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THE ROGAK REPORT: 3 December 2003

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  • therogakreport
    NO CAUSE OF ACTION EXISTS FOR TRIPPING ON SIDEWALK CELLAR DOOR HASP LOCATED NEAR BUILDING LINE Rosario v. Sebco I. Associates LP, 761 NYS2d 607 (1st Dept 2003)
    Message 1 of 1 , Dec 2, 2003
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      NO CAUSE OF ACTION EXISTS FOR TRIPPING ON SIDEWALK CELLAR DOOR HASP
      LOCATED NEAR BUILDING LINE

      Rosario v. Sebco I. Associates LP, 761 NYS2d 607 (1st Dept 2003)

      Plaintiff allegedly tripped over a lock affixed to a sidewalk cellar
      door. Plaintiff originally testified that the lock and hasps were
      just inches from the building line, then changed her testimony later
      to say there was a second set, five feet from the building line.
      Supreme Court, Bronx County, granted summary judgment to defendant.
      The Appellate Division affirmed. "The door is equipped with only one
      set of hasps for attaching a lock and... those hasps are situated
      inches from the building line... The placement of a lock at that
      location would not have been actionable." Since the photographs
      showed just one set of hasps, close to the building line, plaintiff
      has no case.

      DESPITE MRI SHOWING DISC HERNIATION, NORMAL RANGE OF MOTION AND 28
      DAYS LOST FROM WORK FAIL TO MEET NO-FAULT THRESHOLD

      Diaz v. Turner, 761 NYS2d 93 (2d Dept 2003)

      In this motor vehicle BI case, defendant's Motion for summary
      judgment based on the no-fault threshold was denied by Supreme Court,
      Queens County. The Appellate Division reversed. The defense IME
      orthopedist found that plaintiff had a normal, complete range of
      motion of his cervical spine, despite an MRI showing a C3-C4 disc
      herniation. This, taken together with plaintiff's own testimony that
      he missed only 28 days from work post-accident, "was sufficient to
      establish a prima facie case that the plaintiff did not sustain a
      serious injury." The Complaint was dismissed.
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