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HEARSAY STATEMENTS BY THE ONLY WITNESS TO IDENTIFY DEFENDANT AS A PERPETRATOR INDICATED THE WITNESS WAS NOT IN FACT ABLE TO IDENTIFY ANY OF THE PERPETRATORS; THE INCONSISTENT STATEMENTS SHOULD HAVE BEEN ADMITTED BECAUSE THEY WENT TO A CORE ISSUE IN THE CASE IMPLICATING THE RIGHT TO PUT ON A DEFENSE; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that a hearsay statement allegedly made by the only witness (Lindsay) to identify the defendant as one of the masked intruders in this home-invasion murder-assault-burglary case should have been allowed in evidence. Lindsay, who was shot by one of the intruders, initially claimed he could not identify anyone because they were wearing face-coverings. He later identified the defendant and the others, claiming that he initially did not identify them because he was afraid. The witness who was not allowed to testify, Boyd, is Lindsay’s brother. Boyd would have testified that Lindsay repeatedly told him he could not identify any of the intruders. Boyd had contacted defense counsel only after Lindsay testified so no foundation for Boyd’s testimony had been laid. The prosecutor was willing to allow Lindsay to be recalled for that purpose:

“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” … . “Since evidence of inconsistent statements is often collateral to the ultimate issue before the [trier of fact] and bears only upon the credibility of the witness, its admissibility is entrusted to the sound discretion of the Trial Judge'” … . Indeed, “[i]t is well established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” … . However, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … . “Thus, while a trial court may preclude impeachment evidence that is speculative, remote, or collateral, [that] rule . . . has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the [trier of fact] must decide'” … .

“Where the truth of the matter asserted in the proffered inconsistent statement is relevant to a core factual issue of a case, its relevancy is not restricted to the issue of credibility and its probative value is not dependent on the inconsistent statement” … . Under such circumstances, the right to present a defense may “encompass[ ] the right to place before the [trier of fact] secondary forms of evidence, such as hearsay” … . “Indeed where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice'” … . People v Butts, 2020 NY Slip Op 03243, Second Dept 6-10-20

 

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RARE CASE WHERE PLAINTIFF’S SUMMARY JUDGMENT MOTION ON LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION WAS APPROPRIATELY GRANTED (FIRST DEPT).

The First Department determined this was a rare case where summary judgment was appropriate on a Labor Law 200, common-law negligence cause of action:

Here, PSJV, the entities responsible for site cleanliness and trade coordination, at a time when the project was open to the elements, covered a recessed area of the third floor, where rainwater regularly collected, with non-waterproof planking, and never inspected it for water accumulation. Further, PSJV did not warn plaintiff or his employer that he was working under the recessed area, and when he drilled into the second floor ceiling to affix electrical equipment, the sludgy, oily water poured down onto him, causing him to lose his balance and injure himself. Thus, plaintiffs made a prima showing that the accident occurred due to a defective condition on the premises of which PSJV had actual notice, having caused and created it … . In response, PSJV failed to adduce credible evidence that anyone else, including plaintiff electrician, negligently caused the accident … . Langer v MTA Capital Constr. Co., 2020 NY Slip Op 03171, First Dept 6-3-20

 

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CROSS-EXAMINATION OF A POLICE OFFICER ABOUT MISCONDUCT IN A CIVIL SUIT SHOULD HAVE BEEN ALLOWED; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined cross-examination of a police officer about misconduct in a civil suit should have been allowed:

The trial court erred in denying defendant’s request to cross-examine a police Sergeant regarding allegations of misconduct in a civil lawsuit in which it was claimed that this police Sergeant and a police detective arrested the plaintiff without suspicion of criminality and lodged false charges against him … . The civil complaint contained allegations of falsification specific to this officer (and another officer), which bore on his credibility at the trial.

Contrary to the People’s allegations, the error was not harmless. The police sergeant’s credibility was critical because he was the only eyewitness to the crime … . Although the sergeant’s testimony was corroborated by other evidence, none of this corroborating evidence was sufficient, on its own, to prove defendant’s guilt, as all of it relied on the sergeant’s testimony for context. ​People v Conner, 2020 NY Slip Op 03200, First Dept 6-4-20

 

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PLAINTIFF, A NURSE ASSAULTED BY A PSYCHIATRIC PATIENT, WAS ENTITLED TO DEPOSE THE DEFENDANT TREATING PSYCHIATRISTS WITH RESPECT TO ANY NON-PRIVILEGED INFORMATION; THE DEFENDANTS SHOULD NOT HAVE REFUSED TO ATTEND THE DEPOSITIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to compel the defendant-psychiatrists’ depositions should have been granted. Plaintiff, a nurse in a psychiatric facility, was seriously injured in an assault by a patient. She sought to depose the defendant psychiatrists who had treated the patient. Although the defendants may legitimately invoke the doctor-patient privilege, there maybe be non-privileged information which can be the subject of a deposition. The proper procedure is for the defendants to attend the depositions and invoke the privilege where appropriate:

Generally, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party” (CPLR 3101[a][1]). However, even relevant discovery is subject to preclusion if the requested information is privileged (see CPLR 3101[b] …).

