I.PROCEDURAL CONCERNS
A.Court Control Over Trial
1.Generally
People v. Abrams, 117 A.D.3d 104, 983 N.Y.S.2d 246 (1st Dep’t 2014)
In this murder prosecution, Court noted that although a claim in a criminal prosecution that the intrusion of the trial judge into the trial proceedings deprived the D of his constitutional right to a fair trial is not subject to harmless error analysis, the strength or weakness of the evidence may be considered as a factor in determining whether the defendant received a fair trial.
People v. Nelson, 125 A.D.3d 58, 998 N.Y.S.2d 216 (2d Dept. 2014)
In this murder prosecution, Court held D was not entitled to new trial based on alleged danger that jury had been influenced by T-shirts worn by the victim’s family bearing his photo and the words “Remember Leon Walton”. Court initially declined to adopt a per se rule barring such conduct, holding instead that such claims must be decided on a case-by-case basis. Here, the Court found trial court that conduct did not threaten D’s right to a fair trial noting the shirts were not inflammatory, family members did not conduct themselves in a manner which would draw jury’s attention and their visibility to jury was questionable. Justice Dickeson dissented, arguing that even if the conduct did not improperly influence the jury, the shirts created an unacceptable risk that it would happen.
2.Presentation of Proof
People v. Smith, 118 A.D.3d 920, 988 N.Y.S.2d 233 (2d Dep’t 2014)
In this DWI prosecution, Court noted a trial court has the power to alter the order of proof, in its discretion and in the furtherance of justice, at least up to the time the case is submitted to the jury. It then held that contrary to the defendant’s contention, he was not prejudiced as a result of the County Court’s determination permitting the People to reopen their case to submit his mugshot into evidence. Court also rejected D’s argument that he was prejudiced by the County Court’s decision to grant the People’s motion in limine, made one day after the time frame given by the court for such motions, to admit into evidence his Department of Motor Vehicles driving abstract, which indicated a prior conviction of driving while intoxicated and a license suspension. The abstract was admissible pursuant to the business records exception to the hearsay rule, and did not violate the defendant’s constitutional right to confrontation. In addition, D has not demonstrated that he was prejudiced by the admission of the abstract.
MRI Enters. Inc. v. Comprehensive Med. Care, 122 A.D.3d 595, 996 N.Y.S.2d 119 (2d Dept. 2014)
In this breach of contract action tried to the court, Court held trial court did not ever err in permitting complaint to be amended to conform to the evidence during the trial as there was no prejudice to D, and to allow P to reopen its case to present additional damages proof.
Rodriguez v. Feldman, 126 A.D.3d 1557, 6 N.Y.S.3d 847 (4th Dept. 2015)
In this custody proceeding pursuant to FCA Article 6, Court held that trial court properly exercised its discretion in permitting the telephonic testimony of an expert witness who resided in another state. (see Domestic Relations Law §75-j[2]).
3.Adjournments
Pezhman v. Dept. of Education, 113 A.D.3d 417,977 N.Y.S.2d 886 (1st Dept 2014)
In this defamation action, Court held trial court providently exercised its discretion in denying P’s request for a continuance to retain an attorney to represent her. The record shows that P chose to proceed pro se despite advice from two judges, including the trial court judge, apparently believing that she could represent herself adequately without an attorney. Further, litigation has been ongoing for nine years, and granting P time to find an attorney, and time for that attorney to prepare from trial, would result in further delay, prejudicing D. As the evidence submitted by P thus far does not establish a defamation claim, dismissal was proper.
Cohen v. Cohen, 120 A.D.3d 1060, 993 N.Y.S.2d 4 (1st Dept. 2014)
In this matrimonial action, Court held denial of D’s request for a further adjournment of the trial after she returned to France was not a clear abuse of the Court’s discretion. Court noted the record fully supports the trial court’s finding that D’s failure to return to court despite a three-week adjournment, was of her own making. D failed to submit an affidavit explaining her absence on the May18th date or on the June 6th date; and to the extent she relies on her claim of medical injury, the claim is unavailing, since the unsworn medical note provided to the court was brief and vague. While she now claims that she needed only a two week adjournment, D gave no indication to the court that she would be able to return on a certain date, and her counsel had no knowledge of when she could actually do so.
Arcamone-Makinarov. Britton, 117 A.D.3d 889, 986 N.Y.S.2d 372 (2d Dep’t 2014)
In this trespass action, a judge at a conference on 10/27/11 orally directed the timing and particulars of disclosure, which were unclear and the parties had different interpretations of it. On 12/12/11, as a nonjury trial was to begin, D’s made an oral application to preclude P’s experts- the engineer and an appraiser- from testifying due to the plaintiffs’ failure to properly disclose these witnesses. During oral arguments on that application, it was asserted that the P’s engineer had completed his report just days earlier that the plaintiffs disclosed their appraiser’s identity in a letter that defense counsel received on 12/8/11, and that the P’s still had not disclosed the substance of the appraiser’s proposed testimony. Trial Court granted the application. Court reversed, noting that Ds did not establish that Ps willfully or intentionally violated a court directive regarding expert disclosure and any prejudice to the D’s from late disclosure would have been limited inasmuch as the D’s own engineer was present when the P’s engineer conducted his inspection and short adjournment of this nonjury trial could have eliminated prejudice entirely.
Gutilla v. Peppino’s Food, Inc., 125 A.D.3d 604, 3 N.Y.S.3d 108 (2d Dept. 2015)
In this act to impose a constructive trust, P’s counsel on a Friday afternoon faxed to the trial court an affidavit requesting a three week adjournment of trial scheduled to start on the following Monday which was denied. When counsel failed to appear on Monday, trial court dismissed the action and then denied motion to vacate dismissal. Court held dismissal and denial was an abuse of discretion as P demonstrated both a reasonable excuse for default and potentially meritorious cause of action.
Warner v. Orange County Regional Med. Ctr., 126 A.D.3d 887, 6 N.Y.S.3d 83 (2d Dept. 2015)
In this medical malpractice action, Court held trial court’s denial of requested adjournment and sua sponte dismissal of action was abuse of discretion. P’s counsel one week before trial notified the court and D’s counsel that he was on trial and trial was likely to continue for another three weeks; and at scheduled date P through substitute counsel filed an affidavit of engagement and indicated P’s counsel was unable to proceed.
Hawes v. Lewis, 127 A.D.3d 921, ___ N.Y.S.3d ___ (2d Dept. 2015)
In this real property action, Court held trial court properly denied D’s request for adjournment to obtain new counsel after her second counsel was relieved based upon his averment that D did not cooperate with him and D consented to request.
Zanker-Nichols v. United Refining Co., 127 A.D.3d 1347, ___ N.Y.S.3d ___ (3d Dept. 2015)
In this negligence action, D’s counsel appeared on morning of commencement of trial, requested and was granted adjournment on grounds he was ill and unable to proceed. P moved for costs, seeking reimbursement for cancellation fees paid to two experts who were scheduled to testify, which motion was granted. Court held governing rules did not authorize an award under 22 NYCRR130-1, 2 as frivolous conduct was not involved and good cause was asserted as basis failure to continue.
B.Spoliation
Voom HD Holdings LLC v. Echostar Satellite LLC, 93 A.D.3d 33, 939 N.Y.S.2d 321
(1st Dep’t 2012)
On an appeal from an order granting P’s motion to impose sanctions (adverse inference) against D for its spoliation of evidence consisting of electronically stored information, Court affirmed and made several significant observations. It noted: (1) once party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in a place a “litigation hold”; (2) D satellite television provider did not implement a proper litigation hold once it should reasonably have anticipated litigation with company whose television programming it was contractually obligated to distribute, or even for four months after company filed suit; (3) P was at least grossly negligent, if not guilty of bad faith conduct, in failing to timely implement a proper litigation hold, such that relevance of destroyed e-mails could be presumed; (4) provider failed to rebut presumption of relevance; and (5) adverse inference was appropriate spoliation sanction. Court adopted the standard for preservation set forth in Zubulake v. UBS Warburg LLC (220 F.R.D. 212 [S.D.N.Y. 2003]) which has been widely adopted by federal and state courts.
