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THE TRIAL COURT PROPERLY PRECLUDED DEFENDANTS FROM CALLING PLAINTIFF’S TREATING PHYSICIANS AS WITNESSES IN THIS POLICE EXCESSIVE FORCE CASE BECAUSE OF INADEQUATE NOTICE AND THE TRIAL COURT PROPERLY ACCEPTED PLAINTIFF’S REDACTIONS OF THE MEDICAL RECORDS BECAUSE DEFENDANTS FAILED TO SUGGEST THEIR OWN REDACTIONS (FIRST DEPT).

The First Department determined the trial court properly precluded the defendants to call plaintiff’s (Walid’s) treating physicians as witnesses and properly redacted plaintiff’s medical records. Plaintiff, a teenager with autism, brought this action against police officers for assault, battery and use of excessive force. Defendants did not give timely notice of their wish to call the treating doctors and did not supply their own suggested redactions:

We find that, under the circumstances, the trial court did not improvidently exercise its discretion in precluding defendants from introducing testimony from Walid’s treating doctors at Ferncliff Manor. Defendants failed to disclose any of these witnesses until four days before trial, after having previously affirmatively represented to the court that they did not intend to call any witnesses. The court and plaintiffs relied on this representation in estimating the length of trial and selecting a jury. In view of the trial court’s broad authority to control its courtroom, it was not unreasonable for the court to decline to add these witnesses and prolong the trial when a jury had already been chosen (twice) based on certain representations about its length … .

The trial court also did not improvidently exercise its discretion in allowing only a limited subset of Walid’s records from Ferncliff Manor to be admitted into evidence. It is clear that these records required at least some redaction, including to eliminate double hearsay … and propensity evidence … . Because defendants refused to propose any redactions, after having been given ample opportunities to do so, the trial court was justified in adopting plaintiffs’ proposed redactions instead. Even if defendants are correct that the complete records contain additional relevant evidence that should not have been excluded, having failed to propose any redactions of their own, defendants cannot now complain that the records should have been redacted less heavily. Walid M. v City of New York, 2019 NY Slip Op 07739, First Dept 10-29-19

 

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NEITHER THE VICTIM WITNESS PROTECTION ACT NOR THE MANDATORY VICTIM RESTITUTION ACT PROVIDES A PRIVATE RIGHT OF ACTION FOR A JUDGMENT BASED SOLELY UPON RESTITUTION ORDERED IN A CRIMINAL CASE (FIRST DEPT).
IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT).
TO BE ENTITLED TO SUMMARY JUDGMENT BASED ON A PATIENT’S FAILURE TO SHOW UP FOR AN INDEPENDENT MEDICAL EXAMINATION (IME), THE NO-FAULT INSURER MUST SHOW BOTH THAT THE PATIENT DID NOT SHOW UP AND THE REQUEST FOR THE IME AND THE SCHEDULING OF THE IME COMPLIED WITH THE REQUIRED TIME-FRAMES (FIRST DEPT).
​EMOTIONAL AND PSYCHOLOGICAL DAMAGES, AS OPPOSED TO PECUNIARY DAMAGES, WILL NOT SUPPORT AN ACTION FOR BREACH OF FIDUCIARY DUTY (FIRST DEPT). ​
BOTH INSURANCE POLICIES WERE DEEMED TO COVER SEXUAL HARASSMENT CLAIMS AGAINST AN EMPLOYER AND ITS EMPLOYEE BROUGHT BY SEVERAL CO-EMPLOYEES SPANNING YEARS AND DIFFERENT WORKPLACES; THE POLICY LANGUAGE DID NOT RESTRICT THE COVERAGE FOR “RELATED” OR “INTERRELATED ACTS” TO A SINGLE PLAINTIFF (FIRST DEPT).
NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED.
THE ATTORNEY AFFIDAVIT SUBMITTED IN SUPPORT OF THE SUMMARY JUDGMENT MOTION WAS WITHOUT EVIDENTIARY VALUE; THE DEFICIENCIES IN THE ORIGINAL SUBMISSION CANNOT BE CURED IN REPLY; FAILURE TO REGISTER AN APARTMENT WITH THE CITY DHCR AND INCREASING THE RENT DO NOT DEMONSTRATE A FRAUDULENT SCHEME TO DEREGULATE (FIRST DEPT). ​
A PRE-JOINDER MOTION FOR SUMMARY JUDGMENT MUST BE DENIED (FIRST DEPT).

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