“A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence. …[O]pinion evidence must be based on facts in the record or personally known to the witness …” D’Andria vs Pesce, 2011-03506, Index No. 16320/02 Second Dept. 2-20-13
“Since the [res ipsa loquitur] doctrine merely permits an inference arising from the evidence in a negligence case, the plaintiff’s failure to plead res ipsa loquitur does not foreclose its application on summary judgment or at trial.” Wicks vs Leemilt’s Petroleum, Inc., 2011-01891, Index No. 1843/08 Second Dept. 2-20-13
The Second Department affirmed the dismissal of a complaint because the complaint asserted theories not mentioned in the notice of claim. “A party may not add a new theory of liability which was not included in the notice of claim …”. Williams vs County of Westchester, 2011-10614, Index No. 15002/08 Second Dept. 2-20-13
The Second Department reversed the trial court’s grant of a petition to file a late notice of claim. “The petitioner did not demonstrate a reasonable excuse… . The petitioners’ assertion that they only recently discovered that they had a claim against the City is not an acceptable excuse … . * * * The fact that the … Police Department had knowledge of this accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the City …”. Matter of Klass vs City of New York, 2012-00913, Index No. 16699/11 Second Dept. 2-20-13
In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 Second Dept. 2-13-13
Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire. The defendant’s flight provided reasonable suspicion to pursue and stop him. The defendant’s discarding of a gun during the chase, therefore, was not the result of improper police action. People vs Barrow, 2011-030059, Ind. No. 1356/09 Second Dept. 2-13-13
DeBour, street stops
The Second Department determined the “zone of danger” theory of recovery for witnessing the death of someone in the plaintiff’s “immediate family” did not allow recovery for witnessing the death of a man, not plaintiff’s biological father, who was the only person plaintiff had ever known as a father figure. Thompson vs Dhaiti, 2011-11215, Index No. 24951/09 Second Dept. 2-13-13
When an insured settles with a tortfeasor in violation of a condition requiring his or her insurer’s written consent to settle, and fails to preserve the insurer’s subrogation rights, the insurer is prejudiced, and the insured is prohibited from asserting a claim for underinsured motorist benefits …”. Matter of Travelers Home and Marine Insurance Company vs Kanner, 2012-02625, Index No. 16172/11 Second Dept. 2-13-13
In a prison disciplinary proceeding, the hearing officer’s refusal to provide the inmate with the instructions for the operation of the machine which was used to test his urine for the presence of drugs required annulment of the determination the prisoner had used a controlled substance. Matter of Marshall vs Fischer, 2012-01538, Index No. 6260/11 Second Dept. 2-13-13
This decision includes a clear discussion of the doctrines of res judicata and collateral estoppel, the (non)application of those doctrines to a “nominal party,” and the (non)application of those doctrines to a prior proceeding with a lower standard of proof. Matter of Sherwyn Toppin Marketing Consultants, Inc. vs New York State Liquor Authority, 2012-01119, Index No. 24980/11 Second Dept. 2-6-13
Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy