Pena v. City of New York

Appellate Division of the Supreme Court of New York

Pena v. City of New York

261 A.D.2d 373, 689 N.Y.S.2d 223, 1999 N.Y. App. Div. LEXIS 4491

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

DecidedMay 3, 1999

StatusPublished

Cited by2 cases

This text of 261 A.D.2d 373 (Pena v. City of New York) 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

Pena v. City of New York, 261 A.D.2d 373, 689 N.Y.S.2d 223, 1999 N.Y. App. Div. LEXIS 4491 (N.Y. Ct. App. 1999).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated October 30, 1997, which, inter alia, granted the defendant’s motion to set aside the jury verdict in favor of the plaintiff and directed that judgment be entered in favor of the defendant dismissing the complaint.

Ordered that the order is affirmed, with costs.

After jury selection and prior to trial, the plaintiff sought to preclude the testimony of a lifeguard on the ground that the defendant failed to comply with pretrial discovery orders to disclose her identity. However, since there is no evidence in the record of willful or contumacious conduct on the part of the defendant’s attorney in failing to disclose the identity of the lifeguard, the court did not err in allowing the lifeguard to testify (see, Malcolm v Darling, 233 AD2d 425; Bermudez v Laminates Unlimited, 134 AD2d 314).

[374]*374In addition, the plaintiff failed to show that the defendant’s failure to scan the pool and respond immediately to his accident caused an exacerbation of his spinal injuries (see, Benitez v New York City Bd. of Educ., 73 NY2d 650; Sheehan v City of New York, 40 NY2d 496). Accordingly, the Supreme Court properly set aside the jury verdict in favor of the plaintiff and directed a verdict in favor of the defendant dismissing the complaint. Altman, J. P., Goldstein, Plorio and McGinity, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated October 30, 1997, which, inter alia, granted the defendant’s motion to set aside the jury verdict in favor of the plaintiff and directed that judgment be entered in favor of the defendant dismissing the complaint.

Ordered that the order is affirmed, with costs.

After jury selection and prior to trial, the plaintiff sought to preclude the testimony of a lifeguard on the ground that the defendant failed to comply with pretrial discovery orders to disclose her identity. However, since there is no evidence in the record of willful or contumacious conduct on the part of the defendant’s attorney in failing to disclose the identity of the lifeguard, the court did not err in allowing the lifeguard to testify (see, Malcolm v Darling, 233 AD2d 425; Bermudez v Laminates Unlimited, 134 AD2d 314).

[374]*374In addition, the plaintiff failed to show that the defendant’s failure to scan the pool and respond immediately to his accident caused an exacerbation of his spinal injuries (see, Benitez v New York City Bd. of Educ., 73 NY2d 650; Sheehan v City of New York, 40 NY2d 496). Accordingly, the Supreme Court properly set aside the jury verdict in favor of the plaintiff and directed a verdict in favor of the defendant dismissing the complaint. Altman, J. P., Goldstein, Plorio and McGinity, JJ., concur.

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Bluebook (online)

261 A.D.2d 373, 689 N.Y.S.2d 223, 1999 N.Y. App. Div. LEXIS 4491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-v-city-of-new-york-nyappdiv-1999.

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