Alexander v. City of New York

Appellate Division of the Supreme Court of New York

Alexander v. City of New York

240 A.D.2d 603, 659 N.Y.S.2d 998, 1997 N.Y. App. Div. LEXIS 6932

Appellate Division of the Supreme Court of the State of New York·Decided June 23, 1997·Published·Cited by 1 cases

Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Berke, J.), entered March 28, 1996, as, upon a jury verdict in favor of the defendant City of New York and against them, dismissed the complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff Estelle Alexander allegedly tripped and fell over an elevated sidewalk flag owned by the defendant City of New York. Her testimony was not contradicted at trial. The jury returned a verdict finding that the City was negligent, but that its negligence was not a substantial factor in causing the accident. The plaintiffs contend, inter alia, that the City [604] improperly used an unadmitted medical report to impeach the plaintiff, and that the summation by the City was improper.

The plaintiffs’ contentions are unpreserved for appellate review (see, CPLR 5501 [a]; see also, Bacigalupo v Healthshield, Inc., 231 AD2d 538; Torrado v Lutheran Med. Ctr., 198 AD2d 346). In any event, the unadmitted medical report was not improperly used, and the summation by the City constituted fair comment on the evidence presented (see, Freeman v Kirkland, 184 AD2d 331). The plaintiffs’ remaining contentions are either without merit or involved harmless errors which were cured by the court’s instructions (see, Lauter v Village of Great Neck, 231 AD2d 553). Mangano, P. J., Copertino, Florio and McGinity, JJ., concur.

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In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Berke, J.), entered March 28, 1996, as, upon a jury verdict in favor of the defendant City of New York and against them, dismissed the complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff Estelle Alexander allegedly tripped and fell over an elevated sidewalk flag owned by the defendant City of New York. Her testimony was not contradicted at trial. The jury returned a verdict finding that the City was negligent, but that its negligence was not a substantial factor in causing the accident. The plaintiffs contend, inter alia, that the City [604] improperly used an unadmitted medical report to impeach the plaintiff, and that the summation by the City was improper.

The plaintiffs’ contentions are unpreserved for appellate review (see, CPLR 5501 [a]; see also, Bacigalupo v Healthshield, Inc., 231 AD2d 538; Torrado v Lutheran Med. Ctr., 198 AD2d 346). In any event, the unadmitted medical report was not improperly used, and the summation by the City constituted fair comment on the evidence presented (see, Freeman v Kirkland, 184 AD2d 331). The plaintiffs’ remaining contentions are either without merit or involved harmless errors which were cured by the court’s instructions (see, Lauter v Village of Great Neck, 231 AD2d 553). Mangano, P. J., Copertino, Florio and McGinity, JJ., concur.

Alexander v. City of New York, 240 A.D.2d 603, 659 N.Y.S.2d 998, 1997 N.Y. App. Div. LEXIS 6932 (N.Y. Ct. App. 1997).

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240 A.D.2d 603 (Alexander v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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