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 »
Blogs
Posts Categorized: Evidence
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 »
Court Uses Doctrine of Falsus in Uno, Falsus in Omnibus to Find Whole of Witness’s Testimony Not Credible
On October 2, 2014, Justice Emerson of the Suffolk County Commercial Division issued a decision in Motherway v. Retail Unlimited Maintenance or Remodel, Inc., 2014 NY Slip Op. 32673(U), applying the principle of falsus in uno, falsus in omnibus to disregard the entirety of a witness’s testimony. In Motherway, the plaintiff sought damages for the... Read more »
Right To Counsel At Interrogation Cannot Be Prospectively Invoked And Must Be Invoked Personally, Not by Counsel
On May 20, 2014, the Second Circuit issued a decision in USA v. Medunjanin, No. 12-4724, affirming a decision by the EDNY that a defendant may not prospectively invoke the right to counsel during an interrogation and that the right to counsel, even when invoked, can be waived. Medunjanin was convicted “of terrorism-related crimes involving a conspiratorial plan,... Read more »
Evidence Inadmissible Under Dead Man’s Statute Admissible In Opposition to Summary Judgment
On March 31, 2014, Justice Schmidt of the Kings County Commercial Division issued a decision in Peck v. Mitchell, 2014 NY Slip Op. 50715(U), applying the Dead Man’s Statute on a motion for summary judgment. In Peck, the plaintiff asserted claims relating to ownership of her home. The defendant moved for summary judgment on the plaintiff’s... Read more »
Second Circuit Remands And Reassigns ADA Case After Judge Conducts His Own Investigation And Determines Plaintiff’s Counsel Not Deserving Of Attorneys’ Fees
In a March 11, 2014, summary order, the Second Circuit (Katzmann, C.C.J., Sack, C.J., and Rakoff, D.J.) vacated an order denying the plaintiff’s motion for attorneys’ fees under the Americans With Disabilities Act (the “ADA”). The court also remanded and reassigned the case because Eastern District Judge Sterling Johnson, Jr. had conducted his own investigation... Read more »