You are here: / Evidence
,

ALTHOUGH THERE WAS ADMISSIBLE EVIDENCE OF DOMESTIC VIOLENCE BY FATHER, THERE WAS NO ADMISSIBLE EVIDENCE THE CHILD WAS PRESENT; NEGLECT FINDING REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the admissible evidence did not support the finding that father neglected the child based on an act of domestic violence. Mother’s 911 call constituted admissible evidence of the domestic violence. But, although evidence the child was present apparently existed, it was never admitted in evidence:

A recording of a 911 call made by the mother, which was admitted into evidence without objection, was the only admissible evidence offered in support of the petition. During this call, the mother told the 911 operator that the father was harassing her and threatening her, that there were weapons in the house, including knives and guns, and that she was in fear for her life. However, no evidence was admitted in support of ACS’s [Administration of Children’s Services’] position that the children observed, were aware of, or were in close proximity to the domestic violence, and that their physical, mental, or emotional condition was impaired or was in danger of becoming impaired … . While ACS contends that the redacted ACS progress notes were admitted into evidence, and contain the children’s out-of court-statements demonstrating the children were aware of and heard the domestic violence, the progress notes, although marked for identification at the virtual hybrid hearing, were never entered into evidence, and therefore, cannot be considered. Thus, ACS failed to establish that the children’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the father’s acts of violence toward the mother … . Matter of Easton J. (Courtney J.), 2024 NY Slip Op 01810, Second Dept 4-3-24

Practice Point: To find neglect based on an act of domestic violence by father against mother there must be admissible evidence the child was present.

 

, , ,

ALTHOUGH DEFENDANT RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S CONTRIBUTORY NEGLIGENCE IN THIS REAR-END COLLISION CASE, DEFENDANT DID NOT RAISE A QUESTION OF FACT ABOUT HIS OWN LIABILTY; THE JUDGE SHOULD NOT HAVE DEEMED PLAINTIFF’S SUMMARY JUDGMENT MOTION PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined that although defendant raised a question of fact about whether plaintiff was contributorily negligent, defendant did not raise a question of fact about the defendant-driver’s liability. In addition, plaintiff’s motion for summary judgment should not have been deemed premature:

… [T]he defendants submitted an affidavit from the defendant driver, in which he stated that he was “not fully responsible” for the accident. The defendant driver also averred that the traffic light had turned green and that the plaintiff had moved forward and then suddenly stopped, causing the defendant driver to strike the rear of the plaintiff’s vehicle despite his efforts to stop his vehicle. This evidence raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident, thereby supporting the denial of that branch of her motion which was for summary judgment dismissing the affirmative defenses alleging comparative negligence … . However, since the defendants’ evidence related only to the plaintiff’s comparative fault, the defendants failed to raise a triable issue of fact in opposition to that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging negligent operation of a motor vehicle … .

Furthermore, the Supreme Court erred in determining that the plaintiff’s motion was premature. “[W]hile a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, [a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … . Here, the defendants had personal knowledge of the relevant facts, and their mere hope or speculation that evidence might be uncovered during discovery was an insufficient basis for denying the plaintiff’s motion …. Martin v Copado-Esquivel, 2024 NY Slip Op 01804, Second Dept 4-3-24

Practice Point: In a rear-end collision case, the fact that defendant raises a question of fact about plaintiff’s contributory negligence does not preclude granting plaintiff summary judgment on the issue of defendant’s liability.

Practice Point: Here, where the facts of the rear-end collision were within defendant’s personal knowledge, plaintiff’s motion for summary judgment should not have been dismissed as premature.

 

, , ,

THE BANK IN THIS FORECLOSURE ACTION FAILED TO PROVIDE THE ORIGINAL LOAN DOCUMENT AND THE LOST NOTE AFFIDAVIT WAS INSUFFICIENT; THE MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN DENIED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for a default judgment in this foreclosure action should not have been granted because the original loan document was not provided and the lost note affidavit was insufficient:

A plaintiff moving for leave to enter a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant’s failure to answer or appear … . Pursuant to UCC 3-804, “[t]he owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his [or her] own name and recover from any party liable thereon upon due proof of his [or her] ownership, the facts which prevent his [or her] production of the instrument and its terms.” Here, the plaintiff failed to set forth the facts that prevented the production of the original home equity line of credit agreement … . The lost note affidavit submitted by the plaintiff in support of its motion, inter alia, for leave to enter a default judgment against the defendants failed to state when the search for the credit agreement occurred, did not identify who conducted the search for the credit agreement, or explain when or how the credit agreement was lost … . JPMorgan Chase Bank, N.A. v Morton, 2024 NY Slip Op 01802, Second Dept 4-3-24

Practice Point: Here in this foreclosure action, in moving for a default judgment the bank did not provide the original loan document and did not provide a sufficient lost note affidavit. The motion should have been denied, criteria explained.

