You are here: / Evidence
, ,

IN THIS REAR-END COLLISION CASE, THE DRIVER OF THE REAR VEHICLE ALLEGED THE OTHER VEHICLE CHANGED LANES ABRUPTLY AND CAME TO A STOP IN FRONT OF HIM; THAT CONSTITUTED A NON-NEGLIGENT EXPLANATION WHICH RAISED A QUESTION OF FACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this rear-end traffic accident case, determined defendant raised a question of fact about a non-negligent explanation for his striking the car in front:

At his deposition, Guo Lin Wu [the driver of the United vehicle] testified that the Castillo/Lopez vehicle changed lanes abruptly in front of the United vehicle and then came to a sudden stop. Guo Lin Wu’s deposition testimony, if true, would constitute a nonnegligent explanation for his actions, and would establish that Castillo’s negligence was a proximate cause of the accident … . The differing versions of events raised issues of credibility to be resolved by the factfinder … . Balanta v Guo Lin Wu, 2023 NY Slip Op 05111, Second Dept 10-11-23

Practice Point: Ordinarily a rear-end collision with a stopped vehicle warrants summary judgment in favor of the stopped vehicle. Here the driver of the rear vehicle raised a question of fact by alleging the other vehicle changed lanes abruptly and stopped in front of him.

 

, ,

THE MAJORITY DETERMINED MOTHER’S PARENTAL RIGHTS WERE PROPERLY TERMINATED; MOTHER AND THE DISSENT ARGUED THE DEPARTMENT OF SOCIAL SERVICES DISCOURAGED HER FROM COMMUNICATING WITH IT WELL BEFORE THE ABANDONMENT PERIOD (SIX MONTHS BEFORE THE FILING OF THE TERMINATION PETITION) AND THE JUDGE ERRONEOUSLY PROHIBITED HER FROM PRESENTING EVIDENCE FROM BEFORE THE ABANDONMENT PERIOD (SECOND DEPT).

The Second Department, over an extensive and comprehensive dissent, determined Family Court properly terminated mother’s parental rights. The question whether a parent has abandoned a child focuses on the six months immediately prior to the filing of the petition to terminate parental rights. Mother argued that the Department of Social Services had discouraged her from communicating with the department and the court had cut off her parental access well before the statutory abandonment period. The dissent agreed with mother’s arguments and supported a new fact-finding hearing:

… [T]he mother failed to demonstrate that the petitioner prevented or discouraged her from communicating with it or with the child, or that she was otherwise unable to do so … . The mother’s contention that the petitioner prevented her from communicating with the child by suspending her parental access is without merit, as it was the Family Court that suspended the mother’s parental access with the child, not the petitioner. Further, the mother was still obligated to maintain contact with the petitioner, which had legal custody of the child, even though the court had suspended her parental access … . * * *

From the dissent:

In this proceeding to terminate the mother’s parental rights on the ground of abandonment, the mother, who had been precluded from visiting with the subject child, asserted that her conduct during the statutory abandonment period did not evince an intent to abandon the child because the petitioner had prevented and discouraged her from maintaining contact with the child and with the petitioner. The Family Court erroneously ruled that the mother could not present evidence regarding events that occurred prior to the statutory abandonment period and erroneously precluded the mother from eliciting such evidence on cross-examination of the petitioner’s witnesses and during her own testimony. The court’s incorrect ruling infringed upon the mother’s right to present evidence regarding the central issue in the proceeding. Matter of Abel J.R. (Estilia R.), 2023 NY Slip Op 05139, Second Dept 10-11-23

Practice Point: To demonstrate abandonment of a child, the proof focuses on the six months before the petition to terminate parental rights was filed. Here mother and the dissent argued the Department of Social Services discouraged her from communicating with it about the child well before the six-month abandonment period. Mother and the dissent argued the Family Court judge erred by limiting proof from prior to the abandonment period. The majority noted mother was allowed to present pre-abandonment-period evidence and that evidence did not negate the proof of abandonment.

 

,

PLAINTIFF BUS PASSENGER WAS INJURED WHEN THE BUS DRIVER TOOK ACTION IN AN EMERGENCY; DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff-bus-passenger’s injuries resulted from the bus driver’s reaction to an emergency:

In this action for personal injuries arising from a fall on a public bus, defendants established prima facie entitlement to judgment as a matter of law by demonstrating that their bus driver was presented with an emergency situation that was not of his own making when a vehicle abruptly swerved into his lane without signaling, and that he took reasonable action by braking to avoid a collision … .

In opposition, plaintiff failed to submit any evidence tending to show that the bus driver created the emergency or could have avoided a collision by taking a different action other than applying the brakes … . Plaintiff’s claim that an issue of fact is raised by conflicting testimony over whether the driver braked abruptly or gradually is unavailing. The undisputed evidence demonstrates that the driver was required to take immediate action to avoid striking the vehicle and that braking with sufficient force to prevent an accident was a reasonable response to the emergency … . Febres v Metropolitan Transp. Auth., 2023 NY Slip Op 05095, First Dept 10-10-23

Practice Point: Defendants demonstrated the bus driver took justifiable action in an emergency. Plaintiff, a bus passenger, was injured by the movement of the bus. Defendants were entitled to summary judgment.

 

,

THE SCAFFOLD COLLAPSED ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE HEARSAY SUBMITTED IN OPPOSITION DID NOT DEFEAT THE MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-collapse case. Plaintiff alleged he was told to assemble use the scaffold despite mismatched parts. The defendants relied on hearsay statements attributed to Sabato, plaintiff’s supervisor, to the effect that Sabato told plaintiff to wait until the correct scaffold parts were supplied. Hearsay alone will not defeat a summary judgment motion:

… [T]estimony establishing that a safety device collapsed is sufficient for a prima facie showing on liability … . * * *

Because defendants’ submissions in opposition rely entirely on Sabato’s inadmissible hearsay statements, they are insufficient to raise a triable issue of fact as to whether plaintiff’s conduct — namely, using a scaffold that he was allegedly instructed not to use – may be the sole proximate cause for his accident and therefore warrant a denial of plaintiff’s motion … . Garcia v 122-130 E. 23rd St. LLC, 2023 NY Slip Op 05096, First Dept 10-10-23

Practice Point: The collapse of a scaffold warrants summary judgment on a Labor Law 240(1) cause of action. Hearsay alone offered in opposition will not defeat the motion.

 

, ,

LYING TO AN INVESTIGATOR WHO RECORDS THE LIE IN A REPORT CANNOT BE THE BASIS OF A “FALSIFYING A BUSINESS RECORD” CHARGE; ALTHOUGH THE ISSUE WAS NOT PRESERVED THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction after considering the unpreserved issue in the interest of justice, determined the People did not present legally sufficient evidence of the “falsifying a business record” charge. The People alleged defendant lied to the sheriff who interviewed him resulting in a false entry in the sheriff’s report. The report itself was not entered into evidence:

… [T]o meet its burden, the prosecution relied on testimony from a county sheriff’s office sergeant that, during the investigation into a shooting incident, he recorded his conversation with defendant in a report and the report became part of the business records for the sheriff’s office. The sergeant as well as additional sheriff’s deputies testified that defendant’s version of events conflicted with the concurrent observations of defendant’s gunshot wound by the members of the sheriff’s office. The People’s theory was that, by lying to the sergeant, defendant caused a false entry in the business records of the sheriff’s office. The trial testimony established, however, that the sergeant’s report was written to record the “condition or activity” of the sheriff’s office’s investigation into the shooting (Penal Law § 175.00 [2]). We conclude that there is no valid line of reasoning and permissible inferences from which a rational jury could have concluded beyond a reasonable doubt that the sergeant’s report contained a false record of that investigation. Indeed, the sergeant testified that the report accurately documented defendant’s responses to the sergeant’s investigatory questions. People v Andrews, 2023 NY Slip Op 05085, Fourth Dept 10-6-23

Practice Point: The Appellate Division can consider an unpreserved “legally insufficient evidence” issue.

Practice Point: Lying to an investigator who records the lie in the investigation report cannot be the basis for a “falsifying a business record” charge.

 

, ,

THE MOTION TO BIFURCATE THE LIABILITY AND DAMAGES ASPECTS OF THE TRIAL IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED; STATEMENTS MADE TO HEALTHCARE PERSONNEL AND MEDICAL RECORDS WERE RELEVANT TO LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion to bifurcate the trial (liability versus damages) in this slip and fall case should not have been granted. Plaintiff made statements to medical personnel which were relevant to liability:

Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he fell from an “upper patio or balcony” of an apartment building … . We agree with plaintiff that Supreme Court abused its discretion in granting defendants-respondents’ motion to bifurcate the trial with respect to the issues of liability and damages. “As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried separately” … . Here, however, we conclude that the issue of liability is not distinct from the issue of plaintiff’s injuries because plaintiff made statements to several of his medical care providers following his fall that render the testimony of several medical witnesses as well as hospital and medical records relevant to the liability phase of the trial. Plaintiff has thus established that bifurcation would not “assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” … .  Bogumil v Greenbaum Family Holdings, LP, 2023 NY Slip Op 05069, Fourth Dept 10-6-23

Practice Point: It is usual to bifurcate the liability and damages aspects of negligence trials. Here plaintiff’s statements to medical personnel and his medical records were relevant to liability as well as damages. The motion to bifurcate should not, therefore, have been granted.

