Experts and hearsay

East Fordham DE LLC v U.S. Bank N.A., 182 AD3d 521 [1st Dept. 2020]

Contrary to defendants’ contention, Supreme Court’s reliance on the Dictionary of Real Estate Appraisal was appropriate “to determine the plain and ordinary meaning of words to a contract” (Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 136 AD3d 52, 57 [1st Dept 2015], affd 28 NY3d 675 [2017]). Further, the appraisal reports were correctly admitted into evidence, as an expert’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’ ” (Matter of Chi-Chuan Wang, 162 AD3d 447, 449 [1st Dept 2018]; see also Matter of New York State Dev. Corp. v 230 W. 41st St. Assoc. LLC, 77 AD3d 479, 480 [1st Dept 2010], lv denied 16 NY3d 703 [2011])

Bold is mine.

4518 and hearsay. You have to attach the records.

Wells Fargo Bank, N.A. v Sesey, 2020 NY Slip Op 02822 [App Div 2d 2020]

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted, inter alia, an attorney affirmation to which documents were appended purporting to be the note and an allonge. The plaintiff also submitted the affidavit of Nancy Chouanard, a vice president employed by the plaintiff. The attorney affirmation was insufficient to authenticate the documents purporting to be the note and an allonge. The Chouanard affidavit also failed to authenticate such documents. Furthermore, while Chouanard claimed that the plaintiff’s business records showed that the plaintiff received the original note endorsed to it as trustee on November 10, 2005, which would have been prior to the commencement of the Option One foreclosure action, Chouanard failed to identify what documents she relied upon to support that conclusory assertion, much less submit any properly authenticated business records. Even assuming that Chouanard’s affidavit was sufficient to establish a proper foundation for the admission of business records pursuant to CPLR 4518(a), the plaintiff failed to submit copies of the business records themselves. “[T]he business record exception to the hearsay rule applies to a writing or record’ (CPLR 4518[a]) . . . [and] it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205 [citation omitted]). “While a witness may read into the record from the contents of a document which has been admitted into evidence (see HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 826-827), a witness’s description of a document not admitted into evidence is hearsay” (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774). Thus, Chouanard’s assertions as to the contents of the records were inadmissible hearsay as the documents themselves were not submitted (see id. at 774; JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513, 1516). A review of records maintained in the normal course of business does not vest an affiant with personal knowledge (see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d at 1517).

Bold is mine.

Similar holdings in HSBC Bank USA, N.A. v Dubose, 175 AD3d 1270 [2d Dept. 2019], Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2d Dept. 2019], Nationstar Mtge., LLC v Tamargo, 177 AD3d 750 [2d Dept. 2019], Wells Fargo Bank, N.A. v Springer, 2020 NYSlipOp 00176 [2d Dept. 2020], Nationstar Mtge., LLC v Cavallaro, 181 AD3d 688 [2d Dept. 2020], Deutsche Bank Natl. Trust Co. v Dennis, 2020 NYSlipOp 02039 [2d Dept. 2020]

O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 175 AD3d 540 [2d Dept. 2020]

Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record (see Werner v City of New York, 135 AD3d 740, 741 [2016]; Dyer v 930 Flushing, LLC, 118 AD3d 742, 742-743 [2014]).


Corroborated Hearsay

U.S. Bank Trust, N.A. v Ellis, 2020 NY Slip Op 01569 [1st Dept 2020]

We agree, however, with defendant that the 2016 notice is not an authenticated business record and, therefore, it is not admissible as presented in the record, leading us to modify Supreme Court’s order by denying plaintiff’s motion for summary judgment. This hearsay document, however, is sufficient to defeat Ellis’s summary judgment motion, because it is sufficiently corroborated by other evidence (see Zupan v Price Chopper Operating Co., Inc., 132 AD3d 1211, 1213 [3d Dept 2015]).


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]).

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.


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 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, 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.