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
QUESTION OF FACT WHETHER PLAINTFF SLIPPED AND FELL ON ICE OR SNOW IN AN AREA WHICH HAD BEEN CLEARED SUCH THAT IT CONSTITUTED A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE RE: THIS LABOR LAW 241(6) ACTION (FIRST DEPT).
PLAINTIFF WAS INJURED IN A LYFT CAR WHICH HAD BEEN ORDERED BY HIS FRIEND THROUGH THE FRIEND’S ACCOUNT; BECAUSE PLAINTIFF HAD SCROLLED THROUGH AND AGREED TO LYFT’S TERMS OF SERVICE, WHETHER PLAINTIFF WAS BOUND BY THE ARBITRATION CLAUSE MUST BE DETERMINED BY THE ARBITRATOR (FIRST DEPT).
Prejudice Which Would Preclude Amendment of an Answer Must Stem from a Right Lost in the Interim Between the Original Answer and the Application to Amend
DOCTRINE OF INDEFINITENESS IMPROPERLY APPLIED TO ORAL CONTRACT; BOTH QUANTUM MERUIT AND BREACH OF CONTRACT PROPERLY PLED WHERE DEFENDANTS DENY EXISTENCE OF CONTRACT.
Juvenile Delinquency Adjudication Appropriate to Ensure Residential Supervision
PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID-REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT).
Where a Client’s Claims Against an Attorney Arise from the Attorney’s Providing Legal Services Which Are Related In Part to the Attorney’s Business Enterprise, the “Business Enterprise” Coverage Exclusions In the Legal Malpractice Insurance Policy Are Triggered
Fall of a Heavy Rail from a Two- To Three-Foot Stack Was an Elevation-Related Event

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...