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OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND.

The First Department determined plaintiffs' opening statement, which alleged an intentional act by defendant, warranted dismissal of the negligence claims:

Plaintiffs' opening statement warranted dismissal of the negligence and negligent battery claims, because the claim that defendant … used excessive force in handcuffing plaintiff … is fatally inconsistent with the negligence claims … . Vaynshelbaum v City of New York, 2016 NY Slip Op 04302, 1st Dept 6-2-16

CIVIL PROCEDURE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/NEGLIGENCE (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)/OPENING STATEMENTS (OPENING STATEMENT ALLEGING EXCESSIVE FORCE WAS FATALLY INCONSISTENT WITH NEGLIGENCE CLAIMS, NEGLIGENCE CLAIMS PROPERLY DISMISSED ON THAT GROUND)

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PLAINTIFF TESTIFIED IT HAD RAINED FOR ONLY FIVE MINUTES BEFORE SHE SLIPPED AND FELL ON WATER ON THE FLOOR; THEREFORE HER TESTIMONY ESTABLISHED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).
COMPLAINT STATED A CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD BUT THE HEIGHTENED PLEADING REQUIREMENTS FOR ACTUAL FRAUD WERE NOT MET (FIRST DEPT).
ONLY THE SPECIFIC CONDUCT ENUMERATED IN VEHICLE AND TRAFFIC LAW 1104 (E) IS SUBJECT TO THE HIGHER “RECKLESS DISREGARD” STANDARD OF CARE FOR EMERGENCY VEHICLES; OTHER INJURY-CAUSING ACTIONS INVOLVING THE EMERGENCY VEHICLE ARE SUBJECT TO THE ORDINARY NEGLIGENCE STANDARD (FIRST DEPT).
CITY WAS IMMUNE FROM SUIT BASED UPON THE HANDLING OF A DECEASED PERSON DURING HURRICANE SANDY AND NO SPECIAL RELATIONSHIP WAS DEMONSTRATED WITH THE CITY (FIRST DEPT).
Class Certification Should Have Been Granted; Plaintiffs Waived Statutory Treble Damages
TENANT’S ALLEGED FAILURE TO INSURE THE PROPERTY AND ALLEGED IMPROPER ASSIGNMENT OF THE LEASE ARE NOT DEFAULTS THAT CAN BE CURED, THEREFORE THE TENANT IS NOT ENTITLED TO A YELLOWSTONE INJUNCTION (FIRST DEPT).

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