You are here: / Evidence
, ,

PLAINTIFF SLIPPED AND FELL ON SNOW FIVE HOURS AFTER THE “EXTRAORDINARY SNOWSTORM” HAD ENDED; THE STORM-IN-PROGRESS RULE APPLIED AND DEFENDANT TRANSIT AUTHORITY WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant transit authority’s motion for summary judgment in this slip and fall case should have been granted pursuant to the “storm in progress” rule. :Plaintiff slipped an fell on an uncovered staircase at a subway station. The fall happened five hours after the end of “an extraordinary snowstorm:”

Under the storm in progress rule, a property owner will not be held liable for accidents caused by accumulation of snow unless “an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . “[T]he question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case” … .

Here, the defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting an affidavit of a meteorologist, with attached certified climatological data, which demonstrated that at the time of the plaintiff’s accident, less than five hours had passed since the end of an extraordinary snowstorm … . In opposition, the plaintiff failed to raise a triable issue of fact … . Harris v New York City Tr. Auth., 2025 NY Slip Op 04635, Second Dept 8-13-25

Practice Point: The storm in progress rule applies for a period of time after the precipitation stops. Here the rule was applied to a slip and fall which occurred five hours after an “extraordinary snowstorm.”

 

,

BUSINESS RECORDS SUBMITTED BY A PERSON WHO DOES NOT ALLEGE PERSONAL KNOWLEDGE OF THE PARTY’S RECORD-KEEPING PRACTICES AND PROCEDURES CANNOT BE RELIED UPON BY THE REFEREE IN A FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because relied-upon business records were not incorporated into an affidavit from someone with personal knowledge of the plaintiff’s record-keeping practices and procedures:

… [T]he supplemental business records were not identified by [the affiant] “or otherwise incorporated into[ ] her affidavit. Rather, those records were attached as an exhibit to [a letter] of the plaintiff’s attorney, and the attorney did not allege personal knowledge of the plaintiff’s record-keeping practices and procedures” … . For this reason, the referee’s findings were not substantially supported by the record … . Citimortgage, Inc. v Rooney, 2025 NY Slip Op 04624, Second Dept 8-13-25

Practice Point: Here the referee’s report relied on business records submitted attached to a letter from plaintiff’s attorney. Because the attorney did not allege personal knowledge of the plaintiff’s record-keeping practices and procedures, the records should not have been considered and the referee’s report was not substantially supported by the record.

 

,

DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this ladder-fall case. Plaintiff testified the unsecured ladder moved and he fell, which made out a prima facie case under Labor Law 240(1). Defendants attempted to raise a question of fact by submitting a statement plaintiff allegedly made to his foreman in Spanish, but defendants presented no evidence that the translation was accurate:

… [P]laintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants. In support of his motion, the plaintiff submitted, inter alia, a transcript of his deposition testimony, which established that the unsecured ladder moved, causing him to fall … . In opposition, the defendants failed to raise a triable issue of fact. The documents submitted by the defendants in opposition to the plaintiff’s motion, which relied on a statement the plaintiff allegedly made to his foreman in Spanish, were insufficient to raise a triable issue of fact. The defendants did not submit any deposition testimony or affidavit from the foreman, and they failed to show that the translation of the statement was provided by a competent, objective interpreter whose translation was accurate … . Batis v 85 Jay St. (Brooklyn), LLC, 2025 NY Slip Op 04619, Second Dept 8-13-25

Practice Point: Before a court will consider a statement translated from another language, the party offering the statement must show the translation was provided by a competent, objective interpreter whose translation was accurate.

 

, , ,

IN A FORECLOSURE CONTEXT, THE BANK, WHEN MOVING FOR A DEFICIENCY JUDGMENT, GETS TWO CHANCES TO DEMONSTRATE THE VALUE OF THE PROPERTY; IF THE FIRST SUBMISSION IS DEEMED INADEQUATE, THE BANK MUST BE ALLOWED TO TRY AGAIN (FIRST DEPT).

The First Department, reversing Supreme Court, determined the bank in this foreclosure action should have been given a second opportunity to present evidence of the value of the property for purposes of a deficiency judgment:

A lender in a foreclosure action moving for a deficiency judgment “bears the initial burden of demonstrating, prima facie, the property’s fair market value as of the date of the auction sale” … . Upon a lender’s motion for a deficiency judgment, RPAPL 1371(2) provides, in part: “the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment.”

The Court of Appeals has interpreted this provision as “a directive that a court must determine the mortgaged property’s ‘fair and reasonable market value’ when a motion for a deficiency judgment is made. As such, when the court deems the lender’s proof insufficient in the first instance, it must give the lender an additional opportunity to submit sufficient proof, so as to enable the court to make a proper fair market value determination” … . Valley Natl. Bank v 252 W. 31 St. Corp., 2025 NY Slip Op 04528, First Dept 7-31-25

Practice Point: In a foreclosure action, if the bank is seeking a deficiency judgment it gets two shots at proving the value of the property.

