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PLAINTIFF RAISED A QUESTION OF FACT WHETHER PLAINTIFF’S DECEDENT’S FALL FROM HER BED IN A NURSING HOME WAS CAUSED BY DEFENDANTS’ NEGLIGENCE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff raised a question of fact about whether defendants’ negligence was a proximate cause of plaintiff’s decedent’s fall from her bed in defendants’ nursing home:

Plaintiff submitted an expert affidavit from a physician with extensive experience in the treatment of geriatric patients and who is familiar with the standards of care applicable for skilled nursing facilities, including those in New York as they existed during the relevant time period … .. The expert opined that, based on decedent’s history of over 30 falls while at defendants’ facility, decedent was a “high fall risk.” Plaintiff’s expert set forth the interventions that defendants failed to implement to reduce decedent’s known and documented risk of falling. Moreover, he opined that, in this case, defendants failed to meet the relevant standard of care because they failed to use bed restraints, which were appropriate and would have prevented decedent’s fall, and failed to use side rails, alarms and motion detectors, which also would have prevented decedent’s fall. Thus, his affidavit raises a question of fact whether defendants were negligent by failing to implement available precautions to protect decedent from a foreseeable risk of falling … . Rosado v Rosa Coplon Jewish Home, 2021 NY Slip Op 04432, Fourth Dept 7-16-21

 

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THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT).
MOTION TO VACATE CONVICTION BASED UPON RECANTING TESTIMONY PROPERLY DENIED WITHOUT A HEARING, WEAKNESS OF RECANTING TESTIMONY EMPHASIZED (FOURTH DEPT).
DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF; THEREFORE THE JUDGE WAS NOT REQUIRED TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT’S REQUEST WAS KNOWING, VOLUNTARY AND INTELLIGENT; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).
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