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THE PARTY WITH THE RIGHT OF WAY ENTERING THE INTERSECTION WAS ENTITLED TO SUMMARY JUDGMENT AGAINST THE DRIVER MAKING A LEFT TURN, ALLEGATIONS THE PARTY WITH THE RIGHT OF WAY WAS SPEEDING DID NOT RAISE A QUESTION OF FACT BECAUSE THERE WAS NO EVIDENCE THE ACCIDENT COULD HAVE BEEN AVOIDED IF SPEEDING WAS NOT INVOLVED (SECOND DEPT)

The Second Department, reversing Supreme Court in this traffic accident case, determined that the driver who had the right of way entering an intersection. Aly, was entitled to summary judgment against the driver, Varela, who made a left turn into Aly’s path. The deposition testimony that Aly was speeding did not raise an issue of fact because there was no evidence Aly could have avoided the accident if traveling at the speed limit. In an apparent reference to the emergency doctrine the court noted that Aly had only seconds to react and therefore could not be deemed comparatively negligent:

The moving [ALY] defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them by submitting, among other things, the deposition transcripts of the parties, as well as video surveillance footage of the accident, which demonstrated that the sole proximate cause of the accident was Varela’s violation of Vehicle and Traffic Law § 1141 in making a left turn into the path of the oncoming Aly vehicle without yielding the right-of-way… . As the driver with the right-of-way, Aly was entitled to anticipate that Varela would obey the traffic laws which required him to yield … . ” Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision'” … . Here, the moving defendants established that Aly had only seconds to react to the Varela vehicle, which failed to yield.

In opposition, the plaintiffs and the Varela defendants failed to raise a triable issue of fact as to whether any negligence on the part of Aly was a substantial factor in the happening of the accident. Under the circumstances, the plaintiffs’ respective deposition testimony that Aly was speeding is “inconsequential inasmuch as the [plaintiffs] did not raise a triable issue as to whether [Aly] could have avoided the accident even if she had been traveling at or below the posted speed limit” … . Rohn v Aly, 2018 NY Slip Op 08966, Second Dept 12-26-18

 

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A SENTENCING COURT MAY REQUIRE A DEFENDANT, AS A CONDITION OF PROBATION, TO PAY FOR ELECTRONIC MONITORING, IF A DEFENDANT CLAIMS AN INABILITY TO PAY, A HEARING MUST BE HELD TO DETERMINE WHETHER ANOTHER ALTERNATIVE TO INCARCERATION IS APPROPRIATE AND, IF NOT, THE DEFENDANT MAY BE SENTENCED TO PRISON (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a dissenting opinion, determined that the sentencing court, as a condition of probation, may require a defendant to pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. Defendant, who had pled guilty to felony driving while intoxicated, made several monthly payments for the bracelet but then stopped paying and the monitoring company removed the bracelet. County Court then sentenced defendant to prison. The 3rd Department held that the sentence was illegal because the court cannot require a defendant to pay the cost of electronic monitoring:

Were we to hold that any monetary component of a condition that must be borne by a defendant per se invalidated said condition, sentencing courts would be divested of their broad authority to impose a myriad of probationary requirements, and consequently, would, in many instances, no longer view release into the community as a viable alternative to incarceration. In light of this, the requirement that defendant wear and pay for a SCRAM bracelet was well within County Court’s statutory authority under Penal Law § 65.10 (4).

This is not to say that requiring a defendant to wear and pay for an electronic monitoring device will always be reasonable. Courts cannot impose a condition of probation that includes costs a particular defendant cannot feasibly meet. Nor can courts incarcerate a defendant who has initially agreed to meet a condition requiring a payment, but who subsequently becomes unable to do so. * * *

… [I]f, at the imposition of the sentence or during the course of probation, a defendant asserts that they are unable to meet the financial obligations attendant to a certain condition, the sentencing court must hold a hearing on the matter … . The defendant must be given the opportunity to be heard in person, present witnesses, and offer documentary evidence establishing that they made sufficient bona fide efforts to pay … . If, after such inquiry, the sentencing court determines that the defendant has adequately demonstrated an inability to pay the costs associated with a particular condition despite bona fide efforts to do so, the court must attempt to fashion a reasonable alternative to incarceration … . Conversely, if the sentencing court determines, by a preponderance of the evidence … , that “a probationer has willfully refused to pay . . . when [that defendant] can pay, the [court] is justified in revoking probation and using imprisonment as an appropriate penalty for the offense” … . People v Hakes, 2018 NY Slip Op 08538, CtApp 12-13-18

