You are here: / / PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN...
,

PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for judgment as a matter of law should have been granted. An employee of defendant moving company (Fisher) left a desk that was upright (on its side) on a dolly unattended. The desk fell over, injuring plaintiff:

​

“A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” … . In considering the motion, the evidence must be viewed in the light most favorable to the nonmoving party, and the court must afford the nonmoving party “every inference which may properly be drawn from the facts presented” … . …

The defendants do not dispute that they, through their employee, created the condition that the plaintiff alleges existed. There was no evidence, and the defendants did not assert, that Fisher exercised reasonable care when he left the desk unattended on the dolly. The defendants’ contention that an issue of fact existed as to whether the accident happened at all is unsupported by the record and based upon speculation … . Based on this record, the Supreme Court should have granted the plaintiff’s motion for judgment as a matter of law pursuant to CPLR 4401, made at the close of the evidence … . Canale v L & M Assoc. of N.Y., Inc., 2017 NY Slip Op 07701, Second Dept 11-8-17

 

NEGLIGENCE (PLAINTIFF’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT))/CIVIL PROCEDURE  (PLAINTIFF’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT))/CPLR 4401 (PLAINTIFF’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT))

You might also like
IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE TIME OF THE ACCIDENT, RANDALL WOULD BE VICARIOUSLY LIABLE; NOT SO IF COCUZZO WAS AN INDEPENDENT CONTRACTOR; THE “EMPLOYER VS INDEPENDENT CONTRACTOR” ISSUE MUST BE RESOLVED BY THE TRIER OF FACT (SECOND DEPT).
FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL 2ND DEPT.
Town Board’s “Adverse Effects” Findings Annulled as Inconsistent with Final Environmental Impact Statement (FEIS)
DEFENDANT PRESENTED SUFFICIENT PROOF SHE DID NOT LIVE AT THE ADDRESS WHERE THE FORECLOSURE COMPLAINT WAS SERVED TO WARRANT A HEARING; THERE WAS NO SHOWING THAT HER FAILURE TO UPDATE HER ADDRESS WITH THE DEPARTMENT OF MOTOR VEHICLES WAS TO PREVENT SERVICE (SECOND DEPT).
PLAINTIFF’S EXPERT DID NOT LAY A FOUNDATION FOR AN OPINION ABOUT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Children’s Out-of-Court Statements Sufficiently Corroborated
Registered Voter Could Not Intervene In Suit to Determine Constitutionality of Local Term-Limit Law
PROOF OF AN UNCHARGED SEXUAL OFFENSE RELIED UPON FOR AN UPWARD DEPARTURE WAS INSUFFICIENT; LEVEL THREE ASSESSMENT REDUCED TO LEVEL TWO (SECOND DEPT).

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT DRIVER DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT AS A MATTER... PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT...