Category Archives: Evidence

Judge Doubts Accuracy of Divergent Testimony by Both Sides:

This was originally posted on the SGR Blog.

Would the Court Nevertheless Resolve the Discrepancies?

The resolution of a case often is a matter of weighing the credibility of witnesses by the trier of fact (judge or jury). But what is a Judge to do when the testimony of all of the competing witnesses raises questions of accuracy and credibility?

As prologue the Court stated: “This case involves a confused tale. The witnesses’ testimonies diverged significantly. The court was not satisfied that any of the three main witnesses’ testimonies were completely accurate. Moreover, the parties presented fuzzy dates rather than exact ones. So, the recitation of the facts…below implicitly resolves the numerous discrepancies in the testimony. These findings of facts are based upon the credible evidence and the fair inferences made therefrom.”

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Personal Injury Plaintiff Had Back Surgery Before Independent Medical Examination:

This was originally posted on the SGR Blog.

Did Court Properly Impose Sanction for Spoliation of Evidence?

Scene set: A tenant suffers a back injury in a ceiling collapse. The owner demands an independent medical examination. Before the exam, the injured party has back surgery. The owner cries foul.

Was the condition of her body the kind of evidence that was subject to a spoliation (destruction of evidence) analysis?

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Was Traffic Stop, Search & Seizure Legal:

This was originally posted on the SGR Blog.

Court of Appeals Disagrees (4-3)

Our Courts regularly hold evidentiary hearings to determine whether evidence seized by the police without a warrant should be suppressed. A recent case reached our State’s highest Court after the Supreme Court denied a motion to suppress drugs found during a traffic stop– and the Appellate Division agreed. Four Judges of the Court of Appeals affirmed in a brief opinion. But three Judges dissented in a far more detailed recitation of the facts followed by an even more comprehensive legal rebuttal.

Reginald Blandford appealed the denial of his motion to suppress marijuana found during a traffic stop of his vehicle. In the course of a stop predicated on the observation of traffic violations—the legality of which (according to the majority decision) Blandford did not contest before the Court of Appeals.

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Schiele Portrait of Wife Title Dispute Meets the Doctrine of “Tax Estoppel”

This was originally posted on the SGR Blog.

Was New York Rule of Evidence Dispositive of Ownership of Austrian Painting?

Our news media regularly report on disputed claims to artwork taken during World War II. But, as a recent case illustrates, the passage of time and the crossing of national borders implicate many procedural and evidentiary rules that are unrelated to a particular painting’s provenance or country of origin.

In 1917, Austrian artist Egon Schiele made a portrait of his wife Edith. In 1964, the artwork was bought by art collector Robert Lehman, Sr. from an exhibition at an art gallery in London, England. And, later that year, Lehman, Sr. gifted the artwork to his son, Robert Owen Robin Lehman. In 2016, Robin gifted the artwork to the Robert Owen Lehman Fund, Inc., his eponymous foundation. After the Fund consigned the artwork to Christie’s for auction, two groups asserted competing claims of ownership of the artwork, alleging that the artwork left the possession of its rightful owner during the Holocaust. Israelitische Kultusgemeinde Wien represented the Susan Zirkl Memorial Foundation Trust, which claimed ownership of the artwork as an heir of Karl Maylander. Robert Rieger Trust and Michael Bar claimed ownership as heirs of Heinrich Rieger.

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The First Department’s Jan. 29 ‘spoliation trifecta’

By Victor M. Metsch

Victor M. Metsch is Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP.  This article was originally published by ThomsonReuters.

On Jan. 29, 2013, the First Department released three decisions that addressed issues related to “spoliation” of evidence that, taken together, constitute a primer on how that Appellate Division approaches both the claims of loss, destruction or failure to preserve evidence, on the one hand, and the consequences and sanctions for the negligent or intentional failure to maintain and produce documentary and other proof, on the other.

In Alleva v. United Parcel Service, Inc., 2013 NY Slip Op 00409 “a security guard employed by defendant Pitt [Investigations, Inc.] at a UPS center, [sought] to recover for injuries he sustained when he allegedly was assaulted by defendant [Gary] Calwood, a UPS employee, while searching Calwood’s belongings.” Alleva sought, and UPS was unable to produce, its “center file” on Calwood – a file that “would document any previous disciplinary issues[.]” Continue reading