Farias-Alvarez v. Interim Healthcare of Greater N.Y., 2015–12299

• Decision Date: 28 November 2018
• Docket Number: 2015–12299,Index No. 1752/12
• Citation: 88 N.Y.S.3d 485,166 A.D.3d 945
• Parties: Maria L. FARIAS–ALVAREZ, etc., Appellant, v. INTERIM HEALTHCARE OF GREATER NEW YORK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 945

88 N.Y.S.3d 485

Maria L. FARIAS–ALVAREZ, etc., Appellant,

v.INTERIM HEALTHCARE OF GREATER NEW YORK, et al., Respondents.

2015–12299

Index No. 1752/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 8, 2018

November 28, 2018

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...