You are here: / / PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER...

PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE INJURY WAS CAUSED BY THE ACCIDENT, AS OPPOSED TO A DEGENERATIVE DISEASE; TWO-JUSTICE DISSENT.

The First Department, over a two-justice dissent, determined defendants’ motion for summary judgment in a personal injury (car accident) action was properly granted. The majority concluded the plaintiff’s expert did not raise a question of fact about whether the injury was caused by the accident. Defendants’ experts opined the injury was caused by a pre-existing degenerative condition. The dissent felt that plaintiff’s expert raised a question of fact about causation because tearing of the relevant tissue was detected, a condition not mentioned by the defendants’ experts:

 

The dissent, taking the position that an issue of fact exists as to whether the accident caused plaintiff’s shoulder injury, does not deal with the aforementioned opinions of Dr. Lang and Dr. Lyons in plaintiff’s own medical records. It appears to be the dissent’s view that the support in plaintiff’s medical records for the shoulder injury having a degenerative origin are of no moment because plaintiff’s medical expert, Dr. Louis C. Rose, in his affirmation prepared for this litigation, offered a “diagnosis [that] . . . contrasts significantly with the one proffered by defendants’ experts.” However, the dissent offers no support for its view that there is a “factual disagreement” between the defense experts and plaintiff’s expert (Dr. Rose) on the diagnosis of the shoulder injury, as opposed to its etiology. Specifically, the dissent simply assumes that the defense experts’ diagnosis of osteoarthritis of the AC joint and chronic impingement syndrome were inconsistent with the presence of tears to the labrum and rotator cuff, which was Dr. Rose’s diagnosis. Nothing in the record supports the assumption that the conditions diagnosed by the defense experts do not result in tears to the labrum and rotator cuff. Franklin v Gareyua, 2016 NY Slip Op 00886, 1st Dept 2-9-16

 

NEGLIGENCE (NO QUESTION OF FACT RAISED TO REFUTE DEFENSE EXPERTS’ OPINION PLAINTIFF’S INJURIES DUE TO DEGENERATIVE CONDITION, NOT CAR ACCIDENT)/PROXIMATE CAUSE (NO QUESTION OF FACT RAISED TO REFUTE DEFENSE EXPERTS’ OPINION PLAINTIFF’S INJURIES DUE TO DEGENERATIVE CONDITION, NOT CAR ACCIDENT)

You might also like
PROVIDING COUNSEL WITH “MEANINGFUL NOTICE” OF THE CONTENTS OF A NOTE FROM THE JURY DOES NOT NECESSARILY REQUIRE READING THE NOTE INTO THE RECORD VERBATIM; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).
MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT).
PLAINTIFF STATED A CAUSE OF ACTION FOR SEXUAL ORIENTATION-BASED DISCRIMINATION, DEFENDANT’S ARGUMENT THERE WAS A NON-DISCRIMINATORY REASON FOR ADVERSE ACTION SHOULD NOT BE CONSIDERED IN A CPLR 3211 (a)(7) MOTION TO DISMISS.
PROOF THAT PLAINTIFF WIFE ASSUMED FULL RESPONSIBILITY FOR HOUSEHOLD CHORES, COOKING, TRANSPORTIING THE CHILDREN, AND CARED FOR THE INJURED PLAINTIFF, WARRANTED A $40,000 AWARD FOR LOSS OF SERVICES; THE JURY HAD AWARDED $0 DAMAGES (FIRST DEPT).
WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT).
CITY TOOK THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACTS OF THE REDEVELOPMENT PLAN, INCLUDING ITS EFFECTS ON RENTER DISPLACEMENT; SUPREME COURT SHOULD NOT HAVE ANNULLED THE ADOPTION OF THE PLAN (FIRST DEPT).
CERTAIN ASPECTS OF PLAINTIFF’S QUANTUM MERUIT AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY SURVIVED A MOTION TO DISMISS, OTHER ASPECTS WERE BARRED BY THE STATUTE OF FRAUDS.
Part Performance Exception to the Statute of Frauds Does Not Apply to Contracts Which Cannot Be Performed Within One Year

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SENTENCING YOUTHFUL OFFENDER TO CONSECUTIVE TERMS EXCEEDING FOUR YEARS WAS INCONSISTENT... APPLICATION FOR LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DESPITE ABSENCE...