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(HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY AS AN EXPERT ABOUT THE STRUCTURE OF THE GANG AND THE RELATIONSHIPS AMONG SPECIFIC MEMBERS, (HARMLESS) ERROR TO ALLOW IN EVIDENCE A CHART DESCRIBING THE STRUCTURE AND MEMBERSHIP OF THE GANG (SECOND DEPT).

The Second Department determined it was (harmless) error to allow a detective to testify as an expert about the structure of the gang and the relationships among specific gang members. It was also (harmless) error to admit a chart describing the structure and membership of the gang:

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The defendant correctly contends that the Supreme Court erred by, in effect, permitting the investigating detective in the case to testify as an expert not only regarding the general hierarchy of the gang to which the defendant belonged, but also as to the relationships between specific gang members, which he knew only as a result of his own participation in the investigation. Allowing the detective, who was intimately involved in the investigation into the gang-related arson, to testify as an expert created a danger that he would end up testifying beyond any cognizable field of expertise as an apparently omniscient expositor of the facts of the case, thereby usurping the fact-finding role of the jury … . It was also improper, under the circumstances here, to admit into evidence a summary chart depicting the gang hierarchy and membership of the gang, which identified the gang’s members by name and their associated arrest photos … . People v Vazquez, 2017 NY Slip Op 06092, Second Dept 8-9-17

CRIMINAL LAW (EVIDENCE, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY AS AN EXPERT ABOUT THE STRUCTURE OF THE GANG AND THE RELATIONSHIPS AMONG SPECIFIC MEMBERS, (HARMLESS) ERROR TO ALLOW IN EVIDENCE A CHART DESCRIBING THE STRUCTURE AND MEMBERSHIP OF THE GANG (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY AS AN EXPERT ABOUT THE STRUCTURE OF THE GANG AND THE RELATIONSHIPS AMONG SPECIFIC MEMBERS, (HARMLESS) ERROR TO ALLOW IN EVIDENCE A CHART DESCRIBING THE STRUCTURE AND MEMBERSHIP OF THE GANG (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, GANGS, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY AS AN EXPERT ABOUT THE STRUCTURE OF THE GANG AND THE RELATIONSHIPS AMONG SPECIFIC MEMBERS, (HARMLESS) ERROR TO ALLOW IN EVIDENCE A CHART DESCRIBING THE STRUCTURE AND MEMBERSHIP OF THE GANG (SECOND DEPT))/GANGS (CRIMINAL LAW, EVIDENCE, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY AS AN EXPERT ABOUT THE STRUCTURE OF THE GANG AND THE RELATIONSHIPS AMONG SPECIFIC MEMBERS, (HARMLESS) ERROR TO ALLOW IN EVIDENCE A CHART DESCRIBING THE STRUCTURE AND MEMBERSHIP OF THE GANG (SECOND DEPT))

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PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this slip and fall case should have been granted. Plaintiff alleged that he fell off the edge of a service ramp in an area where trucks were unloaded. The plaintiff was unable to raise a question of fact about whether the ramp was negligently designed or maintained. There were no building code or other safety code provisions which were violated, or even applicable:

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Defendants’ expert report stated that the Building Code applicable to the premises, which was enacted in 1968 … , was silent concerning the components of a loading dock, delivery truck parking, material loading and unloading, and in regard to an access ramp between the truck parking floor and the top of the loading dock. As a result, the expert concluded, the ramp did not violate the Building Code. The expert also concluded that because the service ramp was not part of the required egress from the loading dock area, those parts of the Building Code applicable to “Means of Egress” did not apply.

Based on his conclusion that the Building Code did not contain sections specifically applicable to the instant facts, defendants’ expert reviewed the standards promulgated by OSHA. He concluded, however, that no section of OSHA applied to the instant facts. He also found that National Fire Protection Agency “Life Safety Code” did not apply to the instant facts. Defendants’ expert opined that the portion of the curb of the ramp where plaintiff was alleged to have tripped was not a foreseeable pedestrian path, since it runs parallel, not across the path of pedestrians walking up and down the ramp. He noted that the use of bright yellow paint to alert pedestrians to the presence of walkway conditions was proper and in compliance with the American Society for Testing and Materials. Overall, defendants’ expert concluded that plaintiff had not cited to any valid authority in support of his contention that the ramp caused the accident, and established that the ramp did not violate any standards referenced by plaintiff’s expert in his expert exchange.

In opposition, plaintiff failed to raise a triable issue of fact as to any negligence on the part of defendant … . Schmidt v One N.Y. Plaza Co. LLC, 2017 NY Slip Op 06047, First Dept 8-8-17

 

NEGLIGENCE (SLIP AND FALL, RAMP, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, BUILDING AND SAFETY CODES, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/SLIP AND FALL (RAMP, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/BUILDING CODES (SLIP AND FALL, RAMPS, PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))/SAFETY CODES (SLIP AND FALL, RAMPS., PLAINTIFF WAS UNABLE TO RAISE A QUESTION OF FACT WHETHER THE RAMP FROM WHICH HE FELL WAS NEGLIGENTLY DESIGNED OR MAINTAINED, NO APPLICABLE BUILDING OR SAFETY CODES (FIRST DEPT))

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CHILD ABUSE ALLEGATIONS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, NO NEED TO DEMONSTRATE WHICH OF THE TWO RESPONDENTS ABUSED THE CHILD (FIRST DEPT).

The First Department determined the child abuse allegations against mother and grandmother (respondents) were supported by a preponderance of the evidence. It was not necessary to prove which of them abused the child (Syriah):

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The evidence submitted on petitioner’s direct case supports the court’s finding that respondents abused Syriah by showing that, while she was in their care, Syriah suffered an injury that would not ordinarily occur absent an act or omission of the person responsible for her care … .”[Petitioner] was not required to establish whether the mother or the [grandmother] actually inflicted the injuries, or whether they did so together”… .

A preponderance of the evidence supports the court’s conclusion that Syriah’s injuries were inflicted and not accidentally caused. She suffered a traumatic brain injury, which resulted in anoxic ischemic encephalopathy and subdural hematoma, from which she died. Doctor Cahill, a pediatrician qualified as an expert in child abuse pediatrics, opined to a reasonable degree of medical certainty that Syriah’s injuries were the result of a shaking event. Among other things, Syriah had no skull fracture, and, as one expert testified, without a skull fracture, the most likely explanation for subdural hemorrhage and anoxic change is vigorous shaking.

Respondents failed to demonstrate that Syriah’s injuries “could reasonably have occurred accidentally” so as to rebut petitioner’s prima facie showing of abuse … . The testimony of petitioner’s experts ruled out the possibility that the injuries were caused, as respondents contend, by a short fall from a mattress to the floor. Indeed, respondents’ own experts testified that it would be “unusual” and “extremely rare” for a child to suffer the injuries that Syriah suffered from a short fall.  Matter of Syriah J. (Esther J.), 2017 NY Slip Op 06048, First Dept 8-8-17

 

FAMILY LAW (CHILD ABUSE, EVIDENCE, CHILD ABUSE ALLEGATIONS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, NO NEED TO DEMONSTRATE WHICH OF THE TWO RESPONDENTS ABUSED THE CHILD (FIRST DEPT))/EVIDENCE (FAMILY LAW, CHILD ABUSE ALLEGATIONS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, NO NEED TO DEMONSTRATE WHICH OF THE TWO RESPONDENTS ABUSED THE CHILD (FIRST DEPT))/CHILD ABUSE (FAMILY LAW, EVIDENCE, CHILD ABUSE ALLEGATIONS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, NO NEED TO DEMONSTRATE WHICH OF THE TWO RESPONDENTS ABUSED THE CHILD (FIRST DEPT))

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PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to foreclose because the criteria for the business records exception to the hearsay rule were not met. The court noted that the bank’s failure to demonstrate standing did not require granting defendant’s motion for summary judgment on that ground. Defendant failed to affirmatively demonstrate plaintiff did not have standing:

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… [T]he plaintiff failed to meet its prima facie burden of establishing its standing … . In support of its motion, the plaintiff submitted the affidavit of Selena Mitcherson, a vice president of the plaintiff’s loan servicer. Mitcherson averred, based upon her review of the loan servicer’s business records, that “prior [to] commencement and at all times thereafter,” the plaintiff remained in possession of the original promissory note, which bears an indorsement payable to the plaintiff’s order and was “delivered to it, or its agent, on or about March 31, 2010.” However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Mitcherson under the business records exception to the hearsay rule (see CPLR 4518[a]), since Mitcherson did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff … . The plaintiff also failed to establish standing based upon the purported assignment of the note and mortgage … . …

Nevertheless, the Supreme Court properly denied that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against him for lack of standing. “[T]he burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, on his cross motion, the defendant failed to make a prima facie showing that the plaintiff lacked standing … . Wells Fargo Bank, N.A. v Talley, 2017 NY Slip Op 05996, Second Dept 8-2-17

FORECLOSURE (PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, BUSINESS RECORDS, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))/HEARSAY (BUSINESS RECORDS, PLAINTIFF BANK FAILED TO MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING, SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT))

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PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff, a mortgage loan servicer for Wilmington (bank), did not demonstrate standing to foreclose and did not demonstrate it had been delegated the authority to foreclose by Wilmington. Therefore, plaintiff’s motion for summary judgment was properly denied:

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… [I]n support of its motion, the plaintiff relied on the affidavit of Jessica Lancaster, its “Legal Coordinator.” Lancaster averred that the subject “loan” was part of a portfolio of assets purchased by Berkshire Hathaway, Inc., and deposited into Wilmington. Lancaster further averred that on February 1, 2013, “the notes and mortgages relating to the Purchased Assets were physically delivered to the offices of [the plaintiff].” The affidavit, which was based upon Lancaster’s review of and familiarity with the plaintiff’s records, was sufficient to establish, prima facie, that “the notes and mortgages relating to the Purchased Assets” were physically delivered to the plaintiff. However, Lancaster’s averment that the subject “loan” was among those purchased assets was hearsay for which she failed to lay a proper foundation under the business records exception to the hearsay rule (see CPLR 4518[a]…). Moreover, no further evidence was submitted to establish that the subject note and mortgage were among the purchased assets. Accordingly, the plaintiff failed to establish, prima facie, its standing to commence this action.

In addition, the plaintiff failed to establish, prima facie, its capacity to commence this action. In that respect, the plaintiff did not demonstrate, prima facie, that it had been delegated the authority by Wilmington to act on its behalf with respect to the subject mortgage since it failed to submit any agreement, power of attorney, or similar documentation of such alleged authority … . 21st Mtge. Corp. v Adames, 2017 NY Slip Op 05925, Second Dept 8-2-17

 

FORECLOSURE (PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BUSINESS RECORDS, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, STANDING, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS, STANDING, PLAINTIFF MORTGAGE SERVICER DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE TO DEMONSTRATE STANDING AND DID NOT SUBMIT PROOF IT HAD BEEN DELEGATED THE AUTHORITY TO FORECLOSE, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT).

The Second Department, although finding the error harmless, determined the introduction of DNA evidence without testimony by the analysts violated the Confrontation Clause:

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The defendant’s rights under the Confrontation Clause (see US Const Sixth Amend) were violated when the Supreme Court admitted into evidence lab reports from a nontestifying DNA analyst which directly linked the defendant to the crime … .

“Confrontation Clause violations are subject to a constitutional harmless error analysis” … . “Constitutional error requires reversal unless the error’s impact was harmless beyond a reasonable doubt'” … . This determination is based on a review of the ” entire record'”… . In order for the error to be harmless beyond a reasonable doubt, the evidence of the defendant’s guilt must be overwhelming, and there must be “no reasonable possibility that the error might have contributed to the defendant’s conviction” … .

