Set Aside Verdict Pain/Suffering Materially Deviates
Plaintiff’s motion for additur and to set aside verdict as against weight of evidence and materially deviating from reasonable compensation where jury awarded $2000/$0 past/future pain/suffering and $9500 for past medical expenses granted to extent of increasing past pain/suffering to $50,000 for a torn meniscus. Award of $0 for future pain/suffering was not against weight of evidence where it could be reached on a fair interpretation of the evidence. Hadjidemetriou v Juarez
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Strike Note of Issue Discovery IME/DME Waiver
By stipulating that discovery was complete before the Note of Issue was filed, aware of plaintiff’s claim for lost earnings, defendants waived an IME/DME by a vocational rehabilitationist as lack of diligence is not proof of unusual or unanticipated circumstances necessary to strike a Note of Issue. Gonzalez v Miles
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Serious Injury Raised For First Time Expert Aff
Plaintiff’s argument that defendant’s expert failed to address complaints of pain did not raise issue in opposition as pain alone cannot form the basis of a serious injury. Plaintiff’s argument that he raised an issue in opposition below not preserved where raised for the first time in reply brief on appeal. Canner v Diamond
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Premises Liab Slip/Trip Wet Floor Sidewalk Create Condition Notice
Supermarket granted summary judgment where plaintiff slipped on puddle of liquid on abutting sidewalk, even though there was proof defendant may have had notice of the condition, on proof it did not have a reasonable time to correct the condition. Martinez v Inserra Supermarkets, Inc.
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Serious Injury ROM Expert Aff Speculation
Defendant granted summary judgment on serious injury based on IME/DME doctor’s report finding limited ROM but opining it was subjective with no objective physical findings. Plaintiffs failed to raise an issue by submitting only report of pain management doctor who treated plaintiff more than 1-year after accident, by not submitting records of contemporaneous treatment, fact that plaintiff was not treated for 5-months after accident, that she went back to work immediately, and had only minor complaints. Pain management doctor was unaware of prior accident making causation opinion speculative. Tusu v Leone
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MVA Set Aside Verdict Emergency Doctrine Jury Charge
Plaintiff’s motion to set aside defense verdict on claim trial court should not have given emergency charge denied as there was reasonable view upon which a jury could find defendant was responding to a qualified emergency. Defendant-driver testified he stopped 8′-10′ feet behind oil truck that was blocking road and drove in reverse to avoid being hit by oil truck as it was backing up when he collided with plaintiff’s vehicle as it approached his vehicle. Grullon v Coscia
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Med Mal Motion to Dismiss Statute of Limitations Continuous Representation
Plaintiffs raised issue of fact on toll of statute of limitations for continuous treatment on proof plaintiff-patient received postoperative treatment, including rehabilitation, wound care, and pain management after bilateral above knee amputations necessitated by failure to diagnose and treat DVTs more than 2.5 years before action was commenced. Wright v Southampton Hosp.
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Med Mal Informed Consent Expert Aff Conclusory Raised For First Time
Lower court providently allowed defendants to correct lack of expert’s qualifications in a reply, establishing entitlement to summary judgment. Plaintiff’s expert’s opinions failed to raise an issue where vague, conclusory, and partly contradicted by the medical records. Allegations of failure to assess plaintiff’s mental health rejected as neither pleaded nor supported by the record and lack of informed consent dismissed. Poivan-Traub v Chaglassian
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Premises Liab Slip/Trip Stairs Set Aside Verdict
Plaintiff’s motion to set aside judgment entered on non-jury verdict finding her 1/3 at fault denied based on fact that she climbed to mezzanine level to access stairs she fell on and was familiar with their configuration because she had used them before. The court noted that on appellate review from a nonjury trial, the court’s authority is as broad as the trial court.
Carone v St. George Theater Restoration, Inc.
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Labor Law §240 Ladder Question of Fact
Plaintiffs met burden for summary judgment on Labor Law §240(1) where injured-plaintiff testified ladder shifted and moved causing him to fall while standing on the fourth rung and reaching for a conduit which did not contradict his affidavit. Accident report completed contemporaneously by foreman recounted plaintiff’s statement that he slipped off the ladder while descending contradicting plaintiff’s testimony and affidavit leaving question of fact. Romano v One City Block LLC
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Building Security Dangerous Condition Unknown Cause Special Duty NYC
NYCHA granted summary judgment where plaintiff could not say if lock that had been broken many times before assault was broken on day of the assault since someone held the door for him as he entered the building and he failed to provide any evidence that it was more likely than not the assailant was an intruder. NYC granted summary judgment as plaintiff’s statement that police officer nodded at him was insufficient to establish a special relationship to impose a special duty on NYC. Morel v City of New York
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MVA Pileup Comparative Fault
Plaintiff, passenger in her mother’s car which was the middle car in a 3-car pileup, granted summary judgment finding she was not at fault as innocent passengers are entitled to summary judgment regardless of potential issues of comparative fault between defendant drivers. Morris v Dorota
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Med Mal Accepted Practice Causation Expert Aff
Plaintiffs’ expert raised issue of fact on departure opining that defendants’ expert’s opinion of no departure based on treatment for epididymitis ignored or minimized plaintiff’s increasing pain of a severity uncharacteristic of epididymitis, the difference in the lie of plaintiff’s testicles consistent with torsion, and the absence of risk factors for STD which is usually the cause of epididymitis. Defendants’ expert opined only on accepted practice, not causation. Zemsky v Prokofieva
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MVA Pedestrian Admissibility Hearsay
Defendant, owner of vehicle with license plate identified by plaintiff-pedestrian as vehicle that hit him and left seen, granted summary judgment on employees’ affidavits that vehicle was transferred to Connecticut 11-months before accident, license plate removed sometime before month of accident and remained in employee’s possession until forwarded to counsel for case, and GPS data showing vehicle only made stops in Connecticut on day of accident. Lower court erred in precluding GPS data as inadmissible hearsay where plaintiff did not object to its admission in opposition to motion and, in any event, employee affidavits met burden for summary judgment. Costor v AT&T Servs., Inc.
