Preview
FILED: NEW YORK COUNTY CLERK 02/02/2024 05:12 PM INDEX NO. 160824/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 02/02/2024
EXHIBIT
B
FILED: NEW YORK COUNTY CLERK 02/02/2024 05:12 PM INDEX NO. 160824/2015
NYSCEF Paus
DOC.v. NO. 234
565 Equities, Inc., 215 A.D.3d 495 (2023) RECEIVED NYSCEF: 02/02/2024
188 N.Y.S.3d 23, 2023 N.Y. Slip Op. 01964
215 A.D.3d 495
West Headnotes (4)
Supreme Court, Appellate Division,
First Department, New York.
[1] Trial • Negligence in general
Bettina PAUS, Plaintiff-Appellant, Trial court's jury charge on negligence was
appropriate in pedestrian's personal injury action
against owner of cooperative residential building
565 EQUITIES, INC. et al.
and its managing agent for injuries sustained
Defendants-Respondents, when falling ice hit her head as she was walking
Argo Real Defendant. on sidewalk abutting the building, though court
Estate, LLC,
declined to employ exact verbiage suggested
46 by pedestrian, where court modified pattern
jury instruction to include specifies of the case
parties'
Index No. 160824/15 and incorporate contentions, and also
instructed jury, in response to a note sent during
Case No. 2022-03164 deliberations, that only law they were to follow
was that given in the charge.
Entered April 18, 2023
Synopsis
[2] Witnesses • Particular evidence
Background: Pedestrian brought personal injury action
Pedestrian was not prohibited from using
against owner of cooperative residential building and its
deposition transcripts of employees of owner
managing agent, alleging negligence after she sustained
of cooperative residential building and its
injuries when falling ice hit her head as she was walking on
managing agent, who were stipulated as
sidewalk abutting the building. Following jury verdict, the
unavailable, to cross-examine owner and
Supreme Court, New York County, Nancy M. Bannon, J.,
its managing agent's witnesses at trial, in
entered judgment in favor of owner and agent. Pedestrian
pedestrian's personal injury action against owner
appealed.
and agent for injuries sustained when falling ice
hit her head as she was walking on sidewalk
abutting the building, where prior motions
Holdings: The Supreme Court, Appellate Division, held that: in limine were not required to invoke rule
governing use of depositions by unavailable
[1] trial court's jury charge on negligence was appropriate; witnesses, and any objections to testimony
used could have been ruled upon cross-
during
[2] pedestrian was not prohibited from using deposition examinations. N.Y. CPLR § 3117(a)(3).
transcripts of unavailable witnesses at trial;
[3] pedestrian was not prohibited from cross-examining [3] Witnesses • Particular matters in general
property manager with video of the accident; and
Pedestrian was entitled to cross-examine the
property manager for owner's cooperative
[4] error in not allowing pedestrian to cross-examine property residential with video taken
building shortly
manager was not harmless.
after pedestrian's accident by building's security
cameras, in pedestrian's personal injury action
against owner and its managing agent for injuries
Reversed, vacated, and remanded
sustained when falling ice hit her head as she was
walking on sidewalk abutting the building; even
if video would not have been admissible to extent
WESTLAW © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1
FILED: NEW YORK COUNTY CLERK 02/02/2024 05:12 PM INDEX NO. 160824/2015
NYSCEF Paus
DOC.v. NO. 234
565 Equities, Inc., 215 A.D.3d 495 (2023) RECEIVED NYSCEF: 02/02/2024
188 N.Y.S.3d 23, 2023 N.Y. Slip Op. 01964
that it showed subsequent remedial measures,
[1] Although the court declined to employ the exact verbiage
property manager opened the door to limited
suggested by plaintiff, the jury charge on negligence was
portion of the video with his testimony.
appropriate, with the court properly modifying PJI 2:90 to
parties'
include the specifies of the case and incorporate the
contentions (see Jorgensen v. New York Found. for Sr Citizen
Appeal and Error e= Cross-examination and
[4]
Guardian Servs., Inc., 61 A.D.3d 612, 876 N.Y.S.2d 870 [1st
re-examination
Dept. 2009], lv denied 13 N.Y.3d 703, 2009 WL 2779176
Error by trial court in not allowing pedestrian
[2009]; see also Spensieri v. Lasky, 94 N.Y.2d 231, 239-240,
to cross-examine the property manager of 701 N.Y.S.2d 689, 723 N.E.2d 544 [1999]). The court also
owner's cooperative residential building with
correctly instructed the jury, in response to a note sent during
video taken shortly after pedestrian's accident by deliberations, that the only law they were to follow was that
building's security cameras was not harmless, in in the charge.
