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Summing Up...

The personal injury newsletter addressing issues facing insurance carriers and personal injury plaintiffs. Click on a date if you know the month of the issue you wish to see, or use your browser's search function for a content based search.

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July 2018

 

Defendants’ Own Submissions Raise Triable Issues of Fact Relative to the “Serious Injury” Threshold

In Monterro v. Klein and Erie County Water Authority, 2018 NY Slip Op 03002 (4th Dept. April 27, 2018), the plaintiff brought an action against the defendant for injuries sustained in a motor vehicle accident.  Defendant moved for summary judgment on the basis the plaintiff did not sustain a serious injury under the permanent consequential, significant limitation of use categories and 90/180-day categories.  The plaintiff cross moved on the issues of negligence and serious injury.  The court denied the cross motion and granted defendants’ motion in part with respect to the 90/180-day category.  The defendants appealed, and the Court affirmed the lower court’s decision.

The Court determined defendants failed to make a prima facie showing that the plaintiff’s alleged injuries did not satisfy the “serious injury threshold”.  In fact, the Court found that the defendants’ own submissions raised triable issues of fact as to whether the alleged injuries were “significant” or “consequential,” and “pre-existing and unrelated to the accident.”  The physician who examined the plaintiff presented a range of motion limitation and considered those findings insignificant, however, he did not explain the basis for the calculations found, including his opinion on what constitutes “normal” calculations.

Fourth Department Examines the Meaning of “Alter Ego” in Workers’ Compensation Law

In Buchwald v. 1307 Porterville Road, LLC, 2018 NY Slip Op 03006 (4th Dept. April 27, 2018), the plaintiff commenced the action against the defendant after suffering injuries when he fell from the hayloft of a barn located on the property.  Plaintiff was employed by Fox Run Horse Farms, LLC, which leased property from the defendant to operate the horse farm.  The defendant moved for summary judgment dismissing the complaint on the grounds that defendant and Fox Run were alter egos and, therefore, plaintiff’s action against defendant was barred by the exclusive remedy provisions of Workers’ Compensation Law §§ 11 and 29 (6).  The Supreme Court dismissed the action.  The Fourth Department affirmed the decision of the Supreme Court.

The Court reiterated that when employees are injured in the course of employment, their sole remedy against the employer lies in their “entitlement to a recovery under the Workers’ Compensation Law”.  The protection against lawsuits brought by employees also extends to “entities which are alter egos of the entity which employs the plaintiff”.

A defendant can establish itself as an alter ego by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity.  Some factors include, whether the two entities share a common purpose, whether they have integrated or commingled assets, if they share a tax return, if they share the same insurance policy, or if they are owned by the same person.

The defendant established it was an alter ego of Fox Run because they were single-member-owned LLCs, created on the same day “for a single purpose to operate a horse stable business”.  Further, both the defendant and Fox Run had the same individual owner, reported their taxes on the same tax return, and shared the same insurance policy.

The Court found that plaintiff failed to raise a triable issue of fact, and affirmed the granting of the summary judgment motion on the basis that defendant, which did not have employees, was “controlled by the individual that control[led] plaintiff’s employer”.

Court Affirms Order Estopping Seller from Denying Ownership of Vehicle

In White v. Mayfield, et al., 2018 NY Slip Op 03270 (4th Dept. May 4, 2018), the plaintiff commenced an action seeking damages for injuries she allegedly sustained when the vehicle driven by defendant, in which she was a passenger, collided with another vehicle. Shortly before the accident, defendant’s mother, obtained insurance coverage for the vehicle and executed a bill of sale indicating that she had purchased the vehicle from co-defendant Buffalo Auto Rental, Inc.  The vehicle was still registered to and insured by Buffalo Auto Rental on the day of the accident and Buffalo Auto Rental's license plates remained on the vehicle. In plaintiff’s complaint, she alleged that her mother and Buffalo Auto Rental were the owners of the vehicle and thus liable for the injuries.

The Supreme Court granted plaintiff’s motion to the extent that it concluded Buffalo Auto Rental was estopped from denying ownership of the vehicle. The court denied Buffalo Auto Rental’s cross motion. Buffalo Auto Rental appealed from that order and plaintiff cross-appealed.

