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MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY.

NEGLIGENCE, MEDICAL MALPRACTICE, EVIDENCE, CIVIL PROCEDURE.

The Court of Appeals determined the trial court did not abuse its discretion when it denied plaintiff’s motion to strike defendant’s expert’s testimony. The “expert-evidence” notice indicated the expert would testify about the cause of plaintiff’s decedent’s death but did not indicate the substance of the testimony. At trial the expert did not agree with the cause described in the autopsy report (pneumonia) and testified death was attributable to cardiac arrhythmia. The motion to strike argued the “expert notice” was deficient because it did not provide any detail about the expert’s opinion. Because the lack of detail was obvious pre-trial, the mid-trial objection was properly overruled:

Plaintiff made her motion mid-trial immediately prior to the expert’s testimony. Plaintiff argues that at the time of the expert exchange, she had no reason to object to the disclosure statement because the statement gave no indication that defendant would challenge plaintiff’s theory of decedent’s cause of death. Assuming defendant’s disclosure was deficient, such deficiency was readily apparent; the disclosure identified “causation” as a subject matter but did not provide any indication of a theory or basis for the expert’s opinion. This is not analogous to a situation in which a party’s disclosure was misleading or the trial testimony was inconsistent with the disclosure. Rather, the issue here was insufficiency.

The trial court’s ruling did not endorse the sufficiency of the statement but instead addressed the motion’s timeliness. The lower courts were entitled to determine, based on the facts and circumstances of this particular case, that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised — and potentially cured — before trial. Rivera v Montefiore Med. Ctr., 2016 NY Slip Op 06854, CtApp 10-20-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/MEDICAL MALPRACTICE (MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, MID-TRIAL OBJECTION TO SUFFICIENCY OF EXPERT-NOTICE PROPERLY OVERRULED AS UNTIMELY)

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ADMISSIBILITY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539.

CRIMINAL LAW, EVIDENCE, CIVIL PROCEDURE.

The Court of Appeals determined evidence which was originally generated in electronic form was admissible under CPLR 4518 (a) and CPLR 4539 (b) applies only to documents originally in hard copy and subsequently scanned into digital form. The document in question was a record of testing of the simulator solution used during an alcohol breath test:

County Court correctly held that the applicable statute is CPLR 4518 (a), which was amended in 2002 (see L 2002, ch 136, § 1) to provide that an “electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record” (CPLR 4518 [a]). The statute further provides that the court “may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record,” but “[a]ll other circumstances of the making of the memorandum or record. . . may be proved to affect its weight,” and “shall not affect its admissibility” (id. [emphasis added]).

The 2002 amendment to CPLR 4518 (a) was adopted by the legislature upon the recommendation of the Chief Administrative Judge’s Advisory Committee on Civil Practice specifically because the Committee and the legislature concluded that CPLR 4539 (b) had no application to documents originally created in electronic form. People v Kangas, 2016 NY Slip Op 06857, CtApp 10-20-16

 

CRIMINAL LAW (DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/EVIDENCE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)DWI (BREATH TEST,  ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/BREATH TEST (DWI, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)/CIVIL PROCEDURE (CRIMINAL LAW, DWI, BREATH TEST, ADMISSIBILITYY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539)

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DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE.

The Second Department determined the People were entitled to a writ of prohibition re: a County Court Judge’s order that they produce the names of all lab personnel whose initials appeared on lab report concerning DNA test results. The People had notified defense counsel persons at the lab had cheated on an exam for certification for use of a DNA software program. The software program was not used in defendant’s case. The People provided defense counsel with the names of the two persons implicated in the cheating whose initials appeared on the lab report. Defense counsel requested the names of all the persons whose initials were on the report. County Court granted that request:

…[T]he only relevant inquiry is whether or not [the judge’s] actions exceeded his authorized powers … . We conclude that Judge De Rosa exceeded his authority by directing the People to make available to the defendant the full names corresponding to the initials that appear on the subject laboratory reports … . Nothing contained in CPL 240.20 imposes an obligation on the People to respond to the defendant’s questions concerning notations that appear in discoverable materials, or to affirmatively create or compile material, or obtain it from sources beyond their control … . Matter of Hoovler v De Rosa, 2016 NY Slip Op 06830, 2nd Dept 10-19-16

 

