You are here: / Evidence
,

DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT).

The Second Department, modifying Supreme Court, determined charges relating to a forged deed were not protected the by the transactional immunity afforded grand jury witnesses. Defendant had testified before a grand jury about a burglary at real property she claimed to own. Subsequently defendant was charged with grand larceny (stealing the real property), possessing a forged deed, filing the forged deed and perjury (in the grand jury proceeding). The Second Department determined the grand larceny count was properly dismissed because it directly related to defendant’s testimony before the grand jury (claiming  that she owned the real property). However, the charges forged deed charges were not related to her grand jury testimony and therefore those charges were reinstated:

​

The defendant’s grand jury testimony that she was the owner of the real property would be relevant to establishing the defendant’s alleged intent to deprive the rightful owners of the real property … . Thus, the defendant testified to the “transaction, matter or thing” for which she stands indicted … , and her testimony may “tend to a conviction when combined with proof of other circumstances which others may supply” … . Accordingly, the Supreme Court properly found that the defendant’s testimony conferred immunity upon her from prosecution of grand larceny in the second degree. * * *

… [A]lthough the defendant testified that she owned the real property, she did not testify how she purportedly came into ownership of the real property. Her claim of ownership is not relevant to establishing her knowledge that the deed to the real property was forged, her intent to use that deed to defraud another person, her presentment of the deed to the City Register, or her belief that the deed would be accepted for filing … , and thus, does not “tend to a conviction when combined with proof of other circumstances which others may supply” … . Under these circumstances, the defendant was not entitled to immunity from prosecution for criminal possession of a forged instrument in the second degree and offering a false instrument for filing in the first degree, and counts two and three of the indictment must be reinstated. People v O’Neal, 2017 NY Slip Op 06461, Second Dept 9-13-17

 

CRIMINAL LAW (IMMUNITY, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IMMUNITY, GRAND JURY TESTIMONY,  DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/GRAND JURY (IMMUNITY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))/IMMUNITY (CRIMINAL LAW, GRAND JURY TESTIMONY, DEFENDANT ENTITLED TO IMMUNITY FROM PROSECUTION BECAUSE HER GRAND JURY TESTIMONY WAS RELATED TO THE GRAND LARCENY CHARGE (STEALING REAL PROPERTY), HOWEVER SHE WAS NOT ENTITLED TO IMMUNITY RE THE FORGED DEED CHARGES (SECOND DEPT))

,

(HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT).

The Second Department, in affirming defendant’s conviction, noted that it was (harmless) error to show the jury the injured child in this shaken baby case because the extent of the long-term effects of the injury was not an element of the crime:

​

We agree with the defendant that the Supreme Court improvidently exercised its discretion in allowing the People to display the injured child to the jury during the mother’s testimony, since the extent of the child’s long-term injuries was not an element of the crime … , and such display only served to prejudice the defense by arousing the emotions of the jury … . Nevertheless, the error was harmless … . Given the extensive and uncontroverted medical evidence supporting the diagnosis of shaken baby syndrome and that the child’s injuries could have only occurred when the child was with the defendant, the evidence of the defendant’s guilt was overwhelming. Moreover, there is no significant probability that the jury would have acquitted the defendant had it not been for the error … . People v Narine, 2017 NY Slip Op 06460, Second Dept 9-13-17

CRIMINAL LAW ((HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))/SHAKEN BABY SYNDROME (CRIMINAL LAW, (HARMLESS) ERROR TO SHOW THE INJURED CHILD TO THE JURY IN THIS SHAKEN BABY CASE, THE EXTENT OF THE LONG-TERM INJURIES WAS NOT AN ELEMENT OF THE CRIME (SECOND DEPT))

,

(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).

The Second Department, in affirming the conviction of defendants as part of a large scale heroin distribution operation, determined it was error to allow the lead detective to explain to the jury the roles played by the persons recorded by the wiretaps. It was also error to admit the wiretap orders into evidence. Given the overwhelming evidence, however, the errors were deemed harmless:

​

… [W]hile “it was error to permit the prosecutor to elicit testimony [from the investigating detective] as to the roles played by the individuals overheard in the phone calls[ ] and the relationships among them, . . . and the meanings of certain case-specific’ terms that he had discovered in the course of the investigation” … , the error was harmless, “as the proof of the defendant’s commission of the charged crimes was overwhelming, and there is no significant probability that, but for the error, the verdict . . . would have been less adverse'” … .

