You are here: / Evidence
, ,

ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the entire first jury panel should not have been dismissed because of an interaction between one of the potential jurors and defendant’s brother. The decision dealt substantively with several other issues: (1) affirming the denial of defendant’s speedy trial motion; (2) finding the prosecution’s failure to produce the Miranda card was not a Rosario violation and an adverse inference jury charge was an appropriate sanction; and (3) finding that the DNA evidence introduced by a witness who did not participate in the testing procedures violated defendant’s right to confront the witnesses against him:

​

The Supreme Court granted the prosecutor’s application to dismiss the entire jury panel, concluding that the defendant’s brother had potentially tainted the entire panel. Significantly, the court did not first conduct an inquiry of the potential jurors as to what they had seen and as to whether they could remain impartial. Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” … . By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial … , the court deprived the defendant of a jury chosen “at random from a fair cross-section of the community” … .

​

… [T]he DNA profiles and reports produced from the testing of evidence recovered from the decedent’s home, including the defendant’s clothing, are testimonial, because such profiles and reports “were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of [that] defendant,” and because all of the documents in the file of the Office of the Chief Medical Examiner refer to the defendant by name and label him a “suspect” … . … [T]he admission of such evidence violated the defendant’s confrontation right, because it was admitted upon the testimony of an analyst who did not perform, witness, or supervise the generation of the defendant’s DNA profile, or perform an independent analysis on the raw data … . People v Metellus, 2018 NY Slip Op 00312, Second Dept 1-17-18

 CRIMINAL LAW (ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/JURORS (CRIMINAL LAW, ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/DNA (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/CONFRONTATION, RIGHT TO (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/CONSTITUTIONAL LAW (RIGHT TO CONFRONTATION, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))

, , ,

PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF’S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT).

The Third Department, affirming Supreme Court's preclusion of plaintiff's (Colucci's) expert evidence and the grant of summary judgment to defendant, determined the failure of plaintiff to meet the deadline for expert disclosure warranted preclusion. Plaintiff had leased business space from defendant and alleged that exposure to sewage and mold at the premises caused health problems. Plaintiff did not disclose her expert, one of her treating physicians (Johanning), until a year after the discovery deadline imposed by Supreme Court. Defendant had timely submitted expert evidence opining there was no causal relationship between plaintiff's exposure to sewage and mold at the leased premises and plaintiff's health problems:

… [T]his Court has interpreted CPLR 3101 (d) (1) (i) as “requiring disclosure of any medical professional, even a treating physician or nurse, who is expected to give expert testimony” … . Thus, while Johanning was listed in Colucci's responses to defendant's bill of particulars as one of 28 treating physicians or medical providers, and medical treatment records for her were disclosed, this at most indicated to defendant that Johanning might have been called as an expert by plaintiffs; it did not obviate the need for plaintiffs to comply with CPLR 3101 (d) (1) (i) and Supreme Court's order by disclosing their intent to rely on him as an expert, as well as the substance of the facts and opinions to which he was expected to testify… . To that end, the expert disclosure statute requires, in relevant part, “reasonable detail [of] the subject matter on which [the] expert is expected to testify, the substance of the facts and opinions . . . and a summary of the grounds for [the] expert's opinion” (CPLR 3101 [d] [1] [i]), none of which was timely disclosed to defendant … . Notably, “the burden of providing expert witness disclosure and setting forth the particular details required by the statute lies with the party seeking to utilize the expert; it is not opposing counsel's responsibility to cull through [copious medical records] to ferret out the qualifications of the subject expert, the facts or opinions that will form the basis for his or her testimony at trial and/or the grounds upon which the resulting opinion will be based”… . Moreover, the record supports Supreme Court's conclusions that Johanning's expert affidavit, submitted for the first time in opposition to defendant's motion, offered substantially new medical and scientific theories not reflected in his medical records … . Thus, the court providently precluded Johanning's expert affidavit and testimony. Colucci v Stuyvesant Plaza, Inc., 2018 NY Slip Op 00211, Third Dept 1-11-18

NEGLIGENCE (EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/TOXIC TORTS  (EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/CIVIL PROCEDURE (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/EVIDENCE (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/EXPERT OPINION (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))/CPLR 3101 (TOXIC TORTS, EXPERT DISCLOSURE, PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF PLAINTIFF'S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (THIRD DEPT))

, ,

THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined plaintiff's motion to dismiss the third-party complaint was properly granted because the third-party action was commenced four years after the suit began and would unduly delay the main action. The Second Department also determined that Supreme Court properly ordered that defendants disclose information about post-accident repairs in this stairway slip and fall case. Defendants had not disclosed the identity of the party which exercised control over the stairway:

“CPLR 1010 provides a safety valve for cases in which the third-party claim will unduly delay the determination of the main action or prejudice the substantial rights of any party'”… . Where the record indicates that a third-party plaintiff knowingly and deliberately delayed in commencing the third-party action, the Supreme Court acts within its discretion to dismiss the third-party complaint… . Contrary to the defendants' contentions, the court correctly granted the plaintiff's motion to dismiss the third-party complaint because the defendants deliberately and intentionally delayed commencing the third-party action for more than four years.

“CPLR 3101(a) requires full disclosure of all evidence material and necessary in the prosecution or defense of an action” … . ” Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless there is an issue of maintenance or control'” … . Contrary to the defendants' contentions, an issue exists as to the identity of the entity responsible for the structural maintenance and control of the stairway. Accordingly, the Supreme Court correctly directed the defendants to produce discovery concerning the post-accident repairs. Soto v CBS Corp., 2018 NY Slip Op 00185, Second Dept 1-10-18

NEGLIGENCE (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/EVIDENCE  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/POST-ACCIDENT REPAIRS (SLIP AND FALL, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CIVIL PROCEDURE  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CPLR 1010  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/CPLR 3101  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))/REPAIRS, POST-ACCIDENT  (SLIP AND FALL, POST-ACCIDENT REPAIRS, THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT))

,

EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department determined an expert affidavit, saying the plaintiff pedestrian did not look for traffic before starting across the street, was speculative and did not raise a question of fact. Plaintiff's motion for summary judgment properly granted:

The plaintiff testified that she looked in both directions and saw no vehicles. When the pedestrian signal changed in her favor, she waited “a bit,” looked around to her right and left three to four times, and then started walking while looking around as she walked. She had taken about 10 steps before the subject accident occurred. She did not see the defendants' vehicle prior to impact. The defendant driver testified at his deposition that he started his right turn and did not realize there was an accident until he felt contact, and heard his front-seat passenger yell that someone was there. He admitted that he never saw the plaintiff prior to contact with the front of his vehicle. He was cited for the traffic violation of failing to yield the right-of-way, and pleaded guilty to that violation.

In opposition, the defendants submitted the affidavit of an expert, stating that in his opinion, the plaintiff did not stop and wait for the light, and she did not look to the left or the right. Yuemei Wu v Automotive Rentals, Inc., 2018 NY Slip Op 00192, Second Dept 1-10-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/EVIDENCE (EXPERT OPINION, TRAFFIC ACCIDENTS, PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))/EXPERT OPINION (TRAFFIC ACCIDENTS, PEDESTRIANS, EXPERT AFFIDAVIT STATING PLAINTIFF PEDESTRIAN DID NOT LOOK FOR TRAFFIC BEFORE CROSSING WAS SPECULATIVE AND DID NOT RAISE A QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT))

,

BY SUBMITTING PLAINTIFF’S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined plaintiff's deposition testimony raised a question of fact whether plaintiff slipped and fell because of water on the floor near a sink in defendant's nursing home. The testimony was submitted by the defendant in support of its summary judgment motion. The defendant argued there was no proof water was on the floor. However, by submitting plaintiff's deposition testimony, which presented circumstantial evidence of water on the floor, defendant was unable to make out a prima facie case:

