You are here: / Evidence
,

PROOF OF A REGULAR SNOW REMOVAL ROUTINE IS NOT ENOUGH TO DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION OF THE SIDEWALK AT THE TIME OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant lessee (E & Z) failed to demonstrate it did not have actual or constructive notice of the alleged ice and snow on the sidewalk in this slip and fall action. Once again, it was not enough to offer proof of routine snow removal procedures as opposed to specific evidence inspection or cleaning close in time to the fall:

… [T]here was no statute or ordinance which imposed tort liability on E & Z for the failure to maintain the sidewalk abutting the subject property. However, E & Z’s principal, Hikmatullah Rasul, testified at his deposition that E & Z was required to remove snow and ice from the sidewalk outside the subject property to the curb on both the Jamaica Avenue side and the 104th Street side. Rasul explained that when it snowed either he, his brother, or a restaurant employee would shovel snow, break up any ice, and apply salt. E & Z did not clean at the bottom of the train staircase as that was not its property.

In support of its motion for summary judgment, E & Z failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it by demonstrating that it was free from negligence … . Specifically, E & Z failed to eliminate triable issues of fact as to whether it undertook snow and ice removal efforts to clear the sidewalk on the night of the plaintiff’s fall, or whether any snow and ice removal efforts undertaken by it created or exacerbated the icy condition which allegedly caused the plaintiff’s fall … . Since E & Z failed to establish its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied E & Z’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Zamora v David Caccavo, LLC, 2021 NY Slip Op 00329, Second Dept 1-20-21

 

, ,

THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED AND SHOULD NOT HAVE BEEN CONFIRMED; ALTHOUGH DEFENDANTS DEFAULTED, THE REFEREE’S REPORT FUNCTIONS AS AN INQUEST ON DAMAGES WHICH THE DEFENDANTS CAN CONTEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because it was based upon business records that were not produced. The court noted that the fact that defendants had defaulted did not preclude them from contesting the amount owed:

… [T]he referee’s report should not have been confirmed because it was based upon unproduced business records … . The fact that the defendants defaulted in appearing did not mean that they were precluded from contesting the amount owed … . The referee’s report served the function of an inquest on damages, which must be based upon admissible evidence … . Wilmington Sav. Fund Socy., FSB v Moriarty-Gentile, 2021 NY Slip Op 00328, Second Dept 1-20-21

 

,

THE AFFIDAVITS SUBMITTED TO PROVE DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION WERE NOT BASED UPON PERSONAL KNOWLEDGE AND DID NOT ATTACH THE BUSINESS RECORDS RELIED UPON (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank did not submit admissible proof of defendants’ default:

“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon” … . Here, neither Joanne Orelli, a senior vice president of Flushing Bank, who verified the complaint, nor Mark Levin, the managing member of the plaintiff, who submitted an affidavit in support of the motion, stated that they had personal knowledge of the default. Moreover, to the extent their knowledge was based on their review of business records, they did not identify what records they relied on and did not attach them to the verified complaint or the affidavit … . Flatbush Two, LLC v Morales, 2021 NY Slip Op 00294, Second Dept 1-20-21

 

,

BECAUSE THERE WAS NO PROOF WHEN THE STAIRWAY IN THIS SLIP AND FALL CASE WAS CONSTRUCTED, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE BUILDING CODE PROVISION; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendant’s judgment after trial in this slip and fall case, determined the jury should not have been instructed to consider a building code provision because there was not proof when the stairway was constructed:

We agree with the defendant that the Supreme Court should not have charged the jury with regard to certain provisions of the 1925 Administrative Code of the City of New York (hereinafter the Building Code). The plaintiffs failed to submit sufficient proof to establish when the subject stairway was constructed. Thus, the plaintiffs failed to establish which version of the Building Code was applicable … .

Since a general verdict sheet was submitted to the jury, we cannot ascertain whether the jury’s verdict was predicated on a finding that the defendant violated the 1925 Building Code. Accordingly, the judgment must be reversed, and the matter remitted to the Supreme Court, Kings County, for a new trial on the issue of liability. Coreano v 983 Tenants Corp., 2021 NY Slip Op 00290, Second Dept 1-20-21

 

,

THE SUPPRESSION HEARING SHOULD NOT HAVE BEEN REOPENED; EVIDENCE OF UNCHARGED DRUG TRAFFICKING AS BACKGROUND FOR POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN ADMITTED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the suppression hearing should not have been reopened and (Molineux) evidence of uncharged drug-trafficking as background for possession of a weapon was too prejudicial:

The People’s Voluntary Disclosure Form notified defendant of the People’s intent to offer evidence of two statements he made while in custody following his arrest. In each instance, he was overheard urging a codefendant, who was his girlfriend, to tell the authorities that she was the possessor of a pistol recovered at the apartment where they were arrested. The first such statement was overheard by a special agent while defendant and the codefendant were in a holding cell. The second such statement was overheard by a detective while defendant and the codefendant were being driven to Central Booking.

At the initial Huntley hearing, the People called the special agent as a witness, but not the detective. The court ruled that the statement overheard by the special agent was admissible. No evidence was presented regarding the later statement overheard by the detective.

At a pretrial conference 16 months later, the prosecutor, explaining that the special agent was unavailable to testify because he had been transferred to an assignment outside the United States, asked the court to reopen the suppression hearing to allow the detective to testify to the statement he allegedly overheard. …

The court should not have reopened the hearing. The prosecution had a full and fair opportunity to present both of its witnesses and seek admission of both statements, but chose not to … , and the court had issued a ruling on the suppression motion … . This is not a case in which the omission of evidence at the initial hearing resulted from “a flaw in the proceeding” … . People v Nunez, 2021 NY Slip Op 00266, First Dept 1-19-21

 

, ,

THE EVIDENCE DID NOT SUPPORT THE GROUND FOR SUPPRESSION OF A SHOTGUN AND SHOTGUN SHELL RELIED ON BY COUNTY COURT; ALTHOUGH THE PEOPLE RAISED OTHER GROUNDS FOR JUSTIFICATION OF THE SEARCH AND SEIZURE, THOSE GROUNDS CANNOT BE ADDRESSED ON APPEAL BECAUSE COUNTY COURT DID NOT RULE ON THEM; MATTER REMITTED FOR CONSIDERATION OF THE PEOPLE’S OTHER ARGUMENTS (THIRD DEPT).

The Third Department determined the motion to suppress the shotgun and shotgun shell should have been granted on the ground raised on appeal. The People raised other grounds for suppression on appeal. The Third Department noted it cannot consider grounds for suppression on which the motion court did not rule on and remitted the matter for consideration of the other grounds for suppression raised by the People:

County Court found that the shotgun shell was discovered on defendant’s person during a limited protective pat-down search of defendant, which then provided law enforcement with probable cause to search the vehicle. However, this finding is not supported by the evidence presented at the suppression hearing, which demonstrated that the search of the vehicle actually preceded the search of defendant’s person and discovery of the shotgun shell. Although the People raised other arguments that could potentially justify the search of the vehicle and defendant’s person, this Court is statutorily restricted from considering issues not ruled upon by the trial court … .  We are therefore constrained to reverse the denial of defendant’s suppression motion. Accordingly, we will hold the appeal in abeyance and remit the matter to County Court to review the evidence presented at the suppression hearing, consider any alternate bases to suppress the physical evidence and render a new determination on defendant’s motion … . People v Kabia, 2021 NY Slip Op 00209, Third Dept 1-14-21

 

,

THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON INADMISSBILE HEARSAY AND THEREFORE SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed because it was based on inadmissible hearsay:

… [T]he affidavit of an assistant vice president of Rushmore Loan Management Services, LLC, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records he purportedly relied upon in making his calculations” … . Thus, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Accordingly, the Supreme Court should have denied the plaintiff’s motion to confirm the referee’s report … . Wilmington Sav. Fund Socy., FSB v Isom, 2021 NY Slip Op 00203, Second Dept 1-13-21

 

,

THE JURY WAS ERRONEOUSLY ALLOWED TO CONSIDER A THEORY OF BURGLARY WITH WHICH DEFENDANT WAS NOT CHARGED; BURGLARY CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s burglary convictions, determined the jury should not have been instructed to consider a theory of burglary (intent to assault versus intent to damage property) with which defendant was not charged:

A defendant has a right to be tried only for the crimes charged in the indictment … . “Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories” … . This rule applies in cases charging burglary, where it is not normally necessary for the People to demonstrate the exact crime which the defendant intended to commit while inside the building … .

Here, we agree with the defendant that the People limited their theory of burglary in their bill of particulars, which incorporated the allegations of the criminal complaint, to the intent to commit property damage and/or theft … . Therefore, the Supreme Court erred in permitting the prosecutor to argue, during summation, and in permitting the jury to consider, the uncharged theory that the defendant intended to assault the complainant … . People v Petersen, 2021 NY Slip Op 00193, Second Dept 1-13-21

 

, , ,

THE EVIDENCE DID NOT SUPPORT FINDING THE APPELLANT IN THIS JUVENILE DELINQUENCY PROCEEDING MADE A TERRORISTIC THREAT IN VIOLATION OF PENAL LAW 490.20; THERE WAS NO EVIDENCE OF AN INTENT TO INTIMIDATE THE CIVILIAN POPULATION (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence in this juvenile delinquency proceeding did not support finding the appellant student made a terroristic threat. The issue was not preserved but the appeal was considered in the interest of justice:

The student testified that one morning during class some of the students were joking and talking when the appellant and another student got into “a little argument,” and the appellant told that student that he “[was] going to be 14 years old, chopped up in somebody’s backyard, and he’s going to get a white person to shoot up the school.” * * *

“Penal Law article 490 was enacted shortly after the attacks on September 11, 2001, to ensure that terrorists are prosecuted and punished in state courts with appropriate severity” … . “In construing the statute, courts must be cognizant that ‘the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act'” … . As relevant here, Penal Law § 490.20 (1) provides that a person is guilty of making a terroristic threat when “with intent to intimidate . . . a civilian population . . . he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense.” We agree with the appellant that the presentment agency presented no evidence of an intent by the appellant to intimidate a civilian population with his statements … . Matter of Jaydin R., 2021 NY Slip Op 00176, Second Dept 1-13-21

 

, ,

PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS NOT SPECULATIVE OR CONCLUSORY; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DENTAL MALPRACTICE AND LACK OF INFORMED CONSENT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this dental malpractice and lack of informed consent should not have been granted. Plaintiff’s expert’s affidavits raised questions of fact:

“In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record” … . In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party … , and “all reasonable inferences must be resolved in favor of the nonmoving party” … . * * *

Summary judgment is not appropriate in a dental malpractice action where, as here, the parties adduce conflicting medical expert opinions, since conflicting expert opinions raise credibility issues which are to be resolved by the factfinder … . …

“[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence” … . “To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Many v Lossef, 2021 NY Slip Op 00165, Second Dept 1-13-21

 

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