Failure to object

Matter of Miller v City of New York, 2019 NY Slip Op 00558 [1st Dept. 2019]

Petitioner’s failure to object to the admission of a 2013 stipulation of settlement of a prior investigation waives the issue of admissibility (see Community Counseling & Mediation Servs. v Chera, 115 AD3d 589, 590 [1st Dept 2014]), and in any event, there is no evidence that the arbitrator was influenced by the stipulation in the guilt determination.

Thompson-Shepard v Lido Hall Condominiums, 2019 NY Slip Op 00576 [1st Dept. 2019]

Defendants waived their objection to the admissibility of plaintiff’s expert’s unsworn report by failing to raise it before the motion court (see Shinn v Catanzaro, 1 AD3d 195, 198 [1st Dept 2003]). However, in any event, the report does not raise a triable issue of fact (see Kane, 4 AD3d at 190; Mandel v 370 Lexington Ave., LLC, 32 AD3d 302 [1st Dept 2006]; Silva v 81st St. and Ave. A Corp., 169 AD2d 402, 404 [1st Dept 1991], lv denied 77 NY2d 810 [1991]). Plaintiff attempts to link the expert’s opinion that the staircase contained irregular and excessive riser heights with her testimony that upon arriving at the scene of the accident she saw the decedent’s leg lodged in a riser. However, her after-the-fact observation does not show that the decedent fell because of the purportedly defective riser. Moreover, insofar as the decedent’s hearsay statements cited in the expert’s report can be considered, the decedent did not say that he slipped for reasons related to the risers.

Evidence

Federal Natl. Mtge. Assn. v Marlin, 2019 NY Slip Op 00095 [2d Dept. 2019]

When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, “[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (Citibank, N.A. v Cabrera, 130 AD3d 861, 861; see CPLR 3408[a]).

In support of those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, Fannie Mae submitted affidavits of foreclosure specialists employed by Seterus, Inc., its loan servicer. The foreclosure specialists attested that they were personally familiar with the record-keeping practices and procedures of Seterus, Inc., but failed to lay a proper foundation for the admission of records concerning the defendants’ payment history and default. Accordingly, Fannie Mae failed to demonstrate that the records relied upon in the affidavits were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; US Bank NA v Handler, 140 AD3d 948, 949). Since Fannie Mae’s motion was based on evidence that was not in admissible form (see HSBC Mtge. Servs., Inc. v Royal, 142 AD3d at 954), Fannie Mae failed to establish its prima facie entitlement to judgment as a matter of law, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference should have been denied, regardless of the sufficiency of the defendants’ papers in opposition (see id., citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

We agree with the Supreme Court’s determination to grant that branch of Fannie Mae’s motion which was to strike the defendants’ affirmative defenses and counterclaims. To the extent that those portions of the answer relate to Residential’s alleged lack of standing, they were properly stricken, and the defendants make no arguments on appeal regarding the remaining affirmative defenses and counterclaims.

The bold is mine.

Pennsylvania Lumbermens Mut. Ins. Co. v B&F Land Dev. Corp., 2019 NY Slip Op 00292 [2d Dept. 2019]

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643; Stathis v Estate of Karas, 130 AD3d 1008, 1009; Kliamovich v Kliamovich, 85 AD3d 867, 869). Under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d at 643 [citations omitted]). The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” (id. at 645).

Here, PLM failed to offer any explanation as to the unavailability of the primary evidence, i.e., the original policy. PLM also did not establish that the copy of the policy proffered at trial was a “reliable and accurate portrayal of the original” (id.). In that regard, during voir dire examination, Santoro acknowledged that he had compiled the copy of the policy proffered by PLM at trial based upon information contained in the underwriting file, and he could not explain the language discrepancy between that copy of the policy and the copy of the policy produced by PLM during discovery. Consequently, the Supreme Court should not have admitted into evidence the copy of the policy proffered by PLM at trial. The error was not harmless since, without the original policy or an accurate replication, PLM could not establish what locations were covered by the policy, what exclusions to coverage, if any, existed under the terms of the policy, or the insured’s responsibilities with respect to providing notice of the claim to PLM (see Stathis v Estate of Karas, 130 AD3d at 1011).

