By Michael Hoenig - New York Law Journal -
May 16, 2011
A cluster of varied, recent rulings by the Appellate Division offers
diverse lessons to practitioners. Often, the actual gleaning is not new
but a good reminder nonetheless. Sometimes a new twist on an old theme
is presented yielding a double reward: reminding on the old theme;
educating on the new twist. Then there is the occasional eye-opener. Our
style here is to present informational bullets. That way, we can cover
some ground and not get bogged down with lots of facts. It is the nugget
we are after, not the case's historical record.
In the TV-movie-digital age, it should not be surprising that video or
film can have powerful effect. Courts can be influenced as well as juries.
Green v. South Colonie School Dist.,1 a kindergarten
youngster stood up from his seat when the school bus returning home
decelerated. His face struck the back of the seat in front of him causing
avulsion of one of his permanent front teeth. The incident was captured on a
video recording made by a camera at the front. The video contained both
speed and time data. The parents sued the school district for negligence
claiming abrupt braking on a descending incline. Defendant moved for summary
judgment offering affidavits including one by a licensed engineer saying
that, based on the video, the driver's operation and braking were safe.
In opposition plaintiffs relied on the youngster's deposition testimony
and that of his brother seated next to him at the time. Both recalled a
quick or sudden stop by the bus. The mother, who did not witness the
incident, said that, based on her review of the video, the bus "stopped too
fast." The Appellate Division, Third Department, ruled that the plaintiffs'
testimony was "utterly refuted by the video evidence" and the defense
expert's analysis of the speed and deceleration rate. Moreover, the mother's
conclusion—"stopped too fast"—constituted "improper opinion testimony." The
complaint should have been dismissed in its entirety,
Nguyen v. Kiraly,2 plaintiff sought damages for injuries
sustained in an automobile accident. Following trial, the jury found
plaintiff sustained a "serious injury" under one insurance law category but
awarded plaintiff zero pain and suffering damages. It did award damages for
lost wages. Plaintiff argued that the failure to award damages was against
the weight of the evidence and, indeed, the Appellate Division, Fourth
Department, did note case law holding flawed some jury verdicts finding a
"serious injury" under the No-Fault Law but making no award for past pain
The court held the jury result here was a material deviation from
reasonable compensation. However, the jury's rejection of damages for the
significant limitation of use category was upheld as a "fair interpretation
of the evidence." Why? Because the evidence included a "surveillance video
of plaintiff several years after the accident, in which he was depicted
moving about with no apparent limitations or discomfort."
Alexander v. Dunlop Tire Corp.,3 a single car rollover
resulted in three injured occupants and one fatality. Plaintiff alleged the
accident was caused by a tread separation failure of the left rear tire, a
product manufactured by defendant Dunlop. Following discovery, defendant
moved to exclude the testimony of plaintiffs' expert, Robert Ochs, who
concluded after a "visual and tactile analysis of the tire" that the tread
separated because of an "adhesion/cohesion failure caused by defects in the
manufacturing process." Dunlop claimed the expert's conclusions/opinions
were unreliable and unsupported by the relevant scientific community.
Defendant also moved for summary judgment. Following a Frye hearing,
Supreme Court excluded Mr. Ochs' testimony finding that, although a visual
and tactile examination of the tire is a generally accepted technique to
determine causes of separation failures, there was no support for the
expert's conclusion that the tire failure was due to a manufacturing defect.
The Third Department observed that Mr. Ochs used a process of elimination
to rule out the possible causes of tire failure. However, said the court,
this process of elimination is not "a scientific process or procedure."
Rather, "it is a theory of logic used to reach a legal conclusion." Because
Dunlop is not actually challenging a novel scientific procedure, Frye is
inapplicable here. The appellate court proceeded to review the case under
"the traditional standards applicable to a motion to preclude evidence and a
motion for summary judgment in a products liability case." Here, Dunlop
challenged the reliability of Mr. Ochs' conclusion.
