Below is a list of areas of law that The Committee on Courts of Appellate Jurisdiction has identified as showing conflicts in decisions rendered among the Appellate Divisions and within the individual Appellate Divisions.
In some areas there is a stark difference in the approach taken by different panels. The consequence of the conflicting decisions is vastly different outcomes depending on where or when an appeal is heard.
By identifying these conflicts and differences among the Appellate Divisions we hope to educate and assist the Bar in recognizing these splits, and we hope that understanding the differences will be the first step in reaching a unified approach on these issues across the State.
We invite members of this Committee to submit information relating to any splits in authority here.
APPEALS
WHEN, IF EVER, DOES AN APPEAL LIE AS OF RIGHT, OR EVEN BY PERMISSION, FROM AN ORDER DETERMINING ON A MOTION IN LIMINE THE ADMISSIBILITY OF PROFFERED EXPERT WITNESSIN THE ACTION, E.G., STANDARD OF CARE, CAUSATION
First Department
Santos v. Nicolas, 65 AD3d 941 (2009)
Such a ruling is “generally reviewable only in connection with the appeal from the judgment.”
Second Department
Balcom v. Reither, 77 AD3d 863 (2010)
Such a ruling is not appealable. Court also rejected plaintiff’s alternative arguments, stating that the rulings did not go to the merits of plaintiff’s case or affect a substantial right.
Third Department
Bozzetti v. Pohlmann, 94 AD3d 1201 (2012)
Such a ruling is not appealable as of right or by permission. Compare, Hurrell-Harring v. State, 119 AD3d 1052 (2014), which involved the alleged systemic failures in New York’s public defense system, Court entertained appeal from order precluding testimony from a key plaintiff expert; State did not raise any appealability issue.
Fourth Department
Thome v. Benchmark Main Transit Assoc., 125 AD3d 1283 (2015)
Such a ruling is appealable where it affects a substantial right of the appealing party.
CIVIL PROCEDURE
WHETHER A PHYSICIAN’S AFFIRMATION CONTAINING AN ELECTRONIC SIGNATURE COMPLIES WITH CPLR §2106
First Department
Martin v. Portexit Corp., 98 AD3d 63 (2012)
Applying State Technology Law §304, Court held in an opinion (Abdus-Salaam, J.) that an electronic signature does comply with CPLR §2106.
Second Department
Vista Surgical Supplies v. Travelers, Ins., 50 AD3d 778 (2008)
Court held that an electronic signature, as well as affixed or stamped facsimile, does not comply with CPLR §2016, at least in absence of proof as to who placed them on document or that the signature was authorized.
WHETHER AN IMPROPER FILING SEQUENCE, E.G., SERVE SUMMONS AND COMPLAINT PRIOR ITS FILING, MAY BE EXCUSED PURSUANT TO CPLR §2001
First Department
Cracolici v. Shah, 127 AD3d 413 (2015)
Court held such improper filing sequence may be excused.
Second Department
Khlevner v. Khlevner, 48 AD3d 428 (2008)
Court held such improper filing sequence is not a jurisdictional defect, and hence is waivable where no timely objection.
Third Department
Oyague v. Schwartz, 93 AD3d 1044 (2012)
Court held such improper filing sequence may not be excused, citing to Goldenberg v. Westchester County Health, 16 NY3d 323 (2011).
Commentary – Siegel’s Practice Review, Feb. 2008 #2, and April 2010, #2; Siegel and Connors, New York Practice (5th ed) § 63 at pp. 97-98 and Jan. 2016 Update Sec. 63
WHETHER A DEFAULT JUDGMENT MUST BE VACATED WHERE A PLAINTIFF FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS OF CPLR §3215(g)(1)
First Department
Walker v. Foreman, 104 A.D.3d 460 (2013)
Court vacated judgment and directed a new inquest on proper notice.
Second Department
Paulus v. Christopher Vacirca, Inc., 128 AD3d 116 (2015)
Court held in an opinion (Cohen, J.) that defendant was entitled to have judgment vacated because the failure deprived Supreme Court of jurisdiction to entertain motion for leave to enter a default judgment.
Third Department
Fleet Fin. v. Nielsen, 234 AD3d 728 (1996)
Failure to provide notice does not standing alone warrant vacating of default judgment.
Fourth Department
Nowak v. Oklahoma League for Blind, 289 AD2d 995 (2001)
Motion for leave to enter a default judgment made without providing notice is defective, requiring vacating of default judgment.
EXPERT TESTIMONY
WHETHER CPLR §3101(d)(1) APPLIES TO A TREATING PHYSICIAN WHO PROVIDES EXPERT TESTIMONY AT TRIAL
First Department
Hamer v. City of New York, 106 AD3d 504 (2012)
CPLR 3101(d) does not apply.
Second Department
Overreem v. Neuhoff, 254 AD2d 398 (1998)
CPLR 3101(d) does not apply even though treating physician’s exchanged report contained no opinion regarding causation.
Third Department
Norton v. Nguyen, 49 AD3d 927 (2008)
CPLR 3101(d) applies.
