Evidence – Page 174 – New York Appellate Digest

Account Stated, Banking Law, Contract Law, Evidence

THE BANK DID NOT PRESENT EVIDENCE THE CREDIT CARD BILLING STATEMENTS AND THE AMENDMENTS TO THE CREDIT CARD AGREEMENT WERE MAILED TO THE DEFENDANT; THE BANK’S MOTION FOR SUMMARY JUDGMENT ON THE BREACH OF CONTRACT AND ACCOUNT STATED CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment on the breach of contract and account stated causes of action should not have been granted. The bank alleged plaintiff had not paid sums due on her credit card account. But the bank failed to demonstrate the billings statements and the amendments to the credit care agreement were mailed to the defendant:

… [T]he Stephenson affidavit laid a proper foundation for admission as business records of the amendments to the credit card agreement and the monthly billing statements (see CPLR 4518[a] …). However, no evidence that those documents were mailed to the defendant was provided. Stephenson did not attest to [*2]personal knowledge of the mailings or of a standard office practice and procedure designed to ensure that items were properly addressed and mailed, and the business records did not evince the mailing of the account documents … .

Absent evidence that the billing statements were mailed to the defendant, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the cause of action to recover on an account stated … . Similarly, absent evidence that the amendments to the credit card agreement were mailed to the defendant, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the breach of contract cause of action … . Bank of Am., N.A. v Ball, 2020 NY Slip Op 06740, Second Dept 11-18-20

November 18, 2020

Evidence, Negligence

THE CRACK OVER WHICH INFANT PLAINTIFF ALLEGEDLY TRIPPED WAS DEEMED TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department determined the crack in the concrete schoolyard where infant plaintiff allegedly tripped and fell was trivial as a matter of law. Infant plaintiff was running a sprint in an after-school program when he fell. The court noted that plaintiffs raised a “feigned issue of fact” in opposition to the defendants’ motion for summary judgment which tried to avoid the consequences of deposition testimony:

… [T]he defendants established, prima facie, that the alleged defective condition was trivial as a matter of law and therefore nonactionable … . The defendants’ expert inspected the crack and determined that it was “from 1/8 of an inch to 7/16 of an inch in width,” and the pavement “on each side of the crack[ ] . . . contained no vertical height differential.” Further, the infant plaintiff’s General Municipal Law § 50-h hearing and deposition testimony established that the accident occurred during daylight hours on a clear day with nothing obstructing his view.

In opposition to the defendants’ prima facie showing that the defect was trivial, the plaintiffs failed to raise a triable issue of fact. The affidavit of the infant plaintiff stating that “[t]he crack was wide enough that part of [his] right foot was able [to] go into it” “‘presented what appears to be a feigned issue of fact, designed to avoid the consequences of [his] earlier deposition testimony'” … that his right “heel” stepped “on” the crack, and his General Municipal Law § 50-h hearing testimony that his right “toes” “stopped really hard” on the crack and the crack “wasn’t wide.” Moreover, the affidavit of the plaintiffs’ expert was speculative, unsubstantiated, and conclusory, as the expert neither provided a description of the crack nor took any measurements of it … . K.A. v City of New York, 2020 NY Slip Op 06737, Second Dept 11-18-20

November 18, 2020

Civil Procedure, Evidence, Foreclosure

THE DISCONTINUANCE OF THE 2008 FORECLOSURE ACTION DID NOT DE-ACCELERATE THE DEBT SO THE STATUTE OF LIMITATIONS KEPT RUNNING, RENDERING THE INSTANT ACTION UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action should have been dismissed as untimely. The debt was accelerated with the first foreclosure action was commenced in 2008, starting the running of the six-year statute of limitations. The discontinuing of the that action did not revoke the acceleration:

“[A] lender’s mere act of discontinuing an action, without more, does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt” … .

None of the other facts relied upon by the plaintiff establish that the 2008 acceleration of the loan balance was affirmatively revoked. “[D]e-acceleration notices must . . . be clear and unambiguous to be valid and enforceable” … . While the plaintiff points to the fact that the defendant purportedly received billing statements after the first action was discontinued and that the second complaint alleged a different date of default, these facts do not establish that a clear and unambiguous notice of revocation of the acceleration was given to the defendant. Wells Fargo Bank, N.A. v Islam, 2020 NY Slip Op 06823, Second Dept 11-18-20

November 18, 2020

Attorneys, Criminal Law, Evidence

DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT RAISED A QUESTION WHETHER DEFENSE COUNSEL SHOULD HAVE INFORMED HIM OF AN AFFIRMATIVE DEFENSE TO THE ROBBERY FIRST CHARGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea based on ineffective assistance of counsel. Defendant raised a question whether he should have been informed about the an affirmative defense to robbery first degree, i.e., that the object displayed during the crime was not a loaded, operable weapon:

A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty … . That requirement is met under the New York State Constitution when defense counsel provides “meaningful representation” … . In cases asserting ineffective assistance of counsel in the context of a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial, or that the outcome of the proceedings would have been different” … .

It is an affirmative defense to a charge of robbery in the first degree under Penal Law § 160.15(4) that the object displayed during the course of the crime “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” … . The defendant’s averments in his affidavit in support of his motion, along with the PSR, were sufficient to warrant a hearing on the issue of whether his counsel was ineffective for failing to advise him of this potential affirmative defense to the charges to which he pleaded guilty … . People v Flinn, 2020 NY Slip Op 06809, Second Dept 11-18-20

November 18, 2020

Appeals, Criminal Law, Evidence

THE CONVICTION FOR GRAND LARCENY BY FALSE REPRESENTATION WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; THERE WAS NO EVIDENCE DEFENDANT RECEIVED ADDITIONAL FUNDS AFTER MAKING THE ALLEGED FALSE REPRESENTATION AND NO EVIDENCE DEFENDANT INTENDED TO APPROPRIATE THE FUNDS AT THE TIME THE ALLEGED FALSE REPRESENTATION WAS MADE (SECOND DEPT).

The Second Department found defendant’s grand-larceny-by-false-representation conviction was against the weight of the evidence. There was no evidence defendant received any additional money after making the alleged false representation and no evidence defendant intended to appropriate the funds at the time the alleged false representation was made:

… [T]he complainant testified that she was unable to send large amounts of money to Peru and had asked the defendant to assist her with sending money to her family in Peru. She testified that on November 3, 2014, she gave the defendant $11,000 to $12,000 to transfer to her family in Peru and approximately $40 for his assistance. She testified that she accompanied the defendant to four different money transfer agencies. However, according to the complainant’s testimony, she learned on November 4, 2014, that the money transfers did not go through due to an error she had made in the recipient’s name. The complainant testified that the defendant was able to fix two of the transactions over the phone and agreed to meet her the next day, November 5, 2014, to go to the other two money transfer agencies (hereinafter the subject money transfer agencies) to correct the mistake in the recipient’s name. She testified that the defendant did not meet her on November 5, 2014, she subsequently learned that her family never received the funds from the subject money transfer agencies, and the defendant had withdrawn the money without her permission. Business records from the subject money transfer agencies indicated that the transactions had been cancelled with the money refunded. Representatives from the subject money transfer agencies testified that their policies required cancellations to be done in person by the person who initiated the transaction.

On appeal, the defendant contends that the evidence was legally insufficient to establish that he obtained the subject funds by means of a false representation and that he had the requisite intent not to perform at the time he made the representation that he would meet the complainant and help her fix the recipient’s name on the transactions at the subject money transfer agencies. People v Bravo, 2020 NY Slip Op 06804, Second Dept 11-18-20

November 18, 2020

Contract Law, Evidence, Family Law, Judges

THE CUSTODY ARRANGEMENTS SET FORTH IN A SETTLEMENT AGREEMENT SHOULD NOT HAVE BEEN MODIFIED IN THE ABSENCE OF A HEARING AND FAMILY COURT SHOULD NOT HAVE RELIED ON INADMISSIBLE EVIDENCE UNTESTED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the custody arrangements set forth in the settlement agreement should not have been modified in the absence of a hearing and the modification should not have been based upon inadmissible evidence not tested by either party:

… [T]he Supreme Court should not have granted, without a hearing, that branch of the defendant’s motion which was to modify the terms of the parties’ stipulation of settlement. Custody determinations should generally be made only after a full and plenary hearing … . While the general right to a hearing in custody and visitation cases is not absolute, where “facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,” a hearing is required … . Here, the record shows that there were disputed factual issues regarding the child’s best interests, such that a hearing on the defendant’s petition was necessary … .

In addition, decisions regarding child custody and parental access should be based on admissible evidence … . Here, in making its determination, the Supreme Court improperly relied solely on statements and conclusions of witnesses whose opinions and credibility were untested by either party … . Palazzola v Palazzola, 2020 NY Slip Op 06801, Second Dept 11-18-20

November 18, 2020

Civil Procedure, Evidence, Negligence

DEFENDANTS’ MEDICAL EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY BASED UPON THE MEDICAL RECORDS AND MATERIAL IN EVIDENCE DESPITE NOT HAVING PERSONAL KNOWLEDGE OF THE INJURIES; THE EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY ABOUT CAUSATION EVEN THOUGH THE ISSUE WAS NOT ADDRESSED IN THE EXPERT REPORT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to set aside the verdict in this rear-end collision case should have been granted because defendants’ expert was precluded from testifying:

“[T]o be admissible, opinion evidence must be based on,” inter alia, (1) “personal knowledge of the facts upon which the opinion rests,” or, (2) “where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial” … . Here, we disagree with the Supreme Court’s determination to preclude the defendants’ medical expert, Edward Weiland, from testifying regarding records and testimony that were in evidence and from testifying on the issue of causation. Contrary to the plaintiff’s contention, Weiland should have been permitted to testify regarding the records and testimony in evidence even if he lacked personal knowledge as to the specific injuries addressed therein … . Furthermore, Weiland should have been permitted to testify on the issue of causation, despite not having addressed this issue in his expert report, because “the issue of causation was implicit on the question of damages” … . The court’s errors in limiting Weiland’s testimony were not harmless … . Therefore, the court should have granted the defendants’ motion, in effect, to set aside the jury verdict, to vacate the judgment entered thereon, and for a new trial on the issue of damages. Gubitosi v Hyppolite, 2020 NY Slip Op 06761, Second Dept 11-18-20

November 18, 2020

Civil Procedure, Evidence, Foreclosure

THE BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION WAS NOT SUPPORTED BY THE RECORDS ALLEGEDLY REVIEWED BY THE AFFIANT; THEREFORE THE EVIDENCE WAS HEARSAY AND THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted because the evidence of standing to bring the action was deficient:

… [T]he plaintiff failed to meet its prima facie burden of establishing that it had standing to commence the action. In support of its motion, the plaintiff relied on the affidavit of Elizabeth Gonzales, an employee of the loan servicer. Gonzales averred that the plaintiff had been in possession of the note, which was endorsed in blank, since July 1, 2007, prior to the commencement of the action. Gonzales indicated that she had personal knowledge of the assertions set forth in her affidavit based upon, inter alia, her review of various business records. However, since the plaintiff failed to attach the business records upon which Gonzales relied in her affidavit, her assertions based upon those records constituted inadmissible hearsay … . Moreover, the plaintiff did not attach a copy of the note to the complaint when commencing the action … . Deutsche Bank Natl. Trust Co. v Gulati, 2020 NY Slip Op 06754, Second Dept 11-18-20

November 18, 2020

Criminal Law, Evidence

DEFENDANT’S PRESENCE NEAR A SUSPECTED DRUG HOUSE IN A HIGH CRIME AREA GAVE RISE TO ONLY A GROUNDED SUSPICION; THE ATTEMPT TO STOP THE CAR IN WHICH DEFENDANT WAS A PASSENGER WAS NOT JUSTIFIED BY REASONABLE SUSPICION; THE MOTION TO SUPPRESS THE SEIZED EVIDENCE AND THE SHOWUP IDENTIFICATION SHOULD HAVE BEEN GRANTED; DEFENDANT’S GUILTY PLEA, WHICH ENCOMPASSED AN UNRELATED OFFENSE, WAS VACATED IN ITS ENTIRETY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court’s denial of a suppression motion and vacating defendant’s guilty plea, determined defendant’s presence near a suspected drug house gave rise only to a founded suspicion which would justify an approach and a common inquiry by the police. Instead, the police attempted to stop the car in which defendant was a passenger and arrested defendant after he ran into his residence. Cocaine and heroin were seized from the defendant. The Fourth Department held that all the seized evidence and the showup identification should have been suppressed. In addition, the court vacated the entire guilty plea which encompassed an unrelated offense:

A detective who could see only the front area of the residence to be searched observed multiple people whom he suspected to be customers arrive at and depart from the back area of the residence through the driveway. The detective also twice saw defendant come to the front yard of the residence to smoke a cigarette then return to the back area. Defendant eventually left the residence as a passenger in a vehicle. The detective conveyed the vehicle’s plate number and direction of travel to an officer in a “take down” car, who followed defendant and attempted to effect a stop of the vehicle by activating the patrol vehicle’s lights. The vehicle in which defendant was a passenger slowed and defendant jumped out and fled on foot into his own residence, where he was arrested soon after and found to be in possession of cocaine and heroin. …

Based on defendant’s proximity to a suspected drug house and his otherwise innocuous behavior … , the officer had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted him to approach defendant and make a common-law inquiry … . The mere fact that defendant was located in an alleged high crime area “does not supply that requisite reasonable suspicion, in the absence of ‘other objective indicia of criminality’ . . . , and no such evidence was presented at the suppression hearing” … . …

… [A]lthough defendant’s conviction of a second count of criminal possession of a controlled substance in the fifth degree arises from a separate incident, his plea of guilty “was expressly conditioned on the negotiated agreement that [he] would receive concurrent sentences on the separate counts to which he pleaded,” and thus the plea must be vacated in its entirety … . People v Martinez-Gonzalez, 2020 NY Slip Op 06593, Fourth Dept 11-13-20

