Evidence

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In litigation, “spoliation of evidence” occurs when a litigant, intentionally or negligently, disposes of crucial items of evidence before their adversary has an opportunity to inspect them. See generally New York Pattern Jury Instructions (PJI) 1:77; New York Motions in Limine § 9:24 (2024 ed.). As explained by the U.S. Court of Appeals for the…

Read More Spoliation of Evidence in New York Civil Litigation
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In Wagman v Morgan Stanley Children’s Hospital of New York Presbyterian, No. 160709/21, 2022-05622, 771, M-3778, 2023 N.Y. Slip Op. 05214, 2023 WL 6626886 (N.Y.A.D. 1 Dept., Oct. 12, 2023), the court unanimously affirmed the lower court’s Order granting plaintiff’s motion, pursuant to CPLR 3126, to strike defendants’ answer for spoliation of evidence. In this…

Read More Failure to Preserve Slip/Fall Video Results in Stricken Answer
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In Belvin et al v. Electchester Management, LLC, 2022 WL 10586743 (E.D.N.Y. Oct. 18, 2022) – in which plaintiffs assert claims of, inter alia, hostile work environment – the court ruled on various motions in limine filed by the parties. In one motion, defendant asked the court to preclude testimony from two nonparty employees of defendant…

Read More Other-Employee Harassment Relevant to Hostile Work Environment Claim, Court Holds
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New York Governor Hochul has recently approved three pieces of legislation, specifically, relating to (1) admissibility of certain statements under the “hearsay” rule; (2) remote notarization; and (3) insurance disclosures. Hearsay. First, S7093/A8040 (Hoylman/Dinowitz) amends the rules of evidence to permit the admission of an opposing party’s statement if made by an agent or employee made within…

Read More New Laws Re: Hearsay, Remote Notarization, & Insurance Disclosure
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A recent decision, Boyce v. Bruce Weber and Little Bear, Inc., 19-cv-3825, 2021 WL 2821154 (S.D.N.Y. July 7, 2021), is instructive as to how courts resolve evidentiary issues arising in the context of sexual harassment claims. In this case, plaintiff (a fashion model) asserts claims for sexual harassment against defendant Weber (a fashion photographer) under…

Read More Court Rules on “Modus Operandi” Witnesses in Bruce Weber Sexual Harassment Case
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In Yassin v. Blackman, No. 2019-04138, 2020 N.Y. Slip Op. 05090, 2020 WL 5648349 (N.Y.A.D. 2 Dept., Sep. 23, 2020) – a personal injury motor vehicle accident case – the Appellate Division, Second Department clarified its “case law regarding the admissibility of a party’s statement recorded in an uncertified police report” and held “that, absent…

Read More 2nd Dept. Discusses Admissibility of Uncertified Police Reports in Personal Injury Case
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In Monzac v. 1141 Elder Towers LLC, 2020 NY Slip Op 01243 (App. Div. 1st Dept. Feb. 20, 2020) – a personal injury slip-and-fall case – the court reversed the lower court’s directed verdict for defendant. From the decision: Plaintiff’s trial evidence established prima facie that defendant had constructive notice of the water on the…

Read More Evidence of Water on Lobby Floor Meets Summary Judgment Burden in Personal Injury Slip/Fall Case
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In Naumovski v. Binghamton University, State University of New York, 3:11-CV-1097, 2019 WL 5445346 (N.D.N.Y. Oct. 24, 2019), the court denied defendant’s motion to exclude, on hearsay grounds, alleged rumors of a relationship involving plaintiff. From the decision: Defendants contend plaintiff should be excluded from offering her own testimony or that of others regarding rumors…

Read More Rumors of Relationship Held Not Hearsay in Employment Discrimination / Sexual Harassment Case
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In Matthews v. Hewlett-Packard Company, 15-cv-3922, 2017 WL 6804075 (S.D.N.Y. Dec. 22, 2017), a race discrimination/hostile work environment/retaliation case, the court explained and applied the principles applicable to the admissibility of expert testimony – under FRE 702/Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – as to emotional distress damages. In sum, the court…

Read More Court Precludes Expert Testimony on Emotional Distress in Race Discrimination Case
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The Southern District of New York’s recent decision in Robinson v. Vineyard Vines, LLC, No. 15CIV4972VBJCM, 2016 WL 845283 (S.D.N.Y. Mar. 4, 2016) provides an example of how the work product doctrine operates in the context of an employment discrimination/sexual harassment case. In this case, plaintiff alleged that another employee “repeatedly sexually harassed her and…

Read More Investigative Documents in Sexual Harassment Case Were Protected as Work Product
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