Page 4 - The Suffolk Lawyer - December 2020 - Vol. 35, No. 8
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4                                                          THE SUFFOLK LAWYER - December 2020


                                                                   THE PRACTICE PAGE

        Judicial Notice Miracles on 34th Street



        By Hon. Mark C. Dillon                er mentioned the statutory basis for         and  sunsets,  scientific  properties,  son to whom the letters were addressed exist-
                                              him doing so, CPLR 4511 (known               weights and measures, undisputed  ed in reality, or that Kringle was “the” Santa
          A classic holiday movie is Miracle on 34th  then as  C.P.A. 344-a). Perhaps      court records, geographic loca-  Clause to whom the children had written. The
        Street, starring Maureen O’Hara, John Payne,  Kringle’s attorney’s motion for a    tions, census statistics, travel dis-  letters were of no probative value to the dis-
        Natalie Wood, and Edmund Gwenn, made in  directed  verdict, with  citation  to     tances, currency exchange rates
        1947. It involved a man named Kris Krin-  the relevant practice statutes, was      and known historical facts.   positive issue of the case (People v. Palencia,

        gle who was employed at the Macy’s flag-  cut from the movie during editing.         Judicial notice of a matter may   130 AD3d 1072, 1074-75), which was wheth-
        ship store on 34th Street during holiday time.   Readers of CPLR 4511 should       be taken at any stage in a proceed-  er Kringle was the Santa Clause or someone
        Kringle claimed to be the real Santa Clause  take care of the statute’s constitu-  hon. mark c. DiLLon  ing (Caffrey v North  Arrow  Ab-  in need of psychiatric commitment. The gov-
        and faced potential commitment to a psychi-  ent parts that distinguish between    stract & Settlement Services, 160   ernment’s possession of the children’s letters
        atric hospital as a result. We may assume that  what “shall” and what “may” be judicially  AD3d 121, 127), which is why the judge in   made no difference to the discrete question
        because Macy’s was located in Manhattan,  noticed. Judicial notice shall be taken by a  Miracle  on  34th  Street  could  consider  the
        the case to commit Kringle was venued at  court of the common law, public statutes, and  dead letters from the Post Offi ce at the last   that needed to be decided by the court.
        the Supreme Court, New York County. The  constitutions of the United States and its in-  moments of Kringle’s trial.  Assuming the tri-  The time for appealing Justice Harper’s or-
        matter went to a trial where Kringle could  dividual states and territories, but not of the  al determination was based on judicially-no-  der to the First Department passed in 1948.
        avoid involuntary commitment only if able to  organization or management of the state or its  ticed letters, was that determination correct?  If, however, there were a stay and the Kring-
        prove that he was the one true Santa. Kringle  agencies, or of local and county laws (CPLR  May the government’s mere possession of   le determination is still viable, appealed, and
        lacked corroborative evidence. The trial was  4511[a]). Judicial notice may be taken by a  letters written to one recipient (Santa) ad-  reversed, Hollywood can produce a post-ap-
        highly-publicized. Moments before a trou-  court at its own initiative of federal, state, and  dressed to the same place (the North Pole)
        bling oral decision was to be rendered from  foreign statutes, resolutions, and regulations,  qualify as indisputable evidence of the ad-  peal sequel to Miracle on 34th Street, with a
        the bench by Justice Henry Harper, a mail  but shall be taken of them if requested by a  dressee’s existence, or alternatively, did the  better analysis of CPLR 4511 upon remittal.

        sorter from the Post Office delivered to the  party, if properly documented and upon no-  court commit reversible error by allowing   Merry Christmas, Happy Chanukah.
        court multiple bags of dead letters addressed  tice to all parties (CPLR 4511[b]). The fore-  the letters into evidence on Kringle’s behalf?
        to Santa Clause — proof in the official cus-  going regards matters of law.  Beyond that,  The answer is that judicial notice was inap-  Note: Mark C. Dillon is a Justice at the

        tody of the U.S. government that Santa exist-  judicial notice may be taken of matters of fact  propriate. The existence of the letters proved,   Appellate Division, 2nd Department, an
        ed. Justice Harper dismissed the case against  for which there can be no reasonable dispute.  at best, that children believed there was “a”
        Kringle to the applause of all present in the  A Westlaw search identifi es examples as in-  Santa Clause and had acted upon that belief   adjunct professor of New York Practice at
        courtroom. In effect, the judge took judicial  cluding dates and days of the week, offi cial  by mailing material at offi cial postal deposi-  Fordham Law School, and an author of CPLR
        notice of the letters, though the movie nev-  climatological  data,  the timing of  sunrises  tories. The letters did not prove that the per-  Practice Commentaries in McKinney’s.


