McGoldrick's New York State Civil Evidence

Second Department: Physician Office Records Clearly Admissible In Support Magistrate Hearing Where Author Physician Available To Testify

2010-04-28T10:00:00.017-04:00

In a child support proceeding before a Support Magistrate in Nassau County, petitioner seeking a downward modification of child support payments was denied his attempt to admit certified medical records in support of his submission that he was unable to work. On review, the Family Court, Nassau County, denied the petitioner's objection and agreed with the Support Magistrate that the records were inadmissible on the basis that:

"...the records are hearsay as they deprive respondent of the right to confront the witness. This Court agrees. The [father] refers to CPLR 4518(a). This section refers to business records, not doctors office records or notes."

CPLR 4518(a)

Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.

On appeal, Appellate Division, Second Department held that the medical records, if mere physician office records and not medical expert opinion, would have been admissible if supported by the statutory foundation required under CPLR 4518(a) and despite the author of the records being available to testify in Matter of Fortunato v Murray (2010 NY Slip Op 03122):

"Contrary to the Family Court's general statement of the applicable law, "[a] physician's office records, supported by the statutory foundations set forth in CPLR 4518(a), are admissible in evidence as business records. However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor's opinion or expert proof" (Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano v Branks, 141 AD2d 705, 705-706). Moreover, a physician's office records "may be received as evidence despite the fact that a physician is available to testify as to the substance and contents of the records" (Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New York City Tr. Auth., 174 AD2d 268). Here, upon the father's appeal of the Family Court's order, this Court does not have the benefit of the actual medical documents in dispute since the documents are not part of the original papers before this Court. Thus, from the record, it is unclear whether the subject documents were the type which this Court views as admissible. Accordingly, we remit the matter to the Family Court, Nassau County, for a review by the Support Magistrate of the subject medical documents in light of and pursuant to the aforementioned standard as to admissibility."

Appellate Term, First Department: Department of Defense Record Inadmissible In Absence Of Identification Of Specific Terms Of Its Request

2010-02-01T10:00:00.009-05:00

The Appellate Division, First Department denied the admission of evidence on a Department of Defense document identifying that the defendant was not "on active duty" relevant in determining a defense under the Soldiers' and Sailors' Civil Relief Act of 1940 where no proper foundation was laid in Tracey Towers Assoc. v Cobblah 2010 NY Slip Op 50061(U)

"Civil Court properly denied landlord's motion for a default judgment and warrant of eviction on the ground that landlord failed to submit sufficient evidence that tenant was not serving in the military (see Soldiers' and Sailors' Civil Relief Act of 1940 [50 USC Appendix § 521]). The conclusory, hearsay affidavit of an employee of landlord's law firm was not competent evidence of tenant's military status. While landlord also submitted a document from the Department of Defense Manpower Data Center suggesting that tenant was not "on active duty," landlord failed to offer any evidence demonstrating what information (other than tenant's first and last name) it provided to the Department to obtain that document (cf. 363 Assoc., LLC v Sharhan, 2 Misc 3d 928 [2003]). "

Counsel should also note the rule in New York State with respect to self-authenticating official documents.

First Department: Order to Redact Admissions Against Interest By Witness Plaintiffs In Hospital Records On Basis Of Unreliability Reversed

2010-01-20T10:00:00.010-05:00

Plaintiff apartment shareholders and officers were injured when, while observing work performed by defendant apartment corporation's contractor, fumes from floor finishing material ignited causing a fire. Defendant's contractor was a cousin of the plaintiffs. Defendant alleged plaintiffs were assisting the contractor and sought to lead admissions made by plaintiffs to fire department personnel, hospital staff and ambulance attendants that they were involved in the work.

The Supreme Court granted plaintiffs' motion to redact the hospital records to remove the admissions that the plaintiffs were working. On appeal First Department held plaintiffs were not entitled to redaction of the records so as to omit the admissions that they were involved in the work on the building in Preldakaj v Alps Realty of NY Corp. (2010 NY Slip Op 00294).

"The motion court, after correctly finding that the admissions were not germane to the diagnosis or treatment of plaintiffs' injuries and therefore were not admissible under the business records exception to the hearsay rule (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95 [1999]), ruled that the records were to be redacted to omit statements that plaintiffs were applying the polyurethane. In addition, apparently addressing the exception to the hearsay rule for admissions against interest in hospital records (see Coker v Bakkal Foods, Inc., 52 AD3d 765 [2008], lv denied 11 NY3d 708 [2008]), the court ruled that the statements were unreliable, and therefore inadmissible, in view of uncontradicted evidence about the effects of the morphine that was administered to plaintiffs during treatment. This was error. The evidence concerning the effects of the morphine goes to the weight to be accorded the admissions, not their admissibility (see [*2]Gangi v Fradus, 227 NY 452, 457 [1920]).

The statements that plaintiffs were applying the polyurethane may only be admitted if there is clear evidence connecting the party to the entry (i.e., testimony that the party made the statement) (see Berrios v TEG Mgt. Corp., 35 AD3d 775 [2006]). If the statements are admitted at trial and it is determined that, contrary to plaintiffs' position, they were refinishing the floors when the fire broke out, then it will have been shown that plaintiffs' "role in the affairs of [Alps] involved ensuring the performance of the particular corporate duty whose breach [they] allege[] caused [their] injur[ies]," and they will be unable to prevail in this action (see 47 AD3d at 512)."

First Department: Expert Witness Testimony Admissible In Absence Of Expression Of Knowledge Or Background In Specialty At Issue

2010-01-06T10:00:00.005-05:00

At trial in Bronx County Supreme Court, plaintiff successor of deceased patient who was treated in defendant hospital's emergency room sought to lead expert testimony from an internal medicine doctor who did not express he had a background or knowledge in emergency medicine. The Supreme Court declined to allow that doctor's expert testimony. The First Department unanimously reversed and allowed the plaintiff''s expert doctor's testimony in Ocasio-Gary v Lawrence Hosp. 2010 NY Slip Op 00003.

"The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion."

In the cited case of Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]) First Department had held:

"In opposition to defendant's prima facie showing based on the hospital records, the deposition testimony and the affirmation of an expert pediatric urologist with many years of experience in that field, plaintiff in this medical malpractice action failed to raise an issue of fact. The affirmation of plaintiff's purported expert was insufficient since it did not indicate either the affiant's specialty or that he or she possessed the requisite background and knowledge to furnish a reliable opinion (cf. Joswick v Lenox Hill Hosp., 161 AD2d 352, 354-355 [1990]). The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record (see Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]), was based on a hospital record notation whose source was unknown and thus inadmissible (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96 [1999]), and was otherwise lacking in evidentiary foundation. We decline to address plaintiff's unpreserved spoliation argument."

First Department: Plaintiff's Section 50-H Examination of Claim Testimony Allowed To Assist Sufficiency Of Notice Of Claim

2009-12-11T21:00:00.006-05:00

A senior plaintiff's evidence in an examination of claim under Section 50-H General Municipal Law was sufficient to support his Notice of Claim despite plaintiff's inability to recall the specific bus route number or otherwise specifically identify the bus on which he fell while a passenger in Phillipps v New York City Tr. Auth. 2009 NY Slip Op 09058 .

Relevantly, plaintiff's evidence at the examination of claim included the date on which the accident occured, the street and cross street at which the accident occurred, the circumstances of the accident and other significant facts to support his Notice of Claim. The First Department found that the defendant had failed to establish prejudice.

New York County Supreme Court's denial of defendant's motion to dismiss for service of inadequate Notice of claim was affirmed by the First Department:

"Plaintiff stated in the notice of claim that "[o]n or about the 17th day of January 2007," while a passenger on a bus owned and operated by defendants, which "was being operated on Fifth Avenue at or near the bus stop at the[] Southwest corner of 33rd Street in Manhattan, said bus stopped and then went forward and then abruptly came to as final stop[, causing plaintiff] to be propelled in said bus and to violently hit the floor thereby sustaining severe permanent personal injuries." As courts may look to the evidence adduced at a hearing pursuant to General Municipal Law § 50-h to determine the sufficiency of a Notice of Claim (see D'Alessandro v New York City Tr. Auth., 83 NY2d 891, 893 [1994]), we recount the relevant evidence from the hearing in this case. Plaintiff, who was 84 years old at the time of the accident, testified that he was on his way to visit a friend who lived on 33rd Street between Fifth and Sixth Avenues and had transferred at 49th Street and Fifth Avenue from a crosstown bus. He then "took a Fifth Avenue bus that went downtown" but did not know the number of the bus. The bus, however, "was one of those relatively modern buses that has a[n] . . . elevated backside." As the bus approached the stop at 33rd Street, plaintiff got up from his seat. After the bus stopped and the doors opened, when plaintiff was about a foot from the front door preparing to exit, it "jerked forward violently," and plaintiff fell on his back in the aisle. At the time of the fall, plaintiff had been holding only his cane. Plaintiff was helped up and off the bus by other passengers. Believing he had only a bruise, he walked to his friend's apartment, which was five minutes away. After five or ten minutes, however, the pain was so bad he took a taxi to the hospital. He had broken five ribs and punctured a lung, and was admitted to the hospital. In relevant part, the statute requires that a notice of claim set forth "the time when, the place where and the manner in which the claim arose" (General Municipal Law § 50-e[2]). "

...

In relevant part, the statute requires that a notice of claim set forth "the time when, the place where and the manner in which the claim arose" (General Municipal Law § 50-e[2]). "Reasonably read, the statute does not require those things to be stated with literal nicety or exactness" (Brown v City of New York, 95 NY2d 389, 393 [2000] [internal quotation marks [*2]omitted]). Rather, "[t]he test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city to investigate" (id. [internal quotation marks omitted]); "[n]othing more may be required" (id. [internal quotation marks omitted]).

...

"Under these circumstances, the notice of claim was not insufficient due to plaintiff's inability to state whether the bus was an M1, M2, M3 or M4 or to recall any identifying information regarding the bus driver (cf. Hudson v New York City Tr. Auth., 19 AD3d 648, 649 [2005] [notice of claim not insufficient where plaintiff provided the time and location of accident, the route number of the bus that collided with her vehicle, and the manner in which her claim arose but incorrect information regarding the bus number])."

Court of Appeals: Supreme Court's Granting of Motion To Preclude Evidence Of Expert Witness's Interest In Defendant's Insurance Carrier Was Proper

2009-11-01T10:00:00.011-05:00

The Court of Appeals examined a question faced often by counsel in matters where the existence of a defendant's liability insurance is at risk of being raised when examining a witness as to his or her interest in a liability insurance carrier connected to the defendant. The Court of Appeals found that the Supreme Court, in a dental malpractice jury trial, had not erred in allowing defendant's motion to preclude plaintiff's counsel's cross-examination of an expert witness as to his shareholding in the defendant dentist's malpractice liability insurer in Salm v Moses 2009 NY Slip Op 07479.

In granting the defendant's counsel's in limine motion to preclude this questioning of the witness, who with the defendant also had an interest in the defendant's insurance carrier, the Supreme Court had found that the probative value of the questioning was outweighed by the prejudicial effect of revealing the existence of the insurance. First Department affirmed and was affirmed in turn by the Court of Appeals.

"Although cross-examination is a matter of right (see Matter of Friedel v Board of Regents of Univ. of State of N.Y., 296 NY 347, 352 [1947]), it is well settled that its scope and manner are left to the sound discretion of the trial court (see Bernstein v Bodean, 53 NY2d 520, 529 [1981]; Feldsberg v Nitschke, 49 NY2d 636, 643 [1980], rearg denied 50 NY2d 1059 [1980]). Therefore, absent an abuse of discretion, a trial court's determination is beyond our review.

Evidence that a defendant carries liability insurance is generally inadmissible (see Leotta v Plessinger, 8 NY2d 449, 461 [1960], rearg denied 9 NY2d 688 [1961]; Simpson v Foundation Co., 201 NY 479, 490 [1911]). The rationale underlying this rule is twofold. First, "it might make it much easier to find an adverse verdict if the jury understood that an insurance company would be compelled to pay the verdict" (Loughlin v Brassil, 187 NY 128, 135 [1907]). Second, evidence of liability insurance injects a collateral issue into the trial that is not relevant as to whether the insured acted negligently. Although we have acknowledged that liability insurance has increasingly become more prevalent and that, consequently, jurors are now more likely to be aware of the possibility of insurance coverage, we have continued to recognize the potential for prejudice (see Oltarsh v Aetna Ins. Co., 15 NY2d 111, 118-119 [1965]; see also Barker and Alexander, Evidence in New York State and Federal Courts § 4:63, at 260-261 [5 West's NY Prac Series 2001] ["Because the prejudice quotient is obvious, the rule barring such evidence is one of the least controversial in the law of evidence"]).

The rule, however, is not absolute. If the evidence is relevant to a material issue in the trial, it may be admissible notwithstanding the resulting prejudice of divulging the existence of insurance to the jury. For example, we have held that evidence that a defendant insured a premises is relevant to demonstrate ownership or control over it (see Leotta, 8 NY2d at 462). Likewise, it was proper to allow cross-examination of a physician regarding the fact that the defendant's insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness (see Di Tommaso v Syracuse Univ., 172 App Div 34, 37 [4th Dept 1916], affd without opn 218 NY 640 [1916]).

Here, we perceive no abuse of discretion in Supreme Court's evidentiary ruling. Such evidence may be excluded if the trial court finds that the risk of confusion or prejudice [*3]outweighs the advantage in receiving it (see Kish v Board of Educ. of City of N.Y., 76 NY2d 379, 384-385 [1990]). In this case, plaintiff speculated during the colloquy that a verdict in defendant's favor could result in a $100 benefit — at the time of the expert's death, disability or retirement — based on the expert's shareholder status in OMSNIC. The trial court's finding that any such financial interest was likely "illusory" and that the possibility of bias was attenuated was reasonable on this record. Absent a more substantial connection to the insurance company — or at least something greater than a de minimis monetary interest in the carrier's exposure — the court did not engage in an abuse of discretion in precluding the testimony. We note that a voir dire of an expert outside the presence of the jury can better aid the court in exploring the potential for bias. "

Because plaintiff's counsel did not seek that the witness be cross-examined in the absence of the jury, it was held that the Supreme Court was correct in granting the motion before hearing the evidence in question and reserving its decision.

First Department: Excited Utterance Exception Not Applicable When Event Reported 2 1/2 Hours After Incident

2009-10-25T10:00:00.004-04:00

The First Department confirmed that the excited utterance exception to the rule against hearsay was not available in a matter where the decedent reported her fall to the plaintiff daughter by telephone some two and a half hours after her fall in Soto v Assisted Care Home Attendants Program 2009 NY Slip Op 07461

The defendant's summary judgment motion to dismiss was granted at trial and affirmed on appeal. Critically, the decedent was conscious after her fall and had time to reflect on her statement before speaking with the witness.

"Plaintiff sued for injuries sustained by decedent when she fell out of bed due to the alleged negligence of her home health aide. Defendants were entitled to judgment when they established, through plaintiff's own deposition testimony, that plaintiff had no personal knowledge of the facts related to the injury (see Rodriguez v Sixth President, 4 AD3d 406 [2004]), thus relegating her theory to being proven only by speculation (see Teplitskaya v 3096 Owners Corp., 289 AD2d 477 [2001]).

In any event, plaintiff's testimony was based on inadmissible hearsay, rendering it insufficient to create a triable issue of fact (see Narvaez v NYRAC, 290 AD2d 400 [2002]). There is a notable exception to the hearsay exclusion rule for statements uttered under the stress of excitement, caused by an external event that "stills [the declarant']s reflective faculties," removing the opportunity for deliberation that might lead to untruthfulness (People v Edwards, 47 NY2d 493, 497 [1979]). Statements made by decedent and the home health aide, in a telephone call to plaintiff approximately 2½ hours after the fall, were precipitated by an event that was traumatic to both. However, in view of the fact that decedent was apparently conscious during this passage of time, she was capable of reflection by the time she spoke with her daughter [*2]on the telephone, thus eliminating the spontaneous nature of her declaration."

Second Department: Inconsistent Findings in Defendant's Own Expert Testimony Did Not Raise Triable Issue Of Fact In "Serious Injury" Motion

2009-10-05T10:00:00.004-04:00

In a "serious injury" CPLR 3212 motion, defendant's evidence from two different expert medical practitioners, who found that plaintiff had 25 degree range of movement and 45 degree range of movement respectively, but who both concluded that it was within "normal range", was sufficient to meet burden of showing that plaintiff did not have a serious injury, despite the defendant's expert evidence itself potentially raising an issue of fact about the exact degree of the plaintiff's condition: Layne v Drouillard 2009 NY Slip Op 06667.

Plaintiff NYPD officer commenced proceedings in Supreme Court, Kings County where defendant brought motion to dismiss alleging no serious injury within the Insurance Law 5102(d). In addition to this, issues surrounding the plaintiff's ostensible good health during retraining as an officer in another jurisdiction were relevant.

On appeal Second Department reversed:

"The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants' examining doctors set forth, in their affirmed medical reports, that the plaintiff had a full range of motion in his cervical and lumbar spine based on objective range of motion tests, wherein the numerical findings were compared to what is normal. In addition, the defendants submitted deposition testimony of the plaintiff showing that the plaintiff resumed his duties as a New York City police officer, passed medical and physical examinations, and attended the police academy to become a police officer in another jurisdiction. During this time, the plaintiff engaged in rigorous activities which included running, sit-ups, and push-ups (see Kasim v Defretias, 28 AD3d 611). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint."

