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Preclusion Proper Remedy for Discarding of Computer Containing Crucial Evidence​

The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence:

Plaintiff’s conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court’s assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff’s bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff’s disposal of the subject computer was, at the very least, grossly negligent ….  Defendants established that plaintiff’s spoliation of critical evidence compromised defendants’ ability to prosecute their counterclaims … . Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Harry Wiess, Inc v Moskowitz, 2013 NY Slip Op 03927, 1st Dept, 5-30-13

 

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“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(1) The police must have reasonable grounds to believe that there is an emergency at hand  and an immediate  need  for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

 

 

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Relationship Between Defendant’s Act and Fatal Car Accident Too Attenuated to Support Criminally Negligent Homicide

The Third Department determined that the relationship between the defendant’s act and a fatal car accident was too attenuated to support a conviction for criminally negligent homicide.  The defendant, a passenger, jerked the steering wheel, apparently in an attempt to intimidate or strike a car that was along side of the car defendant was in.  The car defendant was in struck a guard rail and caused the blockage of one lane of traffic.  The one car accident caused traffic to back up.  30 minutes later the fatal accident occurred.  The Third Department wrote:

“[A]n act ‘qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen'”… .   A connection between the conduct and the death that is obscure or “merely probable” will not suffice ….  On the other hand, we note that the mere lapse of time will not  necessarily serve to break the chain of causation … .  Nor  does  a  defendant’s conduct  need  to be  the  sole cause  of death  in order  for criminal responsibility to attach ….  * * *

Here, the People failed to present evidence directly linking defendant’s act to the victims’ deaths …. Although the accident reconstructionist called as a witness by the People provided an opinion as to the sequence of the five-car collision, he could not estimate the speed of the vehicles involved, he did not attempt to reconstruct the initial accident and he offered no opinion to support the conclusion that the third and fatal accident was  a foreseeable result of the initial accident … . People v Ballenger, 104664, 3rd Dept, 5-30-13

 

 

 

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Family Court Should Have Allowed Mother to Subpoena Medical Records to Rebut Allegations Against Her In Custody Proceeding​

The Second Department determined Family Court erred when it denied the mother’s subpoena for medical treatment records to rebut the allegations against her in a custody proceeding:

Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court ….  Matter of Murphy v Lewis, 2013 NY Slip Op 03843, 2nd Dept, 5-29-13

 

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Injury Not Connected to Accident; Motion to Set Aside Should Have Been Granted

In reversing Supreme Court and finding the motion to set aside the verdict should have been granted, the court determined there was no valid line of reasoning that led to the conclusion plaintiff’s serious injury was related to the car accident at issue:

Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff’s alleged serious injury was causally related to the subject automobile accident. Given the evidence of the plaintiff’s previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff’s expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff’s injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury. McDonald v Kohanfars, 2013 NY Slip Op 03821, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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Submission of Affidavit of Merit in Reply Improper​

In reversing the vacation of the dismissal of a medical malpractice action, the Second Department noted that it was improper to submit an affidavit of merit from a medical expert in reply papers:

The assertion of the plaintiff’s counsel that he incorrectly calendared the date on which the note of issue was due amounted to a reasonable excuse of law office failure…. However, the plaintiff failed to provide in her initial moving papers an affidavit of merit from a medical expert competent to attest to the meritorious nature of the cause of action alleging medical malpractice…. It was improper for the plaintiff to submit an affidavit of merit from a medical expert for the first time in her reply papers….  King v Dobriner, 2013 NY Slip Op 03817, 2nd Dept., 5-29-13

 

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Unsigned Depositions Admissible

In ruling that both defendant’s and plaintiff’s unsigned deposition transcripts could be considered in slip and fall summary judgment motion, the Second Department wrote:

Contrary to the plaintiff’s contention, the Supreme Court properly considered the deposition transcripts submitted in support of the motion. The unsigned but certified deposition of the defendant was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent…. Additionally, in reply to the plaintiff’s opposition, the defendant submitted evidence which showed that the plaintiff’s certified deposition transcript had been submitted to her for review, but that she failed to sign and return it within 60 days. Thus, the plaintiff’s deposition transcript was properly used as fully as though it were signed…. Moreover, this evidence demonstrating the defendant’s compliance with CPLR 3116(a) was properly considered in reply because it was submitted in direct response to allegations raised for the first time in the plaintiff’s opposition papers…. David v Chong Sun Lee, 2013 NY Slip Op 03811, 2nd Dept, 5-29-13

 

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No Reasonable Suspicion of Criminal Activity—Frisk of Defendant Improper​

Applying a “DeBour” analysis, the Second Department determined the police did not have the right to frisk the defendant.  The police approached the defendant because he was holding two or three cigarettes and the police thought he may be selling loose cigarettes.  The police noticed evidence of gang membership and defendant acknowledged being a member. The police asked defendant if he had a weapon and defendant did not answer.  At that point, based on seeing a bulge in defendant’s pocket, the defendant was frisked and searched. The Court wrote:

The level one request for information may include ” basic, nonthreatening questions regarding, for instance, identity, address or destination'” …. However, ” [o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing . . . the officer is no longer merely seeking information'” … and the encounter has become a level-two common-law inquiry, which must be supported by ” “a founded suspicion that criminal activity is afoot”‘” …”[A] police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” ….

“[T]o elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior” …. ” [I]nnocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand'” …. Thus, “in order to justify a frisk of a suspect’s outer clothing, a police officer must have “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety”‘”…. Even assuming that the police were justified in conducting a level-two common-law inquiry, they lacked the reasonable suspicion necessary to support a level-three encounter consisting of a pat-down or “stop-and-frisk” search… .  People v Kennebrew, 2013 NY Slip Op 03854, 2nd Dept, 5-29-13

STREET STOPS

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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

 The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications “at issue.” The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

 

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Hearsay Evidence Can Be Considered in Opposition to Summary Judgment Motion As Long As It Is Not the Only Evidence​

In affirming the denial of defendant’s summary judgment motion where plaintiffs’ complaint alleged defendant coerced decedent into executing estate planning documents, the First Department noted that hearsay evidence may be considered as long as it is not the only evidence offered:

While defendant correctly asserts that plaintiffs submitted certain hearsay evidence in opposition to the summary judgment motion, including certain physician and attorney notes, such hearsay evidence may be considered when submitted in opposition to a summary judgment motion, so long as it is not the only proof submitted …. Here, nonhearsay evidence, including affidavits from the decedent’s friends as well as the decedent’s first daughter, described the contentious nature of the marriage and the decedent’s declining mental health. Moreover, the decedent, who was 83 years old and undisputedly suffered from some degree of cognitive impairment when he signed the documents, initiated this lawsuit during his lifetime and attested, by his verified complaint, to his declining health and defendant’s abusive and coercive conduct.  Plaintiffs further rely on a nonhearsay affidavit from a forensic document examiner that concluded that the decedent’s signature was forged on the retainer letter, possibly by defendant, as additional evidence that defendant coerced the decedent into retaining counsel to execute these documents and did not want the decedent to have separate counsel in the event of any conflict. All of this raises triable issues of fact whether defendant wielded sufficient influence over the decedent to overcome his free will …. Bishop v Maurer, 2013 NY Slip Op 03771, 1st Dept, 5-28-13

 

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