 

, ,

THE VICTIM OF THE ASSAULT AND ATTEMPTED ROBBERY COULD NOT IDENTIFY THE DEFENDANT; THE VIDEO OF THE INCIDENT DIDN’T HELP; DEFENDANT WAS ARRESTED BECAUSE HE WAS DEPICTED IN SURVEILLANCE VIDEO NEAR THE SCENE WEARING DISTINCTIVE RIPPED AND PATCHED PANTS WHICH WERE NOT MENTIONED BY THE VICTIM OR DEPICTED IN THE INCIDENT VIDEO; THE ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE; INDICTMENT DISMISSED AFTER GUILTY PLEA (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant was arrested in the absence of probable cause requiring suppression of seized evidence and defendant’s statements. Several arguments raised by the People on appeal were not considered because the arguments were not made below. Defendant was accused of assault and attempted robbery of a woman on the street.. The woman was unable to describe the assailant. Video of the incident did not help. Video near the scene depicted a man with distinctive ripped and patched pants, which led to the arrest of the defendant 10 days later. But there was no evidence the assailant was wearing the distinctive pants:

The detective obtained clearer video that depicted a male individual in distinctive ripped and patched pants near the scene and heading northbound, but that video did not capture the attack (nor any other incriminating behavior, for that matter). The detective concluded that the man in the distinctive pants was the perpetrator, apparently due to temporal and geographical proximity. Notably, when shown stills from the footage, the victim was still unable to recognize defendant as her assailant. The detective did not recollect the complainant stating that her assailant fled northbound; rather, the detective surmised the same from the surveillance videos. * * *

Because DHS arrested defendant without probable cause, all evidence flowing from the arrest, including defendant’s statements and the contents of the shoe box, was unlawfully obtained and must be suppressed … . The People are not entitled to a remand for further suppression proceedings, as they “had a full opportunity to present their case at the original hearing” and refrained from submitting alternative theories for denying suppression … .

Dismissal of the indictment is the appropriate remedy in this case. The People’s remaining evidence — namely, the surveillance videos showing the suspect in the area before and after the attack and Detective Hostetter’s “confirmatory” identification of defendant at the shelter — is not sufficient to establish a prima facie case if the People were to try defendant upon remand. The complainant could not provide a description of her assailant, the assailant is unidentifiable in the videos showing the attack, and defendant’s now-suppressed statements and pants were the only evidence connecting him to the crime scene … . People v Williams, 2025 NY Slip Op 04526, First Dept 7-31-25

Practice Point: Here defendant pled guilty but the indictment was dismissed because his arrest was not supported by probable cause.

Practice Point: If the People were given a full opportunity to present available evidence and to make legal arguments at the motion stage, evidence not presented and arguments not made there will not be considered on appeal.

 

,

PLAINTIFF WAS TAKING DOWN A PLYWOOD FENCE WHEN A PIECE OF PLYWOOD FELL AND STRUCK HIM ON THE HEAD; PLAINTIFF DID NOT SUBMIT SUFFICIENT PROOF THE INCIDENT WAS ELEVATION-RELATED; HIS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was tasked with taking down a plywood fence when a piece of plywood struck his head. The Second Department held that plaintiff did not present sufficient evidence demonstrating the incident was elevation-related:

With respect to “falling object” cases, “Labor Law § 240(1) applies where the falling of an object is related to a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured” … . A plaintiff “must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for purposes of the undertaking” … .

Here, the plaintiff failed to eliminate all triable issues of fact as to whether the accident was the result of an elevation-related hazard or gravity-related risk encompassed by Labor Law § 240(1) … . The plaintiff failed to establish his height or the height and weight of the plywood sheet that struck him … . Further, the plaintiff failed to eliminate triable issues of fact as to how the accident occurred and whether, under the circumstances of this case, this was a situation where a securing device of the kind enumerated in Labor Law § 240(1) would have been necessary or even expected … . Joya v E 31 Partners, LLC, 2025 NY Slip Op 04461, Second Dept 7-30-25

Practice Point: Here plaintiff was taking down a plywood fence when a piece of plywood “fell” and struck him on the head. The Second Department held plaintiff did not present sufficient evidence to demonstrate the accident was “elevation-related.” Therefore he was not entitled to summary judgment. Before moving for summary judgment consult the statutory requirements for a violation of Labor Law 240(1).​

 

, , ,

THE JUDGE SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFFS’ COUNSEL TO INFORM DEFENDANTS’ FORMER EMPLOYEES THAT COUNSEL’S INTERESTS ARE ADVERSE TO THEIRS AND TO RECOMMEND THE FORMER EMPLOYEES RETAIN COUNSEL BEFORE ANY DISCUSSION WITH PLAINTIFFS’ COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this action alleging sexual abuse of the plaintiffs in the steam rooms of defendants’ fitness clubs should not have issued a protective order concerning interviews of defendants’ former employees by plaintiffs’ counsel. The order precluded plaintiffs’ counsel from communicating with any former employees without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s interests and recommending that the former employees retain counsel before continuing the discussion:

Supreme Court improvidently exercised its discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3103 for an order precluding the plaintiffs’ counsel from communicating with any former employees of Equinox without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s clients’ interests and recommending that the former employees retain counsel before continuing the discussion. The defendants failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order … . The defendants’ allegations of prejudice in the absence of a protective order were both conclusory and speculative … . G.B. v Equinox Holdings, Inc., 2025 NY Slip Op 04452, Second Dept 7-30-25

Practice Point: Here a protective order restricting communications between plaintiffs’ counsel and defendants’ former employees was reversed because the need for the order was not adequately demonstrated by conclusory and speculative allegations.