In dissent, Angiolillo J. held that the defendant's own expert testimony, which showed inconsistent findings of fact of the range of movement of plaintiffs spine, raised a triable issue of fact sufficient to defeat defendant's motion.

"I disagree. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Where the submissions in support of the motion themselves raise a triable issue of fact, summary judgment must be denied (see Hwa Soon Um v Hoi Ku Yang, 63 AD3d 686; Robinson v Yeager, 62 AD3d 684; Locke v Buksh, 58 AD3d 698, 699). In my view, that is precisely the situation presented here. The defendants rely in support of their motion on the reports of two physicians who examined the plaintiff on their behalf. Each found that the plaintiff had a normal range of lateral motion in his lumbar spine. They did so, however, on the basis of different factual findings as to the extent of the plaintiff's range of motion and different expert opinions as to what is normal. Dr. Rafiy found that the plaintiff had a lateral range of motion in his lumbar spine of 45 degrees and that 45 degrees was normal. Dr. Zhou found that the plaintiff had a range of motion of 25 degrees in his lumbar spine and that 25 degrees was normal. Contrary to the majority's conclusion, these reports do not demonstrate the absence of issues of fact. If Dr. Rafiy is correct that the plaintiff's range of motion is 45 degrees and Dr. Zhou is correct that 25 degrees is normal, the defendant has failed to establish that the plaintiff does not have a serious injury. In fact, the defendant's experts agreed only on the conclusion that the plaintiff's range of motion was normal. A conclusory statement that a plaintiff did not sustain a serious injury, however, is insufficient to sustain summary judgment dismissing the complaint for lack of serious injury (see Landman v Sarcona, 63 AD3d 690; Powell v Prego, 59 AD3d 417, 419).

The evidence which the majority cites with respect to the plaintiff's employment and the ability to engage in physical activity which that employment involves may well defeat the plaintiff's claim at trial. On a motion for summary judgment, however, the moving party can prevail only upon establishing its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In the absence of proof as to the results of the specific medical examinations to which the plaintiff was subjected and the specific activities in which he engages as a police officer, the defendant has not met that burden here."

First Department: Defendant's Spoliation Of Video Recording Of Staircase Permits Adverse Inference Only

2009-10-02T10:00:00.001-04:00

In Minaya v Duane Reade Intl., Inc. 2009 NY Slip Op 06767 the First Department limited the effect of defendant drugstore's failure to keep a video recording that may have shown the condition of a staircase on which plaintiff suffered an accident to an adverse inference in plaintiff's efforts to establish defendant's prior notice of the condition of the staircase. The trial court on motion had limited the defendant from introducing any evidence on the issue of notice of condition of the staircase.

Held:

"Order, Supreme Court, New York County (Debra A. James, J.),....which granted plaintiff's cross motion to strike defendant's answer on the ground of spoliation of evidence to the extent of precluding defendant from presenting evidence at trial as to the issue of its notice of the condition of the stairs on which plaintiff was injured and directing that an adverse inference be charged, unanimously modified, on the law, to direct that the sanction be limited to directing that an adverse inference be charged, and otherwise affirmed, without costs.

In sanctioning defendant for failing to preserve critical evidence, the motion court appropriately exercised its "broad discretion to provide . . . relief to the party deprived of the lost evidence" (Ortega v City of New York, 9 NY3d 69, 76 [2007]). Defendant failed to preserve a video recording that may have shown the stairway before and during plaintiff's accident. The unavailability to plaintiff of the video recording may have impaired his ability to establish that defendant possessed the requisite notice of a defective condition on the stairs. Under these circumstances, however, the extreme sanction of preclusion is not warranted "to restore balance to the matter" (Baldwin v Gerard Ave., LLC, 58 AD3d 484 [2009]). Rather, an adverse inference is sufficient to prevent defendant from using the absence of the videotape to its own advantage (Tomasello v 64 Franklin, Inc., 45 AD3d 1287 [2007]).

Third Department Reverses Supreme Court, Broome County: Admission of Fact Against Interest in Pleadings Does Not Lose Its Effect After Subsequent Amendment Withdrawing Admission

2009-09-28T10:00:00.005-04:00

In Kwiecinski v Chung Hwang 2009 NY Slip Op 06630 defendant medical practitioners and medical group sought to amend their answer and prevent plaintiff from using an admission made by the defendants in their answer. That motion to amend was granted by the trial court and it was further ordered that the plaintiff was precluded from further use of the admission. On appeal, plaintiff successfully sought reversal of the order precluding her use of the earlier admission in the original answer.

Plaintiff had commenced the action seeking damages for professional negligence of defendants in failing to give the proper medication prior to surgery, including this allegation in her pleading:

"was supposed to receive Versed prior to the surgery. Instead, due to negligence, gross negligence and recklessness of defendant[s], plaintiff was given a paralytic agent.

Defendants seemingly made an admission against interest in their answer, in their motion to seek to amend it:

"as to the allegations as contained in paragraph numbered '23' of the . . . [c]omplaint, admit the first two sentences and deny knowledge or information sufficient to form a belief as to the remaining allegations." Defendants thereafter moved for permission to amend their answer, claiming that the admission of the facts contained in the first two sentences of paragraph 23 of plaintiff's complaint was inadvertent, and for an order precluding plaintiff from using the original admission in further proceedings in this action. Supreme Court granted the motion to amend the answer and ordered that plaintiff or any other party may not use the admission in the original answer at any stage of the litigation.

Third Department held:

Plaintiff contends that Supreme Court erred in precluding the use of defendants' admission in their original answer. We agree. "An admission of fact in an original pleading does not lose its effect as an admission of fact because the pleading has been superceded as such by an amended pleading" (Ranken v Probey, 136 App Div 134, 135 [1909]; see Resseguie v Adams, 55 AD2d 698, 699 [1976], affd sub nom. Locator-Map, Inc. v Adams, 42 NY2d 1022 [1977]; Ogilvie v City of New York, 44 AD2d 586, 586 [1974]; Arinsky v Arsinskiy, 280 App Div 820, 820 [1952]; Polakoff v Hill, 261 App Div 777, 780 [1941]; McNulty v Zaganos, 255 App Div 274, 275 [1938]; Jarnvagsstyrelsen v Dexter & Carpenter, Inc., 32 F2d 195, 198 [2d Cir 1932], cert denied 280 US 579 [1929]). As a result, admissions in an original pleading superceded by an amended pleading "are still evidence of the facts admitted" (Resseguie v Adams, 55 AD2d at 699). The circumstances surrounding the original admissions and the amendment may be explained at trial, however, and the weight afforded the original admissions is to be determined by the factfinder (see Bogoni v Friedlander, 197 AD2d 281, 292-293 [1994]; Arinsky v Arsinskiy, 280 App Div at 820). As the admissions in the original answer survive the amended answer (see Arinsky v Arsinskiy, 280 App Div at 820), we conclude that Supreme Court erred in precluding defendants' admissions in their original answer.

Supreme Court, New York County: How CPLR 2106 Revived Otherwise Inadmissible Expert Evidence And Saved The Plaintiff's Claim In A "Serious Injury" CPLR 3212 Motion

2009-08-30T15:07:00.034-04:00

In Uribe v Amboy Bus Co., Inc (24 Misc 3d 1217(A) 2009 NYSlipOp 51481(U)) the plaintiff, a taxi operator who was injured in an auto accident, commenced an action against defendant driver and bus operator who after discovery, moved for summary judgment against plaintiff under CPLR 3212 for plaintiff's failure to establish a "serious injury" as required under the statutory threshold provision in the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 & Insurance Law 5102(d).

In addition to being an example of how CPLR 2106 is applied to allow otherwise inadmissible expert evidence, this decision is instructive with respect to the use of police accident reports and photographs in such cases.

On the plaintiff's standard of proof:

In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

On onus:

The defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra; see also Gaddy v Eyler, supra; Pirrelli v Long Is. R.R., 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]). Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Newton v Drayton, 305 AD2d 303, 760 NYS2d 38 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 56 [2d Dept 1992]).

But, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 27 AD3d 284, 813 NYS2d 56 [1st Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be [*4]true under the penalties of perjury. An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra).

The court found that the defendants had met their burden and proved that the plaintiff had not suffered a "serious injury":

Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, 4 NY3d 566 [2005]; Gaddy v Eyler, supra; Perez v Rodriguez, supra). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1998]).

Despite the critical evidence in the MRI reports being neither sworn nor affirmed, it was held admissible under CPLR 2106, eventually leading the plaintiff to successfully resist the CPLR 3212 motion:

CPLR 2106
Affirmation of truth of statement by attorney, physician, osteopath or dentist
The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit

Dr. Waxman's December 8, 2006 MRI lumbar and cervical spine medical reports are unaffirmed and unsworn and would usually be inadmissible in this motion (see Grasso v Angerami, supra; Offman v Singh, supra; CPLR § 2106.) However, they are admissible evidence here, because Dr. Waxman's MRI medical records were properly referenced and reviewed by defendants' medical expert (Dr. Feuer[FN2]) in his medical affirmation (see Pommells v Perez, 4 NY3d 566, 577, n 5 [2005]; Navedo v Jaime, 32 AD3d 788, 822 NYS2d 43, [1st Dept 2004]; Brown v Achy, 9 AD3d 30, 776 NYS2d 56 [1st Dept 2004]; Gonzalez v Vasquez, 301 AD2d 438, 754 NYS2d 7 [1st Dept 2003]; Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 443 [1st Dept 2002]). Angel's physician, Dr. Boppana, stated in his medical affirmation that he reviewed the [*6]plaintiff's MRI films[FN3] and incorporated their results in his conclusions.

Dr. Waxman's MRI reports indicated that plaintiff suffered a broad based disc herniation at L4-L5 with left foraminal stenosis and a disc bulge at L3-L4 with anterior thecal sac effacement, and multilevel disc bulging from C3-C4 through C6-C7 with ventral epidural space effacement.
...
Here, though the evidence presented by Angel does not rebut defendants' proof that he did not suffer serious injury under the Insurance Law § 5102 (d) categorizations of a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body function or system; or the 90/180-day category, the objective criteria and their norms as presented in Dr. Boppana's medical affirmation has raised material issues of fact as to whether or not Angel sustained injuries under the Insurance Law § 5102 (d) category of a significant limitation of use of a body function or system category (see Pommells v Perez at 577).

The defendants also moved for summary judgment on liability, and sought to lead photographs alleged to have been taken by another of the defendant bus company's employees. That attempt was not successful, despite attempts by counsel to affirm the photographs:

The defendants also offer prime facie photographs allegedly taken after the accident by another bus driver employed by the defendant Amboy Bus Company who was just passing by the accident (see Notice of Motion, Exhibit I, Affirmation in Opposition, Exhibit 4). This unidentified bus driver allegedly named "Carmen" is never properly identified, deposed nor submitted an affidavit to authenticate the photographs. Moreover, the defendant Davis when asked about the photographs he replied that he never saw the photos and was unaware how were taken (id., Exhibit G, at 35-36):

The Court holds these photographs are inadmissible on this motion. We rely upon the Appellate Division, First Department's recent holding in Coleman v Maclas, 61 AD3d 569, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]. The Court affirmed that "the [trial] court properly disregarded the uncertified police reports and unauthenticated photographs as they were inadmissible hearsay (see Figueroa v Luna, 281 AD2d 204, 206, 721 NYS2d 635 [2001] )." The Court held "Further, the affirmation by plaintiff's counsel, who had no personal knowledge of the accident, was not admissible evidence... (see Johnson v Phillips, 261 AD2d 269, 270-271, 690 NYS2d 545 [1999] )." [*8]

The defendants further sought to lead a police accident report, without calling either the police officer who had authored that report, or who had witnessed the immediate aftermath of the accident and witnessed spontaneous statements or declarations against interest made by persons who witness or who were involved in the accident. That attempt by the defendants to introduce the contents of the police accident report failed:

In addition, defendants (uncertified) copy of the New York State Department of Motor Vehicles Police Accident Report (MV-104AN (7/01)) is also inadmissible to prove liability. Uncertified police accident reports are inadmissible to indicate a parties liability because the police officer who prepared the report was not an eyewitness to the accident as it constitutes inadmissible hearsay, (see Coleman v Maclas, 61 AD3d 569, 877 NYS2d 297, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]; Figueroa v Luna, 281 AD2d 204,721 NYS2d 635 [1st Dept 2001]; Ann Connors v. Duck's Cesspoool Services, Ltd., 144 AD2d 329, 533 NYS2d 942 [1st Dept 1988]; Murray v Donlan, 77 AD2d 337, 433 NYS2d 184 [1st Dept 1980]).

Moreover, the Appellate Division, First Department also recently decided Soto-Maroquin v Mellet __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept, June 4 2009], (10 days after its decision on April 23, 2009 in Coleman v Maclas, supra) that uncertified police accident reports that contain the statements made by the parties to the police officer preparing the accident report and falls into a hearsay exception under "spontaneous statements" or "declaration against interests" are also inadmissible. (cf. Soto-Maroquin v Mellet, Sup Ct, NY County, October 14, 2008, Wooten J. Index No. 108798/07 [uncertified police report contained admission from defendant], affd __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept 2009] ["consideration of uncertified police report was harmless in view of defendant's passenger's affidavit attesting to what defendants object to in the police report, namely, that defendants' vehicle struck plaintiff's vehicle in the rear"]; compare Voskin v Lemel, 52 AD3d 503, 503, 859 NYS2d 489 [2d Dept 2008] ["plaintiff's case buttressed by the certified copy of the police accident report containing the defendant's admission that he did not see the plaintiff and struck him"]; 2 McCormick on Evidence 2d §§ 271 and 272).

The defendants' motion was denied.

First Department: Manhattan Supreme Court Directed Verdict Precluding Expert Testimony Vacated Because Expert Was Sufficiently Qualified

2009-06-18T10:00:00.023-04:00

In Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC (2009 NY Slip Op 04950) the First Department vacated a New York County Supreme Court directed verdict on the issue of the preclusion of expert testimony and confirmed the standards relevant when assessing the qualification of an expert witness and the circumstances in which that discretion is non reviewable.

The New York County Supreme Court had entered a directed verdict for the plaintiff at trial but precluding expert testimony of the future costs of rectifying a construction defect sought by the plaintiff.

The plaintiff had filed an Expert Disclosure under CPLR 3101(1) which disclosure identified that the expert witness would lead evidence not only with respect to the construction defects. but also with respect to the costs of rectifying those defects. The plaintiff argued on appeal that the New York County Supreme Court had erred in directing that it was precluded from leading testimony as to future costs.

The First Department determined that the right of appellate review of the exercise of that discretion was preserved:

Plaintiff's argument that the court abused its discretion by precluding their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject, the court obviously was aware of the nature of the objection and, more importantly, it recognized that the issue would be subject to appellate review"

CPLR 3101(1)
1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.

CPLR 5501(a)(3)
Scope of review. (a) Generally, from final judgment. An
appeal from a final judgment brings up for review:
3. any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant, and any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected.

The First Department then examined and confirmed the standards for the review of the trial court's discretion in assessing the qualification of an expert witness and the circumstances in which that discretion is non reviewable:

"While the "qualification of an expert witness is within the court's sound discretion, and its determination will not be disturbed in the absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Isaacs v Incentive Sys., 52 AD2d 550 [1976]). Licensed professionals acting as experts have been found qualified to give their opinions regarding future or estimated costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with estimating costs. The computer database utilized by plaintiff's expert to prepare prebid cost estimates was based on the same methodology employed in connection with the completed remediation work—specifications and bids of hundreds of prior projects on which the expert had worked. Furthermore, "any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony," and could have been cured with a limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664, 664 [2005])."

Court of Appeals: Sufficient Expert Evidence When Not "Utterly Irrational" That Hard To Quantify "Larger Stroke" Arose From Malpractice

2009-06-14T10:00:00.009-04:00

In Lang v Newman 2009 NY Slip Op 04696 the trial plaintiff experienced symptoms and was transported for treatment to hospital where she was examined by defendant doctors in succession, the latter of which ordered a CT scan, but not admit her for treatment and gave her headache medication after she declined to undertake a more invasive diagnostic procedure.

Shortly after, after ordering the plaintiff undertake an MRI, the plaintiffs primary physician (not a defendant) diagnosed her as having suffered a stroke and admitted the plaintiff to a different hospital where she was given anti-coagulant medication.

The plaintiff commenced an action against the defendant doctors and their medical groups and was successful against the second doctor (who had assumed her care on the first doctor's ending of his shift) on the grounds that she had suffered permanent injuries from the stroke, by reason that she was not admitted to hospital for further diagnosis and treatment. The plaintiff was not successful on grounds that the doctors had failed to administer an anti-coagulant drug.

The Appellate Division affirmed the trial verdict, over a 2 justice dissent.

The Court of Appeals affirmed:

"Evidence is legally insufficient to support a verdict if "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Plaintiff's expert testified that if Firman had admitted plaintiff to the hospital rather than discharging her, the stroke would have been diagnosed, she would have been given an anticoagulant, and the failure to administer that medicine resulted in "a little larger stroke than she should have had if she was properly treated." Despite the fact that the expert also stated that it was "very hard to quantify" precisely how much additional damage plaintiff suffered as a result of Firman's negligence, we cannot say that the jury's finding of liability on this theory was "utterly irrational" (id.) or that no basis of proof existed to support the verdict. Consequently, the verdict was based on legally sufficient evidence."