The bold is mine.

Hearsay

Hearsay in opposition
Edwards v Rosario, 2018 NY Slip Op 07684 [1st Dept. 2018]

While the unsworn statement constitutes inadmissible hearsay, it may be considered in opposition to Earlybird’s motion because it is not the only evidence offered by plaintiff (see Erkan v McDonald’s Corp., 146 AD3d 466, 468 [1st Dept 2017).

Declaration against interest

Caminiti v Extell W. 57th St. LLC., 2018 NY Slip Op 07667 [1st Dept. 2018]

The court properly found that plaintiff’s testimony about her now-deceased husband’s statement regarding his accident is admissible as a declaration against interest (see generally Basile v Huntington Util. Fuel Corp., 60 AD2d 616, 617 [2d Dept 1977]; Guide to NY Evid rule 8.11, Statement Against Penal or Pecuniary Interest, http://www.nycourts.gov/judges/evidence/8-HEARSAY/8.11). Decedent’s statement that he should have known better than to use the ladder as he did, established that he knew his statement was against his interest. Although the statement was uncorroborated, it had sufficient indicia of reliability, in that the experienced, 52-year-old electrician described his accident to his wife alone in an emergency room while awaiting surgery, in the absence of any coercion or attempt to shift blame away from himself (cf. Nucci v Proper, 95 NY2d 597, 602 [2001]). Accordingly, we decline to reach plaintiff’s alternative arguments as to the statement’s admissibility.

Hearsay waived

Grant v Carrasco, 2018 NY Slip Op 06516 [2d Dept. 2018]

The plaintiff also submitted, however, an uncertified copy of a police accident report, which stated that according to the defendant driver, the plaintiff’s vehicle came to a sudden stop even though the traffic light was green. Although the police report contained self-serving statements not in admissible form, the plaintiff waived any objection to the admissibility of the report by submitting it in support of his motion (see Cruz v Finney, 148 AD3d 772, 773; Orcel v Haber, 140 AD3d at 937).

Videos and Experts

Torres v Hickman, 2018 NY Slip Op 04372 [2d Dept 2018]

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in precluding the proffered surveillance video excerpt. "Testimony from [a] videographer that he [or she] took the video, that it correctly reflects what he [or she] saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape" (Zegarelli v Hughes, 3 NY3d 64, 69). Where the videographer is not called as a witness, the video can still be authenticated with testimony that the video "truly and accurately represents what was before the camera" (People v Byrnes, 33 NY2d 343, 349; see Zegarelli v Hughes, 3 NY3d at 69). Furthermore, "[e]vidence establishing the chain of custody of the videotape may additionally buttress its authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from tampering" (People v Patterson, 93 NY2d 80, 84; see Read v Ellenville Natl. Bank, 20 AD3d 408, 409). Here, given the inability of the witness to testify regarding the editing of the master recording and the accuracy of the video excerpt, and his lack of personal knowledge as to the creation of the proffered disc and how it came into the possession of the plaintiff's attorneys, we agree with the court's determination that the plaintiff failed to properly authenticate the video excerpt (see Read v Ellenville Natl. Bank, 20 AD3d at 409-410).

Additionally, the Supreme Court providently exercised its discretion in precluding the plaintiff's orthopedic surgeon from testifying that the accident imparted "tremendous energy" to the plaintiff's vehicle, since the witness was not a biomechanical engineer, and since he failed to quantify the amount of energy involved (see Plate v Palisade Film Delivery Corp., 39 AD3d 835, 837).

The plaintiff's contention that she was entitled to a missing witness charge is unpreserved for appellate review (see CPLR 4110-b).