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged and may not be disclosed (… see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

… [T]he plaintiff is entitled to inquire into any nonprivileged information regarding the patient … . …

… [T]he prospect that a witness may be asked questions at a deposition as to which an objection based on privilege may be asserted is not a proper reason for declining to appear for a deposition.  Jayne v Smith, 2020 NY Slip Op 03101,Second Dept 6-3-20

 

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RETURN OF THE CHILDREN TO MOTHER AFTER A TEMPORARY REMOVAL WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined the return of children to mother after a temporary removal was not supported by a sound and substantial basis:

“An application pursuant to Family Court Act § 1028 to return a child who has been temporarily removed shall’ be granted unless the Family Court finds that “the return presents an imminent risk to the child’s life or health”‘” … . The court’s determination will not be disturbed if it is supported by a sound and substantial basis in the record … . In making its determination, the court ” must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal'” … .The court ” must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests'” … . “Evidence that the children who are the subject of the proceeding were previously harmed while in the parent’s care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent’s care” … . The child services agency bears the burden of establishing that the subject child would be at imminent risk and therefore should remain in its custody … . …

The evidence at the hearing demonstrated that, after one of the subject children reported to the mother that her older brother had been sexually abusing her since she was 10 years old, the mother did not address the sexual abuse and did not provide increased supervision for the subject children. Further, the petitioner demonstrated that the mother left one of the subject children in the older brother’s care, for at least a period of time, while she gave birth to the third subject child, in violation of an order dated March 23, 2018. Under the circumstances, we cannot agree that the return of two of the subject children to the mother’s custody, notwithstanding the conditions that were imposed, would not present an imminent risk to the children’s life or health … . Matter of Carter R. (Camesha B.), 2020 NY Slip Op 03118, Second Dept 6-3-20

 

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THE EXISTENCE OF A HANDRAIL ON THE LEFT OF THE STAIRS DID NOT WARRANT GRANTING SUMMARY JUDGMENT TO DEFENDANTS IN THIS SLIP AND FALL CASE WHERE THERE WAS NO HANDRAIL ON THE RIGHT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this stairway slip and fall case should not have been granted. The fact that there was a handrail on the left did not warrant summary judgment because there was no handrail on the right:

Plaintiff … was injured when, while descending the right side of the exterior staircase of the subject premises, she slipped and when she tried to grab onto a handrail, there was no right-sided handrail. A triable issue of fact thus exists as to whether the absence of a required handrail on that side of the staircase was a proximate cause of the accident … . Defendants’ argument that the missing handrail on the right side of the staircase did not proximately cause plaintiff’s fall since she chose not to use the available left-side handrail, is directed to the issue of comparative negligence … . Gil v Margis Realty LLC, 2020 NY Slip Op 03089, First Dept 5-28-20

 

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OUT OF POSSESSION LANDLORD MAY BE LIABLE IN THIS SIDEWALK SLIP AND FALL CASE PURSUANT TO A 2019 COURT OF APPEALS DECISION; VIOLATION OF NYC ADMINISTRATIVE CODE CAN BE RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT MOTION; QUESTION OF FACT ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS DOCTRINE (FIRST DEPT). ​

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined: (1) a 2019 Court of Appeals decision clarified the defendant out-of-possession landlord’s duty to keep sidewalks safe, notwithstanding any maintenance arrangement with a tenant; (2) although the plaintiff was required to allege the defendant violated the NYC Administrative Code and failed to do so, plaintiff could rely on the Code provision in opposition to defendant’s summary judgment motion; and (3) plaintiff raised a question of fact whether the ice condition existed before the alleged storm in progress at or near the time of the fall:

… [T]he court’s determination that defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals’s decision in Xiang Fu He v Troon Mgt., Inc. (34 NY3d 167 [2019]). …[E]ven if … plaintiff was required to plead defendant’s violation of Administrative Code of City of New York § 7-210 – which he undisputedly failed to do – plaintiff’s reliance thereon for the first time in opposition to defendant’s motion for summary judgment was permissible, given that doing so did not raise any new theory of liability or prejudice … . Herrera v Vargas, 2020 NY Slip Op 03082, First Dept 5-28-20

 

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BEST EVIDENCE RULE APPLIES TO VIDEO EVIDENCE AS WELL AS WRITINGS; ERROR IN FAILING TO EXCLUDE THE VIDEO EVIDENCE WAS HARMLESS HOWEVER (THIRD DEPT).

