You are here: / Evidence
, ,

MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT).

The First Department determined the motion to amend the complaint and bill of particulars in this slip and fall case was properly denied. Plaintiff sought to change the dare of the accident from October 12, 2012, to August 15, 2012:

Plaintiff alleges that she slipped and fell on rainwater that came in through negligently maintained windows in the hallway of defendants’ building. In support of her motion to amend, plaintiff stated that she originally alleged that the accident occurred on October 13, 2012, but that after reviewing her medical records she realized that she was mistaken and that the accident actually occurred on August 15, 2012, the day before she sought treatment at the hospital.

The motion court providently exercised its discretion in denying plaintiff’s motion, as defendants demonstrated that the delay in notifying them that plaintiff had incorrectly identified the date of the accident prejudiced their ability to investigate the incident and to defend the action using surveillance videotapes of the hallway … . Defendants showed that, after learning of plaintiff’s claim, they retrieved surveillance tapes of the alleged accident date of October 13th, which showed that no accident occurred on that date, but that they were no longer able to retrieve videotapes from August 2012 by the time plaintiff informed them of the claimed error in the pleadings. Furthermore, the August 2012 hospital record plaintiff relies upon reflects that she sought treatment from a podiatrist for an unrelated foot condition, and does not reference any fall the previous day … . Otero v Walton Ave. Assoc. LLC, 2018 NY Slip Op 08083, First Dept 11-27-18

CIVIL PROCEDURE (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/COMPLAINT (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/BILL OF PARTICULARS (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/NEGLIGENCE (SLIP AND FALL, MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/SLIP AND FALL  (MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))/EVIDENCE (SLIP AND FALL, MOTION TO AMEND COMPLAINT AND BILL OF PARTICULARS TO CHANGE THE DATE OF THE ALLEGED SLIP AND FALL PROPERLY DENIED (FIRST DEPT))

,

ADMITTING INTO EVIDENCE A PISTOL ALLEGED TO BE THE SAME TYPE OF WEAPON USED IN THE CRIME WAS NOT ERROR (FIRST DEPT).

The First Department determined the introduction of a handgun alleged to be the same type used in the crime and recovered three months after the crime was not error:

The court providently exercised its discretion in admitting a black nine millimeter pistol, the same type of weapon that, according to other evidence, was used in the crime. The pistol was recovered, pursuant to a search warrant, from defendant’s girlfriend’s apartment three months after the commission of the crime, and the evidence showed that defendant resided in that apartment. This evidence was relevant to show that defendant had access to that type of weapon, and it thus tended to establish his involvement in the charged crimes … . The jury could have drawn a reasonable inference that the weapon was in defendant’s possession at the time of the crime, and the availability of other inferences went to weight rather than admissibility. Furthermore, the probative value of this evidence, which the court carefully limited, outweighed any prejudicial effect. People v Birkett, 2018 NY Slip Op 08072, First Dept 11-27-18

CRIMINAL LAW (ADMITTING INTO EVIDENCE A PISTOL ALLEGED TO BE THE SAME TYPE OF WEAPON USED IN THE CRIME WAS NOT ERROR (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ADMITTING INTO EVIDENCE A PISTOL ALLEGED TO BE THE SAME TYPE OF WEAPON USED IN THE CRIME WAS NOT ERROR (FIRST DEPT))/HANDGUNS (CRIMINAL LAW, EVIDENCE, ADMITTING INTO EVIDENCE A PISTOL ALLEGED TO BE THE SAME TYPE OF WEAPON USED IN THE CRIME WAS NOT ERROR (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ADMITTING INTO EVIDENCE A PISTOL ALLEGED TO BE THE SAME TYPE OF WEAPON USED IN THE CRIME WAS NOT ERROR (FIRST DEPT))

,

ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP).

The Court of Appeals, in a memorandum decision supplemented with an extensive concurring opinion, determined that the defendant’s conviction of enterprise corruption (Penal Law 460.20) was not supported by legally sufficient evidence:

… [T]he proof elicited at trial was not legally sufficient to establish the elements of defendant’s knowledge of the existence of the subject criminal enterprise and the nature of its affairs or his intent to participate in such affairs … .

On the mens rea element, the People were required to prove, beyond a reasonable doubt, that defendant, “having knowledge of the existence of a criminal enterprise and the nature of its activities,” and, “being employed by or associated with such enterprise . . . intentionally conduct[ed] or participate[d] in the affairs of an enterprise” … . Consistent with this statutory mens rea requirement, the trial court additionally instructed the jury, without objection, that the People were required to show that defendant had “chosen to be part of the group and to have worked as a member of it or in affiliation with it to achieve its criminal purposes.”

Here, the evidence of defendant’s knowledge of the existence of the criminal enterprise and his intention to participate in its affairs fell short as a matter of law. The evidence of defendant’s participation in the three requisite criminal acts included in the pattern activity alone does not establish defendant’s knowledge of the existence of the criminal enterprise and the nature of its activities. In addition, the critical trial testimony of the People’s cooperating witness demonstrated that defendant was isolated from — rather than employed by or associated with — the enterprise, and that defendant acted independently on his own behalf, with the singular purpose of serving his own interests. People v Jones, 2018 NY Slip Op 08058, CtApp 11-27-18

CRIMINAL LAW (ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP))/ENTERPRISE CORRUPTION (EVIDENCE, ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP))/EVIDENCE (CRIMINAL LAW, ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP))

,

REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the revocation of petitioner’s racehorse trainer’s license by the NYS Racing and Wagering Board should have been confirmed. The Court of Appeals did not write a decision and adopted the reasoning of the dissenting justice on the Appellate Division:

From the Dissent in the Appellate Division’s Decision at 144 AD3d 1244, 1247-1252:

I agree with the majority that if the dates found on veterinary records … regarding specified forms of veterinary care represent the dates upon which such treatment was administered, those records, along with other evidence, chronicle 1,717 violations by petitioner of rules prohibiting the administration of specified substances to a horse within specified windows prior to a race. The majority, however, finds that a reasonable mind cannot reach the conclusion that those dates convey when treatment occurred. As a result, the majority annuls the entirety of respondent’s determination. In contrast, I find that the inference that respondent made that the dates listed next to specified veterinary care represent the dates that such care was administered to be reasonable and plausible. That conclusion requires confirmance and, accordingly, I respectfully dissent. * * *

Substantial evidence “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . Where “room for choice” exists in the inferences to be drawn from evidence, this Court has no power to preference its own interpretation over that of the administrative agency tasked with the determination … . This great deference accorded to such an agency determination derives from the Legislature’s decision to task an agency with expertise in the relevant law and regulations—rather than a court of general jurisdiction that lacks such expertise—with the authority to initially resolve legal disputes … . Matter of Pena v New York State Gaming Commn., 2018 NY Slip Op 08060, CtApp 11-27-18

ADMINISTRATIVE LAW (REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))/EVIDENCE (ADMINISTRATIVE LAW, REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))/NYS RACING AND WAGERING BOARD (REVOCATION OF RACEHORSE TRAINER’S LICENSE BY THE NYS RACING AND WAGERING BOARD SHOULD HAVE BEEN CONFIRMED, SUBSTANTIAL EVIDENCE STANDARD WAS MET (CT APP))

, , , ,

THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP).

The Court of Appeals, affirming the grant of defendant-Ford’s motion to set aside the verdict in this asbestos case, over two concurring opinions and a dissenting opinion, determined the evidence of a causal connection between the asbestos in brake linings on Ford vehicles and plaintiff’s decedent’s mesothelioma was legally insufficient. Plaintiff’s decedent worked in a garage and was exposed to asbestos-laden dust from new and used brakes, clutches and manifold and engine gaskets:

Viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries pursuant to the standards set forth in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) and Cornell v 360 W. 51st St. Realty, LLC(22 NY3d 762 [2014]). Accordingly, on this particular record, defendant was entitled to judgment as a matter of law under CPLR 4404 (a) … . Matter of New York City Asbestos Litig., 2018 NY Slip Op 08059, CtApp 11-27-18

