Evidence – Page 2

Experts, Qualificaton, Evidence, and Hearsay

County of Nassau v Fuentes, 2009 NY Slip Op 05843 (App. Div., 2nd, 2009)

In support of his motion for summary judgment dismissing the complaint,
the defendant made a prima facie showing of entitlement to judgment as
a matter of law by submitting an affidavit in which he denied receiving
notice, prior to the commencement of this action, that his vehicle
might be subject to a forfeiture action (see Nassau County Administrative Code § 8-7.0[g][4][a]; County of Nassau v Bassen, 14 Misc 3d 633; see generally Alvarez v Prospect Hosp.,
68 NY2d 320). However, in opposition to that showing, the plaintiff,
County of Nassau, raised a triable issue of fact by producing copies of
a "Vehicle Seizure Notice," purportedly signed by the defendant at the
time of his arrest for the underlying offense, and a return receipt
card, also purportedly signed by the defendant, acknowledging receipt
of a letter the County allegedly sent to him prior to the commencement
of this action. Both documents advised that the subject vehicle might
be the subject of a forfeiture action. While we conclude that the
County's showing was sufficient to raise an issue of fact warranting
denial of the defendant's motion, contrary to the County's contention,
it did not warrant the granting of that branch of its cross motion
which was for summary judgment on the complaint, as the genuineness of
the defendant's purported signatures on the documents described above
presents an issue of fact (see Seoulbank, N.Y. Agency v D & J Import & Export Corp., 270 AD2d 193, 194; Dyckman v Barrett, 187 AD2d 553, 555).

Saunders v 551 Galaxy Realty Corp., 2009 NY Slip Op 05763 (App. Div., 2nd, 2009)

The defendants failed to submit sufficient evidence in admissible form
to make a prima facie showing of entitlement to judgment as a matter of
law. The defendants offered no evidence, other than inadmissible
hearsay, as to why the air conditioner fell from the window. The
defendants failed to show that they were not negligent in their initial
inspection of the air conditioner's installation. No evidence was
provided as to the defendants' general policy on inspecting and
maintaining air conditioning units installed on the premises, and the
defendants failed to show that, as the owners of the property, they
relinquished exclusive control of the apartment and the window from
which the air conditioner fell, to a tenant who had no lease, thus
absolving them of liability (see Spanbock v Fifty Fourth St. Condominium, 3
AD3d 395). Accordingly, the Supreme Court properly denied the
defendants' motion for summary judgment dismissing the complaint
without considering the sufficiency of the plaintiff's opposition
papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Schechter v 3320 Holding LLC, 2009 NY Slip Op 05684 (App. Div., 1st, 2009)

For a witness to be qualified as an expert, the witness must possess
the requisite skill, training, education, knowledge or experience from
which it can be assumed that the opinion rendered is reliable (Matott v Ward,
48 NY2d 455, 459 [1979]). Here, Santiago had no formal training or
education, and does not possess any certification or license, with
respect to elevator maintenance or repair. He was not, however,
precluded from being qualified as an expert for lack of formal training
and education; he could have been qualified if through "long
observation and actual experience" (Price v New York City Hous. Auth.,
92 NY2d 553, 559 [1998] [internal quotation marks and brackets
omitted]) he possessed sufficient skill, knowledge and experience in
elevator maintenance and repair to support an assumption that his
opinion regarding the cause of the interlock's failure was reliable.
But Imperial Elevator failed to submit evidence demonstrating that
Santiago possessed such skill, knowledge and experience (see Rosen v Tanning Loft, 16 AD3d 480 [2005], citing, among other cases, Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]; see also Hellert v Town of Hamburg, 50 AD3d 1481 [2008], lv denied
11 NY3d 702 [2008]). No evidence was submitted demonstrating what
on-the-job training Santiago received from the coworker at his prior
employer; Santiago's duties as a "maintenance man" — "check[ing] for
oil, check[ing] [and cleaning] the [inter]locks," "cleaning the motor
room, cleaning the top of the ca[b], [and] cleaning the pit [beneath
the elevator]" — do not suggest that he can render a reliable opinion
regarding the cause of the failure of the interlock; and Santiago's
deposition testimony does not demonstrate that he is familiar with the
laws, rules, regulations, and accepted customs and practices in the
field of elevator maintenance and repair (cf. Efstathiou v Cuzco, LLC, 51 AD3d 712
[2008]). Because Imperial Elevator failed to demonstrate that Santiago
is qualified to render a reliable opinion regarding the cause of the
failure of the interlock, it failed to raise a triable issue of fact
with respect to the issue of its negligence.

