In D’Amato v. Yap, et al., Decided July 8th 2008, The 2d. Department held that while plaintiffs were not entitled to Summary Judgment on liability they were entitled to a unified trial on liability and damages. The facts set forth in The Court’s opinion were as follows;
“The seven-year-old infant plaintiff, Nicholas D’Amato (hereinafter Nicholas), tripped and fell while playing with friends in the basement of the home of the defendants Medardo N. Yap and Gloria Yap, just after his friend, the defendant James Yap, shut off the light to the basement. When Mrs. Yap arrived home, one of James’s friends told her that Nicholas had fallen in the basement on some tools and hurt his eye, and showed her the spot where he had fallen. When Nicholas went home, he told his mother that he poked himself in the eye with his finger when his hand slipped on a doorknob.
The next morning, his eye was swollen shut. After seeing his pediatrician, Nicholas and his mother went to an eye specialist who sent them to the New York Eye and Ear Hospital, where they learned that his right eye had a ruptured globe and lacerated cornea. When the doctors who treated Nicholas rejected the explanation that he poked himself in the eye as inconsistent with the severity of his injuries, he told them that he tripped in James’s house and fell onto a tool which stuck him in the eye.”