The Third Department, disagreeing with County Court, determined the best evidence rule applies to video evidence. The error was deemed harmless however:

Defendant asserts that, under the best evidence rule, the cell phone video recording of surveillance video that depicted the exterior of the bar … , as well as the observations of the detective who viewed and recorded this cell phone video, should have been precluded. Defendant further asserts that the detective should not have been allowed to testify about what he saw on a surveillance video showing the inside of the bar. In overruling defendant’s objection, County Court noted that the best evidence rule applied only to writings. Contrary to the court’s reasoning, however, the best evidence rule can apply to videos (see e.g. People v Cyrus, 48 AD3d 150, 159 [2007] …). Furthermore, the People did not call the bar manager or a person who installed the video equipment to authenticate the surveillance video … . Accordingly, the court erred in overruling defendant’s objection to this evidence. People v Watson, 2020 NY Slip Op 03050, Third Dept 5-28-20

 

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MOTIONS IN LIMINE WHICH AFFECT THE SCOPE OF THE TRIAL ARE APPEALABLE; TWO-YEAR WRONGFUL DEATH STATUTE OF LIMITATIONS APPLIED TO THE MUNICIPALITIES; PRECLUDING EXPERT TESTIMONY BASED UPON DISCLOSURE DEFICIENCIES WAS AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) plaintiff did not allege separate claims for personal injury and wrongful death, therefore the two-year wrongful-death statute of limitations in EPTL 5-4.1, not the one-year-ninety-days statute of limitations for negligence, applied to the actions against the municipalities; (2) motions in limine which limit the scope of the trial are appealable; and (3) preclusion of plaintiff’s expert’s testimony, based upon deficient disclosure pursuant to CPLR 3101 (d)(1), was an abuse of discretion. The action arose from a gas explosion at the great grandfather’s house which killed plaintiff’s 15-month-old son. Plaintiff sued the village, the town, the county and the New York State Electric & Gss Corporation (NYSEG). With regard to the motions in limine, the Third Department wrote:

“An order ruling on a motion in limine is generally not appealable as of right or by permission since an order made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling. However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . As to plaintiff’s objection to that part of the order as allowed evidence of the great grandfather’s negligence as a defense to the claim of res ipsa loquiter does not limit the scope of issues or impact a substantial right, such issue is not appealable … . Plaintiff also contends that Supreme Court erred in partially granting NYSEG’s motion to preclude the testimony of Reiber, plaintiff’s economist. Finding that the expert disclosure lacked reasonable detail as to how the value that Reiber assigned to plaintiff’s lost services and support would be calculated, Supreme Court precluded his testimony with regard to said damages. … However, because this ruling restricted plaintiff’s ability to prove and recover damages, this issue is appealable … . Reed v New York State Elec. & Gas Corp., 2020 NY Slip Op 03054, 5-28-20

 

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PLAINTIFF BANK NEVER REVOKED THE ACCELERATION OF THE MORTGAGE DEBT; FIFTH FORECLOSURE ACTION TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was no evidence plaintiff bank revoked the acceleration of the mortgage debt and the foreclosure action was therefore time-barred:

Plaintiff Wells Fargo Bank failed to affirmatively revoke the acceleration of defendant’s mortgage debt, as mere voluntary discontinuance of a foreclosure action is insufficient, in itself, to constitute an affirmative act of revocation … . Wells Fargo admitted that its primary reason for revoking acceleration of the mortgage debt was to avoid the statute of limitations bar, and it proceeded to collect on the accelerated loan amount in a fifth foreclosure action filed shortly after it made its motion to revoke acceleration … .

Moreover, Wells Fargo’s fifth foreclosure action, commenced on or around December 11, 2017, is time-barred, as Wells Fargo had accelerated the mortgage debt when it commenced its second foreclosure action on September 16, 2009 (CPLR 213[4] …). The fact that the prior foreclosure actions were dismissed does not undo Wells Fargo’s act of accelerating the mortgage debt. Wells Fargo Bank, N.A. v Ferrato, 2020 NY Slip Op 03067, First Dept 5-28-20

 

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