Evidence

Who Is Considered A Vehicle Owner Under New York Vehicle And Traffic Law §388? (NY)

In Walker v. Town of Webster, the Appellate Division, Fourth Department addressed whether a former vehicle owner was considered an owner for the purposes of liability under Vehicle and Traffic Law §388. Plaintiff in that case allegedly sustained personal injuries when he was struck by a vehicle operated by defendant Buck. However, plaintiff also sued defendant Osborn, who had transferred ownership of the vehicle several months before the accident, for vicarious liability under Vehicle and Traffic Law §388. Osborn moved for summary judgment on the grounds that he no longer owned the vehicle, and the motion was granted by the Supreme Court.

The Appellate Division reversed, finding that there was conflicting evidence as to the ownership of the vehicle. The court stated that “Vehicle and Traffic Law §388 (1) provides in relevant part that every “owner of a vehicle used or operated in this state shall be liable and responsible for . . . injuries to person or property resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner”. The statute further provides that an ” ‘owner’ shall be as defined in section one hundred twenty-eight” of the Vehicle and Traffic Law which in turn states that an owner is a “person, other than a lien holder, having the property in or title to a vehicle or vessel”. (citations omitted). The court explained that while Osborne provided evidence that the vehicle was registered to the co-defendant, New York State Department of Motor Vehicles records showed that the vehicle was still titled to Osborn. Given this conflicting evidence, summary judgment was not appropriate.

This decision serves as a reminder that in cases involving claims for vicarious liability under Vehicle and Traffic Law §388(1), the court will consider a vehicle’s title as evidence of ownership.

Thank you to Corey Morgenstern for his contribution to this post. Please e-mail Andrew Gibbs with any questions.

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WCM Obtains Summary Judgment Prior To Discovery Pursuant To The Homeowner’s Exemption of NYC’s Sidewalk Law

Wade Clark Mulcahy successfully obtained pre-discovery summary judgment dismissing the Plaintiff’s complaint and the City of New York’s crossclaims against Gloria and Debra Lewis, arguing the insured were shielded from liability pursuant to the Homeowner’s Exemption of New York City Administrative Code §7-210.

The action against our clients and the City of New York arises out of a trip-and-fall accident on February 7, 2019. Plaintiff claims she suffered injuries while walking on the sidewalk adjacent to our client’s residential property.

Relying on the Lewis sisters’ affidavit, WCM filed a pre-discovery motion for summary judgment arguing the Homeowner’s Exemption of the New York City Administrative Code §7-210 shields our clients from liability as occupying owners of the property used exclusively for residential purposes.

Plaintiff did not oppose that our clients fell outside of the exemption. Instead, Plaintiff argued the Lewis sisters might have created or caused the allegedly hazardous condition by performing repairs on the sidewalk in front of the property. In New York, an abutting landowner could be held liable only if the owner affirmatively created the dangerous sidewalk condition, negligently made repairs, or used the sidewalk in a special manner for its own benefit. In support of her argument, Plaintiff offered a photograph which she attests show that patchwork had been performed by the Lewis sisters.

Bronx Supreme Court Justice Mitchell J. Danziger ruled that the photograph plaintiff attached in support of her motion to show our clients had performed that patchwork is not admissible since it was updated and unauthenticated. Therefore, the exhibit was not acceptable proof that raised a triable issue of fact. Even if the photo were admissible, the Court noted the assumption that our clients may have performed the patchwork is merely a speculative assertion and insufficient to defeat a motion for summary judgment.

Plaintiff also argued summary judgment was premature as they have not had the opportunity to depose the defendants and are entitled to a reasonable opportunity for disclosure of evidence. However, the Court was not swayed by the argument, ruling the Plaintiff provided no basis to believe that deposition of our clients would yield a basis for their asserted opposition.

Thus, the Court granted the motion for summary judgment and the Plaintiff’s complaint was dismissed against our clients.

Thanks to Irving Fayman for his contribution to this post.   Should have any questions, please contact Tom Bracken.

