Present sense impression

Matter of Matter of Allstate Ins. Co. v Stricklin, 2012 NY Slip Op 01812 (2nd Dept., 2012)

Contrary to the appellants' contention, the police accident report was not admissible under the present sense exception to the hearsay rule. To be admissible under this exception, a [*2]statement must be made "substantially contemporaneously" with the witness's observations, and the declarant's description of the relevant events must be "sufficiently corroborated by other evidence" (People v Brown, 80 NY2d 729, 734). As stated by this Court in the case of Matter of Phoenix Ins. Co. v Golanek (50 AD3d 1148, 1150):

"After [the eyewitness] wrote [the plate] number on a piece of paper, [he] was no longer relying upon a present sense of the number, but was relying entirely on the contents of [his] own writing [and thus] . . . the police accident report generated sometime later did not reflect a present sense impression rather than a recalled or recast description of events that were observed in the recent past' (People v Vasquez, 88 NY2d 561, 575 [1996])."

Morever, the evidence at the hearing did not establish how much time elapsed between the imparting of the license plate information to the officer and the preparation of the police accident report. In addition, it was not established that the officer who received the piece of paper at the accident scene was the same one who prepared the police report. Moreover, even assuming that the license plate information was "substantially contemporaneous" with the unidentified witness's observation, there was insufficient evidence of corroboration (cf. Matter of Irizarry v Motor Veh. Indem. Corp., 287 AD2d 716).

Accordingly, under all of the circumstances, it was error to admit the police report into evidence. Since there was no other evidence that the vehicle insured by Autoone was involved in the subject accident, Allstate's petition to stay arbitration of Stricklin's uninsured motorist claim should have been denied, and the proceeding dismissed.


CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

Saline v Saline, 2012 NY Slip Op 03162 (2nd Dept., 2012)

Contrary to the defendant's contentions, the trial court properly admitted into evidence certain documents admitted by him to be authentic and upon which it based its findings of fact (see CPLR 3123; Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103; Ocampo v Pagan, 68 AD3d 1077).

Not a business record: CPLR 4518 and a DVD

CPLR R. 4518 Business records

Lambert v Sklar, 2012 NY Slip Op 00755 (2nd Dept., 2012)

In opposition, the plaintiffs failed to raise a triable issue of fact. According to the deposition testimony of the decedent's widow, which was submitted by the defendants, she did not know the purpose of the payments identified in the check register. Moreover, even if the check register were the decedent's, it was inadmissible as a business record (see CPLR 4518[a]), and incompetent to prove that the corresponding checks were loans, rather than repayments of advances (see Matter of Roge v Valentine, 280 NY 268; Leask v Hoagland, 205 NY 171; Nappi v Gerdts, 103 AD2d 737; Shea v McKeon, 264 App Div 573; Bogatin v Brader, 243 App Div 856; Matter of Levi, 3 Misc 2d 746; In re Purdy's Will, 73 NYS2d 38 [Sur Ct 1947]; see also Nay v Curley, 113 NY 575, 577; Koehler v Adler, 78 NY 287). Given the plaintiffs failure to set forth admissible evidence raising a triable issue of fact as to whether the defendants made any material misrepresentations to the public administrator, the Supreme Court properly granted the defendants' motion for summary judgment, in effect, dismissing the cause of action alleging fraud, and, in effect, properly denied the plaintiffs' cross-motion for summary judgment, in effect, on the cause of action alleging fraud.

National Ctr. for Crisis Mgt., Inc. v Lerner, 2012 NY Slip Op 00758 (2nd Dept., 2012)

Additionally, the Supreme Court properly declined to consider a DVD recording submitted by the defendant in support of her motion for summary judgment, as it cannot be concluded that the video recording truly and accurately represented what the defendant purported it to show (see Zegarelli v Hughes, 3 NY3d 64, 69; see also People v Patterson, 93 NY2d 80, 85; cf. People v Byrnes, 33 NY2d 343, 349).

A duty to read

Vulcan Power Co. v Munson, 2011 NY Slip Op 07917 (1st Dept., 2011)

Defendants-appellants and defendant Munson, their representative, signed the stockholders agreement without reading it. Defendants-appellants, in fact, never requested a copy of the agreement, depending instead on the representations of Munson, who, in turn, depended upon the representations of people whose interests were at odds with his and who he believed to be untrustworthy. As a result, defendants are bound by the terms of the stockholders agreement (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Pimpinello v Swift & Co., 253 NY 159, 162-163 [1930]). Defendants' argument that the holding in Sorenson does not apply to signers of loose signature pages is without merit. A signer's duty to read and understand that which it signed is not "diminished merely because [the signer] was provided with only a signature page" (Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009]; see also Friedman v Fife, 262 AD2d 167, 168 [1999]).

Defendants' failure to read the stockholders agreement also precludes its fraud in the execution defense (see First Natl. Bank of Odessa v Fazzari, 10 NY2d 394, 397-398 [1961] [finding a non-English speaker negligent for not asking his wife to read a document of obvious legal import, especially where he had done so in the past]; see also Sorenson, 52 AD3d at 266 ["negligent failure to read [an] agreement [precludes the assertion of] justifiable reliance, an essential element of fraud in the execution"]).

Kolmar Ams., Inc. v Bioversal Inc., 2011 NY Slip Op 07916 (1st Dept., 2011)

Plaintiff's attempt to insert ambiguity into the applicable tax clause contained in the General Terms and Conditions (GTC) of the agreement between the parties which required plaintiff to pay defendant all taxes "paid or incurred by [defendant] directly or indirectly with respect to the product sold," is unpersuasive. "A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Excel Graphics Tech. v CFG/AGSCB, 1 AD3d 65, 69 [2003], lv dismissed 2 NY3d 794 [2004]). Contrary to plaintiff's argument, the language employed in the contract should not be modified by, or read together with, the "Title and Risk of Loss" provision. Nor should the term "indirectly" be read narrowly as such a reading would render the counterpart term covering taxes paid "directly," meaningless, and run afoul of the "cardinal rule of construction that a court adopt an interpretation that renders no portion of the contract meaningless" (Diamond Castle Partners v IAC/Interactive Corp., 82 AD3d 421, 422 [2011]).

Article 2 of the UCC does not authorize the introduction of parole evidence to vary the plain meaning of the GTC tax clause. Extrinsic evidence does not merely "explain" or "supplement" a contractual term within the meaning of UCC 2-202 when the purported explanation or supplement actually contradicts the unambiguous contractual terms (see UCC 2-202; Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517, 523 [1991]).

The motion court's grant of partial summary judgment while directing that an inquest be held after discovery is completed was a provident exercise of its "wide discretion" (see Robert Stigwood Org. v Devon Co., 44 NY2d 922, 923-24 [1978]). Pursuant to the motion court's order, at the inquest, defendant will bear the burden of proving its damages, i.e., the amount it paid or incurred, directly or indirectly, with respect to Florida fuel taxes in connection with the subject contract.

Proof of Prior Accident

McDonald v Long Is. Rail Rd., 2010 NY Slip Op 07315 (App. Div., 2nd 2010)

Since a new trial on the issue of liability is required, we note that evidence of other gap-related accidents at Long Island Rail Road stations can only be properly admitted upon a showing that those accidents occurred under substantially the same conditions as the subject accident (see Hyde v County of Rensselaer, 51 NY2d 927, 929; Kane v Triborough Bridge & Tunnel Auth., 64 AD3d 544, 545). Contrary to the defendant's contention, however, the testimony elicited at the instant trial regarding its knowledge that "issues" existed regarding gaps between station platforms and train doors was not tantamount to the admission of testimony of prior accidents.

The bold is mine.

Reconcile This: Hearsay

LaVecchia v Bilello, 2010 NY Slip Op 06363 (App. Div., 2nd, 2010)

The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and evidence that such departure was a proximate cause of the plaintiff's injury (see Koi Hou Chan v Yeung, 66 AD3d 642; Terranova v Finklea, 45 AD3d 572; Clarke v Limone, 40 AD3d 571). Therefore, on a motion for summary judgment, the defendant dentist has the initial burden of establishing the absence of any departure from good and accepted practice, or that the plaintiff was not injured thereby (see Koi Hou Chan v Yeung, 66 AD3d at 642; Terranova v Finklea, 45 AD3d at 572; Williams v Sahay, 12 AD3d 366, 368). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (Koi Hou Chan v Yeung, 66 AD3d at 643; see Ward v Engel, 33 AD3d 790, 791; Johnson v Ladin, 18 AD3d 439).

Here, as the Supreme Court correctly determined, the defendant Raphaelson Dental Associates (hereinafter RDA) failed to make a prima facie showing of its entitlement to judgment as a matter of law. RDA's dental expert relied upon, inter alia, an unsworn dental report by Dr. Jenal and dental records that were not annexed to the motion (see Farmer v City of New York, 25 AD3d 649, 650). Moreover, the affidavit of RDA's dental expert was conclusory, and failed to rebut all of the specific allegations of dental malpractice set forth in the plaintiff's verified bill of particulars (see Terranova v Finklea, 45 AD3d at 572; Ward v Engel, 33 AD3d at 791). The expert affirmation submitted by the defendant Rita Marie Bilello likewise was insufficient to establish RDA's prima facie entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied [*2]RDA's motion, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Koi Hou Chan v Yeung, 66 AD3d at 644).

Compare this with Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in Rafailova's records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Can these two decisions be reconciled? For those of you that don't practice in the Civil Court, this might not mean anything to you. But you never know if and when this issue will creep into Supreme Court. For more background on the issue, read THIS, THIS, and THIS.1

Also of interest is the fact that the Urban decision is an unreported decision, which could be the Appellate Term's way of saying, "hey, this is only for no fault."

Finally, I'm by the time you all got to this point in the post you were wondering whether you have been using "i.e." or "e.g." appropriately. Here you go:

When to use i.e. in a sentence - The Oatmeal


1. The last one is a NYLJ article and you need to pay to play, however, if the authors woudl post the article on their website, I could put a link to it and make everyone look smart.

Parol Evidence

Matthius v Platinum Estates, Inc., 2010 NY Slip Op 04965 (App. Div., 2nd, 2010)

JAC's contention that it was not obligated to indemnify Grymes Hill,
Cullota, Ricca, and Platinum because pursuant to the merger clause in
the January 17th agreement, that agreement superseded the prior
indemnification agreement, is without merit. The purpose of a merger
clause is to require full application of the parol evidence rule in
order to bar the introduction of extrinsic evidence to alter, vary, or
contradict the terms of a written agreement (see Jarecki v Shung Moo
95 NY2d 665, 669; Matter of Primex Intl. Corp. v Wal-Mart
89 NY2d 594, 599). Where a valid contract is incomplete,
extrinsic evidence is admissible to complete the writing if it is
apparent from an inspection of the writing that all the particulars of
the agreement are not present, and that evidence does not vary or
contradict the writing
(see Valente v Allen Shuman & Irwin Richt,
D.P.M., P.C.,
137 AD2d 678).

Here, the January 17th agreement was incomplete and ambiguous. It
contained a general provision requiring JAC to provide insurance, but
did not state the amount of insurance coverage or the parties to be
named as insureds. Therefore, evidence of the indemnification agreement,
which contained specific provisions regarding the amount of insurance
to be provided and the parties to be insured, was admissible to resolve
these ambiguities. The indemnification agreement however, did not vary,
alter, or contradict any terms in the January 17th agreement and, thus,
remained enforceable (see Matter of Primex Intl. Corp. v Wal-Mart
89 NY2d 594).

