Miller v Lewis
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Miller v Lewis 2013 NY Slip Op 33920(U) June 12, 2013 Supreme Court, Kings County Docket Number: 11358/09 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Pegc 1 otGG 11259/2009 Dcci>ion ond order ..... OTO. G/12113 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: PART 16 ---------------- -- ------------------------x SHIRLEY MILLER, by YEHUDA MILLER and MALKA MILLER, Guardians of the Person and Property of SHIRLEY MILLER Pursuant to the Laws of the State of Israel, Plaintiffs, Decision and order Index No. 11358/09 - against HENRY F. LEWIS, DUANE READE SHAREHOLDERS, LLC, DUANE READE INC., & DUANE READE GENERAL PARTNERSHIP, Defendants, June 12, 2013 ----------------------------- -------------x PRESENT: HON . LEON RUCHELSMAN The plaintiff has moved pursuant to CPLR §2221 seeking to reargue portions plaintiff of to seeks two prior reargue a decisions. Specifically, decision which permitt ed t he the introduction of evidence that the plaintiff may have been talking on her cel l phone at the time of the acciden t Miller v. Lewis, _Misc2d_ , plaintiff seeks to 963 NYS2d 837 reargue the (see, Miller ex rel. [2013] ) . portion of a Further, t h e decisi on which prohibited the introduction of evidence concerning allegations of fabrication on the part of t he defendants Miller v. Lewis, _Misc2d_, has opposed the motion. arguments held . 963 NYS2d 533 (see, [20 13]). Miller ex rel. The defendant Papers were submitted by the parties and After reviewing all the arguments this court now makes the following determination. As recorded in the prior decisions, on December 19, 2008 the plaintiff Shirley Mill~r'ttSi O'l ~& ~~ L\ hit by a truck driven by defendant .. .... ;.._ i~ \'\i,~ -, 1-'.' ; Printed: 6129/2015 [* 2] Pogc 2of GG 11350/2009 Docbion ond ordcf .....DTD G/12113 Henry Lewis at the intersection of Ninth Avenue and West 48 th Street in New York County. The court permitted the introduc tion of evidence that the plaintiff may have been talking on her cell phone at the time of the collision to allow an inference of negligence. However, the could excluded any evidence offered to demonstrate that Duane Reade employees arrived at the scene and together with Mr. Lewis fabricated how the accident happened. argues that first, The plaintiff the cell phone decis ion is improper since it requires the jury to impose an inference upon an inference. the jury must fir~t Thus, infer the plaintiff was talking on her cell phone when the accident occurred and then must further infer that such cell phone activity caused her to be inattentive and hence negligent . allowances The of plaintiff circumstantial further argues evidence to that support the court's plaintiff's possible negligence is inconsistent with the refusal to permit circumstantial evidence to prove fabrication, especially since the evidence of such fabrication, it is argued, is far more compelling. · The defendants oppose both motions arguing that first successive inferences are permissible, therefore a jury could infer both cell phone use and then negligence. Second, they argue the court was correct in excluding any evidence of fabrication since it is purely speculative and not supported by any evidence at all. 2 Printed: 6129/201 5 [* 3] Pege 3 of 66 11358/2009 Decision and order ...OTO 6/12113 Conclusions of Law In Justice v. Lang, 52 NY 323, 7 Sickles 323 [1873] the Court of explained Appeals that evidence "presumptive and the presumptions or proofs to which it gives rise are not indebted for their probative force to any rules of positive law; but juries, in inferring one fact from others which have been established, do nothing more than apply, under the sanction of the law, a process of reasoning, the force of which rests on experience observation, and such inferences are presumptions of fact Thus, an inference permits a conclusion from Albany, NY2d 13, 42 particular fact facts has jury to inf er a already established 396 NYS2d 612 been the (id) . and draw a (Martin v. [1977]) . 1 presented, fact City of Therefore, jury and may draw if a any reasonable conclusion that flows from the first fact. In this case, it is undisputed that Ms . Miller was speaking on her cell phone shortly before the accident. That 'fact' based upon the precedents and reasoning elaborated upon in the prior 'Notwithstanding the quoted language in Justice v. Lang (supra) in these contexts a presumption is generally defined as a set of facts which compel a party. further conclusion that may be rebutted by the opposing An inference on the other hand is defined as a set of facts which permit a jury to reach a conclusion regarding those facts {Kilburn v . Bush, 223 AD2d 110, 646 NYS2d 429 [4m Dept . , 1996]). Indeed, inferences are sometimes referred to as permissive presumptions (see, New York Evidence Handbook 2d Edition, Martin, Capra and Rossi, Section §3.l, Footnote 13). 