A procedural gem – affidavit as probative evidence

Hernandez v Ortiz, 2018 NY Slip Op 07075 (1st Dept. 2018)

In much of the hyper-technical world of no-fault, the question becomes the quality of the evidence to prove a particular fact or proposition of law.  The Court held that an affidavit relying on other not-produced evidence is sufficient to meet a prima facie burden.

“In this trip and fall case involving an uneven sidewalk, defendant Ortiz’s testimony that she lived in a one-family home adjacent to the sidewalk was sufficient competent evidence to make a prima facie showing that she qualified for the exemption provided at Administrative Code of City of NY § 7-210(b) (see Coogan v City of New York, 73 AD3d 613 [1st Dept 2010]; Miller v City of New York, 253 AD2d 394, 395 [1st Dept 1998] [“that an affidavit is submitted by a party or other interested person does not detract from its sufficiency as competent evidence”]).”

Hearsay – business records

People v Jones, 2018 NY Slip Op 00710 (4th Dept. 2018)

“First, the court “erred in admitting in evidence a printout of electronic data that was displayed on a computer screen [after] defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule . . . [because they] presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business” (People v Manges, 67 AD3d 1328, 1329 [4th Dept 2009]; see generally CPLR 4518 [a]; CPL 60.10). Moreover, although the printout was initially admitted only for the limited purpose of establishing “that the statement [reflected therein] was made,” the court thereafter instructed the jury that the printout was permitted to show that the person with the Social Security number tendered by defendant was already a customer at the bank, thereby allowing the jury to consider the printout for the truth of the matter asserted therein. As such, the People were still obligated to establish that the ” entrant was under a business duty to obtain and record the statement [reflected in the printout]’ ” (People v Patterson, 28 NY3d 544, 550 [2016], quoting Hayes v State of New York, 50 AD2d 693, 693-694 [3d Dept 1975], affd 40 NY2d 1044 [1976]; see Matter of Leon RR, 48 NY2d 117, 122 [1979]; People v McKinley, 72 AD2d 470, 476-477 [4th Dept 1980]). The People failed to fulfill that foundational requirement here (see Manges, 67 AD3d at 1329; compare Patterson, 28 NY3d at 547-548; People v Ferone, 136 AD2d 282, 289-290 [2d Dept 1988], lv denied 72 NY2d 859 [1988]).

Second, the court improperly admitted an investigator’s testimony about the results of a search he ran in a credit bureau’s commercial database for email addresses and a telephone [*2]number contained in a cover letter that enclosed the counterfeit check defendant tried to cash. The People failed to establish the requisite foundation for this testimony inasmuch as the investigator did not testify that he “is familiar with the practices of [the] company that produced the records at issue” and that he “generally relies upon such records” (People v Brown, 13 NY3d 332, 341 [2009]; see People v Cratsley, 86 NY2d 81, 89 [1995]).”

The world of business records, duties to impart and familiarity with the original entrants business practices.

When a doctor crosses the line

Harris v Campbell, 2017 NY Slip Op 08112 (4th Dept. 2017)

(1) CPLR 3101(d)

“Contrary to plaintiffs’ contention, the court properly limited the testimony of one of plaintiff’s treating physicians. “CPLR 3101 (d) (1) applies only to experts retained to give opinion testimony at trial, and not to treating physicians, other medical providers, or other fact witnesses” (Rook v 60 Key Ctr., 239 AD2d 926, 927 [4th Dept 1997]). ” Where . . . a plaintiff’s intended expert medical witness is a treating physician whose records and reports have been fully disclosed . . . , a failure to serve a CPLR 3101 (d) notice regarding that doctor does not warrant preclusion of that expert’s testimony on causation, since the defendant has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice’ ” (Hamer v City of New York, 106 AD3d 504, 509 [1st Dept 2013]). Here, one of plaintiff’s treating physicians did not provide any expert disclosure, and during trial he indicated that, in addition to being a medical doctor, he received a Ph.D. in biomechanical engineering and he often relies on his engineering background in his medical practice. Subsequently, that treating physician was asked some questions pertaining to biomechanics, and specifically was asked about the amount of force needed to cause a lumbar injury. We conclude that defendant’s objections to that line of questioning were properly sustained inasmuch as defendant did not receive sufficient notice that the treating physician relied on his engineering background to support his opinions and conclusions about plaintiff’s injuries (see generally id.). Indeed, plaintiffs made no attempt in response to defendant’s objections to point to any medical records or other documentation that would establish that defendant had such notice.”

(2) “We reject plaintiffs’ contention with respect to the photographs of plaintiff’s vehicle inasmuch as it is well established that “[p]hotographs showing no damage to a plaintiff’s vehicle are admissible to impeach a plaintiff’s credibility on the issue whether the accident caused the alleged injuries” (Tout v Zsiros, 49 AD3d 1296, 1297 [4th Dept 2008], lv denied 10 NY3d 713 [2008]). Furthermore, “even when liability is not at issue, proof as to the happening of an accident is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and thus relate to the question of damages’ ” (Anderson v Dainack, 39 AD3d 1065, 1066 [3d Dept 2007])”

Interesting trial preparation rules

Gonzalez v City of New York, 2017 NY Slip Op 05180 (1st Dept. 2017)

(1) “To begin, the trial court erred in precluding pictures of the accident site (see Saporito v City of New York, 14 NY2d 474, 476-477 [1964]). Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident (see Saporito, 14 NY2d at 476-477). Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.”

I am unsure why the trial judge thought there was an insufficient foundation in this regard.

(2) “[t]he court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon (General Elec. Co. v Rabin, 184 AD2d 391, 392 [1st Dept 1992]). Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so (see Hunter v Tryzbinski, 278 AD2d 844 [4th Dept 2000]). Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial.

This is an interesting blurb.  If a party demands all fact witnesses and does not provide same, then shouldn’t preclusion at trial be the correct remedy?

Limits of cross-examination

People v Jackson (Miriam), 2017 NY Slip Op 50133(U)(App. Term 2d Dept. 2017)

“A trial court “has broad discretion to limit cross-examination when questions are repetitive, irrelevant or only marginally relevant, concern collateral issues, or threaten to mislead the jury” (People v Rivera, 98 AD3d 529, 529 [2012]; see Delaware v Van Arsdall, 475 US 673, 679 [1986]; People v Corby, 6 NY3d 231, 234-235 [2005]; People v Arroyo, 131 AD3d 1257, 1258 [2015]; People v Pena, 113 AD3d 701, 702 [2014]; People v Stevens, 45 AD3d 610, 611 [2007]). However, a court’s discretion in making such rulings “is circumscribed by the rules of evidence and the defendant’s constitutional right to present a defense”

This case gives you a perspective on the appropriate scope of

Business record discussion in foreclosures

CitiMortgage, Inc. v McKinney, 2016 NY Slip Op 08037 (2d Dept. 2016)

“Stringer further asserted that she was personally familiar with the plaintiff’s record-keeping practices and procedures, the records were made in the regular course of business, it was the regular course of the plaintiff’s business to make them, and the records were made at or near the time of the occurrence of the matters set forth in the records. This was sufficient to establish, prima facie, that the plaintiff was the holder of the note at the time the action was commenced (see CPLR 4518[a];”

Business records play a much less prominent role nowadays in our realm of practice.

3101(d) from the Court of Appeals

Rivera v Montefiore Med. Ctr., 2016 NY Slip Op 06854 (2016)

Perhaps one of the most misunderstood and contrarily construed provisions of the CPLR is expert witness disclosure.  The problem emanates from a reality that New York disallows expert witness depositions, unlike most states and the FRCP.  The corrolary to the problem is that timing and substance issues of the disclosure become of paramount concern.

As a practitioner, there is nothing more obnoxious than an adversary who had at least 7-30 days to review the disclosure to state after a case is sent out for jury selection or a bench trial to object to the sufficiency of the disclosure.  The time to object is prior to being sent out, and the proper mechanism is really through motion or order to show cause.  This case solidifies proper procedure versus shot-gun procedure.

Of course, a party that gives a misleading disclosure will still pay the Piper his due.

(1) “CPLR 3101 (d) (1) (i) requires each party to “identify each person whom the party expects to call as an expert witness at trial and [to] disclose in reasonable detail the subject matter on which each expert is expected to testify, the qualifications for each expert witness and a summary of the grounds for each expert’s opinion.” It was within the trial court’s discretion to deny plaintiff’s motion to preclude (see People v Carroll, 95 NY2d 375, 385 [2000]). Trial courts possess broad discretion in their supervision of expert disclosure under CPLR 3101 (d) (1) (see Bernardis v Town of Islip, 95 AD3d 1050, 1050 [2d Dept 2012]). “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with 3101 (d) (1) (i) is left to the sound discretion of the court” (McGlauflin v Wadhwa, 265 AD2d 534, 534 [2d Dept 1999]; see also Deandino v New York City Tr. Auth., 105 AD3d 801, 803 [2d Dept 2013]; but see Saldivar v I.J. White Corp., 46 AD3d 660, 661 [2d Dept 2007]).”

