I. PROCEDURAL CONCERNS
A.
Court Control Over Trial
1.
Generally
People v. Abrams, 117 A.D.3d 104, 983 N.Y.S.2d 246 (1st Dep’t 2014)
In this murder prosecution, Court noted that although a claim in a criminal prosecution that the
intrusion of the trial judge into the trial proceedings deprived the D of his constitutional right to a
fair trial is not subject to harmless error analysis, the strength or weakness of the evidence may
be considered as a factor in determining whether the defendant received a fair trial.
People v. Nelson, 125 A.D.3d 58, 998 N.Y.S.2d 216 (2d Dept. 2014)
In this murder prosecution, Court held D was not entitled to new trial based on alleged danger
that jury had been influenced by T-shirts worn by the victim’s family bearing his photo and the
words “Remember Leon Walton”. Court initially declined to adopt a per se rule barring such
conduct, holding instead that such claims must be decided on a case-by-case basis. Here, the
Court found trial court that conduct did not threaten D’s right to a fair trial noting the shirts were
not inflammatory, family members did not conduct themselves in a manner which would draw
jury’s attention and their visibility to jury was questionable. Justice Dickeson dissented, arguing
that even if the conduct did not improperly influence the jury, the shirts created an unacceptable
risk that it would happen.
2.
Presentation of Proof
People v. Smith, 118 A.D.3d 920, 988 N.Y.S.2d 233 (2d Dep’t 2014)
In this DWI prosecution, Court noted a trial court has the power to alter the order of proof, in its
discretion and in the furtherance of justice, at least up to the time the case is submitted to the
jury. It then held that contrary to the defendant’s contention, he was not prejudiced as a result of
the County Court’s determination permitting the People to reopen their case to submit his
mugshot into evidence. Court also rejected D’s argument that he was prejudiced by the County
Court’s decision to grant the People’s motion in limine, made one day after the time frame given
by the court for such motions, to admit into evidence his Department of Motor Vehicles driving
abstract, which indicated a prior conviction of driving while intoxicated and a license
suspension. The abstract was admissible pursuant to the business records exception to the
hearsay rule, and did not violate the defendant’s constitutional right to confrontation. In addition,
D has not demonstrated that he was prejudiced by the admission of the abstract.
MRI Enters. Inc. v. Comprehensive Med. Care, 122 A.D.3d 595, 996 N.Y.S.2d 119 (2d Dept.
2014)
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In this breach of contract action tried to the court, Court held trial court did not ever err in
permitting complaint to be amended to conform to the evidence during the trial as there was no
prejudice to D, and to allow P to reopen its case to present additional damages proof.
Rodriguez v. Feldman, 126 A.D.3d 1557, 6 N.Y.S.3d 847 (4th Dept. 2015)
In this custody proceeding pursuant to FCA Article 6, Court held that trial court properly
exercised its discretion in permitting the telephonic testimony of an expert witness who resided
in another state. (see Domestic Relations Law §75-j[2]).
3.
Adjournments
Pezhman v. Dept. of Education, 113 A.D.3d 417, 977 N.Y.S.2d 886 (1st Dept 2014)
In this defamation action, Court held trial court providently exercised its discretion in denying
P’s request for a continuance to retain an attorney to represent her. The record shows that P
chose to proceed pro se despite advice from two judges, including the trial court judge,
apparently believing that she could represent herself adequately without an attorney. Further,
litigation has been ongoing for nine years, and granting P time to find an attorney, and time for
that attorney to prepare from trial, would result in further delay, prejudicing D. As the evidence
submitted by P thus far does not establish a defamation claim, dismissal was proper.
Cohen v. Cohen, 120 A.D.3d 1060, 993 N.Y.S.2d 4 (1st Dept. 2014)
In this matrimonial action, Court held denial of D’s request for a further adjournment of the trial
after she returned to France was not a clear abuse of the Court’s discretion. Court noted the
record fully supports the trial court’s finding that D’s failure to return to court despite a threeweek adjournment, was of her own making. D failed to submit an affidavit explaining her
absence on the May18th date or on the June 6th date; and to the extent she relies on her claim of
medical injury, the claim is unavailing, since the unsworn medical note provided to the court was
brief and vague. While she now claims that she needed only a two week adjournment, D gave no
indication to the court that she would be able to return on a certain date, and her counsel had no
knowledge of when she could actually do so.
Arcamone-Makinaro v. Britton, 117 A.D.3d 889, 986 N.Y.S.2d 372 (2d Dep’t 2014)
In this trespass action, a judge at a conference on 10/27/11 orally directed the timing and
particulars of disclosure, which were unclear and the parties had different interpretations of it.
On 12/12/11, as a nonjury trial was to begin, D’s made an oral application to preclude P’s
experts- the engineer and an appraiser- from testifying due to the plaintiffs’ failure to properly
disclose these witnesses. During oral arguments on that application, it was asserted that the P’s
engineer had completed his report just days earlier that the plaintiffs disclosed their appraiser’s
identity in a letter that defense counsel received on 12/8/11, and that the P’s still had not
disclosed the substance of the appraiser’s proposed testimony. Trial Court granted the
application. Court reversed, noting that Ds did not establish that Ps willfully or intentionally
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violated a court directive regarding expert disclosure and any prejudice to the D’s from late
disclosure would have been limited inasmuch as the D’s own engineer was present when the P’s
engineer conducted his inspection and short adjournment of this nonjury trial could have
eliminated prejudice entirely.
Gutilla v. Peppino’s Food, Inc., 125 A.D.3d 604, 3 N.Y.S.3d 108 (2d Dept. 2015)
In this act to impose a constructive trust, P’s counsel on a Friday afternoon faxed to the trial
court an affidavit requesting a three week adjournment of trial scheduled to start on the following
Monday which was denied. When counsel failed to appear on Monday, trial court dismissed the
action and then denied motion to vacate dismissal. Court held dismissal and denial was an abuse
of discretion as P demonstrated both a reasonable excuse for default and potentially meritorious
cause of action.
Warner v. Orange County Regional Med. Ctr., 126 A.D.3d 887, 6 N.Y.S.3d 83 (2d Dept. 2015)
In this medical malpractice action, Court held trial court’s denial of requested adjournment and
sua sponte dismissal of action was abuse of discretion. P’s counsel one week before trial
notified the court and D’s counsel that he was on trial and trial was likely to continue for another
three weeks; and at scheduled date P through substitute counsel filed an affidavit of engagement
and indicated P’s counsel was unable to proceed.
Hawes v. Lewis, 127 A.D.3d 921, ___ N.Y.S.3d ___ (2d Dept. 2015)
In this real property action, Court held trial court properly denied D’s request for adjournment to
obtain new counsel after her second counsel was relieved based upon his averment that D did not
cooperate with him and D consented to request.
Zanker-Nichols v. United Refining Co., 127 A.D.3d 1347, ___ N.Y.S.3d ___ (3d Dept. 2015)
In this negligence action, D’s counsel appeared on morning of commencement of trial, requested
and was granted adjournment on grounds he was ill and unable to proceed. P moved for costs,
seeking reimbursement for cancellation fees paid to two experts who were scheduled to testify,
which motion was granted. Court held governing rules did not authorize an award under 22
NYCRR130-1, 2 as frivolous conduct was not involved and good cause was asserted as basis
failure to continue.
B.
Spoliation
Voom HD Holdings LLC v. Echostar Satellite LLC, 93 A.D.3d 33, 939 N.Y.S.2d 321
(1st Dep’t 2012)
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On an appeal from an order granting P’s motion to impose sanctions (adverse inference) against
D for its spoliation of evidence consisting of electronically stored information, Court affirmed
and made several significant observations. It noted: (1) once party reasonably anticipates
litigation, it must suspend its routine document retention/destruction policy and put in a place a
“litigation hold”; (2) D satellite television provider did not implement a proper litigation hold
once it should reasonably have anticipated litigation with company whose television
programming it was contractually obligated to distribute, or even for four months after company
filed suit; (3) P was at least grossly negligent, if not guilty of bad faith conduct, in failing to
timely implement a proper litigation hold, such that relevance of destroyed e-mails could be
presumed; (4) provider failed to rebut presumption of relevance; and (5) adverse inference was
appropriate spoliation sanction. Court adopted the standard for preservation set forth in
Zubulake v. UBS Warburg LLC (220 F.R.D. 212 [S.D.N.Y. 2003]) which has been widely
adopted by federal and state courts.
Strong v. City of New York, 112 A.D.3d 15, 973 N.Y.S.2d 152 (1st Dep’t 2013)
In this automobile accident action involving a police car, City asserted the “emergency
operation” affirmative defense. However, an audiotape of communications between the car and
the commanding officer had been deleted after 180 days in the normal course of business. P
sought spoliation. Court held the common law spoliation standard applied and not the Voom
standard which it characterized as adopting the federal standard for spoliation of electronic
evidence. Under the common law standard Court held a less severe sanction was warranted as
the spoliation was not done willfully and P was still able to develop its case without the tape,
which sanction was preclusion of the City from seeking to prove the contents of the tape, and if
warranted at trial, an adverse inference charge.
Pegasus Aviation v. Varig, 118 A.D.3d 428, 987 N.Y.S.2d 350 (1st Dep’t 2014)
Court held that a party’s failure to issue a litigation hold to the members of its organization
directing preservation of ESI is not per se gross negligence. It noted the question of whether a
party was grossly negligent in allowing ESI to be destroyed is based on the particular facts of the
case, and the failure to issue a litigation hold is but one of those facts. Although Ds failed to
issue a litigation hold, their conduct, viewed in its totality, amounted to simple negligence at
most. Therefore, P could not benefit from the presumption of prejudice afforded when the
spoliator engaged in gross negligence, and P was required, but failed to, demonstrate that it was
prejudiced by the destruction of the subjection information. Court also addressed the issue of
when one entity has sufficient control over another to trigger a duty on the part of the first entity
to ensure that the second was preserving appropriate ESI. The entity to be charged with a duty to
ensure the preservation of another entity’s ESI must have “practical control” over the other
entity, say the Court, indicating that the two entities need not be alter egos. Practical control will
be found where the subservient entity would have complied with a request by the dominant
entity to preserve the ESI.
Duluc v. AC & L Food Corp., 119 A.D.3d 450, 990 N.Y.S.2d 24 (1st Dep’t 2014)
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In this slip and fall accident, P retained an attorney within one week of her accident who then
advised D to preserve “any and all video” depicting the fall. Upon receiving the notice, D
preserved 84 seconds of the video which actually showed the P falling. D also reviewed 31 other
cameras in the store which did not depict anything unusual or related to the fall. The cameras
were on a system where, due to a limited amount of storage, the recordings were erased and
written over every 21 days. As such, the only video surviving from the date of the incident was
the 84 seconds previously preserved. P sought as a sanction the striking of the answer. Court
denied request and noted the remedy of striking a pleading was inappropriate where, as here,
there was no showing that the P’s act was willful, contumacious or in violation of a court order.
The court noted that the burden rests on the party requesting the sanction, and D had failed to
meet that standard on this motion. Justice Saxe noted that the striking of D’s Answer or an order
of preclusion was excessive where the loss of the items was merely negligent. However, an
adverse inference charge would have been appropriate. The adverse inference charge would
permit the jury to determine that the video was harmful to the D, unless, the jury found that the
destruction was reasonable under the circumstances.
Maiorano v. JP Morgan,124 AD3d 536, 998 NYS 2d 629 (1st Dept. 2015)
Court held: “P established that D’s failure to take affirmative steps to preserve the surveillance
video recorded on the day she tripped and fell in its bank constituted spoliation of evidence. The
record demonstrates that, although this action was not commenced until more than a year after
the accident, defendant was on notice on the day of the accident that the surveillance video
footage might be needed for future litigation. Supreme Court’s sanction of the giving of an
adverse inference was unheld.
Pennachio v. Costco Wholesale Corp., 119 A.D.3d 662, __ N.Y.S.2d __ (2d Dep’t 2014)
P alleged he was injured when he reached for a shrink-wrapped, glass jar of olives on a shelf in a
store owned by the D which. Unbeknownst to him, was broken. D originally retained the subject
jar and marked it as “evidence” not to be discarded. However, according to the D, the jar was
later discarded inadvertently. After commencing this action against D, P demanded production of
the subject jar and, due to its unavailability, moved to strike the defendant’s answer on the
ground of spoliation of evidence. Court initially held striking of the answer was not warranted as
P had other means to show how long the jar had been broken, and thus constructive notice.
Court further held an issue of fact exists as to whether spoliation of relevant evidence occurred. P
submitted an expert affidavit averring that she could have determined how long the jar had been
broken by analyzing the mold contained in the jar, and D submitted an expert affidavit disputing
that such a conclusion could have been reached. If the opinion of D’s expert were credited, then
an adverse inference would not be warranted, because the lost evidence would not have been
relevant to the P’s case. Thus, this issue of fact should be placed before the jury, along with the
inferences to be drawn therefrom. The jury should be instructed that, if it credits the opinion of
D that no conclusion could have been reached with reasonable certainty regarding how long the
jar had been broken by analyzing the mold contained in the jar, then no adverse inference should
be drawn against the defendant. On the other hand, the jury should be advised that, if it credits
the opinion of the plaintiff’s expert that she could have determined how long the jar had been
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broken by analyzing the mold inside, then it would be permitted to drawn an adverse inference
against D.
Lentini v. Wechsler
120 A.D.3d 1200, 992 N.Y.S.2d 135 (2d Dep’t 2014)
In this action where P alleged she was injured when some bricks collapsed as she was walking
on a brick walkway, trial court struck answer on the ground of D’s spoliation of evidence. D had
paved over walkway with fresh cement after P requested him not to do until he made
arrangements to inspect the brick walkway. Court affirmed, noting D paved over the walkway
after receiving notice P intended to inspect it and that such paving frustrated P’s ability to prove
his case.
Dyer v. City of Albany
121 A.D.3d 1238, 995 N.Y.S.2d 753 (3d Dep’t 2014)
P alleged that D was negligent in failing to maintain a city park playground where the infant P
was injured when she fell from a swing. P moved to strike answer pursuant to CPLR 3126 based
upon D’s destruction of the swing, which was denied and affirmed. Court upheld affirmance,
noting that D’s supervisor testified he was informed that someone had gotten hurt on one of the
swings, so he went to the park, inspected all of the swings and observed that the safety
mechanism would not latch on one swing. After unsuccessfully attempting to latch it 2 times, he
removed the wing and disposed of it. D had not been directed to preserve the swing, it is unclear
whether the disposal occurred before P served a notice of claim, and neither P nor her relatives
had notified D of any problem with the swing aside from that notice of claim. P was not
particularly prejudiced because relatives took several clear pictures of the swing the day after the
accident and the supervisor testified that the safety mechanism would not latch.
Weiss v. Bellevue Matern. Hosp.,121 A.D.3d 1480, 995 N.Y.S.2d 640 (3d Dep’t 2014)
In this medical malpractice action, P learned during the discovery process that the infant P’s
mother’s labor and delivery records had been destroyed 8 years after the infant’s birth pursuant
to the D’s records retention policy. Trial court denied P’s motion to strike answer on the ground
of spoliation of evidence and Court affirmed. It noted there was no evidence that D acted in bad
faith and that P had not established that the records “fatally compromised their ability to
prosecute the action.”
Johnson v. Ayyub,115 A.D.3d 1191, 982 N.Y.S.2d 615 (4th Dep’t 2014)
In this medical malpractice action, certain radiology films included in a packet of decedent’s
medial records previously picked up by P and returned to D hospital were missing. D physician
moved to strike complaint as against him due to the loss of these films. Noting that there was no
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evidence of intention destruction and the loss did not fatally compromise D’s ability to defend
himself, Court held the sanction of dismissal was not warranted, and let stand the trial court’s
sanction of an adverse inference against the party who may be responsible for the loss.
Simoneit v. Mark Cerrone, Inc.
122 A.D.3d 1246, 996 N.Y.S.2d 1246 (4th Dep’t 2014)
In MV accident case involving a school bus, Court upheld as a spoliation sanction against the
bus company D the striking of affirmative defenses based upon brake failure where D after the
accident replaced allegedly defective parts and discarded them. Court held D should have
anticipated litigation where several of the school children were removed from the scene by
ambulance and the brake parts were a “crucial piece of evidence” to support the defense.
C.
Jury Issues
Varano v. FORBA Holdings, LLC, 42 Misc.3d 303, 974 N.Y.S.2d 913 (Sup. Ct. Onondaga Co.
2013) (Karulunas, J.), rev’d.125 A.D.3d1395, 3 N.Y.S.3d 532 (4th Dep’t. 2015)
In this dental malpractice action, Court set aside a verdict for the Ds based upon the presence of
improper outside influence. It found a nonparty attorney, counsel for an insurer of certain Ds
who was monitoring the trial at his client’s behest, made what it viewed as improper contact with
the jury that was prejudicial and likely to influence the verdict. Over the course of the 15-day
trial, which resulted in a unanimous verdict for the defense, the attorney continuously followed
and monitored the jurors when they went to lunch, took smoking breaks and rode the elevator.
The jurors found him to be “creepy” and felt scared, believing that the attorney was stalking
them. And, having seen the attorney speaking with certain Ds and one of the defense attorneys,
the jury believed the non party attorney was working for the defense. The court recognized that
before setting aside a verdict because of outside influence, a court must examine the facts and
determine whether the outside influence was prejudicial and likely to influence the verdict; and
where the court cannot determine, with any reasonable certainty, whether the verdict was
affected or not, it will be assumed that it was. Here, the court concluded the jury’s verdict in
favor of the defense was s strong indication that the intimidation that the jurors perceived was
successful, and their failure to alert the court to the stalking until after they delivered the verdict
was consistent with this theory. Fourth Department reversed and remanded for a hearing to
determine whether the stalking likely influenced the verdict. In so ruling, Court held trial court
abused its discretion in the manner in which it conducted its investigation.
D.
Objections
Benavides v. City of New York, 115 A.D.3d 518, 982 N.Y.S.2d 85 (1st Dep’t 2014)
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In this personal injury action, P at trial made a motion in limine in which he only objected to four
specific entries in his medical records. Other hearsay medical record entries were not specifically
objected to before the jury rendered its verdict. Court held the admissibility of entries to which
no timely specific objections were made was not preserved for this appeal.
People v. Nicholas, 118 A.D.3d 1183, 988 N.Y.S.2d 277 (3d Dep’t 2014)
In this conspiracy prosecution, D made an in limine motion to preclude admission of a statement
by an alleged co-conspirator, which motion was denied; and the statement was admitted at trial
when offered by the prosecution. Court held in ruling the statement was correctly held to be
admissible that D’s argument was properly preserved “by the motion in limine and appropriate
objections at trial.” (emphasis added). QUAERE: Would the argument have been preserved for
appeal if there were no trial objections? See, FRE 103 [ruling on motion in limine where find is
sufficient to preserve]).
E.
Instructions
People v. Stone, 121 A.D.3d 617, N.Y.S.2d (1st Dept. 2014)
In this assault prosecution Court held trial court properly exercised its discretion in denying
defendant’s mistrial motion, made after a detective gave testimony that may have implied that a
non-testifying declarant had implicated defendant. The court prevented any prejudice by striking
the testimony and instructing the jury to disregard it, an instruction that the jury is presumed to
have followed.
F.
Appealability Of Pre-Trial In Limine Rulings
Deonarine v. Montefiore Med Ctr., 113 A.D.3d 496, 978 N.Y.S.2d839 (1st Dept. 2014)
In this medical malpractice action, trial court denied D’s motion to dismiss based upon P’s
anticpated unavailability based on his imminent deportation. On appeal, Court held the motion
was actually a prematurely made motion for judgment pursuant to CPLR 4401, which has to
await the close of plaintiff’s case at trial even if P’s ultimate success in the action is improbable.
Court also held the court’s denial of defendant’s motion to preclude was effectively an
evidentiary ruling made in advance of trial and, as such, is not appealable, citing Balcom v.
Reither (77 AD3d 863, 864 [2d Dept 2010]).
Ray v. Ray, 121 A.D.3d 620, 995 N.Y.S.2d 567 (1st Dept. 2014)
In this judgment enforcement action, Court held trial court’s denial of P’s motion to bar D from
calling his counsel as a witness is reviewable, because the ruling affects a substantial right (see
CPLR 2701[a][2][v], but, the court’s pretrial denial of P’s motion to exclude an “expert report”
on the issue of duress is not reviewable at this stage, because that ruling does not implicate any
substantial rights or involve the merits of the controversy.
Hurrell-Haring v. State, 119 A.D.3d 1252, 990 N.Y.S.2d 286 (3d Dep’t 2014)
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In this class action challenging indigent criminal defense services, D moved to preclude P’s
disclosed experts from testifying at trial. Trial court granted the motion and denied P’s motion to
reconsider. Court entertained appeal from preclusion order, and reversed it. QUAERE:
Appealable order?
Lynch v. Carlozzi, 121 A.D.3d 1308, 995 N.Y.S.2d 292 (3d Dept. 2014)
In this personal injury action, court held orders which denied defendant’s motion in limine to
preclude certain expert testimony, and granted pedestrian’s motion to admit disability records
into evidence, were not appealable, since the orders neither limited the scope of the issues or the
theories of liability to be tried in the context of pedestrian’s action, nor did they resolve
defendant’s underlying motion for summary judgment dismissing the complaint. COMMENT:
Why not appealable?
Sisemore v. Leffler, 125A.D.3d 1374, 3 N.Y.S.3d 530 (4th Dept. 2015)
In this personal injury action, Court held D could appeal denial of its motion in limine to
preclude P’s expert from testifying due to insufficient expert disclosure as order decided a
motion that involved merits of the actions and affected a substantial right.
II. BURDENS OF PROOF AND ALTERNATIVES TO PROOF
A. Res Ipsa Loquitur
Barney-Yeboah v. Metro-North, 25 NY3d 945, 6 NYS3d 549 (2015), revg., 120 AD3d 1023, 992
NYS2d 215 (1st Dept. 2014)
P, a passenger on D’s train, was allegedly injured when a ceiling panel in the train car swung
open and struck her in the head. P testified that she was seated on the train when she heard a
loud sound, and the next thing she knew, she was on her knees with people around her yelling.
After the commotion, she looked up and saw a hanging panel – a cabinet utility door that had hit
her in the head. First Department granted her S/J based on res ipsa. Court of Appeals reversed,
stating: “This is not the type of rare case in which the circumstantial proof presented by P is so
convincing and the defendant’s response so weak that the inference of defendant’s negligence is
inescapable. The dissent in First Department raised issue regarding exclusivity element. He
noted that proof had shown the ceiling panel could have been loosened by use of a standard
flathead screwdriver.
Galue v. Independence 270 Madison, 119 AD3d 403, 988 NYS2d 483 (1st Dept. 2014)
P was hit in the head by a metal paper towel dispenser/receptacle unit that fell out of the wall at a
building owned and operated by ABS. P’s motion seeking partial summary judgment on liability
was denied. Court held res ipsa is appropriate in only “exceptional cases” and not where, as here,
there are issues of fact with respect to the exclusivity of control over the instrumentality that
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allegedly caused the injury.
Pampalone v. Fre Van Dam, LLC, 123 AD 3d 988, 1 NYS3d 155 (2d Dept. 2014)
In this slip and fall action, Supreme Court granted P S/J based on his res ipsa theory. Court
reversed and noted that only in the “rarest” of actions can P invoke successfully res ipsa to
prevail.
Hoeberlein v. Bed Bath & Beyond, Inc.
124 AD 3d 722, 2 NYS3d 529 (2d Dept. 2015)
P was injured when she was struck by a box that fell from an overhead shelf. P stated that the
box fell from the overhead shelf shortly after she slid a different box back into place on a shelf
directly beneath the overhead shelf. Supreme Court granted P S/J and Court reversed. Court held
P’s circumstantiated proof with res ipsa did not show inference of D’s negligence is inescapable.
B.
Noseworthy
Weinstein v. Nicolosi, 117 A.D.3d 1036, 986 N.Y.S.2d 527 (2d Dep’t 2014)
In this auto accident action, D said shortly after the accident he remembered nothing, and he died
three years later. On P’s S/J motion, Court held doctrine was not applicable to the facts of this
case as P’s knowledge of the facts of this case is no greater than D’s knowledge.
Hill v. Cash, 117 A.D.3d 1423, 985 N.Y.S.2d 345 (4th Dep’t 2014)
In this auto accident action, Court held P’s S/J motion that P failed to raise an issue of fact as to
the applicability of the doctrine and thus the doctrine was inapplicable as a result.
C.
Presumptions
1.
V&T §388
Gray Line NY Tours v. Big Apple Moving & Storage, 115 A.D.3d 570, 983 N.Y.S.2d 1
(1st Dep’t 2014)
P’s stopped tour bus was struck in the rear by a truck owned by defendant and driven by Skerret,
who was an employee of D’s. Court held D raised a triable issue of fact as to whether Skerret had
permission to use the subject vehicle on a personal errand after business hours. Although Skerret
stated that he was not required to obtain permission to use the truck for personal purposes, D’s
owner disputed this claim and stated that he never provided Skerret with permission to use the
truck that day. Furthermore, D’s dispatcher stated that she told Skerret not to use the truck that
day because it was experiencing brake problems.
Han v. BJ Laura & Son, Inc. 122 A.D.3d 591, 996 N.Y.S.2d 132 (2nd Dept. 2014)
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P was injured when his car was struck by a vehicle owned by D; the identity of the person
driving D’s car was unknown. Court held D failed to rebut presumption that driver was operating
the car with its permission, stating that some but not all employees had permission to drive the
vehicle was insufficient to overcome the presumption and D failed as well to establish car was
stolen.
State Farm Ins. Co. v. Walker-Pinckney, 118 A.D.3d 712, 986 N.Y.S.2d 626 (2d Dep’t 2014)
In this proceeding to stay arbitration of a claim for SUM benefits, trial court, after a framed issue
hearing, denied that branch of the petition which was to stay arbitration, based on its finding that
the subject motor vehicle was stolen and being operated without permission at the time of the
accident. Court reversed. It noted V&T §388 creates a strong presumption that the driver of a
vehicle is operating it with the owner’s consent, which can only be rebutted by substantial
evidence demonstrating that the vehicle was not operated with the owner’s permission. The
uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her
permission does not, by itself, overcome the presumption of permissive use.” Here, it held the
vehicle owner’s testimony that the vehicle was missing at the time of the accident, without more,
was insufficient to overcome the presumption.
Clarke v. Hist, 46 Misc. 3d 571, 999 N.Y.S.2d 692 (Sup. Ct. Queens Co. 2014) (McDonald, J.)
In dismissing action against Toyota, lessor of vehicle driven by D that struck P, Court noted that
“negligence caused by the “Graves Amendment, is inapplicable absent some evidence that leasor
failed to maintain a vehicle which it had expressly agreed to maintain pursuant to lease
agreement.
2.
Rear-End Collision
Cheow v. Jin, 121 A.D.3d 1058. 995 M.Y.S.2d 186 (2nd Dept. 2014)
P’s car was rear-ended by D’s car. Court granted S/J on liability to P’s finding D’s explanation
that P’s car stopped suddenly at yellow light on crosswalk was insufficient non-negligent
explanation.
Tate v. Brown, 125 A.D.3d 1397, 3 N.Y.S.2d 826 (4th Dept. 2015)
Court held P’s S/J motion on liability was properly denied where car P was a passenger was rearended by D’s car. It noted that D testified at his deposition that P’s car stopped “suddenly” in the
traffic lane in front of him, and that he could not stop in time to avoid collision and driver of P’s
car offered contrary testimony at his deposition.
Singh v. Brown, 43 Misc.3d 715, 982 N.Y.S.2d 860 (Sup. Ct. Bronx Co. 2014) (Aarons, J.)
11
In this action arising from a three-vehicle collision on a highway, Court held D could not
establish as a matter of law that he was free from negligence, even though he was the lead driver
in the collision, because his own admissions, including that he came to a near stop unexpectedly,
raised issues of fact as to his own negligence. D admitted that, even though traffic was light and
stop-and-go conditions would not have been expected, he slowed almost to a stop while
attempting to exit, after traveling side-by-side with another vehicle for one to two minutes.
Pan v. Haynes, 47 Misc. 3d 306, N.Y.S.3d 739 (Sup. Ct. NY Co. 2015) (Stallman, J.)
Court granted S/J on liability to P whose rear-ended by D’s bus on ground D’s allegation that P
stopped abruptly several times for no apparent reason was an insufficient non-negligent
explanation for the rear-end collision. Court also held as a corollary of rear-end rule, a
presumption also arises that no negligence on the part of the driver of the lead vehicle
contributed to the accident. Here, it was undisputed that the bus rear-ended plaintiff’s vehicle
while it was stopped or stopping. Moreover, D had observed the alleged sudden stops of
plaintiff’s driver’s vehicle, which prompted him to be more vigilant.
3.
Mailing
Preferred Mutual Ins. Co. v. Donnelly, 22 N.Y.3d 1169, 985 N.Y.S.2d 470 (2014),
affg. 111 A.D.3d 1242, 974 N.Y.S.2d 682 (4th Dep’t 2014)
Court held Fourth Department correctly determined that P-insurer presented sufficient evidence
of a regular office practice to ensure the proper mailing of notifications to insureds so as to raise
the presumption that such a notification was mailed to and received by the insured. Specifically,
P-insurer submitted an affidavit from an employee who had personal knowledge of the practices
utilized by the insurer at the time of the alleged mailing to ensure the accuracy of addresses, as
well as office procedures relating to the delivery of mail to the post office. Thus, P-insurer
provided proper notice of the amendment to the policy upon renewal adding the relevant
exclusion. The Fourth Department had also noted: “While we agree with the dissent that there
was no evidence submitted of a practice to ensure that the number of envelopes delivered to the
mail room corresponded to the number of envelopes delivered to the post office, we do not deem
the absence of such evidence fatal to P’s motion in light of the detailed description of all of the
other office practices geared toward ensuring the likelihood that the notices were always
properly addressed and mailed.”
D.