PRODUCTS LIABILITY (ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/TOXIC TORTS  (ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/NEGLIGENCE (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/EMPLOYMENT LAW (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/ASBESTOS (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))/MESOTHELIOMA  (TOXIC TORTS, ASBESTOS, THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP))

, ,

PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPT DECIDED NOT TO FOLLOW THE 2ND DEPT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over an extensive two-justice dissenting opinion, determined that the plaintiff in this traffic accident case did not place her prior knee injuries in controversy and the defendants’ demand for the related medical authorizations should not have been granted. The First Department held plaintiff had not waived her patient-physician privilege regarding the knee injuries. Plaintiff had alleged injury to her back, neck and shoulder, but had also alleged a loss of enjoyment of life, including her inability to wear heels. Defendants argued that her prior knee injury and surgery were relevant to those same issues. The First Department decided not to follow the 2nd Department’s contrary holding:

Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder. Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident. * * *

Defendants cite to [2nd] Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The [2nd] Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries” … .

We are not persuaded by the reasoning of the [2nd] Department. In our view, the [2nd] Department’s precedent cannot be reconciled with the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy. Brito v Gomez, 2018 NY Slip Op 08105, First Dept 11-27-18

NEGLIGENCE (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/TRAFFIC ACCIDENTS  (PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/EVIDENCE (NEGLIGENCE, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))/PATIENT-PHYSICIAN PRIVILEGE (NEGLIGENCE, TRAFFIC ACCIDENTS, PLAINTIFF DID NOT PLACE HER PRIOR KNEE INJURIES IN CONTROVERSY BY ALLEGING A LOSS OF ENJOYMENT OF LIFE, THEREFORE PLAINTIFF DID NOT WAIVE HER PATIENT-PHYSICIAN PRIVILEGE RE: THE KNEE-INJURY MEDICAL RECORDS, THE FIRST DEPARTMENT DECIDED NOT TO FOLLOW THE 2ND DEPARTMENT’S CONTRARY RULING, EXTENSIVE TWO-JUSTICE DISSENT (FIRST DEPT))

,

A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a metal protrusion of an inch or less in a parking lot constituted a trivial defect which was not actionable in this slip and fall case:

In determining whether a defect is trivial, courts “must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be a certain minimum height or depth in order to be actionable” … . However, a defendant “may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection” … .

The defendants presented evidence that the alleged defect was an inch or less in size, that the incident occurred in the daytime hours under clear conditions, and that the area immediately surrounding the alleged defect was clear of debris and not dangerous or trap-like. Easley v U Haul, 2018 NY Slip Op 08008, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/SLIP AND FALL (A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, TRIVIAL DEFECT, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, A METAL PROTRUSION IN A PARKING LOT MEASURING AN INCH OR LESS WAS A NON-ACTIONABLE TRIVIAL DEFECT, SUPREME COURT REVERSED (SECOND DEPT))

, , ,

WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ motion to set aside the verdict in this stairway slip and fall case should not have been granted, and the plaintiff’s motion for sanctions (attorney’s fees) for frivolous conduct (bringing the motion to set aside) should have been granted. The dissenting justice agreed the verdict should not have been set aside, but disagreed with the imposition of sanctions on defense counsel. The plaintiff alleged she fell (19 inches) because there was no handrail on one side to the stairs. The Second Department explained that even if the jury found the absence of a handrail to be open and obvious, the jury still could have found the absence of the handrail acted as a trap for the unwary:

“Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition”… . “While such proof is relevant to the issue of a plaintiff’s comparative negligence, a hazard that is open and obvious may be rendered a trap for the unwary where the condition is obscured or the plaintiff distracted” … . “The determination of . . . whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts  … . …

… [T}he Supreme Court should have granted the plaintiff’s cross motion for an award of costs in the form of reimbursement of reasonable attorneys’ fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants in moving to set aside the verdict pursuant to CPLR 4404(a) to the extent that the motion was predicated upon the ground that the plaintiff failed to establish at trial that they owned the subject property. * * *

… [T]he record shows that the defendants’ ownership of the property was never genuinely disputed. Cram v Keller, 2018 NY Slip Op 08007, Second Dept 11-21-18

