its watery contents into the parking lot. Veronica alleged that the ice was formed on the night of her injury when that water froze in the parking lot. Following discovery, defendants moved to preclude the videotaped bucket brigade and the investigator's testimony from trial. The motion was granted, a defendant's verdict secured and this appeal followed.
Conceding that a party is "permitted to introduce evidence of a habit or routine practice 'to allow the inference of its persistence and hence negligence on a particular occasion'", AD2 agrees with the trial court that there were an insufficient number of such instances to allow the inference here, i.e., only 7 over six weeks, the first beginning more than two months after Veronica's fall.
Habit has been a bête noire in New York evidence for years and, most particularly in negligence cases. Dean Prince noted that Wigmore also feared that evidence of habit was too close for comfort to character evidence, the latter being inadmissible in civil cases. In Halloran., 41 N.Y.2d 386, 392 (1977), cited by AD2 here, that rule was relaxed. "[T]he statement that evidence of habit or regular usage is never admissible to establish negligence is too broad[.]"
When is habit admissible? From what we can see, only when used by defendants to show habitually non- negligent behavior, as when charged with giving faulty informed consent warnings [Rigie, 148 A.D.2d 23 (2d Dep't 1989)] or improper anesthesia injections [Rivera, 8 N.Y.3d 627, 635 (2007)], two instances relied on in Gucciardo.
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