 

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THE PRESUMPTION OF OWNERSHIP OF A VEHICLE CREATED BY THE CERTIFICATE OF TITLE CAN BE REBUTTED BY PROOF OF DOMINION AND CONTROL OVER THE VEHICLE, PLAINTIFF’S MOTION TO DISCOVER THE INSURER’S FILE IN THIS TRAFFIC ACCIDENT CASE TO DETERMINE WHETHER DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE VEHICLE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that evidence that defendant exercised dominion of control of the vehicle would rebut the presumption of ownership created by a certificate of title. Here the tile was in defendant’s wife’s name and she was driving at the time of the traffic accident. Plaintiff sought to discover the insurer’s file pursuant to CPLR 3124. Supreme Court should have granted the motion:

“A certificate of title is prima facie evidence of ownership” (… Vehicle and Traffic Law §§ 128, 2101[g]; 2108[c]…) . However, this presumption may be rebutted by evidence demonstrating that another individual owns the subject vehicle… . This may include evidence that a person other than the title holder exercised “dominion and control” over the vehicle …  .

Here, documents from the insurer concerning the vehicle and the accident are material and relevant to the issue of whether the defendant exercised dominion and control over the vehicle … . Accordingly, the Supreme Court should have granted the plaintiff’s motion to compel the defendant to provide an executed authorization for documents in the insurer’s possession concerning the vehicle and the accident … . ​Portillo v Carlson, 2018 NY Slip Op 08520, Second Dept 12-12-18

 

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DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant car dealership (Port Motors) had not transferred ownership of the car to the purchaser (Love) at the time of the accident and was therefore liable to plaintiff as the owner of the vehicle. Plaintiff was injured when the driver (Lemos) struck a barricade which in turn struck plaintiff, who was walking on the sidewalk:

Because Port Motors “fail[ed] to comply with the statutory requirements regarding vehicle registration procedures . . . [it] is estopped from denying ownership of the vehicle and is fully liable to the plaintiff as if it were the owner’ of the vehicle” … . Although this Court has held that “title to a motor vehicle is transferred when the parties intend such transfer to occur” … , here, there is no evidence that the parties intended to transfer title to the vehicle from Port Motors to Love prior to the accident. …

The metal barricade standing in the roadway was not “a sudden and unexpected circumstance which le[ft] little or no time for thought, deliberation or consideration, or cause[d] [Lemos] to be reasonably so disturbed that [he] [had to] make a speedy decision without weighing alternative courses of conduct . . . “… . Rather, by colliding with the barricade and propelling it onto the sidewalk, where it struck a pedestrian, Lemos failed to both operate his vehicle in a manner that was reasonable and prudent under the circumstances  … and to see what was there to be seen through the ordinary use of his senses … . Bunn v City of New York, 2018 NY Slip Op 07936, First Dept 11-20-18

NEGLIGENCE (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (OWNER LIABILITY, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PEDESTRIANS  (VEHICLE AND TRAFFIC LAW, DEALERSHIP HAD NOT TRANSFERRED OWNERSHIP OF THE CAR TO THE PURCHASER AT THE TIME OF THE ACCIDENT AND WAS THEREFORE LIABLE TO PLAINTIFF AS THE OWNER, THE DRIVER STRUCK A BARRICADE WHICH IN TURN STRUCK PLAINTIFF WHO WAS WALKING ON THE SIDEWALK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Curran, over a two-justice dissent, reversing Supreme Court, determined that defendant driver’s motion for summary judgment in this bicycle-car collision case should not have been granted. Apparently plaintiff was riding on the sidewalk and ran into the side of defendant’s car at an intersection. The majority concluded there was a question of fact whether defendant saw what he should have seen. The dissent relied on the right of way provisions of the Vehicle and Traffic Law:

Plaintiff [contended] that the provisions of the Vehicle and Traffic Law § 1234 (a) are inapplicable because plaintiff was riding his bicycle on a sidewalk and not a roadway, as contemplated by that section. Plaintiff further contended that issues of fact exist regarding whether defendant violated Vehicle and Traffic Law §§ 1142 and 1172 by failing to stop at the stop sign and failing to yield the right-of-way to plaintiff, and whether defendant failed to “see what [was] there to be seen.” …

Defendant, as the movant for summary judgment, had the burden of establishing as a matter of law that he was not negligent or that, even if he was negligent, his negligence was not a proximate cause of the accident … . To meet that burden, defendant was required to establish that he fulfilled his “common-law duty to see that which he should have seen [as a driver] through the proper use of his senses” … , “and to exercise reasonable care under the circumstances to avoid an accident” … , including that he met the obligation “to keep a reasonably vigilant lookout for bicyclists” .. . Defendant also had the burden of establishing as a matter of law that there was nothing he could do to avoid the accident … . Pagels v Mullen, 2018 NY Slip Op 07855, Fourth Dept 11-16-18

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE, QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/TRAFFIC ACCIDENTS  (QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))/BICYCLES (TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT))

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TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant town’s motion for summary judgment in this snowplow traffic accident case should have been granted. Defendant alleged the plow blade was in his lane, but there was evidence the road markings were covered with snow:

Vehicle and Traffic Law § 1103 (b) “exempts all vehicles actually engaged in work on a highway’—including [snowplows]—from the rules of the road” … . Here, defendants established as a matter of law that the snowplow was “actually engaged in work on a highway” at the time of the incident… , and plaintiff’s evidence that the plow blade was up at the time of the accident did not raise a triable issue of fact with respect thereto inasmuch as plaintiff did not dispute that Farr [the snowplow driver] was “working his run or beat at the time of the accident” … . …

At most, plaintiff established that Farr did not see plaintiff’s vehicle and that a portion of the snowplow crossed the center line of the road, which does not amount to recklessness. Moreover, plaintiff failed to submit competent evidence that Farr’s operation of the snowplow without either a “wing man” or certification to operate the snowplow without a wing man was reckless. Finally, while plaintiff and Farr provided different versions of the accident, those differences alone do not create a question of fact on the issue of reckless disregard here … . Clark v Town of Lyonsdale, 2018 NY Slip Op 07870. Fourth Dept 11-16-18

NEGLIGENCE (TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, SNOWPLOWS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/SNOWPLOWS (MUNICIPAL LAW, TRAFFIC ACCIDENTS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (MUNICIPAL LAW, SNOWPLOWS, TRAFFIC ACCIDENTS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, SNOWPLOWS, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SNOWPLOW TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE SNOWPLOW OPERATOR’S ACTIONS ROSE TO THE RECKLESS DISREGARD STANDARD IN THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT))

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POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant city’s motion for summary judgment in this police-car traffic accident case should have been granted because the officer’s actions did not rise to the reckless disregard standard of Vehicle and Traffic La 1104. Plaintiff was behind the police car when the officer made an abrupt u-turn to pursue a suspect in a domestic incident. There was evidence the officer did not activate the emergency lights until after the collision:

Before [the officer] attempted the U-turn, he checked his driver’s side and rearview mirrors, turned his head, and saw no vehicles behind him. …

We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint. “[T]he reckless disregard standard of care . . . applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)” … . When the accident occurred, Baldwin was operating an “authorized emergency vehicle” (§ 1104 [a]), and he “was engaged in an emergency operation by virtue of the fact that he was attempting a U-turn in order to pursu[e] an actual or suspected violator of the law’ ” … . Thus, Baldwin’s conduct was exempted from the rules of the road by section 1104 (b) (4) and is governed by the reckless disregard standard of care in section 1104 (e) … .

A ” momentary judgment lapse’ does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” … . In support of their motion, defendants submitted evidence of the precautions Baldwin took before he attempted the U-turn and established as a matter of law that Baldwin’s conduct did not rise to the level of reckless disregard for the safety of others, i.e., “he did not act with conscious indifference’ to the consequences of his actions” … .  Flood v City of Syracuse, 2018 NY Slip Op 07869, Fourth Dept 11-16-18

NEGLIGENCE (MUNICIPAL LAW, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (POLICE OFFICERS, TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/POLICE OFFICERS (TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/RECKLESS DISREGARD (POLICE OFFICERS, TRAFFIC ACCIDENTS, POLICE OFFICER TOOK PRECAUTIONS BEFORE ATTEMPTING A U-TURN TO PURSUE A SUSPECT AND COLLIDING WITH PLAINTIFF’S VEHICLE, MOMENTARY JUDGMENT LAPSE DOES NOT MEET RECKLESS DISREGARD STANDARD, CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this intersection traffic accident case. Defendant Lucia Wager made a left turn into plaintiff’s path in violation of Vehicle and Traffic Law 1141. The unsourced statement in the medical record concerning plaintiff’s speed was not related to his diagnosis or treatment and should not have been admitted:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that Lucia Wager violated Vehicle and Traffic Law § 1141 when she made a left turn directly into the path of the injured plaintiff’s motorcycle. Lucia Wager was negligent in failing to see what was there to be seen, and in attempting to make a left turn when it was hazardous to do so … . Regardless of who entered the intersection first, the injured plaintiff, as the driver with the right-of-way, was entitled to anticipate that Lucia Wager would obey traffic laws which required her to yield … . In opposition, the defendants failed to submit evidence sufficient to raise a triable issue of fact as to whether Lucia Wager had a nonnegligent explanation for colliding with the injured plaintiff’s motorcycle  … . Contrary to the defendants’ contention, the statement contained in the injured plaintiff’s medical record as to how fast his motorcycle was traveling at the time of the collision was not admissible as an admission, since the source of the information was not identified and it did not contain information that was germane to his diagnosis or treatment … . Ming-Fai Jon v Wager, 2018 NY Slip Op 07304, Second Dept 10-31-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/TRAFFIC ACCIDENTS ( DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (INTERSECTION ACCIDENT, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/EVIDENCE (MEDICAL RECORDS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/MEDICAL RECORDS (NEGLIGENCE, STATEMENTS , DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))/ADMISSIONS (NEGLIGENCE, MEDICAL RECORDS, TRAFFIC ACCIDENTS, DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW WHEN SHE MADE A LEFT TURN INTO PLAINTIFF’S PATH, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, STATEMENT IN A MEDICAL RECORD ABOUT PLAINTIFF’S SPEED WAS UNRELATED TO DIAGNOSIS OR TREATMENT AND WAS NOT SOURCED, THE STATEMENT SHOULD NOT HAVE BEEN CONSIDERED AS AN ADMISSION (SECOND DEPT))

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IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction for aggravated unlicensed operation of a motor vehicle, determined that the testimony of a supervisor from the NYS Department of Motor Vehicles (DMV), alleging that notice of the revocation of defendant’s license was mailed to defendant, violated defendant’s right to confront the witnesses against him because the testimony was not based upon first hand knowledge:

To establish that the defendant operated a motor vehicle while knowing that his license was suspended or revoked, the People presented the testimony of a supervisor of the New York State Department of Motor Vehicles (hereinafter the DMV), who testified about the DMV’s process of mailing notices of revocation and/or suspension. The DMV supervisor testified that an order of suspension was mailed to the defendant in 1999, and she read into the record an affidavit, sworn to in 2012, which detailed the procedures related to mailing these notices and also stated, “upon information and belief,” that the notice was in fact mailed to the defendant in 1999. However, the DMV supervisor herself admittedly had no personal knowledge of the mailing to the defendant, and the People did not produce the original 1999 affidavit of mailing.

The Supreme Court should not have permitted this testimony, as it violated the defendant’s right of confrontation (see CPLR 4518[a]; CPL 60.10;… ) The defendant was never given the opportunity to cross-examine a DMV employee who was directly involved in sending out suspension notices and who had personal knowledge of defendant’s driving record. The DMV supervisor’s testimony was improperly allowed to establish an essential element of the crime. The court, in permitting this testimony, failed to ensure that the defendant’s Sixth Amendment right of confrontation was protected … . People v Stokeling, 2018 NY Slip Op 07158, Second Dept 10-24-18

CRIMINAL LAW (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT)/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/VEHICLE AND TRAFFIC LAW  (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))

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PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiffs (the Rothchilds) were entitled to summary judgment in this rear-end collision case:

The record shows that the accident occurred in heavy, stop-and-go traffic, and DeSouza [defendant] testified to driving three-to-five miles per hour for at least 10 minutes prior to the accident, that he observed cars immediately in front of the Rothchilds’ vehicle, and that he did not place his foot on his brake until his moving vehicle was two feet from the Rothchilds’ back bumper. A driver is supposed to make reasonable use of his or her senses … , and maintain a safe distance from other motor vehicles (see Vehicle and Traffic Law § 1129[a]…), which was not done in this case. Miller v DeSouza, 2018 NY Slip Op 07065, First Dept 10-23-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/TRAFFIC ACCIDENTS (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/REAR END COLLISIONS (PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW  (TRAFFIC ACCIDENTS, REAR END COLLISIONS, PLAINTIFFS ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, SUPREME COURT REVERSED (FIRST DEPT))

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