You are here: / Evidence
, ,

THE SECOND MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED; SUCCESSIVE SUMMARY JUDGMENT MOTIONS ARE GENERALLY PROHIBITED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the prohibition against successive summary judgment motions applied and the second motion should have been denied:

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” … . “Evidence is not newly discovered simply because it was not submitted on the previous motion” … . “Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means” … . “Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment” … . Wells Fargo Bank, NA v Carpenter, 2020 NY Slip Op 07426, Second Dept 12-9-20

 

, , , ,

THE NEGLIGENT SUPERVISION ACTION AGAINST PHYSICAL-THERAPY DEFENDANTS SOUNDED IN MEDICAL MALPRACTICE REQUIRING EXPERT OPINION EVIDENCE; THE DOCTRINE OF OSTENSIBLE OR APPARENT AGENCY RAISED A QUESTION OF FACT WHETHER THE PHYSICAL-THERAPY FACILITY WAS VICARIOUSLY LIABLE FOR THE ALLEGED NEGLIGENCE OF THE THERAPIST, WHO WAS AN INDEPENDENT CONTRACTOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) the negligent supervision cause of action against defendants’ physical therapy services sounded in medical malpractice and therefore required expert opinion evidence; and (2) the defendant physical therapist (Gonikman) was an independent contractor but the doctrine of ostensible or apparent agency raised a question of fact about the facility’s (KCM’s) vicarious liability for Gonikman’s alleged negligence. Plaintiff’s infant daughter, who was receiving physical therapy, fell off a scooter and was injured:

Though a medical facility can be held liable for the negligence or malpractice of its employees, it is not generally held liable when the treatment is provided by an independent contractor, even if the facility affiliates itself with that independent contractor … . However, the facility may be held vicariously liable under a theory of apparent or ostensible agency by estoppel … . “In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal” … . “The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent” … . “Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent’s skill” … . …

… [S]ince the conduct at issue in the complaint stems from Gonikman’s generalized treatment plan and alleged negligent supervision of the infant daughter during her physical therapy session, the allegation sounds in medical malpractice, not ordinary negligence, because Gonikman’s duty towards the infant daughter derived from the physical therapist-patient relationship … . In support of his cross motion, Gonikman merely submitted a conclusory statement that his therapy plan of activities was consistent with the accepted standard of care, and he failed to submit an expert’s affidavit to establish that he did not deviate from the accepted standard of care for physical therapy … . Weiszberger v KCM Therapy, 2020 NY Slip Op 07425, Second Dept 12-9-20

 

,

DEFENDANTS FAILED TO DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO SLIP AND FALL; PLAINTIFF ADEQUATELY IDENTIFIED THE CAUSE OF HER FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted because they failed to establish they lacked actual or constructive notice of the alleged hump in a runner over which plaintiff tripped. The First Department noted that plaintiff had adequately identified the cause of her fall:

Defendants’ failure to establish prima facie entitlement to judgment as a matter of law requires the denial of the motion regardless of the strength of plaintiff’s opposition … . They failed to offer evidence of their inspection routines, including evidence regarding the last time the accident site was inspected … .

In any event, plaintiff raises factual issues. Although plaintiff did not actually observe what caused her to trip and fall over an inclement weather runner in the lobby of defendants’ building, her evidence, together with reasonable inferences drawn therefrom, including that she felt the toebox of her right foot slide under what felt to be a hump in the runner, causing her foot to get caught, and her to lose her balance and fall, sufficiently identified the cause of her fall … . Mandel v 340 Owners Corp., 2020 NY Slip Op 07316, First Dept 12-8-20

 

,

ALL BUT ONE COUNT OF THE INDICTMENT WAS RENDERED DUPLICITOUS BY THE CHILD-VICTIM’S GRAND JURY TESTIMONY IN THIS SEXUAL ABUSE CASE; THE SIMILAR UNCHARGED OFFENSES SHOULD NOT HAVE BEEN ADMITTED UNDER MOLINEUX AS BACKGROUND EVIDENCE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial determined: (1) the duplicitous counts of the indictment should have been dismissed pre-trial, not post-trial; (2) the evidence of similar uncharged offenses under Molineux should not have been admitted as “background evidence.” The defendant was charged with sexual abuse of a child. With the exception of one incident (count 1), the child was not able to pinpoint when the abuse happened. All but count 1 were rendered duplicitous by the grand jury testimony (indicating that more than one offense occurred in the one-month time-frame of the indictment counts). In addition, the similar uncharged allegations were too prejudicial to be allowed under Molineux:

“[U]nder . . . Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions” … . The proffered Molineux evidence was not necessary to resolve any ambiguity as to count 1, and thus was beyond the Molineux exception for background information as provided by County Court in its ruling … . If the court had dismissed counts 2 through 13 as duplicitous prior to the People’s presentation of their case-in-chief, that likely would have changed the court’s calculus as to the admission of the victim’s testimony regarding uncharged crimes — including whether to allow testimony regarding the incidents referred to in those dismissed counts, which would no longer be direct evidence of charged crimes. Even if the testimony regarding the uncharged criminal conduct was permissible for a nonpropensity purpose, its prejudicial nature outweighed the minimal probative value that may be attributed to it as to count 1 … . While in some circumstances the undue prejudice resulting from Molineux evidence may be mitigated by a limiting instruction, here such an instruction was only provided once in the final charge to the jury, and not at the time of the victim’s testimony, despite County Court having indicated that those instructions would be provided at the time that such evidence was admitted … . People v Holtslander, 2020 NY Slip Op 07250, Third Dept 12-3-20

 

,

IT WAS ERROR TO ALLOW IN EVIDENCE PHOTOGRAPHS OF A BAYONET WHICH WAS NOT THE WEAPON USED IN THE STABBING; THE MAJORITY FOUND THE ERROR HARMLESS, THE DISSENT DISAGREED (FIRST DEPT).

The First Department, over an extensive dissent, determined admitting in evidence photographs of a bayonet which was not used in the stabbing was harmless error. The dissent argued the error was not harmless in this first degree manslaughter case:

The court should not have permitted the People to introduce photographs taken by the police of an M9 bayonet that was found in a collection of knives in defendant’s bedroom, but was concededly not the weapon used in the crime. The photographs were irrelevant as demonstrative evidence … , because nothing in the record provided a basis for the court to conclude that the bayonet in the photographs resembled the weapon that defendant used to stab the victim … . Even assuming that defendant’s statement supported the inference that the unrecovered weapon used in the crime was also a bayonet, and that it came from defendant’s collection, there was no evidence that all of defendant’s bayonets, which could have come from different eras and armed forces, looked like M9s.

FROM THE DISSENT:

… [T]he People told the jury in its summation that a bayonet knife is designed to kill people; that killing people is the only use for a bayonet knife; that a bayonet knife is not used to open things; and that the army and military gives out weapons, like bayonet knives, to kill people. None of these statements were elicited during the testimony of any witness or made in response to defense counsel’s summation, nor could they have been reasonably inferred from the evidence. People v Guevara, 2020 NY Slip Op 07297, First Dept 12-3-20

 

, ,

THE JURY WAS PROPERLY INSTRUCTED ON THE RES IPSA LOQUITUR DOCTRINE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department determined the jury was properly instructed on the res ipsa loquitur doctrine in this medical malpractice case. Here plaintiffs presented evidence nerve damage would not have occurred absent negligence. The plaintiff’s verdict was upheld:

We agree with the Supreme Court’s determination to charge the jury with respect to res ipsa loquitur. “Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event” … . “‘Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it'” … . Res ipsa loquitur “‘derives from the understanding that some events ordinarily do not occur in the absence of negligence'” … . “‘In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff’s part contributed to the happening of the event. Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence'” … . “Moreover, expert testimony may be properly used to help the jury ‘bridge the gap’ between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does” … .

Here, the plaintiffs presented expert testimony that, in a first time fundoplication procedure like the plaintiff’s, injury to the vagus nerves should not occur if the surgeon adheres to the accepted standard of care and follows the proper surgical sequence. While the defendants presented evidence that gastroparesis can be idiopathic, “a plaintiff need not conclusively eliminate the possibility of all other causes of the injury to rely on res ipsa loquitur” … . Smith v Sommer, 2020 NY Slip Op 07235, Second Dept 12-2-20

 

,

THE CHARGES AGAINST DEFENDANT STEMMED FROM HIS STRIKING AND SERIOUSLY INJURING AN EIGHT-POUND DOG; THERE WAS NO NEED TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE; INDICTMENT REINSTATED OVER A DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court on the People’s appeal, over an extensive dissent, determined the grand jury proceedings were not defective due to the prosecutor’s failure to instruct the grand jury on the justification defense. The charges against the defendant stemmed from his striking and severely injuring a dog. The Second Department held a reasonable view of the evidence did not warrant the justification instruction:

“‘[A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . “The failure to charge justification constitutes reversible error only when the defense is ‘supported by a reasonable view of the evidence—not by any view of the evidence, however artificial or irrational'” … . …

There is no reasonable view of the evidence that forcefully striking and injuring the approximate eight-pound terrier poodle in the manner undertaken by the defendant, who was approximately 6 feet tall and weighed 200 pounds, was necessary as an emergency measure to avoid, at most, a bite by this small animal through denim pants. People v Jimenez, 2020 NY Slip Op 07223, Second Dept 12-2-20

 

, ,

UNDER THE CIRCUMSTANCES, SUPREME COURT SHOULD HAVE GRANTED THE DEFENSE AND PROSECUTION’S JOINT REQUEST TO HAVE THE DEFENDANT’S COMPETENCE TO STAND TRIAL EVALUATED; ONCE A DEFENDANT IS DEEMED COMPETENT TO STAND TRIAL, THE DECISION WHETHER TO PRESENT AN INSANITY DEFENSE IS THE DEFENDANT’S, NOT THE COURT’S, TO MAKE (SECOND DEPT).

The Second Department, reversing the convictions, determined: (1) the trial judge should not have rejected the request by both defense counsel and the prosecutor to have the defendant’s mental health and fitness for trial evaluated; and (2) once a defendant is found competent to stand trial the decision whether to present an insanity defense is the defendant’s alone. Here defense counsel was ordered by the judge to present an insanity defense, over defendant’s objection:

… [W]hen confronted with evidence that the defendant was not taking his required medication and was not able to communicate rationally with his attorney, the Supreme Court should have granted the joint applications of the People and the defense to have the defendant examined pursuant to CPL 730.30(1) to determine his fitness to proceed … . …

… [A] defendant found competent to stand trial has the ultimate authority, even over counsel’s objection, to reject the use of a psychiatric defense … . Thus, once the Supreme Court determined the defendant to be competent to stand trial, it should not have interfered with that authority by “order[ing]” defense counsel, over the defendant’s objection, to present an insanity defense. People v Bellucci, 2020 NY Slip Op 07215, Second Dept 12-2-20

 

,

THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank (Wilmington) did not demonstrate defendants’ default in this foreclosure action and the bank’s motion for summary judgment should not have been granted:

Wilmington failed to establish, prima facie, its entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendants’ default in payment … . In support of the motion, Wilmington submitted … copies of the note and the mortgage, and the affidavit of Angela Farmer, a vice president of Rushmore Loan Management Services, LLC (hereinafter Rushmore), the servicer of the loan. Based on her review of business records in the possession of Rushmore, including records created by Ditech [the original plaintiff, note was transferred to Wilmington], Farmer averred that the defendants defaulted in payment in June 2013. While Farmer established that she was familiar with Ditech’s recordkeeping practices and procedures, no payment records were proffered with the motion. The only business records annexed and incorporated in the affidavit with regard to the default were two notices of default both dated October 24, 2013 … . “‘[W]hile a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay'” … . “[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Wilmington Sav. Fund, FSB v Peters, 020 NY Slip Op 07248, Second Dept 12-2-20

 

,

THE BANK’S DOCUMENTARY EVIDENCE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff bank did not demonstrate standing to bring the foreclosure action and the bank’s motion for summary judgment was properly denied:

“Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . “‘[E]vidence of the contents of business records is admissible only where the records themselves are introduced'” … . Without submission of the business records, a witness’s testimony as to the contents of the records is inadmissible hearsay (see CPLR 4518[a] … ). Here, Herberg’s [bank’s vice president’s] assertion, in effect, that the plaintiff was the holder of the note when it commenced the action appears to be based upon unproduced business records or upon confirmation of information from some other unproduced source, and is therefore not probative on the issue of the plaintiff’s standing … . Wells Fargo Bank, N.A. v Atedgi, 2020 NY Slip Op 07247, Second Dept 12-2-20

 

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