Boolbol v. Paradigm Management Group, LLC

2016 NY Slip Op 7875, 144 A.D.3d 577, 40 N.Y.S.3d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2016
• Docket: 2288 101287/09
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered February 3, 2015, upon a jury verdict, in defendants’ favor, unanimously affirmed, without costs.

The trial court properly ruled that the statement in an ambulance report that plaintiff “lost his footing going down the steps” was inadmissible as a prior consistent statement (see People v McDaniel, 81 NY2d 10, 18 [1993]). There was evidence at trial that plaintiff’s fall was the result not of an accident but of a voluntary leap down the stairs, but plaintiff’s motive to fabricate had arisen at the moment that he landed and hurt himself.

The trial court properly declined to give a missing document charge as to a claimed surveillance videotape and photographs taken by an employee of defendant the Mansion (see Martelly v New York City Health & Hosps. Corp., 276 AD2d 373 [1st Dept 2000]). Plaintiff failed to show that the videotape ever existed. He failed to show that the photographs would be relevant to any disputed factual issue.

In its verdict interrogatories, the trial court properly limited defendants’ liability to the absence of handrails on the stairs since there was no evidence to support any other theory of liability (Fa llon v Damianos, 192 AD2d 576 [2d Dept 1993], lv denied 83 NY2d 751 [1994]).

Concur—Friedman, J.P., Saxe, Richter, Gische and Kapnick, JJ.