Mohamed v. Cellino Barnes, P.C

12 Citing cases

  1. Weigand v. Niagara Frontier Transportation Authority

    03-CV-0794E(Sc) (W.D.N.Y. Jun. 25, 2004)

    Consequently, NYS's motion to dismiss will be granted because NFTA is a separate legal entity over which NYS is not responsible and the Amended Complaint fails to state a claim against NYS.See Roman v. Niagara Frontier Transit Metro Sys., Inc., 1983 WL 458, at *1 (W.D.N.Y. 1983); Mohamed v. Cellino Barnes, P.C., 300 A.D.2d 1116, 1116 (4th Dep't 2002).Riverhead Transit Mix Corp. v. Walsh Constr. Co. (In re Riverhead Transit Mix Corp.), 1995 WL 1051649, at *6 (Bankr. S.D.N.Y. 1995) (finding that the Dormitory Authority is a public benefit corporation that "is not the same entity as the State of New York"); see also Herzog Contracting Corp., at *4 (finding that the NFTA was "sufficiently autonomous" from the State of New York such that it was not entitled to immunity under the Eleventh Amendment); In re Dormitory Auth. of the State of New York, 18 N.Y.2d 114, 117-118 (1966) (finding that the Dormitory Authority "enjoy[s] a separate existence" from the State of New York because, inter alia, it transacts its own business and hires its own personnel); Bell v. Manhattan Bronx Surface Transit Operating Auth., 364 N.Y.S.2d 274, 275-276 (N.Y.Sup.Ct. 1974) (holding that the Manhattan and Bronx Transit Authority was distinct from the state and noting that "[t]he very name, 'public benefit corporation', imparts a distinct connotation of separ

  2. Brooks v. Blanchard

    174 A.D.3d 1362 (N.Y. App. Div. 2019)   Cited 22 times

    [her] liability in this case" ( Ellison v. New York City Tr. Auth., 63 N.Y.2d 1029, 1030, 484 N.Y.S.2d 797, 473 N.E.2d 1171 [1984] ), but also to the jury's determination of her reliability as a witness, which is particularly important where, as here, there is conflicting witness testimony (see generallyMcGruder v. Gray [Appeal No. 1], 265 A.D.2d 822, 822, 696 N.Y.S.2d 335 [4th Dept. 1999] ). Under these circumstances, we conclude that plaintiffs should have been permitted to present Stephen's testimony with respect to whether defendant appeared to be intoxicated, which would allow the jury to consider whether and to what degree alcohol impaired defendant's senses and her ability to accurately perceive and recall the events about which she testified at trial. Furthermore, Stephen's proposed testimony regarding his observations of defendant, i.e., that she fumbled with her license, slurred her speech, and smelled of alcohol, was not cumulative of other evidence already before the jury (cf.Mohamed v. Cellino & Barnes, 300 A.D.2d 1116, 1116–1117, 752 N.Y.S.2d 465 [4th Dept. 2002], lv denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ). Defendant testified that she was on her way home from a bar, where she had consumed "[t]wo drinks" over the course of three to four hours, and the court permitted Stephen to testify that he did not call the police when defendant finally pulled over because "[he] believe[d] she may have been drinking and [he] did not want to get her in any more trouble." There was no evidence before the jury, however, suggesting that defendant was intoxicated or that her mental faculties and physical abilities may have been impaired due to her consumption of alcohol.

  3. Peay v. Peay

    156 A.D.3d 1358 (N.Y. App. Div. 2017)   Cited 8 times

    The mother further contends that the court abused its discretion in precluding her from testifying about a statement that the parties' son made concerning alleged abuse at the father's home. The mother failed to preserve that contention for our review (see Matter ofWilliam O. v. John A., 151 AD3d 1203, 1205 [3d Dept. 2017] ; Mohamed v. Cellino & Barnes, 300 A.D.2d 1116, 1116, 752 N.Y.S.2d 465 [4th Dept. 2002], lv denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ). We note that the court held a Lincoln hearing and spoke directly and extensively with the son about the alleged incident.

  4. J.N.K. Machine Corp. v. TBW, Ltd.

    155 A.D.3d 1611 (N.Y. App. Div. 2017)   Cited 9 times
    In J.N.K. Machine Corp.. v. TBW Ltd., 155 A.D.3d 1611; 65 N.Y.S.3d 382 [4th Dept., 2017] a corporate agent signed a contract on behalf of TBW Inc., instead of TBW Ltd.

    In actuality, the court properly precluded the admission in evidence of that exhibit on the ground that it was a letter authored by someone who had no personal knowledge of the allegations or events discussed therein (see Reynolds v. Towne Corp., 132 A.D.2d 952, 953, 518 N.Y.S.2d 528 [4th Dept.1987], lv. denied 70 N.Y.2d 613, 524 N.Y.S.2d 431, 519 N.E.2d 342 [1987] ). Even if we were to agree with defendants that the exhibit was improperly precluded, we would conclude that "any error [is] harmless since the precluded [exhibit] was cumulative of evidence already before the jury" ( Sweeney v. Peterson, 24 A.D.3d 984, 985, 805 N.Y.S.2d 477 [3d Dept 2005] ; see Mohamed v. Cellino & Barnes, 300 A.D.2d 1116, 1116, 752 N.Y.S.2d 465 [4th Dept.2002], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ).

  5. McMillian v. Burden

    136 A.D.3d 1342 (N.Y. App. Div. 2016)   Cited 24 times

    Even assuming, arguendo, that plaintiffs established a prima facie case of serious injury, we nevertheless conclude that the jury was entitled to reject the opinions of plaintiffs' physicians (see Sanchez v. Dawson, 120 A.D.3d 933, 935, 991 N.Y.S.2d 494). The jury's interpretation of the evidence was not “ ‘palpably irrational’ ” (Quigley v. Sikora, 269 A.D.2d 812, 813, 704 N.Y.S.2d 413), or “ ‘palpably wrong’ ” (Mohamed v. Cellino & Barnes, 300 A.D.2d 1116, 1117, 752 N.Y.S.2d 465, lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275), and the court therefore erred in granting plaintiffs' motions. It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motions are denied, and the jury verdict is reinstated.

  6. Sanchez v. Dawson

    120 A.D.3d 933 (N.Y. App. Div. 2014)   Cited 5 times

    The standard for determining whether a verdict should be set aside is whether “the evidence so preponderate[d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence” (Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [internal quotation marks omitted] ). Thus, a verdict should not be set aside unless it is “ ‘palpably irrational’ ” (Quigley v. Sikora, 269 A.D.2d 812, 813, 704 N.Y.S.2d 413) or “ ‘palpably wrong’ ” (Mohamed v. Cellino & Barnes, 300 A.D.2d 1116, 1117, 752 N.Y.S.2d 465, lv. denied99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275). “To conclude as a matter of law that a jury verdict is not supported by sufficient evidence, there must be ‘no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial’ ” (Mazzella v. Capobianco, 27 A.D.3d 532, 532, 813 N.Y.S.2d 130). We also note that, in evaluating a jury verdict, we accord “ ‘great deference ... to the fact-finding function of the jury, [which] is in the foremost position to assess witness credibility’ ” (Guthrie v. Overmyer, 19 A.D.3d 1169, 1170, 797 N.Y.S.2d 203).

  7. Sweeney v. Peterson

    24 A.D.3d 984 (N.Y. App. Div. 2005)   Cited 9 times

    Moreover, the challenged remarks concerning plaintiffs' experts, to the extent even improper, were not so egregious as to warrant a new trial ( see Hitchcock v. Best, supra; Simpson v. K-Mart Corp., supra; see also Mayi v. 1551 St. Nicholas, 6 AD3d 219, 220; Khan v. Galvin, 206 AD2d 776). Finally, to the extent that Supreme Court erred in limiting the testimony of certain witnesses, any error was harmless since the precluded testimony was cumulative of evidence already before the jury during plaintiffs' direct case ( see Mayi v. 1551 St. Nicholas, supra; Mohamed v. Cellino Barnes, 300 AD2d 1116, lv denied 99 NY2d 510; Horner v. Way, 257 AD2d 819, 820). Ordered that the judgment is affirmed, with costs.

  8. Beeley v. Spencer

    309 A.D.2d 1303 (N.Y. App. Div. 2003)   Cited 1 times

    Four of those eyewitnesses testified at trial, and thus defendant was afforded a full and fair opportunity to cross-examine them concerning their statements. Although the two remaining eyewitnesses did not testify at trial, their statements were merely cumulative of the statements testified to by the four other witnesses, and thus the admission of their statements must be deemed harmless error ( see generally Mohamed v. Cellino Barnes, 300 A.D.2d 1116, lv denied 99 N.Y.2d 510).

  9. Riolo v. Goggin

    309 A.D.2d 1199 (N.Y. App. Div. 2003)

    The further contention of defendant that the verdict is against the weight of the evidence is not preserved for our review ( see Givens v Rochester City School Dist., 294 A.D.2d 898, 899; Nitzke v. Loveland, 188 A.D.2d 1058, 1059). In any event, we conclude that the verdict is not "palpably wrong" ( Petrovski v. Fornes, 125 A.D.2d 972, 973, lv denied 69 N.Y.2d 608; see Mohamed v. Cellino Barnes, 300 A.D.2d 1116, 1117, lv denied 99 N.Y.2d 510).

  10. 180 E. 88th St. Apartment Corp. v. Law Office of Robert Jay Gumenick, P.C.

    2010 N.Y. Slip Op. 33848 (N.Y. Sup. Ct. 2010)   Cited 2 times

    A similar state of confusion appears to exist in the Third and Fourth Departments, which have sometimes referred to the standard as requiring only that the malpractice be "a proximate cause" of the loss, Adamski v Lama, supra; Ehlinger v Ruberti, Girvin & Ferlazzo, P.C., 304 AD2d 925 (3d Dept 2003); Busino v Meachem, 270 AD2d 606 (3d Dept 2000); compare with e.g. Ryan v Powers & Santola, LLP, 73 AD3d 1273, supra, (requiring proof of "but for" causation to establish legal malpractice claim); Bixby v Somerville, 62 AD3d 1137 (3d Dept 2009); see also The New Kayak Pool Corp. v Kavinoky Cook LLP, 74 AD3d 1852, supra; Zulawski v Taylor, 63 AD3d 1552 (4th Dept 2009); compare with e.g. Mohamed v Cellino & Barnes, P.C., 300 AD2d 1116 (4th Dept 2002).