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New Trial Ordered In Bronx Superior Court For Negligence Case Involving Man Injured In A Sinkhole

An appeals court has made an order for a new trial in a case where a man was injured when encountering a large sinkhole in the Bronx. A panel of four judges reversed a lower court ruling that prevented Myles Gonzalez from presenting evidence that included photos of the site that were taken two weeks after the incident and specifications that related to the roadway, as well as other evidence. The court determined that they had erred in entering a directed verdict based on the defense motion and that a lack of evidence existed to prove that the defendants were negligent. The prior court felt that the photos taken two weeks later were not relevant evidence to the case against the defendants: the City of New York and Halcyon, a roadway contractor.

The plaintiff was walking across an urban intersection when he abruptly fell into a sinkhole. The claim asserts that Halcyon, who recently performed the road repairs, had failed to properly conduct them according to contract specifications. Several weeks before the incident, a water pipe had burst within the intersection, which was repaired, and then Halcyon filled and repaved the surface. The plaintiff claims that the space within the sinkhole was very wet. In addition to the photos, Gonzalez had sought to present specifications obtained from the Department of Transportation that outline the provisions in the contract with Halcyon.

The court had barred the contract specifications from evidence (court exhibit) because they were “inadmissible internal rules”. In addition, two of the plaintiff’s subpoenas were denied, one for a Halcyon employee and another for an inspector working for the city. The court claimed that these witnesses would not be allowed based on New York’s post-note of discovery laws. Ultimately, the lower court determined that there was not sufficient evidence to confirm that the defendants caused the conditions.

The appeals court stated that the photos had been deemed authentic in deposition and additional testimony would have outlined how they illustrated the scene and enabled the jury to see the sinkhole. Further, they determined that the lower court erred in denying the subpoenas for the two witnesses by explaining that although they were not originally named as witnesses, the court has no rule that requires a true list of witnesses. Also, there is not a requirement that all witnesses must be deposed in order to be allowable in a trial. Regarding the contract specifications, the appeals court said they were “expressly incorporated” and pertained to both the city and to third-parties; therefore, they should have been deemed admissible as the defendant was hindered from clearly presenting how negligence did exist, which was the primary basis the court cited for allowing a directed verdict favoring the defendants. The plaintiff, now armed with all the tools he wished to use before, will return to court.

About the Author

Charles GilmanCharles Gilman
Charles Gilman

As managing partner and co-founder of Gilman & Bedigian, it is my mission to help our clients recover and get their lives back on track. I strongly believe that every person who is injured by a wrongful act deserves compensation, and I will do my utmost to bring recompense to those who need and deserve it.


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