Second Department: In Motion Leading To Incarceration For Contempt, No Hearing On Service In The Absence Of Specific Sworn Rebuttal Of Service

2009-06-10T10:00:00.005-04:00

In Scarano v Scarano 2009 NY Slip Op 04410 the defendant father was found by the Supreme Court, Nassau County to be in contempt for his failure to keep to the terms of a child support agreement.

The defendant appealed the decision on the basis that there was insufficient proof of personal service of the order to show cause and the motion leading to the finding of contempt, and that a hearing on the issue of personal service was required.

The Second Department found that the defendant's affidavit evidence, which did not specifically deny service as sworn by the process server, was not enough to require a hearing on service:

A process server's affidavit of service constitutes prima facie evidence of proper service (see Matter of de Sanchez, 57 AD3d 452, 454; NYCTL 1997-1 Trust v Nillas, 288 AD2d 279). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to "specific facts to rebut the statements in the process server's affidavits" (Simonds v Grobman, 277 AD2d 369, 370). Here, the defendant's affidavit was insufficient. Since he never denied the specific facts contained in the process server's affidavit, no hearing was required.

Practice Note: With respect generally to service in matrimonial enforcement proceedings, and in contempt proceedings, counsel are reminded of Domestic Relations Law 245 and Judiciary Law 756.

Court of Appeals Affirms First Department: Expert Witness's Reliance Upon Purportedly Held "Human Factor" Industry Design Standards Not Sound

2009-06-05T00:55:00.003-04:00

In Hotaling v The City of New York 2009 NY Slip Op 04303 the Court of Appeals affirmed the decision of the First Department in Hotaling v City of New York 2008 NY Slip Op 07951 [55 AD3d 396] and held that the expert witness's testimony was insufficient at law to sustain a prima facie case of negligent design, referring to Buchholz v Trump 767 Fifth Ave., LLC 2005 NY Slip Op 04613 [5 NY3d 1].

The appellant had been awarded damages at trial before a jury for an accident that occurred while he was employed by the City. The basis of the appellants claim was negligent design. The appellant walked through a double swinging door during a fire drill and while turning right to continue to a staircase to exit the building was immediately hit by the second of the swinging doors being used by another exiting person.

At trial the appellant led evidence through an expert witness, the doors were negligently designed in that they allowed for an accident of the type in question, where a person was walking immediately to the staircase, that they were not restricted from swinging too quickly, and that the narrow viewing panel in the doors were too restrictive such as to prevent a person using the door from establishing it was safe to use. In contrast to the plaintiff, who did not lead any evidence that the City had violated the Building code at the time the building had been built, the City led evidence through its expert witness that the building design fully complied with the Building Code, and that the plaintiff's expert witness's conclusions that the design of the doors violated industry standard were erroneous.

First Department held:

The absence of a violation of the New York City Building Code may not always establish, as a matter of law, the absence of negligent design. Especially if there is no Building Code provision directly applicable to a particular design feature, other types of industry-wide standards may be applicable to determine whether a party was negligent. In either event, however, in this matter there is insufficient support for plaintiffs' negligent design claim. Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place. Nor are mere nonmandatory guidelines and recommendations sufficient (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 386 [2003]). The expert must offer concrete proof of the existence of the relied-upon standard as of the relevant time, such as "a published industry or professional standard or . . . evidence that such a practice had been generally accepted in the relevant industry" at the relevant time (Jones v City of New York, 32 AD3d 706, 707 [2006]).

In Buchholz v Trump 767 Fifth Ave., LLC (5 NY3d 1 [2005]), the Court affirmed a grant of summary judgment dismissing the complaint of a plaintiff who had accidentally fallen through a 13th-floor window in the course of roughhousing, where the plaintiff's expert had asserted that industry standards required installation of either tempered glass or a protective barrier bar, because "[p]laintiff's expert cited no authority, treatise, standard, building code, article or other corroborating evidence to support his assertion that good and accepted engineering and building safety practices" required these measures (id. at 8-9).

The essence of plaintiffs' claim was the assertion by Lustbader that the design of the doors at issue deviated from "human factors" design standards. Lustbader primarily relied upon the Human Factors Design Handbook, by Woodson and Tillman, for the industry standards he applied. However, he failed to establish that these purported standards were published, generally accepted, or even in existence in 1970. His testimony on that point was limited to his asserted "belief" that the first edition of the handbook "goes back some 30, 40 years," and that "the early versions predate 1970." However, not only did he fail to establish the existence of any such pre-1970 version, but also he did not verify that any such purported pre-1970 version contained the same standards as the later edition upon which he relied. Indeed, defendants established in their posttrial motion that the first edition of the Woodson handbook was published in 1981, rendering Lustbader's reliance on the standards set forth in the handbook inapplicable as a matter of law.

As to plaintiffs' contention that, although the handbook had not yet been published, the underlying principles were widely accepted prior to 1970, they merely cite three cases that discuss the admissibility of testimony regarding human factors standards without addressing whether the standard existed at the relevant time so as to be applicable to the facts at issue (see Wichy v City of New York, 304 AD2d 755 [2003]; Nowlin v City of New York, 182 AD2d 376 [1992], affd 81 NY2d 81 [1993]; Elmlinger v Board of Educ. of Town of Grand Is., 132 AD2d 923, 924 [1987]). While expert testimony as to human factors design standards has been ruled [*3]admissible, nevertheless, plaintiffs' expert failed to establish that the human factors design industry standards he relied upon were published or in general acceptance in the building construction industry in 1970.

Since the testimony of plaintiffs' expert failed to support plaintiffs' claim that the design of the doors in question violated accepted industry standards at the time the school was built, plaintiffs failed as a matter of law to make out a prima facie case of negligent design. The judgment must therefore be reversed and the complaint dismissed.

Supreme Court, Queens County: Business Records Exception Held Not To Apply To Insured's Statements To Insurer

2009-05-29T10:00:00.015-04:00

The business records exception to the rule against hearsay was considered in the recent decision of the Supreme Court, Queens County in Metropolitan Insurance Casualty Company v Shaid (2009 NY Slip Op 51038(U)).

The plaintiff insurer sought summary judgment against the defendant, among others, who was the owner insured of a motor vehicle that had been involved in an accident causing injury to an unrelated party, which party had brought a separate preceding suit against the defendants out of the circumstances of that accident.

The defendant insured was alleged by the plaintiff to have given false statements to the plaintiff insurer that he did not know who was operating the vehicle at the time of the accident, and consequently it was alleged that the defendant had breached the cooperation clause in the contract of insurance.

At issue was whether the insured's statements to the insurer were false. In support of its motion for summary judgment under CPLR 3212, the insurer alleged that the defendant knew who the driver of the vehicle was, and was thereby prejudiced by the lack of cooperation.

The defendant insured alleged that evidence of its statements to the insurer was hearsay, and therefore as they were the basis of the plaintiff's motion for summary judgment, that motion should be denied.

The plaintiff insurer contended that the evidence was not only reliable, but fell within the business records exception to the rule against hearsay and therefore the statement of the defendants could be lead.

The court examined the use of the business records exception as follows:

Plaintiff contends that the statements fall under the business records exception to the hearsay rule. For the purposes of determining whether hearsay is admissible under business records exception, the concern relating to trustworthiness extends to "each participant in the chain producing the business record, from the initial declarant to the final entrant." (Matter of Leon RR, 48 NY2d 117 [1979].)

The Court of Appeals has ruled that "the statement is inadmissible hearsay if any of the participants in the chain is acting [*3]outside the scope of the business duty." Id. at 122. It is undisputed that the insured was outside the insurers enterprise at the time of the statement.

At issue though, is whether the duty of an insured to cooperate with an insurer is comparable to a business duty during an insurance investigation. (Hochhauser v. Electric Insurance Co., 46 AD3d 174 [2d Dept 2007].) However, "despite potential consequences which may befall an insured who fails to provide accurate and truthful information to, or to cooperate with, an insurer, the insured's statement to the insurance investigator . . . was not made under the circumstances which create a high probability that the statement was truthful." (Corsi v. Town of Bedford, 58 AD3d 225, 231 [2d Dept 2008], quoting Hochhauser v. Electric Insurance Co., 46 AD3d at 1823.)

The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of business are inherently highly trustworthy because (1) the records are routine reflections of the day to day operations of a business; (2) the entrant is obliged to be truthful and accurate for purposes of conducting the enterprise.(Hochhauser v. Electric Insurance Co., 46 AD3d 174 [2d Dept 2007].)

Here, the insured was outside of the insurer's enterprise and was not communicating information regarding the accident under the compulsion of any business duty. (see generally, Matter of Leon RR, 48 NY2d 117 [1979].) Accordingly, the statements made by Shaid and Arshad to the insurance investigator do not constitute a business record. Without the benefit of the business record exception, the plaintiffs statements to the investigator are simply impermissible hearsay.