Furthermore, the January 17th agreement set forth the work to be
performed by JAC, but did not specifically address the issue of
indemnification. Therefore, Grymes Hill and Platinum could present
evidence to prove the existence of the agreement in which JAC agreed to
indemnify them (see Elbroji v 22 E. 54th St. Rest. Corp., 67 AD3d
). Since the indemnification agreement and the January 17th
agreement dealt with different subject matter, the merger clause did not
extinguish the indemnification agreement (see Gordon v Patchogue
Surgical Co.,
222 AD2d 651).

By obtaining insurance and naming Grymes Hill as an insured
pursuant to the indemnification agreement, JAC demonstrated its intent
to be held to that agreement.

The bold is mine.

Best Evidence Rule Objection was Properly Overruled

Madison-68 Corp. v Malpass, 2009 NY Slip Op 06154 (App. Div., 1st, 2009)

Plaintiff's objection, made under the best evidence rule, to the
admission of the lease rider was properly overruled because it had
offered into evidence a copy of the same document.
The J.H.O. at times
cut off questioning, but did so in an evenhanded manner to expedite the
trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205,
206 [2004]). Nor was the judgment against the weight of the evidence,
since the case essentially turned on the parties' competing oral
testimony. The issue of the prevailing party notwithstanding, it was
error for the J.H.O. to determine that defendants were entitled to an
award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234.

The bold is mine.

Witnesses and disclosure

Guzman v Spring Cr. Towers, Inc., 2009 NY Slip Op 05508 (App. Div., 1st, 2009)

Contrary to the plaintiff's contention, the Supreme Court properly
admitted into evidence photographs of a barrier similar to the barrier
used at the construction site near the location of the plaintiff's
accident, since there was testimony that the photograph fairly and
accurately represented the barrier used at the time of the accident (see Shalot v Schneider Natl. Carriers, Inc., 57 AD3d 885, 886; Cubeta v York Intl. Corp., 30 AD3d 557, 561; Kartychak v Consolidated Edison of N.Y., 304 AD2d 487).

Additionally, the trial court did not improvidently exercise its
discretion in allowing two emergency medical technicians to testify,
despite the defendants' failure to include their names on a witness
list. There was no evidence that this omission was willful, and any
prejudice to the plaintiff was minimal since the plaintiff had access
to the ambulance report and the technicians
(see Castracane v Campbell, 300 AD2d 704, 706; Alber v State of New York, 252 AD2d 856, 857).

Islar v New York City Bd. of Educ., 2009 NY Slip Op 05609 (App. Div., 1st, 2009)

The court exercised its discretion in a provident manner in imposing a lesser sanction than that requested (see Kugel v City of New York, 60 AD3d 403
[2009]). The record indicates that the missing witness statements from
defendants' internal investigation of the alleged sexual assault of
infant plaintiff were not crucial to the prosecution of plaintiffs'
claims, inasmuch as each of the witnesses was available for deposition,
and other investigative proof, including police records, suggested that
the witness' statements were not supportive of plaintiffs' claims
(see Jordan v Doyle, 24 AD3d 107 [2005], lv denied
7 NY3d 705 [2006]). Although constituting hearsay, the court properly
relied, in part, on police investigative records in deciding the

Furthermore, defendants' conduct in not providing a definitive
answer as to the availability of the witness statements during an
18-month period, albeit during which 8 discovery orders were issued,
did not amount to willful and contumacious conduct on defendants' part,
since defendants could not locate the statements despite a thorough
search for them. Even assuming that plaintiffs met their initial burden
of showing that defendants' conduct was willful and contumacious,
defendants offered a reasonable excuse for their failure to comply with
discovery orders, namely that the statements could not be located
(see Palmenta v Columbia Univ., 266 AD2d 90 [1999]).

The bold is mine.