                                                                   PERSONAL INJURY


        Hearsay Allowed If Objection Not Raised


        By Paul Devlin                        and-run accident in Queens, New                Plaintiff commenced the action  citing Rosenblatt  v.  St. George Health and
                                              York. The plaintiff could not give           against John Doe, the driver of the  Racquetball Assoc., LLC, 119 AD3d 45, 54-
          A trial  court  may  consider  hearsay ev-  a clear description of the vehicle   vehicle, and AT&T Services, Inc.,  55  [internal quotations  omitted].  Here,  “[t]
        idence  if none of the  parties  object.  The  involved but was able to see it was   the registrant of New York license  he Supreme Court should have not denied
        Second Department  issued an opinion on  a light-blue van or pick-up truck.        plate number GLG5917.   AT&T  AT&T’s motion on the ground that the GPS
        this  issue  dated Oct.  28, 2020.  See  Cos-  He also took down the license       moved for summary judgment and  document was inadmissible since the plain-
        tor v. AT&T Servs., Inc., 2020 NY Slip Op  plate number as either GLG5917          dismissal of the complaint on the  tiff never raised the issue in opposition to the
        0698. The  Costor case involved a pedes-  or GLG5919;  but  he was uncer-          basis that it did not own the vehicle  motion.” Costor supra, citing Bank of N.Y.
        trian plaintiff suing for injuries from a hit-  tain of the last digit.  PauL DevLin  involved in this accident. In sup-  Mellon v. Gordon, 171 AD3d 197, 202.
                                                                                   port of its motion, AT&T submitted employ-  The Costor Court went on to hold that re-
                                                                                   ee  affidavits  averring  that  the  license  plate  gardless  of the  hearsay  evidence,  the  other

                                                                                   in question was registered to a white AT&T  evidence submitted by  AT&T established,
                      STAY UP TO DATE                                              pickup truck at the time of the accident, that  prima facie, that its vehicle was not involved
                                                                                   the vehicle was relocated to Connecticut sev-
                                                                                                                         in the subjection accident. In opposition,
                       ON THE GO WITH                                              eral months before the accident, and that the  plaintiff failed to raise a triable issue of fact
                                                                                   New York license plate was removed and re-
                                                                                                                         as to the identity of the driver or owner of
                                                                                   placed by a Connecticut license plate before  the vehicle which struck him. As such, the
                                                                                   the accident. AT&T did not use the New York  Supreme Court should have granted AT&T’s
                                                                                   license plate on another vehicle and kept it  motion and dismissed the complaint. Accord-
                                                                                   in its possession until an AT&T employee  ingly, the second department reversed on the
                                                                                   sent the license plate to plaintiff’s counsel  law, with costs, and granted the motion seek-
                                                                                   in connection with this action. The hearsay  ing dismissal of the complaint against AT&T.
                                                                                   issue came into play regarding a document   This opinion is a good reminder to coun-
                                                                                   submitted by AT&T in support of its summa-  sel handling civil cases to make a record of
                                                                                   ry judgment motion. The document allegedly  any objection regarding hearsay evidence
                                                                                   demonstrated through the use of global po-  submitted by an adversary. Without an objec-
                                                                                   sitioning system (GPS) data, that the subject  tion, the court may decide the case based on
                                                                                   vehicle made stops only in Connecticut on  hearsay evidence, and that decision will like-
                                                                                   the day of the accident.              ly be upheld.
                                                                                     The Supreme Court denied AT&T’s mo-
                                                                                   tion on the ground that the GPS document   Note: Paul Devlin  is an associate  at
                                                                                   was inadmissible absent proper foundation  Gentile & Tambasco where his practice fo-
                                                                                   and information regarding its reliability. On  cuses on personal injury litigation. He is an
                                                                                   appeal, the Second Department held that “[I]  active  member of  the  Suffolk  County  Bar
                                                                                   n civil cases, inadmissible hearsay admitted  Association,  serving  on the  board of di-
                                                                                   without  objection  may  be  considered  and  rectors and as the co-chair of the Supreme
                                                                                   given such probative value as, under the cir-  Court  Committee.  He  may  be  reached  at
                                                                                   cumstances, it may possess.” Costor supra,  (631) 760-0923.
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