THE ROGAK REPORT: 3 December 2003
- 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.