Bryant v. State

Oct 26, 2010
Versions:77 A.D.3d 875
909 N.Y.S.2d 385
Bunnylight-1.0

The chiropractor‘s affidavit submitted on behalf of the plaintiff specifying the significant contemporaneous restrictions in the plaintiff‘s lumbar and cervical spine range of motion, and evidence of herniated and bulging discs as confirmed by magnetic resonance image tests, as well as recent range of motion testing showing similar limitations in the plaintiff‘s cervical and lumbar spine range of motion, were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Acosta v Rubin, 2 AD3d at 657; see also Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2010]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.

William Bryant, Appellant-Respondent, v STATE OF NEW YORK, Respondent-Appellant. [909 NYS2d 385]—

In a claim to recover damages for negligence, the claimant appeals from a judgment of the Court of Claims (Mignano, J.), dated July 21, 2009, which, upon a decision of the same court dated May 13, 2009, made after a nonjury trial on the issues of apportionment of fault and damages, inter alia, finding the defendant 60% at fault and finding him 40% at fault, and finding that he sustained damages in the principal sum of $173,681, is in favor of him and against the defendant in the principal sum of only $104,208, and the defendant cross-appeals, as limited by its brief, from stated portions of the same judgment.

Ordered that the judgment is reversed, on the facts, without costs or disbursements, and the matter is remitted to the Court of Claims for the entry of an appropriate amended judgment in accordance herewith.

On a prior appeal (see Bryant v State of New York, 23 AD3d 592 [2005]), this Court determined that the defendant failed to exercise due care in performing its assumed duty to screen job candidates for positions with the claimant. Further, this Court determined that the defendant‘s failure to so exercise due care was a proximate cause of the losses sustained by the claimant when one of those job candidates, who was hired by the claimant as a bookkeeper, embezzled funds from the claimant‘s company (id. at 593-594). The matter was remitted to the Court of Claims for a trial on the issue of whether to apportion any fault to the claimant and, if so, to determine the percentage of fault attributable to him, and on the issue of damages (id. at 592).

On an appeal from a judgment entered after a nonjury trial, this Court “may render the judgment it finds warranted by the facts, taking into account in a close case ‘the fact that the trial judge had the advantage of seeing the witnesses’ ” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134 [1930]). Upon our review of the record, we find that the apportionment of 40% of the fault to the claimant is not supported by the evidence, and that 15% of the fault is appropriately apportioned to the claimant based upon, among other things, his failure to implement appropriate measures to safeguard the financial integrity of the company, such as restricting access to the company‘s checks. However, contrary to the claimant‘s contention, the finding that he sustained damages in the principal sum of $173,681 was not inadequate (see Jian Ren Chen v City of New York, 64 AD3d 542, 543 [2009]). Accordingly, we reverse the judgment and remit the matter for entry of an appropriate amended judgment in favor of the claimant in the principal sum of $147,628.85. Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.

Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.

Cadim Stonehenge 56th Associates, LLC, Respondent, v 57 DRY CLEAN INC., Doing Business as LUCKY CLEANERS, et al., Appellants. [909 NYS2d 637]—In an action, inter alia, to recover damages for breach of a lease, the defendants appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated September 23, 2009, which denied their motion to vacate a judgment of the same court dated April 2, 2009, in favor of the plaintiff and against them in the total sum of $109,294.02, entered upon their default in filing opposition to the plaintiff‘s motion for summary judgment.

Ordered that the order is modified, on the facts and as an exercise of discretion, by deleting the provision thereof denying that branch of the defendants’ motion which was to vacate so much of the judgment as was in favor of the plaintiff and against the individual defendant, Hong Jian Liu, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The individual defendant, Hong Jian Liu, demonstrated a reasonable excuse for his default and a potentially meritorious defense (see CPLR 5015 [a] [1]; Martins v Yukhayev, 63 AD3d 697, 698 [2009]). Accordingly, that branch of the defendants’ motion which was to vacate so much of the judgment as was in favor of the plaintiff and against the individual defendant should be granted.

The defendants’ remaining contentions are without merit.

Dillon, J.P., Florio, Roman and Sgroi, JJ., concur.

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William Bryant, Appellant-Respondent, v STATE OF NEW YORK, Respondent-Appellant. [909 NYS2d 385]—

In a claim to recover damages for negligence, the claimant appeals from a judgment of the Court of Claims (Mignano, J.), dated July 21, 2009, which, upon a decision of the same court dated May 13, 2009, made after a nonjury trial on the issues of apportionment of fault and damages, inter alia, finding the defendant 60% at fault and finding him 40% at fault, and finding that he sustained damages in the principal sum of $173,681, is in favor of him and against the defendant in the principal sum of only $104,208, and the defendant cross-appeals, as limited by its brief, from stated portions of the same judgment.

Ordered that the judgment is reversed, on the facts, without costs or disbursements, and the matter is remitted to the Court of Claims for the entry of an appropriate amended judgment in accordance herewith.

On a prior appeal (see Bryant v State of New York, 23 AD3d 592 [2005]), this Court determined that the defendant failed to exercise due care in performing its assumed duty to screen job candidates for positions with the claimant. Further, this Court determined that the defendant‘s failure to so exercise due care was a proximate cause of the losses sustained by the claimant when one of those job candidates, who was hired by the claimant as a bookkeeper, embezzled funds from the claimant‘s company (id. at 593-594). The matter was remitted to the Court of Claims for a trial on the issue of whether to apportion any fault to the claimant and, if so, to determine the percentage of fault attributable to him, and on the issue of damages (id. at 592).

On an appeal from a judgment entered after a nonjury trial, this Court “may render the judgment it finds warranted by the facts, taking into account in a close case ‘the fact that the trial judge had the advantage of seeing the witnesses’ ” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134 [1930]). Upon our review of the record, we find that the apportionment of 40% of the fault to the claimant is not supported by the evidence, and that 15% of the fault is appropriately apportioned to the claimant based upon, among other things, his failure to implement appropriate measures to safeguard the financial integrity of the company, such as restricting access to the company‘s checks. However, contrary to the claimant‘s contention, the finding that he sustained damages in the principal sum of $173,681 was not inadequate (see Jian Ren Chen v City of New York, 64 AD3d 542, 543 [2009]). Accordingly, we reverse the judgment and remit the matter for entry of an appropriate amended judgment in favor of the claimant in the principal sum of $147,628.85.

Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.

``` Matte-style HTML document provided. It reflects the structure and details of the legal opinion from the PDF screenshot for the second case on the page (William Bryant v State of New York). The first part of the PDF was part of a previous case and was skipped as per instructions. The second case (Cadim Stonehenge) started on the bottom of page 2 and was not fully present, so the primary focus was on the Bryant case. However, looking at the instruction “convert only the MAIN opinion — the one with a complete case caption and full opinion body“, the Bryant case is the main one here. I have formatted it accordingly. Note: The OCR for the Bryant case header was actually on page 1, following a snippet of another case. I have combined the Bryant content from pages 1 and 2. Wait, the Bryant case header is on page 1. It finishes on page 2. Then a new case “Cadim Stonehenge” starts on page 2. I should provide the Bryant case as it has a complete caption and full opinion body. I corrected the court name to “Supreme Court, Appellate Division, Second Department” as that is the court of the reporting judges (Rivera, Skelos, etc.) and the NYS2d citation style. The Bryant case starts after the “concur.” in the first paragraph of page 1. The caption starts: “William Bryant, Appellant-Respondent, v STATE OF NEW YORK, Respondent-Appellant. [909 NYS2d 385]” Final check of the Bryant text: Page 1 text: “In a claim to recover... Court ‘may render the judgment it finds warranted by the” Page 2 text: “facts, taking into account... Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.” This is a complete opinion. One correction: the first case “Cadim Stonehenge” also has a complete caption and opinion on page 2. I should only convert the main opinion. Bryant is the first full opinion starting in this document segment. I will stick with Bryant. However, looking at the prompt “Multi-Opinion Documents: ... convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” Bryant starts after some partial text. Bryant is the first complete one. Cadim Stonehenge is also complete. I will provide the first complete one, Bryant. ```html

William Bryant, Appellant-Respondent, v STATE OF NEW YORK, Respondent-Appellant. [909 NYS2d 385]—In a claim to recover damages for negligence, the claimant appeals from a judgment of the Court of Claims (Mignano, J.), dated July 21, 2009, which, upon a decision of the same court dated May 13, 2009, made after a nonjury trial on the issues of apportionment of fault and damages, inter alia, finding the defendant 60% at fault and finding him 40% at fault, and finding that he sustained damages in the principal sum of $173,681, is in favor of him and against the defendant in the principal sum of only $104,208, and the defendant cross-appeals, as limited by its brief, from stated portions of the same judgment.

Ordered that the judgment is reversed, on the facts, without costs or disbursements, and the matter is remitted to the Court of Claims for the entry of an appropriate amended judgment in accordance herewith.

On a prior appeal (see Bryant v State of New York, 23 AD3d 592 [2005]), this Court determined that the defendant failed to exercise due care in performing its assumed duty to screen job candidates for positions with the claimant. Further, this Court determined that the defendant‘s failure to so exercise due care was a proximate cause of the losses sustained by the claimant when one of those job candidates, who was hired by the claimant as a bookkeeper, embezzled funds from the claimant‘s company (id. at 593-594). The matter was remitted to the Court of Claims for a trial on the issue of whether to apportion any fault to the claimant and, if so, to determine the percentage of fault attributable to him, and on the issue of damages (id. at 592).

On an appeal from a judgment entered after a nonjury trial, this Court “may render the judgment it finds warranted by the facts, taking into account in a close case ‘the fact that the trial judge had the advantage of seeing the witnesses’ ” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134 [1930]). Upon our review of the record, we find that the apportionment of 40% of the fault to the claimant is not supported by the evidence, and that 15% of the fault is appropriately apportioned to the claimant based upon, among other things, his failure to implement appropriate measures to safeguard the financial integrity of the company, such as restricting access to the company‘s checks. However, contrary to the claimant‘s contention, the finding that he sustained damages in the principal sum of $173,681 was not inadequate (see Jian Ren Chen v City of New York, 64 AD3d 542, 543 [2009]). Accordingly, we reverse the judgment and remit the matter for entry of an appropriate amended judgment in favor of the claimant in the principal sum of $147,628.85.

Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.

``` Final Check: - Verified page markers. - Bryant case header is on page 875. - Bryant case finishes on page 876. - Included citation. - No br tags. - Verbatim text. - Mid-paragraph page break handled. - Citations wrapped. - Correct Court in Case Information based on the reporter (Appellate Division, Second Dept). - Short name as per Bluebook. - Jurisdiction NY. - Cite for law wrapped. The Cadim Stonehenge case starts on 876 but since Bryant is the main complete opinion starting first, I‘ve provided that. One might argue Cadim is also a main opinion. Usually, in these tasks, one complete opinion is expected if there are multiple. Bryant is the first complete one in sequence. Actually, both are complete within the provided images. Bryant is the primary one here. One detail: the [909 NYS2d 385] is the citation for Bryant. Cadim‘s is [909 NYS2d 637]. I will provide Bryant as the main opinion. One final fix: “AD 3d” to “AD3d” in law/case tags if needed, but inner text must be verbatim. Inner text: “74 AD 3d 1328” (actually that was in the partial case text at the top, which is skipped). Bryant text check: “23 AD3d 592“. Verbatim inner text matches OCR/Image. Corrected the Court in Case Info: Court of Claims is where the judgment came from, but this is an Appellate Division decision. The summary/signature shows the Appellate Division judges.