Fourth Department
Andrew v. Hurh, 34 AD3d 1331 (2006)
CPLR 3101(d) does not apply even though the physician gave opinion on causation at trial which contradicted his opinion as made in hospital record while treating plaintiff.
Commentary – Connors, Practice Commentaries to CPLR 3101(d)(1)
WHEN A PLAINTIFF’S TESTIFYING EXPERT HAS RELIED IN PART IN FORMULATING HIS/HER OPINION ON A REPORT PREPARED BY ANOTHER EXPERT OR WHAT THAT EXPERT SAID, WHICH REPORT OR STATEMENT IS NOT IN EVIDENCE, IS IT NECESSARY IN ORDER TO ESTABLISH THE RELIABILITY PRONG OF THE “PROFESSIONAL RELIABILITY” BASIS RULE FOR EXPERT OPINION TO HAVE THE AUTHOR OF THE REPORT OR SPEAKER TESTIFY
First Department
Strauss v. Strauss, 136 AD3d 419 (2016)
Court indicates that the author or source of the statement must testify.
Second Department
Wagman v. Bradshaw, 292 AD2d 84 (2002)
Court strongly suggests that author or source of statement must testify.
Third Department
O’Brien v. Mbugua, 49 AD3d 937 (2008) (Spain, J.) and People v. Howard, 134 AD3d 1153(2015) (Garry, J.)
In O’Brien, Court concluded reliability of the report was established as treating physician relied upon the report in treating plaintiff; and in Howard, Court concluded reliability of what was told to testifying expert by investigator was established by that expert who gave testimony regarding the investigator’s qualifications and his reliance upon that person in other investigations.
WHEN IT IS RULED THAT A PLAINTIFF’S TESTIFYING EXPERT HAS PROPERLY RELIED IN PART IN FORMULATING HIS/HER OPINION ON A REPORT OF A NON-TESTIFYING EXPERT, DOES THE HEARSAY RULE AND/OR THE BEST EVIDENCE RULE PRECLUDE THE EXPERT FROM TESTIFYING TO THE REPORT’S CONTENTS
Second Department
Wagman v. Bradshaw, 292 AD2d 84 (2002)
Court held any such testimony would be barred by the hearsay and best evidence rules.
Third Department
O’Brien v. Mgubua, 49 AD3d 937 (2008) (Spain, J.)
Court held treating physician could testify to content of the report as limited to how that content informed his opinion. No best evidence objection was raised as to such testimony. NOTE: In Borden v. Brady, 92 AD2d 983 (1983), Court found error where the expert “[n]ot only was permitted to identify the report upon which he relied and to explain its significance in forming his opinion; the report itself was admitted into evidence and read to the jury.” As to the hearsay and best evidence rules, the Court of Appeals in Matter of Floyd Y, 22 NY3d 95 (2013), a MHL Article 10 proceeding, held such evidence was admissible for explanation purposes, ie, non-truth purposes, unless it was unduly prejudicial; and most courts in other jurisdictions hold best evidence rule is not violated when the testimony about a writing’s contents is admitted when the testimony seeks only to show what the expert relied upon and not prove its contents. See, Miller, “Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay,” 71 Wash. & Lee L. Rev. Online 186 (2014) (collecting cases).
Commentary – Marcy Friedman, “Need for a Testifying Physician to Rely on Reports by a Non-Testifying Physician Poses Evidentiary Problems, NYSBA Journal (Nov/Dec 2001), p. 28; Marcy Friedman, “Clarifying Evidentiary Rules on Contents of Reports by Physicians Could Give Jurors More Information”, NYSBA Journal (Jan. 2002), p. 33; John Curran, “The ‘Professional Reliability’ Basis for Expert Testimony,” NYSBA Journal (July/Aug. 2013); Martin, “Professionally Reliable Material as a Basis for Expert’s Opinion,” NYLJ, Sep. 16, 2009, p.1, col.1.
LABOR LAW SECTION §240
WHETHER A PLAINTIFF ENGAGED IN CONSTRUCTION WORK WHO FALLS INTO AN UNCOVERED OPENING ON THE GROUND LEVEL OF THE CONSTRUCTION SITE HAS BEEN EXPOSED TO AN ELEVATION-RELATED RISK WITHIN THE SCOPE OF LABOR LAW §240(1)
First Department
Gallagher v. Levien & Co., 72 AD3d 407 (2010)
Decision suggests answer is yes. Hole here had an opening of 3-4 feet and and a drop of 10-15 feet.
Second Department
Brandl v. Ram Builders, Inc., 7 AD3d 655 (2004)
Decision suggests answer is yes, but dimensions of hole not stated. Compare, Carey v. Five Bros., Inc., 106 AD3d 938 (2013) where statute was held inapplicable to fall of 10 feet through an open manhole cover.
Third Department
Paolangeli v. Cornell Univ., 296 AD2d 691 (2002)
Decision suggests answer is no. Worker fell into a hole that was 5-7 feet deep while walking on a flat level floor.