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NY Civil Trial Practice Update: Admissibility of Uncertified Police Reports

The Appellate Division of the Supreme Court of New York, Second Department’s recent ruling in Yassin v. Blackman, 188 A.D.3d 62 (2d Dep’t 2020) abrogates prior case law, which had previously held a party’s admission in an uncertified police report was admissible. Following Yassin, an uncertified police accident report no longer constitutes admissible evidence, absent a proper foundation for its admissibility. The Yassin Court, however, specifically noted that its holding involved a situation where a party affirmatively proffered an uncertified police accident report in support of a motion for summary judgment.

By way of background, Yassin involved a personal injury action, wherein plaintiff alleged his taxi was negligently struck by a truck (owned and operated by separate defendants). The Supreme Court, Kings County granted plaintiff’s summary judgment motion on liability, supported by plaintiff’s affidavit and a copy of an uncertified police report. In brief, plaintiff’s affidavit averred he did not jut in front of the truck, in any fashion, but was stopped at a traffic light for a few seconds when he was rear-ended. The uncertified police accident report contained the trucker’s alleged admission that he side-swiped plaintiff’s taxi in an attempted pass. The trucker’s affidavit was submitted in opposition, essentially claiming plaintiff’s taxi was double-parked, but then cut off the trucker.

On appeal, defendants contended the trucker’s affidavit raised a triable issue of fact as to whether plaintiff’s taxi cut off the truck. Plaintiff responded that the trucker’s affidavit should be disregarded as a feigned attempt to avoid the consequences of his admission contained in the police accident report. In reply, defendants argued, inter alia, the police accident report was inadmissible because it was not certified.

The Appellate Division, Second Department reversed the trial court’s summary judgment order concluding triable questions of fact remained as to the trucker’s negligence. The Court discussed that statements recorded in police accident reports involve two levels of hearsay, each of which must satisfy a hearsay exception to render the statement in the report admissible.

First, the report itself must be admissible. Properly certified police reports are admissible where the report is based upon the officer’s personal observations while carrying out police duties. CPLR 4518 (c) provides that the foundation for the admissibility of police reports (and other state records) may be laid through a proper certification. CPLR 4518 (c) is governed by the same standards as the business record exception. Thus, the certification must set forth the record was made in the regular course and it was the regular course of such business to make it, at the time of the act, transaction, occurrence, or event – or within a reasonable time, thereafter. Second, assuming there is a properly certified police accident report, the statement(s) contained within the report must satisfy a separate hearsay exception.

Thus, the Court concluded that since the police report was not certified to begin with, and since a foundation for its admissibility had not been laid by some other method, the report and its contents constituted inadmissible hearsay. While it is true a party’s admission is an exception to the hearsay rule, the Court declared that a party’s admission contained within a police accident report may not be bootstrapped into evidence in this fashion.

To avoid the evidentiary issues discussed in Yassin, New York trial practitioners seeking to proffer police accident reports and other business records should ensure these documents are certified.

Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes.

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NYPD’s Hot Pursuit Immunity Has Limitations (NY)

In Fuchs v. City of New York (2020 NY Slip Op 04382), the NYPD was involved in a high-speed pursuit of a suspect. The plaintiff was driving down a one-way street when the suspect turned the wrong way and collided with plaintiff’s vehicle. Plaintiff sued the police department for her injuries and the City of New York claimed a qualified exemption under VTL § 1104 which provides an exemption for drivers of authorized emergency vehicles from certain traffic laws when involved in an emergency situation. However, under VTL §1104(e), there is a provision that waves that exemption if the emergency services driver operates his vehicle in a reckless disregard for the safety of others. Here, the recklessness standard requires a showing that the officer intentionally performed an act disregarding a known or obvious risk that would be highly probable to harm others, and the officer did so with disregard for the outcome.

The Second Department found that the police officer’s actions did not rise to that reckless standard because he was involved in a pursuit of the suspect’s vehicle which was traveling beyond the speed limit and disobeying traffic laws. Moreover, the accident was caused primarily by the “independent recklessness of the driver”. All insurers should know that the reckless standard for emergency vehicles requires a showing that the driver is involved in an emergency situation. It also requires that the act itself was not performed with an intentional disregard for a known or obvious risk of harm to others. These requirements should be clearly stated in policy agreements with all clients who are involved in providing emergency services.

Thanks to Raymond Gonzalez for his post.  Please contact Vincent Terrasi with any questions or comments.Read More

Objections to Verdicts That Are Against the Weight of Evidence Always Preserved for Appeal (NY)

In Evans v. NYCT, the Appellate Division heard an appeal from the plaintiff for a new trial claiming the jury verdict was against the weight of the evidence.  The City opposed the appeal because plaintiff failed to make a post-verdict motion to set aside the verdict and claimed the objection was thereby waived.  The Second Department disagreed.  

Plaintiff was allegedly injured when she stepped off a bus owned and operated by NYCTA and into a pothole, causing her to fall.  Plaintiff and a non-party witness testified that she stepped out of the back of the bus into a very large and deep pothole and she immediately fell to the ground.  The jury found that the bus driver was negligent for letting plaintiff off in an area where there was a pothole, but did not find that negligence to be a substantial factor in causing the accident. 

Generally, you can only appeal a determination made at the trial court level.  In considering plaintiff’s arguments, however, the court clarified that an appellant must never preserve a “weight of the evidence” argument for appellate review by making a post-trial motion to set aside the verdict.  In making that determination, the court essentially overturned two prior decisions in Condor v. City of New York and Bendersky v. M & O Enters. Corp.  The court concluded that an appeal can be taken from any final determination as an appellate court can review questions of law and fact and as such, the Court always has the authority to review the weight of the evidence. 

Upon hearing plaintiff’s appeal, the Court found it was logically impossible for the jury to conclude that a) the driver was negligent, but b) but that such negligence was not a proximate cause of the accident.  As such, the matter was remitted back for a new trial.   As a practice point, it is always best practice to preserve all appellate issues at the trial level, but there are certain rights that are never waived.  

Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

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Can it be Hearsay if Nothing is Actually Said?

Hearsay is a part of evidence class in law school, but given all the exceptions, exemptions, and frankly, statements that simply are not hearsay, professors could spend an entire semester examining hearsay alone.  Hearsay is an out of court statement introduced into evidence by a litigant to prove the truth of the matter asserted by the statement’s declarant. What about signage though? Signs say things. When, if ever, is a sign hearsay?   Consider two hypothetical cases where pictures of signs are the only factual bases for the claims against the impleaded parties.

In the first case, a picture of a truck’s signage was attached to a third party summons and complaint. The truck in the picture, with a company name on the side, was at a slip-and-fall accident scene, and a defendant used the picture of the truck to implead the truck owner. Assuming the picture is properly identified by the person who took it, the picture itself is probably not hearsay. The litigant who introduces this picture into evidence is not introducing it to prove the truth of the matter asserted by the sign, which is just that the truck is owned by the insured. Therefore, the sign on the side of the truck probably isn’t hearsay at all, and is admissible.   Moreover, the litigant is likely trying to prove that the insured was present and doing work at the accident scene on the day of the accident.   If the litigant were trying to introduce the sign with the limited purpose proving that the insured owned the vehicle, it would be hearsay, but admissible hearsay under rule Rule 801(d)(2)(D) as an inscription, sign, tag or label affixed in the course of business and indicating ownership.  We think the sign on the truck is admissible, based on these facts.

In the second case, there is a dashboard placard, with nothing on it but the insured’s name. Specifically, a for-hire driver his holding up a sign to the plaintiff’s camera with the insured car service’s name on it. The for-hire driver, by holding up the placard for the passenger is attempting to communicate something beyond what the sign says. specifically, that “I am driving for this company right now.” This, surely, is “nonverbal conduct of a person intended by that person as an assertion.” Rule 801(a). It would not qualify as admissible hearsay under rule 801(d)(2)(D) since the driver’s expressive conduct means to assert something beyond what the sign says. Without that driver’s testimony—and indeed, he is nowhere to be found— the picture could be excluded, and prompt a dismissal of the car service from the suit.

Signs, signs, everywhere signs…..Thanks to Jon O’Brien for his contribution to this post.  Please email Brian Gibbons with any questions.

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Employer not Liable for Employee’s Negligence When on Vacation (PA)

In Ludwig v. McDonald et al., the plaintiff  filed suit claiming that she was struck by the defendant’s vehicle when she was exiting into the street from her parked car in Forest City, Pennsylvania.  Plaintiff alleged that after she exited her vehicle, the defendant, who was traveling in the southbound lane, entered the northbound lane […]Read More

Plaintiff’s Untimley Expert Disclosure Stricken in Westchester County (NY)

At a time when many counties tend to blur the CPLR, it is nice to know the rule of law still applies in Westchester County.  The Second Department upheld a lower court decision to strike plaintiff’s untimely expert disclosure and deny plaintiff’s cross motion to amend her pleadings in Holder v. County of Westchester.  Downstate […]Read More

Serious Injury Threshold Favors Plaintiff with Documented Pre-Existing Condition (NY)

In New York, a person injured in a motor vehicle accident cannot maintain a lawsuit for personal injuries unless the injuries are “serious” as defined by the New York State Insurance Law.  Typically, the Court is lenient as to what constitutes a serious injury, assuming the plaintiff’s medical proof is sufficient to show prima facie […]Read More

NJ High Court Moves toward Daubert

The Supreme Court of New Jersey has finally adopted the Daubert factors for assessing the reliability of expert testimony and reaffirmed the trial court’s duty to engage in “rigorous gatekeeping” when adjudicating whether an expert opinion is admissible. In re: Accutane Litigation involved allegations that the prescription cystic acne medication caused Crohn’s disease.  Despite numerous epidemiological studies finding no association b, plaintiff’s expert gastroenterologist relied on suspect data, animal studies and his own unique theory of biological plausibility to opine that Accutane can, in fact, cause Crohn’s disease.   The trial court concluded that there wasno epidemiological evidence establishing a causal link between Accutane and Crohn’s disease, and that plaintiff’s expert report was conclusion driven.  The Appellate Division reversed, concluding that plaintiff’s expert relied on methodologies and data of the type reasonably relied upon by comparable experts which wasthe standard in New Jersey for the admission of expert opinions.  It also held that it owes less deference to the trial court when making a determination on whether to admit or exclude an expert opinion. New Jersey’s Supreme Court explicitly rejected the Appellate Division’s heightened standard of review and reaffirmed “that the abuse of discretion standard applies in the appellate review of a trial court’s determination to admit or deny scientific expert testimony on the basis of unreliability in civil matters.”  The Supreme Court made clear that trial courts must “assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion”. Trial courts are now instructed to consider Daubert’s non-exhaustive list of factors when assessing the reliability of expert testimony:

1. Whether the scientific theory can be, or at any time has been, tested;
2. Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form or peer review but is not a “sine qua non”;
3. Whether there is any known or potential rate of error and whether there exists any standards for maintaining or controlling the technique’s operation; and
4. Whether there does exist a general acceptance in the scientific community about the scientific theory.

Applying this standard, the Court determined that “the trial court did the type of rigorous gatekeeping that is necessary when faced with a novel theory of causation, particularly one, as here, that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.” Requiring trial courts to take their gatekeeping role seriously in NJ has been long overdue since defense counsel often seek to exclude a plaintiff’s expert report.  It is not uncommon for a report to be stricken, but then reinstated by the appellate division which has used New Jersey’s liberal standard for the admission of expert opinions.  The Supreme Court has now made clear that the trial court’s determination on these issues is owed deference by the trial court, just like any other evidence determination. Thanks to Michael Noblett for his contribution to this post.  Read More