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Med Mal Accepted Practice Causation Expert Aff
Podiatrist met burden for summary judgment and plaintiff’s expert failed to raise issue by conclusory opinion that departures were cause of plaintiff’s decedent’s injuries and failed to address podiatrist’s expert’s lack of causation opinion or provide an independent analysis of causation. Benefatti v Centerlight Healthcare, Inc.
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Med Mal Accepted Practice Expert Aff
Plaintiff’s expert’s opinion that removal of excessive labrum during surgery was a departure from standard of care raised issue in opposition to surgeon’s prima facie showing of entitlement to summary judgment based on conflicting expert opinions. Rodriguez v Bursztyn
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Premises Liab Slip/Trip Sidewalk Snow/Ice Unknown Cause Create Condition Notice
Landowner did not meet burden for summary judgment where evidence that plaintiff fell on wet sidewalk with clumps of ice melt, viewed in light most favorable to plaintiff, raised issue of cause of accident and defendants failed to show they did not create the condition or have notice of it. Leibman v Water Auth. of W. Nassau County
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Premises Liab Construction Liab. Create Condition Sole Cause
Replacement contractor granted summary judgment where plaintiff-homeowner fell off deck he knew had no railings while stepping back to look at balusters he had just installed. Plaintiff testified he knew it was a dangerous condition and was aware railings were not installed as he instructed replacement contractor not to install them. There was no implied-in-fact contract to install the railing. By installing balusters at night and walking off the deck knowing there were no railings plaintiff was the sole proximate cause of his injuries. Chowaniec v AACC Inc.
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False Arrest False Imprisonment Assault Battery 1983 Action Probable Cause NYC
Defendants failed to eliminate questions on probable cause where they submitted testimony of plaintiff and defendant-officer providing very different stories of the arrest, and on whether the force used was reasonable where video taken by plaintiff during the arrest did not show the physical force used. Macareno v City of New York
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Premises Liab Slip/Trip Wet Floor Unknown Cause Create Condition Notice Open/Obvious Inherently Dangerous
Defendants failed to meet burden for summary judgment where plaintiff’s affidavit stating she slipped and fell on wet floor and her pants were wet after fall sufficiently identified cause of fall. Defendants failed to prove they did not create or have notice of the condition or that it was open/obvious and not inherently dangerous. Aleman v 760 8th Ave. Rest., Inc.
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Premises Liab Slip/Trip Snow/Ice Storm in Progress
Abutting landowner granted summary judgment where plaintiff slipped and fell before 4-hour window for snow removal allotted under administrative code §16-123(a) that would have ended at 11 AM. Zambrano v City of New York
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MVA Feigned Issue
Defendant-driver granted summary judgment on his testimony that opposing car was speeding, crossed over double yellow line, he honked, but could not avoid accident establishing that he was not negligent. Plaintiff, passenger in defendant-driver’s car, failed to raise issue in opposition by statement that defendant failed to avoid accident which was speculative and contradicted her EBT where she stated she was looking down at her phone and did not see anything. Hidalgo v Vasquez
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Premises Liab Slip/Trip Out of Possession Duty Raised For First Time
Property owner failed to meet burden for summary judgment on claim it was an out-of-possession owner where it did not show as a matter of law that the lease with its tenant did not require it to remedy the hole in the parking lot that caused plaintiff to fall when she stepped in it after slipping on snow/water. Since defendant did not address whether it created the condition or had notice of it below, it did not meet its burden on that alternative theory. Negri-Riglos v First N. Star, LLC
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Serious Injury ROM BP Expert Aff
Plaintiff’s expert failed to raise issue in opposition to defendants’ entitlement to summary judgment on serious injury without comparing limitations in ROM to normal ROM in knee or addressing absence of related findings on MRI. BP allegation that plaintiff was confined to bed for 6-days, and home for 11-days, and testimony that he was confined to bed for 1-2 days insufficient to raise issue on 90/180-day category. Olivare v Tomlin
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