Preview
FILED: NEW YORK COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 157038/2015
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/29/2019
STATE OF NEW YORK
SUPREME COURT COUNTY OF NEW YORK
STEVEN MADSEN and REBECCA MADSEN,
and as parents and natural guardians of
individually
Index No.157038/15
C.M., an infant,
Plaintiffs,
- - BENCH MEMO RE:
against
DIRECTED VERDICT
CATAMOUNT DEVELOPMENT CORPORATION,
Defendant.
PRELIMINARY STATEMENT
Defendant submits this bench memorandum in support of itsmotion for a directed verdict
pursuant to CPLR §4401. Based on the following, there is no rational process by which a jury
could find that on the machine pole would have prevented infant Plaintiff's
padding snowmaking
injuries, or reduced the severity thereof, precluding a verdict in her favor. .
DISCUSSION
"'A directed verdict pursuant to CPLR 4401 is appropnate when, viewing the evidence in
light most favorable to the nonmoving party and affording such party the benefit of every
[the]
nonmovant.'"
inference, there is no rational process by which a jury could find in favor of the
Smalley v. Harley-Davidson Motor Comoany Groun LLC, 170 A.D.3d 1549, 1551 (4th Dept.
2019) (quoting Clune v. Moore, 142 A.D.3d 1330, 1331 (4th Dept. 2016); citing Szczerbiak v.
P_ilat,90 N.Y.2d 553, 556 (1997)). "Stated otherwise, a directed verdict should be granted only if
irrational' plaintiff."
itwould be 'utterly for the jury to render a verdict in favor of the Smalley at
1551 (quoting Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978)). "Generally, expert
testimony is necessary to prove a deviation from accepted standards of [ ]care [in the industry]
cause."
and to establish proximate Goldberg v. Horowitz, 73 A.D.3d 691, 693 (2d Dept. 2010).
1 of 3
FILED: NEW YORK COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 157038/2015
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/29/2019
See also, Ciocca v. Park, 5 N.Y.3d 835, 836 (2005) (holding that motion for directed verdict was
properly granted where "[p]laintiff did not lay an adequate foundation for the testimony of his
experts"
and therefore "failed to properly demonstrate causation").
Here, Plaintiffs lack the requisite expert testimony linking the alleged standard of care in
Plaintiffs'
the industry tò the proximate cause of infant Plaintiff's injuries. None of expert
witnesses have laid the appropriate foundation to set forth an opinion on whether padding the
pole that infant Plaintiff collided with would have prevented or lessened the severity of her
injuries. Dr. Miller, Dr. Striker, and Mr. Guisado, at most, only proffered conclusions which
possible."
"lack probative force in that they are contingent, speculative, or merely Quinones v.
St. Vincent's Hospital of City of New York, 20 A.D.2d 529, 529 (1st Dept. 1963) (internal
quotations omitted). Therefore, based upon Plaintiffs insufficient proof, "itisjust as likely that
caused"
the [injuries were] as the result of the collision itself,without the padded or unpadded
[jury]"
status playing a role, "and any determination by the on the issue of padding "would be
speculation."
based upon sheer Montas v. JJC Const. Coro., 20 N.Y.3d 1016, 1018 (2013)
(internal quotations omitted).
Plaintiffs have also already conceded that "the resort operator is not bound to buy or
installed,"
.installevery safety device that could be and that Defendant did not have the obligation
padding."
to use the "best and most effective (Brief for Plaintiffs-Appellants at 2-3).
Nevertheless, with only a speculative conclusion and no foundational testimony from the expert
witnesses, Plaintiffs have failed to establish that the injuries were caused or enhañced by a lack
"average"
of padding as opposed to anything of a purportedly higher quality. In practical terms,
this means that Plaintiffs have completely failed to satisfy their burden of proving that padding
would have prevented or reduced the severity of injury here, and that the lack of padding was
2
2 of 3
FILED: NEW YORK COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 157038/2015
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/29/2019
therefore a proximate cause of those injuries. As a result, itwould be wholly irrational for the
jury to find in favor of the Plaintiff because any such finding would be premised entirely on
speculation, and Defendant's motion for a directed verdict should be granted.
Dated: May 29, 2019 ROEMER WALLENS GOLD & MINEAUX LLP
Matt éw J.Kelly, Esq.
Atto eys for Defe dant
. OFFI & PE DRES$:
13 Columbia Circle
Albany, New York 12203
Tel. No. (518) 464-1300
3
3 of 3
Preview
FILED: NEW YORK COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 157038/2015 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/29/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF NEW YORK STEVEN MADSEN and REBECCA MADSEN, and as parents and natural guardians of individually Index No.157038/15 C.M., an infant, Plaintiffs, - - BENCH MEMO RE: against DIRECTED VERDICT CATAMOUNT DEVELOPMENT CORPORATION, Defendant. PRELIMINARY STATEMENT Defendant submits this bench memorandum in support of itsmotion for a directed verdict pursuant to CPLR §4401. Based on the following, there is no rational process by which a jury could find that on the machine pole would have prevented infant Plaintiff's padding snowmaking injuries, or reduced the severity thereof, precluding a verdict in her favor. . DISCUSSION "'A directed verdict pursuant to CPLR 4401 is appropnate when, viewing the evidence in light most favorable to the nonmoving party and affording such party the benefit of every [the] nonmovant.'" inference, there is no rational process by which a jury could find in favor of the Smalley v. Harley-Davidson Motor Comoany Groun LLC, 170 A.D.3d 1549, 1551 (4th Dept. 2019) (quoting Clune v. Moore, 142 A.D.3d 1330, 1331 (4th Dept. 2016); citing Szczerbiak v. P_ilat,90 N.Y.2d 553, 556 (1997)). "Stated otherwise, a directed verdict should be granted only if irrational' plaintiff." itwould be 'utterly for the jury to render a verdict in favor of the Smalley at 1551 (quoting Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978)). "Generally, expert testimony is necessary to prove a deviation from accepted standards of [ ]care [in the industry] cause." and to establish proximate Goldberg v. Horowitz, 73 A.D.3d 691, 693 (2d Dept. 2010). 1 of 3 FILED: NEW YORK COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 157038/2015 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/29/2019 See also, Ciocca v. Park, 5 N.Y.3d 835, 836 (2005) (holding that motion for directed verdict was properly granted where "[p]laintiff did not lay an adequate foundation for the testimony of his experts" and therefore "failed to properly demonstrate causation"). Here, Plaintiffs lack the requisite expert testimony linking the alleged standard of care in Plaintiffs' the industry tò the proximate cause of infant Plaintiff's injuries. None of expert witnesses have laid the appropriate foundation to set forth an opinion on whether padding the pole that infant Plaintiff collided with would have prevented or lessened the severity of her injuries. Dr. Miller, Dr. Striker, and Mr. Guisado, at most, only proffered conclusions which possible." "lack probative force in that they are contingent, speculative, or merely Quinones v. St. Vincent's Hospital of City of New York, 20 A.D.2d 529, 529 (1st Dept. 1963) (internal quotations omitted). Therefore, based upon Plaintiffs insufficient proof, "itisjust as likely that caused" the [injuries were] as the result of the collision itself,without the padded or unpadded [jury]" status playing a role, "and any determination by the on the issue of padding "would be speculation." based upon sheer Montas v. JJC Const. Coro., 20 N.Y.3d 1016, 1018 (2013) (internal quotations omitted). Plaintiffs have also already conceded that "the resort operator is not bound to buy or installed," .installevery safety device that could be and that Defendant did not have the obligation padding." to use the "best and most effective (Brief for Plaintiffs-Appellants at 2-3). Nevertheless, with only a speculative conclusion and no foundational testimony from the expert witnesses, Plaintiffs have failed to establish that the injuries were caused or enhañced by a lack "average" of padding as opposed to anything of a purportedly higher quality. In practical terms, this means that Plaintiffs have completely failed to satisfy their burden of proving that padding would have prevented or reduced the severity of injury here, and that the lack of padding was 2 2 of 3 FILED: NEW YORK COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 157038/2015 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/29/2019 therefore a proximate cause of those injuries. As a result, itwould be wholly irrational for the jury to find in favor of the Plaintiff because any such finding would be premised entirely on speculation, and Defendant's motion for a directed verdict should be granted. Dated: May 29, 2019 ROEMER WALLENS GOLD & MINEAUX LLP Matt éw J.Kelly, Esq. Atto eys for Defe dant . OFFI & PE DRES$: 13 Columbia Circle Albany, New York 12203 Tel. No. (518) 464-1300 3 3 of 3