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HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED.

The First Department determined defendants, including defendant SSA, had made a prima facie showing of entitlement to summary judgment in this slip and fall case, but the plaintiff raised a question of fact whether an identified defect in the sidewalk caused her fall. The court noted that hearsay evidence supplied in opposition to the motion was properly considered because it was not the only evidence submitted in opposition. The case is a rare example of each side submitting evidence of all the required “slip and fall” elements:

Defendants made a prima showing of their entitlement to summary judgment, by submitting deposition testimony and an affidavit from SSA's managing member stating that SSA never did any work on the sidewalk where plaintiff fell, that he never received complaints about the sidewalk or curb prior to plaintiff's accident, and that he never observed the alleged hazardous curb and sidewalk condition while making his regular, twice-weekly inspections of the strip mall … .

In opposition, plaintiff raised triable issues of fact. Plaintiff testified that she fell when her left foot stepped into a hole-like depression in the curb/sidewalk, and she marked photographs to show where she fell. Plaintiff also submitted her daughter's affidavit, wherein she averred that after receiving a call about her mother's fall, she responded quickly to the scene of the accident and found her mother on the sidewalk. According to the daughter, her mother pointed to a broken and cracked curb/sidewalk condition and stated that the defective condition caused her to fall. This hearsay statement may be relied upon to defeat summary judgment where, as here, it is not the only evidence submitted in opposition to the motion … . The daughter added that the photographs taken of the sidewalk/curb seven months after the accident, and the area of the photographs her mother marked, accurately depicted the broken condition of the curb/sidewalk as it appeared on the date of the accident. The photographs show a broken curb/sidewalk. Taken together, the evidence raises triable issues of fact whether the broken sidewalk/curb caused plaintiff's fall, and whether the defective condition existed for a sufficient period of time prior to the accident for defendants to have discovered and remedied it … . Uncyk v Cedarhurst Prop. Mgt., LLC, 2016 NY Slip Op 02037, 1st Dept 3-22-16

NEGLIGENCE (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED)/EVIDENCE (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED) HEARSAY (HEARSAY OFFERED IN OPPOSITION TO SUMMARY JUDGMENT PROPERLY CONSIDERED)/SLIP AND FALL (ALL REQUIRED ELEMENTS OF SLIP AND FALL ADDRESSED BY BOTH SIDES IN SUMMARY JUDGMENT MOTION)

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Fourth Department reversed defendant's assault and manslaughter convictions and ordered a new trial, finding the jury should have been charged on the “deadly force” justification defense. There was evidence defendant acted to defend her brother who was struck with a champagne bottle. The assault with the bottle could constitute deadly force, justifying the use of deadly force in defense:

… [T]he court erred in denying her request to charge the jury on justification using deadly physical force in defense of a third party for the assault count. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that the first victim was using deadly physical force by striking defendant's brother in the head with a champagne bottle when defendant assaulted her … . We further agree with defendant that the error in failing to give the justification charge on the assault count requires reversal of the manslaughter count as well. Although the court instructed the jury on justification for that count, there was a “significant factual relationship” between the two counts … , particularly on the issue whether defendant was the initial aggressor (see Penal Law § 35.15 [1] [b]). We therefore reverse the judgment and grant a new trial on both … . People v James, 2016 NY Slip Op 01946, 4th Dept 3-18-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (ASSAULT WITH A CHAMPAGNE BOTTLE CONSTITUTED USE OF DEADLY FORCE, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE)/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN CHARGED ON THE DEADLY-FORCE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE OF STOLEN PROPERTY INSUFFICIENT.

The Fourth Department, in the interest of justice, reduced defendant's grand larceny to petit larceny because of insufficient proof of the value of the stolen property:

The value of stolen property is “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime” (Penal Law § 155.20 [1]). It is well settled that “a victim must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value” … . Furthermore, “[c]onclusory statements and rough estimates of value are not sufficient” to establish the value of the property … . “Although a victim is competent to supply evidence of original cost' . . . , evidence of the original purchase price, without more, will not satisfy the People's burden' ” … .

Here, the victim testified that several specific items were taken, but the only evidence of the value of those items was the victim's testimony regarding the purchase price of some of them, and her hearsay testimony regarding a purported expert's appraisal of some of the property, which was based solely on her description of certain jewelry to the purported expert. Based on the evidence of value in the record, we cannot conclude “that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold” of $3,000 … . People v Slack, 2016 NY Slip Op 01930, 4th Dept 3-18-16

CRIMINAL LAW (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/EVIDENCE (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)/GRAND LARCENY (GRAND LARCENY CONVICTION REDUCED TO PETIT LARCENY, PROOF OF VALUE INSUFFICIENT)

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UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED FOR SUMMARY JUDGMENT MOTION; CREDIBILITY OF AFFIANTS SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT MOTION.

In the course of reversing Supreme Court's grant of summary judgment to defendants in a car-accident case, the court noted that unworn and uncertified medical records were admissible to support plaintiff's serious-injury claim because the documents were submitted by the defendants or because the documents were relied upon by plaintiff's expert, who provided a sworn opinion. In addition, the court noted that the credibility of affiants should not, as a general rule, be considered in deciding a summary judgment motion:

Although … many of the medical reports and records submitted by plaintiff in opposition to the cross motions were unsworn and uncertified, we may consider those reports and records that were “submitted by defendants . . . or were referenced in the reports of physicians who examined plaintiff on their behalf, and [defendants] submitted the reports of [those physicians]” … . To the extent that plaintiff submitted unsworn and uncertified medical reports and records that were not submitted by defendants or relied upon by their expert, we may nevertheless rely on the medical opinions of plaintiff's experts because “the various medical opinions relying on those . . . reports [and records] are sworn and thus competent evidence” … . … [T]he court erred in discounting entirely the opinion of plaintiff's treating physician due to perceived errors in his report. “The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned” … . Cook v Peterson, 2016 NY Slip Op 01950, 4th Dept 3-18-16

CIVIL PROCEDURE (SUMMARY JUDGMENT, UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)/EVIDENCE (SUMMARY JUDGMENT, UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)/SUMMARY JUDGMENT MOTIONS (UNSWORN, UNCERTIFIED MEDICAL DOCUMENTS PROPERLY CONSIDERED, AFFIANT CREDIBILITY SHOULD NOT BE WEIGHED IN DECIDING SUMMARY JUDGMENT)

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JUVENILE DELINQUENCY ADJUDICATION AGAINST THE WEIGHT OF THE EVIDENCE; ANALYTICAL CRITERIA EXPLAINED.

The Second Department, over a dissent, determined the juvenile delinquency finding was against the weight of the evidence. The juvenile was accused of throwing a kitten under the wheels of a moving vehicle. The single-witness case relied upon weak identification evidence. The court explained the “weight of the evidence” analytical criteria in this context:

We must “weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” … . In weighing the conflicting testimony in a single-witness identification case, as here, we must independently consider, among other things, the truthfulness and reliability of the identification testimony … . * * *

… [T]he reliability of the witness’s identification of the appellant was called into doubt by several factors. An examination of her testimony reveals that the witness had only a limited opportunity and ability to observe the perpetrator because the incident occurred over a relatively short period of time, and there was a distance of a minimum of 10 feet between the witness and the perpetrator during their interaction. The witness was also admittedly excited and upset during the incident. In addition, the witness’s description of the perpetrator lacked specificity, and did not include body shape, height, weight, facial features, skin tone, accent, or any distinctive characteristics. We further note that the incident occurred in the late afternoon near the time that students were being released from several neighborhood schools, that the perpetrator was dressed in a school uniform similar in type to the uniforms worn by students at those schools, and that the witness’s description of the school uniform worn by the perpetrator did not match the appellant’s school uniform. Under these circumstances, the witness’s identification of the appellant was not convincing when balanced against the substantial evidence submitted by the appellant in her own defense. Matter of Shannel P., 2016 NY Slip Op 01853, 2nd Dept 3-16-16

FAMILY LAW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/JUVENILE DELINQUENCY (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/EVIDENCE (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/APPEALS (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE REVIEW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE, CRITERIA EXPLAINED)

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EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS HOWEVER.

The Third Department determined evidence of uncharged sexual contact with young girls should not have been admitted in evidence in this rape/sexual-abuse/endangering-the-welfare-of-a-child trial. The error was deemed harmless, however. The limited probative value of the proof was outweighed by its prejudicial effect:

Here, the People moved before trial for permission to offer, among other things, the testimony of four adult female witnesses that defendant had sexual contact with them during the 1970s when he was employed as their music teacher and they were between 12 and 14 years old. * * * The court found that the testimony was not relevant to the charges of rape in the second degree or sexual abuse in the second degree, as defendant's intent to commit these crimes could be inferred from commission of the acts themselves, but that it was relevant to the mens rea element of the charge of endangering the welfare of a child. * * *

… [T]he probative value of the testimony for the limited purpose of showing defendant's mental state in doing kindnesses for the victim was highly limited. The alleged prior bad acts were extremely remote in time, taking place decades previously. Further, there were significant factual differences between the actions that defendant allegedly took to gain the trust of his earlier alleged victims and those he used with the victim. By contrast, the prejudicial impact of the testimony — consisting of descriptions of multiple reprehensible acts allegedly committed by defendant against vulnerable children — was significant. People v Scaringe, 2016 NY Slip Op 01871, 3rd Dept 3-16-16

CRIMINAL LAW (EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED)/EVIDENCE (CRIMINAL LAW, MOLINEUX, EVIDENCE OF PRIOR UNCHARGED BAD ACTS SHOULD NOT HAVE BEEN ADMITTED)

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EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED.

The First Department concluded the trial judge improperly precluded the plaintiff in a medical malpractice action from presenting expert evidence alleging defendant doctor departed from the standard of care by failing to tie off plaintiff's decedent's femoral artery. The First Department determined the relevant theory had been raised in the bills of particular and notice of the expert's testimony had been timely provided (eight months before trial). A new trial was ordered before a different judge because the record demonstrated the trial judge's bias in favor of the defendants:

The trial court improvidently exercised its discretion in granting the motion and in dismissing the complaint based on the preclusion of evidence. Defendants' argument that they had no notice of plaintiffs' theory and were unfairly surprised is unavailing. The theory concerning vascularization of decedent's left leg was adequately disclosed in plaintiff's original and supplemental bills of particulars. Further, while CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time … , here plaintiff served the CPLR 3101(d) expert disclosure notice about eight months before trial, which was sufficient notice … . Furthermore, during that period, defense counsel were present at several pretrial conferences and raised no objections to the expert disclosure, nor did they reject the notice… .

Given the improper preclusion of evidence, plaintiffs are entitled to a new trial … . Further, the matter should be remitted for trial before a different Justice, as the record shows that the trial court was biased in favor of defendants … . Dedona v DiRaimo, 2016 NY Slip Op 01779, 1st Dept 3-15-16

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/MEDICAL MALPRACTICE (EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT EVIDENCE IMPROPERLY PRECLUDED, NEW TRIAL ORDERED)/JUDGES (BIAS IN FAVOR OF DEFENDANTS REQUIRED ASSIGNMENT OF NEW TRIAL TO A DIFFERENT JUDGE)

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RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED; ERROR WAS HARMLESS HOWEVER.

Although the error was deemed harmless, the First Department determined defendant’s right to confront the witness against him was violated. The witness’s grand jury testimony was read to the jury as past recollection recorded. However, because the witness asserted his fifth amendment right to avoid self-incrimination, the truth of the grand jury testimony could not be tested by cross-examination. The First Department explained the relevant law:

Provided that a proper foundation is laid, grand jury testimony may be admitted as past recollection recorded, and its admission does not violate the Confrontation Clause where the witness testifies at trial and is subject to cross-examination …, because “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements” … . However, this may not apply when a witness appears at trial but invokes the Fifth Amendment … . Not every instance in which a witness invokes the privilege against self-incrimination will give rise to a Confrontation Clause violation; rather, “the Sixth Amendment is violated only when assertion of the privilege undermines the defendant’s opportunity to test the truth of the witness’ direct testimony” … .

Here, the witness asserted his Fifth Amendment rights and refused to answer questions that had a direct bearing on testing the truth of his grand jury testimony. Thus, the witness’s extensive assertion of his Fifth Amendment rights regarding the material facts “undermine[d] the process to such a degree that meaningful cross-examination within the intent of the [Confrontation Clause] no longer exist[ed]” … .  People v Rahman, 2016 NY Slip Op 01750, 1st Dept 3-10-16

CRIMINAL LAW (RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)

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CRITIERIA FOR SPOLIATION OF EVIDENCE NOT MET.

In a legal malpractice action, plaintiffs alleged their trial attorneys in the personal injury action failed to inform them about a $12 million settlement offer made shortly before the $3.7 million verdict. Defendants-attorneys alleged the plaintiffs were informed of the offer, which was provided in writing, and plaintiffs rejected it. During the deposition of plaintiff-wife (Mrs. Doviak), she was handed the written offer. The plaintiffs argued that handing the offer to Mrs. Doviak constituted spoliation of evidence, because the document could have been tested for fingerprints, and the absence of her fingerprints would have demonstrated she was never provided with the written offer during the trial. The Second Department determined the criteria for spoliation of evidence had not been met:

“The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense” … . “[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” and may, “under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation” … . This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised … .

Here, the record supports the Supreme Court’s conclusion that the plaintiffs failed to demonstrate that the defendants intentionally or negligently destroyed fingerprint evidence which was critical to their case. The plaintiffs failed to demonstrate that they requested that the offer document be tested for fingerprints, or that it be preserved for forensic testing prior to Mrs. Doviak’s deposition, or otherwise informed the defendants of their desire to conduct fingerprint analysis. The plaintiffs’ boilerplate demand during discovery that they be permitted to examine original documents on request does not satisfy this requirement, nor is it reasonable to contend that the defendants should have anticipated the plaintiffs’ desire for forensic testing of the offer document … . Thus, the plaintiffs failed to demonstrate that, in handing the original document to Mrs. Doviak at her deposition, the defendants intentionally or negligently destroyed potential forensic evidence … . In any event, the plaintiffs failed to demonstrate that, by failing to preserve the offer document for forensic testing, the defendants had fatally compromised the plaintiffs’ ability to prove their claims … . Doviak v Finkelstein & Partners, LLP, 2016 NY Slip Op 01636, 2nd Dept 3-9-16

NEGLIGENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/EVIDENCE (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)/SPOLIATION (CRITERIA FOR SPOLIATION OF EVIDENCE NOT MET)

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ACCIDENT DIAGRAM IN POLICE REPORT WAS NOT BASED ON OFFICER’S FIRST-HAND KNOWLEDGE; REPORT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; NEW TRIAL ORDERED.

The Second Department determined a new trial was necessary in a pedestrian-accident case because the police report (admitted in evidence included) included a diagram of the accident scene which was not based on the police officer's personal observation:

 

Information in a police accident report is “admissible as a business record so long as the report is made based upon the officer's personal observations and while carrying out police duties” … . Conversely, information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under some other hearsay exception … . Here, the diagram contained in the police accident report was not derived from the personal observations of the police officer, who did not witness the subject accident … . In addition, there was insufficient evidence as to the source of the information used to prepare the diagram, whether that person was under a business duty to supply it, or whether some other hearsay exception would render the diagram admissible. The diagram therefore should not have been admitted … . Wynn v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 01484, 2nd Dept 3-2-16

NEGLIGENCE (ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/EVIDENCE (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)/HEEARSAY (NEGLIGENCE, ACCIDENT DIAGRAM IN POLICE REPORT NOT BASED ON OFFICER'S FIRST-HAND KNOWLEDGE AND SHOULD NOT HAVE BEEN ADMITTED)

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