3 Printed: 6/29/2015 [* 4] Page4 of 66 decision permits the inference that she remained speaking on the cell phone at the moment of impact. The inference is reasonable, close in time to the established 'fact' a nd a logical application and extension of the established fact. Of course, that inference, in isolation is not probative of any material issue relevant to the case. Rather, a further inference must be employed by the jury to then infer or conclude that such cell phone use was negligent and contributed to the accident. The plaintiff argues the further inference is improper. It is true that there are older cases introduction of 'inferences on inferences'. that prohibit For example, in Lamb v. Union Ry. Co. Of New York City, 195 NY 260, 88 NE 371 [1909] individual, Lamb, There no witnesses were the an was killed when hit by defendant's trolley. to the accident although a passenger testified she heard the motorman "holler" and apply the brake just before the accident. The question at trial was whether any inferences could be drawn whether or not Lamb was contributorily negligent . The court noted that for the jury to conclude Lamb was not negligent it would be necessary to establish that the decedent was unaware trolleys drove on the tracks where he had obviously been walking, that he had been walking away from the trolley, did not see it coming and did not commit suicide. The court concluded it would be "peculiar, unnatural and inexplicable" to conclude, based on those necessary inferences, that the decedent committed no 4 Printed: 6/29/2015 [* 5] 113~ Pege5ol 66 Ooctslcn aJKJ ocoer .... OTO. 6/1Z'13 negligence . The court explained that inferences cannot be based upon inferences, clear, direct rather evidence, presumptionn (id) . "every inference must and not upon some stand upon some other inference or The court further explained that the inference decedent did not see the trolley was based upon an inference that he was facing south. However, there was no evidence underlying any of these inferences. Thus, the inferences bolster is the oft-cited limited to other substantive facts . Inc., 21 AD2d 675, addressed the issue. refrain prohibiting where where none of Again, in McCabe v. Queensboro Farm Products NYS2d 91 them [2d inference upon cases 250 each inferences are seeks grounded Dept . , 1964] to in any the court In that case the plaintiff was i njured when he was hit by a piece of scrap wood while working on a scaffold near a roof. The plaintiff sued the roofer al l eging the roofer had negligently left the scrap wood there and high winds blew it off striking plaintiff who fell off the ~caffold. The court dismissed the lawsuit finding there was no evidence the scrap wood originated from the roof and that even if it did there was no evidence it was the responsibility of the roofer who had already left the job site. Further, there was no evidence the winds caused the wood to strike the plaint i ff and indeed there was evidence plaintiff fell off the scaffold because he lost his balance. Thus, liability could only attach to the roofer if each inferenc e, based upon every other 5 Prirlod: 61.19/2015 [* 6] Page 6 of 66 113!>8/2000 Oec1s1on 3nd ordtr ..... OTO. 6112113 However, inference, interlocked to form a coherent set of facts. that is precisely the impermissible "rationalization of inference upon inference" (id) which cannot be countenanced. However, where the underlying groundwork from which further inferences flow is an established fact then there is no impediment to permitting inferences upon inferences. As stated by Wigmore: "it was once suggested that an inference upon an inference will not be permitted, i.e . , that a fact desired to be used circums t antially must itself suggestion be has established by been repeated testimonial by several evidence, courts and and thi s sometimes actually has been enforced. There is no such orthodox rule; nor can there be . If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder the defendant's gun is found discharged. From this we infer that he discharged it, and from this we infer that it was his bullet that struck and killed the deceased. Or the defendant is shown to have been sharpening a knife. From this we argue that he had a design to use it upon the deceased, and from this we argue that the fatal stab was the result of this design. In these and innumerable daily instances we build up inference upon inference, and yet no court (until in very modern times) ever thought of forbidding it. All departments of reasoning, all scientific work, every day's life and every day's trials proceed upon such data" (John Henry Wigmore, Evidence in Trials at Common Law §41 at 1106~11 (Peter Tillers rev. ed . , 1983). 