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AN ENTRY IN A HOSPITAL RECORD INDICATING PLAINTIFF FELL DOWN A FEW STAIRS WAS NOT GERMANE TO TREATMENT OR DIAGNOSIS AND WAS NOT AN ADMISSION BECAUSE THE SOURCE OF THE ENTRY WAS UNKNOWN; NEW TRIAL ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial, determined an entry in the plaintiff’s medical records indicating she fell down a few stairs was inadmissible. Plaintiff alleged she fell through a broken step. The entry in the hospital record was not germane to diagnosis or treatment and the source of the entry could not be ascertained:

… Supreme Court should have precluded the admission into evidence of an entry in a medical record from … the Brookdale medical record … that indicated that the plaintiff sustained a “mechanical fall down ‘a few’ stairs.” An entry in a medical record that is not germane to diagnosis or treatment but is inconsistent with a position taken by a party at trial is admissible as an admission by that party only when there is evidence connecting the party to the entry … .. “[W]here the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … .

Here, the Brookdale medical record was not germane to the plaintiff’s diagnosis or treatment, and thus was not admissible on that basis … .. Moreover, there was no showing that the plaintiff was the source of the information in that record and so it was not admissible as an admission by the plaintiff … . Fraser v 147 Rockaway Pkw, LLC, 2022 NY Slip Op 01772, Second Dept 3-16-22

Practice Point: An entry in a hospital record which is not germane to treatment or diagnosis is not admissible. An entry in a hospital record which is inconsistent with a plaintiff’s position at trial is admissible as an “admission” only if it is clear plaintiff was the source of the entry. If, as it was here, the source of the entry is unknown, it is inadmissible.

 

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IN THIS NO-FAULT INSURANCE MATTER, PLAINTIFF INSURER DID NOT DEMONSTRATE COMPLIANCE WITH THE NYCRR SUCH THAT IT WAS ENTITLED TO SUMMARY JUDGMENT BASED UPON THE INSURED’S FAILURE TO APPEAR FOR AN INDEPENDENT MEDICAL EXAMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff insurer did not demonstrate it was entitled to summary judgment based upon the insured’s failure to appear for an independent medical examination (IME):

[Plaintiff insurer’s] its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR § 65-3.5[b], [d]) governing the timeframes for scheduling IMEs … .. Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under (11 NYCRR) § 65-3.5(b) and (d) …  American Tr. Ins. Co. v Alcantara, 2022 NY Slip Op 01871, First Dept 3-17-22

Practice Point: An insurer must show compliance with the regulatory timeframes for scheduling an independent medical examination (IME) before it will be entitled to summary judgment based on an insured’s failure to appear at an IME.

 

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ALTHOUGH PLAINTIFF, WHO WAS INJURED WHILE REPAIRING AN ESCALATOR, COULD NOT IDENTIFY THE CAUSE OF THE ESCALATOR’S SUDDEN START-UP, THE MOTION TO COMPEL HIM TO SUPPLEMENT HIS ANSWERS TO INTERROGATORIES WAS PROPERLY DENIED; PRODUCTS LIABILITY ACTIONS CAN BE PROVEN BY CIRCUMSTANTIAL EVIDENCE; AT THIS STAGE PLAINTIFF CAN TESTIFY UNDER OATH THAT HE DOES NOT KNOW THE CAUSE OF THE UNEXPECTED START-UP (FIRST DEPT).

The First Department determined the motion to compel plaintiff to supplement his interrogatories in this products liability case was properly denied. Plaintiff alleged the escalator he was working on started up without warning severely injured his leg. The fact that plaintiff can not identify the cause of the unexpected start-up did not require supplementing his interrogatories as he can so state “under oath:”

“It is well settled that a products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect” … . In the absence of evidence identifying a specific defect “a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to [the] defendants” … . If a “plaintiff is unable to prove both elements, ‘a jury may not infer that the harm was caused by a defective product unless [the] plaintiff offers competent evidence identifying a specific flaw'” …

In his interrogatory responses, plaintiff identified several alleged design defects, including the design of the pit, that contributed to his injury. However, he did not identify a cause for the unexpected start up of the escalator. … Presently, plaintiff asserts that he cannot pinpoint the defective component that allowed the escalator’s machinery to begin moving without warning. In an instance where plaintiff “presently lacks the knowledge” to specifically identify the nature of the defect, plaintiff can testify to that “under oath” … . … [I]f he acquires the pertinent information he would be under an obligation to promptly supplement his answers to the interrogatories at issue … . Berkovich v Judlau Contr., Inc., 2022 NY Slip Op 01733, First Dept 3-15-22

Practice Point: Products liability actions can be proven by circumstantial evidence. If a plaintiff does not know the cause of a product malfunction (here, an escalator which allegedly started running unexpectedly) at the discovery stage, the plaintiff can testify to that fact under oath.

 

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ALTHOUGH THE MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS WAS NOT TIMELY, THE ASSERTION OF THE DEFENSE IN THE REPLY TO THE COUNTERCLAIM WAS TIMELY; THE DEFENSE CAN BE RAISED IN A SUBSEQUENT SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department noted that the statute of limitations affirmative defense was timely served in a reply to a counterclaim

[Defendant] NYCTA did not waive its affirmative defense under CPLR 3211(a)(5) because a defense based upon the statute of limitations is waived only if it is neither asserted in a responsive pleading or in a timely motion … . Here the affirmative defense was timely asserted in NYCTA’s reply to the counterclaim. The motion to dismiss under CPLR 3211(a)(5), however, was not timely made, as required under CPLR 3211(e) … . … We note that NYCTA may pursue relief on its statute of limitations defense by way of a summary judgment motion in the normal course of the litigation … . Han v New York City Tr. Auth., 2022 NY Slip Op 01737, First Dept 3-15-22​

Practice Point: Even if it is too late to move to dismiss on statute-of-limitations grounds, if the defense has been timely asserted, it can be the basis of a subsequent summary judgment motion.

 

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PLAINTIFF WAS WALKING UP AN EARTHEN RAMP WHEN HE WAS STRUCK BY AN EXCAVATOR AND ROLLED DOWN THE RAMP; THERE WAS NO “SIGNIFICANT ELEVATION DIFFERENTIAL” SUCH THAT LABOR LAW 24O (1) WOULD APPLY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the circumstances of plaintiff’s injury did not fit the “elevation-related” element of a Labor Law 240(1) cause of action. Plaintiff was walking up an earthen ramp when he was struck by an excavator and rolled down the ramp:

Labor Law § 240(1) is inapplicable to this case because plaintiff’s injuries were not “the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential” … . Plaintiff was struck by an excavator; the fact that at the time he was bringing debris up an earthen ramp, or that he rolled down the ramp after being struck, does not give rise to a cause of action pursuant to Labor Law § 240(1) … . Herrera v Kent Ave. Prop. III LLC, 2022 NY Slip Op 01738, First Dept 3-15-22

Practice Point: Plaintiff was walking up an earthen ramp when he was struck by an excavator and rolled down the ramp. There was no failure to provide equipment to protect against an elevation-related hazard such that Labor Law 240 (1) would apply.

 

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IN A RARE REVERSAL OF A BENCH TRIAL ON EVIDENTIARY GROUNDS, THE 1ST DEPT DETERMINED FOUR OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY THE VICTIM IN THIS SEXUAL-OFFENSE CASE SHOULD NOT HAVE BEEN ADMITTED UNDER THE “EXCITED UTTERANCE” OR “PROMPT OUTCRY” THEORIES; THE COURT NOTED THAT ONLY THE FACT OF THE COMPLAINT, NOT THE ACCOMPANYING DETAILS, ARE ADMISSIBLE AS A “PROMPT OUTCRY” (FIRST DEPT). ​

The First Department, reversing defendant’s conviction after a nonjury trial, determined four out-of-court statements made by the alleged victim in this sexual-offense case should not have been admitted a “excited utterances.” Although two of the statements were “prompt outcries,” under that theory only the fact of a complaint, not the details (as provided here) are admissible:

… [T]he trial court admitted four statements made by the alleged victim following the incident, reasoning that they were admissible both as excited utterances and prompt outcries. This was error. The alleged victim’s out-of-court statements did not qualify as excited utterances and should not have been admitted for their substance under that hearsay exception …  . Although two of the four statements were correctly admitted under the alternative theory that they constituted prompt outcries, under this exception, “only the fact of a complaint, not its accompanying details” is admissible … . It is clear from the record that the trial court considered all four hearsay statements for their substance, and thus, there can be no presumption that the court, as the finder of fact, considered only competent evidence … .. Given the People’s strong reliance on the hearsay statements to prove its case, and the court’s indication that it intended to review the written statement that was in evidence during deliberation, we cannot say that “the proof of the defendant’s guilt, without reference to the error, is overwhelming” and that the error was therefore harmless … . People v Gideon, 2022 NY Slip Op 01746, First Dept 3-15-22

​Practice Point: In this nonjury sexual-offense prosecution the court erred by admitting out-of-court statements by the alleged victim under the “prompt outcry” theory. Only the fact of the complaint is admissible, not the accompanying details.

 

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THE JUDGE SHOULD NOT HAVE RELIED ON EVIDENCE GIVEN AT A MATERIAL WITNESS HEARING, FROM WHICH DEFENDANT WAS PROPERLY EXCLUDED, AT A SUBSEQUENT SIROIS HEARING AT WHICH THE WITNESS DID NOT TESTIFY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the judge should not have relied upon evidence given at a material witness hearing, from which the defendant was properly excluded, at a subsequent Sirois hearing at which the material witness did not testify:

At [the material witness] hearing, the witness … testified that she had been threatened by defendant, the codefendant, and others in an attempt to prevent her from testifying at trial. Although the court granted the People’s application for a material witness order and set bail to ensure the witness’s availability, the next day the People requested a Sirois hearing and sought a determination that the witness had been made constructively unavailable to testify at trial by threats attributable to defendant … . …

A defendant generally has no constitutional right to be present at a material witness hearing … ; however, a “[d]efendant’s absence from [a Sirois] hearing[] could have a substantial effect on his [or her] ability to defend” … . Here, although there is no dispute that the initial material witness hearing was not intended to address any Sirois or other evidentiary issues … , the court erred in relying on the unchallenged testimony taken therein in making its Sirois determination … . Indeed, the court effectively, and erroneously, incorporated the material witness hearing into the subsequent Sirois hearing by expressly relying on that testimony and on its own observations of the witness’s demeanor in making its determination. People v Phillips, 2022 NY Slip Op 01710, Fourth Dept 3-11-22

Practice Point: The judge relied on the witness’s testimony at a material witness hearing, at which defendant was not present, for his ruling in a Sirois hearing, at which the witness did not testify. Defendant was thereby deprived of his right to confront the witnesses against him at the Sirois hearing. New trial ordered.

 

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THE CROSS-EXAMINATION OF A DETECTIVE ABOUT STATEMENTS ATTRIBUTED TO THE VICTIM IN THIS SEXUAL-OFFENSE PROSECUTION SHOULD NOT HAVE BEEN CURTAILED BY THE JUDGE; THE ERROR WAS NOT HARMLESS WITH RESPECT TO SEVERAL COUNTS, BUT WAS DEEMED HARMLESS WITH RESPECT TO OTHER COUNTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on several counts, determined the judge’s curtailing of the cross-examination of a detective concerning statements attributed the the victim in this sexual-offense prosecution was not harmless error as to those (reversed) counts:

” ‘Once a proper foundation is laid, a party may show that an adversary’s witness has, on another occasion, made oral or written statements which are inconsistent with some material part of the trial testimony, for the purpose of impeaching the credibility and thereby discrediting the testimony of the witness’ ” … . “To lay the foundation for contradiction, it is necessary to ask the witness specifically whether he [or she] has made such statements; and the usual and most accurate mode of examining the contradicting witness, is to ask the precise question put to the principal witness” … . Here, defendant laid a proper foundation by eliciting testimony from the victim that was inconsistent with the detective’s written report purporting to record the victim’s statement, and the court therefore should have permitted cross-examination of the detective regarding that inconsistency … . …

The testimony of the victim was the only direct evidence supporting count one of the indictment, charging criminal sexual act in the third degree, counts three and four of the indictment, charging sexual abuse in the third degree, and counts six and eight of the indictment, charging endangering the welfare of a child. We conclude that the admissible evidence of guilt with respect to those counts is not overwhelming, and that there is a reasonable possibility that the error in curtailing defense counsel’s cross-examination of the detective may have contributed to defendant’s conviction. People v Kilgore, 2022 NY Slip Op 01709, Fourth Dept 3-11-22

Practice Point: It was error for the judge to curtail the cross-examination of  a detective about statements attributed to the victim in this sexual offense prosecution. The error was deemed reversible with respect to some counts, and harmless with respect to others.

 

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AT THE FRYE HEARING, THE PEOPLE DEMONSTRATED THE ADMISSIBILITY OF THE RESULTS OF DNA ANALYSIS USING THE STRMIX DNA ANALYSIS PROGRAM (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined the Frye hearing sufficiently demonstrated the admissibility of the results of DNA analysis using the STRmix DNA analysis program (STRmix program):

… [T]he People introduced evidence that biological samples were recovered from several locations at the scene of the incident and that those samples were analyzed using the STRmix program, which indicated that defendant’s DNA was contained in those samples. Before trial, the People provided defendant with notice of the results of the tests and the program used to conduct them and, at defendant’s request, the court ordered a Frye hearing concerning that program …. The People introduced evidence at the hearing that the STRmix program had been the subject of numerous peer-reviewed journal articles and had been evaluated and approved by the National Institute of Standards and Technology and by the Erie County Central Police Services Forensic Laboratory before it began using the STRmix program. In addition, the People established that the STRmix program was being used by numerous forensic testing agencies and laboratories in New York, California, the United States Army, Australia, and New Zealand, and that it had been approved by the DNA Subcommittee of the New York State Forensic Science Committee. People v Bullard-Daniel, 2022 NY Slip Op 01707, Fourth Dept 3-11-22

Practice Point: The Frye hearing in this case demonstrated the results of the DNA analysis done using the STRmix DNA analysis program constituted admissible evidence.

 

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THE PEOPLE DID NOT DEMONSTRATE THE ANONYMOUS TIP PROVIDED PROBABLE CAUSE TO BELIEVE DEFENDANT WAS IN THE VEHICLE PURSUED AND STOPPED BY THE POLICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Peopled failed to demonstrate the arresting officers had probable cause to pursue and stop the vehicle form which defendant attempted to flee. The officers were observing the vehicle because of an anonymous tip:

The United States Supreme Court has “recognized . . . [that] there are situations in which an anonymous tip, sufficiently corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop’ ” … . However, “[s]ince an anonymous tip ‘seldom demonstrates the informant’s basis of knowledge or veracity,’ it can only give rise to reasonable suspicion if accompanied by sufficient indicia of reliability” … . The anonymous tip must be reliable, not only “in its assertion of illegality,” but also “in its tendency to identify a determinate person” … . …

The evidence at the suppression hearing established that police officers were dispatched based on an anonymous tip that defendant was in a specific vehicle at a specific location. However, when police responded to the area, neither defendant nor the vehicle was present. Over 3½ hours later, officers observed the vehicle and two individuals inside. The only officer to testify at the suppression hearing admitted that he could not determine whether the occupants of the vehicle were male or female, let alone whether one of them was defendant. Further, the vehicle was not registered to defendant. Nevertheless, the officers activated their emergency lights and attempted to stop the vehicle. People v Ponce, 2022 NY Slip Op 01706, Fourth Dept 3-11-22

Practice Point: An anonymous tip can provide probable cause for a street stop if accompanied by sufficient indicia of reliability, both as to illegality and the identity of the person. Here the People did not demonstrate the anonymous tip was sufficiently reliable.

 

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