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½ Inch Differential Was Trivial and Could Not Be Basis of Liability

The First Department affirmed the dismissal of a slip and fall complaint finding the one-half-inch differential between the level of the sidewalk and the frame of the cellar door was trivial and could not serve as the basis of liability.  Boynton v Haru Sake Bar, 2013 NY Slip Op 04113, 1st Dept, 6-6-13

 

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TESTIMONY OF A DEFENSE WITNESS WHO IDENTIFIED PLAINTIFF AS THE PERSON FLEEING THE SCENE OF A CRIME SHOULD NOT HAVE BEEN PRECLUDED IN THIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION; THE JURY WAS NOT INSTRUCTED ON THE CRITERIA FOR A TERRY STOP; PLAINTIFF’S JUDGMENT VACATED AND NEW TRIAL ORDERED (FIRST DEPT).
DEFENSE COUNSEL’S FAILURE TO MOVE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE LEARNED AT TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE.
THE DECISION TO CALL OR NOT CALL A WITNESS IS ENTIRELY THE PROVINCE OF DEFENSE COUNSEL, WHETHER OR NOT THE DEFENDANT AGREES.
THE ORDER TO SHOW CAUSE REQUIRED SERVICE BY OVERNIGHT EXPRESS; THE ORDER TO SHOW CAUSE WAS SERVED BY PRIORITY MAIL; THE FAILURE TO COMPLY WITH THE SPECIFIED MANNER OF SERVICE DEPRIVED THE COURT OF JURISDICTION TO HEAR THE MOTION.
THE MOTION TO CHANGE VENUE WAS MADE MORE THAN 15 DAYS AFTER THE DEMAND TO CHANGE VENUE; THE 15-DAY TIME-LIMIT IS STRICTLY ENFORCED AND THE MOTION SHOULD HAVE BEEN DENIED (FIRST DEPT). ​
PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DENIED BECAUSE IT WAS BASED ON EVIDENCE FIRST PRESENTED IN REPLY; PLAINTIFF WAS COLLATERALY ESTOPPED FROM CLAIMING TRAUMATIC BRAIN INJURY AND COGNITIVE DISORDER BY THE RULING IN HIS WORKERS’ COMPENSATION CASE (FIRST DEPT).
Hearsay Evidence Can Be Considered in Opposition to Summary Judgment Motion As Long As It Is Not the Only Evidence​

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