 

,

THE VICTIM DIED BY STRANGULATION; THE DEFENSE WAS DEFENDANT DID NOT INTEND TO KILL; THE VICTIM’S HEARSAY STATEMENTS ABOUT DOMESTIC VIOLENCE WERE NOT ADMISSIBLE TO SHOW THE DEFENDANT’S, AS OPPOSED TO THE VICTIM’S, STATE OF MIND; CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s murder conviction, determined the victim’s hearsay statements about domestic violence should not have been admitted. There was no applicable exception the the hearsay rule and Molineux evidence of prior bad acts must be in admissible form. The victim died of strangulation. The defense argued defendant did not intend to kill the victim, his girlfriend:

… [T]he admission into evidence of prior statements of the victim regarding instances of domestic violence involving the defendant as proof of murder in the second degree, was error which may not be deemed harmless. This hearsay evidence was admitted, purportedly not for its truth, but to establish the victim’s state of mind, the nature of the parties’ relationship, the defendant’s motive and intent, and the absence of an accident. The victim’s state of mind may be an issue in certain circumstances, warranting the admission of hearsay evidence on that issue pursuant to a recognized hearsay exception … , but it was not at issue in this case. Rather, the evidence was used to establish the defendant’s state of mind, based upon the victim’s characterization of the defendant’s conduct and the acceptance of that characterization for its truth. In People v Brooks (31 NY3d 939, 942), the Court of Appeals ruled that a “witness’s testimony as to the victim’s statement that defendant had previously threatened her constituted double hearsay and was not properly admitted pursuant to any exceptions to the hearsay rule. . . . Nor is there any blanket hearsay exception providing for use of such statements as ‘background’ in domestic violence prosecutions” (citation omitted). Assuming arguendo that evidence of the defendant’s prior bad acts was admissible under People v Molineux (168 NY 264]) and its progeny, “there is no Molineux exception to the rule against hearsay . . . . [S]uch evidence must still be in admissible form” … . This purported evidence of the defendant’s state of mind, in this case where intent became the primary issue, was not in admissible form. Thus, the admission of that evidence was error. The error cannot be deemed harmless because the evidence of the defendant’s intent was not overwhelming … . People v Rivers, 2024 NY Slip Op 01731, Second Dept 3-17-24

Practice Point: Here the murder victim’s hearsay statements about domestic violence were allowed in evidence to show the defendant’s, not the victim’s, state of mind. The statements were not admissible under any exception to the hearsay rule. The error was not harmless because the defendant argued he did not intend to kill the victim (who died by strangulation).

 

, ,

STANDING OUTSIDE A VEHICLE AND REACHING INSIDE IS NOT “OCCUPYING” THE VEHICLE SUCH THAT THE AUTOMOBILE PRESUMPTION OF POSSESSION OF THE CONTENTS OF A VEHICLE CAN BE CHARGED TO THE JURY (SECOND DEPT). ​

The Second Department, reversing defendant’s possession of a weapon conviction, determined the judge should not have charged the jury with the automobile presumption which ascribes possession of contraband inside a vehicle to the occupants of the vehicle. The evidence did not support the allegation that defendant “occupied” the vehicle. He was seen standing outside the vehicle and reaching inside through an open window. In addition the police officers should have been allowed to narrate the video saying the defendant could be seen inside the vehicle and reaching into the back seat:

… [T]he People admitted a surveillance video, which showed that the defendant briefly leaned his upper body through the open rear passenger side door of the Lincoln Navigator while standing on the vehicle’s running board. However, the video reflected that the defendant never lifted his feet from the running board to climb into the Lincoln Navigator or take a seat inside the vehicle … . Under the circumstances presented, the People’s contention that the defendant “occup[ied]” the vehicle within the meaning of Penal Law § 265.15(3) is without merit. … Supreme Court erred in charging the jury with respect to the automobile presumption. People v Lewis, 2024 NY Slip Op 01728, Second Dept 3-27-24

Practice Point: The automobile presumption of possession of the contents of a vehicle by the occupants of the vehicle does not apply to a person standing outside a vehicle and reaching inside through a window.