Judicial Notice
Owens v. Miesch, 118 A.D.3d 1259, 987 N.Y.S.2d 780 (4th Dep’t 2014)
In this slip and fall action, D Rochester Housing Authority sought S/J on the grounds its duties
with respect to D the premises did not encompass inspecting the sidewalk for snow and ice
removal. Court held the trial court properly too judicial notice of the applicable HUD regulations
with respect to RHA’s motion.
12
DeLos Santos v. Western Beef Supermarket, Inc., 43 Misc.3d 31, 984 N.Y.S.2d 535
(App. T. 1st Dep’t 2014)
In this action seeking damages to P’s car as a result of the improper towing of his car, P’s car
was towed from D’s lot at 11:00 a.m., and returned to him at 3:30 p.m. that day. The lot had a 2
hour limit for “shopping only,” which the trial court took judicial notice of. From a receipt from
D’s store, showing a purchase at 3:14 p.m., Court found P was parked well-beyond the 2 hours
limits, and thus properly towed. COMMENT: On what basis is the taking of judicial notice
supportable?
Clements v. Clements, 2014 N.Y. Slip Op. 50581(U) (Sup. Ct. Monroe Co.) (Dollinger, J.)
In this divorce action, Court was asked to impose attorneys fees against a party on the ground the
party declined a reasonable settlement offer. In deciding the motion, the Court relied on a series
of emails exchanged between Court and counsel as notations of the respective positions of the
parties. Court said judicial notice was proper because there was no indication that either counsel
disputed the content of the court’s observations, recommendations, or settlement proposals. The
emails are worthy of belief and confidence, and thus judicial notice may be taken by the court on
its own motion in the absence of a specific request by a party.”
III. RELEVANCY
A.
Generally
People v. Goodluck, 117 A.D.3d 653, 987 N.Y.S.2d 47 (1st Dep’t 2014)
In this fraud prosecution Court held D’s refusal to cooperate with his employer’s internal, nonpolice investigation, including an attempted resignation was admissible as “consciousness of
guilt” evidence.
Doe v. Madison Third Bldg. Co., 121 A.D.3d 824, 800 N.Y.S.2d (1st Dept. 2014)
In this action arising out of assault P by security guard employed by D, P sought to amend
complaint to a claim based upon the conduct at the time of the assault of another employee.
Court denied motion, stating that even if he violated his employer’s policies by leaving his post
during the time of the assault, and D should have known that he had done that in the past, D’s
internal rules are not admissible.
Bernard v. Bernstein, 126 A.D.3d 833, 3 M.Y.S.3d 426 (2nd Dept. 2015)
In this podiatric malpractice action arising out of allegations that D’s treatment lead to P’s
development of MRSA, Court held trial court providently exercised its discretion in denying P’s
request to admit evidence that another patient of D also developed a MRSA infection after he
received a cortisone injection from him as the potential prejudicial impact of that evidence
outweighed its probative value.
13
B.
Molineux/Bad Acts
Killon v. Parrotta, 125 A.D.3d 1220, 125 N.Y.S.3d 1220 (3rd Dept. 2015)
P alleged that D struck him with bat. D argued that trial court erred by not granting a mistrial or
issue a curative instruction after D’s ex-wife and P’s friend testified that prior to the incident D
threatened to beat her. Court held no error was present as P testified that he telephoned and
threatened D after she disclosed to him that D had threatened her. As the court charged the jury
to consider P’s provocative conduct in mitigation of damages, her testimony was relevant
because it provided context for P’s conduct, was inextricably interwoven with the evening’s
events and bore on the jury’s consideration of the mitigation issue.
Yarborough v. Cattani, 43 Misc.3d 785, 982 N.Y.S.2d 716 (Sup. Ct. Kings Co. 2014)
(Battaglia, J.)
In this medical malpractice action arising from P’s breast augmentation surgery, Court held the
Board for Professional Medical Conduct’s disciplinary action against D doctor and findings that
he had performed the same surgery negligently and incompetently on another patient were
inadmissible to prove P’s claims of negligence and incompetence. It noted findings of
malpractice are unrelated to a P’s case are marginally relevant at best and likely to cause undue
prejudice, and professional incompetence does not exist “at large,” but rather with respect to
particular matters of knowledge and skill. Here, there was no necessary relationship between the
Board’s finding of D’s incompetence, which it said was evidenced by his improper delegation of
the patient’s postoperative care to untrained office staff, and defendant’s competence as it relates
to his skill and knowledge in performing the surgery.
William Tell Services v. Capital Financial, 46 Misc. 3d 577, 999 N.Y.S.2d 327 (Sup. Ct.
Rensselaer Co. 2014) (Ceresia, J.)
P brought an action against D’s claiming that he was terminated as part of an orchestrated plan to
enable D’s to acquire its customers. While P had never been found guilty of wrongdoing in any
proceeding or action, Court held D’s should be afforded the opportunity to introduce evidence of
the complaints lodged against P in proceedings before FINRA and evidence of prior lawsuits in
support of their defense that P and its principal were discharged for cause by reason of their
violation of FINRA rules.
IV.
WITNESSES
A.
Obtaining Witnesses
Caldwell v. Cablevision Systems, 20N.Y.3d 365, 960 N.Y.S.2d 711 (2013)
Court held testimony of subpoenaed fact witness who receives a fee alleged to be
disproportionately in excess of the mandatory fee requirement for attendance at trial under CPLR
8001(a) is generally admissible, but trial court in a proper case should charge jury as to the
witness’s potential bias due to perceived excessiveness of fee. COMMENT: See, Hutter,
14
Compensating The Fact Witness, NYCJ, 12/1/11, p. 3, col. 3; 1A NYPJI2d (2015eb) 1:93.
NYSBA Ethics Opinion 962 (3/18/13
A lawyer may arrange a client’s payment of reasonable travel expenses and legal fees of a
witness if such payment is not prohibited by law and is not contingent on the witness’s testimony
or the outcome of the case. COMMENT: See Tirschwell, Top 10 Do’s and Don’ts for
Compensating Fact Witnesses, NYCJ, 7/14/14, p.3, col. 3.
NYSBA Ethics Opinion 997 (1/24/14)
It is ethical for an attorney as a general matter to pay for physical evidence in connection with
contemplated or pending litigation.
B.
Representation By Counsel
Thompson v. Mather, 70 A.D.3d 1436 (4th Dep’t 2010)
Court holds that “counsel for a non-party witness does not have a right to object during or
otherwise to participate in a pretrial deposition.” Deponent was P’s treating physician.
COMMENT: Prof. Siegel comments: “Thompson doesn’t say that non-party counsel must be
barred from the scene entirely, but to what avail attendance if counsel is then barred from fully
representing the client?” Siegel’s Practice Review, Vol. 232, No. 4 (April 2011).
CPLR 3113(c) Amendment- L. 2014, c.379
Amendment permits counsel for non-party deponent to participate in deposition to same extent
as counsel for party.
C.
Competency
Getman v. Bernier, 119 A.D.3d 1059, 988 N.Y.S.2d 506 (3d Dep’t 2014)
In this assault prosecution, D moved for an order granting a hearing to determine whether the
victim was competent to testify as to the alleged assault due to her level of intoxication on the
night of the assault, which was granted by trial court. Supreme Court granted a writ of
prohibition, which was reversed by Court. While it noted a trial court had the authority to make
a preliminary inquiry as to a witness’ competency to testify at trial, any error in concluding that
such power covered the situation where the incompetency claim involved intoxication, was a
mere trial error, not subject to the writ.
Trinity Preservation, LP v. Roman, 2015 NY Slip Op. 50142 (u) (App. T. 1st Dept.)
15
In this holdover tenancy proceeding, trial court struck testimony of police officer on ground the
witness refreshed her recollection by reviewing documents in violation of CPLR 160.50, which
witness should not have possessed.
D.
Opinion
Wathne Imports, Ltd. V. PRL USA, 125 A.D.3d 434, 998 N.Y.S.2d 890 (1st Dept. 2014)
Trial court granted D’s motion to preclude P’s CEO from testifying on damages. Court reversed,
finding she had the requisite personal knowledge of the relevant business areas and information
to render her competent to testify as to P’s lost profits, including offering estimates or projections
of lost sales and profits. The witness had been CEO of P throughout P’s 25-year relationship
with D, and had participated in all relevant aspects of P’s business. The weaknesses identified by
D’s in the witness’s analysis bear on the credibility, not the admissibility, of her testimony.
E.
Refreshing Recollection
C.M. v. C.M., 2015 NY Slip Op. 50547(u) (Sup. Ct. Richmond Co.) (DiDomenico, J.)
In this matrimonial custody action, an in camera examination of the parties’ 7 year old child,
who was autistic, was conducted. Court gave little weight to child’s answers to questions as
those answers appeared rehearsed and viewed in circumstances as extraordinarily precise and
unusually articulate.
F.
Missing Witness
Rivera v. Port Authority, 127 A.D.3d 415, 5 N.Y.S.3d 96 (1st Dept. 2015)
In this slip and fall action Court held D’s request for a missing witness charge was untimely. It
so held even though the request for the charge was made at a conference that was held before P’
formally rested, as parties exchanged witness lists before trial commenced, D was aware before
the trial commenced that P would only be calling one of her two treating physicians, and the
testimony of the treating physician not called to testify would have been cumulative.
Ali v. Full Service Auto Repair, LLC, 127 A.D.3d 1003, 7N.Y.S.3d 456 (2nd Dept. 2015)
In this slip and fall action Court reversed verdict for D, finding error was present in trial court’s
denial of P’s request to give charge. At trial, P received into evidence on P’s direct case the
deposition testimony of D’s owner and operator concerning his knowledge of the premises
condition. D did not call owner on his direct case. Court noted P established its entitlement to the
charge and D’s unexplained failure to call owner. It further held P’s use of the owner’s
deposition transcript did not constitute a waiver of P’s right to request the charge.
Nelson v. Bogopa Service Corp., 123 A.D.3d 780, 999 N.Y.S.2d 88 (2nd Dept. 2014)
16
In this slip and fall action, D counsel in his summation stated he would present the testimony of
an ER nurse who would testify as to certain entries in the ER records which purportedly
constituted statements made by P that contradicted his theory of liability. Subsequently, the trial
court precluded such testimony, and permitted P’s counsel to comment about the nurse’s
absence. Court held comment ruling was error as trial court, had precluded D from calling her.
People v. Alexander, 127 A.D.3d 1429, __N.Y.S.3d__ (3rd Dept. 2015)
In this assault prosecution, Court held D’s request for the charge was untimely as it was not
made until after the close of proof.
V. IMPEACHMENT
A.
Generally
People v. Desmond, 118 A.D.3d. 1131, 988 N.Y.S.2d 703 (3d Dep’t 2014)
In this sexual abuse prosecution, D argued the trial court erred in permitting the People to
impeach their own witnesses by questioning those witnesses about any prior criminal
convictions. Court held, after noting that D had not objected at trial, the questioning was proper
as there is no indication in the record that the People made the foregoing inquiries to discredit
their own witnesses; rather, the testimony was elicited “to mitigate the damaging effect this
information would have had if elicited on cross-examination.” COMMENT: Compare Ohler v.
U.S., 529 U.S. 753 (2010) (strategy precludes appellate review of denial of motion to preclude
cross regarding convictions).
Cohen v. Cohen, 120 A.D.3d 1064, 993 N.Y.S.2d 4 (1st Dept. 2014)
In this matrimonial action, P argued that D should not be awarded maintenance because of her
refusal to submit to a complete cross-examination, which prevented the court from ascertaining
her standard of living at the time of the divorce action, in contrast to the time earlier in the
marriage when the parties co-resided. Court held: “when a party, through no fault of its own, is
deprived of the benefit of the cross-examination of a witness, a court may strike that witness’s
direct testimony in a whole or in part. Although we do not condone defendant’s failure to return
to court to complete her cross-examination during that custody phase of the trial, and firmly
believe that this conduct must be sanctioned, we find, under the particular circumstances before
us, that the court providently exercised its discretion when it drew a negative inference against
defendant with respect to custody issues but declined to strike her testimony in its entirety.
NYSBA Ethics Opinion 843 (9/10/10)
A lawyer representing a client in pending litigation may access the Facebook pages for a party
other than him or her client in pending litigation in order to secure impeachment material if the
lawyer does not “friend” the party and instead relies on public pages posted by the party that are
accessible to all members in the network.
17
B.
Conviction
Lawton v. Palmer, 126 A.D.3d 945, 7 N.Y.S.3d 177 (2nd Dept. 2015)
In this personal injury action, P presented testimony from his medical expert, who in expressing
his opinions relied in part on operative report of P’s non-testifying orthopedic surgeon. Trial
court denied D’s application to admit certified copies of DOH records showing the surgeon’s
plea of guilty to insurance fraud. Court found reversible error was present as this impeachment
evidence was especially relative and the certified records, although not certified copy of a
criminal conviction was admissible pursuant to CPLR 4540.
People v. Taylor, 118 A.D.3d 1098, 987 N.Y.S.2d 247 (3d Dep’t 2014)
In this assault prosecution, Court held inasmuch as the scope and extent of cross-examination is
within the trial court’s discretion, County Court did not abuse its discretion in limiting D’s crossexamination of the victim after he had acknowledged his prior convictions by precluding
questions concerning the underlying facts relating to one of those prior crimes.
Towne v. Burns, 125 A.D.3d1471, 3 N.Y.S.3d 844 (4th Dept. 2015)
In this medical malpractice action, Court held trial court did not err in allowing D to crossexamine her expert regarding an out-of-state conviction of contempt, based upon lies told by the
expert to a judge during the court of the expert’s trial testimony. Although the conviction was
over 30 years ago, Court stated that perjury will usually have a “very material relevance,
whenever committed.” However, the Court held error was present, albeit harmless, by reason of
trial court’s curtailing of P’s expert to rehabilitate her expert or redirect examination by asking
him to explain the facts underlying the contempt conviction.
Lugo v. Diallo, 2014 NY Slip op. 6389509 (Trial Order) (Sup. Ct. NY Co.) (Bluth, J.)
In this personal injury action, Court held P was entitled to explore P’s prior criminal history at
her deposition.
C.
Juvenile Delinquency/Youthful Offender Adjudication
Castiglione v. James F. Q., 115 A.D.3d 696, 981 N.Y.S.2d 801 (2d Dep’t 2014)
P on behalf of his injured daughter brought action against father of minor son who threw egg that
struck his daughter in eye, seeking to recover damages for personal injuries. Trial court denied
P’s motion to compel son to answer questions posed at his deposition and to comply with
plaintiff’s demand for authorizations and to impose sanctions for failure to disclose. Court
affirmed. It held the privilege created by the Youthful Offender statute (CPLR article 720)
attached not only to the physical documents constituting the official record, but also to the
information contained in those records. Thus, a person adjudicated a youthful offender may
18
refuse to answer questions regarding the charges and police investigation, whether he or she
pleaded guilty, and whether a youthful offender adjudication was made. However, the person
must still answer questions regarding the facts underlying the adjudication.
People v. Jackson, __A.D.3d__, __N.Y.S.3d__ (3d Dept. 2015)
In this sexual assault prosecution, Court held trial court erred in ruling D could be impeached by
reason of a JD adjudication. Court noted that such adjudications are not impeachment weapons,
although D may be cross-examined regarding the underlying bad acts. However, ruling was
harmless error.
D.