given
pedestrian's personal injury action against owner
and its managing agent for injuries sustained plaintiff
[2] [3] [4] It was error, however, to prohibit from
when falling ice hit her head as she was walking defendants'
using the deposition transcripts of employees,
on sidewalk abutting the building; errors went who were stipulated as to cross-examine
unavailable,
to property manager's credibility as to liability defendants'
witnesses at trial. Prior motions in limine were
and were about a key fact, whether snow and ice not required to invoke CPLR and any objections
3117(a)(3),
that struck pedestrian came from facade of the to the testimony used could be *496 ruled upon the
during
building. cross-examinations. Plaintiff should also have been allowed
to cross-examine defendant's property manager with the video
taken shortly after the accident by the building's security
cameras. While it would not have been admissible to the
extent that it showed subsequent remedial measures, the
Attorneys and Law Firms
witness opened the door to a limited portion of the video
with his testimony (see Giraldez v. City of New York, 214
**24 Kramer, Dillof, Livingston & Moore, New York
A.D.2d 461, 462, 625 N.Y.S.2d 517 [1st Dept. 1995]; see also
(Matthew Gaier of counsel), for appellant.
Herrmann v. Sklover Group, Inc., 2 A.D.3d 307, 307-308,
Gallo Vitucci Klar New York (C. Briggs Johnson of 768 N.Y.S.2d 600 [1st Dept. 2003]). It cannot be said that
LLP,
for respondents. these errors were harmless, as they went to the credibility of
counsel),
defendants'
only witnesses as to liability and were about a key
Webber, J.P., Singh, Scarpulla, Rodriguez, JJ. fact, whether the snow and ice that struck plaintiff came from
defendants'
the fac,ade of building.
Opinion
*495 **25 Judgment, Supreme Court, New York County
(Nancy Bannon, J.), entered June 27, 2022, upon ajury verdict All Citations
in favor of defendants 565 Equities, Inc. and Tudor Realty
Services Corp., unanimously reversed, on the law, without 215 A.D.3d 495, 188 N.Y.S.3d 23, 2023 N.Y. Slip Op. 01964
costs, the judgment vacated, and the matter remanded for a
new trial.
End of Document © 2024 Thomson Reuters. No claim to original U
Government Works.
WNL AW © 2024 Thomson Reuters. No claim to original U.S. Govemment Works. 2
Preview
FILED: NEW YORK COUNTY CLERK 02/02/2024 05:12 PM INDEX NO. 160824/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 02/02/2024 EXHIBIT B FILED: NEW YORK COUNTY CLERK 02/02/2024 05:12 PM INDEX NO. 160824/2015 NYSCEF Paus DOC.v. NO. 234 565 Equities, Inc., 215 A.D.3d 495 (2023) RECEIVED NYSCEF: 02/02/2024 188 N.Y.S.3d 23, 2023 N.Y. Slip Op. 01964 215 A.D.3d 495 West Headnotes (4) Supreme Court, Appellate Division, First Department, New York. [1] Trial • Negligence in general Bettina PAUS, Plaintiff-Appellant, Trial court's jury charge on negligence was appropriate in pedestrian's personal injury action against owner of cooperative residential building 565 EQUITIES, INC. et al. and its managing agent for injuries sustained Defendants-Respondents, when falling ice hit her head as she was walking Argo Real Defendant. on sidewalk abutting the building, though court Estate, LLC, declined to employ exact verbiage suggested 46 by pedestrian, where court modified pattern jury instruction to include specifies of the case parties' Index No. 160824/15 and incorporate contentions, and also instructed jury, in response to a note sent during Case No. 2022-03164 deliberations, that only law they were to follow was that given in the charge. Entered April 18, 2023 Synopsis [2] Witnesses • Particular evidence Background: Pedestrian brought personal injury action Pedestrian was not prohibited from using against owner of cooperative residential building and its deposition transcripts of employees of owner managing agent, alleging negligence after she sustained of cooperative residential building and its injuries when falling ice hit her head as she was walking on managing agent, who were stipulated as sidewalk abutting the building. Following jury verdict, the unavailable, to cross-examine owner and Supreme Court, New York County, Nancy M. Bannon, J., its managing agent's witnesses at trial, in entered judgment in favor of owner and agent. Pedestrian pedestrian's personal injury action against owner appealed. and agent for injuries sustained when falling ice hit her head as she was walking on sidewalk abutting the building, where prior motions Holdings: The Supreme Court, Appellate Division, held that: in limine were not required to invoke rule governing use of depositions by unavailable [1] trial court's jury