NEGLIGENCE (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL ( OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/OPEN AND OBVIOUS  (SLIP AND FALL, OPEN AND OBVIOUS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ATTORNEYS (FRIVOLOUS CONDUCT, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SET ASIDE VERDICT, MOTION TO (FRIVOLOUS CONDUCT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FRIVOLOUS CONDUCT (MOTION TO SET ASIDE THE VERDICT, ATTORNEYS, WHETHER A CONDITION IS OPEN AND OBVIOUS SPEAKS TO COMPARATIVE NEGLIGENCE, AN OPEN AND OBVIOUS CONDITION CAN BE THE BASIS FOR LIABILITY IF THE CONDITION AMOUNTS TO A TRAP FOR THE UNWARY OR DISTRACTED, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED, MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL FOR BRINGING THE MOTION TO SET ASIDE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

, ,

NEITHER THE LEVEL OF PLAYGROUND SUPERVISION NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school district’s motion for summary judgment in this playground student injury case should have been granted. Defendants demonstrated there was an adequate number of monitors supervising the children, infant plaintiff was using the equipment properly, and the equipment was in good working order. There was no showing that plaintiffs’ expert had any expertise re: playground equipment. Infant plaintiff slipped off a bar and fell because his hands were wet:

The defendants submitted evidence demonstrating, prima facie, that the level of supervision afforded to the infant plaintiff and the other students at the time of the accident was adequate… , and, in any event, that any alleged lack of supervision was not the proximate cause of the infant plaintiff’s injuries … . Furthermore, the defendants submitted a report and affidavit from their expert, which established that the playground equipment was appropriate for the infant plaintiff’s age group, and was not defective … .

In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs submitted an affidavit from their purported expert, there was no showing that the purported expert had any specialized knowledge, experience, training, or education regarding playground equipment so as to qualify him to render an opinion in this area … . Ponzini v Sag Harbor Union Free Sch. Dist., 2018 NY Slip Op 08046, Second Dept 11-21-18

NEGLIGENCE (NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (EXPERT OPINION, EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION (NEGLIGENCE,  EDUCATION-SCHOOL LAW, NEITHER THE LEVEL OF PLAYGROUND SUPERVISION, NOR THE PLAYGROUND EQUIPMENT CONSTITUTED THE PROXIMATE CAUSE OF INFANT PLAINTIFF’S FALL, PLAINTIFFS’ EXPERT DID NOT DEMONSTRATE EXPERTISE RE: PLAYGROUND EQUIPMENT, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

, ,

THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department determined Supreme Court should have held a hearing on defendant’s motion to vacate his conviction alleging ineffective assistance counsel. i.e., the failure to move to dismiss the indictment based on a speedy trial violation. Although the People raised a question of fact about whether defendant’s counsel consented to certain adjournments, the issue was not conclusively demonstrated, requiring a hearing:

Defendant argued that he was deprived of effective assistance because his counsel failed to move to dismiss the indictment based on a violation of his statutory speedy trial rights. Failure to make a meritorious speedy trial motion, which would result in dismissal of the indictment, is sufficiently egregious to amount to ineffective assistance… . There is ordinarily no strategic reason for counsel to fail to make a dispositive motion that would result in dismissal of the charges with prejudice, so long as it is shown that the motion would have been successful … . …

The Court of Appeals has clarified that ” [a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent” … A court may not deny a motion to dismiss for a statutory speedy trial violation “without a hearing unless ‘[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable proof'” … . ” Of course, only those periods for which the People have not provided ‘unquestionable documentary proof’ — for example, a transcript or letter evidencing defendant’s consent — need be addressed at any hearing” … . At least one court has held that calendar and file jacket notations” do not constitute unquestionable proof to meet the People’s “burden of demonstrating sufficient excludable time” … . People v Matteson, 2018 NY Slip Op 07976, Third Dept 11-21-18

CRIMINAL LAW (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/EVIDENCE (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/ATTORNEYS (INEFFECTIVE ASSISTANCE, (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/VACATE CONVICTION, MOTION TO ( THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/SPEEDY TRIAL (VACATE CONVICTION,  THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD 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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy