Starting last first, here we go.
McPartlan v Basile, 2009 NY Slip Op 05521 (App. Div., 2nd, 2009)
Contrary to the appellants' contention, the engineer's report was admitted into evidence, and properly so, not to prove the truth or accuracy of its contents, but to establish that the plaintiffs had a good faith basis for determining that the report was unacceptable. Furthermore, the record supports the conclusion that the plaintiffs did, in fact, act in good faith, and thus their termination of the contract of sale pursuant to Paragraph 39 of the contract was valid (see Hirsch v Food Resources, Inc., 24 AD3d 293, 296; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229, 230-31; Richbell Info. Sers. v Jupiter Partners, 309 AD2d 288, 302). Accordingly, the Supreme Court properly determined that the plaintiffs were entitled to the return of their down payment.
Yun v Barber, 2009 NY Slip Op 05535 (App. Div., 2nd, 2009)
The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).
Vickers v Francis, 2009 NY Slip Op 05540 (App. Div., 2nd, 2009)
Initially, the X ray report dated September 22, 2006, the magnetic resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the medical records from Alliance Medical Office, the plaintiff's emergency room and hospital records, and the reports of Dr. Nunzio Saulle dated August 31, 2006, and October 19, 2006, were not in admissible form because they were unsworn (see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).
The affirmed medical reports of Dr. Saulle were insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her cervical or lumbar spine as a result of the subject accident. Neither the plaintiff nor Dr. Saulle proffered competent objective medical evidence revealing the existence of a significant limitation in either region of the plaintiff's spine that [*2]was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525). Furthermore, in reaching his conclusion in his affirmed medical reports, Dr. Saulle clearly relied on the unsworn MRI reports of Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his affirmed reports, the fact that the plaintiff injured her neck and back in a subsequent accident in October 2007. His failure to address that accident and the resulting injuries rendered speculative his conclusions that the range of motion limitations he noted in the plaintiff's cervical and lumbar regions after October 2007 were caused by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).
Wartski v C.W. Post Campus of Long Is. Univ., 2009 NY Slip Op 05115 (App. Div., 2nd, 2009)
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had actual notice of a recurring dangerous condition such that it could be charged with constructive notice of each specific recurrence of that condition (see Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346; Weisenthal v Pickman, 153 AD2d 849, 851). Here, at most, the evidence submitted by the plaintiff established that the defendant had only a general awareness that the stairs became wet when ice and snow was tracked into the building, which was insufficient to establish constructive notice of the particular condition which caused the plaintiff to fall (see Arrufat v City of New York, 45 AD3d 710; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656; Andujar v Benenson Inv. Co., 299 AD2d at 504; Yearwood v Cushman & Wakefield, Inc., 294 AD2d 568, 569).
The plaintiff's expert affidavit should not have been considered in determining the motion since the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff offered no valid excuse for her delay [*2]in identifying the expert (see CPLR 3101[d][1]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863; Gerry v Commack Union Free Sch. Dist., 52 AD3d 467, 469; Gralnik v Brighton Beach Assocs., LLC, 3 AD3d 518; Dawson v Cafiero, 292 AD2d 488). In any event, even if the plaintiff's expert affidavit could have properly been considered, the result would not have been different.
The bold is mine.