Prior Bad Acts
Quiroz v. Zottola, ____ A.D.3d ____, ____ N.Y.S.3d ____ (2d Dept. 2015)
In this MV accident action, Court held trial court properly limited the Ps’ cross-examination of
defendant regarding his prior employment and negative credit history, “due to the collateral nature
of these issues (see Badr v. Hogan, 75 N.Y.2d 629, 635)”. Court also noted that, with respect to
defendant’s credit history, “civil judgments cannot be characterized as bad or immoral . . . acts
involving moral turpitude that would allow them to be used to question the defendant’s
credibility.”
People v. Scheidelman, 125 A.D.3d 1426, 3 N.Y.S.3d 242 (3d Dept. 2015)
In this sexual abuse prosecution, Court held prosecutor’s cross-examination of D about a sexual
practice, not rising to the level of a crime, which had no logical bearing on the question of
credibility and questioning D about his homosexuality and his former homosexual relationship
with victim’s uncle, constituted misconduct.
Young v. Lacy, 120 A.D.3d 1561, 993 N.Y.S. 2d 222 (4th Dept. 2014)
In this automobile accident, D’s attorney sought to question P about information in her federal tax
returns that he believed to be inaccurate. Specifically, he wanted to ask P why she had filed as
head of household for four consecutive years when she had been married and living with her
husband during that period. He also sought to ask P how many of her children she had claimed as
dependency exemptions. According to D’s attorney, P, as a result of her improper filing as head
of household, had received a tax credit to which she would not otherwise have been entitled. Trial
court precluded D’s attorney from asking P any questions about information in her federal tax
returns, explaining that because P had not been asked about such issues at her deposition, D’s
attorney was improperly attempting to “ambush” her at trial. Court held reversible error was
present as D’s proffer raised the possibility that P engaged in tax fraud, which had tendency to
show her moral turpitude.
Yarborough v. Cattani, 43 Misc.3d 785, 982 N.Y.S.2d 716 (Sup. Ct. Kings Co. 2014)
(Battaglia, J.)
19
In this medical malpractice action arising from P’s breast augmentation surgery, Court held P
was permitted to impeach D doctor with statements in the Board for Professional Medical
Conduct’s disciplinary determination, in connection with the treatment of other patients, that
could fairly be understood as finding that D purposely and repeatedly fabricated medical records,
as they were highly probative of his credibility without being unduly prejudicial. P was
precluded from using the Board’s general statements as to his credibility, however, and would be
precluded from impeaching him at all in the event that he testified only on P’s direct case, and
stayed within the scope of direct on cross-examination, as parties generally may not impeach
their own witnesses.
E.
Prior Inconsistent Statement
People v. Haywood, 124 A.D.3d 798, 2N.Y.S.3d 164 (2nd Dept. 2015)
In this rape prosecution, Court held trial court did not err in precluding D from cross-examining
one of the complaining witnesses regarding a notarized statement which she denied signing and
for which the notary could not be located. The basis for this holding was that D did not establish
the witness made the statement.
F.
Contradiction
People v. Pabon, 126 A.D.3d 1447, N.Y.S.3d (4th Dept. 2015)
In this sexual misconduct prosecution, D argued trial court erred in precluding him from
introducing into evidence a voicemail message he allegedly received from the victim’s mother in
1999. Court rejected argument. It noted D sought to introduce the message for the purpose of
impeaching the victim’s testimony that her mother moved to Puerto Rico to get away from
defendant, who allegedly was abusing her. Contrary to D’s contention, the mother’s reasons for
moving to Puerto Rico and the state of her relationship with D were not material issues in this
case and, therefore, defendant was not entitled to introduce evidence to impeach the victim’s
credibility on that collateral issue.
G.
Impeachment of Hearsay Declarant
Delva v. New York City Trans. Auth., 123 A.D.3d 653, 998 N.Y.S.2d 208 (2nd Dept. 2014)
In this personal injury action, Court held trial court did not err in admitting record of conviction
of D’s bus driver. Court ruled that since he was not able to personally testofy at the trial because
he was incarcerated in New Jersey, excerpts of his examination before trial and testimony at a
prior trial were read into the record. Pursuant to CPLR 4513, since he was not present at the trial
to be questioned about his 2012 New Jersey conviction for possession of a firearm, which was
relevant to his credibility, no error was present. NOTE: Hearsay declarant was impeached.
Lawton v. Palmer, 126 A.D.3d 945, 7 N.Y.S.3d 177 (2d Dept. 2015)
See, Lawton, at B, supra.
20
VI. HEARSAY
A.
Hearsay?
People v. Goodluck, 117 A.D.3d 653, 987 N.Y.S.2d 47 (1st Dep’t 2014)
In this fraud prosecution, Court held trial court properly excluded from evidence as offered by D
a statement by a co-defendant, who was a fugitive, that exculpated D as evidence of co-D’s state
of mind because the evidence was relevant only if offered for its truth.
Clary v. McIntosh, 117 A.D.3d 1285, 986 N.Y.S.2d 276 (3d Dep’t 2014)
Court held, mother, who had sole custody of parties’ four children, demonstrated a change in
circumstances that reflected a genuine need for modification of existing custody order pursuant
to which father had regular telephonic contact with two eldest children during visits with their
paternal grandmother to allow only periodic, monitored written communication with those
children. It noted that evidence of speaking with father caused severe distress to children, such
that they began resisting participating in visitation with grandmother, and stress experienced by
children manifested itself in disruptive behavior at school and bedwetting, symptoms that
improved dramatically once telephone contact ceased. Inadmissible hearsay was not involved as
the contents of the conversations were not disclosed.
All Borough Grp. Med. Supply v. Geico, 43 Misc.3d 27, 984 N.Y.S.2d 537
(App. T. 2d Dep’t 2014)
In this action to recover assigned first-party no-fault benefits, Court held Civil Court erroneously
excluded P’s assignment of benefits for from evidence, regardless of whether P had laid a proper
foundation for its admissibility as a business record. Court stated that an assignment of benefits
is not hearsay; like a contract, it has independent legal significance and need only be
authenticated to be admissible.
B.
Party Admission
1.
Agent/Employee/Expert
Rodriguez v. NYC Transit Auth., 118 A.D.3d 618, 988 N.Y.S.2d 617 (1st Dep’t 2014)
In this slip and fall action, Court affirmed S/J to D, noting P offered no admissible evidence
raising a triable issue of fact as to notice as the purported hearsay statement of an unidentified
“MTA woman,” “station cleaner” or “token booth agent” does not qualify under the speaking
agent exception to the hearsay rule since there is no evidence supporting such a designation, notr
21
is there evidence as to how it was known that this person was an “MTA” employee.
COMMENT: See, generally, Hutter, “Speaking Agent Exception: Time To Clarify If Not
Abandon,” NYLJ, June 6, 2013, p. 3, col. 3.
Rosasco v. Cella, 124 A.D.3d 447, 1 N.Y.S. 2d 71 (1st Dept. 2015)
In this partition action, Court held: “Because the appraisal annexed as an exhibit to the amended
verified complaint was prepared on behalf of D’s by their agent authorized to make such a
statement, it was a party admission.”
DeSimone v. City of New York, 119 A.D.3d 422, __ N.Y.S.2d __ (1st Dep’t 2014)
In this Labor Law action, Court held P’s testimony that he heard D’s site safety manager, the
general contractor of the project, discussing a power outage and directing electricians to fix it
immediately, was admissible under the speaking agent exception. COMMENT: Court cited for
authority a decision involving a grocery store manager.
Rallo v. Man-Dell Food Stores, Inc., 117 A.D.3d 705, 985 N.Y.S.2d 613 (2d Dep’t 2014)
In this slip and fall action, Court held P’s submission of statements allegedly made by an
employee of Ds to P at the time of the accident concerning the length of time the allegedly
hazardous condition existed constituted hearsay. COMMENT: Court cited in support the major
speaking agent cases.
Fudge v. North Shore-Long Island Jewish Health Services, 117 A.D.3d 783, 986 N.Y.S.2d 490
(2d Dep’t 2014)
Trial court sua sponte dismissed the action during P’s opening statement, issuing an anticipatory
ruling that Ds were not liable to P. Court reversed. It noted “a court’s power to dismiss a
complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist
to warrant dismissal”, and here, there were no extraordinary circumstances warranting sua sponte
dismissal of the complaint.
Milgram v. Golden Gate Petroleum, 43 Misc. 3d 68, 986 N.Y.S.2d 734 (App. T. 1st Dept.)
In this action arising out of P’s representation of D, Court held statements made by D’s CFO
were admissible under speaking agreement exception. COMMENT: Basis for authority was,
apparently, CFO’s position.
3.
Judicial Admission
Nomula Asset Capital Corp. v. Cadwalader, 115 A.D.3d 228, 980 N.Y.S.2d 95 (1st Dep’t 2014)
In this legal malpractice action, P alleged that D law firm failed to conduct the necessary due
diligence before rendering its opinion concerning whether a real estate mortgage investment
22
conduit (REMIC) trust marketed by P conformed to federal regulations so as to qualify for
certain federal income tax benefits, P did not make formal judicial admissions in a federal action
that a certain loan contained in the trust qualified for favorable REMIC treatment. The
statements that the loan was properly secured and that the fair market value of the property
securing the loan met federal standards constituted at most information judicial admissions that
provided some evidence of the facts admitted, but they were not conclusively binding on P, who
was defending itself against allegations made by a disappointed investor. The statements in
question, one made during oral argument and the other contained in a point heading in one of P’s
memoranda of law, lacked the formality required to constitute formal judicial admissions.
Lipco Elec. Corp. v. ASG consulting Corp., 117 A.D.3d 687, 985 N.Y.S.2d 594 (2d Dep’t 2014)
In this breach of contract action, D moved for S/J. Court affirmed denial of the motion noting
that D relied principally upon Ps’ alleged judicial admissions of contract illegality, but
“counsel’s argument or opinion cannot constitute a judicial admission.”
Goldman v. Malagie, 45 Misc. 3d 37, 994 M.Y.S.2d 498 (App. T. 1st Dept. 2014)
In this nonpayment summary proceeding, Court held landlord was bound by the statements in the
verified petition that the demised apartment was presently subject to rent stabilization as they
constituted formal judicial admissions that the apartment was subject to rent stabilization
coverage and that the rent sought therein was a lawful stabilized rent, admissions which were
binding and conclusive against him.
C.
Prior Inconsistent Statement
Kaufman v. Quickway, 14 N.Y.3d 907, 905 N.Y.S.2d 532 (2010),
affg. on other grounds 64 A.D.3d 978, 882 N.Y.S.2d 554 (3d Dep’t 2009)
In this Dram Shop Act action, convenience store clerk stated in supporting deposition prepared
by police officer and purportedly signed by her “under penalty of perjury” that she sold a 12pack of beer to Mr. Beers (driver who caused fatal accident) and that at the time she detected
beer on his breath and that she had a difficult time understanding him. However, at a subsequent
deposition clerk averred that Beers showed no signs of intoxication and denied making the
statements contained in the supporting deposition. Third Department held the supporting
deposition statements were not admissible for its truth as a prior inconsistent written statement
under the hearsay exception recognized in Lefendre v. Hartford Acc. (21 N.Y.2d 518, 289
N.Y.S.2d 183 [1968]) and Nucci v. Proper (95 N.Y.2d 597, 721 N.Y.S.2d 593 [2001]) since she
has seriously disputed their utterance and content, expressly asserting that her words were
“incorrectly reported.” In so holding, the Court noted there were more factors here supporting
the reliability of the statements than in Nucci. The Court of Appeals disagreed. In its view: “The
supporting deposition prepared by the Trooper and signed by the witness under penalty of
perjury contained numerous indicia of reliability justifying its admissibility under Letendre. And,
as in Letendre, the store clerk was available for cross-examination.” Nonetheless, the Court
affirmed the dismissal of the action on the ground that there was no “practical connection
between the allegedly illegal sale of the alcohol and the accident. NOTE: See Diamond, “New
23
York Needs A Residual Exception To The Hearsay Rule,” NYLJ, 12/24/09, p.4; see generally,
Hutter, “The Letendre Exception,” NYLJ, 8/4/11, p. 3, col. 1.
D.
Prior Consistent Statement
Nelson v. Friends of Associated Beth Rivka, 119 A.D.3d 536, 987 N.Y.S.2d 907 (2d Dep’t 2014)
See. infra, G.
FRE 801(d)(1)(B) as amended 12/1/14
As a result of amendment, rule allows for the admissibility of a prior consistent statement when
offered to rehabilitate the witness’ credibility when attacked “on another ground,” e.g., a nonrecent fabrication charge. Thus, prior statements which are probative to rebut a charge of faulty
memory or to explain what otherwise appears to be an inconsistency in the witness’ testimony
are admissible; and they are then admissible not only for a rehabilitative purpose but also for a
truth purpose. While admissible now in a New York federal court, they would not be admissible
for such purposes in New York state courts under New York’s present rule. Comment: See,
Hutter, Admissibility of Prior Consistent Statement, NYCJ, 12/4/14, p.3, col. 3.
E.
Excited Utterance / Present Sense Impression
Lee v. New York Hospital Queens, 118 A.D.3d 750, 987 N.Y.S.2d 436 (2d Dept. 2014)
In this wrongful death medical malpractice action, Court held decedent’s statements to his wife
while at hospital complaining of pain, discomfort, hunger, difficulty breathing, and feeling that
he was dying, were excited utterances or present sense impressions, or both, and therefore
admissible.
People v. Vanderhorst, 117 A.D.3d 1197, 987 N.Y.S.2d 688 (3d Dep’t 2014)
In this manslaughter prosecution, Court held trial court did not abuse its discretion in admitting
audio recordings of two calls made to 911 by observers during the subject altercation, in which
the callers described the participants, begged for police assistance and - in one of the calls repeatedly shouted at D, by name, to stop. The cries and screams of onlookers can be heard in
the background of the recordings; both callers testified, acknowledging that they placed the calls.
It held: it is evident that the recordings were made as the altercation was unfolding and while the
callers were exposed to the stress of the ongoing emergency. Further, the callers’ statements
were corroborated by the video and the trial testimony. Thus, the recordings were admissible
pursuant to the present sense impression exception to the hearsay rule, as well as the excited
utterance exception.”
People v. Haskins, 121 A.D.3d 1181, 994 N.Y.S.2d 696 (3rd Dept. 2014)
24
In this burglary prosecution, D argued County Court erred in admitting into evidence a redacted
recording of the victim’s 911 call as an excited utterance, because her call was made after she
had time for reflection. Court rejected argument, stating: “The victim testified that, although she
had followed D’s car and had spoken with him, it was only after she returned home that she
discovered that her home had been broken into and her television was missing, and she called
911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,”
and explained her contact with D. As County Court correctly found, being the victim of a
burglary is “a startling event” and the victim’s call was made under the stress and excitement of
a starting event and was not the product of any reflection and possible fabrication. Finally,
contrary to D’s argument, although the victim had spoken with D and had observed a television,
the events preceding her discovery of the burglary did not constitute intervening events, allowing
her an opportunity for studied reflection; such intervening events must necessarily occur
following the startling event.”
