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Allegations Not Supported by Record Could Not Defeat Plaintiff-Pedestrian’s Motion for Summary Judgment/Plaintiff’s Mental Health Records Discoverable Where Plaintiff Alleges Anxiety and Mental Anguish After Being Struck by Defendant’s Van

Plaintiff was struck by defendants’ van as she was crossing a street.  In opposing the plaintiff’s motion for summary judgment, defendants claimed plaintiff was crossing when the signal was flashing the “don’t walk” icon, was talking on a cell phone, and “jumped” in front of defendants’ van.  In determining Supreme Court should have granted plaintiff’s motion for summary judgment, the Second Department wrote:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that she entered the crosswalk after exercising reasonable care and was walking within the crosswalk with the pedestrian crossing signal in her favor, and the defendant Kilakos was negligent in failing to yield the right of way (see Traffic Rules and Regs of City of NY [34 RCNY] § 4-03[a][1][i]; [c][1], [2];…). The assertions made by the defendants in opposition lacked an evidentiary basis in the record and, thus, failed to raise a triable issue of fact …. Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability.

The Second Department also determined Supreme Court properly granted defendants’ cross motion to compel the disclosure of plaintiff’s mental health records because she sought damages for anxiety, mental anguish and loss of enjoyment of life. Moreira v MK Travel & Transp, Inc, 2013 NY Slip Op 03645, 2nd Dept, 5-22-13

TRAFFIC ACCIDENTS, PEDESTRIANS

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ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT.
MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT).
PLAINTIFF ENTITLED TO AN EQUITABLE LIEN ON REAL PROPERTY WHICH WAS IDENTIFIED BUT NOT DESCRIBED IN THE MORTGAGE WHICH HAD BEEN ASSIGNED TO PLAINTIFF (SECOND DEPT).
UNDER THE CIRCUMSTANCES, SUPREME COURT SHOULD HAVE GRANTED THE DEFENSE AND PROSECUTION’S JOINT REQUEST TO HAVE THE DEFENDANT’S COMPETENCE TO STAND TRIAL EVALUATED; ONCE A DEFENDANT IS DEEMED COMPETENT TO STAND TRIAL, THE DECISION WHETHER TO PRESENT AN INSANITY DEFENSE IS THE DEFENDANT’S, NOT THE COURT’S, TO MAKE (SECOND DEPT).
QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED.
QUESTION OF FACT WHETHER INSURED’S 17-MONTH DELAY IN NOTIFYING INSURER OF THE OCCURRENCE WAS BASED UPON A GOOD FAITH BELIEF OF NONLIABILITY.
THERE WAS NO EVIDENCE DEFENDANT KNEW THE COMPLAINANT WAS A 14-YEAR-OLD RUNAWAY WHEN SHE STAYED AT HIS HOUSE; THE EVIDENCE OF KIDNAPPING WAS LEGALLY INSUFFICIENT (SECOND DEPT).
THE CRITERIA FOR PRE-ANSWER DISMISSAL OF THE COMPLAINT BASED UPON DOCUMENTARY EVIDENCE AND IN THE INTEREST OF JUDICIAL ECONOMY WERE NOT MET (SECOND DEPT).

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