MIC Gen. Ins. Corp. v Campbell, 2020 NY Slip Op 01465 [1st Dept. 2020]

Plaintiff demonstrated, via defendant’s admission in a statement to its investigator and the investigator’s inspection of the insured premises, that defendant did not reside at the premises and was therefore not covered by the policy (see Almonte v CastlePoint Ins. Co., 140 AD3d 658 [1st Dept 2016]).

Judicial Estoppel

Wells Fargo Bank N.A. v Webster Bus. Credit Corp., 2014 NY Slip Op 00412 [1st Dept. 2014]

Contrary to defendant's argument, plaintiffs' previous assertion of their own claim for contractual indemnification does not judicially estop them from denying that defendant is entitled to indemnification of attorneys' fees under the agreement. The doctrine of judicial estoppel " precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed'" (Jones Lang Wootton USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1st Dept 1998], lv dismissed 92 NY2d 962 [1998] [quoting Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436 [2d Dept 1995]). As plaintiffs did not prevail on their contractual indemnification claim, the doctrine of judicial estoppel does not apply (see Kvest LLC v Cohen, 86 AD3d 481, 482 [1st Dept 2011]; Gale P. Elston, P.C. v Dubois, 18 AD3d 301, 303 [1st Dept 2005]).

Nor does plaintiffs' prior claim for contractual indemnification, standing alone, constitute a "judicial admission" that attorneys' fees are recoverable in inter-party disputes. On the contrary, plaintiffs' former construction of the agreement was a legal argument, and not a "fact" amenable to treatment as a "formal judicial admission" (GJF Constr., Inc. v Sirius Am. Ins. Co., 89 AD3d 622, 626 [1st Dept 2011]).

Emphasis is mine (the bolded portion only) (italics in original).

Admission in deposition transcript

Singh v Actors Equity Holding Corp., 2011 NY Slip Op 07909 (1st Dept., 2011)

Plaintiff's argument that summary judgment should not have been granted because defendants failed to include signed, sworn copies of the deposition transcripts, is raised for the first time on appeal and thus, is precluded from review (Ta-Chotani v Doubleclick, Inc., 276 AD2d 313 [2000]). Were we to consider the argument, we would find that the signed, sworn documents were in defendants' possession and could have been provided to the motion court had defendants been notified of the omission. Moreover, the deposition transcripts are admissible as plaintiff's own admission since the transcripts had been certified as accurate by the court reporter (Morchik v Trinity School, 257 AD2d 534, 536 [1999]).


Adopted Judicial Admission

Kraut v City of New York, 2011 NY Slip Op 05460 (App. Div., 2nd 2011

Furthermore, the plaintiff's hearing testimony demonstrated that the sole basis for his arrest was his lack of a valid driver's license, and that no inquiry was made and no problem was discovered with regard to his insurance documentation at the time of his arrest. This testimony, which constituted a judicial party admission (see Ocampo v Pagan, 68 AD3d 1077, 1078-1079; Reno v County of Westchester, 289 AD2d 216, 217), conclusively refuted the allegation in the complaint that the arrest was premised upon a lack of insurance. Although the plaintiff contends that his hearing testimony should not have been considered because there is no evidence that a transcript of the testimony was received and signed by him, the plaintiff adopted the contents of the transcript by appending it to his sworn bill of particulars and serving it upon the defendants during discovery. Moreover, the affidavit submitted by the plaintiff in opposition to the defendant's motion failed to warrant the denial of the motion.

Informal Judicial Admissions and 3101(d)

Normally this would go on the evidence blog, but I rarely post over there and am considering just killing the damn thing, so I'm posting it here.  In fact, it's been sitting around since December, waiting to be posted.

Ocampo v Pagan, 68 AD3d 1077 (App. Div., 2nd, 2009)

The court improvidently exercised its discretion in precluding the
testimony of the
defendants' expert witness in the area of radiology. "CPLR 3101 (d) (1)
(i) does not require a
party to respond to a demand for expert witness information 'at any
specific time, nor does it
mandate that a party be precluded from proffering expert testimony
merely because of
noncompliance with the statute,' unless there is evidence of intentional
or willful failure to
disclose and a showing of prejudice by the opposing party"
Zwanger-Pesiri Radiology Group,
39 AD3d 710, 710-711 [2007], quoting
Aversa v
194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski
& Skate, Inc.,
42 AD3d 563, 564 [2007]).

While a trial court "has the discretion to preclude expert
testimony for the failure to
reasonably comply with the statute" (Lucian v Schwartz, 55 AD3d
687, 688 [2008]),
there was no finding [*2]here of failure to
comply, reasonably or
otherwise, with the statute. This is not a situation in which the
defendants failed to demonstrate
good cause for failing to disclose expert information regarding expert
witnesses until the eve of
(cf. Martin v NYRAC, Inc., 258 AD2d 443 [1999]). Rather,
the defendants
produced an affidavit of service showing that the required notice
pursuant to CPLR 3101 (d) was
timely served (see CPLR 2103 [b] [2]). The court here merely
found that the plaintiff's
explanation raised a question of fact as to whether the plaintiff had
actually received the notice,
specifically declining to place blame on either party for the "totality
of . . .
circumstances" underlying the claim of the plaintiff's counsel that he
was unaware of the
existence of the first expert witness disclosure until right before the
start of the trial. Where there
is no evidence of intentional or willful failure to disclose, "any
potential prejudice to the
plaintiffs [may be] eliminated by an adjournment of the trial"
v Cross County Ski &
Skate, Inc.,
42 AD3d at 564; see Shopsin v Siben & Siben, 289
AD2d 220, 221
[2001]). By precluding the expert's testimony to avoid prejudicing the
plaintiff, instead of simply
adjourning the trial to avoid prejudice to either party, the court, in
effect, penalized the
defendants, although there was no evidence of wrongdoing on their part (see
Rowan v Cross
County Ski & Skate, Inc.,
42 AD3d at 564; Shopsin v Siben
& Siben,
289 AD2d at
221). Contrary to the plaintiff's contention, the error was not

