Key Takeaway
NY appellate court case examining when evidentiary errors are considered harmless, covering social media photo admissibility and medical record authentication standards.
Cicco v Durolek, 2019 NY Slip Op 03170 (4th Dept. 2019)
(1) ” We reject plaintiff’s contention that Supreme Court erred in admitting photographs from plaintiff’s social media accounts that allegedly depicted his post-accident condition. The photographs were timely disclosed (see generally Krute v Mosca, 234 AD2d 622, 624 ) and properly authenticated (see generally Corsi v Town of Bedford, 58 AD3d 225, 228 , lv denied 12 NY3d 714 ). The alleged discrepancies between the date of the photos and the date of the accident went to the weight of the evidence, not its admissibility (see People v Costello, 128 AD3d 848, 848 , lv denied 26 NY3d 927, 1007 , reconsideration denied 26 NY3d 1007 ). In any event, any error in admitting the photographs was harmless (see CPLR 2002; Matter of Edick v Gagnon, 139 AD3d 1126, 1128 ).
(2) “Contrary to plaintiff’s contention, the medical records at issue were not automatically admissible pursuant to CPLR 3122-a (c) simply because defendants did not challenge their admissibility within 10 days of trial (see Siemucha v Garrison, 111 AD3d 1398, 1400 ). In any event, any error in precluding the foregoing evidence was harmless“
(3) ” Finally, the court properly denied plaintiff’s request for a missing witness instruction because he failed to meet his initial burden of establishing the availability of the uncalled witness, who was elderly, infirm, and living in Florida (see Matter of Chi-Chuan Wang, 162 AD3d 447, 449 , lv denied 32 NY3d 904 ; see generally DeVito v Feliciano, 22 NY3d 159, 165-166 ; People v Brown, 183 AD2d 569, 570 , lv denied 80 NY2d 901 ). In any event, any error in denying the missing witness instruction was harmless “
I honestly dot know a thing about this case, but how much error is harmless? Inadmissible photos were allowed into evidence. Certified records were kept out. A missing witness charge was not given. Sounds like Plaintiff got shafted on this case – I see why he appealed
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Legal Update (February 2026): Since this 2019 post, CPLR provisions governing harmless error standards and medical record admissibility procedures may have been subject to amendments or judicial interpretation updates. Additionally, evolving case law regarding social media evidence authentication and the application of CPLR 3122-a’s automatic admissibility provisions may have refined the standards discussed. Practitioners should verify current CPLR 2002 and 3122 provisions and recent appellate decisions when analyzing harmless error in evidentiary rulings.