6 Prirted: 6129/2015 [* 7] Pogc 7 ol66 113Se/2009 Occioion ond order .....OTO. G/12/13 Therefore, since it is undisputed that Ms. Miller had been talking on her cell phone prior to the accident, the further inferences that she continued to do so and was possibly negligent as a result . are reasonable conclusions that may be drawn. The above analysis is precisely the reason any evidence of fabrication cannot be admitted as evidence. There is no underlying established fact from which any reasonable inferences may b e drawn. It is true that the driver Henry Lewis continued to d rive down the block after the accident, Duane Reade, h o wever, did not call 911 and managed to call there are no facts presented that form a starting point where fur ther inferences may follow. The plaintiff argues the fact Duane Reade personnel arrived at the scene and spoke wi th Lewis before the police and now present a version of the accident that materially differs from circumstantial evidence of fabrication. Lewis First, demonstrates as noted in the p rior decision, there is no evidence that Lewis ever engaged in any fabrication. Lewi s has always maint ained the accident took place in t he way he first to l d the police shortly after the a cc ident . Thus, his persistent consistency surely d oes not d emonst rate any e vi dence of fabrication. The plaintiff argues t hat Lewis only presented t hat version to the police after speaking with Duane Reade supervisors and therefore "had an opportunity to come up with a version o f t he acc ident that favored Duane Reade" Moti on to reargue, p age 7). (Plaint iff 's However, that argument i s u ndermined 7 Primed: 6/29/2015 [* 8] Poge 8 of 66 11358/2009 Deoioion ond order .....OTO. G/12113 by the very fact Duane Reade no longer adopts that version of the happening of the accident. It is pure speculation to argue that Duane Reade first influenced Lewis to fabricate how the accident happened onl y to abandon it later, leaving Lewis to remain stuck with such fabrication. The trial strategy of defendants concerning these inconsistent positions has already been addressed in the prior decisions. In any event, it is clear that there are no fac ts from which any inferences concerning fabrication may be presented. Consequently, based on the foregoing, the motions seek ing reargument are denied. A few remaining issues must now be addressed. The court held that there was no direct evidence that Ms. Miller was talking on her cell phone at the time of the accident. Thus, the argument contained in defendant's opposition papers (page 11) that "all of these pieces of direct ... evidence provide . .. the conclu sion that Ms. Miller was on her phone" can only refer to the undisputed facts such as the size of the truck and the location of the accident . Further, the defendant noted that a 'human factors expert' will be expected to testify "that Ms. Miller was engrossed in somethingusing her cell phone-that prevented her from paying attention ... " (id ) . The court invites the parties to present arguments, briefs and orally, expert witness evidence. in concerning the appropriateness of calling an to bolster what has been deemed circumstantial The parties may contact chambers to dis cuss a briefing 8 Priried: 6129/2015 [* 9] Page 9 of 66 1135lll2009 Deelsion ond order .....OTO. 6/12/13 schedule and/or a conference to further explore the matter. In addition, at any conference or in conjunction with oral arguments mentioned above, the court seeks a witness list from both parties with a brief explanation concerning the nature of the expected testimony of each witness. Lastly, the remaining motions concerning the introduction of photographs of the plaintiff and the motion regarding cumulative testimony (and the motion to preclude testimony of Malka Miller, if relevant) will be addressed. So ordered. ENTER: DATED: June 12, 2013 Brooklyn N.Y. Hon. JSC f \LED JUN 1 7 '1.0'3 l\KGS c.outtTI (.\i\l~S Off\(£ Q*J =6 UV l / Nnr £/OZ 9 Pnnted· 6i29/2015
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