Practice Note: With respect generally to the business records exception in New York State, counsel are reminded of the terms of CPLR 4518.

Supreme Court, Kings County: Husband's Stored Emails Obtained By Wife After Service Of Divorce Do Not Constitute CPLR 4506 Evidence And Are Admissible

2009-05-18T08:10:00.021-04:00

In Gurevich v Gurevich (2009 NY Slip Op 29191) the Supreme Court considered CPLR 4506 in the context of matrimonial proceedings in which the wife sought to lead email communications obtained from her husband's email account after the service of the divorce action.

The parties had been married for 16 years prior to separation. Prior to separation, the husband had provided the wife with the password to his email account, and during the marriage, the parties had accessed each others email accounts. After separation, the wife had changed her email password, but the husband neither changed his, nor told or gave notice to the wife that she was not permitted to access his account.

The husband contended that his wife was aware that he used a single password for all of his computer accounts, and that she was unreasonable in her belief that, despite his not changing his password until some two years after separation, she was allowed to access his account. The husband argued that the content of the emails were inadmissible under CPLR 4506 by reason that the wife had acted unlawfully under Penal Law 250.05. Further, the husband argued that the initiation of the divorce proceedings was an implied revocation of any authority previously given to her to access his account. In dismissing that argument, the Supreme Court held "that there is no statue that would recognize an "implied revocation upon service of a divorce action" and bar the use of the email "stored".

CPLR 4506
Eavesdropping evidence; admissibility; motion to suppress in certain cases.
1. The contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence any trial, hearing or proceeding before any court or grand jury, or before any legislative committee, department, officer, agency, regulatory body, or other authority of the state, or a political subdivision thereof; provided, however, that such communication, conversation, discussion or evidence, shall be admissible in any civil or criminal trial, hearing or proceeding against a person who has, or is alleged to have, committed such crime of eavesdropping.

Penal Law 250.05
Eavesdropping. A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication. Eavesdropping is a class E felony.

The court examined Penal Law 250.05 and CPLR 4506, and rebutted the wife's contention that CPLR 4506 did not apply to electronic communications.

"She relies on dicta in the case of Pure Power Boot Camp v. Warrior Fitness Boot Camp (587 F.Supp.2d 548 [SD NY 2008]) for the proposition that "[t]he plain language of the statute [CPLR 4506] seems to limit its application to the contents of the overheard or recorded communication[s]'" not electronic communication. However, the U.S. District Court further stated that "[u]ltimately, a determination of the meaning of CPLR § 4506 is unnecessary, and better left to the New York state courts" (id.). Furthermore, the court in Power Boot Camp v. Warrior Fitness Boot Camp in a footnote stated " . . . notes that Penal Law section 250.05 explicitly includes "electronic communication . . . ."

The husband argued that CPLR 4506 and Penal Law 250.05 were not limited to communication or transmission, but also applied to "the intentional acquiring, receiving, collecting, . . . of an electronic communication, without the consent of the sender or intended receiver thereof . . . " (Penal Law 250.00)."

The Supreme Court looked at two previous decisions relied on by the wife and the legislative intent behind Penal Law 250.05 (to prohibit the interception of communications, not the access of stored communications) in finding that she was entitled to rely on the content of the email transmission, save that they were not within the attorney client privilege. Key extracts from the decision follow:

"It is this court's understanding from the reading of the statute, legislative history and case law that the purpose of Penal Law section 250.00 is to prohibit individuals from intercepting communication going from one person to another, and in this case an email from one person to another. In the case at bar the email was not "in transit", but stored in the email account. Even assuming the husband's facts, as stated, to be true, the wife may have unlawfully retrieved information from a computer; in violation of Penal Law 153.10 but there was no interception and accordingly fails to fall within scope of CPLR 4506 as presently written."

...

"The wife relies on Moore v. Moore (NYLJ, August 14, 2008, at 26, col 1 [Sup Ct, New York County])where the husband sought to suppress material from the hard drive of a laptop computer, used by the family members, that was found by the wife in the trunk of her husband's car. The court in Moore held that Penal Law section 250.05 did not apply to the facts presented because "[i]n accessing the disputed files, plaintiff did not intercept, overhear or access electronic communications." (id.). The communication was saved to the hard drive by the husband and the wife's "subsequent access to that material downloaded and saved to the hard drive of the computer was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05" (id.)

Similarly, the wife cites, in Boudakian v. Boudakian (NYLJ, December 26, 2008, at 21, col. 3 [Sup Ct, Queens County 2008]) where the husband sought suppression of information obtained by the wife from the parties' laptop computer. The court following the reasoning enunciated in Moore held that "[e]avesdropping does not apply since the communication at issue occurred on prior occasions and the wife's subsequent access to that material on the hard drive was not the result of an intercepted communication and does not constitute a violation of Penal Law section 250.05." (id.)."

Relevantly, the Supreme Court held that in accessing the email transmissions the wife may have violated "Penal Law 153.10", but that that was not sufficient for the operation of CPLR 4506 to render the evidence inadmissible. The Supreme Court likely intended to refer to Penal Law 156.10.

First Department: Prior Tentative Assertion Is Not Contradicted By A Later Tailored Definite Assertion In The Absence Of Documentary Evidence

2009-04-13T09:00:00.015-04:00

In the recent decision in Addo v Melnick (2009 NY Slip Op 02720 -1st Dept App Div - April 9, 2009), the First Department considered the weight of prior deposition testimony against subsequent, more confidently expressed, but contradictory affidavit evidence.

The defendant appealed a denial of motion for change of venue. Under CPLR 503(a), the proper venue was based upon the parties' residence and not where the cause of action arose.

At a prior deposition the plaintiff expressed uncertainty about the exact date on which she had moved from Bronx County to New Jersey, but stated that she thought it to have been in November of 2006, on a Friday, and in the third week of that month.

Q. Do you know the day of the week, the day in November, the 1st, 2nd[,] 3rd?

A. I think middle week.

Q. I'm talking about the day?

A. The day. Oh, I think the third week.

Q. Do you know the specific day?

A. Friday.

[Plaintiff's counsel]: Do you know if it was the 25th, 26th, 20th?

A. I think that was the 18th or so?

In the motion under CPLR 503(a), the plaintiff's subsequent affidavit testimony was that she had moved on the Friday after Thanksgiving. This was relevant because the action had been commenced on November 22, 2006.

The motion court found that because the plaintiff's affidavit contradicted her earlier deposition testimony that she had moved prior to November 22, 2006, it was insufficient as proof of residence.

The First Department (including McGuire, J. in dissent) held that the deposition testimony about the date was an admission. The majority referred to FRE 801(d)(2)(B) which relates to non hearsay statements of a party-opponent:

FRE 802(d)(2)(B)
A statement is not hearsay if--
(2)Admission by party-opponent. The statement is offered against a party and is
(B) a statement of which the party has manifested an adoption or belief in its truth

and held:

Inasmuch as the phrase "I think" is an expression of belief, we conclude that such an expression can be an admission.

The binding effect of such an admission is illustrated by this Court's recent decision in McNeill v LaSalle Partners (52 AD3d 407 [2008]), which reads, in part, as follows:
"The trial court also erred in precluding appellants from questioning plaintiff on cross-examination about his deposition testimony that the liquid on which he slipped might have been encapsulate' (a milky liquid used in the abatement of asbestos). . . At his deposition, plaintiff testified that he thought the liquid on which he slipped could be some kind of encapsulate, but I wasn't sure.' At trial, however, plaintiff testified that he had no idea what kind of liquid had caused his accident. Under these circumstances, appellants were entitled to question plaintiff about the deposition testimony in question, both for purposes of impeachment and to use the prior inconsistent testimony as evidence-in-chief that the liquid was encapsulate" (id. at 410 [emphasis added]).

McGuire J in dissent held that the plaintiff's concession in her deposition testimony, while a judicial admission, was merely an informal one, an incidental admission and not conclusive:

The crucial point is that a prior factual assertion that is tentative is not contradicted by a later statement that is definite; rather, the uncertain statement is clarified. We should not deprive plaintiff of her statutory right to designate the Bronx as the place of trial by imputing to her a contradiction where only a clarification can be found.

...informal judicial admissions are facts incidentally admitted during the course of a judicial proceeding (id. § 8-219, at 529). An informal judicial admission is not conclusive of the fact "admitted," but rather is merely some evidence of that fact (People v Brown, 98 NY2d at 232; People v Rivera, 45 NY2d 989 [1978]; Prince, Richardson On Evidence § 8-219, at 530). A classic example of an informal judicial admission is a statement made by a party at a deposition (Prince, Richardson On Evidence, § 8-219, at 530; see also Matter of Union Idemn. Ins. Co. of N.Y. v American Centennial Ins. Co., 89 NY2d 94, 103 [1996] [statement made in affidavit]; People v Rivera, supra [statement made in affidavit]; Baje Realty Corp. v Cutler, 32 AD3d 307 [2006] [statement made in affidavit]).

...Here, plaintiff did not concede that she moved to New Jersey on a Friday during the third week of November 2006, on what she thought was November 18th. Rather, she testified that she "thought" and "believe[d]" that she moved to New Jersey at that time, an incidental admission. Given the absence of a concession by plaintiff — the sine qua non of a formal judicial admission — the majority errs in according plaintiff's informal judicial admission conclusive effect.

In relation to the plaintiff's subsequent affidavit testimony, the majority specifically held:

Unquestionably an affidavit tailored to avoid the consequences of a deposition lacks evidentiary value (see Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]). For example, in Concepcion v Walsh (38 AD3d 317, 318 [2007]) we stated that: "[w]hile plaintiff's mother's affidavit asserts that there was peeling or chipping paint, her deposition testimony was that she did not know; accordingly, her affidavit lacks evidentiary value." Since plaintiff failed to submit documentary evidence (other than her own self-serving statement) supporting her claim that she resided in the Bronx when she commenced this action, and since this case does not involve conflicting affidavits, there is no need to hold a hearing as suggested by plaintiff...

In this instance, the distinction the dissent draws between formal and informal admissions is of no moment. This is because plaintiff's deposition constituted the only evidence of plaintiff's place of residence albeit "some evidence" of same.

Second Department: Mother Telling Son Of Fall 3 Hours Later Clearly Not A Present Sense Impression

2009-04-10T10:00:00.006-04:00

In Colombo v Sanfilippo 2009 NY Slip Op 02741 [61 AD3d 626] the Second Department refused to apply the present sense impression rule in a matter where the plaintiff's mother had fallen and had merely told her son three hours after the accident that she had fallen.

The plaintiff's affidavit submitted in opposition to the motion, in which he averred that, approximately three hours after the accident, his mother told him that she had fallen, did not identify the cause of the fall and, in any event, did not [*2]qualify as a present sense impression exception to the hearsay rule (see People v Vasquez, 88 NY2d 561, 575 [1996]; Matter of Talisveyber v Motor Veh. Acc. Indem. Corp., 16 AD3d 425 [2005]).

Practice Note: In New York State, the present sense impression must be expressed by the declarant during or near contemporaneously with the act being witnessed. Counsel should note the discussion of the additional requirement of reliability in the authorities cited.

Supreme Court, Orange County: Prior Conviction On Plea And Former Testimony Before Administrative Tribunal Allowed For Impeachment

2009-04-01T16:34:00.026-04:00

Often in civil proceedings a party will seek to lead or refer to evidence or findings from prior criminal or administrative proceedings in order to impeach the credibility or prove certain acts of a witness or another party. That evidence may often be sought from a felon witness. At common law, any testimony of a convicted felon was rendered incompetent. In limited circumstances under CPLR 4513, that evidence will be held admissible.

CPLR 4513
A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record. The party cross-examining is not concluded by such person's answer.

In Torres v Ashmawy (2009 NY Slip Op 29134 [24 Misc 3d 506]) the infant plaintiff brought an action through his guardian against the defendant New York State licensed physician for negligence relating to the treatment and care of the infant leading up to and during the plaintiff's birth.

The defendant was the subject of administrative proceedings during which he gave evidence relating to his conduct and practice as a physician when not treating the plaintiff, and then was also subject to separate criminal proceedings relating to the attempted unauthorized practice of medicine, to which he pleaded guilty. The defendant sought to preclude the evidence, findings and reference to the administrative proceedings and the prior conviction from the malpractice proceeding.

The Court denied the defendant's motion, with the exception of that evidence relating to broad findings of negligence, failing to keep patient records and other general matters:

"A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion [citation omitted]" ... Certain exceptions to this rule, none of which are advanced here, have been recognized where, for example, the evidence of other similar acts is offered to help establish motive, intent, absence of mistake or accident, a common scheme or plan, or identity ...

As such, Mayer's application to preclude the introduction at trial of evidence or references to the administrative proceedings, findings or determination of the New York State Board For Professional Medical Conduct is granted to the extent that such proceedings, findings and determinations relate to the sustained specifications of gross negligence, gross incompetence, negligence, incompetence, and the failure to keep adequate patient records. However, keeping in mind "the elementary premise that impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful" ..., the Court concludes that, upon cross-examination of Mayer, reference may be made to the administrative proceedings, findings and determination of the Board to the extent said administrative proceedings, findings and determination relate to the sustained findings of fraudulent practice (Education Law §6530 [2]) as were sustained in connection with the Eleventh and Twelfth Specifications of the Board's determination.

More particularly, as to Specification Eleven, the Board found that, with the purpose of attempting to reduce his own responsibility, Mayer falsely represented to other medical personnel that a patient had been referred to him by another doctor so as to have hospital medical staff believe that he had come upon the patient when she was already in distress, rather than having to take the responsibility for the truth of his actions. As to Specification Twelve, the Board found that Mayer represented to hospital medical staff that a sonogram had been performed on a patient, when he knew that such was not true in an attempt to reduce his culpability. " [P]racticing the profession fraudulently' involves the intentional misrepresentation or concealment of a known fact without the requirement that the fraud caused an injury to a patient or a benefit to the doctor ...

Whether or not the sustained findings of fraudulent practice constitute prior immoral, vicious or criminal conduct bearing on credibility, they may properly be used for impeachment purposes since, at the very least, they demonstrate an untruthful bent or willingness or disposition on Mayer's part to voluntarily place his own self-interest and advancement ahead of principle or the interests of society ... "[T]he commission of crimes involving individual dishonesty, such as theft, fraud and forgery demonstrate [one's] . . . willingness to place [his] own interests ahead of the interests of society, thereby impacting directly upon the issue of . . . credibility" ... The Board's sustained finding against Mayer of fraudulent practice is no different.

The court found that the passage of time since the administrative proceeding (9 years) and commission of the facts (12-14 years) was

sufficiently outweighed by the seriousness and relevancy of the upheld Specifications and their proximity in time to the acts herein alleged.

The defendant also sought to exclude reference to the indictment and his subsequently plea from the malpractice proceeding.

The Court then dealt with the prior conviction under CPLR 4513:

The authority granted to a civil litigant under CPLR §4513 to use an adverse witness' criminal convictions to impeach his or her credibility is "broad" (Vernon v. New York City Health and Hospitals Corp., 167 AD2d 252 [1st Dept.,1990] citing Able Cycle Engines v. Allstate Insurance Co., 84 AD2d 140, 142-43 app. den., 57 NY2d 607 [1982]). "Under CPLR 4513, [both the] conviction of a crime and the underlying facts of the criminal acts may be used to impeach the credibility of a witness at a civil trial" (Dance v. Town of Southampton, 95 AD2d 442, 453 [2d Dept., 1983] citing Moore v. Leventhal, 303 NY 534 ; Able Cycle Engines v. Allstate Ins. Co., supra). "While the nature and extent of such cross-examination is discretionary with the trial court . ., the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue . . . (Badr v. Hogan, 75 NY2d 629 [1990] citing Langley v. Wadsworth, 99 NY 61, 63-64 [1885]; People v. Montlake, 184 A.D. 578, 583 [2d Dept., 1918]; Richardson, Evidence § 499 [Prince 10th ed.]; Fisch, New York Evidence § 455 [2d ed.] ; see also, Acunto v. Conklin, 260 AD2d 787, 789-790 [3d Dept., 1999][within the sound discretion of Supreme Court to control the manner of presentation of proof at trial especially when dealing with matters affecting a witness's credibility and accuracy]). Certainly, one's status as a physician is of no moment (see, Spanier v. New York City Transit Authority, 222 AD2d 219, 220 [1st Dept., 1995][proper for trial court to allow defense to ask plaintiff's treating physician about prior allegations of improper billing, and other misconduct, since those allegations had a bearing on the doctor's credibility]).

As the defendant's conviction was a Class E Felony under Education Law 6512 (set out below)

Mayer's conviction for Attempted Unauthorized Practice of Medicine, an unclassified misdemeanor, and the facts thereunder are highly relevant on the issue of Mayer's credibility and sufficiently demonstrate his "willingness to deliberately further his self-interest at the expense of society".... In addition, the conviction is not so remote in time as to be precluded.

Education Law 6512
Unauthorized practice a crime.
1. Anyone not authorized to practice under this title who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of the acts, or who practices any profession as an exempt person during the time when his professional license is suspended, revoked or annulled, or who aids or abets an unlicensed person to practice a profession, or who fraudulently sells, files, furnishes, obtains, or who attempts fraudulently to sell, file, furnish or obtain any diploma, license, record or permit purporting to authorize the practice of a profession, shall be guilty of a class E felony.

The plaintiff was thereby permitted to cross examine the defendant at trial on the existence of the conviction and its underlying facts.

Second Department: Professional Reliability Exception Not Available Where Expert Witness Relies Upon Unobserved Or Non-Testified Third Party Report

2009-03-05T10:24:00.011-05:00

In A-Tech Concrete Co., Inc. v Tilcon N.Y., Inc. (2009 NY Slip Op 01596) the Second Department examined the use of the professional reliability exception to the rule against hearsay in an appeal from a decision in a breach of contract proceeding in which the defendant was granted damages on counterclaim, and in which the expert witness attempted to rely on unobserved, third party expert findings.

At trial, the plaintiff sought to lead evidence in the form of an expert report, opinion evidence, and the report of a laboratory separate to that of the expert witness but on which the expert based his opinion evidence.

The expert witness sent materials to the laboratory for testing but did not oversee, attend, conduct or even observe the testing process. There was no evidence that the expert witness had personal knowledge of the testing process. Further, the expert witness did not testify about the testing procedure.

The defendant objected at trial to the admission of the laboratory report and the expert witness's opinion testimony and expert report based upon the prior report. The objection was sustained at trial and affirmed by the Second Department:

...the expert's testimony that reports such as the laboratory report are generally relied upon by professionals in his field did not sufficiently establish the reliability of the laboratory report for the purposes of the professional reliability exception (see Clevenger v Mitnick, 38 AD3d 586, 586-587; Wagman v Bradshaw, 292 AD2d at 89-90; Erosa v Rinaldi, 270 AD2d 384, 384-385). Thus, the Supreme Court properly sustained the defendant's objection to the [*2]admission of the laboratory report as well as the expert report and opinion testimony based upon the laboratory report.

Supreme Court, Kings County: Res Ipsa Loquitur Doctrine: "Rarely, Not Never" Appropriate to Sustain a Summary Judgment Motion

2009-02-25T15:54:00.008-05:00

In Gleason v The City of New York the Supreme Court provided an example of the application of the evidentiary doctrine of res ipsa loquitur and applied the Court of Appeal's reasoning that the doctrine, even when established, and the inference of negligence was accepted, was rarely sufficient to sustain summary judgment.

The plaintiff's complaint arose out of an incident that occurred when, as a serving NYPD officer, he was injured while attempting to open a faulty window that dislodged and fell on him in the men's locker room located at the 78th Precinct.

The plaintiff alleged that the defendants' liabilities were founded in common-law negligence or alternatively, under the doctrine of res ipsa loquitur, as it was a type of accident that would not have ordinarily occurred in the absence of negligence.

The City of New York filed a motion to dismiss under CPLR 3211 and under CPLR 3212 for summary judgment on the grounds that the plaintiff was unable to prove a prima facie case of negligence against it. The plaintiff filed a cross motion against the City on the basis that the res doctrine applied and the complaint was not one that ought to have been dismissed. Experienced counsel will know that summary judgment is appropriate only when no issues of fact exist. The difficulty is recognizing when this can occur in the context of the evidentiary doctrine of res ipsa loquitur.

Supreme Court, Kings County held:

To prevail on the theory of res ipsa loquitur, a plaintiff must show that (1) the event would not usually occur absent negligence, (2) the instrumentality of the injury was within the defendant's exclusive control, and (3) the plaintiff did not contribute to the cause of the accident (see Dermatossian, id.; Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). In order to rely upon the doctrine, a plaintiff need not conclusively eliminate all other possible explanations for the incident at issue, since it is enough to present evidence from which a reasonable jury could conclude that it is more likely than not that defendant's negligence caused the injury (see Pavon v Rudin, 254 AD2d 143, 145 [1998], citing Kambat, 89 NY2d at 494).

The court, in finding that the plaintiff had failed to establish that the City of New York had exclusive control, made further observations about the doctrine:

In order to overcome the rule that res ipsa loquitur will not apply where an instrumentality is generally under the control of persons other than the defendant, a plaintiff must demonstrate that the defendant had control of sufficient exclusivity to fairly rule out the chance that the alleged defect was caused by some agency other than the defendant's negligence (see Dermatossian v New York City Tr. Auth., 67 NY2d at 228). Indeed, in the absence of any admissible proof, where the plaintiff's injury occurred in a facility which was open to, and used extensively by, over 200 police officers and numerous other employees, plaintiff fails to adequately refute the possibility that the subject window had been damaged by one of the many individuals that had access to the window each day. The traffic inside the locker room in the instant case is analogous to those situations where the allegedly defective instrumentality is open to the public, thereby obviating the element of "exclusive" control (see Ebanks v New York City Transit Authority, 70 NY2d 621, 623 [1987]; see also Dermatossian, 67 NY2d at 228). Plaintiff himself admitted to opening the subject window up to 50 times prior to the date of the accident, and he also testified that it was common for other police officers to open the subject window for ventilation because the temperature inside the locker room was often very warm. Plaintiff's testimony makes clear the fact that, subsequent to the installation of the subject window and prior to plaintiff's accident, numerous individuals had access to and operated the subject window. Under these circumstances, plaintiff cannot establish that City had the exclusive control necessary for the application of res ipsa loquitur. Similarly, plaintiff also cannot establish that the subject window was in the exclusive control of City at the time of the installation, since employees of both ECC and Arrow had access to the window at that time. Accordingly, plaintiff is not entitled to rely on res ipsa loquitur as a theory of liability against City

Even if the plaintiff had have established this element, he would have faced another problem:

...even if plaintiff had established that the theory of res ipsa loquitur was applicable, his reliance upon the doctrine in support of his cross motion for summary judgment is misplaced, since it has been held that:

"the doctrine is a rule of evidence which merely provides a permissible inference of negligence rather than a presumption... Therefore, application of the doctrine as a basis for awarding summary judgment is inappropriate..."

In Morejon v Rais Constr. Co., (7 NY3d 203 [2006]), the Court of Appeals declined to hold that summary judgment could never be appropriate in a res ipsa loquitur case, instead finding that it is justified "only in the rarest of res ipsa loquitur cases . . . when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable." In considering plaintiff's initial burden to make a prima facie showing of his entitlement to judgment as a matter of law, this court concludes that the instant case is not one of those "rare" cases where the plaintiff, relying on res ipsa loquitur, has shown not only the absence of any material issue of fact but also that the inference of negligence is "inescapable."

The Court consequently denied that part of the plaintiff's cross motion relating to a finding of liability based solely upon the res ipsa loquitur doctrine of evidence.

Supreme Court, Manhattan: Expert Testimony Reliant Upon Non Mandatory Guidelines & Fresh Particulars Not Sufficient To Defeat Summary Judgment Motion

2009-01-01T20:00:00.005-05:00

In Alpert v Gymboree Play Programs, Inc. (2008 NY Slip Op 32988(U)) the Supreme Court in Manhattan examined the proper standard of expert testimony required to support a prima facie showing in the context of a CPLR 3212 motion.

The plaintiff was an infant injured when using playground equipment in a private supervised children playground in Manhattan. The plaintiff's complaint alleged that there was a lack of proper supervision and that the playground equipment lacked proper padding. The defendant moved for summary judgment under CPLR 3212.

The plaintiff led expert testimony from an expert witness who cited the American Society for Testing Materials Standard relating to consumer standards for home playground equipment and further to the US Consumer Product Safety Commission. The expert witness gave testimony through his report, that:

"...the proximate cause of the accident suffered by [plaintiff] was the absence of required handrails on the subject equipment and the failure of Gymboree, Inc., to require approved slip-resistant footwear. Further, it is my additional considered opinion, rendered to a reasonable degree of certainty in my areas of expertise enumerated below, that had either of the two items enumerated as the aggregate proximate cause of the accident been corrected and had there been either handrails or approved sneakers in use, the accident would not have occurred and the injuries not suffered..."

The court restated the principle that once the moving party had established a prima facie showing of entitlement to summary judgment, the burden shifted to the opposing party "to produce evidentiary proof sufficient to establish the existence of material issues of fact"

In examining the expert witness's report, the court found:

First, [the expert witness's] report alleges that the proximate cause of the accident was the lack of handrails on the A-frame apparent failure of Gymboree to require children to wear slip-resistant footwear. Neither negligence was alleged by plaintiff in the bill of particulars. “A plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory for negligence for the first time in opposition to the motion.... Second, [the expert witness] bases his conclusions on rules promulgated by the American Society for Testing and Materials and the United States Consumer Product Safety Commission. Absent evidence that a particular non-mandatory guideline or recommendation promulgated by government or professional entities have been adopted into actual practice, it will not be held to place a higher standard of‘ care on a defendant...Guidelines established by the American Society for Testing and Materials and the United States Consumer Product Safety Commission are not mandatory and are not considered in determining whether a playground apparatus was negligently designed or installed.

Welcome to McGoldrick's New York State Civil Evidence Resource

2009-01-01T15:15:00.001-05:00