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Expert Opinion Must Be Based On Facts in Record or Personally Known.

“A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence.  …[O]pinion evidence must be based on facts in the record or personally known to the witness …”  D’Andria vs Pesce, 2011-03506, Index No. 16320/02 Second Dept. 2-20-13

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 OR THE NOTICE REQUIREMENTS OF RPAPL 1303 (SECOND DEPT).
PLAINTIFF DID NOT DEMONSTRATE DEFENDANT WAS PROPERLY SERVED OR EVEN NOTIFIED OF THE FORECLOSURE ACTION; THE COURT NEVER HAD JURISDICTION OVER DEFENDANT AND THE MOTION TO EXTEND THE TIME TO SERVE HER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
JURY SHOULD HAVE BEEN INSTRUCTED ON LESSER INCLUDED OFFENSES, EVIDENCE OF DEFENDANT’S PRETRIAL SILENCE SHOULD NOT HAVE BEEN ADMITTED, PROSECUTORIAL MISCONDUCT REVIEWED IN THE INTEREST OF JUSTICE, MISCONDUCT ALONE SUFFICIENT TO WARRANT REVERSAL (SECOND DEPT).
ALTHOUGH THE SEARCH WARRANT DESCRIBED THE RESIDENCE AS HAVING TWO ENTRANCE DOORS, ONE LEADING TO THE AREA WHERE THE INFORMANT SAW THE FIREARMS AND ONE LEADING TO A STAIRWAY TO THE SECOND FLOOR (WHICH THE INFORMANT HAD NOT VISITED), THE WARRANT WAS NOT SEVERABLE AND WAS THEREFORE OVERBROAD (SECOND DEPT). ​
A HEARING IS REQUIRED TO DETERMINE WHETHER DEFENDANT WAS PROPERLY SERVED IN THIS FORECLOSURE ACTION AND WHETHER DEFENDANT SHOULD BE ESTOPPED FROM CONTESTING SERVICE (SECOND DEPT).
MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT).
THE OWNER OF THE DEFECTIVE LADDER WHICH CAUSED PLAINTIFF’S INJURY ALLEGED THE LADDER WAS PURCHASED AT A PARTICULAR HOME DEPOT STORE, IN THE FACE OF PROOF THE STORE DID NOT OPEN UNTIL YEARS AFTER THE ALLEGED PURCHASE, THE OWNER OF THE LADDER ALLEGED THE LADDER WAS EITHER PURCHASED AT A DIFFERENT TIME OR AT A DIFFERENT HOME DEPOT STORE, HOME DEPOT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF WAS STRUCK BY A LADDER WHICH FELL BECAUSE IT WAS PLACED ON A SLIPPERY MAT; PLAINTFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT ON THE LABOR LAW 241(6) AND 200 CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

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Failure to Plead Res Ipsa Loquitur Does Not Preclude Application of Theory... Proof Requirements for Constructive Trust.