Posted by Solomon N. Klein, Litigation Partner In a fact pattern echoing a law school Evidence Exam, Judge Garaufis granted in part and denied in part competing motions in limine regarding admissibility of an emergency 911 call where the victim described being shot by the defendant. United States v. Shipp, 19 CR 29 (E.D.N.Y. Mar.... Read more »
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Posts Categorized: Evidence
Plaintiff Not Entitled to Summary Judgment on Guaranty When it Could Not Be Authenticated by a Disinterested Witness
On February 13, 2020, the First Department issued a decision in Galpern v. Air Chefs, L.L.C., 2020 NY Slip Op. 01021, holding that a plaintiff was not entitled to summary judgment on a guaranty because it could not be authenticated by a disinterested witness, explaining: As for defendants’ arguments under the dead man’s statute, plaintiff... Read more »
Court Declines to Apply Tax Estoppel on Summary Judgment
On January 28, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Shyer v. Shyer, 2020 NY Slip Op. 30252(U), declining to apply the doctrine of tax estoppel on summary judgment, explaining: Under the doctrine of tax estoppel, a party to litigation may not take a position contrary to a... Read more »
First Department Endorses Sampling in RMBS Put-Back Litigation
On January 16, 2020, the First Department issued a decision in Ambac Assur. Corp. v. Countrywide Home Loans Inc., 2020 NY Slip Op. 00367, endorsing the use of sampling in RMBS put-back litigation, explaining: The court correctly denied the motion to preclude Ambac from using statistical sampling to prove its breach of contract claims in... Read more »
First Department Approves Sampling in RMBS Actions
On September 17, 2019, the First Department issued a decision in Home Equity Mtge. Trust Series 2006-1 v DLJ Mtge. Capital, Inc., 2019 NY Slip Op 06576, holding that sampling was appropriate to determine both liability and damages in RMBS put-back actions, explaining: The court correctly granted plaintiffs’ motion and denied defendant’s motion regarding the... Read more »
Court Grants Adverse Inference on Summary Judgment for Assertion of Fifth Amendment Rights
On September 5, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Knox, LLC v. Lakian, 2018 NY Slip Op. 32191(U), granting an adverse inference against a party that asserted its Fifth Amendment rights, explaining: Plaintiffs also ask this Court to draw a negative inference against Mr, Lakian. During Mr. Lakian’s deposition... Read more »
Magistrate Judge Orenstein Denies Government Motion to Bar Subpoena Recipient From Disclosing Existence of Subpoena And Directs That Future Requests To Seal Such Motions Be Of Limited Duration
Posted by Solomon N. Klein, Litigation Partner Magistrate Judge James Orenstein continues his series of influential rulings on electronic surveillance and evidence gathering. (In re Grand Jury Subpoena, 18-MC-0334 (E.D.N.Y. Feb. 5, 2018) (JO)). In this recent ruling, Magistrate Judge Orenstein denied a government request under the Stored Communications Act, 18 U.S.C. § 2701, et... Read more »
Judgment Debtor Bound By Information on Original Tax Returns, Not Later-Amended Returns
On August 31, 2015, Justice Singh of the New York County Commercial Division issued a decision in Matter of Northwest 5th & 45th Realty Corp. v. Mitchell, Maxwell & Jackson, Inc., 2015 NY Slip Op. 31660(U), holding that a judgment debtor was bound by the information contained in his federal tax returns as originally filed... Read more »
CEO Should Have Been Allowed to Testify Regarding Damages
On February 3, 2015, the First Department issued a decision in Wathne Imports, Ltd. v. PLR USA, Inc., 2015 NY Slip Op. 00830, holding that a party’s CEO should have been allowed to testify regarding that party’s damages. In Wathne Imports the trial court granted the “defendants’ motion in limine to preclude plaintiff’s CEO from... Read more »
Testimony Regarding Documents Precluded by Best Evidence Rule
On November 13, 2014, the First Department issued a decision in Shanmugam v. SCI Engineering, P.C., 2014 NY Slip Op. 07749, affirming a trial court’s exclusion of evidence under the best evidence rule. In Shanmugam, the trial court precluded the defendant “from presenting testimony concerning the value of defendant company’s carry-forward contracts, accounts receivable, and... Read more »
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