(2) Plaintiff made her motion mid-trial immediately prior to the expert’s testimony. Plaintiff argues that at the time of the expert exchange, she had no reason to object to the disclosure statement because the statement gave no indication that defendant would challenge plaintiff’s theory of decedent’s cause of death. Assuming defendant’s disclosure was deficient, such deficiency was readily apparent; the disclosure identified “causation” as a subject matter but did not provide any indication of a theory or basis for the expert’s opinion. This is not analogous to a situation in which a party’s disclosure was misleading or the trial testimony was inconsistent with the disclosure. Rather, the issue here was insufficiency.

Uncertified police report valid to the extent there is an admission

Lesaldo v Dabas, 2016 NY Slip Op 04181 (2d Dept. 2016)

“The plaintiff’s affidavit and the police accident report, which contained the defendant’s admission to the effect that she did not see the plaintiff walking in the crosswalk as she [*2]attempted to make the left turn, were sufficient to establish, prima facie, the plaintiff’s entitlement to judgment as a matter of law (see Zhu v Natale, 131 AD3d at 608; Brown v Mackiewicz, 120 AD3d at 1173; Ramos v Bartis, 112 AD3d 804; Brown v Pinkett, 110 AD3d 1024). Contrary to the defendant’s contention, that portion of the uncertified police accident report which contained her admission was admissible (see Gezelter v Pecora, 129 AD3d 1021, 1022-1023).

In opposition, the defendant failed to raise a triable issue of fact. The defendant’s affidavit wherein she averred that the plaintiff was not crossing the street within the crosswalk and that the impact occurred at least two car lengths past the intersection contradicted her prior admission. The defendant made no effort in opposition to explain the admission in the police report or deny its accuracy”

Judicial notice of the Supreme Court file

IMA Acupuncture, P.C. v Hertz Co., 2016 NY Slip Op 50258(U)(App. Term 2d Dept. 2016)

This res judicata decision is interesting because it tests the outer of bounds of Judicial Notice.

“In any event, this court may take judicial notice of undisputed court records and files, including the judgment in the Supreme Court declaratory judgment action (see Renelique v State-Wide Ins. Co., ___ Misc 3d ___, 2016 NY Slip Op 50096[U] App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2016]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11 [2002]). In light of the Supreme Court’s declaratory judgment, defendant’s cross motion to dismiss should have been granted under the doctrine of res judicata”

The Court uses the word “may”.  May requires a request in your papers?

A CPLR 3101 lesson

Cruz v City of New York, 2015 NY Slip Op 07910 (1st Dept, 2015)

This one is interesting.  The usual notion is that the failure to identify a witness pre-trial will preclude their ability to testify.  From the Court:

“The trial court properly permitted the testimony of a witness whose identity was not disclosed prior to trial. The witness was called to lay the foundation for the admission of a nonparty witness’s statement, and he was not the type of witness whose identity was required to be disclosed during discovery”

“The trial court also properly admitted the statement as a prior inconsistent statement. While the nonparty witness, who initially testified that the signature on the statement looked like hers, ultimately denied signing the statement, defendant was permitted to “introduce proof” to the contrary (see CPLR 4514; Larkin v Nassau Elec. R.R. Co., 205 NY 267, 270 [1912]). Further, the statement was properly admitted, even though it was not provided in discovery, as there is no indication in the record that production of the statement was sought and refused (compare Bivona v Trump Mar. Casino Hotel Resort, 11 AD3d 574, 575 [2d Dept 2004] [noting that the defendants’ failure to provide requested information in their possession would preclude them from later offering proof regarding that information at trial]). Nor is there any indication that plaintiff requested a jury charge that the statement was to be considered only for impeachment purposes. Thus, plaintiff failed to preserve her argument that the trial court erred in not giving that charge to the jury (see Peguero v 601 Realty Corp., 58 AD3d 556, 560 [1st Dept 2009]).”

If the statement or evidence is not in your possession, then you cannot be penalized failing to produce the statement pretrial.  This case really drives home that lesson