Here, apart from the erroneously admitted evidence, the evidence of the defendant’s guilt was overwhelming. People v Tsintzelis, 2017 NY Slip Op 05980, Second Dept 8-2-17

 

CRIMINAL LAW (DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/DNA (CRIMINAL LAW, CONFRONTATION CLAUSE, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))/CONFRONTATION CLAUSE (DNA, ADMISSION OF DNA EVIDENCE WITHOUT THE TESTIMONY OF THE ANALYST VIOLATED THE CONFRONTATION CLAUSE, BUT WAS HARMLESS ERROR IN THIS CASE (SECOND DEPT))

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PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT).

The First Department, in a detailed decision, over a dissent, determined that the illegal search of defendant’s belongings at the hospital did not taint the subsequent search of an area near defendant’s residence (his uncle’s apartment) which turned up a gun. Defendant, although charged with robbery, was convicted only of criminal possession of a weapon. The victim had been robbed by a masked man who fired a gun in the elevator where the robbery took place. Because the police could not find evidence a shot was fired in the elevator they believed the robber may have shot himself. The police found the defendant at a hospital, suffering from a gunshot wound in his leg. Defendant’s belongings were searched at the hospital and items taken in the robbery were seized. The police spoke with the defendant and his girlfriend and eventually searched the apartment where defendant lived with his uncle, with the uncle’s consent. The majority held that the investigation would have continued even if the illegal search at the hospital had not been conducted. The dissent argued the police would have had no reason to continue the investigation without the items found in the illegal search:

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“[W]here the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct” … . “[T]he independent source rule is applicable . . . [where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure. In cases where this causal nexus is lacking, the exclusionary rule simply does not apply” … . A key consideration in determining whether this rule applies is whether “the prosecution has somehow exploited or benefitted from its illegal conduct, [whether] there is a connection between the violation of a constitutional right and the derivative evidence” … .

Here, the challenged searches were attenuated from the illegal search of defendant’s clothing bags. When the detective entered the hospital room, his theory of the crime was that it had been committed by a black male who had a gunshot wound to the leg. Defendant fit that description. Thus, we disagree with the dissent’s statement that, even if the search of the clothing bags turned up no evidence, the police “would have had little cause to pursue the investigation, let alone . . . search defendant’s vehicle and home.” To the contrary, regardless of what the detective were to find in defendant’s possession, he was likely to continue investigating defendant as a possible suspect. Such investigation would have included the routine and natural investigatory step of interviewing defendant and his girlfriend, which is what led him to learn about the car and the apartment. Further, none of the items recovered during the illegal search was used to procure defendant’s uncle’s consent to search the apartment, so the police did not engage in “exploitation of [the] illegality” as charged by the defense. People v Hill, 2017 NY Slip Op 0592, First Dept 8-1-17

 

CRIMINAL LAW (EVIDENCE, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/SEARCH AND SEIZURE (INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/INDEPENDENT SOURCE RULE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))

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ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT).

The First Department, in a detailed decision describing all the evidence, determined the defendant's attempted murder conviction survived a weight of the evidence analysis, but the admission of documentary evidence was error which required reversal. The victim, Russo, had been shot in the head and could not remember who shot him. Before the grand jury, Russo testified that both the defendant (Bell) and a man named Diaz were in the apartment at the time of the shooting. At trial, however, Russo testified Diaz was not in the apartment. A detective testified Diaz had been interviewed in Florida and provided time sheets on his employer's corporate letterhead indicating he was in Florida at the time of the shooting. Those time sheets were erroneously admitted in evidence without meeting the criteria for the business records exception to the hearsay rule:

… [W]e find that the court committed reversible error in admitting Diaz's time sheets into evidence. The business records of Diaz's employer were admitted without a proper foundation, and the court failed to clearly instruct the jury that the time sheets could not be considered for the truth of their content. The jury was not told that the time sheets could not be relied upon to conclude that Diaz was not in the apartment at the time of the shootings. The business records exception to the hearsay rule is codified in CPLR 4518(a), and it also applies in criminal cases (CPL 60.10) … . For a business record to be admissible, it must be made in the regular course of business, it must be the regular course of business to make the record, and “the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” … . Business records are customarily offered through a foundation witness, such as the custodian of the records or an employee who is familiar with the record-keeping procedures of the record maker … . …

