Fanek v. City of Yonkers

Appellate Division of the Supreme Court of New York

Fanek v. City of Yonkers

287 A.D.2d 683, 732 N.Y.S.2d 99, 2001 N.Y. App. Div. LEXIS 10168

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 29, 2001

StatusPublished

Cited by4 cases

This text of 287 A.D.2d 683 (Fanek v. City of Yonkers) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fanek v. City of Yonkers, 287 A.D.2d 683, 732 N.Y.S.2d 99, 2001 N.Y. App. Div. LEXIS 10168 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Cowhey, J.), entered March 14, 2000, which, upon a jury verdict on the issue of liability, and upon the denial of their motion pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence, is in favor of the defendant and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs contend that the Supreme Court erred in refusing to permit them to use the deposition testimony of the defendant’s employee to establish a foundation for the admission of a certain report as a business record. Although we agree that the Supreme Court improvidently exercised its discretion in excluding the deposition testimony which was admissible pursuant to CPLR 3117 (a) (2) (see, Lagana v French, 145 AD2d 541), the error was harmless in light of the jury’s finding that the defendant was negligent in maintaining the outdoor stairs where the infant plaintiff fell, but that the defendant’s negligence was not a proximate cause of the accident (see, Martin v City of New York, 275 AD2d 351, 353; Sherwood v State of New York, 238 AD2d 396; Di Santo v County of Westchester, 210 AD2d 628, 629). Krausman, J. P., S. Miller, Schmidt and Crane, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Cowhey, J.), entered March 14, 2000, which, upon a jury verdict on the issue of liability, and upon the denial of their motion pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence, is in favor of the defendant and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs contend that the Supreme Court erred in refusing to permit them to use the deposition testimony of the defendant’s employee to establish a foundation for the admission of a certain report as a business record. Although we agree that the Supreme Court improvidently exercised its discretion in excluding the deposition testimony which was admissible pursuant to CPLR 3117 (a) (2) (see, Lagana v French, 145 AD2d 541), the error was harmless in light of the jury’s finding that the defendant was negligent in maintaining the outdoor stairs where the infant plaintiff fell, but that the defendant’s negligence was not a proximate cause of the accident (see, Martin v City of New York, 275 AD2d 351, 353; Sherwood v State of New York, 238 AD2d 396; Di Santo v County of Westchester, 210 AD2d 628, 629). Krausman, J. P., S. Miller, Schmidt and Crane, JJ., concur.

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Bluebook (online)

287 A.D.2d 683, 732 N.Y.S.2d 99, 2001 N.Y. App. Div. LEXIS 10168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fanek-v-city-of-yonkers-nyappdiv-2001.

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