In moving for summary judgment, the defendant argued, inter alia, that there was no evidence that water was on the floor. In support of its motion, the defendant submitted, inter alia, the plaintiff's deposition testimony, in which he testified that a nurse washes his roommate every morning, he has personally observed water spill on the floor when that happens, and he has complained about such condition at least 10 times in the past. The plaintiff further testified that he heard his roommate being cared for and someone walking back and forth from the sink to his roommate that morning, and that the roommate's shirt was wet after the accident. Such evidence, although circumstantial, permits a reasonable inference that the nurse washed the plaintiff's roommate that morning and spilled water on the floor, which proximately caused the plaintiff to fall… . Accordingly, the defendant failed to meet its prima facie burden on its motion for summary judgment, and the Supreme Court properly denied its motion without regard to the sufficiency of the plaintiffs' opposition papers … . Simion v Franklin Ctr. for Rehabilitation & Nursing, Inc., 2018 NY Slip Op 00184, Second Dept 1-10-18

NEGLIGENCE (SLIP AND FALL, SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/EVIDENCE  (SLIP AND FALL, SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/SLIP AND FALL (SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (NEGLIGENCE, SLIP AND FALL, EVIDENCE, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))

,

DEFENDANT’S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT).

The First Department noted that defendant's statement memorialized in a police report, acknowledging he did not stop at a red light, was an admission and a conflicting statement made later presented only a feigned issue of fact:

The police accident report and the affidavit of plaintiff Jose Colon were sufficient to demonstrate that defendant Jason S. Gilbert's negligence in failing to stop for the red light and yield the right of way in the intersection was the sole proximate cause of the accident… . His affidavit also showed the absence of comparative negligence in that he stated that he was going 25 miles per hour, looking straight ahead in the direction of travel, and could not see defendants' van because of a chain link fence, train trestle, and the height of his motor scooter… .

Although Gilbert denied that he stated to the police that he did not know that he had to stop for the red light, the court correctly concluded that the affidavit was insufficient to raise an issue of fact because statements by a party in a police accident report may constitute admissions, and later conflicting statements containing a different version of the facts present only a feigned issue of fact … . Colon v Vals Ocean Pac. Sea Food, Inc., 2018 NY Slip Op 00097, First Dept 1-9-18

NEGLIGENCE (TRAFFIC ACCIDENTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/EVIDENCE (POLICE REPORTS, NEGLIGENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/TRAFFIC ACCIDENTS (POLICE REPORTS, EVIDENCE, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))/POLICE REPORTS (EVIDENCE, TRAFFIC ACCIDENTS, DEFENDANT'S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT))

,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff's motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was standing on top of a sidewalk shed as he loaded sheetrock into a building when the shed broke. The fact that there were no witnesses did not raise a question of fact:

Plaintiff Pedro Serrano was injured when, during the course of moving sheetrock into a building, he stood on top of a sidewalk shed that broke beneath him, causing him to fall to the sidewalk below. While the motion court correctly determined that these facts demonstrated plaintiffs' prima facie entitlement to summary judgment … , it erred in finding that EAS [defendant] raised a triable issue of fact. That no witness other than plaintiff testified as to the occurrence of the accident does not bar judgment in his favor, “where nothing in the record contradicts his version of the occurrence or raises an issue as to his credibility” … , and defendant EAS's expert report was purely speculative in that it was not based on an examination of the sidewalk shed at the time of the accident … . Serrano v TED Gen. Contr., 2018 NY Slip Op 00113, First Dept 1-9-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTIVE LAW, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT))

,

PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined a prior burglary should not have been allowed as Molineux and Sandoval evidence in this robbery prosecution. The error was deemed harmless however:

​

“The Molineux rule requires that evidence of a defendant’s prior bad acts or crimes be excluded unless it is probative of a material issue other than criminal propensity and its probative value outweighs the risk of prejudice to the defendant”… . Although defendant’s intent was at issue, given his defense that he was an innocent bystander who had no knowledge that the codefendants planned to rob [the victim] when he drove them to her residence, the prior conviction was of limited probative value with respect to defendant’s intent because the prior conviction arose from an incident that was not similar to the charged conduct. The prior burglary did not involve a robbery, but, rather, arose from an incident during which defendant entered the residence of another with the intent to assault an occupant. Moreover, [a co-defendant’s] testimony, if believed, was sufficient to permit the jury to find that defendant had the requisite intent to the commit burglary and robbery. Accordingly, the evidence that defendant had committed a prior burglary would serve only to demonstrate that defendant had a propensity to commit burglary and, therefore, the court should have determined that the prior conviction was inadmissible as proof of defendant’s intent … .

County Court also erred in its Sandoval ruling. Although the crime was not too remote to be relevant and the nature of the conviction was probative of defendant’s credibility, allowing the prior crime to be identified as burglary improperly suggested that defendant had a propensity to commit one of the crimes with which he was charged … . People v Williams, 2017 NY Slip Op 09196, Third Dept 12-28-17

CRIMINAL LAW (EVIDENCE, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, RIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/MOLINEUX EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))/SANDOVAL EVIDENCE (CRIMINAL LAW, PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL EVIDENCE IN THIS ROBBERY PROSECUTION, ERROR HARMLESS HOWEVER (THIRD DEPT))

,

FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s visitation rights should not have been suspended indefinitely without a hearing. Family Court had relied on untested evidence presented at conferences:

​

Generally, where a facially sufficient petition has been filed, modification of a Family Ct Act article 6 custody and visitation order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard … . A decision regarding child custody and visitation should be based on admissible evidence … . Here, the Family Court relied on information provided at the court conferences, and the hearsay statements and conclusions of mental health providers whose opinions and credibility were untested by either party … .

Under the circumstances of this case, the Family Court erred when it, without a hearing, in effect, denied the father’s petition for increased visitation and indefinitely suspended his visitation with the child … . Matter of Edmunds v Fortune, 2017 NY Slip Op 09126, Second Dept 12-27-17

 

FAMILY LAW (FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT))/EVIDENCE (FAMILY LAW, FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT))/VISITATION (FAMILY LAW, FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT))

, ,

IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, explained an aspect of the rigid proof requirements for summary judgment. Here plaintiff bank moved for summary judgment in a foreclosure action. Defendant, in opposition, raised plaintiff’s failure to demonstrate compliance with a condition precedent in the note. Plaintiff submitted reply papers with proof the condition precedent had been met. The Second Department determined the reply could not be considered and therefore the plaintiff had not made out a prima facie case in its papers:

​

As part of her affirmative defenses and counterclaim, the defendant asserted, inter alia, that the plaintiff l… failed to show that it complied with the condition precedent contained in paragraph 7, subsection C, of the note. * * *

​

… [T]he plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in paragraph 7, subsection C, of the note…  “[A] party moving for summary judgment cannot meet its prima facie burden by submitting evidence for the first time in reply, and generally, evidence submitted for the first time in reply papers should be disregarded by the court”… . Here, since the defendant raised the issue of compliance with paragraph 7, subsection C, of the note in her affirmative defenses and counterclaim, the plaintiff’s submission for the first time of a copy of the requisite default notice with its reply to the defendant’s opposition to the summary judgment motion was not sufficient to establish its prima facie compliance … . Since the plaintiff failed to meet its prima facie burden on the motion, we need not consider the sufficiency of the defendant’s opposition papers … . Wells Fargo Bank, N.A. v Osias, 2017 NY Slip Op 09195, Second Dept 12-27-17

 

CIVIL PROCEDURE (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, (IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, IN MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))/REPLY (SUMMARY JUDGMENT, EVIDENCE, N MOVING FOR SUMMARY JUDGMENT PLAINTIFF COULD NOT MAKE OUT A PRIMA FACIE CASE WITH EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT))

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