You are here: / Evidence
,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NO LONGER NEED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT (FIRST DEPT).

The First Department, reversing Supreme Court, noted the plaintiff in a traffic accident case no longer has to demonstrate freedom from comparative fault to warrant summary judgment:

Plaintiff made a prima facie showing of negligence on the part of defendants by submitting an affidavit stating that as she was driving through the intersection she noticed that defendant driver failed to stop at the stop sign when plaintiff had the right of way (see Vehicle and Traffic Law § 1142[a]). Plaintiff was not required to demonstrate her own freedom from comparative negligence to be entitled to summary judgment as to defendants’ liability … . Garcia v McCrea, 2019 NY Slip Op 01842, First Dept 3-14-19

 

,

HANDCUFFING THE DEFENDANT PENDING IDENTIFICATION BY THE UNDERCOVER OFFICER AMOUNTED AN ARREST WITHOUT PROBABLE CAUSE, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined handcuffing the defendant pending identification by the undercover officer amounted to an arrest without probable cause. Defendant’s motion to suppress the identification and the buy money should have been granted:

The hearing court expressly determined that the police detention of defendant was supported by reasonable suspicion, but that probable cause did not exist until the undercover officer who allegedly bought drugs from defendant made an identification. Because the record provides no reason for the officers to have concluded that defendant, a suspect in a street drug sale, was armed or dangerous, or likely to resist arrest or flee, handcuffing him was inconsistent with an investigatory detention and elevated the intrusion to an arrest not based on probable cause … . Accordingly, the undercover officer’s identification of defendant and the buy money recovered as a result of the unlawful arrest should have been suppressed, and defendant is entitled to a new trial preceded by an independent source hearing … . People v Perez, 2019 NY Slip Op 01822, First Dept 3-14-18

 

, ,

PROOF DID NOT DEMONSTRATE THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not demonstrate that the notice requirements of RPAPL 1304 were met:

… Lechtanski [the loan servicer representative] did not have personal knowledge of the purported mailing and failed to make the requisite showing that he was familiar with the plaintiff’s mailing practices and procedures, and therefore, did not establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … . Moreover, the copy of the notice annexed to the Lechtanski affidavits, while bearing a notation “VIA CERTIFIED AND FIRST CLASS MAIL,” bears no indicia of actual mailing such as postal codes and was unaccompanied by any mailing receipts or tracking information … . Wells Fargo Bank, N.A. v Taylor, 2019 NY Slip Op 01817, Second Dept 3-13-19

 

,

THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL CALL COULD NOT BE IDENTIFIED, THE LIGHTER BURDEN OF PROOF PURSUANT TO THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted because the cause of plaintiff’s decedent’s fall could not be identified. The Noseworthy lighter burden of proof did not apply. Although plaintiff’s expert identified defects in the area where plaintiff’s decedent fell, none of the defects were demonstrated to have caused the fall:

Contrary to the plaintiff’s contention, the Noseworthy doctrine does not apply to the circumstances of this case, since the defendants’ knowledge concerning the cause of the decedent’s accident is no greater than that of the plaintiff … . Even accepting the defects identified in the plaintiff’s expert’s affidavit, the plaintiff failed to raise a triable issue of fact as to whether the decedent’s fall was proximately caused by those allegedly unsafe conditions … . ” Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation'” … . Perrelli v Evangelista, 2019 NY Slip Op 01807, Second Dept 3-13-19

 

​

,

RECORDED JAIL PHONE CALLS MAY NOT HAVE RELATED TO THE OFFENSE WHICH WAS THE SUBJECT OF THE TRIAL, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined recordings of jail phone calls made by the defendant should not have been admitted in this criminal possession of a weapon case. It was possible the recordings related to a subsequent weapons charge, not the charge before the jury:

… [T]he timing and content of the telephone calls made it highly unlikely that the defendant was referencing his September 2014 arrest for the instant offense, rather than his subsequent arrest on the unrelated gun possession charge. Moreover, in addition to the lack of relevance of this evidence to the charges in this case, the jury was unaware of the defendant’s subsequent May 2015 arrest, and therefore was unable to properly evaluate the weight to be accorded to the recordings as evidence of the defendant’s guilt of the instant offense. Thus, there was a substantial risk that the jury would be misled into believing that the defendant’s admissions in the telephone recordings referred to the instant offense. The admission of the recordings into evidence placed the defendant in the untenable position of deciding whether to accept this misleading narrative that the telephone recordings referred to the instant offense or disclose his later arrest on a similar gun possession charge, which disclosure itself would have caused him undue prejudice … . People v Robinson, 2019 NY Slip Op 01799, Second Dept 3-13-19

 

, , ,

EVIDENCE DEFENDANT’S STEPFATHER APOLOGIZED TO THE ROBBERY VICTIM FOR THE DEFENDANT’S ACTIONS AND THE TESTIMONY ABOUT AN ANONYMOUS INFORMANT’S IDENTIFICATION OF THE DEFENDANT SHOULD NOT HAVE BEEN ADMITTED, PROSECUTOR SHOULD NOT HAVE ENCOURAGED INFERENCE OF GUILT BASED ON FACTS NOT IN EVIDENCE, APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, reaching the appellate issues in the interest of justice, determined that improperly admitted evidence warranted a new trial, noting that the prosecutor also acted improperly. The identity of the defendant was a key issue in this robbery case. The victim (Fernandez) should not have been allowed to testify that the defendant’s stepfather told the victim he was sorry for what defendant had done and returned the victim’s keys. Also, the investigating detective should not have been allowed to testify that an anonymous informant had identified the defendant:

There was no showing that the defendant participated in or was in any way connected to his stepfather’s actions … .

… [T]he testimony of an investigating detective recounting a conversation with an anonymous informant, a nontestifying witness, violated the defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution… . The informant reportedly was an eyewitness to the crime and identified the defendant by name. The testimony “went beyond the permissible bounds of provid[ing] background information as to how and why the police pursued [the] defendant” … . …

Upon retrial, we remind the People that, on summation, a prosecutor may not “improperly encourage[ ] inferences of guilt based on facts not in evidence” … . Here, there was no evidence to support the prosecutor’s assertion that Fernandez had identified the defendant as the robber “immediately” by recognizing a distinctive “dot” on the defendant’s face. People v Gonsalves, 2019 NY Slip Op 01792, Second Dept 3-13-19

 

,

DEFENDANT’S FLIGHT WHEN APPROACHED BY POLICE IN PLAINCLOTHES AND DRIVING AN UNMARKED CAR DID NOT JUSTIFY PURSUIT, MOTION TO SUPPRESS WEAPON DISCARDED BY THE DEFENDANT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over two separate full-fledged dissenting opinions, determined that the police did not have justification for pursuing defendant when he ran as the police (in plainclothes driving an unmarked car) approached. The police had a report of a shooting by a black man wearing a black jacket. Defendant was wearing a gray jacket and was walking out of an apartment complex with a black man wearing a black jacket. Defendant’s motion to suppress the weapon he discarded during the chase should have been granted:

“Flight alone, even if accompanied by equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is insufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect’s possible engagement in criminal activity” … . “Police pursuit of an individual ‘significantly impede[s]’ the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . …

… [T]he radio report simply indicated a sole perpetrator with a vague description — black man in a black jacket. There was nothing at all about defendant that matched any aspect of the suspect in the radio report, except that he was black. Nor was defendant wearing a black jacket. He was wearing a gray jacket and was with a second individual, several minutes after the radio report of shots fired. The men did not appear to be fleeing the scene, but rather, were exiting an apartment complex. Thus, unlike the cases relied on by the People, defendant did not match any description, general or otherwise … . Further, there was insufficient evidence to support the conclusion that defendant knew Pengel and his colleagues were police officers… .

That defendant was with someone who matched an extremely vague, generic description of the suspect, which contained no information about the suspect’s height or weight, was not sufficiently indicative of criminal activity on defendant’s part … . People v Bilal, 2019 NY Slip Op 01673, First Dept 3-7-19

 

​

,

PLAYGROUND EQUIPMENT ON WHICH PLAINTIFF’S SON WAS INJURED, ACCORDING TO EXPERT EVIDENCE, WAS IN COMPLIANCE WITH APPLICABLE GUIDELINES AND STANDARDS, WAS PROPERLY MAINTAINED AND WAS NONHAZARDOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this playground equipment injury case should have been granted. Plaintiff’s son was injured when his leg was caught in a gap between two platforms:

… [T]he defendants submitted, inter alia, an expert affidavit, which established, prima facie, that the playground apparatus was not in violation of any relevant statutes or safety guidelines, that it was maintained in a reasonably safe condition, that the platforms were nonhazardous, and that the gaps between the platforms did not violate any applicable guidelines or standards … . In opposition, the plaintiff failed to raise a triable issue of fact. Valenzuela v Metro Motel, LLC, 2019 NY Slip Op 01639, Second Dept 3-6-19

 

,

PROOF OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence of standing did not meet the business record exception to the hearsay rule:

Here, since Thrasher [plaintiff’s loan officer] did not allege that she was personally familiar with the plaintiff’s record-keeping practices and procedures, a proper foundation for the admission of the records was not provided, rendering them inadmissible to establish that the subject note was possessed by or assigned to the plaintiff prior to the commencement of the action. Moreover, even if a proper foundation had been set forth in the Thrasher affidavit, Thrasher’s assertions as to the contents of the records is inadmissible hearsay to the extent that the records she purports to describe were not submitted with her affidavit. While 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 (seeCPLR 4518[a]…). Furthermore, although the plaintiff submitted an endorsed copy of the note in support of its motion for summary judgment, after having appended an unendorsed copy of the note to the complaint, the plaintiff failed to eliminate a triable issue of fact as to whether the plaintiff was in possession of the original note at the time the action was commenced … . U.S. Bank Natl. Assn. v 22 S. Madison, LLC, 2019 NY Slip Op 01635, Second Dept 3-6-19

 

,

POLICE OFFICER’S ALLEGED OBSERVATION OF A DRUG DEAL WAS DEEMED INCREDIBLE AS A MATTER OF LAW, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, INDICTMENT DISMISSED (SECOND DEPT).

The Second Department determined defendant’s motion to suppress evidence should have been granted and the indictment dismissed in this drug possession case. The police officer’s (Borden’s) testimony that he observed the drug transaction, which took place inside a car, through his rearview mirror, was incredible as a matter of law:

… [W]e find that the People failed to establish the legality of the police conduct in the first instance, as Borden’s testimony was incredible and patently tailored to meet constitutional objections. Borden’s claim that he observed the alleged transaction through his rearview mirror with sufficient clarity to see that the object passed between the occupants of the car was Suboxone strains credulity and defies common sense … . Rather, common experience dictates that the dashboard of the defendant’s vehicle would have obscured Borden’s view of a hand-to-hand transaction between the defendant and the front-seat passenger. Borden’s testimony that the transaction occurred at a height sufficient for “public view” lacked credibility and suggested that his testimony was tailored to meet constitutional objections … . Moreover, the difference in size between the eight-inch by two-inch object Borden claimed to have seen passed between the occupants of the vehicle, and the two-inch by one-inch object recovered … , casts significant doubt on Borden’s testimony that he recognized the object as Suboxone. Accordingly, exercising our independent power of factual review, we conclude that the defendant’s motion to suppress the physical evidence recovered incident to his arrest should have been granted. People v Maiwandi, 2019 NY Slip Op 01618, Second Dept 3-6-19

 

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