New York Civil Law

New York Evidence/New York Court of Appeals Grants Motion for Leave to Appeal - Secondary Evidence

Clarke v. Rodriguez (Motion for leave to appeal granted on Nov. 23, 2010)

73 A.D.3d 677 (2d Dep’t 2010)

 Trial attorneys will want to follow this appeal concerning a point of a little-discussed exception to the best evidence rule.  The appeal concerns the admission of secondary evidence.  A proponent of an written instrument who is unable to produce the paper because it is under the control of the opponent may produce secondary evidence of what is contained in the original instrument.

 The defendant appealed a Supreme Court judgment that, after a nonjury trial, was in favor of the plaintiff and against him directing specific performance for the sale of real property.  Supreme Court allowed the plaintiff to submit secondary evidence of the contents of the original contract of sale.  The Second Department concluded that the plaintiff sufficiently explained the unavailability of the primary evidence -- i.e., the contract of sale for the real property.  The plaintiff established that the defendant’s former attorney, who did not testify at the trial, possessed the original contract of sale.

 The Court will revisit its holding in Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639 (1994). 

 

New York Court of Appeals Grants Leave to Appeal Regarding Emergency Doctrine Instruction

Last week, the New York Court of Appeals granted leave to appeal in Lifson v. City of Syracuse.  The issue likely to be decided is whether a trial court can instruct a jury on the emergency doctrine where the evidence does not support that a weather or lighting condition was sudden or unforeseen.

In Lifson, the defendant driver injured the decedent pedestrian after striking her with his motor vehicle.  The defendant stopped at a stop sign at the intersection in question.  He looked to the left and to the right and the proceeded to make a left turn.  The defendant claimed that, as he was in the process of making the left turn, his vision was momentarily obstructed by sun glare.  He took his eyes off the road and, when he looked back up again, he observed decedent approximately one foot in front of his vehicle.  The defendant "slammed" on the brakes but was unable to avoid hitting the decedent.

The Fourth Department Majority concluded, among other things, that the trial court did not err by giving an emergency instruction with respect to the assertion of the defendant that he failed to observe the decedent because he was blinded by sun glare.  The Court reasoned that there was a reasonable view of the evidence establishing that the sun glare was a sudden and unforeseen circumstance justifying the emergency instruction.

Justice Peradotto dissented, noting that she agreed with the plaintiff that Supreme Court erred in giving an emergency instruction with respect to the assertion of the defendant that he failed to observe the decedent because he was blinded by sun glare.  Justice Peradotto noted that the defendant never testified at trial that he was unaware that the sun was out or that he did not expect to be driving into the sun when he turned left to travel west.  

Justice Peradotto concluded that

[The] defendant should have anticipated the possibility that he might encounter glare from the sun when he began to turn his vehicle to travel west into the setting sun.  Because the condition defendant faced was not unexpected in light of the sunny weather and the time of day, [the] defendant was not entitled to the benefit of an emergency instruction.

New York Civil Law will keep you apprised of the developments on this appeal 

Appellate Division, First Department Addresses Confidential Settlement Agreement Issue

The Appellate Division, First Department in Osowski v. AMEC Constr. Mgt., Inc. addressed a confidential settlement agreement between the plaintiffs and the defendants.  The plaintiffs and defendants entered into a settlement agreement to perform an end-run around a contractual waiver of subrogation contained in an Owner Controlled Insurance Program.  The opinion concerns issues surrounding the disclosure of confidential settlement agreements and the importance of forthrightness where the court orders disclosure.

New York Court of Appeals Will Hear Oral Arguments on The Scope of Expert Witness Testimony

On September 10, 2009, the New York Court of Appeals will hear oral arguments in Salm v. Moses.  The underlying Appellate Division, First Department doesn't have much to it.  The appeal addresses whether the trial court properly limited the cross-examination the defendant's expert by precluding inquiry into the fact that he and the defendant were insureds and shareholders in the same dental malpractice insurance company.  The Court of Appeals will likely address the standard that the First Department applied -- i.e., whether the trial court "achieved a fair balance between the plaintiff['s] right to attack the expert witness's credibility and the prejudicial effect of introducing the fact of [the defendant]'s insurance coverage".

New York Civil Law will keep you apprised on the decision.

New York Court of Appeals Determines Case Regarding Foundation of Expert Opinion

Butler v. City of Gloversville provides another case in which an expert did not support his conclusion with a proper foundation.  The New York Court of Appeals concluded that the defendant's expert did not support his conclusion that the plaintiff would have been injured even if other ground covering on the subject playground was present.

Since New York is a Frye state, I wish that there were more detailed decisions on the threshold Frye instead of the foundation issue.

Quick Post About Admissibility of Accident Report

Nunez v.  Levy is an interesting Labor Law case that contains an issue regarding the admissibility of  an accident report.  The defendants attempted to preclude the admission of the post-accident report into evidence because, among other things, it addressed opinions about post remedial repairs or measures.  Supreme Court, New York County held that the report was admissible, describing it as a post-accident evaluation of what caused the accident and how it occurred.