Moreover, the Supreme Court improvidently exercised its
discretion in limiting the scope of
the defendants' cross-examination of the plaintiff by precluding the use
of pleadings, bills of
particulars, and sworn testimony given at a hearing pursuant to General
Municipal Law §
50-h in subsequent lawsuits, and in precluding the introduction such
documents into evidence.

Statements contained in a verified complaint, or " 'made by a
party as a witness, or contained
in a deposition, a bill of particulars, or an affidavit' " constitute
informal judicial admissions
(Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996],
quoting Prince,
Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see Gomez v
City of New
215 AD2d 353, 354 [1995]). As such, "they are generally
admissible pursuant to an
exception to the hearsay rule"
(Payne v New Hyde Park Dodge, 163
AD2d 285, 286
[1990]). While not conclusive, they are "evidence of the fact or facts
Richardson on Evidence § 8-219, at 530 [Farrell 11th ed]; see Matter
of Union Indem.
Ins. Co. of N.Y.,
89 NY2d at 103; Gomez v City of New York, 215
AD2d at 354;
Payne v New Hyde Park Dodge, 163 AD2d at 286). Where statements
in the pleadings
or the bill of particulars, or in depositions or hearings from other
judicial proceedings are
inconsistent with the trial testimony of a witness, they are also
admissible to impeach the
credibility of that witness
(see Somir v Weiss, 271 AD2d 433
[2000]). Here,
cross-examination testimony of the plaintiff regarding allegations in
her pleadings and bill of
particulars from a subsequent action arising out of a trip and fall, and
parts of her testimony,
given at a hearing pursuant to General Municipal Law § 50-h in
connection with a
subsequent medical malpractice action, were admissible on the issue of
the truth of the facts
stated, both as prior inconsistent statements impeaching the plaintiff's
credibility, and as informal
judicial admissions.
While prior accidents or lawsuits may not be
explored where the purpose is
to "induce the inference of negligence or demonstrate that the plaintiff
is litigious and therefore
unworthy of belief" (Molinari v Conforti & Eisele, 54 AD2d
1113, 1114 [1976]), "it is
open to one charged with having caused an injury to inquire into whether
the claimant had
sustained, or had claimed to have sustained, the same injury in
circumstances unrelated to those
at bar" (Bowers v Johnson, 26 AD2d 552 [1966]).

The trial court's conduct, including, inter alia, its excessive
intervention into the trial
proceedings, warrants remittal to the Supreme Court for a new trial
before a different Justice

(see Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679
[2006]; see also
Schaffer v Kurpis,
177 AD2d 379 [1991]; Testa v Federated Dept.
Stores, Abraham &
Straus Div.,
118 AD2d 696, 697 [1986]).

The bold and underscore are mine.

NTA (CPLR § 3123) and Formal Judicial Admissions

Formal Judicial Admission

CPLR § 3123(a) Notice to admit; admission unless denied or denial excused

Zegarowicz v Ripatti, 2009 NY Slip Op 08004 (App. Div., 2nd, 2009)

Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v 81 & 3 of Watertown, 288
AD2d 890, 891; Prince, Richardson on Evidence § 8-215, at 523-524
[Farrell 11th ed]). Formal judicial admissions are conclusive of the
facts admitted in the action in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655).

Here, HVT made a formal judicial admission that it was listed as
owner on the certificate of title. A certificate of title is prima
facie evidence of ownership (see Vehicle and Traffic Law § 2108[c]; Switzer v Aldrich, 307 NY 56; Corrigan v DiGuardia, 166 AD2d 408; Salisbury v Smith, 115
AD2d 840). Although this presumption of ownership is not conclusive,
and may be rebutted by evidence which demonstrates that another
individual owned the vehicle in question
(see Aronov v Bruins Transp., 294 AD2d 523; Dorizas v Island Insulation Corp., 254
AD2d 246), there was no evidence in the record to rebut that
presumption. "In reviewing a determination made after a nonjury trial,
the power of this Court is as broad as that of the trial court, and
this Court may render the judgment it finds warranted by the facts,'
bearing in mind that in a close case, the trial judge had the advantage
of seeing the witnesses"
(Stevens v State of New York, 47 AD3d 624, 624-625, quoting Northern Westchester Professional Park Assoc. v Town of Bedford, 60
NY2d 492, 499). Based on our review of the evidence, judgment in favor
of the plaintiff and against HVT on the issue of liability is

Morreale v Serrano, 2009 NY Slip Op 07992 (App. Div., 2nd, 2009)

The Supreme Court properly denied the plaintiff's motion for summary
judgment on the complaint, inasmuch as the plaintiff failed to meet his
initial burden of establishing, by admissible evidence, his prima facie
entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp.,
68 NY2d 320, 324). To the extent that the plaintiff relied on the
defendant's response to his notice to admit, that notice improperly
sought the defendant's admissions to facts that went to "the heart of
the matter"
(Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d 537, 537; see Glasser v City of New York,
265 AD2d 526). In light of our determination, we need not examine the
sufficiency of the papers submitted by the defendant in opposition to
the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).