 

, , , ,

THE DEFENDANT SCHOOL DID NOT ELIMINATE TRIABLE QUESTIONS OF FACT ABOUT WHETHER IT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S ABUSIVE PROPENSITIES; THE NEGLIGENT HIRING AND NEGLIGENT SUPERVISION CAUSES OF ACTION IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the negligent hiring and negligent supervision causes of action against defendant school stemming from a teacher’s alleged abuse of plaintiff-student should not have been dismissed. There was a question of fact about whether the school district had constructive notice of the teacher’s abusive propensities:

… [G]iven the frequency of the alleged abuse, which occurred over a three-year period, and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher or the plaintiff was not negligent, in light of, among other things, the teacher was on “probationary” status during the relevant period, the special education lessons during which the alleged abuse occurred were one-on-one and behind closed doors, the plaintiff testified at his deposition that the school principal “never came in” or “checked” on him during the lessons, and only a single observation report from Columbus Avenue Elementary School is available in the teacher’s employment file during the relevant period. MCVAWCD-DOE v Columbus Ave. Elementary Sch., 2024 NY Slip Op 01703, Second Dept 3-27-24

Practice Point: Here the defendant school did not eliminate questions of fact about whether it had constructive notice of the teacher’s abusive propensities in this Child Victims Act case. The alleged abuse took place often behind closed doors when the teacher, who was on probation, was alone with the plaintiff.

 

,

THE INABILITY TO IDENTIFY THE SLIPPERY SUBSTANCE WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS FATAL TO THE LAWSUIT; ALLEGING THE FLOOR WAS SHINY OR SLIPPERY IS NOT ENOUGH, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s inability to identify the cause of her slip and fall was fatal to the lawsuit. Evidence that the floor was shiny or slippery was not enough to survive a summary judgment motion:

The plaintiff expressly testified that she did not know what caused her to fall … , nor did she recall observing garbage or liquid on the floor, either before or after her fall … .

… The plaintiff’s affidavit and additional portions of her deposition testimony submitted in opposition to the [summary judgment] motion merely confirmed that she fell as a result of a slippery substance that she could not identify. To the extent that the plaintiff’s two witnesses identified the cause of the fall in their affidavits without engaging in speculation … , this evidence was insufficient to raise a triable issue of fact. Although each witness averred that the plaintiff’s fall may have been caused by the “shiny” and “slippery” nature of the floor, “the mere fact that a smooth floor may be shiny or slippery,” without more, “does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … . Alvarez v Staten Is. R.T. Operating Auth., 2024 NY Slip Op 01695, Second Dept 3-27-24

Practice Point: Here plaintiff’s inability to identify the slippery substance which caused the fall required summary judgment in defendant’s favor. The fact that a floor is shiny or slippery is not enough. The relevant proof requirements are laid out in detail.

 

, , , ,

A PRETRIAL RULING ON THE ADMISSIBILITY OF EVIDENCE IS AN UNAPPEALABLE ADVISORY RULING; THE MOTION IN LIMINE SEEKING TO SET A LIMIT ON THE VALUE OF AN LLC WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION WHICH SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined: (1) an advisory pretrial ruling on the admissibility of evidence is not appealable, and (2) the motion to limit the evidence of the valuation of the LLC to $2,450,000, although couched as a motion in limine, was actually an untimely summary judgment motion:

“[A]n order, made in advance of trial, which merely determines the admissibility of [*2]evidence is an unappealable advisory ruling” … . * * *

… [P]laintiff’s motion which sought, in effect, to set the minimum value of the LLC at $2,450,000 and preclude any evidence of a lower value, while styled as a motion in limine, was the functional equivalent of an untimely motion for partial summary judgment determining that the value of the LLC was at least $2,450,000 … . “[A] motion in limine is an inappropriate substitute for a motion for summary judgment” … , and “in the absence of any showing of good cause for the late filing of such a motion,” should not have been considered … . Desantis v Desantis, 2024 NY Slip Op 01699, Second Dept 3-27-24

Practice Point: A pretrial ruling on the admissibility of evidence is an unappealable advisory ruling.