In his deposition the expert excluded other common potential causes of
tread separation such as mounting damage, alignment damage, improper repair,
improper storage, age of the tire, operation in excess of the tire's speed
rating and overdeflection and set forth his reasoning. Additionally, his
inspection eliminated all of the possible causes of tread separation as set
forth by the Tire Institute of America in its passenger and light truck tire
conditions manual. He also testified that he was unaware of any other
industry-recognized causes of tread separation that he had not examined and
The court observed that, in response, "Dunlop did not identify any
additional causes not considered by Ochs." As for "alternate testing" of the
tire, such as chemical analysis, Mr. Ochs stated that the condition and
contamination of the tire after that accident precluded "other meaningful
testing." The expert found that data did not support a finding of
abuse/misuse of the tire. Notably, defendant's expert "used the same
methodology" but reached a different conclusion. Accordingly, the expert's
submission was wrongly excluded and summary judgment was reversed.
Rowe v. Fisher,4 a lead-injury case, plaintiff's expert
opined that the pregnant mother, at the start of her third trimester, should
have been provided chelation therapy and that this would have prevented or
reduced the claimed injuries to the infant plaintiff. The defendant Health
and Hospitals Corporation successfully moved to preclude the expert's
testimony on chelation because it was "contrary to the medical literature on
the subject and therefore 'unreliable.'" The Appellate Division, First
Department, affirmed and held that the chelation opinion was a novel theory
subject to a Frye analysis and that plaintiffs failed to rebut defendant's
showing that this theory was not accepted within the relevant scientific
Ehrenberg v. Starbucks Coffee Co.5 the infant plaintiff was
injured when a cup of hot tea spilled on him at a Starbucks coffee shop. The
infant's nanny wheeled him in a stroller up a ramp with her right hand and
balanced the cup of tea on a plate with her left hand. Plaintiffs alleged a
dangerous and defective condition on the premises. The affidavit of the
nanny was deemed insufficient to raise a triable issue of fact as to whether
the ramp was negligently designed, installed or maintained.
The affidavit of plaintiffs' expert, submitted to oppose defendants'
motion for summary judgment, should not have been considered, held the
Appellate Division, Second Department. That expert witness was not
identified by the plaintiffs until after the note of issue and certificate
of readiness were filed, attesting to the completion of discovery.
Plaintiffs offered no valid excuse for the delay. Accordingly, summary
judgment should have been granted.
Shaw v. Carolina Coach,6 the Second Department was confronted
with a choice of law question. Plaintiff was a New York resident whose car
collided with a Greyhound bus in New Jersey. Defendants were domiciliaries
or residents of states other than New York or New Jersey. Plaintiff started
an action in Brooklyn. Defendants moved to apply New Jersey law to the
action. Under New Jersey law a plaintiff can recover the full amount of his
or her damages from any party determined to be more than 60 percent or more
at fault in the happening of the accident. A party found less than 60
percent at fault is only responsible for its proportionate share of the
Plaintiff opposed the motion arguing that New York's law on joint and
several liability was applicable. Under New York law, unlike New Jersey, a
party held liable by reason of operating or owning a motor vehicle is exempt
from the limited liability provisions of CPLR article 16, and thus can be
held responsible for the full amount of plaintiff's damages without regard
to its percentage of fault. Supreme Court agreed with plaintiff.
The appellate court undertook a choice of law assessment based on
"interest analysis," i.e., "the law of the jurisdiction having the greatest
interest in resolving the particular issue" is given controlling effect.
Under interest analysis, the court distinguishes between laws that regulate
primary conduct (such as standards of care) and those that allocate losses
after the tort occurs. If the conflicting laws regulate conduct, then the
law of the place of the tort "almost invariably obtains" because "that
jurisdiction has the greatest interest in regulating behavior within its
borders." When, as in the present case, "competing postevent remedial rules
are at stake, other factors are taken into consideration," principal among
which is the location of the parties' domiciles.
When conflicting loss-allocating laws are implicated, so-called "Neumeier
principles" guide the courts.7 Here the third Neumeier principle
applied: normally, the state law where the accident occurred will apply "but
not if it can be shown that displacing that normally applicable rule will
advance the relevant substantive law purposes without impairing the smooth
working of the multi-state system or producing great uncertainty for
litigants." Eventually, the appellate court identified the "overarching
inquiry:" "which of two competing jurisdictions has the greater interest in
having its law applied in the litigation." Following a copious analysis, the
Appellate Division concluded that the law of New Jersey "should yield in
this case to the law of New York."
