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

Sanctions and a very annoyed court

I guess when you write many briefs, you forgot to change your template to accord your legal arguments to the actual facts.

Ultimate Health Prods., Inc. v MVAIC, 2015 NY Slip Op 51446(U)(App. Term 2d Dept. 2015)

“ORDERED that, on the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against plaintiff’s counsel pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate”

“To the extent Defendant proffered a purported police report, within Exhibit G’ to its motion, same was inadmissible. In particular, the document was not certified. Moreover, Defendant did not proffer an affidavit to set forth a foundation for its admissibility, authenticity or accuracy.”  NOT TRUE – It was certified

“Moreover, the appellant’s brief further asserts that the transcript of the examination under oath of plaintiff’s assignor did not demonstrate the existence of potential insurance coverage because it was not in admissible form as it was “unsigned and unsworn.” In fact, the transcript states, at the beginning and at the end, directly above the court reporter’s signature, that plaintiff’s assignor was duly sworn by a notary public.”

“Accordingly, we direct counsel for the respective parties to show cause why sanctions should or should not be imposed against plaintiff’s counsel”

My guess: $500.00

T & J Chiropractic, P.C. v MVAIC, 2015 NY Slip Op 51445(U)(App. Term 2d Dept. 2015)

“ORDERED that, on the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against plaintiff’s counsel pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate,”

Counsel for plaintiff asserts in the appellant’s brief submitted to this court that “To the extent Defendant proffered a purported police report, within Exhibit F’ to its motion, same was inadmissible. In particular, the document was not certified. Moreover, Defendant did not proffer an affidavit to set forth a foundation for its admissibility, authenticity or accuracy.”  NOT TRUE – it was certified

My guess: $500.00.

 

The Reply that introduced a proper reply was itself proper

SAL Med., P.C. v Clarendon Natl. Ins. Co., 2015 NY Slip Op 51449(U)(App. Term 2d Dept. 2015)

“The defect in one of the peer review reports submitted by defendant with its original motion papers, in that it did not bear a signature, was properly and timely remedied when the identical peer review report, this time bearing a signature, was submitted by defendant in its reply papers, and there is no indication that plaintiff was prejudiced in opposing defendant’s motion by this defect in form”

Unsworn letters not enough

Innovative MR Imaging, P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51402(U)(App. Term 1st Dept. 2015)

“In opposition to defendant’s motion, plaintiff submitted two letters of medical necessity. However, as neither letter of medical necessity was sworn or even signed, they were of no probative value (see Rivers v Birnbaum, 102 AD3d 26, 45 [2012]). As a result, defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff.”

Civil judgments cannot be used to question a party’s credibility

Quiroz v Zottola, 2015 NY Slip Op 04627 (2d Dept. 2015)

“Moreover, the trial court did not improvidently exercise its discretion in limiting the cross-examination of Zottola. The court properly limited the plaintiffs’ cross-examination of Zottola regarding his prior employment and negative credit history, due to the collateral nature of these issues (see Badr v Hogan, 75 NY2d 629, 635; Parsons v 218 E. Main St. Corp., 1 AD3d 420). We also note that, with respect to Zottola’s credit history, “civil judgments cannot be characterized as bad or immoral . . . acts involving moral turpitude that would allow them to be used to question the defendant’s credibility” (People v Heiss, 221 AD2d 562, 563).”

The Arbitrator Charles Sloane 2106 rule: deemed arbitrary.

Auto One Ins. Co. v Hillside Chiropractic, P.C., 2015 NY Slip Op 01750 (1st Dept. 2015)(1st Dept 2015)

“We find that the no-fault arbitrator’s decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106, although such conformity is not required (see 11 NYCRR § 65-4.5[o] [1] [“The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary.”], was arbitrary. Accordingly, the award must be vacated (see In re Petrofsky [Allstate Ins. Co.] , 54 NY2d 207, 211 [1981]). We note that since no substantive determination regarding the weight of the IME report was ever made, the Master Arbitrator and the IAS court erred in deferring to the no-fault arbitrator’s determination.”

How many times has an arbitrator declined to accept your proofs because they do not comply with 2106?  In my opinion, one time too many.  The Appellate Division saw the light,

The law on signatures

People v. Haywood, 2015 N.Y. Slip Op. 00555 (2d Dept. 2015)

“The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” (Peoplev Duncan, 46 NY2d 74, 80-81; see People v Weldon, 111 NY 569, 575-576; Richardson, Evidence [Prince 10th ed], § 502). “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” (Larkin v Nassau Elec. R.R. Co., 205 NY 267, 270). Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence”’ (Jerome Prince, Richardson on Evidence § 6-411[b], at 407 [Farrell 11th ed], quoting Larkin v Nassau Elec. R.R. Co., 205 NY at 270; see also People v Lyons, 112 AD3d 849, 850People v Benson, 233 AD2d 749). Accordingly, we decline to disturb the trial court’s determination in this regard.”

This is interesting.

Failed to adduce that (s)he was an expert

Flanger v 2461 Elm Realty Corp., 2014 NY Slip Op 08532 (3d Dept. 2014)

“Defendant also submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott v Ward, 48 NY2d 455, 459 [1979];see Hofmann v Toys “R” Us, NY Ltd. Partnership, 272 AD2d 296, 296 [2000]). Defendant’s proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant’s proffered expert listed the initials “P.E.” after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his “experience as an engineer.” While the “P.E.” would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information (see Bova v County of Saratoga, 258 AD2d 748, 750 [1999]; compare Winney v County of Saratoga, 8 AD3d 944, 945 [2004]).”

This is an interesting case as to what must be included in the expert report or CV.  I am left to assume that a peer report or IME that states the name of the person, that he is a doctor with a specialty OR a chiropractor, acupuncture with a credential should be sufficient.  On the other hand, a nurse, engineer, coder or other person would have to set forth their credentials in the report (or have a CV attached).  An interesting case.

Missing document charge not granted

Knight v M & M Sanitation Corp., 2014 NY Slip Op 07631 (2d Dept. 2014)

This serious injury trial was problem for Plaintiff on may accounts.  But there was discussion on a missing document charge for the failure to obtain photographs:

“Although there was testimony that McCarron took pictures at the accident scene with a disposable camera, the plaintiff failed to establish that any photographs of the accident scene existed, or that he moved to compel their production during discovery (see McGloin v Golbi, 49 AD3d 610Crespo v New York City Hous. Auth., 222 AD2d 300).”