Witmer v. Smith, 193 A.D.2d 1080 (N.Y. App. Div. 1993). · Go Syfert
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Witmer v. Smith, 193 A.D.2d 1080 (N.Y. App. Div. 1993). Cases Citing This Book View Copy Cite
9 citation events (6 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Ahnna N. (Rosa N.) (nyappdiv, 2024-07-03)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Ahnna N. (Rosa N.) (2×)
N.Y. App. Div. · 2024 · confidence medium
To that end, a document shall not be included in the record on appeal where it was not submitted to the court on any pretrial motion, offered as an exhibit at trial or where the court did not consider the document when making its decision ( see Xiaoling Shirley He v Xiaokang Xu , 130 AD3d 1386 , 1387-1388 [3d Dept 2015], lv denied 26 NY3d 904 [2015]; Cramer v Englert , 283 AD2d 871, 871 [3d Dept 2001]; Balch v Balch , 193 AD2d 1080, 1080 [4th Dept 1993]; Matter of Yanoff v Commissioner of Educ. of State of N.Y. , 64 AD2d 763 , 763 [3d Dept 1978]).
discussed Cited as authority (rule) McAuliffe v. McAuliffe
N.Y. App. Div. · 2021 · confidence medium
Although her brief and the record are far from flawless, the errors do not substantially prejudice the husband, and they will be disregarded ( see CPLR 2001; Balch v Balch , 193 AD2d 1080, 1080 [1993]).
discussed Cited as authority (rule) Matter of Wheeler v. Wheeler
N.Y. App. Div. · 2018 · confidence medium
"The court properly excluded the disputed items from the original record on appeal [in appeal No. 1] because those items either related to a [prior] order not appealed by [either party] . . . or were not considered by the court in rendering judgment" ( Balch v Balch [appeal No. 2], 193 AD2d 1080, 1080 [4th Dept 1993]; see generally Paul v Cooper [appeal No. 2], 100 AD3d 1550 , 1551 [4th Dept 2012], lv denied 21 NY3d 855 [2013]).
discussed Cited as authority (rule) C., ANNABELLA B., MTR. OF
N.Y. App. Div. · 2015 · confidence medium
Addressing first the order in appeal No. 2, contrary to respondent’s contention, the court properly refused to include the transcript in the record on appeal in appeal No. 1 inasmuch as the court’s determination in appeal No. 1 was not based upon that information (see Balch v Balch [appeal No. 2], 193 AD2d 1080, 1080 [1993]; see also Matter of Cicardi v Cicardi, 263 AD2d 686, 686 [1999]; see generally Paul v Cooper [appeal No. 2], 100 AD3d 1550 , 1551 [2012], lv denied 21 NY3d 855 [2013]).
cited Cited "see, e.g." Matteson v. City of Dunkirk
N.Y. App. Div. · 1999 · signal: see also · confidence low
Thus, plaintiff is precluded by the law of the case from relitigating the issue of future lost earnings (see, Outeiral v Otis El., 220 AD2d 255 ; see also, Witmer v Smith, 193 AD2d 1080 ).
Retrieving the full opinion text from the archive…
John T. Witmer, III
v.
James M. Smith
Appellate Division of the Supreme Court of the State of New York.
May 28, 1993.
193 A.D.2d 1080
Cited by 2 opinions  |  Published

Order unanimously re[*1081] versed on the law without costs and motion granted. Memorandum: On a prior appeal plaintiffs argued that the jury’s award of damages was inadequate with respect to the amount awarded for pain and suffering and loss of enjoyment of life and that the jury failed to make any award for property damage, diminished future earning capacity, and future medical expenses. We granted a new trial only with respect to property damage, pain and suffering and loss of enjoyment of life (Witmer v Smith, 179 AD2d 1026). The court therefore erred on retrial in denying defendant’s motion to preclude plaintiffs from presenting proof with respect to any and all allegations set forth in plaintiffs’ supplemental bill of particulars dated January 20, 1992 (see generally, 10 Carmody-Wait 2d, NY Prac § 70:484). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Preclusion Order.) Present—Denman, P. J., Pine, Balio, Boomer and Davis, JJ. [As amended by order entered Oct. 1, 1993.]