CPLR 4547 — Negotiations / Missing Witness / Hearsay

Matter of Chi-ChuanFile Wang, 2018 NY Slip Op 04090 [1st Dept. 2018]

Here, proponents challenge the documents and testimony admitted into evidence concerning settlement negotiations in Shanghai at which proponent provided objectant with paintings he denied having taken from decedent's bank vault. Although CPLR 4547 precludes presentation of evidence of settlement negotiations, it expressly exempts exclusion of evidence, which is otherwise discoverable, solely because such evidence was presented during the course of settlement negotiations.

The list of paintings that was signed by proponent as part of the settlement conference in Shanghai was admitted into evidence because it included a factual admission that proponent possessed a painting that he accused objectant of stealing. Thus, its use at trial was permissible, notwithstanding that the factual statement was contained in a settlement document (see PRG Brokerage Inc. v Aramarine Brokerage, Inc., 107 AD3d 559, 560 [1st Dept 2013]).

Proponents also challenge the court's missing witness charge with respect to two of decedent's treating doctors in the hospital and the attorney who drafted the will. The court did not improvidently exercise its discretion in providing a missing witness charge with respect to decedent's treating doctors. The court's missing witness charge with respect to the attorney, Jerome Kamerman, was in error. Mr. Kamerman was living in Florida at the time of trial and was unavailable to proponents (see Zeeck v Melina Taxi Co., 177 AD2d 692, 694 [1st Dept 1991] [Proof that a witness is beyond the jurisdiction of the court is ordinarily sufficient to bar the inference as a matter of law]; People v Gonzalez, 68 N.Y.2d 424, 428 [1986]). In light of the testimony at trial regarding decedent's testamentary capacity, we find the error to be harmless as a matter of law (see CPLR 2002; Nestorowich v Ricotta, 97 NY 2d 393 [2002] ["viewing the charge as a whole, and in light of the evidence presented, counsel's arguments and the otherwise proper jury instructions, there is no indication that the error in judgment' charge clouded the issue or negatively influenced the jury's determination"]).

Emphasis is mine

Finally, proponents challenge the testimony of objectant's expert because his opinion was based in part on conversations with objectant regarding decedent's mental capacity. A psychiatrist's opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is "of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on [] trial" (People v Goldstein, 6 NY3d 119, 124 [2005], cert denied 547 US 1159 [2006]). The court properly permitted the expert to testify, despite his conversations with objectant, since she was subject to full cross-examination at trial.

 

4518

City Natl. Bank v Foundry Dev. Group, LLC, 2018 NY Slip Op 02765 [2d Dept. 2018]

Contrary to the defendants' contention, the Supreme Court properly determined that certain exhibits presented at the inquest were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]). " A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures'" (Cadlerock Joint Venture, L.P. v Trombley, 150 AD3d 957, 959, quoting Citibank, N.A. v Cabrera, 130 AD3d 861, 861). Here, the plaintiff's witness testified that she was personally familiar with the record keeping practices and procedures of the plaintiff and Imperial, and, thus, the plaintiff laid a proper foundation for the admission of the records (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639-640).

Present sense, and other, exceptions [hearsay]

Gomes v Pearson Capital Partners LLC, 2018 NY Slip Op 01560 [1st Dept 2018]

In opposition, defendant failed to raise a triable issue of fact. We will not consider defendants' hearsay exception arguments, which are raised for the first time on appeal (see e.g. Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [1st Dept 2006]), to raise an issue of fact as to whether plaintiff was the sole proximate cause of the accident. Even if we were to consider such arguments, they are unavailing. The business record exception is inapplicable, since defendants have not submitted the incident report for the December 24, 2012 accident. The present sense impression exception is also inapplicable, since the out-of-court statement from plaintiff to the foreman that he fell while climbing up the scaffold is not corroborated by independent evidence (see People v Cantave, 21 NY3d 374, 382 [2013]). The excited utterance exception does not apply, since defendants have not provided sufficient evidence of plaintiff's mental state or established that he made the hearsay statement to the foreman under the stress of excitement (see People v Johnson, 1 NY3d 302, 306 [2003]; cf. Heer v North Moore St. Devs., LLC, 61 AD3d 617, 618 [1st Dept 2009]). Furthermore, plaintiff's statement to the foreman does not fall within the declaration against interest exception because plaintiff was available to, and did, testify as a witness; there is no evidence that plaintiff knew the statement was adverse to his interests when it was made; and the supporting circumstances do not attest to its trustworthiness or reliability (see People v Soto, 26 NY3d 455, 460-461 [2015]).

