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
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])."
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])."
First Department: Excited Utterance Exception Not Applicable When Event Reported 2 1/2 Hours After Incident
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."
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."
First Department: Defendant's Spoliation Of Video Recording Of Staircase Permits Adverse Inference Only
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]).
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]).
First Department: Manhattan Supreme Court Directed Verdict Precluding Expert Testimony Vacated Because Expert Was Sufficiently Qualified
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])."
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])."
First Department: Prior Tentative Assertion Is Not Contradicted By A Later Tailored Definite Assertion In The Absence Of Documentary Evidence
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?
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.
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.
