Rivera v. East Madison Street, Inc.

Appellate Division of the Supreme Court of New York

Rivera v. East Madison Street, Inc.

37 A.D.2d 809, 324 N.Y.S.2d 884, 1971 N.Y. App. Div. LEXIS 3351

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

DecidedOctober 4, 1971

StatusPublished

Cited by1 cases

This text of 37 A.D.2d 809 (Rivera v. East Madison Street, Inc.) 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

Rivera v. East Madison Street, Inc., 37 A.D.2d 809, 324 N.Y.S.2d 884, 1971 N.Y. App. Div. LEXIS 3351 (N.Y. Ct. App. 1971).

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Opinion

Interlocutory judgment, Supreme Court, New York County, entered on March 18, 1971, in favor of the plaintiff, unanimously reversed, on the law and the facts, and vacated, without costs and without disbursements, and a new trial directed. This negligence action was tried by a jury on the issue of liability. The plaintiff alleged personal injuries as a result of falling down a flight of stairs due to a defective step. Constructive notice was alleged in the bill of particulars, and when one of the plaintiff’s witnesses, Rafael Torres, testified to what amounted to actual notice, the court properly directed the jury to disregard it. During their deliberation, the jury requested a reading of this excluded testimony. The court then instructed them that this portion of Torres’ testimony had been excluded and they should only consider constructive notice. The foreman then requested that the admissible parts of Torres’ testimony be read because it was “ fuzzy ” in their memories. At this point, and unexplained in the record, only the testimony that had been excluded was read to the jury. This was clearly prejudicial to the defendant and of such a nature as to mandate a new trial. Concur — Capozzoli, J. P., McGivern, Kupferman, Murphy and Steuer, JJ.

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Interlocutory judgment, Supreme Court, New York County, entered on March 18, 1971, in favor of the plaintiff, unanimously reversed, on the law and the facts, and vacated, without costs and without disbursements, and a new trial directed. This negligence action was tried by a jury on the issue of liability. The plaintiff alleged personal injuries as a result of falling down a flight of stairs due to a defective step. Constructive notice was alleged in the bill of particulars, and when one of the plaintiff’s witnesses, Rafael Torres, testified to what amounted to actual notice, the court properly directed the jury to disregard it. During their deliberation, the jury requested a reading of this excluded testimony. The court then instructed them that this portion of Torres’ testimony had been excluded and they should only consider constructive notice. The foreman then requested that the admissible parts of Torres’ testimony be read because it was “ fuzzy ” in their memories. At this point, and unexplained in the record, only the testimony that had been excluded was read to the jury. This was clearly prejudicial to the defendant and of such a nature as to mandate a new trial. Concur — Capozzoli, J. P., McGivern, Kupferman, Murphy and Steuer, JJ.

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Bluebook (online)

37 A.D.2d 809, 324 N.Y.S.2d 884, 1971 N.Y. App. Div. LEXIS 3351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-east-madison-street-inc-nyappdiv-1971.

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