 

,

HEARSAY STATEMENTS IN A MEDICAL RECORD ARE ADMISSIBLE IN A PERSONAL INJURY ACTION WHEN (1) THE STATEMENTS ARE GERMANE TO DIAGNOSIS AND TREATMENT AND (2) THE STATEMENTS CAN BE ATTRIBUTED TO THE PLAINTIFF (SECOND DEPT).

The Second Department, affirming the denial of plaintiff’s summary judgment motion, in a full-fledged opinion by Justice Connolly, determined that hearsay statements attributed to plaintiff in a medical record were admissible and created a question fact in this Labor Law 240(1) ladder-fall case. Plaintiff alleged he was knocked off an A-frame ladder by a piece of sheetrock. However, the medical record indicated he was on a ladder lifting sheetrock when he felt a pull in his lower back and shoulder. The opinion is comprehensive and offers guidance to the admissibility of hearsay statements in a medical record:

The first page of the Precision Pain medical records contains, among other things, the following statement: “Accident: Patient was on a ladder, was picking up heavy [sheetrock] and felt a pull on his lower back and R shoulder.” On the third and fourth pages, the following three statements appear: “Incident patient described the competent medical cause of this injury? YES. “Are the patient’s complaints consistent with his/her history of injury? YES. “Is the patient’s history of the injury consistent with my objective findings? YES.” * * *

Because we find that the challenged statement was germane to medical diagnosis and treatment, we conclude that it was part of Khaimov’s [the doctor’s] regular business practice to record the challenged statement.

Nevertheless, this conclusion “satisfies only half the test” … . Each participant in the chain producing the challenged statement in the Precision Pain medical records, “from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . Firsthand accounts from the patient to the medical provider are presumptively reliable, as the patient has a clear motivation to report accurately … . However, “where the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … . * * *

Considering both the plaintiff’s deposition testimony and the statements on the third and fourth pages of the Precision Pain medical records, [defendant] sufficiently established that the plaintiff was the source of the information in the challenged statement … . Pillco v 160 Dikeman St., LLC, 2025 NY Slip Op 04495, Second Dept 7-30-25

Practice Point: Consult this opinion for a comprehensive discussion of the two-prong test for the admissibility of hearsay statements in a medical record.

 

,

IN THIS FORECLOSURE ACTION, THE REFEREE’S AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR ALL THE DOCUMENTS RELIED UPON; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a proper foundation was not laid for the documents supporting the referee’s report:

In computing the amount due, the referee relied upon an affidavit of merit from an authorized signer of PNC Bank, National Association (hereinafter PNC). Although the referee stated in his report that PNC was the plaintiff’s servicer, the documents in the record indicate that the plaintiff and PNC merged into one entity. Although the authorized signer stated in her affidavit that she was personally familiar with the record-keeping practices and procedures of PNC, her employer, she did not state that “she was personally familiar with the record-keeping practices and procedures” of the plaintiff … or that the records of any other entity, such as the plaintiff or a prior loan servicer, “were provided to [PNC] and incorporated into [PNC’s] own records, that [PNC] routinely relied upon such records in its business, or that she had personal knowledge of business practices and procedures of any other relevant entity” … . Consequently, the affidavit did not provide a proper foundation for the business records allegedly submitted with the affidavit. Further, although business records are included in the record, the referee stated that the documents submitted by the plaintiff were the authorized signer’s affidavit “and annexed exhibit: copies of Mortgage and Note,” and the referee did not refer to the business records. National City Mtge. Co. v Wercberger, 2025 NY Slip Op 04488, Second Dept 7-30-25

Practice Point: Consult this decision for an example of common flaws in the evidentiary foundation for documents submitted in support of a referee’s report in a foreclosure proceeding.

 

,

CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE EXPLAINED (FOURTH DEPT).

The Fourth Department, affirming the convictions, explained the co-conspirator exception to the hearsay rule. A two-justice partial dissent argued there was insufficient evidence of defendant’s guilt of murder, attempted murder and assault as an accessory:

…[T]he court properly admitted in evidence the text messages sent by the female codefendant to defendant’s cell phone pursuant to the coconspirator exception to the hearsay rule. ” ‘A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule’ ” … . Such a declaration may be admitted only where the People have established a prima facie case of conspiracy ” ‘without recourse to the declarations [of that coconspirator]’ ” … . “The prima facie case of conspiracy does not need to be established before the coconspirator’s statements are admitted in evidence, so long as ‘the People independently establish a conspiracy by the close of their case’ ” … . People v Brown, 2025 NY Slip Op 04331, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into the application of the co-conspirator exception to the hearsay rule.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy