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EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT).

The First Department, affirming the denial of summary judgment and the denial of the motion to set aside the verdict in this probate action, determined evidence included in a settlement letter and hearsay relied upon an expert witness were properly admitted. The court further found that the missing witness jury instruction for the decedent’s treating doctors was proper, but the missing witness jury instruction for the attorney who drafted the will, who lives in Florida, was (harmless) error. The jury revoked preliminary letters:

Although CPLR 4547 precludes presentation of evidence of settlement negotiations, it expressly exempts exclusion of evidence, which is otherwise discoverable, solely because such evidence was presented during the course of settlement negotiations.

The list of paintings that was signed by proponent as part of the settlement conference in Shanghai was admitted into evidence because it included a factual admission that proponent possessed a painting that he accused objectant of stealing. Thus, its use at trial was permissible, notwithstanding that the factual statement was contained in a settlement document … . …

The court’s missing witness charge with respect to the attorney, Jerome Kamerman, was in error. Mr. Kamerman was living in Florida at the time of trial and was unavailable to proponents … . …

A psychiatrist’s opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is “of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on [] trial” … . The court properly permitted the expert to testify, despite his conversations with objectant, since she was subject to full cross-examination at trial. Matter of Chi-ChuanFile Wang, 2018 NY Slip Op 04090, First Dept 6-7-18

​CIVIL PROCEDURE (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/EVIDENCE (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/TRUSTS AND ESTATES (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/SETTLEMENT NEGOTIATIONS  (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/CPLR 4547 (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/JURY INSTRUCTIONS (MISSING WITNESSES, EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/MISSING WITNESS INSTRUCTION (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/EXPERT OPINION (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/HEARSAY (EXPERT OPINION, EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))

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PLAINTIFF FELL ABOUT NINE FEET FROM ONE FLOOR TO ANOTHER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​
DEFENSE COUNSEL TOLD THE COURT DURING THE PRE-TRIAL SUPPRESSION HEARING THAT DEFENDANT WAS NOT CONTESTING HIS CONSENT TO THE INTOXILYZER BREATH TEST; SUPREME COURT PROPERLY DENIED DEFENDANT’S ATTEMPT TO RAISE THAT SAME SUPPRESSION ISSUE DURING TRIAL; THE DISSENT DISAGREED (FIRST DEPT).
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BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT).
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