charge on negligence was appropriate; witnesses, and any objections to testimony used could have been ruled upon cross- during [2] pedestrian was not prohibited from using deposition examinations. N.Y. CPLR § 3117(a)(3). transcripts of unavailable witnesses at trial; [3] pedestrian was not prohibited from cross-examining [3] Witnesses • Particular matters in general property manager with video of the accident; and Pedestrian was entitled to cross-examine the property manager for owner's cooperative [4] error in not allowing pedestrian to cross-examine property residential with video taken building shortly manager was not harmless. after pedestrian's accident by building's security cameras, in pedestrian's personal injury action against owner and its managing agent for injuries Reversed, vacated, and remanded sustained when falling ice hit her head as she was walking on sidewalk abutting the building; even if video would not have been admissible to extent WESTLAW © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 FILED: NEW YORK COUNTY CLERK 02/02/2024 05:12 PM INDEX NO. 160824/2015 NYSCEF Paus DOC.v. NO. 234 565 Equities, Inc., 215 A.D.3d 495 (2023) RECEIVED NYSCEF: 02/02/2024 188 N.Y.S.3d 23, 2023 N.Y. Slip Op. 01964 that it showed subsequent remedial measures, [1] Although the court declined to employ the exact verbiage property manager opened the door to limited suggested by plaintiff, the jury charge on negligence was portion of the video with his testimony. appropriate, with the court properly modifying PJI 2:90 to parties' include the specifies of the case and incorporate the contentions (see Jorgensen v. New York Found. for Sr Citizen Appeal and Error e= Cross-examination and [4] Guardian Servs., Inc., 61 A.D.3d 612, 876 N.Y.S.2d 870 [1st re-examination Dept. 2009], lv denied 13 N.Y.3d 703, 2009 WL 2779176 Error by trial court in not allowing pedestrian [2009]; see also Spensieri v. Lasky, 94 N.Y.2d 231, 239-240, to cross-examine the property manager of 701 N.Y.S.2d 689, 723 N.E.2d 544 [1999]). The court also owner's cooperative residential building with correctly instructed the jury, in response to a note sent during video taken shortly after pedestrian's accident by deliberations, that the only law they were to follow was that building's security cameras was not harmless, in in the charge. given pedestrian's personal injury action against owner and its managing agent for injuries sustained plaintiff [2] [3] [4] It was error, however, to prohibit from when falling ice hit her head as she was walking defendants' using the deposition transcripts of employees, on sidewalk abutting the building; errors went who were stipulated as to cross-examine unavailable, to property manager's credibility as to liability defendants' witnesses at trial. Prior motions in limine were and were about a key fact, whether snow and ice not required to invoke CPLR and any objections 3117(a)(3), that struck pedestrian came from facade of the to the testimony used could be *496 ruled upon the during building. cross-examinations. Plaintiff should also have been allowed to cross-examine defendant's property manager with the video taken shortly after the accident by the building's security cameras. While it would not have been admissible to the extent that it showed subsequent remedial measures, the Attorneys and Law Firms witness opened the door to a limited portion of the video with his testimony (see Giraldez v. City of New York, 214 **24 Kramer, Dillof, Livingston & Moore, New York A.D.2d 461, 462, 625 N.Y.S.2d 517 [1st Dept. 1995]; see also (Matthew Gaier of counsel), for appellant. Herrmann v. Sklover Group, Inc., 2 A.D.3d 307, 307-308, Gallo Vitucci Klar New York (C. Briggs Johnson of 768 N.Y.S.2d 600 [1st Dept. 2003]). It cannot be said that LLP, for respondents. these errors were harmless, as they went to the credibility of counsel), defendants' only witnesses as to liability and were about a key Webber, J.P., Singh, Scarpulla, Rodriguez, JJ. fact, whether the snow and ice that struck plaintiff came from defendants' the fac,ade of building. Opinion *495 **25 Judgment, Supreme Court, New York County (Nancy Bannon, J.), entered June 27, 2022, upon ajury verdict All Citations in favor of defendants 565 Equities, Inc. and Tudor Realty Services Corp., unanimously reversed, on the law, without 215 A.D.3d 495, 188 N.Y.S.3d 23, 2023 N.Y. Slip Op. 01964 costs, the judgment vacated, and the matter remanded for a new trial. End of Document © 2024 Thomson Reuters. No claim to original U Government Works. WNL AW © 2024 Thomson Reuters. No claim to original U.S. Govemment Works. 2