Continue reading “Experts, Qualificaton, Evidence, and Hearsay”

Parol Evidence

Beagle Developers, LLC v Long Is. Beagle Club #II, Inc., 2009 NY Slip Op 05258 (App. Div., 1st, 2009)

Nor were the contract's unambiguous terms modified by defendant's
attempt to accommodate plaintiff's requests for documents relating to
the merger. The contract clearly states that a waiver of any right at
one time does not waive any right at any other time, and further states
that the contract may only be modified in writing. Plaintiff cannot
negate these unambiguous terms by parol evidence (see Namad v Salomon, 74 NY2d 751, 753 [1989]; Rose v Spa Realty Assoc.,
42 NY2d 338, 343 [1977]).

The bold is mine

Experts and Their Reports. And a Engineer’s Report that Made its Way into Evidence

Starting last first, here we go.

McPartlan v Basile, 2009 NY Slip Op 05521 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the engineer's report was
admitted into evidence, and properly so, not to prove the truth or
accuracy of its contents, but to establish that the plaintiffs had a
good faith basis for determining that the report was unacceptable.
Furthermore, the record supports the conclusion that the plaintiffs
did, in fact, act in good faith, and thus their termination of the
contract of sale pursuant to Paragraph 39 of the contract was valid (see Hirsch v Food Resources, Inc., 24 AD3d 293, 296; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229, 230-31; Richbell Info. Sers. v Jupiter Partners,
309 AD2d 288, 302). Accordingly, the Supreme Court properly determined
that the plaintiffs were entitled to the return of their down payment.

Yun v Barber, 2009 NY Slip Op 05535 (App. Div., 2nd, 2009)

The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).

Vickers v Francis, 2009 NY Slip Op 05540 (App. Div., 2nd, 2009)

Initially, the X ray report dated September 22, 2006, the magnetic
resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the
medical records from Alliance Medical Office, the plaintiff's emergency
room and hospital records, and the reports of Dr. Nunzio Saulle dated
August 31, 2006, and October 19, 2006, were not in admissible form
because they were unsworn (see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).

The affirmed medical reports of Dr. Saulle were insufficient to
raise a triable issue of fact as to whether the plaintiff sustained a
serious injury to her cervical or lumbar spine as a result of the
subject accident. Neither the plaintiff nor Dr. Saulle proffered
competent objective medical evidence revealing the existence of a
significant limitation in either region of the plaintiff's spine that [*2]was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45
AD3d 525). Furthermore, in reaching his conclusion in his affirmed
medical reports, Dr. Saulle clearly relied on the unsworn MRI reports
of Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216
AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his
affirmed reports, the fact that the plaintiff injured her neck and back
in a subsequent accident in October 2007. His failure to address that
accident and the resulting injuries rendered speculative his
conclusions that the range of motion limitations he noted in the
plaintiff's cervical and lumbar regions after October 2007 were caused
by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).

Wartski v C.W. Post Campus of Long Is. Univ., 2009 NY Slip Op 05115 (App. Div., 2nd, 2009)

In opposition, the plaintiff failed to raise a triable issue of fact
as to whether the defendant had actual notice of a recurring dangerous
condition such that it could be charged with constructive notice of
each specific recurrence of that condition (see Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346; Weisenthal v Pickman,
153 AD2d 849, 851). Here, at most, the evidence submitted by the
plaintiff established that the defendant had only a general awareness
that the stairs became wet when ice and snow was tracked into the
building, which was insufficient to establish constructive notice of
the particular condition which caused the plaintiff to fall (see Arrufat v City of New York, 45 AD3d 710; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656; Andujar v Benenson Inv. Co., 299 AD2d at 504; Yearwood v Cushman & Wakefield, Inc., 294 AD2d 568, 569).

The plaintiff's expert affidavit should not have been considered
in determining the motion since the expert was not identified by the
plaintiff until after the note of issue and certificate of readiness
were filed attesting to the completion of discovery, and the plaintiff
offered no valid excuse for her delay [*2]in identifying the expert (see CPLR 3101[d][1]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863; Gerry v Commack Union Free Sch. Dist., 52 AD3d 467, 469; Gralnik v Brighton Beach Assocs., LLC, 3 AD3d 518; Dawson v Cafiero,
292 AD2d 488). In any event, even if the plaintiff's expert affidavit
could have properly been considered, the result would not have been
different.

The bold is mine.