November 13, 2020

Civil Procedure, Evidence, Medicaid

A CRUCIAL DOCUMENT SUBMITTED TO PROVE THE AMOUNT OF A MEDICAID LIEN SHOULD NOT HAVE BEEN ADMITTED AS A BUSINESS RECORD; THE DOCUMENT WAS NOT CERTIFIED BY AN EMPLOYEE FAMILIAR WITH THE BUSINESS PRACTICES OF THE ENTITY WHICH PROVIDED THE DATA COLLECTED IN THE DOCUMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a crucial document needed to determine the amount of a Medicaid lien should not have been admitted as a business record pursuant to CPLR 4518 and 2307. The Department of Social Services (DSS) introduced a State Department of Health (SDOH) document, a claim detail report (CDR), which collected data provided by another entity (CSRA), but the certification was not by a person familiar with the business and record-keeping practices of CSRA:

DSS sought to lay the requisite foundation for admission of the CDR as a business record by way of the certification of an SDOH employee (see CPLR 2307, 4518 [c]). The certification stated, in relevant part, “that the annexed [CDR] is a true and accurate copy of the original [CDR], which was generated from data contained in the Adjudicated Claim File. The Adjudicated Claim File, a comprehensive computer data file, is created, maintained and transported in the form of magnetic media to the [SDOH] by CSRA, Inc. [(CSRA)], a fiscal intermediary which contracts with the [SDOH].” Thus, the certification clearly states that the data sought to be admitted in evidence via the CDR was “created” and “maintained” by CSRA, a third-party entity. The SDOH employee who certified the CDR did not, however, work for CSRA, i.e., the entrant of the information upon which the CDR is based. Further, although the certification stated that the CDR was “produced” in the regular course of SDOH’s business and that the data entries were “transported” to SDOH “at or about the time that such data [was] received and incorporated into the Adjudicated Claim File,” the SDOH employee did not establish that CSRA, as “entrant[,] was under a business duty to obtain and record the” data reflected in the Adjudicated Claim File … , or that he was familiar with the record-keeping practices of CSRA and that SDOH generally relied upon CSRA’s records … . At best, the certification demonstrated only that SDOH filed and retained the data created and maintained by CSRA, which fails to establish the requisite foundation … . Matter of Joseph M.W. (Blake), 2020 NY Slip Op 06583, Fourth Dept 11-13-20

November 13, 2020

THE BANK DID NOT PRESENT EVIDENCE THE CREDIT CARD BILLING STATEMENTS AND THE AMENDMENTS TO THE CREDIT CARD AGREEMENT WERE MAILED TO THE DEFENDANT; THE BANK’S MOTION FOR SUMMARY JUDGMENT ON THE BREACH OF CONTRACT AND ACCOUNT STATED CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

THE CRACK OVER WHICH INFANT PLAINTIFF ALLEGEDLY TRIPPED WAS DEEMED TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

THE DISCONTINUANCE OF THE 2008 FORECLOSURE ACTION DID NOT DE-ACCELERATE THE DEBT SO THE STATUTE OF LIMITATIONS KEPT RUNNING, RENDERING THE INSTANT ACTION UNTIMELY (SECOND DEPT).

DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT RAISED A QUESTION WHETHER DEFENSE COUNSEL SHOULD HAVE INFORMED HIM OF AN AFFIRMATIVE DEFENSE TO THE ROBBERY FIRST CHARGE (SECOND DEPT).

THE CUSTODY ARRANGEMENTS SET FORTH IN A SETTLEMENT AGREEMENT SHOULD NOT HAVE BEEN MODIFIED IN THE ABSENCE OF A HEARING AND FAMILY COURT SHOULD NOT HAVE RELIED ON INADMISSIBLE EVIDENCE UNTESTED BY THE PARTIES (SECOND DEPT).

THE BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION WAS NOT SUPPORTED BY THE RECORDS ALLEGEDLY REVIEWED BY THE AFFIANT; THEREFORE THE EVIDENCE WAS HEARSAY AND THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

A CRUCIAL DOCUMENT SUBMITTED TO PROVE THE AMOUNT OF A MEDICAID LIEN SHOULD NOT HAVE BEEN ADMITTED AS A BUSINESS RECORD; THE DOCUMENT WAS NOT CERTIFIED BY AN EMPLOYEE FAMILIAR WITH THE BUSINESS PRACTICES OF THE ENTITY WHICH PROVIDED THE DATA COLLECTED IN THE DOCUMENT (FOURTH DEPT).

Categories

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