truth claim in New York

1996A party should not be permitted to assert a mental or physical condition in seeking damages or in seeking to be absolved from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim and the nature and extent of the injury or condition (Koump v Smith, 25 NY2d 287, supra).

1984By this is meant that “[a] party should not be permitted to assert a *** physical condition in seeking * * * to absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim” (Koump v Smith, 25 NY2d 287, 294 ; see, also, People v Al-Kanani, 33 NY2d 260, 264-265 , cert den 417 US 916 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's comment highlighting the defendant's failure to produce certain documentary evidence which he testified established the truth of his defense was not improper ( see People v Tankleff , 84 NY2d 992, 994 ; People v Wongsam , 105 AD3d 980, 981 ; People v Floyd , 97 AD3d 837, 837-838 ; People v Overlee , 236 AD2d 133, 143 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's comment highlighting the defendant's failure to produce certain documentary evidence which he testified established the truth of his defense was not improper ( see People v Tankleff , 84 NY2d 992, 994 ; People v Wongsam , 105 AD3d 980, 981 ; People v Floyd , 97 AD3d 837, 837-838 ; People v Overlee , 236 AD2d 133, 143 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's comment highlighting the defendant's failure to produce certain documentary evidence which he testified established the truth of his defense was not improper ( see People v Tankleff , 84 NY2d 992, 994 ; People v Wongsam , 105 AD3d 980, 981 ; People v Floyd , 97 AD3d 837, 837-838 ; People v Overlee , 236 AD2d 133, 143 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's other challenged remarks were either fair comment on the evidence ( see People v Ashwal , 39 NY2d 105, 109-110 ), a fair response to defense counsel's summation ( see People v Marcus , 112 AD3d 652, 653 ; People v Rogers , 106 AD3d 1029, 1030 ; People v Birot , 99 AD3d 933 ; People v Cox , 161 AD2d 724, 725 ), or do not require reversal as they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v Elder , 152 AD3d at 789 ; People v Bunting , 146 AD3d 794, 795 ; People v Hamilton , 135 AD3d 958 ).

2018The prosecutor's comment highlighting the defendant's failure to produce certain documentary evidence which he testified established the truth of his defense was not improper ( see People v Tankleff , 84 NY2d 992, 994 ; People v Wongsam , 105 AD3d 980, 981 ; People v Floyd , 97 AD3d 837, 837-838 ; People v Overlee , 236 AD2d 133, 143 ).

2015This court has found that a claimant who swears before a notary to the truth of his claim for unjust conviction satisfies the verification requisite (Bermudez v State of New York, 44 Misc 3d 605 [Ct Cl 2014]).

2011These circumstances do not constitute the substantial preliminary showing of material falsehoods or a reckless disregard of the truth required for a hearing (People v McGeachy, 74 AD3d at 990 ).

2007Seven years after Koump was decided, this Court was called upon to address the propriety of a motion to “interview” a medical expert with respect to his opinion letter during the discovery phase of litigation (Cwick v City of Rochester, 54 AD2d 1078 [1976]).

1996The court also recognizes that by placing a psychologist-client communication on the same footing as an attorney-client communication as opposed to a physician-patient communication a tension is created with the liberal policy of discovery where a party puts his physical or mental condition in controversy as stated in CPLR 3121 (see, Watson v State of New York, 53 AD2d 798 [1976]; Shalhoub v Viverito, 133 Misc 2d 765 [1986]).

1996The court also recognizes that by placing a psychologist-client communication on the same footing as an attorney-client communication as opposed to a physician-patient communication a tension is created with the liberal policy of discovery where a party puts his physical or mental condition in controversy as stated in CPLR 3121 (see, Watson v State of New York, 53 AD2d 798 [1976]; Shalhoub v Viverito, 133 Misc 2d 765 [1986]).

1980In the First Department in Greuling v Breakey ( 56 AD2d 540, 542 ) an action to recover damages for personal injuries alleging medical malpractice, the court held: "By commencing the action plaintiff put in controversy her physical condition; she cannot now limit that controvery to the medical records she wishes disclosed.” Following Allen v Crowell-Collier Pub.

1978Neither the fact that the plaintiff settled his case with the three physicians nor that the hospital has denied any employer-employee relationship with the physicians and has reasserted its position in its admission that the physicians were independent contractors, precludes the plaintiff from eliciting information at an examination before trial and/or introducing evidence at the trial, that the hospital in fact exercised sufficient control over the codefendants to make it vicariously liable for their negligence (see Mduba v Benedictine Hosp., 52 AD2d 450 ).

1977In a medical malpractice case brought for failure to diagnose and treat a cardiac condition and failure to take an electrocardiogram, the Second Department allowed discovery of an electrocardiogram of plaintiff taken by a physician other than defendant (Josephs v Oliver, 48 AD2d 688 ).

1975Even assuming the truth of the claim that the Village of Liberty’s Building Inspector had prior knowledge of the alleged violations, this factor is insufficient to confer liability upon the village because of his failure to act (Riss v City of New York, 22 NY2d 579 ; Motyka v City of Amsterdam, supra; Rivera v City of Amsterdam, 5 AD2d 637 ).

1975Even assuming the truth of the claim that the Village of Liberty’s Building Inspector had prior knowledge of the alleged violations, this factor is insufficient to confer liability upon the village because of his failure to act (Riss v City of New York, 22 NY2d 579 ; Motyka v City of Amsterdam, supra; Rivera v City of Amsterdam, 5 AD2d 637 ).

1975Even assuming the truth of the claim that the Village of Liberty’s Building Inspector had prior knowledge of the alleged violations, this factor is insufficient to confer liability upon the village because of his failure to act (Riss v City of New York, 22 NY2d 579 ; Motyka v City of Amsterdam, supra; Rivera v City of Amsterdam, 5 AD2d 637 ).

1975Nor is there any allegation in this complaint or indication in the record of such "positive action in assuming direction and control” of the situation on the part of the Building Inspector as would furnish a possible basis of liability (Smullen v City of New York, 28 NY2d 66, 72 ).