Strong v. City of New York, 112 A.D.3d 15, 973 N.Y.S.2d 152 (1st Dep’t 2013)
In this automobile accident action involving a police car, City asserted the “emergency operation” affirmative defense. However, an audiotape of communications between the car and the commanding officer had been deleted after 180 days in the normal course of business. P sought spoliation. Court held the common law spoliation standard applied and not the Voom standard which it characterized as adopting the federal standard for spoliation of electronic evidence. Under the common law standard Court held a less severe sanction was warranted as the spoliation was not done willfully and P was still able to develop its case without the tape, which sanction was preclusion of the City from seeking to prove the contents of the tape, and if warranted at trial, an adverse inference charge.
Pegasus Aviation v. Varig,118 A.D.3d 428, 987 N.Y.S.2d 350 (1st Dep’t 2014)
Court held that a party’s failure to issue a litigation hold to the members of its organization directing preservation of ESI is not per se gross negligence. It noted the question of whether a party was grossly negligent in allowing ESI to be destroyed is based on the particular facts of the case, and the failure to issue a litigation hold is but one of those facts. Although Ds failed to issue a litigation hold, their conduct, viewed in its totality, amounted to simple negligence at most. Therefore, P could not benefit from the presumption of prejudice afforded when the spoliator engaged in gross negligence, and P was required, but failed to, demonstrate that it was prejudiced by the destruction of the subjection information. Court also addressed the issue of when one entity has sufficient control over another to trigger a duty on the part of the first entity to ensure that the second was preserving appropriate ESI. The entity to be charged with a duty to ensure the preservation of another entity’s ESI must have “practical control” over the other entity, say the Court, indicating that the two entities need not be alter egos. Practical control will be found where the subservient entity would have complied with a request by the dominant entity to preserve the ESI.
Duluc v. AC & L Food Corp., 119 A.D.3d 450, 990 N.Y.S.2d 24 (1st Dep’t 2014)
In this slip and fall accident, P retained an attorney within one week of her accident who then advised D to preserve “any and all video” depicting the fall. Upon receiving the notice, D preserved 84 seconds of the video which actually showed the P falling. D also reviewed 31 other cameras in the store which did not depict anything unusual or related to the fall. The cameras were on a system where, due to a limited amount of storage, the recordings were erased and written over every 21 days. As such, the only video surviving from the date of the incident was the 84 seconds previously preserved. P sought as a sanction the striking of the answer. Court denied request and noted the remedy of striking a pleading was inappropriate where, as here, there was no showing that the P’s act was willful, contumacious or in violation of a court order. The court noted that the burden rests on the party requesting the sanction, and D had failed to meet that standard on this motion. Justice Saxe noted that the striking of D’s Answer or an order of preclusion was excessive where the loss of the items was merely negligent. However, an adverse inference charge would have been appropriate. The adverse inference charge would permit the jury to determine that the video was harmful to the D, unless, the jury found that the destruction was reasonable under the circumstances.
Maiorano v. JP Morgan,124 AD3d 536, 998 NYS 2d 629 (1st Dept. 2015)
Court held: “P established that D’s failure to take affirmative steps to preserve the surveillance video recorded on the day she tripped and fell in its bank constituted spoliation of evidence. The record demonstrates that, although this action was not commenced until more than a year after the accident, defendant was on notice on the day of the accident that the surveillance video footage might be needed for future litigation. Supreme Court’s sanction of the giving of an adverse inference was unheld.