Fourth Department
Panepinto v. LTV Steel, 207 AD2d 1006 (1994)
Decision suggests answer is no. Worker stepped backward and fell into a hole at ground level, dimensions of which were not stated.
Commentary – Shoot, “Getting In at Ground Level”, NYLJ, Aug. 15, 2015, p.3, col. 3 (collecting cases)
MEDICAL MALPRACTICE
WHETHER AN ENTRY IN A PLAINTIFF’S HOSPITAL RECORD AS MADE BY THE PLAINTIFF TO A HEALTH CARE PROFESSIONAL, BUT WHICH IS NOT GERMANE TO PLAINTIFF’S TREATMENT OR DIAGNOSIS, IS ADMISSIBLE AT TRIAL WHERE THE ENTRY IS INCONSISTENT WITH PLAINTIFF’S TESTIMONY AS TO HOW THE ACCIDENT OCCURRED AND THE ENTRY IS OFFERED BY DEFENDANT
First Department
Kristo v. Board of Educ., 134 AD3d 550 (2015)
Court holds it is not admissible. NOTE: In Preldakis v. Alps Realty, 69 AD3d 455 (2010) a panel held it was admissible.
Second Department
Robles v. Polytemp, Inc., 127 AD3d 1052 (2015). NOTE: In Nelson v. Bogopa, 123 AD3d 780 (2014), a panel held such an entry is not admissible.
Court holds it is admissible.
Fourth Department
Smolinski v. Ford Motor Credit Co., 78 AD3d 1642 (2010)
Court holds it is admissible.
Commentary – Alexander, Practice Commentaries to CPLR 4518, C4518:3; John Curran, “Issues Involving Medical records as Evidence at Trial,” NYSBA Journal (Dec. 2014), p. 36; Hutter, “Admissibility of Patient’s Statement in Medical Record,” NYLJ, Dec. 2, 2010, p. 3, col. 3.
WHETHER CPLR §3101(d)(1) APPLIES TO A TREATING PHYSICIAN WHO PROVIDES EXPERT TESTIMONY AT TRIAL
First Department
Hamer v. City of New York, 106 AD3d 504 (2012)
CPLR 3101(d) does not apply.
Second Department
Overreem v. Neuhoff, 254 AD2d 398 (1998)
CPLR 3101(d) does not apply even though treating physician’s exchanged report contained no opinion regarding causation.
Third Department
Norton v. Nguyen, 49 AD3d 927 (2008)
CPLR 3101(d) applies.
Fourth Department
Andrew v. Hurh, 34 AD3d 1331 (2006)
CPLR 3101(d) does not apply even though the physician gave opinion on causation at trial which contradicted his opinion as made in hospital record while treating plaintiff.
Commentary – Connors, Practice Commentaries to CPLR 3101(d)(1)
NEGLIGENCE/TORTS
WHETHER A PLAINTIFF SEEKING PARTIAL SUMMARY JUDGMENT ON LIABILITY MUST ESTABLISH AS A MATTER OF LAW THAT PLAINTIFF IS FREE FROM COMPARATIVE FAULT
First Department
Calcano v. Rodriguez, 91 AD3d 468 (2012)
Court held plaintiff must establish plaintiff has no comparative fault. NOTE: Panel rejected earlier panel ruling to the contrary, Tselebis v. Ryder Truck, 91 AD3d 468 (2012), on the ground that Thomai v. Ronai, 82 NY2d 736 (1993) required that conclusion. Including this opinion and subsequent opinions, Justices Acosta, Catterson, Degrasse, Moskowitz, and Saxe have expressed their disagreement with Calcano.
Second Department
Roman v. A1 Limousine, 76 AD3d 552 (2010)
Court held plaintiff must establish plaintiff has no comparative fault, citing in support Thomai. NOTE: The First Department panel in Calcano cited to A1 in support of its rejection of prior panel ruling. More recently, the Second Department in an Opinion written by Justice Dillon in Philip v. D&D Carting, 136 AD3d 18 (2015) adhered to Roman, but also invoked CPLR 3212(g) and directed that plaintiff a passenger in a vehicle rear-ended by defendant’s vehicle was free from comparative fault.
Third Department
Rockenstire v. State, 135 AD3d 1131 (2016)
Court granted partial summary judgment on liability to plaintiff, holding that defendant failed to raise any comparative fault on plaintiff’s part.
Fourth Department
Simoneit v. Mark Cerrone, Inc., 122 AD3d 1246 (2014)
Court granted partial summary judgment on liability to plaintiff, concluding that plaintiff met her burden of showing defendant’s failure to yield was sole proximate cause of accident; and also reinstated the affirmative defense of culpable fault, noting that defendant raised an issue of fact as to whether plaintiff’s injuries were caused in whole or in part by her conduct.
Commentary – Siegel and Connors, New York Practice (5th ed) §280, Jan. 2016 Update; Connors, “Can Comparative Fault Stop the Train Known as Summary Judgment?”, NYLJ, Jan 16., 2013, p. 3, col. 3; Alexander, Practice Commentaries to CPLR 1412.