Employee of Defendant is allowed to remain in court room February 23, 2017

Perry v Kone, Inc., 2017 NY Slip Op 01395

“However, a new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639; American Print. Converters v JES Label & Tape, 103 AD2d 787; Carlisle v County of Nassau, 64 AD2d 15, 18-19). Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense (see People v Santana, 80 NY2d 92, 99; Carlisle v County of Nassau, 64 AD2d at 20). Accordingly, a new trial should have been granted in the interest of justice (see CPLR [*3]4404[a]).”

Must the claim rep be relegated to the benches in Civil Kings?  I have seen this line of cases previously and it makes sense.

The expert February 23, 2017

Kohler v Barker, 2017 NY Slip Op 01344 (2d Dept. 2017)

“The admissibility and scope of expert testimony is a determination within the discretion of the trial court (see Price v New York City Hous. Auth., 92 NY2d 553, 558; Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 847; Galasso v 400 Exec. Blvd., LLC, 101 AD3d 677, 678). Generally, expert opinion is proper when it would help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror (see De Long v County of Erie, 60 NY2d 296, 307; Matter of Islam v Lee, 115 AD3d 952, 953). Here, the Supreme Court did not improvidently exercise its discretion in admitting the testimony of the defendants’ expert. Contrary to the plaintiff’s contention, the testimony of the defendants’ expert was based on facts in the record and his own analysis, not speculation”

This is another expert witness case.  Worth seeing how far you can push the envelope with the hired witness.

Business records and copies February 23, 2017

76-82 St. Marks, LLC v Gluck, 2017 NY Slip Op 01329 (2017)

(1) “Moreover, the Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith”.  (Compare this to 4539[b] – note the differences in foundations)

(2) “The plaintiff’s principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a)”

(3) “Furthermore, Gluck is correct that the plaintiff failed to make a prima facie case regarding its damages, since the summary chart of charges and payments made under the lease was prepared solely in anticipation of litigation and should not have been received in evidence, and the plaintiff failed to provide any underlying documents to establish the proper charges and payments made”

Just amazing how another Plaintiff came to court unprepared to put documents into evidence.


3404 again February 23, 2017

Turner v City of New York, 2017 NY Slip Op 01323 (1st Dept. 2017)
“The motion court erred in dismissing the negligence action pursuant to CPLR 3404. When the action was removed from the trial calendar, the court indicated that it should be continued as a pre-note of issue case. CPLR 3404 does not apply to cases in which no note of issue has been filed or the note of issue has been vacated”

The question on these cases always becomes why was the case removed from the calendar.  Was it removed due to discovery issues? (3404 does not apply).  Was it removed because the parties were not prepared for trial? (3404 applies).  Or was the case expressly deemed to be “pre-note” (3404 does not apply)

Triable issues of fact on a medical malpractice case? February 23, 2017

Severino v Weller, 2017 NY Slip Op 01325 (1st Dept. 2017)

This is from the dissent which would have granted summary judgment to the doctor and the hospital.  The statement of law is interesting and dare I say useful when looking at healthcare professionals’ affirmation:

“Generally, “the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor [*5]of the defendants” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002] [internal quotation marks omitted]). However, a plaintiff’s expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” (Dallas—Stephenson v Waisman, 39 AD3d 303, 307 [1st Dept 2007]). If “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation … the opinion should be given no probative force and is insufficient to withstand summary judgment” (Diaz, 99 NY2d at 544; Giampa v Marvin L. Shelton, M.D., P.C., 67 AD3d 439 [1st Dept 2009]). Further, the plaintiff’s expert must address the specific assertions of the defendant’s expert with respect to negligence and causation (see Foster-Sturrup, 95 AD3d at 728-729). Here, the opinions of plaintiffs’ experts, submitted in opposition to defendants’ prima facie showing that the injury sustained by Mr. Severino was the result of an unpredictable and unpreventable respiratory arrest, were based on supposition and hindsight, and were unsupported by the proof, and were therefore insufficient to raise a material issue of fact (see Manuel H. v Landsberger, 138 AD3d 490 [1st Dept 2016], lv denied 28 NY3d 909 [2016]; Foster-Sturrup, 95 AD3d at 728; Fernandez v Moskowitz, 85 AD3d 566, 568 [1st Dept 2011]; Brown v Bauman, 42 AD3d 390, 392 [1st Dept 2007]).”