produced pursuant to this paragraph shall only be admissible in proceedings related to the return or amount of the security deposit.

(e) Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit.

(f) In any action or proceeding disputing the amount of any amount of the deposit retained, the landlord shall bear the burden of proof as to the reasonableness of the amount retained.

(g) Any person who violates the provisions of this subdivision shall be liable for actual damages, provided a person found to have willfully violated this subdivision shall be liable for punitive damages of up to twice the amount of the deposit or advance.

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #security-deposit

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The court discussed the issue re “near privity” concerning the attorney/client relationship

Posted on December 19, 2022 by Richard Klass

In Curtis v Berutti, 77 Misc 3d 327 [Sup Ct 2022], the court discussed the issue re “near privity” concerning the attorney/client relationship.

In New York, absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable for professional negligence to third parties who are not in privity with the attorney; however, where the relationship is so close as to touch the bounds of privity, an action for legal malpractice may be maintained. Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 A.D.3d 172, 787 N.Y.S.2d 15 (1st Dept. 2004).

“In order for a relationship to approach ‘near’ privity’s borders, for the purpose of maintaining a professional negligence claim, the professional must be aware that its services will be used for a specific purpose, the plaintiff must rely upon those services, and the professional must engage in some conduct evincing some understanding of the plaintiff’s reliance.” Allianz, 13 A.D.3d at 175, 787 N.Y.S.2d 15.

Although New York’s “near privity” exception is infrequently applied, sufficient “near privity” has been found under certain circumstances. See, e.g., Minsky v. Haber, 74 A.D.3d 763, 764, 903 N.Y.S.2d 441 (2d Dept. 2010) (near privity exception applied where attorneys represented daughter’s “personal interests” where she was deemed to be a “third-party beneficiary” of the attorney’s prior representation of her father); Baer v. Broder, 86 A.D.2d 881, 882, 447 N.Y.S.2d 538 (2d Dept. 1982) (near privity exception applied where widow, who, as executrix of her husband’s estate, hired attorney to prosecute a wrongful death action, was permitted to maintain an action against the attorney, in her individual capacity, for malpractice even though she had no privity of contract with the attorney in her individual capacity, since the widow and the attorney had a “face-to-face” relationship in the underlying wrongful death action and the widow was the “real party in interest” in the wrongful death action); Good Old Days Tavern, Inc. v. Zwirn, 259 A.D.2d 300, 300, 686 N.Y.S.2d 414 (1st Dept. 1999) (near privity exception applied where plaintiff, as president and sole shareholder of corporate client, was a foreseeable third-party beneficiary of the contract pursuant to which he retained the defendant/attorney to represent his corporation, which was tantamount to a relationship of contractual privity).

The precise question of whether an attorney who represents a guardian also represents the guardian’s ward (under a “near privity” exception or otherwise) has not been answered in New York. Other states, however, have answered the question in the affirmative. Such states have recognized that an exception to the privity requirement for legal malpractice liability must exist when a guardian hires an attorney specifically the benefit their ward. For example, in Illinois, courts have recognized that an attorney-client relationship extended from the attorney to the ward where the attorney, although hired by the ward’s guardian, was acting for the primary benefit or best interests of the ward. See Schwartz v. Cortelloni, 177 Ill. 2d 166, 174–75, 226 Ill.Dec. 416, 685 N.E.2d 871 (1997) (stating that the key factor to be considered is whether the attorney acted at the direction of or on behalf of the client for the benefit of the ward). Similarly, in Florida, it has been held that the attorney for guardian owes a duty to the ward where the ward is the intended third-party beneficiary of the attorney’s services. See Saadeh v. Connors, 166 So. 3d 959 (Fla. Dist. Ct. App. 2015) (reinstating the ward’s legal malpractice claim against the guardian’s attorney and noting that the relationship between the guardian and the ward is such that the ward must be considered to be the primary or intended beneficiary and cannot be considered an “incidental” beneficiary). Further, Arizona courts have held that when an attorney undertakes to represent the guardian of an incompetent ward, the attorney assumes a relationship not only with the guardian but also with the ward as the intended beneficiary, whose interests overshadow those of the guardian and, thus, an attorney cannot escape liability for wrongful conduct on the ground of lack of privity. See In re Guardianship of Sleeth, 226 Ariz. 171, 244 P.3d 1169 (Ct. App. 2010); see also Fickett v. Superior Court, 27 Ariz. App. 793, 558 P.2d 988 (1976).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #near-privity