JUDGES (WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/CRIMINAL LAW (EVIDENCE, WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/EVIDENCE (CRIMINAL LAW, WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/PROHIBITION, WRIT OF (CRIMINAL LAW, EVIDENCE, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE

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ERROR TO ALLOW PROSECUTOR TO IMPEACH HER OWN WITNESS WITH THE WITNESS’S GRAND JURY TESTIMONY, EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department determined the allowing the prosecutor to impeach her own witness with the witness’s grand jury testimony, allowing inadmissible hearsay, together with the prosecutor’s improper remarks in summation, required reversal in the interest of justIce:

… [A] new trial is warranted as a result of two evidentiary errors, both of which were compounded by improper remarks made during the People’s summation. Specifically, the Supreme Court allowed the prosecutor to impeach one of her own witnesses, who testified at trial that it was dark at the time of the shooting and she “couldn’t really see” the shooter. The prosecutor was permitted to read that witness’s prior grand jury testimony, in which she stated that she recognized the shooter as a person going by the nickname of E-Villain. This was error … . Moreover, during summation, the prosecutor compounded the error by improperly using the prior inconsistent statement as evidence in chief … , telling the jury that when that witness previously spoke to the police, to an assistant district attorney, and to the grand jury, “on each of those occasions, she said what it is she saw and who it is that she saw do it,” and urging the jury to find “she was not telling you the truth when she said that I now am telling you I did not see who did it, that it was too dark.” Later, the prosecutor went one step further, stating, in direct contradiction to the witness’s trial testimony, that “[she] saw who it was.”

The Supreme Court also erred in allowing another witness to testify that a “little girl said that [the defendant] shot [the victim]” … . Moreover, on summation, the prosecutor not only repeated the improper hearsay testimony but also mispresented the defendant as having told one of the witnesses, “You know what, that little girl that told you that was a hundred percent right.” People v Thomas, 2016 NY Slip Op 06851, 2nd Dept 10-19-16

 

CRIMINAL LAW (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/APPEALS (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/GRAND JURY (PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/IMPEACHMENT (CRIMINAL LAW, PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/APPEALS (CRIMINAL LAW, (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED.

The Second Department, reversing Supreme Court, determined evidence of defendant’s intoxication should not have been suppressed. The arresting officer approached defendant’s car because she was stopped for some time behind a police cruiser which was blocking the turning lane. The Second Department ruled that the officer did not need a suspicion of criminal activity to approach the defendant and ask for her license, insurance card and registration. In the course of interacting with the defendant, the officer noticed signs of intoxication:

Based on the testimony adduced at the suppression hearing, the officer had an objective, credible reason for approaching the defendant’s vehicle and asking for her license, registration, and insurance card. The defendant’s vehicle was oddly stopped in the left turning lane behind the officer’s vehicle, when it was obvious that she could not make a left turn. The defendant could have easily proceeded north on Oceanside Road, but instead stopped her vehicle for several minutes behind the officer’s vehicle. Under these circumstances, the officer had an objective, credible reason to approach the defendant’s vehicle and request information … . People v Karagoz, 2016 NY Slip Op 06842, 2nd Dept 10-19-16

 CRIMINAL LAW (POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)/STREET STOPS (POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)/SUPPRESSION (STREET STOP, POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)

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DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED.

The First Department, reversing the defendants’ fraud-related convictions, determined (1) the defense did not “open the door” to the admission of hearsay evidence that a nontestifying codefendant (Solomon) pled guilty in a related matter, and (2) the criteria for the business records exception to the hearsay rule were not met:

… [T]he inquiry whether a defendant opened the door to the admission of otherwise inadmissible evidence “is twofold — whether and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” … .  * * *

A party seeking to introduce evidence under the exception must demonstrate that “each participant in the chain producing the record, from the initial declarant to the final entrant, [was] acting within the course of regular business conduct” when the record was made … . We find that although bank personnel were acting under a business duty when the record was created, the record fails to demonstrate that Solomon was acting under such a duty when he supplied the information at issue. People v Schlesinger Elec. Contrs., Inc., 2016 NY Slip Op 06742, 1st Dept 10-13-16

 

CRIMINAL LAW (DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/HEARSAY (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/OPEN THE DOOR (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (CRIMINAL LAW, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)

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PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT.

The First Department affirmed the denial of the psychiatric center’s (petitioner’s) application for continued retention of respondent pursuant to Mental Hygiene Law 9.33. The need for continued supervision was not demonstrated by conclusory allegations that respondent posed a threat of harm or by unsupported allegations of sexual misconduct:

Although respondent’s treating psychiatrist stated in conclusory fashion that the requirements for continued involuntary retention were met, the court reasonably rejected these conclusions on the ground that they were not strongly supported by the evidence … . The psychiatrist indicated that respondent recognized his mental illness, that he had been compliant with his medication regimen, and that his treatment in the facility for more than two years had alleviated the manic symptoms he had initially presented upon admission. The psychiatrist acknowledged that respondent’s medications and therapy programs would remain readily available to him on an outpatient basis, and the psychiatrist provided no reason to doubt respondent’s claim that he would continue taking his medication once released … .

Respondent has a history of sexual preoccupation, sexual misconduct, and sexual impulsivity. However, the court gave little weight to the allegations of recent misconduct in the absence of any eyewitness testimony and in light of respondent’s denials, and there is no basis for disturbing the court’s weighing of the evidence. The remaining hearsay statements that respondent had acted inappropriately were unaccompanied by any detail, including when the incidents allegedly occurred. Matter of Gary F. 2016 NY Slip Op 06655, 1st Dept 10-11-16

 

MENTAL HYGIENE LAW (PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)/EVIDENCE (MENTAL HYGIENE LAW, PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)

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CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

The Fourth Department determined defendant’s sexual abuse conviction, which was based solely on defendant’s confession, was against the weight of the evidence:

CPL 60.50 requires corroboration of such a confession: “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” Here, there is no such corroboration. The People assert that defendant’s confession “was sufficiently corroborated by the testimony of the child victim and her numerous hearsay disclosures solicited by the defense.” The record does not support that assertion, however, inasmuch as the victim never testified that she touched defendant’s penis with her hand, and there is no other evidence—hearsay or otherwise—independent of defendant’s confession to support defendant’s conviction of sexual abuse. Although it is well settled that “additional proof need not corroborate every detail of the confession,’ ” we conclude that defendant’s conviction of sexual abuse in the first degree was “based solely on [defendant’s] uncorroborated [confession]” … . Since there was “no corroborating proof of whatever weight,’ [count two of the indictment] must be dismissed” … . People v Maynard, 2016 NY Slip Op 06573, 4th Dept 10-7-16

CRIMINAL LAW (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/CONFESSIONS (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE.

The Fourth Department reversed defendant’s conviction and ordered a new trial because of prosecutorial misconduct to which defense counsel did not object. The prosecutor grossly exaggerated the nature and importance of DNA evidence found on a weapon. Defense counsel’s failure to object constituted ineffective assistance:

At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as “overwhelming” proof establishing defendant’s “guilt beyond all doubt” and posited: “If the defendant had not possessed the gun, wouldn’t science have excluded him?” In our view, the prosecutor’s flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People’s case … . In light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation … . People v Rozier, 2016 NY Slip Op 06577, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/EVIDENCE (CRIMINAL LAW, DNA, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/DNA (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)

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PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL; FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR.

Although the facts were not explained, the Second Department determined proof of “specific,” as opposed to “general,” cleaning practices, “under the circumstances,” was sufficient to meet defendant’s burden demonstrating the absence of constructive notice of the condition which caused plaintiff to fall (not specified in the decision). In addition, because plaintiff did not allege any of the “Espinal” exceptions, proof the plaintiff was not a party to the building owner’s contract with the cleaning contractor was sufficient to warrant summary judgment in favor of the contractor:

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … . To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … . Although submission of evidence as to the defendant’s general cleaning practices is generally insufficient to meet the defendant’s burden on the issue of lack of constructive notice, specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case … .

Here, the owner satisfied its prima facie burden through submission of the deposition testimony of an employee of the contractor and the building concierge employed by the owner. The testimony of the building concierge, and the testimony of the contractor’s employee regarding the frequency of the employee’s inspections of the area where the injured plaintiff fell, established, prima facie, that the owner did not have constructive notice of the allegedly dangerous condition … . Mavis v Rexcorp Realty, LLC, 2016 NY Slip Op 06476, 2nd Dept 10-5-16

NEGLIGENCE (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/SLIP AND FALL (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/EVIDENCE (SLIP AND FALL, PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/CONTRACT LAW (SLIP AND FALL, FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR)

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