New York Court of Appeals Will Examine Burdens in Products Liability Context

During the February Session, the New York Court of Appeals will hear oral arguments in Ramos v. Howard Indus. Inc. -- a products liability case concerning an electrical transformer.  The novel issue concerns the burden a manufacturer has on summary judgment to make a prima facie showing that no manufacturing defect existed where the product has been spoliated.

The plaintiff in Ramos commenced a products liability action seeking damages for injuries he allegedly sustained when a transformer designed and manufactured by the defendant exploded.   Initially, the plaintiff reported to his employer and doctors that he was injured when he reached out of an aerial bucket while installing the transformer on a utility pole.  The plaintiff later claimed that his injuries occurred as a result of the transformer explosion, but at that time the transformer could not be located for inspection or testing concerning the cause of its failure.

In support of its motion the defendant manufacturer proffered evidence that its transformers generally were designed and manufactured under state of the art conditions according to power company's specifications and complied with all applicable industry standards.  The evidence also demonstrated that the transformer which allegedly exploded and injured the plaintiff would have been individually tested to ensure compliance with customer specifications and industry requirements.

The Appellate Division, Fourth Department Majority agreed with the trial court that the defendant manufacturer did not meet its burden on summary judgment because it merely pointed to gaps in the plaintiff's proof. 

Justice Peradotto dissented, offering a well-reasoned opinion on the impossible standard the Majority required of a defendant in defending a circumstantial products liability case where the product was missing.

NYCL will keep you apprised of the decision when the Court hands it down.

Supreme Court, Queens County Orders In Camera Inspection of Driver's Cell Phone Records in Motor Vehicle Accident

As many lecturers will tell you, the proliferation of electronically stored information makes its impact on litigation inevitable.  The recent case of Morano v. Slattery Skanska, Inc. out of Supreme Court, Queens County is a good example.

The injured plaintiff was driving a motorcycle and saw a motor vehicle stopped on the side of the road.  He thought the person was broken down and calling for help on her cell phone.  He stated in an affidavit in support of a subpoena for the driver's cell phone records that he saw the driver "with an object in her hand held to her head."  The defendant moved to quash the subpoena for the records, citing privacy issues.

Justice Ritholtz denied the motion to quash the subpoena, ordering an in camera review to determine what calls, if any, should be discoverable by the accident victim.  Notably, Justice Ritholtz observed that the justification for allowing the injured plaintiff to even gain the benefit of obtaining any part of the cell phone records was his statement that he saw the defendant holding something to her head that looked like a cell phone just before the accident happened.  Justice Ritholtz indicated in the decision that a party would not be able to discover such records without some indication that a cell phone was a possible factor in the accident.

Appellate Review and Judicial Notice

Every appellate attorney knows that appellate courts only review submissions that were presented to the trial court below (except in narrow circumstances) -- nothing outside of the record.  The recent appeal in Walker v. City of New York really drives that point home, rejecting the plaintiff's request for the Court to take judicial notice of an affidavit filed in a submission that was unrelated to the motion on appeal.

The plaintiff in Walker was attempting to vacate a dismissal of his action.  In support of the vacatur motion, the plaintiff failed to submit to the trial court an affidavit of a medical expert to opine on the merits of the malpractice action.  To avoid the consequences of this failure, the plaintiff requested that the Court take judicial notice of a medical expert affidavit that was filed in support of a prior motion for leave to serve a late notice of claim.  In an excellent discussion of judicial notice in the context of appellate review, the Appellate Division, Second Department refused to do so.   The Court noted that the affidavit, which contained disputed facts, was not the type of factual material of which it could take judicial notice.

Thank you to the excellent blawg New York Legal Update for calling my attention to the appeal (see post here).

New York Court of Appeals Does Not Recognize A New Tort for a Third-Party's Negligent Spoliation of Evidence

Just yesterday, the New York Court of Appeals in Ortega v. City of New York refused to expand MetLife
Auto & Home v Joe Basil Chevrolet and determined that a cause of action for a third party's negligent spoliation of evidence is not cognizable in this State.  As New York Civil Law wrote in prior posts, this case was riddled with unexplained issues. 

The plaintiffs were severely burned when one of the plaintiffs' automobiles caught fire for an unexplained reason.  One of the plaintiffs obtained a pre-action order for the City of New York (a third-party not responsible for the automobile fire) to preserve the subject automobile for inspection; however, the automobile was destroyed.  The plaintiffs commenced an action against the City based on spoliation and contempt of court.

Supreme Court, Kings County in its decision recognized the viability of an independent cause of action for spoliation.  The Appellate Division, Second Department rejected in their opinion the plaintiffs' contention that they could recover damages for spoliation of evidence against the third party.

The Court of Appeals agreed, carefully analyzing why recognizing such a tort was not viable and would lead to too much speculation for the jury.  Perhaps the most interesting part of the decision was the Court's observation that not every wrong can have a remedy.