 

,

VIDEO SURVEILLANCE SHOWING DEFENDANT ENTERING THE MALL WITH EMPTY BAGS FROM A STORE THAT WAS NOT IN THE MALL AND LEAVING WITH ITEMS IN THE BAGS DID NOT AMOUNT TO “REASONABLE SUSPICION” JUSTIFYING THE VEHICLE STOP; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the sheriffs did not have the requisite “reasonable suspicion” to justify the stop of defendant’s vehicle in a mall parking lot. A deputy had seen a surveillance video showing defendant going into the mall with empty bags from a store which was not in the mall and leaving a few minutes later with items in the bags:

The deputies readily acknowledged … that bringing outside bags into the mall was not unlawful or violative of mall policy, that it was not uncommon for mall visitors to return merchandise in bags that were not from the original store, and that mall visitors could properly put merchandise into personal, non-store bags if it was paid for. The first deputy conceded that, while viewing the live surveillance video, he did not observe defendant or the other individuals stealing anything from the subject store, and the second deputy likewise acknowledged that, prior to the vehicle stop, he had not made any observations to indicate that defendant or the other individuals had failed to pay for the merchandise. Additionally, the first deputy observed defendant and the other individuals walking, not running, back to the vehicle after exiting the store, and conceded that it was possible that they had purchased the merchandise during their time in the store … . People v Mcmillon, 2023 NY Slip Op 05064, Fourth Dept 10-6-23

Practice Point: Here the deputies conceded people do bring bags from other stores into the mall and can use those bags for purchases. Therefore, without more, video surveillance of the defendant entering the mall with empty bags from a “non-mall” store and then leaving with items in the bags did not justify the subsequent vehicle-stop.

 

,

DEFENDANT PROPERTY OWNERS PRESENTED NO EVIDENCE TO DEMONSTRATE WHEN THE STEPS WHERE PLAINTIFF SLIPPED AND FELL WERE LAST INSPECTED OR CLEANED; THEREFORE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT). ​

​The First Department, reversing Supreme Court, determined there was a question of fact whether defendants created or had notice of the slippery condition of the steps alleged to have caused plaintiff’s slip and fall. Defendants presented no evidence about when the steps were last cleaned or inspected:

Defendant Bruhilde Koenig testified during her deposition that she painted the concrete steps leading down to plaintiff’s basement apartment with nonslip paint, and that she never had issues with the patio being slippery when wet prior to plaintiff’s accident. However, she presented no testimony as to the condition of the steps on the day of the accident or as to when the steps had most recently been inspected or cleaned. Plaintiff testified that it was “wet and misty” at the time of the accident, that he observed standing water on the steps, and that he had previously asked Koenig to place safety strips on the staircase, as he and his daughter had slipped and fallen in the past during rainy weather. Plaintiff also testified that the steps were “irregular” and not “very well uniformed [sic].” Plaintiff has raised a triable issue of fact as to whether defendants created or had notice of the alleged defect. Iaccarino v Koenig, 2023 NY Slip Op 05037, First Dept 10-5-23

Practice Point: In a slip and fall case, the property owner cannot demonstrate a lack of notice of the slippery condition without presenting evidence demonstrating when the area was last inspected or cleaned.

 

, ,

DEFENDANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND TO A RISK-ASSESSMENT THEORY RAISED FOR THE FIRST TIME AT THE HEARING; MATTER REMANDED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should not have been assessed risk-factor points based on a theory which defendant was unable to respond to because it was raised for the first time at the SORA risk-assessment hearing. The matter was remanded:

… [T]he court should have found that the People acted improperly in raising, for the first time at the hearing, as the basis for scoring defendant 15 points for inflicting physical injury under risk factor 1, a new reason or theory that differed from the basis for that scoring specified in the Board’s case summary and in the People’s prehearing submissions. This deprived defendant of the proper advance, informative notice of “the reasons” and “basis” for the People seeking the 15-point determination to which he was entitled under Correction Law § 168-n (3) and due process, so as to afford him a meaningful opportunity to respond to the assessment … People v Jackson, 2023 NY Slip Op 05043, First Dept 10-5-23

Practice Point: If the People present a new risk-assessment theory at the SORA hearing, the court must give the defendant a meaningful opportunity to respond before issuing a ruling.

 

, , , , ,

BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. Because plaintiffs owned the condo unit, the defendants had no duty to install window guards. However, the cause of action alleging defendants’ failure to give notice of the window-guard requirements in the NYC Administrative Code properly survived dismissal:

“The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of property” … . Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the documentary evidence submitted by the Cherry Tower defendants, including the deed demonstrating that the unit owners purchased the subject apartment in 2007 and the condominium bylaws placing the responsibility to install and maintain window guards on the unit owners, conclusively demonstrates that the Cherry Tower defendants had no duty to install window guards in the subject apartment (see Administrative Code of City of NY § 27-2043.1[a]; Real Property Law § 339-ee[1] …).

However, the Supreme Court properly denied that branch of the Cherry Tower defendants’ motion which was to dismiss so much of the complaint as was based on their failure to provide the plaintiff with notice of the window guard requirements. Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the complaint sufficiently alleges that the Cherry Tower defendants failed in their responsibility to deliver the required notice to the subject apartment (see Administrative Code § 17-123[b]). Kwan v Kuie Chin Yap, 2023 NY Slip Op 05005, Second Dept 10-4-23

Practice Point: The individual owners of condominium units are responsible for the installation of window guards. Therefore the condominium itself has no duty to do so. However, in New York City, the condominium must provided the individual owners with notice of the window-guard requirement in the NYC Administrative Code.

 

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