Practice Point: The motion in limine seeking to set a limit on the value of an LLC in this divorce proceeding was actually an untimely motion for summary judgment which should not have been considered.

 

, , , ,

IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the negligent hiring and supervision cause of action against defendant LLC stemming from an altercation between plaintiff and the LLC’s employee (McIntosh) should not have been dismissed. It was allegedly evident from McIntosh’s employment application that he had been in prison:

… [P]laintiff raised triable issues of fact as to whether the LLC “should have known of the employee’s propensity for the conduct which caused the injury” … . It is well settled that “an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee” … . McIntosh’s handwritten job application provided facts that should have led the LLC to investigate, as he indicated that he worked at the address of a state prison, he earned a “stipend” instead of the typical hourly wage, and one of his supervisors was a corrections officer, or “C.O.” Although “the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment,” the record shows that the LLC made no effort to investigate … . Its owner-witness admitted that no background check was performed. She did not know whether a restaurant manager called McIntosh’s past employers, and she had no knowledge of his criminal background, as would have been revealed by a call to the past employer … . Contrary to the LLC’s contention, the Correction Law does not prohibit consideration of a job applicant’s prior convictions, but instead provides a balancing test to determine whether there was a “direct relationship between” a prior offense and the job or whether the employment “would involve an unreasonable risk . . . to the safety or welfare of . . . the general public” (Correction Law §§ 752[1]- Darbeau v 136 W. 3rd St., LLC, 2024 NY Slip Op 01672, First Dept 3-26-24

Practice Point: Where an applicant’s job application indicates the applicant had been incarcerated, an employer’s failure to investigate may support a negligent hiring and supervision cause of action. The Correction Law does not prohibit an inquiry into prior convictions.

 

, , , , ,

SM STABBED INFANT PLAINTIFF SHORTLY AFTER BEING TREATED BY DEFENDANT HOSPITAL WHICH ALLEGEDLY NEGLIGENTLY FAILED TO DETAIN OR REPORT SM; ALTHOUGH SM DID NOT WAIVE THE PATIENT-PHYSICIAN PRIVILEGE, PLAINTIFF WAS ENTITLED TO AN IN CAMERA REVIEW OF SM’S MEDICAL RECORDS AND DISCLOSURE OF ANY RELEVANT NONMEDICAL INFORMATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the demand for disclosure of SM’s medical records was properly denied because SM had not waived the physician-patient privilege, but the request for an in camera review of the records for nonmedical information should have been granted. SM has been treated by defendant New York City Health + Hospital/Lincoln Medical Center (NYCHH) shortly before SM stabbed infant plaintiff. Plaintiff alleged NYCHH should have reported SM and detained her or taken some other measures to protect infant plaintiff:

Infant plaintiff and her father allege that NYCHH’s employees negligently treated SM when she presented to the hospital on April 26 and April 27, 2016, shortly before she stabbed the infant plaintiff and brother, resulting in the brother’s death. They allege that SM had a history of mental illness for which she had been treated by NYCHH on “scores of previous occasions,” and that NYCHH failed to detain SM, call a report to the Statewide Central Register of Child Abuse and Maltreatment, or “take any other action to protect” the infant plaintiff. SM, who is currently incarcerated, has not waived the physician-patient privilege and is believed to be unable or unwilling to do so.

Supreme Court properly determined that Mental Hygiene Law § 33.13(c)(1) does not apply to allow disclosure of SM’s hospital records in the interests of justice, absent SM’s consent or express or implied waiver of the physician-patient privilege provided by CPLR 4504, 4507 … . … Supreme Court should have granted plaintiffs’ alternative request for in camera review to determine whether the records include information of a nonmedical nature, such as observations of SM’s conduct, language, and appearance and factual matters, which is subject to disclosure … . S.M. v City of New York, 2024 NY Slip Op 01689, First Dept 3-26-24

Practice Point: Although medical records are protected from disclosure by the patient-physician privilege, relevant nonmedical, factual information in the records may be disclosed pursuant to an in camera review.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy