FERN FLOMENHAFT PLLC RELATIONSHIP, RESPONSE, RESULTS
  • Home
  • About
  • Attorneys
  • Contact
  • Firm News
  • Practice Areas
  • QUOTE
  • Blog

FF PLLC WINS SUMMARY JUDGMENT DISMISSING PLAINTIFF’S CASE – OPEN AND OBVIOUS CONDITION AND NO DEFECT

5/26/2016

1 Comment

 
On April 20, 2016, Judge Sylvia Ash granted our motion for summary judgment in this action in which plaintiff alleged that she sustained a left distal femur periprosthetic fracture resulting in open reduction and internal fixation with bone grafting under general aneshthesia as a result of what she claimed was an elevated room division, resembling a door saddle, between her living room and dining room.
In support of the motion we argued that  (1) the condition  -- an elevated door saddle/room division is not a defective condition, violation of any applicable code or dangerous; (2) the elevation in Plaintiff’s apartment while she lived there for 10 (ten) years before the accident was readily observable, open and obvious, and did not cause the accident; and (3) Plaintiff’s own failure to observe the condition she knew to be present was the cause of her fall when her walker hit the door saddle and went flying out from under her. We submitted the affidavit of expert Mark Marpet, which included a clear, color photograph of the condition in pristine condition.
​
Plaintiff, in opposition to the motion, submitted no expert affidavit although counsel for plaintiff argued that our expert’s reference to Plaintiff’s 3101(d) was sufficient to create an issue of fact based on a “dispute between experts.” In reply and at argument, we argued that mere reference to a position is not the equivalent of evidence and has no weight.
Judge Sylvia Ash agreed with our position in its entirety and granted the motion, dismissing the plaintiff’s case. She was persuaded by the photograph, in particular, that there was no defect and the condition was open and obvious.
​
Iacono v. Alboukai, Index No.: 501722/12

​
1 Comment
Adult Classifieds Connecticut link
1/23/2023 02:01:37 pm

This was a llovely blog post

Reply



Leave a Reply.

    Archives

    May 2024
    November 2019
    February 2019
    January 2019
    December 2017
    October 2017
    June 2016
    May 2016
    April 2016

    Categories

    All

    RSS Feed

    Picture
The law office of Fern Flomenhaft PLLC, 26 Broadway, Suite 1108, New York, NY 10004 * 212 796-7601 * fflomlaw.com
© Fern Flomenhaft PLLC
Pursuant to the amendments to the New York Rules of Professional Conduct governing attorney advertising in New York, this website may constitute advertising. Viewers of this website are advised that prior results do not guarantee a similar outcome.
  • Home
  • About
  • Attorneys
  • Contact
  • Firm News
  • Practice Areas
  • QUOTE
  • Blog