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ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that, although testimony by a detective about a phone conversation with defendant’s wife (who had since recanted and avoided testifying) violated defendant’s right to confront witnesses, the diluted strength of the phone-call evidence coupled with the striking of the detective’s testimony preserved the fairness of the trial. Defendant’s wife was a witness to the stabbing of the victim. The victim knew the defendant and identified him as the attacker. Defendant’s wife first told the police defendant was the attacker but later recanted and she could not be found at the time of trial. The detective’s testimony did not identify the wife as the person he talked to on the phone but the jury could have inferred it was she and that she identified the defendant as the attacker. However, since the detective had also talked to the victim, the jury could also have inferred it was the victim’s statement that led the detective to the defendant:

Here, the detective did not expressly state that the wife was a witness and that she had identified defendant as the attacker. While the testimony supported an inference to that effect, there was another countervailing inference —— as discussed above, the detective may have identified defendant as a suspect based on information provided by the victim to the police at the hospital and passed on to the detective once he took the case, but before the detective spoke to the wife. This inference also flowed logically from the victim’s testimony that the wife was with the victim when he was attacked by defendant, particularly because the jury heard this testimony immediately before the detective testified. As such, the jury could reasonably infer that the police knew about the wife from the victim and that his statements, relayed to the detective during the briefing from the Night Watch Unit, led the police to treat defendant as a suspect. Given this context, the testimony was neither powerfully incriminating nor, as the defendant argues, did it alone transform the entire case from that in which the People presented a single eyewitness to a case with two eyewitnesses identifying defendant as the perpetrator. People v Stone, 2017 NY Slip Op 03559, CtApp 5-4-17

CRIMINAL LAW (ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/EVIDENCE (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/HEARSAY (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)

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BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET.

The Second Department determined plaintiff bank failed to demonstrate standing to bring the foreclosure action because the criteria for the business records exception to the hearsay rule were not met:

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Kelly Thompson, an Assistant V.P., Operations Team Manager, at Bank of America, N.A. (hereinafter BANA), the servicer of the defendant Juliet Willis’s loan on behalf of the plaintiff. Thompson averred, in relevant part, that her affidavit was based upon her review of BANA’s business records, and that upon review of such records, the note was physically transferred to the plaintiff “in or about March 2007.” The plaintiff failed to demonstrate that the records relied upon by Thompson were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thompson, an employee of BANA, did not attest that she was personally familiar [*2]with the plaintiff’s recordkeeping practices and procedures … . Bank of N.Y. v Willis, 2017 NY Slip Op 03468, 2nd Dept 5-3-17

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/EVIDENCE (FORECLOSURE, STANDING, BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/HEARSAY (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)

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WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the warrantless search of a parolee’s empty car and seizure of a firearm by police officers was lawful. Defendant parolee argued only a parole officer, not a police officer, could conduct a lawful search. The Court of Appeals held that a parolee’s reduced expectation of privacy applied irrespective of whether a parole or police officer conducted the search:

In Huntley [43 NY2d 175, 181 …] we distinguished between parole officers and police officers, noting that searches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer … . Nevertheless, we concomitantly observed that, “in any evaluation of the reasonableness of a particular search or seizure,” whether undertaken by parole or police officers, “the fact of defendant’s status as a parolee is always relevant and may be critical” … .

On the facts presented here, Huntley does not compel the conclusion that the search was unconstitutional … . The detectives had a high degree of individualized suspicion based on a tip from a known individual — who correctly identified defendant’s vehicle and its location — indicating that defendant had a firearm in his vehicle, the recent arrival of which was corroborated by the absence of the vehicle during the detectives’ earlier visit and the warmth of the hood. In light of this tip, taken together with defendant’s reduced expectation of privacy, there is support in the record for the conclusion that the search of defendant’s vehicle was lawful and reasonable … . People v McMillan, 2017 NY Slip Op 03446, CtApp 5-2-17

 

CRIMINAL LAW (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SEARCH AND SEIZURE (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SUPPRESSION (CRIMINAL LAW, (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/PAROLEES (REDUCED EXPECTATION OF PRIVACY, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)

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EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION’S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE’S CASE TO PROVE INTENT.

The Court of appeals, in a full-fledged opinion by Judge DiFiore, determined that even though defendant relied solely on the prosecution's evidence to raise the agency defense to the charged drug sale, Molineux evidence of defendant's prior conviction for a drug sale was admissible in the People's direct case to prove intent:

… [D]efendant plainly raised the issue of his intent and particular role in the drug sale as a salesman based on his arguments to the jury at trial, his cross-examination of the People's witnesses, and his specific request for an agency charge to the jury. The trial court then conducted the proper balancing analysis, determining that it would permit introduction of only one of defendant's prior convictions. Under these circumstances, the People were properly permitted by the trial court to use the admissible evidence of defendant's prior drug sale conviction on the issue of intent in their case-in-chief … . People v Valentin, 2017 NY Slip Op 03444, CtApp 5-2-17

CRIMINAL LAW (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/EVIDENCE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/AGENCY DEFENSE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/MOLINEUX EVIDENCE (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)

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HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED.

The Fourth Department determined defendant was entitled to a hearing on his motion to vacate the judgment of conviction. There was hearsay evidence that a third party committed the murder and a hearing was necessary to determine the reliability of the hearsay. In addition, a hearing was required to determine whether defense counsel was ineffective in failing to investigate evidence that a third party committed the murder:

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Here, … information was received following defendant’s conviction that a third party had allegedly confessed to the murder, and there are questions of fact whether the statements of that third party would have been admissible at trial as declarations against penal interest … . Moreover, … “where, as here, the declarations exculpate the defendant, they are subject to a more lenient standard, and will be found sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true . . . That is because [d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . We thus conclude that the court should have conducted a hearing to determine, first, whether there is “competent evidence independent of the declaration to assure its trustworthiness and reliability” … and, second, whether the witness who heard the third party’s declaration is both available to testify and credible in his or her testimony … .

We further conclude that defendant is entitled to a hearing on his claims that defense counsel was ineffective for failing to investigate potentially exculpatory information. Before trial, a witness informed police that two identified individuals had told the witness that the third party had committed the murder. “A defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses . . . Consequently, the failure to investigate witnesses may amount to ineffective assistance of counsel” … . People v Davis, 2017 NY Slip Op 03375, 4th Dept 4-28-17

 

CRIMINAL LAW (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/VACATE CONVICTION, MOTION TO (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/ATTORNEYS (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/EVIDENCE (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/INEFFECTIVE ASSISTANCE (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/HEARSAY (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)

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DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Fourth Department, over a two justice dissent, affirmed defendant’s conviction and sentence. The dissenters argued the sentence for this adolescent offender was harsh and excessive. The defense attorney allowed in evidence without objection statements made by a codefendant which implicated defendant, in violation of the Bruton rule. In addition, defense counsel did not move for a severance. The Fourth Department determined the waiver of the Bruton objection and defense counsel’s decision not to move to sever defendant’s trial were strategic decisions and did not constitute ineffective assistance:

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While we agree with defendant that the admission of those statements violated Bruton and that Supreme Court’s curative instruction did not alleviate the prejudice … , we consider defense counsel’s strategic decisions to proceed with a joint trial and to consent to the admission of the codefendant’s statements to constitute a waiver of any Bruton violation … . Indeed, when the codefendant’s statements were offered in evidence, defense counsel specifically stated that he had “[n]o objection” to their admission in evidence. * * *

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It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . Indeed, it “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s allegedly deficient conduct … . Here, defense counsel specifically stated on the record that he made a decision for strategic reasons, and we conclude that defendant has not established that counsel’s strategy “was inconsistent with the actions of a reasonably competent attorney” … . People v Howie, 2017 NY Slip Op 03298, 4th Dept 4-28-17

CRIMINAL LAW (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/BRUTON RULE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/SEVERANCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED.

The Second Department, in affirming summary judgment for defendant in this dog bite case, noted that hearsay, standing alone, is insufficient to defeat a summary judgment motion. Defendant (Nicole) demonstrated she had no knowledge the dog had vicious propensities. In response, plaintiff presented only hearsay:

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Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating, through Nicole’s deposition testimony, that she was not aware, nor should she have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior … . Nicole testified that she had purchased the dog when it was two months old, the dog had undergone obedience training, and the dog had never attacked or bitten anyone before the incident at issue.

The plaintiff failed to raise a triable issue of fact in opposition. The only evidence offered by the plaintiff to demonstrate that, prior to this incident, the dog had exhibited fierce or hostile tendencies was hearsay, which is insufficient, on its own, to bar summary judgment … . Ciliotta v Ranieri, 2017 NY Slip Op 03150, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/ANIMAL LAW (DOG BITE, SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/DOG BITE  (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/HEARSAY (SUMMARY JUDGMENT,  HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/SUMMARY JUDGMENT (HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)

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MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED.

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The Second Department, reversing Supreme Court, determined defendant’s motion to renew in this rear-end collision case should not have been deemed a motion to reargue and denied. Plaintiff presented new evidence which was not available at the time the original motion was heard. The new evidence was sufficient to defeat the summary judgment motion:

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The new evidence included a transcript of the plaintiff’s deposition testimony, which had not been submitted to the court on the prior motion, as her deposition had not been completed until after the prior motion had been decided. Therefore, the motion was correctly denominated by the defendant as one for leave to renew his opposition to the plaintiff’s motion for summary judgment. Furthermore, this new evidence raised triable issues of fact as to the plaintiff’s comparative fault. Accordingly, the evidence was sufficient to change the court’s prior determination, and should have resulted in the court, upon renewal, denying the plaintiff’s motion for summary judgment on the issue of liability. Donovan v Rizzo, 2017 NY Slip Op 03154, 2nd Dept 4-26-17

CIVIL PROCEDURE (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/RENEW, MOTION TO MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/REARGUE, MOTION TO  (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)

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HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION.

The Second Department noted that hearsay can be submitted in opposition to a summary judgment motion but, to raise a question fact, hearsay alone is not enough. Dindiyal v Dindiyal, 2017 NY Slip Op 03152, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/SUMMARY JUDGMENT (HEARSAY,(HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)  

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PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert (Dr. Befeler) was a general surgeon and did not assert any knowledge of gastroenterology. His affidavit was not sufficient to raise a question of fact in the face of plaintiff’s gastroenterology experts:

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Here, there is no indication that Dr. Befeler possessed the requisite background and knowledge to furnish a reliable opinion concerning the practice of gastroenterology … . While a gastroenterologist may well be qualified to render an opinion on a surgical procedure involving the gastrointestinal system, it cannot be said that a general surgeon is qualified to opine on any specialty simply because the specialist may eventually refer the patient for surgery. Indeed, Dr. Befeler averred only that his conclusion that both doctors “were negligent in failing to follow standard and accepted medical procedures” was based upon his “review of the above records, [his] education, years of training, and [his] forty year experience in the field of General Surgery.” Nowhere did the doctor set forth any experience in gastroenterology or detail the standard of care for that specialty. Bartolacci-Meir v Sassoon, 2017 NY Slip Op 03040, 1st Dept 4-20-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)

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