On November 12, 2020, the Second Department issued a decision in Countrywide Home Loans Servicing, L.P. v. Vorobyov, 2020 NY Slip Op. 06492, holding that an affidavit attesting to the content of business records without attaching them was inadmissible hearsay, explaining: Generally, in moving for summary judgment in an action to foreclose a mortgage, a... Read more »
Blogs
Posts Categorized: Evidence
Tax Estoppel Defeats Claim
On October 29, 2020, the First Department issued a decision in Shyer v. Shyer, 2020 NY Slip Op. 06213, holding that tax estoppel defeated a claim, explaining: In the summer of 2014, 2015, and 2016, Zyloware exercised its option to buy seven of Robert Shyer’s shares each year; it paid for each purchase over the... Read more »
Court Bars Party From Changing its Arguments Based on Doctrine of Judicial Estoppel
On September 15, 2020, Justice Ostrager of the New York County Commercial Division issued a decision in Pacific Alliance Asia Opportunity Fund L.P. v. Kwok Ho Wan, 2020 NY Slip Op. 33030(U), barring a party from changing its factual arguments on summary judgment based on the doctrine of judicial estoppel, explaining: At the outset of... Read more »
Defense Barred by Tax Estoppel
On August 20, 2020, the Fourth Department issued a decision in Rizzo v. National Vacuum Corp., 2020 NY Slip Op. 04693, holding that defendants were prevented by the doctrine of tax estoppel from denying that the plaintiff owned the percentage of the company reflected in the tax returns the defendants prepared, explaining: A party to... Read more »
Statements Made Counsel in an Internal Investigation Upon Which a Party Later Relied Are Party Admissions
On July 9, 2020, the First Department issued a decision in Angiolillo v. Christie’s, Inc., 2020 NY Slip Op. 03848, holding that statements made by a defendant’s counsel in an internal investigation upon which the defendant later relied were party admissions, explaining: The unequivocal statements by Christie’s outside counsel, set forth in the investigation documents,... Read more »
Judge Garaufis Grants In Part Motion to Preclude Transcript of 911 Call Where Victim Described Being Shot and Identified the Shooter
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 »
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 »
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