Police reports and liablity

Roman v Cabrera, 2014 NY Slip Op 00445 [1st Dept. 2014]

Nonetheless, plaintiffs opposed the motion solely on the basis of a notation in Trooper Rosado's report to the effect that "Cabrera swerved to avoid Mr. Lawrence's vehicle and in so doing lost control of her vehicle, striking Mr. Román . . . ." This police accident report is insufficient to raise an issue of fact since it recites hearsay and was prepared by an officer who had not observed the accident (see Singh v Stair, 106 AD3d 632 [1st Dept 2013]). Moreover, plaintiffs have not demonstrated an excuse for their failure to offer proof on the issue in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]).

Even if it were admissible, the police report would still be insufficient to raise a triable issue of fact. Liability may not be imposed on a party who merely furnishes the condition or occasion for the occurrence of the event, but was not one of its causes (see Sheehan v New York, 40 NY2d 496, 503 [1976]). The report would not have raised an inference that Lawrence's conduct caused the emergency condition created when his vehicle hit the median divider as he tried to avoid colliding with third unidentified car, which allegedly swerved into his lane (see Paulino v Guzman, 85 AD3d 631, 632 [1st Dept 2011]).

Emphasis mine.

Hearsay

Rosado v Phipps Houses Servs., Inc., 2012 NY Slip Op 02385 (1st Dept., 2012)

Plaintiff alleges that she slipped and fell in a puddle located on an exterior landing of premises owned, managed and/or operated by defendants, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones here created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition and plaintiff denied that the cones were being used to prop open a door, as had been alleged by defendants' witness (see Felix v Sears, Roebuck & Co., 64 AD3d 499 [2009]; Hilsman v Sarwil Assoc., L.P., 13 AD3d 692 [2004]). Additionally, while the hearsay portions of a witness affidavit submitted in opposition to the motion, which referred to an unidentified person or persons having admitted prior notice of the condition, were inadmissible (see Cassanova v General Cinema Corp. of N.Y., 237 AD2d 155 [1997]; Pascarella v Sears, Roebuck and Co., 280 AD2d 279 [2001]), the witness's first hand account of providing defendants with notice of the condition at least 45 minutes before the accident raised triable issues of fact as to prior actual and constructive notice of the condition.

Rosario v Vasquez, 2012 NY Slip Op 01874 (1st Dept., 2012)

In opposition, defendants failed to provide a nonnegligent explanation for the collision (Avant, 74 AD3d at 534); (cf. Ebanks v Triboro Coach Corp., 304 AD2d 406 [2003]). The uncertified police accident report submitted by defendants constitutes hearsay and, in any event, does not support Guzman-Sosa's account of the accident (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Contrary to the motion court's finding, depositions are not needed, since Guzman-Sosa had personal knowledge of the facts (see Avant, 74 AD3d at 534).

Quinche v Gonzalez, 2012 NY Slip Op 03158 (2nd Dept., 2012)

Contrary to the plaintiff's contention, the Supreme Court did not err in admitting into evidence at the subject hearing certain audio recordings. The recordings did not constitute inadmissible hearsay. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein" (Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, 392). "However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay" (id.). Here, the recordings at issue were not offered for the truth of the matter asserted therein. Accordingly, the Supreme Court did not err in admitting the recordings into evidence on this ground. The plaintiff's remaining contentions concerning the admission of these recordings are unpreserved for appellate review.