Is the defendant's showing that its product complied with federal
regulations sufficient to satisfy its burden on a motion for summary
judgment? Would that be enough to shift the burden to plaintiff to come
forward with sufficient proof to show a triable issue on product
defectiveness? The answer seems to be "yes." In
Spiconardi v. Macy's E. Inc.,8 plaintiff was cooking when her
shirt caught fire. Plaintiff sued the seller and manufacturer of the
Defendants moved for summary judgment establishing the garment was
reasonably safe. Defendants' expert tested an exemplar of the shirt pursuant
to the applicable federal regulations and found both the "ignite time" and
the "burn time" met or exceeded federal regulations. This was sufficient to
satisfy defendants' burden. "Although mere compliance with minimum industry
standards is, at most, some evidence to be considered and is not a shield to
liability…" the conclusory allegations of plaintiffs' expert did not present
evidence that the product violated other relevant industry standards or
accepted practices, or statistics showing the frequency of injuries arising
out of the use of the product. Summary judgment was granted.
Yu Hui Chen v. Chen Li Zhi,9 the Second Department held that
denial of a motion for a protective order in a Brooklyn action that a
plaintiff located in China be deposed by remote electronic means was an
improvident exercise of discretion. The court says that plaintiff
"demonstrated that traveling from China to the United States for his
deposition would cause undue hardship." Thus, a remote electronic deposition
Olmsted v. Pizza Hut of Am. Inc.,10 plaintiff received an
electric shock and defendant willfully failed to produce any witness about
its electrical system. The court struck relevant portions of defendant's
answer pursuant to CPLR 3126. The case then proceeded to a trial on damages.
Plaintiff was dissatisfied with the jury verdict and, on appeal, contended
that the trial court erred by instructing the jury concerning the
aggravation of a preexisting injury. The Third Department rejected the
argument. "A trial on damages generally includes questions of causation."
Here the Supreme Court clearly preserved all issues related to damages,
including any defenses. Further, plaintiff's failure to reveal her
preexisting injuries to her treating and examining physicians, as well as
her lack of candor during her deposition with respect to her prior complaint
and current limitations, cast serious doubt on her credibility. Thus, the
jury was free to resolve the conflicts in the evidence.
What happens when a foreign language-speaking plaintiff, who earlier was
deposed through a translator, submits an affidavit in English in opposition
to a motion for summary judgment that is unaccompanied by an affidavit of a
qualified translator attesting to its accuracy? Should the court receive the
affidavit? Is it facially defective? The situation arose in
Reyes v. Arco Wentworth Mgt. Corp.,11 a labor law litigation.
Plaintiff was deposed through a Spanish language translator. But, in
opposition to a motion for summary judgment, plaintiff submitted an
affidavit in the English language unaccompanied by a translator's affidavit
as required by CPLR 2101(b).
The Second Department observed that its prior case law had held the
absence of a translator's affidavit renders the witness's English affidavit
"facially defective and inadmissible." The requirement of a translator's
affidavit setting forth his or her qualifications and the accuracy of the
English version submitted to the court "makes sense." The evidence proffered
on a summary judgment motion must be in admissible form (with rare
exceptions). A witness at trial would not be permitted to testify in a
foreign language or to proffer documents in a foreign language, without the
benefit of a sworn English language translation. Accordingly, the
plaintiff's English-language affidavit, without a corresponding one from a
qualified translator, cannot be considered in opposition to the motion.
Michael Hoenig is a
member of Herzfeld & Rubin.
1. 81 A.D. 3d 1139 (3d Dept., Feb. 17, 2011).
2. 2011 N.Y. App. Div. LEXIS 2217 (4th Dept., March 25, 2011).
3. 81 A.D. 3d 1134 (3d Dept., Feb. 17, 2011).
4. 918 N.Y.S.2d 342 (1st Dept., March 10, 2011).
5. 918 N.Y.S.2d 556 (2d Dept., March 8, 2011).
6. 918 N.Y.S.2d 120 (2d Dept., March 1, 2011).
7. So called after the decision in Neumeier v. Kuehner, 31 N.Y. 2d 121
8. 2011 N.Y. App. Div. LEXIS 2866 (1st Dept., April 12, 2011).
9. 81 A.D.3d 818 (2d Dept., Feb. 15, 2011).
10. 81 A.D.3d 1223 (3d Dept., Feb. 24, 2011).
11. 919 N.Y.S.2d 44 (2d Dept., March 15, 2011).
Printer Friendly Version
Back to Archive
125 Broad Street, New York, New York, 10004 - Phone: 212-471-8500 - Fax: 212-344-3333©2004 -2014 Herzfeld & Rubin, P.C.