You are here: / / PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR...
, , ,

PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant bow manufacturer (PSE) was not entitled to testing of the bow beyond the visual inspection already done. Plaintiff was struck in the eye when using the bow. Defendant moved for permission to replace the damaged component of the bow, test the bow, and then replace the damaged component. Supreme Court had granted the motion:

A party “seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested” … . Even assuming, arguendo, that the additional testing proposed by PSE is non-destructive, we conclude that PSE failed to establish in the first instance that the additional testing is “material and necessary” to its defense of the action (CPLR 3101 [a] …). PSE’s expert made only a conclusory statement that re-stringing the bow with an undamaged component “should better represent the condition it was in prior to the” accident … . Therefore, even in the absence of an abuse of the court’s discretion, we substitute our own discretion for that of the motion court and deny the motion … . Roche v Precision Shooting Equip., Inc., 2024 NY Slip Op 02419, Fourth Dept 5-3-24

Practice Point: There are standards which must be met in a products liability case before a court will allow testing, either nondestructive of destructive testing, of the product. Those standards were not met by the motion papers in this case.

 

You might also like
IN THIS MEDICAL MALPRACTICE ACTION, THE PLAINTIFF WAS NOT REQUIRED TO IDENTIFY EACH ALLEGEDLY NEGLIGENT EMPLOYEE OF THE DEFENDANT MEDICAL CENTER TO SURVIVE SUMMARY JUDGMENT (FOURTH DEPT).
THE INFORMATION SOUGHT BY DEFENDANT IN THIS SUIT BY THE INSURER TO DISCLAIM COVERAGE WAS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AS MATERIAL PREPARED IN ANTICIPATION OF LITIGATION (FOURTH DEPT).
IN THIS LIEN LAW DISPUTE OVER PAYMENT PURSUANT TO CONSTRUCTION CONTRACTS, DEFENDANTS DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THE RESTORATION OF IMPROPERLY DIVERTED TRUST ASSETS WITH NON-TRUST ASSETS LIMITED DEFENDANTS’ DAMAGES (FOURTH DEPT).
PLAINTIFF-STUDENT WAS INJURED BY AN OUTWARD-SWINGING BATHROOM DOOR WHICH OPENED INTO THE HALLWAY, THE SCHOOL DISTRICT’S MOTION TO SET ASIDE THE PLAINTIFF’S NEGLIGENCE VERDICT PROPERLY DENIED (FOURTH DEPT).
ALTHOUGH THERE WERE NO GUARD RAILS ON THE SCAFFOLD, PLAINTIFF DID NOT TIE OFF HIS HARNESS AND LANYARD, QUESTION OF FACT WHETHER PLAINTIFF’S CONDUCT WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY FROM A FALL, SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED (FOURTH DEPT).
DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD EXPIRED (FOURTH DEPT).
Provision in Separation Agreement Which Called for Employment of the Wife by the Husband Deemed an Employment Contract Breached When Wife Opened a Competing Business
“Falling Objects” Protection Afforded by Labor Law 240 (1) Explained

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

THE MARIJUANA FELONY CONVICTION WHICH WAS THE BASIS FOR DEFENDANT’S SECOND... THE DOCTRINE OF MERGER CAN BE APPLIED TO DISMISS A KIDNAPPING CHARGE EVEN IF...