People v. Mulligan, 118 A.D.3d 1372, 988 N.Y.S.2d 354 (4th Dep’t 2014)
In this attempted murder prosecution, Court held trial court erred in admitting witness’s
statement identifying D as the shooter as a present sense impression. The basis for the ruling
was that the witness did not see the shooting and he confirmed Ds identity only after questioning
the victim.
United States v. Boyce, 742 F.3d 792 (7th Cir. 2014)
In a concurring opinion, Judge Posner expressed his view that the hearsay exceptions for excited
utterances and present sense expressions do not rest on a sound foundation and then continuation
examined. Note: See, Hutter, Excited Utterances and Present Sense Impressions, NYCJ, 8/7/14,
p.3, col. 3.
F.
Business Record
1.
Nature of Record
135 East 57th St. v. 57th St. Day Spa, 126 A.D.3d 471, 2 N.Y.S.3d 788 (1st Dept. 2015)
At a hearing to determine attorneys’ fees, Court held Special Referr erred in admitting a
spreadsheet into evidence as a business record pursuant to CPLR 4518 (a), since the document
was prepared by plaintiff’s counsel for use at the hearing and was not supported by a proper
business record foundation.
2.
Foundation Requirements
JP Morgan Chase Bank v. Clancy, 117 A.D.3d 472, 985 N.Y.S.2d 507 (1st Dep’t 2014)
In this collection action, Court reversed S/J to P. It noted P’s motion was based on two sets of
exhibits, one attached to P’s complaint, and the other to an affidavit of P’s employee. The
25
exhibits would be in admissible form only if P satisfied the requirements for their admission as
business records but P failed to satisfy those requirements. Although a verified pleading may be
used anytime an affidavit is called for, here the complaint was verified only by counsel, rather
than a person with knowledge. Thus, it was insufficient. The exhibits to the employee’s affidavit
were also inadmissible, because the affiant failed to state in words or substance that it was the
regular business of the plaintiff to create such records.
US Bank National Assoc. v. Madero, 125 A.D.3d 757, 5 N.Y.S.3d 105 (2nd Dept. 2015)
In this action to foreclose on mortgage, P sought to establish on S/J that note and mortgage had
been assigned to another entity, the proof of which consorted of documents in the possession of
that entity. As these documents constituted hearsay, only basis for admission was the exception.
However, P failed to build a foundation under the exception, and these documents were
inadmissible.
Silva v. Lakins, 118 A.D.3d 556, 988 N.Y.S.2d 585 (1st Dep’t 2014)
Court held P could not in support of his meritorious cause of action claim rely on the uncertified
police report attached to his counsel’s affirmation as it constituted inadmissible hearsay.
3.
Information Recorded (Johnson v. Lutz)
Watch v. Gertsen, 126 A.D.3d 687, 5 N.Y.S.3d 206 (2nd Dept. 2015)
In this action arising out of P motorcyclists’ collision with D’s vehicle, Trooper testified that he
had indicated on the police accident report that he prepared that each of the P motorcyclists was
a contributing factor to the accident and that he had made no such notation with respect to the D
driver. Court held: “We agree with the P’s that the Trooper’s testimony concerning the notations
in his accident report regarding who was at fault in the happening of the accident constituted
inadmissible hearsay.
G.
Hospital and Medical Records
People v. Ortega, 15 N.Y.3d 610, 917 N.Y.S.2d 1 (2010)
In this consolidated appeal, Court restated familiar law that hospital records fall within the
business records exception to the hearsay rule when they reflect acts, occurrences or events that
relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the
medical or surgical aspects of the particular patient’s hospitalization; however, where details of
how a particular injury occurred are not useful for purposes of medical diagnosis or treatment,
they are not considered to have been recorded in the regular course of the hospital’s business. In
Benston, it then held that records’ identification of victim’s assailant as “an old boyfriend” and
description of case as involving “domestic violence” and reference to “safety plan” for victim
were relevant to diagnosis and treatment of victim, and thus admissible in an assault prosecution
as domestic violence was part of attending physician’s diagnosis, domestic assault differed
26
materially from other types of assault in its effect on victim and in resulting treatment, and
developing safety plan for victim, including referral to shelter or dispensing information about
domestic violence and necessary social services, was important part of victim’s treatment. In
companion case Ortega, Court held statement in record that victim was “forced to” smoke white,
powdery substance, was relevant to victim’s diagnosis and treatment, and thus admissible to in
criminal possession of stolen property prosecution, since victim, under such scenario, would not
have been in control over either the amount or the nature of the substance he ingested, and
treatment of a patient who is the victim of coercion may differ from a patient who has
intentionally taken drugs. NOTE: See discussion of Ortega in Hutter, “Admissibility of Patient’s
Statement In Medical Record - Redux,” NYLJ, 2/3/11, p. 3, col. 1.
Benavides v. City of New York, 115 A.D.3d 518, 982 N.Y.S.2d 85 (1st Dept. 2014)
In this personal injury action wherein P alleged police officer pushed him off fence. Court held
trial court erred in admitting P’s hospital records offered by D that referred to P’s injuries as
having been caused by his “jump” from the fence. In support, it noted there was simply no
evidence supporting D’s position that the medical doctors needed to know whether P jumped or
was pushed from the fence in order for doctors to determine what medical testing he needed
upon admission to the hospital. No medical expert provided such testimony.
Donoso v. MVIAC, 118 A.D.3d 461, 988 N.Y.S.2d 139 (1st Dep’t 2014)
Court held P presented no medical evidence of a causal connection between the accident and her
lumbar condition, and without that evidence P could not prove causation; thus, the verdict and
judgment in her favor was rejected. COMMENT: Court commented that even if her medical
records had contained an opinion of causation, that opinion could not be considered because the
opining physician was not available for cross. Why? Apparently, the record was a medical
report, and the opinion in a medical record is inadmissible. Is that correct?
Skylar F., 121 A.D.3d 611, 995 N.Y.S.2d 63 (1st Dept. 2014)
In this parental rights termination proceeding based on parent’s mental illness, Court held
parent’s medical records containing diagnoses were admissible as they were germane to his
treatment.
People v. Livrieri, 125 A.D.3d 579, 6 N.Y.S.3d 5 (1st Dept. 2015)
In this assault prosecution, Court held trial court properly admitted the victim’s medical records,
including references to domestic violence. Such statements were part of the attending physician’s
diagnosis, and were relevant to diagnosis and treatment.
Nelson v. Friends of Associated Beth Rivka, 119 A.D.3d 536, 993 N.Y.S.2d 551 (2d Dep’t 2014)
In this action arising out of P infant’s accident on the playground of D’s preschool, the issue of
whether P’s accident occurred because she fell from the monkey bars as opposed to a ladder was
vital to P’s case and D’s case as well. At trial, P’s made an offer of proof, pursuant to which
27
they sought to introduce into evidence an entry in an emergency room record that was allegedly
made on the date of the accident, wherein, according to P’s, the infant P told the emergency
room physician that she fell from the monkey bars. D’s objected. In response, the P’s counsel
argued that, during jury selection, D’s had suggested that the infant P was improperly “coached,”
and counsel contended that the D’s would again attempt to discredit the testimony of the infant P
as a recent fabrication. P’s counsel further argued that the entry in the emergency room record
was germane to the treatment of the infant plaintiff. The trial court sustained the defendants’
objection, and denied the plaintiffs’ proffer. Court reversed. It found the entry admissible under
two hearsay exceptions. Initially, it held the entry was admissible as a prior consistent statement,
noting the “coaching” argument was a recent fabrication claim. Secondly, it held the entry was
admissible as it was germane to P’s hospital treatment. COMMENT: If the prior consistent
statement was not germane to treatment, it would not be admissible at all. See, Grant comment.
Nelson v. Bogopa Service Corp., 123 A.D.3d 780, 999 N.Y.S.2d 88 (2nd Dept. 2014)
In this personal injury action, D’s counsel stated he would call a nurse who saw P in the ER and
would testify to certain entries in the ER records which contradicted P’s claim as to where he
was injured. Trial Court later on ruled the entries were inadmissible and precluded the nurse
from testifying; and permitted P in his summation to comment upon the D’s failure to call the
nurse. Court held the statements in ER records were as made by the nurse purportedly by P were
inadmissible as they were not germane to treatment. Court also held the nurse could not testify to
the entries as made by her. COMMENT: Statements were not admissible at all as P’s admissions.
Why?
People v. Pham, 118 A.D.3d 1159, 987 N.Y.S.2d 687 (3d Dep’t 2014)
In this rape prosecution, D’s ex-girlfriend who was the mother of his two children, alleged that
he raped her during a domestic dispute. Prior to trial she died from causes unrelated to the
incident. The People proved through medical/hospital records that she was in fact raped on the
date she alleged the rape occurred. To prove D was the person who raped her, the People offered
those parts of the medical records wherein it was recorded by the examining physician that the
ex-girlfriend told the physician that the D was the assailant. While D did not object to the
admission of the records to the extent they related to a rape, he now objected to their admission
insofar as they contain the ex-girlfriend’s statement that D was her assailant. Court held records
were properly admitted. It noted the identity of the victim’s assailant may be relevant in the
context of a domestic violence relationship to diagnosis and treatment because the medical
provider must consider the victim’s safety when creating a discharge plan and gauging her
psychological needs. NOTE: Court also held there is no Crawford problem as the primary
purpose of the examination and treatment was to care for the victim’s health and safety.
People v. Collins, 126 A.D.3d 1132, 6 N.Y.S.3d 169 (3rd Dept. 2015)
In this DWI prosecution, D argued his failure of the field sobriety tests was caused by his
medical ailments as opposed to intoxication. In support of his theory that his failure of the field
sobriety tests was caused by his medical ailments as opposed to intoxication, D sought the
admission of his hospital records- unaccompanied by any testimony from a medical professional.
28
County Court denied the relief, concluding that defendant’s hospital records, while generally
admissible, would lead the jury to speculate as to D’s medical condition unless a medical
professional offered an explanation. Court affirmed, stating inasmuch as the hospital records,
without explanatory testimony, would have required the jury to speculate as to whether D’s
injuries caused him to fail the sobriety tests.
Benavides v. City of New York, 115 A.D.3d 518, 982 N.Y.S.2d 85 (1st dept. 2014)
See Supra. Court held entries could, alternatively be admissible as an admission if there is
evidence that connects the party to the entry. Here, no such connection is present, Court noting
that although record has a boy checked that “patient” is the source of the information, the
particular entry on that record, “he jumped off the fence,” is not clearly a direct statement
attributable to or a quote of P, “The Ambulance Call Report for identifies “PO” or the police
officer as the source of the information that P “jumped off a fence”, no other evidence in the
record identifies P as being the source of this information. Nor is there any evidence connecting
P to the January 21, 1997 entry in the Progress Record that “s/p fell from a fence after being
chased by police officers” or the January 23, 1997 entry “fall from 2 stories sic” to make them
admissible as admissions by him.
Barris v. One Beard St., 126 A.D.3d 831, 6 N.Y.S.3d 262 (2nd Dept. 2015)
In this slip and fall action, D argued the sole proximate cause of the accident was P’s trip on his
shoelaces and in support submitted entries in P’s hospital records. Court held a hearsay entry in a
hospital record as to the happening of any injury is admissible evidence, even if not germane to
diagnosis or treatment, where, as here, it is inconsistent with another account provided by that
party. Here, the deposition testimony of P’s mother, who was with P at the hospital, was
equivocal as to what she heard P say to hospital personnel. Furthermore, P’s father testified at his
deposition that he observed the injured plaintiff slip and fall on loose pieces of black asphalt, and
that P’s shoes were tied both before and immediately after the accident. Thus, D’s submissions
revealed a triable issue of fact as to whether P made an admission that they may be excepted
from the hearsay rule and, if so, a triable issue of fact as to the cause of P’s fall.
Robles v. Polytemp, Inc., 127 A.D.3d 1052, 7 N.Y.S.3d 441 (2nd Dept. 2015)
In this automobile accident action, P argued the trial court erred in denying his request, made at
the outset of the trial on the issue of damages, to redact entries in his hospital records which
indicated that he was not wearing a seat belt at the time of the accident. Court noted that if the
entry is consistent with a position taken by a party at trial, it is admissible as an admission by that
party, even if it is not germane to diagnosis or treatment, as long as there is “evidence connecting
the party to the entry.” At trial, P testified that he was using a seat belt at the time of the accident,
and the hospital records containing the challenged entries clearly indicated that the plaintiff was
the source of the information contained therein. Thus, entries were admissible. COMMENT:
Holding of First and Second Departments are questionable. See, Hutter, “Admissibility of
Patient’s Statement In Medical Record,” NYLJ, Dec. 2, 2010, p.3, col. 3. Also, Second
Department rejected this rule in Merriman v. Integrated Building Controls (84 A.D.3d 897, 922
29
N.Y.S.2d 562 [2nd Dept. 2012]), and Sermos v. Grupposo, 995 A.D.3d 985, 944 N.Y.S.2d 245
[2d Dept. 2012]).
H.
Absence of Record/Entry
Jesa Med. Supply v. New York City Transit Auth., 2013 N.Y. Slip Op. 50188(U)
(App. Ct. 2d Dep’t)
In this first-party benefits action, D moved for S/J. In support it is submitted in affidavit from its
claims examiner who averred it is D’s business practice to maintain a log of all people injured or
involved in a motor vehicle accident involving a D vehicle. Court held: “Since the only
information that had been provided to D was the date on which P’s assignor had allegedly been
injured while a passenger on D’s bus, D’s claims examiner had searched D’s records and found
that there was no record indicating that P’s assignor had been injured as a passenger, or
otherwise, by a D vehicle on the date of the alleged accident or even that she was at the scene of
an accident involving a D vehicle on the date in question. As a result, D established its right to
S/J.
I.
Statements of Physical Condition and Cause Thereof
People v. Duhs, 16 N.Y.3d 405, 922 N.Y.S.2d 843 (2011)
In this child abuse prosecution arising out of D’s alleged conduct in placing a three-year-old’s
feet and lower legs into a tub filled with scalding hot water, Court held testimony of pediatrician
who treated the infant for his burns that child told her D “wouldn’t let me out” in response to
pediatrician’s question as to how he was injured was admissible as mechanism of treatment was
germane to pediatrician’s treatment of child. Of note, the physician testified such information
was germane to her treatment. COMMENT: Court has certainly overruled in part Davidson v.
Cornell (132 N.Y. 228 [1892]) which, as prior cases and commentary have stated, holds to the
contrary, although Court does not state it is doing so and cites Davidson for support of its ruling.
As a result of Ortega, Duhs, and Spicola, New York’s medical statement hearsay exception now
provides that statements made to a physician relating to present and past pain and physical
condition, and the cause thereof are admissible if germane to the person’s diagnosis and
treatment, bringing New York in line with the modern evidence rule. For further discussion of
the implications of these decisions, see, Hutter, “Medical Statement Exception,” NYLJ, 6/02/11,
p.3
People v. Spicola, 16 N.Y.3d 44, 922 N.Y.S.2d 846 (2011)
In this child sexual abuse prosecution, Court held nurse-practitioner’s testimony that the victim
in response to his questions about what acts were committed upon him described what was done
to him was admissible as it was germane to diagnosis and treatment, as he confirmed. Court held
it was admissible as “an exception to the hearsay rule, citing to Ortega.”