The People argue that the time sheets were admitted not for the truth of their content, but only to rebut defense counsel's extensive challenges to the adequacy of the police investigation, and that the court's limiting instruction was adequate. The limiting instruction that the court gave was imprecise and confusing. The court only instructed the jury that the time sheets were “being received in evidence as documents which [Detective Hennessey] says reflect what efforts he did and what information he received on a very particular subject matter . . . .” The court did not clearly instruct the jurors that they were not to consider the time sheets in determining whether Diaz was in the apartment at the time of the shootings. This error was not harmless. There was a substantial disputed issue about whether Diaz was the additional person in the apartment, whom [a co-defendant] identified as the shooter. This conclusion was also supported by Russo's grand jury testimony, even though Russo later repudiated it. The time sheets established an alibi for Diaz, that he was in Florida on October 25, 2007. Bell's defense was that he did not shoot Russo, and someone else in the apartment did the shooting. Allowing the time sheets into evidence was not harmless error because there was “a significant probability . . . that the jury would have acquitted the defendant had it not been for the error” … . People v Bell, 2017 NY Slip Op 05919, First Dept 8-1-17

CRIMINAL LAW (EVIDENCE, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/BUSINESS RECORDS (CRIMINAL LAW, HEARSAY, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))

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THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was sufficient circumstantial evidence of the cause of plaintiff’s fall down a set of stairs to survive summary judgment. The plaintiff alleged there was inadequate lighting:

The defendant failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the plaintiffs could not identify the cause of the injured plaintiff’s fall. “[T]hat a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury”… . Here, the defendant failed to eliminate triable issues of fact as to whether the alleged inadequate lighting condition for the subject staircase was a proximate cause of the injured plaintiff’s fall… . Such a finding, given the eyewitness account of the circumstances surrounding the fall and the injured plaintiff’s own statement just before the fall, warning his companions to “watch out, it is dark, you cannot see,” would be based on logical inferences, not speculation … . Pajovic v 94-06 34th Rd. Realty Co., LLC, 2017 NY Slip Op 05831, 2nd Dept 7-25-17

NEGLIGENCE (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/SLIP AND FALL (THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)/EVIDENCE (SLIP AND FALL, THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT)

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QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the golf-course sprinkler-valve-hole, which caused plaintiff’s decedent to trip and fall, was concealed or unreasonably increased the risks inherent in the golf course, thereby overcoming the assumption of risk doctrine. Supreme Court should not have excluded the photographs of the area where plaintiff fell. Contrary to Supreme Court’s reasoning, the person who authenticated the photographs was a not a notice witness who should have been named prior to the filing of the note of issue:

… [P]laintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course … In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion. Contrary to the court’s determination, the plaintiff was not required to identify John Flower as a notice witness prior to filing the note of issue. The disclosure requirements of CPLR 3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action” … . Here, Flower did not possess information material and necessary to the prosecution or defense of the action. In his affidavit, Flower merely authenticated certain photographs, most of which had been submitted by the decedent with his notice of claim prior to his death. Consequently, the court should not have rejected Flower’s affidavit and the attendant photographs on the ground that the plaintiff had failed to identify Flower as a notice witness prior to the filing of the note of issue. As a related matter, the court improperly rejected the affidavit of the plaintiff’s expert on the ground that he relied upon the photographs. Further, the court should not have rejected the two remaining affidavits from individuals who were disclosed to the defendant prior to the filing of the note of issue. MacIsaac v Nassau County, 2017 NY Slip Op 05814, 2nd Dept 7-25-17

NEGLIGENCE (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)CIVIL PROCEDURE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/EVIDENCE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/ASSUMPTION OF RISK (GOLF, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/GOLF (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/PHOTOGRAPHS (EVIDENCE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/NOTICE WITNESS (CIVIL PROCEDURE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)

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