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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…negligent in not objecting to the judgment debtor’s bankruptcy proceeding…

Posted on December 5, 2022 by Richard Klass

In Basile v Law Offices of Neal Brickman, P.C., 2022 NY Slip Op 06079 [1st Dept Nov. 1, 2022], the court affirmed the denial of the law firm’s motion to dismiss, holding:

The legal malpractice claim may not be barred by the three-year statute of limitations (CPLR 214[6]). Plaintiff contends that the claim was tolled by the continuous representation doctrine based on alleged emails and telephone conversations about collecting on plaintiff’s money judgment against the judgment debtor following its entry in 2010, at which time the judgment debtor did not have sufficient assets to satisfy the judgment. Defendants, however, assert that there was no continuous representation because plaintiff had no communication with them concerning collecting on the unsatisfied judgment until August 2019, when the limitations period on the instant claim had expired. These factual contentions concerning whether defendant continued to represent plaintiff during the relevant time period so as to toll the limitations period give rise to factual issues that cannot be resolved in this pre-answer motion to dismiss (see Boesky v. Levine, 193 A.D.3d 403, 147 N.Y.S.3d 2 [1st Dept. 2021]; Johnson v. Law Off. of Kenneth B. Schwartz, 145 A.D.3d 608, 612, 46 N.Y.S.3d 1 [1st Dept. 2016]).

Furthermore, the complaint’s allegations are sufficient to state a cause of action for legal malpractice. Plaintiff alleges that defendants were negligent in not objecting to the judgment debtor’s bankruptcy proceeding in 2015, which resulted in a discharge order that barred plaintiff from collecting on his money judgment against her. Defendants argue that they did not breach their duty to plaintiff by not intervening in the bankruptcy proceeding because they did not receive notice of the proceeding. Defendants submit the bankruptcy petition, which, in naming plaintiff as a creditor, included an outdated address for defendants and omitted the name of defendants’ law firm or a suite number. These undisputed facts, however, are not sufficient to find as a matter of law that defendants did not breach their duty to plaintiff. Defendants relocated to their new office in September 2014 and the judgment debtor filed her bankruptcy petition in January 2015, three months later. The bankruptcy petition included the name of the attorney who had assisted in plaintiff’s underlying action against the judgment debtor. At the very least, a factual issue exists as to whether the notice of the bankruptcy proceeding to object on plaintiff’s behalf was forwarded to defendants, which cannot be resolved at this juncture. As to proximate cause, contrary to defendants’ contention, proof of the collectability on a judgment is not an essential element of the legal malpractice claim, and arises after the “case within the case” has been proven (Lindenman v. Kreitzer, 7 A.D.3d 30, 35, 775 N.Y.S.2d 4 [1st Dept. 2004]).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #bankruptcy-proceeding

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Richard A. Klass Selected for the Seventh Time for the New York Metro Super Lawyers List

Posted on November 30, 2022 by Richard Klass

We are pleased to announce that Richard Klass, has been selected to the 2022 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the New York Metro area.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

Peer nominations
Independent research by Super Lawyers
Evaluations from a highly credentialed panel of attorneys

The objective of the Super Lawyers lists is to create a credible, comprehensive and diverse listing of outstanding attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

For more information about Super Lawyers, go to SuperLawyers.com. Super Lawyers is a registered trademark of Thomson Reuters.

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #superlawyers

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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