Matter of A.M., 44 Misc.3d 514, 986 N.Y.S.2d 781 (Fam. Ct. Bronx Co. 2014)
(Hettleman, J.)
30
In this child neglect proceeding, Court held that comments to physicians, social workers and
mental health professionals are inherently reliable and therefore qualify under the exception even
if the remarks were made not by the patient but by someone else. Here, they were made
concerning the father’s mental illness by the mother, the father’s parents and outside treatment
providers, and were recorded in his in-patient mental treatment record.
VII. EXPERT TESTIMONY
A.
Appropriate Subject Matter: Necessity/Helpfulness
People v. Dorviller, 122 A.D.3d 642, 996 N.Y.S.2d 111 (2nd Dept. 2015)
In this larceny prosecution, Court held trial court did not improvidently exercise its discretion in
allowing the People’s witness to testify as an expert on the subject of the requirements,
restrictions, and prohibitions of the Workers’ Compensation Law, as testimony was “helpful in
clarifying issues beyond the then of the typical juror.” COMMENT: See, Hutter, Admissibility of
Expert Opinion, NYLJ, 6/4/15, p.3, col.3.
Hurrell-Harring v. State, 119 A.D.3d 1252, 990 N.Y.S.2d 286 (3d Dep’t 2014)
In this class action seeking a declaration that indigent criminal defenses are being denied their
right to counsel due to systemic failures in NY’s public defense system, Ps advised D that they
intended to call three expert witnesses to testify as to the prevailing professional standards
governing the provision of legal representation to indigent criminal defendants and whether the
structure and operation of the public defense systems in the five counties, meets those standards.
Despite their qualifications, Supreme Court concluded that the experts’ testimony was both
“unnecessary and improper” in this action because the average Supreme Court Justice possesses
the requisite knowledge and/or experience to comprehend the evidence and decide the issues
presented. Court disagreed. It noted by virtue of their expensive experience, the experts possess
specialized knowledge with respect to the operation of public defense system, the professional
standards applicable to such systems, and the impact of systemic shortcomings on the provision
of counsel to indigent criminal defendants’ at all critical stages. “Such particularized knowledge
is, manifestly, beyond that of a typical Supreme Court justice.” NOTE: Court rendered its
decision on an appeal from an order which granted D’s motion to preclude the experts’
testimony. Appealable?
Knight v. State, 127 A.D.3d 1435, 6 N.Y.S.3d 807 (3rd Dept. 2015)
In this medical malpractice action based on D’s decision to take away his cane, Court held that as
claimant did not present any expert evidence demonstrating that the decision to take away the
cane deviated from the appropriate standard of care, the dismissal of his claim was proper.
Alger v. University of Rochester Med. Ctr., 114 A.D.3d 1209, 980 N.Y.S.2d 200 (4th Dept. 2014)
31
P sued for physical and emotional injuries allegedly sustained when she decided to terminate her
pregnancy as a result of D’s alleged negligence in performing prenatal diagnostic tests and
advising them regarding the results of such tests. Court rejected P’s argument that trial court
abused its discretion in permitting several witnesses to provide expert testimony on behalf of D
on the issue of proximate cause.
B.
Qualifications
Vargas v. Sabri, 115 A.D.3d 505, 981 N.Y.S.2d 914 (1st Dep’t 2014)
Court held trial court did not improvidently exercise its discretion in denying P’s request for a
Frye hearing to determine the admissibility of the anticipated testimony of Dr. McRae, a
biomechanical engineer. The fact that Dr. McRae lacked medical training did not render him
unqualified to render an opinion as an expert that the force of the subject motor vehicle accident
could not have caused the injuries allegedly sustained. McRae’s stated education, background,
experience, and areas of specialty, rendered him able to testify as to the mechanics of injury.
Gates v. Longden, 120 A.D.3d 980, 991 N.Y.S2d 229 (4th Dept. 2014)
In this personal injury action arising out of auto accident, Court held trial court properly refused
to consider affidavit of D’s biomechanical expert as there was no showing from which it could
be assumed that the information imparted or the opinion rendered regarding injury causation was
reliable, where expert was an engineer, not a physician.
Udoye v. Westchester-Bronx OB/GYN, 126 A.D.3d 653, __N.Y.S.3d__(1st Dept. 2015)
In this medical malpractice action arising out of alleged failure to diagnose viral myocarditis in
decedent, Court held on D’s S/J motion that P’s expert, a pathologist, was not qualified to render
an opinion as to the standard of care as to obstetrics or cardiology.
Ocean v. Hossain, 127 A.D.3d 402, 7 N.Y.S.3d 73 (1st Dept. 2015)
In this auto accident action, P submitted affidavit of physician in opposition to D’s S/J motion.
The affidavit was executed prior to physician’s loss of license and before renewed motion was
argued. Court held in these circumstances the affidavit was admissible and license revocation
went to credibility.
Lee v. New York Hosp. Queens, 118 A.D.3d 750, 987 N.Y.S.2d 436 (2nd Dept. 2014)
In this medical malpractice action, Court, in upholding award of future loss of services relied
upon testimony of P’s psychiatric expert that a licensed practical nurse, billing at rate of $35 per
hour, would be required to replace decedent’s services in caring for decedent’s severely mentally
impaired daughter.
Fleischer v. City of New York, 120 A.D.3d 1390, 993 N.Y.S.2d 112 (2nd Dept. 2014)
32
In this slip and fall action arising when P fell on sidewalk, P sought to admit the “Big Apple”
map provided to D before accident. Court held testimony of P’s expert who worked with Big
Apple mops on behalf of D’s DOT was sufficient to lay foundation of the mop and explain it as
he was sufficiently qualified by reason of his prior employment.
Schmitt v. Medford Kidney Center, 121 A.D.3d 1088, 996 N.Y.S.2d 75 (2nd Dept. 2014)
In this medical malpractice action as asserted against a nurse, Court held P’s expert nephrologist
was qualified through his experience to render an opinion as to nurse’s standard of care.
Tsimbler v. Fell, 123 A.D.3d 1009, 999 N.Y.S.2d 863 (2nd Dept. 2014)
In this medical malpractice action alleging negligence against D ophthalmologist in treatment of
P’s open angle-glaucoma, Court held affidavit of P’s expert, a physician specializing in field of
internal medicine, which did not state whether physician had any specific training or expertise in
ophthalmology, or particularized knowledge as to treatment of glaucoma, and did not indicate
that physician had familiarized himself with relevant literature or otherwise set forth how he was,
or became, familiar with applicable standards of care in this specialized area of practice, was of
no probative value.
Flanger v. 2461 Elm Realty Corp. 123 A.d.3d 1196, 998 N.Y.S.2d 502 93rd Dept. 2014)
In this slip and fall action, Court held affidavit of D’s expert submitted on S/J who opined that
sidewalk and curb complied with all state and local building and fire codes and that sidewalk was
in a good state of repair, was not admissible as there was no showing he was “qualified.” It
noted: “D’s proffered expert affidavit does not include the information necessary to permit a
court to reach such a determination. In his affidavit, the expert listed the initials “P,E.” after his
name, stated that he is a principal in a specific engineering firm, and stated his opinion based on
his inspection, review of codes and his “experience as an engineer.” While the “P,E.” would
indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did
not explicitly state whether he is licensed in any particular state. He also did not mention
anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical),
or any experience he may have that would be relevant to the design and maintenance of curbs
and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some
or all of that information.
Lauto v. Catholic Health Sys., 125 A.D.3d 1352, 3 N.Y.S.3d 526 (4th Dept. 2015)
In this medical malpractice action, Court notes that a nurse would not have been allowed to
provide opinion testimony as to a physician’s standard of care.
C.
Bases
33
1.
Generally
Lee v. New York Hospital Queens, 118 A.D.3d 750, 987 N.Y.S.2d 436 (2nd Dept. 2014)
In this wrongful death medical malpractice action, Court held P’s anesthesiologist expert’s
testimony regarding decedent’s pain and suffering while being intubated with insufficient
sedation was based on facts in the medical records and facts “fairly inferable” therefrom. It noted
based on his expertise and experience in the area of “airway management of patients,” and the
information in the record stating that the decedent was given 40 milligrams of the sedative
Prorofol and 100 milligrams of the paralyzing agent succinylocholine, the anesthesiologist could
fairly infer that, during the intubation, except for the first two or three minutes, the decedent was
fully conscious, though paralyzed at first, “unanesthetized [with] a tube in his throat, making him
gag,” and experiencing “conscious distress, suffering, [and] terror.”
Grace v. New York City Transit Auth., 123 A.D.3d 401, 998 N.Y.S.2d 36 (1st Dept. 2014)
In this slip and fall action, Court held testimony of P’s expert as to defective condition of
staircase was not speculative because it was based on evidence in the record, i.e., the testimony
of P and of a witness as to the dimensions and appearance of the defective condition.
2.
“Professional Reliability” Basis
State v. Floyd Y., 22 N.Y.3d 95, 979 N.Y.S.2d 240 (2013)
In this MHL Article 10 proceeding, Court held hearsay evidence serving as underlying basis for
the opinion testimony of an expert witness is admissible as against a due process challenge if the
offer or demonstrates through evidence that the hearsay is reliable and if the court determines
that the probative value in helping the jury evaluate the expert’s opinion substantially outweighs
its prejudicial effect. The hearsay evidence is not however, coming in for its truth, and the jury
must be so instructed. COMMENT: Is holding applicable to civil and criminal trials as well?
Did Court implicitly upheld the Wagman – Hambsch basis rule for an expert’s opinion? NOTE:
See, generally, Hutter, “Floyd Y: The Professional Basis For Expert Opinion,” NYLJ, Dec. 5,
2013, p.3, col. 3,; Tippins, “Predicate Perplexity: The case of Floyd, Y,” NYLJ, Jan 10, 2014, P.
3, col.3
Wagman v. Bradshaw, 292 A.D.2d 84, 739 N.Y.S.2d 421 (2nd Dept. 2002)
Court held an expert may rely upon out-of-court material if the material is of a type customarily
relied upon by experts in the field in formulating a professional opinion; and that materials
properly relied upon by expert are inadmissible.
State v. J.R.C., __Misc.3d__, 7 N.Y.S.3d 866 (Sup. Ct. Livingston Cp. 2015) (Wiggins, J.)
In this MHL Article 10 proceeding, Court, following Fourth Department which it deemed did not
follow the “restrictive” “Wagman” approach held that so long as there is evidence establishing
that materials are commonly reasonably relied upon by experts in the field in forming a
34
professional opinion, those materials may serve as a basis for the expert’s opinion. Court
distinguishes Floyd Y. on ground that it dealt only with the issue of the extent to which the basis
of the opinion could be put before the juicy and not the issue of what material not disclosed to
the jury could be properly relied upon.
State v. William F., 44 Misc.3d 338, 985 N.Y.S.2d 861 (Sup. Ct. NY Co. 2014) (Conviser, J.)
In this MHL Article 10 proceeding, Court, among other things, found no anomaly in Floyd Y. by
reason of its holding finding no fault with expert with expert’s opinion as based upon evidence as
compared to its finding that disclosure of such evidence which it found unreliable was error; and
that it was not at all clear how, if at all, Floyd Y. may eventually lead to a modification of the
professional reliability exception.
D.
Methodology
1.
Need
Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997)
In this Dram Shop Act action, plaintiff’s expert opined that decedent driven must have been
visibly intoxicated at D’s bar where she was served four hours before her death, because an
opinion reached based upon her blood alcohol level of .33% at the time of death and the
normalcy of her liver. Court held opinion inadmissible as the expert gave no testimony as to
how he reached that opinion from the two relied upon facts. It was, accordingly, “speculative”.
Marsh v. Smyth, 12 A.D.3d 307, 785 N.Y.S.2d 440 (1st Dep’t 2004) (Saxe, J., concurring)
“The appropriate question for the court is… whether the proffered expert opinion properly
relates existing data, studies or literature to the [party’s] situation or whether, instead, it is
connected to existing data only by the ipse dixit of the expert.” (quoting General Electric Co. v.
Joiner, 522 U.S. 136, 146 (1997).
2.
Sufficiency of Foundation
Johnson v. Guthrie Medical Group, 125 A.D.3d 1445, 3 N.Y.S.3d 828 (4th Dept. 2015)
In this medical malpractice action involving P’s high-dose treatment with IFN-a followed by low
dose IFN treatment, P alleged that P’s cognitive deficits were coursed by the IFN-a treatment.
P’s expert supported this theory of causation with numerous articles discussing the negative
cognitive effects experienced by adults during and after treatment with IFN-a and the negative
long-term effects of chemotherapy treatment on the developing brains of children; and he also
conceded there are no studies regarding the long-term cognitive effects on children from IFN-a
treatment. Court held no Frye learning was required as expert’s theory was based upon generally
accepted principles. It also held a proper foundation for that theory was laid with generally
accepted medical principles of the cognitive effects on adults treated with IFN-a, a
chemotherapeutic agent, and the cognitive effects of chemotherapy on the developing brain of a
35
child. It noted the underlying support for the theory of causation need not consist of cases or
studies considering circumstances exactly parallel to those under consideration in the litigation.
It is sufficient if a synthesis of various studies or cases reasonably permits the conclusions
reached by the plaintiff’s experts: the fact that there was no textual authority directly on point is
relevant only to the weight to be given to the testimony, but does not preclude its admissibility.
Kurz v. St. Francis Hosp., 47 Misc.3d 184, N.Y.S.2d (Sup. Ct. Nassau Co. 2014) (Diamond, J.)
In this medical malpractice action where P alleged D’s administered a drug, Amiodarone, that
caused his vision loss, P’s expert was permitted to express an opinion on the issue of causation
because the opinion, based upon P’s medical records and existing literature indicating vision loss
is a known side effect of Amiodarone, was based on sufficient evidence to form a foundation to
admit the expert’s testimony and any lack of medical literature indicating vision loss within the
exact time frame specified by plaintiff’s expert would go to the weight and not the admissibility
of his testimony.
3.
Reliability
People v. Oddone, 22 N.Y.3d 369, 980 N.Y.S.2d 912 (2013)
Court held that a medical examiner’s opinion derived from his observations of victim’s physical
condition after his death through the expert’s personal experience, meaning what he had
observed heard and read about particular cases, is not subject to a Frye analysis as opinion is not
the product of any scientific principle. COMMENT: For further discussion, see Hutter, “People
v. Oddone,” NLJ, Feb 6, 2014, p. 3, col. 1.
Sadek v. Wesley, 117 A.D.3d 193, 986 N.Y.S.2d 25 (1st Dep’t 2014)
In this auto accident action, P alleged the accident caused him to experience an embolic stroke.
Court held: (1) Trial court improperly granted D’s in limine motion, concluding that a Frye
hearing was necessary on P’s expert’s theory of causation, where the affidavit by D’s expert in
support of the motion merely asserted that the expert had “conducted a search of the relevant
medical literature” and had found no support for P’s theory that the trauma from a motor vehicle
collision caused the embolic stroke. D’s expert did not even point to literature or studies
disproving such a link. Therefore, when, in response, P’s expert provided proof that literature
supporting the theory existed and had been published in reputable professional journals and cited
or discussed in others, the basis for defendants’ claim was negated; no factual issue was
presented. (2) As the dispute here concerned the mechanism of the injury, that is, the
physiological process by which the damage came to occur, the court’s Frye-type inquiry, if any,
needed only to address the question of whether the proffered expert opinion properly related
existing data, studies or literature to the situation, or whether, instead, it was connected to
existing data only by the ipse dixit of the expert. P’s expert showed that the conclusion he
reached, that the vehicular collision caused the dislodgment of a blood clot leading to plaintiff’s
36
embolic stroke, was supported by reasonable quantum of legitimate support, specifically, an
Israeli study assessing stroke-triggering effects of sudden changes in body position, and
professional journal articles that cited and discussed the study, thereby satisfying the
requirements of Frye.
Carniol v. New York City Taxi Commission, 126 A.D.3d 409, 2 N.Y.S.3d 337(1st Dept. 2015)
In this Article 78 proceeding seeking restoration of taxi driver’s license, Court held P was not
entitled to a Frye hearing with regard to the GPS evidence used in slowing P overcharged
passengers because that evidence did not concern a novel scientific theory, technique, or
procedure.
Perez v. Fleischer, 122 A.D.3d 1157, 997 N.Y.S.2d 773 (3rd Dept. 2014)
In this lead pain exposure action, Court held P’s request for Frye hearing to determine
admissibility of novel scientific evidence at trial was premature in his suit where matter was only
at disclosure stage and information did not need to be admissible at trial to be discoverable.
4.
Causation
Cornell v. 360 West 51st St. Realty, 22 N.Y.3d 762, 986 N.Y.S.2d 389 (2014)
In this mold exposure action, Court held P failed to establish (1)“general” causation based upon
her expert’s opinion that it is generally accepted within the relevant scientific community that
exposure to mold causes human disease in three specific ways, none of which was alleged by P;
(2) “specific” causation as her expert’s use of generally accepted differential diagnosis
methodology did not have sufficient foundation.
Kurz v. St. Francis Hosp., 47 Misc.3d 184, N.Y.S.2d (Sup. Ct. Nassau Co. 2014) (Diamond, J.)
Facts supra. Court noted that P’s general causation claim that Amiodarone causes vision loss or
blurry vision was not a novel medical theory of causation requiring Frye hearing as there was
ample evidence that visual disturbances are known side effects of the drug. The specific
causation analysis used in toxic tort cases was not strictly applicable here as P was not exposed
to a toxin but rather a specific drug dispensed to him under the care of a hospital and physician.
The drug, on the market for decades, and used in the very manner intended by the manufacturer,
has known serious side effects. The injury suffered by P was of a type related to those known
side effects- visual disturbances- and there is no authority establishing that it was incumbent
upon P ti find underlying support for the theory of causation consisting of cases or studies
exactly parallel to those under consideration in the litigation. It is sufficient if a synthesis of
various studies or cases reasonably permits the conclusion reached by the expert.
E.
Discovery/Disclosure
37
1.
CPLR 3101(d)
Sadek v. Wesley,117 A.D.3d 193, 986 N.Y.S.2d 25 (1st Dep’t 2014)
In this auto accident action where P alleged the accident caused him to experience an embolic
stroke, Court held trial court should not have granted that part of D’s motion in limine seeking to
preclude one of P’s neurological experts from testifying, thereby preventing P from making his
case, on the ground that CPLR 3101(d) statement by P’s expert failed to sufficiently set forth the
mechanism by which the stroke occurred. The statement with narrative report was served more
than a year before trial, and D’s had the option of moving for an amplification or to require the
witness to provide a more complete explication of his theory of causation. Therefore, their
motion in limine on the eve of trial to entirely preclude the witness on that basis was unnecessary
and improper.
Newark v. Pimenti,117 A.D.3d 581, 986 N.Y.S.2d 581 (1st Dep’t 2014)
Court held trial court did not abuse its discretion in precluding two defense experts from
testifying at trial in the absence of any “good cause” for the failure to disclose these experts until
the second day of trial.
Rivera v. Montefiore Med. Ctr.,123 A.D.3d 424, 998 N.Y.S.2d 321 (1st Dep’t 2014)
Court held that P’s challenge at trial to D’s expert disclosure on the ground of lack of specificity
was waived because P did not reject the disclosure or make any objection to it on that ground.
Arcamone-Makinano v. Britton Prop.,117 A.D.3d 889, 986 N.Y.S.2d 372 (2d Dep’t 2014)
Trial court precluded P’s experts from testifying due to failure to properly disclose them, and
without the expert testimony, P was unable to establish entitlement to injunctive relief and actual
damages. Court reversed and ordered a new trial. It held in the absence of any proof that P
willfully violated a court directive regarding expert disclosure and the fact that a short
adjournment of this non-jury trial could have eliminated any prejudice to D, trial court abused its
discretion in precluding the testimony.
Smalley v. Harley Davidson,115 A.D.3d 1369, 983 N.Y.S.2d 707 (4th Dep’t 2014)
In this personal injury action, trial court granted D’s motion seeking to preclude the trial
testimony of two of P’s experts based on P’s failure to make timely expert disclosures and
seeking to strike those expert disclosures as well as a third expert disclosure. Court reversed and
held that the trial court should have adjourned the trial rather than granting D’s motion, thereby
precluding the subject expert testimony and striking the subject expert disclosures. Justice Centra
and Scuniers disserted, expressing the view that this case was an inappropriate case in which to
substitute our discretion for that of Supreme Court with respect to plaintiffs’ late and even almost
eve of trial disclosure of an entirely new products liability expert and a second amended
38
disclosure for their previously disclosed liability expert, both of which proffer new liability
theories.
Sisemore v. Leffler, 125 A.D.3d 1374, 3 N.Y.S.3d 530 (4th Dept. 2015)
In this auto accident action, D moved to preclude expert testimony on ground disclosures were
not timely served. Court held denial of motion was proper as D failed to provide any evidence of
a willful or intentional failure to disclose by P or any evidence of prejudice.
2.
Treating Physicians
Hamer v. City of New York, 106 A.D.3d 504, 965 N.Y.S.2d 99 (1st Dep’t 2013)
In this slip and fall action, Court held the failure to serve a CPLR 3101(d) notice with regard to a
treating physician is not grounds for preclusion of the physician’s expert testimony as to
causation where there has been disclosure of the physician’s records and reports pursuant to
CPLR 3121 and 22 NYCRR 202.17. It noted also: “We have further held that a treating
physician can testify as to the cause of the injuries even though he expressed no opinion as to
causation in the previously exchanged report.” COMMENT: First Department follows the
Second and Fourth Departments (see, Andrew v. Hurh, 34 A.D.3d 1331, 824 N.Y.S.2d 546 [4th
Dep’t 2007]) but the Third Department requires an expert disclosure (see, Norten v. Nguyen, 49
A.D.3d 927, 853 N.Y.S.2d 671 [3d Dep’t 2008]).
3.
Summary Judgment Motion
Public Adm’r of Bronx County v. 485 E. 188th St. Realty Corp., 116 A.D.3d 1, 981 N.Y.S.2d 381
(1st Dep’t 2014)
In this wrongful death action arising out of a fire in D’s apartment building, Ds moved for S/J.
Court held trial court properly considered expert reports that P had obtained from a separately
commenced action by one of the decedent’s coworkers based upon the injuries the coworker
sustained in the very same fire. Court noted that CPLR 3101(d)(1)(i) does not require a party to
respond to a demand for expert witness information at any specific time, and Ds did not show
that they were prejudiced by P’s reliance on that material in responding to their dispositive
motions. It was clear that all parties had the expert reports well before they made their motions,
because Ds’ own expert referred to them in his affidavit, which Ds submitted in support of their
motions in the present case. Lastly, the Court observed the admissibility of expert testimony is a
determination within the discretion of the court, and the court properly considered the materials
in question.
DeSimone v. City of New York,121 A.D.3d 420, 993 N.Y.S.2d 551 (1st Dep’t 2014)
39
In this Labor Law action, Court held trial court providently exercised its discretion in denying
P’s cross-motion to submit a disclosure of his expert professional engineer, since it was first
submitted in opposition to Ds’ motions for S/J dismissing the complaint, and subsequent to the
filing of the NOI and certificate of readiness.
Abreu v. MTA,117 A.D.3d 972, 986 N.Y.S.2d 557 (2d Dep’t 2014)
Court held trial court did not abuse its discretion in permitting P to submit in opposition to D’s
S/J motion an affidavit from its medical expert, disclosed for the first time after the NOI had
been filed. It noted that Ds had the opportunity to reply to that proof in its reply and there was
no showing of prejudice to D by the late disclosure.
Turi v. Birk,118 A.D.3d 979, 988 N.Y.S.2d 670 (2d Dep’t 2014)
In this medical malpractice action wherein Ds moved for S/J, Court held affirmation of P’s
expert was not deficient by reason of the redaction of the expert’s name, since “the unredacted
original was offered to the court for . . . in camera inspection, as is required.”
Rivera v. Albany Med. Ctr.,119 A.D.3d 1135, 990 N.Y.S.2d 310 (3d Dep’t 2014)
In this medical malpractice action, D moved for S/J, submitting its expert’s medical affidavit
with the name of the physician’s identity redacted and Court held the moving affidavit of the D’s
expert was “incompetent,” seeing no compelling reason why related medical affidavit should be
allowed. COMMENT: Court noted with apparent approval decisions permitting the nonmoving party to withhold its expert’s identity; and also its prior decision in Morrison v. Hindley
(221 A.D.2d 691 [3d Dep’t 1995]), leaving unanswered the question of whether the court could
consider a redacted affidavit where an unredacted affidavit is provided to the court.
VIII. PRIVILEGE
A.
Choice of Law
Sebastian Holdings v. Deutsche Bank, 123 AD3d 437, 989 N.Y.S. 2d 326 (1st Dept. 2014)
In this commercial litigation, P moved to compel production of in-house documents, arguing
Swiss Law, which does not recognize the privilege for such documents, must be applied. Motion
court on consent of the parties entered two orders initiating the Hague Convention processspecifically, an Order Appointing Commissioner and Directing Submission of Hague
Convention Application (the Order Appointing Commissioner) and a Request for International
Judicial Assistance in the Authorization of a Commissioner Pursuant to Chapter II of the Hague
Convention. The request specifically stated Deutsche “Bank would prepare a privilege log” in
accordance with the standards of the New York CPLR for determination by the Court upon
application as to such privilege designations and redactions.” Court rejected P’s assertion that
this language creates a reservation of rights on privilege challenges; on the contrary, the
40
language merely allowed P to challenge Deutsche Bank’s privilege designation and redactions
under NY law.
B.
Attorney-Client
1.
Privilege
Nacos v. Nacos, 124 A.D.3d 462, 1 NYS3d 90 (1st Dept. 2015)
In this divorce action, Court held father and brother of P wife, who were both attorneys, failed to
establish that attorney-client relationship existed between them and wife, and the requested
correspondence in subpoenas was not privileged based on such attorney-client relationship.
Court noted that although father and brother claimed to have helped wife select counsel, and
brother helped her understand certain financial documents, father and brother were not
matrimonial lawyers, neither appeared in the divorce proceedings and they failed to state specific
legal tasks they performed, or legal advice they provided, on wife’s behalf.
Maron v. Magnetic Constr. Group,
A.D.3d
,
N.Y.S.3d
(1st Dept. 2015)
In this personal injury litigation, D sought to compel P’s to produce unredacted copies of their
shareholder meeting minutes. Court held P’s satisfied their burden with respect to the
applicability of the privilege to the redacted portions of their meeting minutes, noting P’s were
conservative with their redactions, and it is apparent from the face of the minutes that the
redacted portions reflect communications by and with plaintiffs’ attorney. The only reason for
plaintiffs’ attorney to be at the meetings at issue was to dispense legal advice.
Ballard v. New York Safety Track, 126 A.D.3d 1073, 5 N.Y.S.3d 542 (3rd Dept. 2015)
In this Article 78 proceeding challenging agreement between Town and private party, Court held
that while Town asserted that any discussion of the agreement was protected by the privilege, the
Planning Board’s inclusion of additional persons into the session necessarily eliminated any
reasonable expectation of confidentiality, effectively waiving any privilege attendant to such
conversations.
Lalka v. ACA Insurance Co.,
A.D.3d
,
N.Y.S.3d
(4th Dept. 2015)
In this SUM proceeding, P sought discovery of D’s entire claim file. Trial Court denied
discovery of portions of file generated before commencement of action which were deemed
privileged. Court held denial of discovery of post-commencement documents was proper.
However, it held trial court erred in denying disclosure to reviewed documents as the documents
reviewed were multi-purpose reports motivated in part by potential for litigation with P, and in
part by prepared in regular course of D’s business in deciding whether to pay P’s claim. The fact
41
that the reports contained communications by D’s attorneys to regarding legal advice D did not
preclude disclosure.
William Tell Services v. Capital Financial Planning, 46 Misc. 3d 577, 999 NYS2d 327
(Rensselaer Co. 2014) (Ceresia, J.)
In this action involving secretion brokers arising out of the termination of P as a representative of
ING Financial, Court held privilege could not be invoked to preclude D independent contractors
from offering evidence at trial with regard to what occurred during a meeting they attended with
P securities broker’s attorney to sign non-compete agreements. As the purpose of the meeting
was to discuss business strategy rather than solicit legal advice, the discussions between P’s
principal and its attorney in D’s presence were not privileges. Further, as the facts and
circumstances surrounding the execution of the non-compete agreements were at issue, there was
an implied or “at issue” waiver of the attorney-client privilege.
2.
“Common Interest” Exception
Ambac Assurance Corp. v. Countrywide, 124 A.D.3d 129, 998 N.Y.S.2d 329 (1st Dept. 2014),
1v. granted ____ A.D.3d ___, ___ N.Y.S.3d ___ (1st Dept. 2014)
After D and Bank of America signed a merger agreement, the parties and their attorneys shared
numerous privileged documents, claiming the disclosure was protected by the “common interest
privilege”. Court held pending or reasonably anticipated litigation is not a necessary element of
the common-interest privilege, whereby a third party may be present at a communication
between an attorney and a client without destroying the confidentiality of the attorney-client
communication if the communication was for the purpose of furthering a nearly identical legal
interest shared by the client and the third party. So long as the primary or predominant purpose
for the communication with counsel is for the parties to obtain legal advice or to further a legal
interest common to the parties, and not to obtain advice of a predominately business nature, the
communication will remain privileged. COMMENT: See, Hutter, Ambac’s New Exception,
NYLJ, 2/5/115, p.3, col.3..
3.
Waiver
Loudon House LLC v. Town of Colonie, 123 A.D.3d 1409, 999 N.Y.S.2d 607 (3d Dept. 2014)
In this Article 78 proceeding seeking to review Town’s denial of FOIL request for report
prepared for Town by outside counsel regarding building efforts of P, the claim that Town
waived the privilege as to the report by counsel’s discussion of it at a public meeting was
remitted for trial court to inspect report in camera and render proper determination on waiver
issue, since whether and how much of report and extensive verbal presentation setting forth
counsel’s legal analysis of zoning issues involved in matter at issue had overlapped were open
questions on appeal. Court noted report was not examined by trial court and not part of record.
42
Abbo-Bradley v. City of Niagara Falls, 125 A.D.3d 1469, 3 N.Y.S.3d 842 (4th Dept. 2015)
In this toxic tort action, Court held communications between P’s attorney and their consultants is
protected by the privilege. Although P’s claims are based upon evidence obtained from samples
collected at site, it was not waived. Court noted the fact “[t]hat a privileged communication
contains information relevant to the issues the parties are litigating does not, without more, place
the contents of the privileged communication itself at issue in the lawsuit”.
4.
Scope
Q.C. v. C.C., 47 Misc.3d 600, 5 N.Y.S.3d 810 (Sup. Ct. Westchester Co. 2015) (Ecker, J.)
In this contested matrimonial action, an issue arose as to whether P husband as to whether he was
mentally ill when he signed several stipulation, which he was now seeking to void. His attorney
was deposed and D sought to exercise her further Court noted P’s attorney adequately and
sufficiently answered the questions posed to her consistent with her obligations as counsel for a
party, both in preserving confidential communications and the appropriateness of her action
when she had a client who might have been under a disability. Allowing D to attempt to
collaterally elecit facts or opinions to discredit P’s claim of incompetency through the deposition
of his attorney would have a deleterious effect upon the sanctity of the attorney-client privilege,
and place into jeopardy his attorney’s ethical responsibilities. P’s conduct, rather than the
conduct or credibility of his attorney, was the focus of the injury and the questions propounded
to P’s attorney, couched as if she were the focus of an investigation, were beyond the proper
scope of the deposition.
C.
Work Product/Material Prepared for Litigation
Gettner v. Mercy Medical Ctr., 125 A.D.3d 802, 4 N.Y.S.3d 283 (2d Dept. 2015)
In this medical malpractice action, P sought to vacate order directing her to provide D with copy
of an audio recording of an interview she conducted with D physician prior to the
commencement of this action. Court denied motion. It held P failed to slow the recording
constituted attorney work product as the recording did not contain any elements of opinion,
strategy, etc; and P failed as well to show it was trial preparation material as the conclusory
assertions set forth in her supporting affidavit are insufficient to meet her burden of establishing,
with specificity, that the recording was prepared “exclusively in anticipation of litigation”.
D.
Physician-Patient
1.
Privilege
People v. Rivera, ___ N.Y.3d ___, ___ N.Y.S.2d ___ (2015)
In this sexual assault against child prosecution Court held trial court erred in allowing D’s
psychiatrist to testify concerning D’s admission that he abused an 11-year-old child. Ruling
violated the privilege as D made the admission for the purpose of treatment for depression and
43
suicidal ideation. Court rejected People’s argument that enforcement of the privilege, as here
after the disclosure does not promote policy of privilege.
Kneisel v. QPH, Inc., 124 A.D.3d 729, 2 N.Y.S.3d 195 (2d Dept. 2015)
In this wrongful death medical malpractice action, Court held discovery of the decedent’s
hospital roommate’s name and address was prohibited, as violative of roommate’s privilege. It
noted decedent was housed in a unit of the hospital that was designated for patients ages 12 to 15
years old who suffered from certain psychiatric disorders, so that roommate’s location in that
unit would reveal her medical status.
Cole v. Panos, ___ A.D.3d ___, ___ N.Y.S.3d ___ (2d Dept. 2015)
In this medical malpractice action, Court held P’s motion to compel discovery of all surgeries
performed by D MD on specified dates should be granted to produce case log pertaining to all
surgeries performed by him on those dates, reflecting every medical procedure performed during
each surgery on the nonparty patients, while requiring the names and other identifying
information of the nonparty patients to be redacted, and confining distribution of such records to
only the parties, their counsel, and their expert witnesses. In so holding, court noted listing of
each procedure was within privilege, P established information was necessary and material; and
policy interests of privilege would not be undermined.
People v. Hartle, 122 A.D.3d 1290, 995 N.Y.S.2d 424 (4th Dept. 2014)
In this murder prosecution, Court held privilege did not apply to statements D made to medical
professional while being examined at hospital after his arrest, as police investigator was in
examination room at time of statements. D was aware of investigator’s presence but did not ask
to speak with medical professional privately, and D made numerous statements to others that
were similar to statements he made to medical professional, both before and after making then to
her.
2.
Waiver
People v. Williams, 127 A.D.3d 1118, 5 N.Y.S.3d 880 (2d Dept. 2015)
In this DWI prosecution, Court held trial court did not err in admitting his hospital records into
evidence as the court properly determined that D waived his physician-patient privilege by
affirmatively placing his physical condition at issue through defense counsel’s cross-examination
of Police Officers during which defense counsel attempted to show that the D’s appearance and
behavior were the result of a condition other than intoxication.
Perez v. Fleischer, 122 A.D.3d 1157, 997 N.Y.S.2d 773 (3d Dept. 2014)
In this lead paint action Court held medical records of P’s sibling and his mother, with exception
of mother’s records during time of her pregnancy with P and P’s birth, for which records P had
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already provided authorization, were privileged, and this not discoverable where mother and
siblings did not consent and had not waived that privilege. COMMENT: Court also held in
camera review of P’s academic records of siblings and his mother was warranted as D’s
submitted expert affidavit indicating that those record were relevant and necessary to determine
whether other factors caused P’s injuries, and, considering that these records were private but not
privileged, court reasonably balance owners’ need for them and their possible relevance against
burden to these nonparties from disclosure.
Schlau v. City of Buffalo, 125 A.D.3d 1546, 4 N.Y.S.3d 450 (4th Dept. 2015)
In this personal injury action, Court held P waived the privilege as to records of his medical and
psychological condition as he affirmatively placed those conditions in issue. Court also held
with respect to P’s preaccident records, the waiver of the privilege extended to same condition
post 1997, but not pre-1997 as those records in the context of this action are not material.
Reading v. Fabiano, 126 A.D.3d 1523, 6 N.Y.S.3d 360 (4th Dept. 2015)
In this medical malpractice action D sought discovery of P’s medical records. Court rejected D’s
contention that the allegations in the bill of particulars that P sustained “serious and permanent
injuries, including: toxic keratitis; bilateral corneal abrasions; severe bilateral photophobia;
impaired vision; decrease in vision; need for corneal transplants; disability; and pain and
suffering” did not constitute such ‘broad allegations of injury’ that they place plaintiff’s entire
medical history in controversy. It held trial court properly conducted an in camera review to
redact irrelevant information and properly limited disclosure to the “conditions affirmatively
placed in controversy”.
E.
Education Law §6527(3)
Kneisel v. QPH, Inc., 124 A.D.3d 729, 2 N.Y.S.3d 195 (2d Dept. 2015)
In this wrongful death medical malpractice action, Court held the statutory quality assurance
privilege did not bar disclosure of requested hospital documents. Court noted D’s merely
asserted that the privilege applied to the requested documents without making any showing as to
why the privilege attached, and the family members demonstrated that the requested documents
were not prepared in accordance with the statute.
F.
Spousal
Note: Privilege (CPLR 4502) covers communications between “husband and wife” and made
“during the marriage.” With the enactment of the Marriage Equality Act, effective July 24,
2011, legalizing same sex marriage, privilege should apply to a same-sex marriage.
G.
Journalist
Matter of Holmes v. Winter, 22 N.Y.3d 300, 980 N.Y.S.2d 357 (2014)
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Court held it would violate NY policy, as evidenced by NY’s Shield Law for a NY court to issue
a subpoena directing a NY reporter to appear at a judicial proceeding in another state where there
is a substantial likelihood that the reporter will be directed to reveal names of confidential
sources or be held in contempt.
IX. NON-TESTIMONIAL EVIDENCE
A.
Authentification
People v. France, 120 A.D.3d 1357, 992 N.Y.S.2d 339 (2nd Dept. 2014)
In this assault prosecution, D argued trial court erred in admitting a surveillance video depicting
him beating victim. Court rejected argument, holding video was properly authenticated by the
victim’s testimony that it accurately captured D’s attack on the victim on the station waiting
room.
People v. Junior, 119 A.D.3d 1228, 990 N.Y.S. 689 (3rd Dept. 2014)
In this assault prosecution, Court held surveillance video from bar’s system which showed
underlying incident was properly authenticated by testimony of bar’s owner who was familiar
with the operation of the bar’s security system and had reviewed the footage numerous times, as
well as that of the victim, who acknowledged that it fairly and accurately depicted the incident.
People v. Powell, 115 A.D.3d 1253, 982 N.Y.S.2d 214 (4th Dep’t 2014)
In this murder prosecution, D argued that the trial court erred in admitting a cassette tape
recovered from D’s car contained a rap song with lyrics paralleling the circumstances of the
murder. Witnesses familiar with D’s voice identified her voice as the female voice singing the
rap song, and other witnesses testified with respect to the cassette tape, a digitally enhanced
compact disc recording of the rap song, and a transcript of the rap song’s lyrics. Court rejected
the argument, finding a sufficient foundation for its admission. It noted that in addition to the
four witnesses who identified D’s voice, the backseat passenger testified that he recorded the
background music for the rap song up to a year before the victim’s death. Police witnesses gave
testimony with respect to the chain of custody of the cassette tape, and a sound
engineer/acoustics expert opined that, within a reasonable degree of scientific certainty, the
cassette tape was recorded only once and had not been altered. To the extent that D contended
that there was a gap in the chain of custody of the cassette tape, such gaps go to the weight of the
evidence and not to its admissibility.
Christian v. Venetozzi, 114 A.D.3d 975, 979 N.Y.S.2d 863 (3d Dep’t 2014)
In this prison disciplinary proceeding, the hearing officer conducted his own handwriting
analysis after examining the documentation reviewed during the investigation. Court held that
he was entitled to make his own comparison without expert testimony.
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Morreale v. Froelich, 125 A.D.3d 1280, 3 N.Y.S.3d 479 (4th Dept. 2015)
In this slip and fall action, Court held that P’s expert properly relied upon photographs in
forming his opinion as they had been properly authenticated. It noted the record including the
date stamp on the photographs themselves as well as the testimony of F, his wife, and P’s
daughter, establishes that the photographs were taken soon after P’s fall and that they depicted
the railing as it appeared at that time.
People v. Messina, 43 Misc.3d 78, 986 N.Y.S.2d 911 (App. T. 2nd Dept. 2014)
In this prosecution for contempt in violation of an order of protection, Court held there was
sufficient testimony to authenticate the People’s trial exhibit of video footage depicting the
incident that was recorded by a videotape surveillance system installed on the premises. Court
noted the brother and sister-in-law described the manner in which the surveillance system was
maintained and operated; D’s wife who witnesses the incident from inside the residence and
recognized D as the person throwing the hammer, testified that the People’s trial exhibit
accurately depicted what she had personally observed; the brother and sister-in-law, who had
known defendant for many years, testified that they reviewed the footage and recognized
defendant as the perpetrator by his distinctive clothing, idiosyncratic body movements and
characteristic gait; and the sister-in-law stated that she had copied what she considered the
relevant footage from the surveillance videotapes to a DVD, which she gave to an investigating
officer, and that the People’s trial exhibit accurately reproduced the portions of the videotapes
she had copied. It further noted that gaps in the recorded media may implicate the weight to be
accorded the evidence, but not its admissibility, as long as the remaining portions are
authenticated.
B.
Best Evidence
People v. Haggerty, 23 N.Y.3d 871, 993 N.Y.S.2d 668 (2014)
In this prosecution for grand larceny rising out of D’s alleged fraud committed upon former
Mayor Bloomberg through theft of monies in a revocable trust allegedly used by the Mayor.
People called the principal draftsperson of the trust to establish ownership. D objected on best
evidence grounds, arguing the trust instrument itself must be introduced for that purpose.
Testimony was permitted on the apparent grounds that the terms were collateral to the issue of
whether the moneys belonged to the Mayor; and the witness had knowledge that the Mayor used
the money. Court of Appeals did not decide issue, finding testimony established the ownership.
QUAERE: Was ruling proper?
Grand Manor Health Related Facility v. Hamilton Equities, 122 A.D.3d 481, 997 N.Y.S.2d 37
(1st Dept. 2014)
In this action regarding effectiveness of lease assignment, Court held trial court properly
admitted copy of the document with notarized signature, finding its admission did not violate
rule under CPLR 4539(a), since P’s witness testified he retrieved it from company’s file where it
was P’s practice to keep photocopies there of outgoing correspondence.
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Shanmugam v. SCI Engineering, 122 A.D.3d 437, 996 N.Y.S.2d 252 (1st Dept. 2014)
In this action to collect on promissory notes, Court held trial court properly precluded witness for
D from presenting testimony concerning value of D’s carry forward contracts, accounts
receivable and summary of monthly revenues as best evidence rule required their production
since D did not provide an adequate explanation for their absence.
Lawton v. Palmer, 126 A.D.3d 945, 7N.Y.S.3d 177 (2nd Dept. 2015)
In this auto accident action, Court held trial court did not err in precluding testimony of a nonparty witness about what he viewed on a surveillance tape of the accident as D did not meet
heavy burden of establishing that testimony was an accurante and reliable portrayal of the tape.
Abildgaard v. Van Der Brulle, 2014 NYSlipOp. 51591(u) (Civ. Ct.NY Co.) (D’Auguste, J.)
P sued D for non-payment for goods sold to D and in support of claims D signed a handwritten
document acknowledging his debt. D denied legitimacy of document, arguing his signature on it
was forged using Photoshop. P only produced a photocopy of it, claiming inability to produce
original. Court precluded use of copy, holding its admission here would violate the rule. It
further held any secondary evidence in the circumstances of the contents of the original was not
admissible as it failed to establish that is a reliable and accurate portrayal of original. The
“circumstances” were the motivation for non-production or original.
Christian v. Venetozzi, 114 A.D.3d 975, 979 N.Y.S.2d 863 (3d Dep’t 2014)
In this prison disciplinary proceeding, the hearing officer conducted his own handwriting
analysis after examining the documentation reviewed during the investigation. Court held that
he was entitled to make his own comparison without expert testimony.
C.
Machines, Test Results and Experiments
People v. Santiago, 47Misc.3d 195, 4N.Y.S.3d 829 (Sup.Ct. Bronx Co. 2014)
In this DWI prosecution, Court held faulty administration of Intoximeter Alco-Sensor field
sobriety test (“FST”) to defendant rendered the results inadmissible. The decision of the
detective who administered the test to D to deviate from established protocols by administering
the test without a waiting period easily could have skewed the test results upward, thereby
prejudicing defendant. To lay a proper foundation for the admission of FST results, the
prosecution must establish, among other things, that the FST was conducted in conditions that
would lead to scientifically reliable results, including that the defendant was observed for at least
15 to 20 minutes prior to the test to ensure that he or she had not ingested alcohol or did not have
other contaminants in his or her mouth that would skew the results, Here, the detective testified
that he would have waited 10 to 20 minutes to eliminate any possibility of contamination from
mouth alcohol but D said that he had just consumed one alcoholic beverage much earlier and that
he did not eat anything or recently vomit. The detective’s proffered explanation for relying on
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D’s self-serving statements was not credible as an experienced highway detective could not have
reasonably concluded that D, who was observed at 3:00 a.m. exceeding 85 miles per hour and
weaving between lanes, his eyes bloodshot and breath rife with alcohol, had drunk just one beer
in the distant past.
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