Pennachio v. Costco Wholesale Corp., 119 A.D.3d 662, __ N.Y.S.2d __ (2d Dep’t 2014)
P alleged he was injured when he reached for a shrink-wrapped, glass jar of olives on a shelf in a store owned by the D which. Unbeknownst to him, was broken. D originally retained the subject jar and marked it as “evidence” not to be discarded. However, according to the D, the jar was later discarded inadvertently. After commencing this action against D, P demanded production of the subject jar and, due to its unavailability, moved to strike the defendant’s answer on the ground of spoliation of evidence. Court initially held striking of the answer was not warranted as P had other means to show how long the jar had been broken, and thus constructive notice. Court further held an issue of fact exists as to whether spoliation of relevant evidence occurred. P submitted an expert affidavit averring that she could have determined how long the jar had been broken by analyzing the mold contained in the jar, and D submitted an expert affidavit disputing that such a conclusion could have been reached. If the opinion of D’s expert were credited, then an adverse inference would not be warranted, because the lost evidence would not have been relevant to the P’s case. Thus, this issue of fact should be placed before the jury, along with the inferences to be drawn therefrom. The jury should be instructed that, if it credits the opinion of D that no conclusion could have been reached with reasonable certainty regarding how long the jar had been broken by analyzing the mold contained in the jar, then no adverse inference should be drawn against the defendant. On the other hand, the jury should be advised that, if it credits the opinion of the plaintiff’s expert that she could have determined how long the jar had been broken by analyzing the mold inside, then it would be permitted to drawn an adverse inference against D.
Lentini v. Wechsler
120 A.D.3d 1200, 992 N.Y.S.2d 135 (2d Dep’t 2014)
In this action where P alleged she was injured when some bricks collapsed as she was walking on a brick walkway, trial court struck answer on the ground of D’s spoliation of evidence. D had paved over walkway with fresh cement after P requested him not to do until he made arrangements to inspect the brick walkway. Court affirmed, noting D paved over the walkway after receiving notice P intended to inspect it and that such paving frustrated P’s ability to prove his case.
Dyer v. City of Albany
121 A.D.3d 1238, 995 N.Y.S.2d 753 (3d Dep’t 2014)
P alleged that D was negligent in failing to maintain a city park playground where the infant P was injured when she fell from a swing. P moved to strike answer pursuant to CPLR 3126 based upon D’s destruction of the swing, which was denied and affirmed. Court upheld affirmance, noting that D’s supervisor testified he was informed that someone had gotten hurt on one of the swings, so he went to the park, inspected all of the swings and observed that the safety mechanism would not latch on one swing. After unsuccessfully attempting to latch it 2 times, he removed the wing and disposed of it. D had not been directed to preserve the swing, it is unclear whether the disposal occurred before P served a notice of claim, and neither P nor her relatives had notified D of any problem with the swing aside from that notice of claim. P was not particularly prejudiced because relatives took several clear pictures of the swing the day after the accident and the supervisor testified that the safety mechanism would not latch.
Weiss v. Bellevue Matern. Hosp.,121 A.D.3d 1480, 995 N.Y.S.2d 640 (3d Dep’t 2014)
In this medical malpractice action, P learned during the discovery process that the infant P’s mother’s labor and delivery records had been destroyed 8 years after the infant’s birth pursuant to the D’s records retention policy. Trial court denied P’s motion to strike answer on the ground of spoliation of evidence and Court affirmed. It noted there was no evidence that D acted in bad faith and that P had not established that the records “fatally compromised their ability to prosecute the action.”
Johnson v. Ayyub,115 A.D.3d 1191, 982 N.Y.S.2d 615 (4th Dep’t 2014)
In this medical malpractice action, certain radiology films included in a packet of decedent’s medial records previously picked up by P and returned to D hospital were missing. D physician moved to strike complaint as against him due to the loss of these films. Noting that there was no evidence of intention destruction and the loss did not fatally compromise D’s ability to defend himself, Court held the sanction of dismissal was not warranted, and let stand the trial court’s sanction of an adverse inference against the party who may be responsible for the loss.