The first department is out of controlFebruary 24, 2010

Yes, you read that title correctly.  Three bizarre decisions as of late, one which deals tangentially with no fault (Garcia v Leon, 2010 NY Slip Op 01538 [1st Dept 2010]), one which effects the safety of no-fault attorneys going to court in the bronx (People v Correa, 2010 NY Slip Op 01533 [1st Dept. 2010]) and one which effects the negligence case of a no-fault attorney (Tselebis v Ryder Truck Rental, Inc., 2010 NY Slip Op 01442 [1st Dept 2010]) have been decided by the First Department.

Garcia is completely at odds with conflicting Second Department precedent inasmuch as it affirmatively allows for hearsay evidence to be used to defeat a summary judgment motion as set forth herein: “[t]he affidavit of her treating chiropractor, taken in conjunction with her medical experts’ unsworn statements and her MRI tests, raises questions as to whether her shoulder and cervical and lumbar spinal injuries are permanent or significant, and not merely preexisting, degenerative, or caused by a subsequent 2007 accident (see Liriano v Ostrich Cab Corp., 61 AD3d 543 [2009]; Hammett v Diaz-Frias, 49 AD3d)”

Correa ruled that former Chief Judge Judith Kaye’s creation of a Supreme Court, criminal division, in the Bronx, which had original jurisdiction over both misdemeanor and felony cases, was unconstitutional.  Thus, many violent misdemeanants’ convictions are being vacated.  Look both ways before you cross the street because Rikers is being emptied.  I am being facetious by the way.  Finally, Tselebis takes the notion of summary judgment and I think turns it into an evidentiary fact finding device, contrary to the purpose of the summary disposition statute, but consistent with the modern view of the summary judgment motion, i.e., a trial on papers.

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