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QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT.

The Second Department, reversing Supreme Court, in the context of a legal malpractice action, determined plaintiff had raised a question of fact whether the property owner created or exacerbated the dangerous condition by snow removal efforts. Plaintiff alleged she fell while stepping over a pile of snow:

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff’s deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts … . In particular, in light of the plaintiff’s deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to “lift [her] leg” to “cross” over, causing her to slip and fall. Accordingly, that branch of the defendant’s motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied. Balan v Rooney, 2017 NY Slip Op 05801, 2nd Dept 7-26-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT)/SLIP AND FALL (QUESTION OF FACT WHETHER PROPERTY OWNER EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SNOW-RELATED SLIP AND FALL CASE 2ND DEPT)

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BANK DID NOT COMPLY WITH THE STATUTORY NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

Here, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office demonstrating that it properly served the defendants pursuant to the terms of the statute … . Contrary to the plaintiff’s contention, the affidavit of an assistant secretary of the loan servicer was insufficient to establish that the notice was sent to the defendants in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … . Investors Sav. Bank v Salas, 2017 NY Slip Op 05811, 2nd Dept 7-26-17

FORECLOSURE (BANK DID NOT COMPLY WITH THE STATUTORY NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION 2ND DEPT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, BANK DID NOT COMPLY WITH THE STATUTORY NOTICE REQUIREMENTS IN THIS FORECLOSURE ACTION 2ND DEPT)

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SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT.

The Second Department determined a special use permit was properly granted to a golf course seeking permission to host nonmember events. The court explained the different criteria for a special use permit versus a variance:

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special use permit gives permission to use property that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . The burden of proof on an applicant seeking a special use permit is lighter than that carried by an applicant for a zoning variance … . Once an applicant shows “that the contemplated use is in conformance with the conditions imposed, a special [use] permit or exception must be granted unless there are reasonable grounds for denying it that are supported by substantial evidence” … .

Here, on this record, there was substantial evidence that Hampshire Club, Inc.’s contemplated use comported with the requirements of Village of Mamaroneck Zoning Code … , and there were no reasonable grounds for denying the special use permit. Therefore, the special use permit to host nonmember events at the Country Club should have been granted… . “Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record” … . Matter of Mamaroneck Coastal Envt. Coalition, Inc. v Board of Appeals of the Vil. of Mamaroneck, 2017 NY Slip Op 05822, 2nd Dept 7-25-17

ZONING (SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)/SPECIAL USE PERMIT (ZONING, SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)/VARIANCE (ZING, SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)

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ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT.

The Second Department, reversing Supreme Court, determined that the mortgage-holder’s motion for a default judgment and order of reference should not have been denied. The 1970 deed for the property named defendant and his mother as husband and wife. Pursuant to 1970 law (which changed in 1975) the erroneous “husband and wife” designation created a tenancy in common with no right of survivorship. Therefore, although defendant was not the sole owner at the time the mortgage loan was made, the mortgage was secured by his interest in the property and that interest was subject to foreclosure:

Contrary to the Supreme Court’s determination, while the defendant may not have been the sole owner of the subject property at the time of the loan, he was still able to mortgage the subject property to the extent of his interest therein, since ” [a] mortgage given by one of several parties with an interest in the mortgaged property is not invalid; it gives the mortgagee security, but only up to the interest of the mortgagor'” … . “[T]here is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” … . John T. Walsh Enters., LLC v Jordan, 2017 NY Slip Op 05813, 2nd Dept 7-25-17

REAL PROPERTY (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/FORECLOSURE (DEEDS,  ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/TENANCY IN COMMON (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)

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THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was sufficient circumstantial evidence of the cause of plaintiff’s fall down a set of stairs to survive summary judgment. The plaintiff alleged there was inadequate lighting:

The defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the plaintiffs could not identify the cause of the injured plaintiff’s fall. “[T]hat a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury”… . Here, the defendant failed to eliminate triable issues of fact as to whether the alleged inadequate lighting condition for the subject staircase was a proximate cause of the injured plaintiff’s fall… . Such a finding, given the eyewitness account of the circumstances surrounding the fall and the injured plaintiff’s own statement just before the fall, warning his companions to “watch out, it is dark, you cannot see,” would be based on logical inferences, not speculation … . Pajovic v 94-06 34th Rd. Realty Co., LLC, 2017 NY Slip Op 05831, 2nd Dept 7-25-17

NEGLIGENCE (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/EVIDENCE (SLIP AND FALL, THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the golf-course sprinkler-valve-hole, which caused plaintiff’s decedent to trip and fall, was concealed or unreasonably increased the risks inherent in the golf course, thereby overcoming the assumption of risk doctrine. Supreme Court should not have excluded the photographs of the area where plaintiff fell. Contrary to Supreme Court’s reasoning, the person who authenticated the photographs was a not a notice witness who should have been named prior to the filing of the note of issue:

… [P]laintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course … In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion. Contrary to the court’s determination, the plaintiff was not required to identify John Flower as a notice witness prior to filing the note of issue. The disclosure requirements of CPLR 3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action” … . Here, Flower did not possess information material and necessary to the prosecution or defense of the action. In his affidavit, Flower merely authenticated certain photographs, most of which had been submitted by the decedent with his notice of claim prior to his death. Consequently, the court should not have rejected Flower’s affidavit and the attendant photographs on the ground that the plaintiff had failed to identify Flower as a notice witness prior to the filing of the note of issue. As a related matter, the court improperly rejected the affidavit of the plaintiff’s expert on the ground that he relied upon the photographs. Further, the court should not have rejected the two remaining affidavits from individuals who were disclosed to the defendant prior to the filing of the note of issue. MacIsaac v Nassau County, 2017 NY Slip Op 05814, 2nd Dept 7-25-17

NEGLIGENCE (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)CIVIL PROCEDURE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/EVIDENCE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/ASSUMPTION OF RISK (GOLF, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/GOLF (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/PHOTOGRAPHS (EVIDENCE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/NOTICE WITNESS (CIVIL PROCEDURE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)

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PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether defendant had actual or or constructive notice of the black ice which caused plaintiff to fall. There was precipitation earlier on the day plaintiff fell:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the black ice that allegedly caused the plaintiff to fall developed as a result of precipitation that fell on the day of the accident, and that the defendant did not create or have actual or constructive notice of the existence of the black ice… . Contrary to the plaintiff’s contention, the Supreme Court properly considered her deposition transcript in determining the motion … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the black ice was the product of a prior storm … . Vozzo v Fairfield Westlake Sq., LLC, 2017 NY Slip Op 05868, 2nd Dept 7-25-17

NEGLIGENCE (SLIP AND FALL, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (PLAINTIFF DID NOT RAISE A QUESTION OF FACT ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THIS SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED 2ND DEPT)

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ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT.

The First Department determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action was properly denied. Plaintiff (Giordano), who was wearing a harness and double lanyard, fell 30 feet from a scaffold when he stepped on a pipe brace which gave way. Although plaintiff had unhooked the lanyard, there was a question of fact whether the scaffold provided a proper method for tying off the lanyard:

“[T]he fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1),” and when “there are questions of fact as to whether the [structure] provided adequate protection,” summary judgment is not warranted … . In this case, plaintiff Paul Giordano fell 30 feet from scaffolding during construction on the Freedom Tower at 1 World Trade Center, when he stepped on a pipe brace that suddenly gave way. Although he was wearing a harness and double lanyard, the record presents issues of fact as to whether the scaffolding itself provided adequate anchoring points at which to tie off, and whether Giordano could have used his double lanyard to remain tied off at all times. Thus, under these circumstances, summary judgment to either party on the Labor Law § 240(1) claim, and the § 241(6) claim premised on a violation of Industrial Code (12 NYCRR) § 23-1.16, is precluded by issues of fact as to whether Giordano was provided with “proper fall protection, namely, an appropriate place to . . . attach his harness” … . … Because there are issues of fact as to whether Labor Law § 240(1) was violated, the issue of whether Giordano was the sole proximate cause of the accident (because he unhooked his lanyard) cannot be determined as a matter of law … . Giordano v Tishman Constr. Corp., 2017 NY Slip Op 05796, 1st Dept 7-25-17

LABOR LAW-CONSTRUCTION LAW (SCAFFOLDS, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, LTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/LANYARDS (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)

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THE DISCIPLINE AND SUSPENSION OF STUDENTS ARE NOT ARBITRABLE TOPICS, ARBITRATION WOULD CONFLICT WITH PUBLIC POLICY AFFORDING DISCRETION TO SCHOOL DISTRICTS 2ND DEPT.

The Second Department determined the disciplining and suspension of  students were not arbitrable topics because there is a public policy affording the school district discretion in those areas:

In determining whether a dispute between a public sector employer and employee is arbitrable, a court must first determine whether ” there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'”… . If there is no prohibition against arbitration, the court must examine the parties’ collective bargaining agreement to determine “whether the parties in fact agreed to arbitrate the particular dispute”…

Here, the appellant demanded arbitration to compel the petitioner, the Board of Education of the Newburgh Enlarged City School District, to implement certain measures regarding the discipline and suspension of students. Since New York’s Education Law grants discretion to boards of education to implement disciplinary rules and regulations in schools … , such demands are nonarbitrable on public policy grounds … . Matter of Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Newburgh Teachers’ Assn., 2017 NY Slip Op 05817, 2nd Dept 7-25-17

EDUCATION-SCHOOL LAW (ARBITRATION, THE DISCIPLINE AND SUSPENSION OF STUDENTS ARE NOT ARBITRABLE TOPICS, ARBITRATION WOULD CONFLICT WITH PUBLIC POLICY AFFORDING DISCRETION TO SCHOOL DISTRICTS 2ND DEPT)/ARBITRATION (EDUCATION-SCHOOL LAW, THE DISCIPLINE AND SUSPENSION OF STUDENTS ARE NOT ARBITRABLE TOPICS, ARBITRATION WOULD CONFLICT WITH PUBLIC POLICY AFFORDING DISCRETION TO SCHOOL DISTRICTS 2ND DEPT)

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RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT.

The First Department, in a full-fledged opinion by Justice Kahn, over an extensive, two-justice, dissenting opinion, determined a report on the DNA evidence which connected the defendant to the burglary did not violate the Confrontation Clause and was properly admitted. The majority argued that the report contained only raw data that was not part of a law enforcement effort aimed at the defendant because the sources of the DNA which were analyzed were not known to the technicians conducting the procedures. Therefore the raw data was not testimonial evidence (which would violate the Confrontation Clause). The criminologist (Huyck) who testified came to conclusions (testimonial) about the sources of the tested DNA by comparing the (non-testimonial) raw data. The report generated by the criminologist, therefore, was admissible because she testified and was cross-examined. The dissenters argued that someone involved in collecting the raw data should have testified and been cross-examined about the testing procedures (measures taken to avoid contamination, etc.):

Huyck herself conducted an independent review of the raw data derived from the testing of the DNA material derived from both the physical evidence and from defendant’s person, and was not merely “functioning as a conduit for the conclusions of others” … . …[T]he expert witness, “testified that any conclusions or opinions she reached from the raw data . . . were her own” and were not merely conclusions of others with whom she agreed … . Upon her own examination of the machine-generated graphs and raw data in this case, Huyck concluded that the two DNA profiles were a match. Her conclusion, based upon her own “separate, independent and unbiased analysis of the raw data,” was reflected in the … laboratory report bearing her name as analyst as well as in her own testimony at trial … . … Huyck did not base her testimony “solely on the reports of the nontestifying analysts [which were then] admitted into evidence for their truth.” People v Rodriguez, 2017 NY Slip Op 05799, 1st Dept 7-25-17

CRIMINAL LAW (RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/HEARSAY (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/TESTIMONIAL EVIDENCE (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL EVIDENCE, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/CONFRONTATION CLAUSE (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/REPORTS (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)

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