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QUESTION OF FACT WHETHER PLAINTIFF’S LANE CHANGE CONSTITUTED A NON-NEGLIGENT EXPLANATION FOR THIS REAR-END COLLISION, PLEA TO FOLLOWING TOO CLOSELY IS NEGLIGENCE PER SE ONLY IF THE VIOLATION IS UNEXCUSED.

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted. Defendant raised a question of fact whether the cause of the accident was plaintiff’s sudden lane change. The fact that defendant pled guilty to a traffic violation, following too closely, would constitute negligence per se only if unexcused:

Plaintiff … submitted the deposition testimony of defendant, who stated that he did not see plaintiff’s vehicle until immediately before the accident, when plaintiff moved from the middle lane to the right lane and slammed on his brakes in an instant or quickly, i.e., plaintiff’s action was not a slow and cautious movement to which defendant could react … . Defendant explained that he had not seen plaintiff’s vehicle before the collision because he had been paying attention to the road in front of him and, when plaintiff engaged in his maneuver (changed lanes), defendant slammed on his brakes and tried to steer into the shoulder to avoid the accident, which caused the back end of the trailer that was attached to the truck to swing out, and the left corner of the truck struck plaintiff’s vehicle. Based on the foregoing, we conclude that plaintiff “failed to meet his initial burden of establishing his entitlement to judgment as a matter of law inasmuch as he submitted the deposition testimony in which [defendant] provided a nonnegligent explanation for the collision,” namely, that plaintiff caused the collision when he suddenly changed lanes in response to slowing traffic in the middle and left lanes of the highway and abruptly stopped in the right lane in front of defendant … .

… [W]e reject plaintiff’s contention that he established defendant’s negligence as a matter of law by submitting evidence of defendant’s guilty plea of following too closely (Vehicle and Traffic Law § 1129 [a]). “It is well settled that the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se’ ” … . “Rather, it is the unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se’ ” … . Here, upon defendant’s explanation, the trier of fact could excuse the violation on the ground that plaintiff cut in front of defendant and immediately stopped, thereby failing to provide defendant with adequate time to create the “reasonable and prudent” distance between the vehicles that is required by the statute … . Gardner v Chester, 2017 NY Slip Op 05336, 4th Dept 6-30-17

 

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PROOF OF STANDING DID NOT MEET CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Fourth Department, reversing Supreme Court, determined the bank’s proof in this foreclosure action did not meet the criteria of the business records exception to the hearsay rule:

We agree with defendants that the affidavit submitted by plaintiff in support of its motion was insufficient to establish standing. The Caliber employee who authored the affidavit stated that Caliber maintains plaintiff’s books and records pertaining to the mortgage account; plaintiff had physical possession of the original note before the action was commenced and remained in physical possession of the original note as of the date of the motion; and he was personally familiar with Caliber’s record-keeping practices. However, plaintiff failed to demonstrate that its records pertaining to defendants’ account were admissible as business records (see CPLR 4518 [a]), inasmuch as the affiant did not swear that he was personally familiar with plaintiff’s record-keeping practices and procedures… .

Contrary to plaintiff’s contention, the mere attachment of a copy of the note to the verified complaint does not demonstrate that plaintiff had physical possession of the original note when the action was commenced … , and thus is insufficient to establish standing. The Bank of N.Y. Mellon v Anderson, 2017 NY Slip Op 05349, 4th Dept 6-30-17

 

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PEOPLE PROPERLY ALLOWED TO IMPEACH THEIR OWN WITNESS, THE WITNESS’S TESTIMONY AFFIRMATIVELY DAMAGED THE PEOPLE’S CASE AND WAS NOT, AS ARGUED BY THE CONCURRING JUSTICES, MERELY NEUTRAL OR UNHELPFUL.

The Fourth Department, over a two-justice concurrence, determined the People were properly allowed to impeach their own witness when the witness testified she did not see the driver of the car from which shots were fired. She had previously stated the defendant was the driver. The concurring justices argued that the witness’s changed testimony did not affirmatively damage the People’s case, but was merely neutral and unhelpful, and therefore impeachment was not appropriate. However, the concurring justices deemed the error harmless:

Contrary to defendant’s … contention, the court properly allowed the People to impeach the credibility of the victim’s girlfriend when she testified that she did not see the driver of the vehicle who shot the victim, which contradicted her grand jury testimony and her sworn statement identifying defendant as the shooter. It is well established that “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching the witness’s credibility with respect to his or her testimony . . . [where, as here], the testimony on a material fact’ . . . tend[s] to disprove the party’s position or affirmatively damage[s] the party’s case’ ” … . We conclude that the testimony of the witness denying that she saw the driver related to a material fact, the identity of the shooter, and affirmatively damaged the People’s case … , particularly because the victim did not testify. People v Ellison, 2017 NY Slip Op 05339, 4th Dept 6-30-17

 

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PROSECUTOR’S CHARACTERIZATION OF DNA EVIDENCE WAS NOT IMPROPER, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE CHARACTERIZATION WAS NOT INEFFECTIVE ASSISTANCE.

The Court of Appeals, reversing the appellate division, determined the characterization of the DNA evidence by the prosecutor was not improper, and defense counsel’s failure to object to the characterization did not constitute ineffective assistance:

The People’s forensic expert gave statistical testimony regarding the likelihood (“1.661 quadrillion times more likely”) that defendant and his deceased wife, rather than two randomly selected individuals, were contributors to a DNA mixture profile drawn from a blood stain on defendant’s sweatshirt. The prosecutor, during his summation, summarized this testimony by telling the jury that the victim’s DNA was “on” defendant’s sweatshirt. Defense counsel’s failure to object to this characterization did not amount to ineffective assistance of counsel. The expert testimony regarding the “likelihood ratio” here contrasts with the testimony at issue in People v Wright (25 NY3d 769 [2015]), which “only indicated that defendant could not be excluded from the pool of male DNA contributors, and . . . provided no statistical comparison to measure the significance of those results” … . Nor did counsel’s other alleged errors of representation, either individually or collectively, deprive defendant of meaningful representation. People v Ramsaran, 2017 NY Slip Op 05268, CtApp 6-29-17

 

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DOCTRINE OF RES IPSA LOQUITUR RAISED A QUESTION OF FACT IN THIS ESCALATOR ACCIDENT CASE.

The Second Department, reversing Supreme Court, determined defendant Port Authority was not entitled to summary judgment in this slip and fall case. Plaintiff alleged she was walking up a stopped escalator when it suddenly started moving downward, causing her to fall. The doctrine of res ipsa loquitur raised a question of fact:

“Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … . In order to rely on the doctrine of res ipsa loquitur, a plaintiff must show that the event was of a kind that ordinarily does not occur in the absence of someone’s negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and that it was not due to any voluntary act or contribution on the part of the plaintiff … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not’ that the injury was caused by defendant’s negligence” … .

Here, the plaintiffs pointed to evidence that, once this particular escalator is stopped, it will not reset itself or otherwise restart on its own. Someone has to restart the escalator by physically using a specific key at the top or bottom of the escalator in order for the escalator to start moving again. Similarly, there was evidence that the only possible way to reverse the direction of the escalator was to use that specific key. Only Port Authority employees had access to the key, which was kept in a locked cabinet in the office of a unit maintenance supervisor. The fact that the escalator was open to the public does not remove it from the exclusive control of the Port Authority because the mechanism for controlling the escalator was locked and accessible only by a specific key … . Ramjohn v Port Auth. of N.Y. & N.J., 2017 NY Slip Op 05254, 2nd Dept 6-28-17

 

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PLAINTIFF BICYCLIST STRUCK FROM BEHIND, NO EVIDENCE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the plaintiff bicyclist was entitled to summary judgment in this traffic accident case. Plaintiff was in the bicycle lane when he was struck from behind by defendant’s (Reyes’) car. There was no evidence plaintiff was comparatively negligent:

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide… . Where the movant has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … .

Here, the evidence submitted on the plaintiff’s motion, which included the deposition transcripts of the plaintiff and Reyes, demonstrated, prima facie, that Reyes was negligent as a matter of law because he violated Vehicle and Traffic Law § 1163(a)… . The deposition testimony showed that Reyes struck the rear of the plaintiff’s bicycle while making a right turn from Wythe Avenue onto North 6th Street. The plaintiff was in the bicycle lane and ahead of the defendants’ vehicle when the accident occurred. This evidence demonstrated that Reyes failed to yield the right-of-way to the plaintiff, that the turn could not be made with reasonable safety, and that Reyes failed to see that which he should have seen. The evidence submitted in support of the motion also demonstrated that Reyes’s negligence was the sole proximate cause of the subject accident, without any comparative negligence on the plaintiff’s part. In opposition, the defendants failed to raise a triable issue of fact. Harth v Reyes, 2017 NY Slip Op 05204, 2nd Dept 6-28-17

 

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MOTION TO SET ASIDE THE VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, PHOTOGRAPHS TAKEN TWO WEEKS AFTER THE ACCIDENT SHOULD NOT HAVE BEEN EXCLUDED, CONTRACT SPECIFICATIONS FOR WORK ON THE AREA OF THE FALL SHOULD NOT HAVE BEEN EXCLUDED, SUBPOENAS FOR WITNESSES WHO HAD NOT BEEN DEPOSED SHOULD NOT HAVE BEEN QUASHED.

The First Department determined the defendants’ motion to set aside the verdict in this slip and fall case should not have been granted. The First Department further held that photographs of the sinkhole where plaintiff fell (taken two weeks after the injury) and the contract specifications for repair of the sinkhole should not have been excluded from evidence. In addition plaintiff’s subpoenas for a city inspector and a principal of the contractor (Halcyon) which repaired the sinkhole should not have been quashed. The fact that those witnesses were not deposed did not preclude plaintiff’s calling them at trial:

… [T]he trial court erred in precluding pictures of the accident site … . Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident … . Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.

Nor should the court have precluded the City’s specifications incorporated into its contract with Halcyon. The specifications were expressly incorporated into the contract between Halcyon and the City; thus, they applied not only to the City itself, but also to third parties. Therefore, they were admissible as potential evidence of defendants’ negligence… , and indeed, the City failed to show how the specifications transcended the duty of reasonable care. The trial court’s exclusion of this evidence regarding the specifications hobbled plaintiff’s ability to prove that the City had engaged in affirmative negligence — the very basis upon which the trial court granted the directed verdict.

Likewise, the court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon … . Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so … . Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial. Gonzalez v City of New York, 2017 NY Slip Op 05180, 1st Dept 6-27-17

 

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PHOTOGRAPH TAKEN FROM A WEBSITE NOT SUFFICIENTLY CONNECTED TO THE DEFENDANT, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Stein, with a concurring opinion by Judge Rivera, reversing the Appellate Division, determined that a photograph taken from a website, allegedly depicting the defendant with a handgun similar to the handgun used in the robbery, was not adequately authenticated. The conviction was reversed. The evidence tying the defendant to the website was not strong enough. There was no showing defendant controlled the website, or that others did not have access to the website:

… [T]he evidence presented here of defendant’s connection to the website or the particular profile was exceedingly sparse … . For example, notably absent was any evidence regarding whether defendant was known to use an account on the website in question, whether he had ever communicated with anyone through the account, or whether the account could be traced to electronic devices owned by him. Nor did the People proffer any evidence indicating whether the account was password protected or accessible by others, whether non-account holders could post pictures to the account, or whether the website permitted defendant to remove pictures from his account if he objected to what was depicted therein. Without suggesting that all of the foregoing information would be required or sufficient in each case, or that different information might not be relevant in others, we are convinced that the authentication requirement cannot be satisfied solely by proof that defendant’s surname and picture appears on the profile page. Thus, even if we were to accept that the photograph could be authenticated through proof that the website on which it was found was attributable to defendant, the People’s proffered authentication evidence failed to actually demonstrate that defendant was aware of — let alone exercised dominion or control over — the profile page in question … . …

In sum, the People failed to demonstrate that the photograph was a fair and accurate representation of that which it purported to depict. Nor — assuming adoption of the test urged by the People (or some variation thereof) — did the People present sufficient evidence to establish that the website belonged to, and was controlled by, defendant. People v Price, 2017 NY Slip Op 05174, CtApp 6-27-17

 

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PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION.

The Third Department determined plaintiff’s expert did not raise a question of fact in this medical malpractice action.  Plaintiff injured her shoulder when she caught a patient (Lisa Clark) who started to fall as she was being transferred from a sideboard to a physical therapy bed. The action was deemed to sound in medical malpractice:

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The gravamen of plaintiff’s claim is that initiating a slide board transfer of Clark with minimal to moderate assistance deviated from the applicable standard of care, thereby causing Clark’s fall and plaintiff’s injuries. Defendants met their initial burden of establishing entitlement to judgment as a matter of law by submitting, among other things, an expert affidavit from a physical therapist opining that utilizing a slide board transfer with minimal assistance did not deviate from the accepted standard of care and noting, based on a review of Clark’s records, that Clark had successfully completed slide board transfers with minimal or moderate assistance on prior occasions … . Thus, “the burden shifted to plaintiff to present expert medical opinion evidence that there was a deviation from the accepted standard of care” … .

In opposition, plaintiff submitted, among other things, the affidavit of an orthopedic surgeon, Matthew J. Nofziger. Even assuming that Nofziger was qualified to provide an opinion with respect to the standard of care used in the physical therapy field for the purpose of assessing the appropriateness of transfer procedures … , we find his affidavit to be insufficient to raise a triable issue of fact. Although Nofziger criticized the assessment of Clark’s physical and cognitive abilities prior to the slide board transfer, he failed to identify or define the applicable standard of care appropriate in this case, merely asserting, in a conclusory manner, that Clark required a higher level of assistance than was provided to her … . Nor did Nofziger set forth any particular actions or procedures that could have prevented Clark from falling, thereby failing to establish the requisite nexus between the alleged malpractice and plaintiff’s injury … . Therefore, even if considered, Nofziger’s affidavit was patently insufficient to raise a triable issue of fact as to whether the transfer procedure used in this case deviated from the applicable standard of care … . Webb v Albany Med. Ctr., 2017 NY Slip Op 05146, 3rd Dept 6-22-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (EVIDENCE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, LAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)

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HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT.

The Third Department determined hearsay evidence constituted substantial evidence and supported a finding that petitioner abused a resident of a facility operated by the Office of People with Developmental Disabilities (OPWDD). A statement from an eyewitness was the challenged hearsay:

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… [I]t is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence … Further, hearsay evidence “may, under appropriate circumstances, form the sole basis of an agency’s determination, unless the hearsay evidence is seriously controverted” … . Here, the corroborated description of the incident by the eyewitness was only controverted by petitioner’s denial that he punched the victim. Petitioner’s acknowledgment that he engaged in horseplay with the victim that morning, combined with his statements on two other occasions that he did not recall whether he punched the victim, presented credibility questions for the Justice Center to resolve … . Consequently, the Justice Center could view the corroborated description by the eyewitness as not seriously controverted and “sufficiently reliable” so as to constitute substantial evidence … . Matter of Cauthen v New York State Justice Ctr. for the Protection of People with Special Needs, 2017 NY Slip Op 05147, 3rd Dept 6-22-17

ADMINISTRATIVE LAW (EVIDENCE, HEARSAY, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/EVIDENCE (ADMINISTRATIVE LAW, SUBSTANTIAL EVIDENCE, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/HEARSAY (ADMINISTRATIVE LAW, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)

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