The County Court also improvidently exercised its discretion in admitting into evidence the wiretap court orders. Although the court orders were relevant, as authorizing the wiretapping that led to a large part of the People’s evidence, and their admission had a tendency to prove the existence of a material fact, i.e., that the wiretapping was authorized … , that same fact could have been established without the prejudice they caused. Nevertheless, here, too, the error was harmless. People v Guzman, 2017 NY Slip Op 06454, Second Dept 9-13-17

 

CRIMINAL LAW ((HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/WIRETAPS (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))/EAVESDROPPING (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT))

,

JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing defendant’s conviction for possession of a weapon, determined the jury should have been instructed on the innocent possession of a weapon defense. There was evidence that the defendant had taken the pistol away from decedent, who had struck him with it. Defendant walked away with the pistol. Three minutes later defendant was grabbed from behind by a man who was with the decedent. There was evidence the defendant shot the man and the decedent. The jury was instructed on the justification defense and acquitted the defendant of manslaughter:

​

When this evidence is viewed in the light most favorable to defendant, nothing he did or failed to do in the very brief interval between excusably obtaining the pistol and being confronted by the decedent and his companions constituted “us[ing the pistol] in a dangerous manner” … . Given the justification defense, which, as the court correctly determined, warranted a justification charge, the fact that defendant shot the decedent did not constitute a “dangerous use” barring the court from giving a temporary lawful possession charge. Courts have found that the firing of shots did not negate a defendant’s entitlement to a temporary lawful possession instruction where the shooting was justified and the possession was otherwise lawful. People v Bonilla, 2017 NY Slip Op 06405, First Dept 9-5-17

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/WEAPON, POSSESSION OF (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/INNOCENT POSSESSION OF A WEAPON (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))

,

QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver’s (Kostadinov’s) motion for summary judgment in this bicycle-car accident case should not have been granted. Kostadinov did not eliminate triable questions of fact about his comparative negligence:

Here, Kostadinov failed to demonstrate his prima facie entitlement to judgment as a matter of law, since the evidence submitted in support of his motion failed to establish that he was free from fault in the happening of the accident, or that the alleged negligence of the plaintiff and Karczewski were the sole proximate causes of the accident … . Specifically, the deposition testimony of all of the parties, submitted by Kostadinov in support of his motion, revealed the existence of triable issues of fact as to the manner in which the accident occurred (see id. at 934) and as to whether the impact between the plaintiff’s bicycle and Karczewski’s vehicle was a foreseeable consequence of Kostadinov reversing his vehicle against the flow of traffic within the subject intersection given the traffic conditions existing at the time of the accident … . Searless v Karczewski, 2017 NY Slip Op 06393, Second Dept 8-30-17

NEGLIGENCE (BICYCLE-CAR ACCIDENT, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (BICYCLE-CAR ACCIDENT, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BICYCLES (TRAFFIC ACCIDENTS, QUESTIONS OF FACT ABOUT DEFENDANT DRIVER’S COMPARATIVE NEGLIGENCE IN THIS BICYCLE-CAR COLLISION CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

, ,

DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a default judgment discharging a mortgage after the statute of limitations on the foreclosure action had expired should have been granted. The court explained that the six year statute started to run when the debt was accelerated by the foreclosure action that was ultimately dismissed. The plaintiff demonstrated that the dismissed foreclosure action was commenced by a party with standing:

… [W]ith respect to an action pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage had expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharged the mortgage was commenced … . An action to foreclose a mortgage has a six-year statute of limitations… . “The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt”… .

Here, the plaintiff submitted a copy of the summons and complaint filed in the mortgage foreclosure action commenced by the defendant’s predecessor-in-interest and the order dismissing that action pursuant to CPLR 3216 which demonstrated that the mortgage was accelerated in 2008 more than six years before the commencement of this action and that there was no longer a pending mortgage foreclosure action … . In addition, the summons and the complaint, along with the subject mortgage documents, submitted by the plaintiff on its motion, demonstrated that the defendant’s predecessor-in-interest had standing to commence the mortgage foreclosure action ….

Further, the plaintiff demonstrated that the applicable statute of limitations had expired even if the limitations period was calculated … the date by which the Federal Deposit Insurance Corporation was appointed as receiver for the defendant’s predecessor-in-interest  …. . 53 PL Realty, LLC v US Bank N.A., 2017 NY Slip Op 06345, Second Dept 8-30-17

 

FORECLOSURE (DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STATUTE OF LIMITATIONS, DEFAULT JUDGMENT DISCHARGING THE MORTGAGE SHOULD HAVE BEEN GRANTED, THE SIX YEAR STATUTE OF LIMITATIONS FOR FORECLOSURE STARTED WHEN THE DEBT WAS ACCELERATED BY THE FORECLOSURE ACTION WHICH WAS ULTIMATELY DISMISSED (SECOND DEPT))

,

TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the defendant’s conviction finding that evidence of a prior similar stabbing of the same victim was too prejudicial to be admissible. The evidence of defendant’s connection to the prior stabbing was weak. The victim refused to cooperate with the investigations into both stabbings. Therefore the trial court should not have ruled the defendant could be cross-examined about the prior stabbing if he chose to testify (he did not testify):

Although questioning concerning other crimes and past conduct is not automatically precluded simply because the crime or conduct inquired about is similar to the crime charged … , “cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility” … . Thus, “a balance must be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf” … . Under the circumstances presented here, most notably the unsubstantiated evidence connecting the defendant to the uncharged crime involving the identical victim, which occurred three months earlier, the probative value was far outweighed by the danger of undue prejudice. There was a strong likelihood that the uncharged crime would be viewed as evidence of propensity, rather than probative on the issue of credibility … . People v Ridenhour, 2017 NY Slip Op 06383, Second Dept 8-30-17

CRIMINAL LAW (SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))/SANDOVAL (CRIMINAL LAW,  TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT)/PRIOR CRIMES AND BAD ACTS (CRIMINAL LAW, SANDOVAL, TRIAL COURT SHOULD NOT HAVE RULED DEFENDANT COULD BE CROSS-EXAMINED ABOUT A PRIOR SIMILAR STABBING OF THE SAME VICTIM IF THE DEFENDANT CHOSE TO TESTIFY, NEW TRIAL ORDERED (SECOND DEPT))

, ,

FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department determined defendant doctor’s (Aronoff’s) motion to set aside the verdict in this medical malpractice action was properly denied. Aronoff’s failure to provide plaintiff (Raymond) with written instructions and warning after the colonoscopy, and his failure to notify plaintiff after a colon perforation was discovered constituted sufficient evidence of proximate cause:

Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury … . “Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause” … . ” A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury'” … .

Here, there was legally sufficient evidence to support the jury’s findings that Aronoff departed from accepted standards of medical practice in failing to provide Raymond with written post-colonoscopy instructions and failing to warn him as to the signs or symptoms of which he should be aware. Aronoff also failed to contact Raymond and instruct him to go to the hospital after Aro

noff had reviewed CT scan results that revealed a colon perforation. The evidence was legally sufficient to support the jury’s findings that these deviations proximately caused Raymond’s injuries … . Gaspard v Aronoff, 2017 NY Slip Op 06258, Second Dept 8-23-17

 

, , ,

SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dentist who provided an affidavit for plaintiff was an expert, the expert raised a question of fact whether defendant departed from the accepted standard of care, and a question of fact was raised about whether plaintiff gave informed consent to the procedure. The court noted that plaintiff’s expert’s qualifications were not questioned in defendant’s reply papers. Therefore, the court should not have raised the issue on its own and used the issue to support granting  summary judgment to the defendant. With regard to informed consent, the court wrote:

“A cause of action predicated on a lack of informed consent is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation”… .. To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury … .

Here, the defendant failed to submit proof sufficient to establish, prima facie, that he had informed the plaintiff of the reasonably foreseeable risks associated with the treatment, and, in any event, that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed … . Dyckes v Stabile, 2017 NY Slip Op 06252, Second Dept 8-23-17

​

NEGLIGENCE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/DENTAL MALPRACTICE (SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EXPERT OPINION  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/CIVIL PROCEDURE (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/SUMMARY JUDGMENT  (ISSUES NOT RAISED BY THE PARTIES, DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))/EVIDENCE  (DENTAL MALPRACTICE, SUPREME COURT SHOULD NOT HAVE RULED PLAINTIFF’S EXPERT WAS NOT QUALIFIED, EXPERT WAS QUALIFIED AND THE ISSUE WAS NOT RAISED BY THE PARTIES, QUESTION OF FACT WHETHER PLAINTIFF GAVE INFORMED CONSENT (SECOND DEPT))

, ,

NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant architect’s motion to set aside the verdict in this professional malpractice case should have been granted. Expert testimony was required and was not presented:

… [T]he plaintiff in this case alleged that the defendants committed professional malpractice by submitting defective plans to the New York City Department of Buildings (hereinafter the DOB), and by failing to diligently pursue the approval process and timely deal with objections raised by the DOB. Such questions are not within the competence of untutored laypersons to evaluate, as “common experience and observation offer little guidance” … .

The only expert proffered by the plaintiff conceded that he “didn’t see” the defendants’ plans, and when asked, for instance, to opine on whether the defendants’ plans “would have caused a problem” regarding the roof’s ability to bear the weight of certain HVAC equipment, he demurred, answering, “No, I only work for myself.” Moreover, the expert offered no opinion regarding the defendants’ alleged delay in getting their plans approved by the DOB. Given the absence of any expert testimony that the defendants departed from accepted architectural standards of practice … , the jury lacked any rational basis for its finding that the defendants committed professional malpractice … . Michael v He Gin Lee Architect Planner, PLLC, 2017 NY Slip Op 06177, Second Dept 8-16-17

 

NEGLIGENCE (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (ARCHITECT MALPRACTICE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PROFESSIONAL MALPRACTICE (ARCHITECTS, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION  (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ARCHITECTS (PROFESSIONAL MALPRACTICE,  NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (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