The Court concluded that when Buffalo Auto Rental left its registration plates on the motor vehicle, it could no longer to deny it ownership as against plaintiff.  The fact that plaintiff’s mother, and co-defendant in the case, obtained insurance for the vehicle is a non-issue because public policy reasons for the estoppel doctrine are “not limited to issues of insurance coverage”.

Buffalo Auto Rental further contended that even if it conceded to ownership, summary judgment should be granted because defendant did not have permission to use the vehicle.  The Court was not convinced and found when an owner of a vehicle places it under the unrestricted control of a second person, the “owner’s consent to use of the vehicle may reasonably be found to extend to a third person whom the second person permits to drive it”. 

Court of Appeals Determines the Three-Year Statute of Limitations of CPLR 214 (2) Applies to No-Fault Claims Against a Self-insurer

In Contact Chiropractic, P.C. v New York City Tr. Auth., 2018 NY Slip Op 03093 (May 1, 2018), Girtha Butler sustained injuries when the bus she was a passenger in was involved in an accident.  The bus, owned by defendant New York City Transit Authority, was self-insured, lacking no-fault coverage.  Plaintiff, Contact Chiropractic, P.C., subsequently provided services to Butler for the personal injuries.  Butler assigned to plaintiff her right to recover first-party benefits from the self-insured defendant, and plaintiff submitted its claims, bills, and no-fault verification forms to defendant.

Plaintiff commenced an action seeking reimbursement for outstanding invoices from 2007.  The defendant moved for an order to dismiss the complaint based on “plaintiff’s failure to commence the action within the three-year statute of limitations.”  The defendant based its motion on CPLR 214 (2), which has a three-year statute of limitations, and applies to actions to recover upon a liability created or imposed by statute.  Defendant argued this Rule governed because defendant was self-insured at the time of the subject accident and had no contract for insurance with respect to that loss.  This claim was in opposition to CPLR 213 (2), which establishes a six-year period of limitations for an action based upon a contractual obligation or liability.  Plaintiff naturally opposed the motion, maintaining that the six-year statute of limitations controls, citing Second Department case law, while defendant relied upon First Department authority stating the converse.

Civil Court denied defendant’s motion holding that a six-year statute of limitations applies to no-fault benefit claims against both insurers and self-insurers, but did acknowledge the “split of authority”.  Defendant moved for leave to renew the motion, which was granted, but the court adhered to the prior determination which deemed Second Department case law controlling.

The Appellate Term affirmed the order determining the six-year statute of limitations controlled this matter, and so did the Appellate Division.  The Court of Appeals reversed the order of the Appellate Division.

The Court noted the difference between matters involving questions with respect to no-fault claims against insurance companies liable for no-fault benefits due to the issuance of an insurance policy and where the party responsible for the payment of no-fault benefits is self-insured.  That being said, the Court determined the source of this claim was wholly statutory, indicating that the three-year period of limitations in CPLR 214 (2) should control.

 Prepared by Sarah N. Rodman, Esq. and Thomas Kawalec, Esq.

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May 2018

Undefined Policy Term Leads to Summary Judgment for Plaintiffs 

In Smith v Safeco Ins. Co. of Am., 2018 NY Slip Op 02055 (4th Dep’t Mar. 23, 2018), the plaintiffs brought suit seeking to recover insurance proceeds after their home was damaged by water following a water main break on their street.  In their amended complaint, the plaintiffs asserted a cause of action against the defendant for breach of contract.  The plaintiffs moved for partial summary judgment on liability with respect to that cause of action by seeking a determination that "[defendant] must cover [plaintiffs'] loss."  The defendant cross-moved for summary judgment on the ground that plaintiffs' loss was subject to a policy exclusion related to certain kinds of water damage, including damage caused by "surface water."  The trial court granted the defendant's cross motion and denied the plaintiffs' motion. 

On appeal, the Fourth Department noted that the term “surface water” was not defined within the policy.  Therefore, the Court applied the plain and ordinary meaning of the term, having previously held “surface water” to mean “the accumulation of natural precipitation on the land and its passage thereafter over the land until it either evaporates, is absorbed by the land or reaches stream channels.”  Under this meaning, the Court held, as a matter of law, that the water that entered the plaintiffs’ home was not “surface water” and reversed the decision of the lower court.

Court of Appeals Reverses First Department in Labor Law §240(1) Case

In Somereve v Plaza Constr. Corp., 2018 NY Slip Op 02288 (Apr 3, 2018), the plaintiff brought suit under Labor Law §240(1) to recover for injuries he sustained in a gravity-related accident.  On the day of the accident, the plaintiff was operating a prime mover to hoist a load of bricks onto a scaffold about six feet high.  Two of plaintiff's colleagues were standing on top of the scaffold, with one of them watching to assure that the forks were properly placed in relation to the height of the scaffold.  The colleague informed the plaintiff that the forks were clear of the scaffold. However, when the load was approximately five feet off the ground, the prime mover flipped forward and the plaintiff was ejected off the back of the machine and catapulted onto the concrete floor.

Before depositions had been conducted, the plaintiff moved for summary judgment under Labor Law §240(1), which the trial court granted.  On appeal, the defendant argued that further discovery, including depositions, was necessary to determine the facts of the accident.  The First Department affirmed the lower court’s decision, holding that any evidence which might show the prime mover was loaded with too much weight, or that the prime mover had hit the scaffold and then toppled, would only speak to comparative negligence, which is not a defense to a Labor Law §240(1) claim.

The defendant appealed to the Court of Appeals, which reversed the First Department’s decision.  The Court reasoned that there was insufficient evidence concerning how the accident occurred, the requested discovery could aid in establishing what happened, and the note of issue was not due to be filed for another six months. Therefore, summary judgment was prematurely granted.

No 90/180 Day Limitation Found in Serious Injury Case 

In McIntyre v Salluzzo, 2018 NY Slip Op 02065 (4th Dep’t Mar. 23, 2018), the plaintiff brought an action to recover damages for injuries she sustained when the vehicle she was driving was rear-ended by a vehicle driven by the defendant.  The defendant moved for summary judgment, asserting that the plaintiff did not sustain a serious injury in any of the three ways alleged by the plaintiff: the 90/180-day rule, permanent consequential limitation of use, and significant limitation of use, within the meaning of Insurance Law § 5102(d).  

The trial court granted the defendant's motion, but only with respect to the plaintiff's claim for economic loss in excess of basic economic loss.  On appeal, the Fourth Department held that the lower court erred in denying the defendant’s motion with respect to the 90/180-day category.  The defendant met his burden on the motion with respect to that category by submitting plaintiff's deposition and employment records, which indicated no difficulties with eating, dressing, or bathing, and established that the plaintiff returned to work shortly after the accident and was working full-time with no restrictions approximately 30 days after the accident.  Furthermore, the Court found that the plaintiff’s claims that she was limited in her ability to garden and ride in a golf cart did not constitute “substantially all” of her activities. 

Fourth Department Finds Issue of Fact on Negligence 

In Darnley v Randazzo, 2018 NY Slip Op 02090 (4th Dep’t Mar 23, 2018), the plaintiff commenced an action seeking damages for injuries she sustained in a motor vehicle accident.  The accident at issue occurred on Niagara Falls Boulevard, which has two northbound lanes, two southbound lanes, and a center turning lane, which is where the accident occurred.  The defendant was traveling northbound and entered the center turning lane so that she could make a left turn into a plaza.  The plaintiff was exiting a parking lot and intended to turn left, heading southbound. Traffic was heavy, and the drivers of two vehicles that were in the northbound lanes stopped and waved the plaintiff forward.  When the plaintiff proceeded forward, her vehicle struck the defendant's vehicle.  

The defendant moved for summary judgment, and the plaintiffs cross-moved for partial summary judgment on the issue of negligence.  The trial court denied both the motion and cross motion.

On appeal, the Fourth Department found that the defendant met her initial burden by establishing that the plaintiff was negligent in failing to yield the right-of-way, and that there was nothing the defendant could have done to avoid the accident. 

The Court found that the plaintiff raised a triable issue of fact as to whether the defendant was negligent in the operation of her vehicle, however, by submitting the affidavit of their expert, who examined the accident scene and determined that, at the time of the accident, the defendant was 161 feet away from where she would make a left turn.  Under the Vehicle and Traffic Law, drivers may only travel in a center turning lane "for such distance as is required for safety in preparing to turn left."  Therefore, the Fourth Department held that the trial court had properly denied both motions.

Summary Judgment Granted for Two Defendants in Multiple Collision Case 

In Gustke v Nickerson, 2018 NY Slip Op 02087 (4th Dep’t May 23, 2018), the plaintiff brought suit seeking damages for injuries he sustained when the vehicle he was operating was involved in a chain-reaction accident, following which he was struck by a vehicle while on foot.  

All of the parties were driving on South Cayuga Road in Amherst, New York, and plaintiff and defendants Jonathan T. Nickerson and Brian H. Foley were stopped in the northbound lane at the intersection with Coventry Road.  The plaintiff was waiting for an opening in traffic in the opposite direction so he could make a left turn onto Coventry Road.  Soon thereafter, a vehicle driven by defendant Mary Beth Lipome rear-ended Foley's vehicle, which caused a chain-reaction collision with Nickerson's vehicle and then the plaintiff's vehicle.  Plaintiff turned his vehicle onto Coventry Road and parked and Nickerson, Foley, and Lipome pulled off to the side on South Cayuga Road.  Plaintiff called his father and told him that he had been in an accident and that he was going to check on the other drivers and exchange insurance information.  He exited his vehicle and began walking back toward the other drivers on South Cayuga Road when he was struck by a vehicle driven by defendant Mary A. Hourt.  

The defendants each moved for summary judgment, and the plaintiff cross-moved for partial summary judgment on the issue of negligence.  The trial court granted the motions of Nickerson and Foley, denied the motions of the remaining defendants, and denied plaintiff’s motion.  

On appeal, the Fourth Department affirmed the decision of the lower court granting summary judgment to Nickerson and Foley.  Defendant Lipome admitted in her deposition testimony that she caused the accident that pushed the other two defendants into the plaintiff.  The Court agreed with Lipome, however, that she bore no liability for the second collision between the plaintiff and Hourt, as she “did nothing more than to furnish the condition or give rise to the occasion by which plaintiff's injury was made possible and which was brought about by the intervention of a new, independent and efficient cause."  Finally, the Court determined that the lower court had properly denied defendant Hourt’s motion for summary judgment, as she failed to establish that the plaintiff suddenly darted out into traffic or that she complied with her duty to see that which through the proper use of her senses she should have seen. 

Fourth Department Reinstates Jury Verdict in Serious Injury Case

In Doucette v Cuviello, 2018 NY Slip Op 02049 (4th Dep’t Mar 23, 2018), the plaintiffs commenced action seeking to recover for injuries sustained by the plaintiff when the vehicle operated by the third-party defendant, in which the plaintiff was a passenger, collided with the vehicle operated by the defendant/third-party plaintiff.  The main and third-party actions were tried jointly, and the jury reached a verdict finding that the defendant's negligence was not a substantial factor in causing injury to the plaintiff.  The plaintiffs moved pursuant to CPLR 4404(a) to set aside the verdict and for judgment in their favor or, in the alternative, to set aside the verdict as against the weight of the evidence and for a new trial.  

The trial court granted plaintiffs' motion to set aside the verdict and directed partial judgment on the issue of liability in favor of the plaintiffs, determining as a matter of law that the defendant was negligent and that such negligence was a substantial factor in causing injuries to the plaintiff.  The court ordered that the matter be set for a new jury trial to determine the issues of the third-party defendant's negligence, apportionment of any fault, serious injury under Insurance Law § 5102(d), and damages.

On appeal, the Fourth Department reversed and reinstated the verdict.  The Court first noted that the trial court did not issue a decision explaining its reasoning in setting aside the verdict.  The Court further found that there was a valid line of reasoning by which the jury could have concluded that the plaintiff's alleged neck and/or back injuries and his consequent surgeries were not the result of the motor vehicle accident.  Although the defendant's expert opined in general terms that the plaintiff sustained strains of his neck and back as a result of the accident, the Court found that he was simply giving plaintiff "the benefit of the doubt" on the issue of causation.  The jury chose not to give plaintiff the same "benefit of the doubt," as it was entitled to do.  Therefore, the verdict was reinstated. 

Court of Appeals Affirms Decision Excluding Plaintiff From Coverage Under Policy

In Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 2018 NY Slip Op 02117 (Mar 27, 2018), the plaintiff was a construction manager for a project owned by the Dormitory Authority of the State of New York (DASNY).  DASNY's contract provided that the general contractor, Samson Construction Company (Samson), would obtain general liability insurance for the job, with an endorsement naming the plaintiff as an additional insured.

In the policy section entitled "Additional Insured-By Written Contract,” the terms stated: "WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization with whom you have agreed to add as an additional insured by written contract but only with respect to liability arising out of your operations or premises owned by or rented to you."

The plaintiff was sued by DASNY for alleged structural damage to a project building.  The plaintiff then commenced suit seeking a declaration that Liberty was obligated to provide coverage under the policy.  The trial court agreed that Liberty must insure DASNY.  The First Department reversed, holding that the terms of the contract unambiguously excluded the plaintiff from coverage under the policy.

On appeal, the Court of Appeals affirmed the First Department’s holding.  The decision turned on the words “with whom” within the policy terms.  Although the agreement between DASNY and Samson provided that Samson must provide coverage to the plaintiff, the plaintiff had no agreement with Samson providing same.  In his decision, Judge Wilson opined that the plaintiff “might have a claim against Samson for failing to obtain additional insured status,” but that did not allow the Court to rewrite the terms of the contract.

 Prepared by Eric W. Marriott, Esq. and Thomas Kawalec, Esq.

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March 2018

Appellate Division Reverses a Finding of Liability Pursuant to Labor Law §240(1) in a Case Involving a Fall from a Ladder.

In Bonczar v. American Multi-Cinema Inc., et al, (4th Dept., February 2, 2018), the plaintiff commenced a personal injury action for injuries he alleged to have sustained after falling from a ladder in the lobby of a movie theater owned by the defendant. At the time of the accident, he was updated a fire alarm system in the course of his employment.

Following discovery, plaintiff moved for partial summary judgment on the issue of liability under Labor Law §240(1). In opposition to plaintiff’s motion, the defendant submitted proof establishing that plaintiff did not know why the ladder wobbled and/or shifted prior to his fall, and that plaintiff may not have checked the position of the ladder or the ladder’s locking mechanism prior to using the ladder.

The trial court granted plaintiff’s motion and the defendant appealed. The Appellate Division, Fourth Department, reversed the decision of the trial court and denied plaintiff’s motion, holding that the evidence before it was sufficient to raise a plausible view that there was no statutory violation and that the plaintiff’s own actions were the sole proximate cause of the accident.

Issue of Fact in Rear-End Accident Precludes Summary Judgment

In Benz v. Calder (4th Dept., February 9, 2018), the plaintiff was allegedly injured after she rear-ended by a vehicle being driven by the defendant. The defendant moved for summary judgment on the issue of liability, arguing that the plaintiff’s negligence in rear-ending the defendant’s vehicle was the sole proximate cause of the accident. The motion was denied at the trial court, and an appeal to the Fourth Department ensued.

The Appellate Division held that the Supreme Court properly denied the defendant’s motion. In opposition, plaintiff submitted proof that the defendant’s vehicle came to a sudden stop in front of her. The Court held that this testimony amounted to a non-negligent explanation of the accident which precluded summary judgment in favor of the defendant.

Motion to Dismiss Complaint on the Grounds that Plaintiff’s Causes of Action are Barred by Primary Assumption of the Risk is Denied

In Tauro v. Gait (4th Dept., February 9, 2018), plaintiff was a member of the women’s varsity lacrosse team at defendant Syracuse University. As a member of the team, she signed a waiver which stated that she was "fully aware…that…participation [in lacrosse] involves risk of injury…These risks can come from causes which are many and varied…and may include negligent acts or omissions of others." She further acknowledged in the waiver that she "accept[ed], and assume[d] all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others, and elect[ed] voluntarily to participate in intercollegiate athletics at Syracuse University."

Plaintiff commenced this action as the result of injuries she alleged to have sustained when she was struck in the head by a lacrosse ball thrown by her coach, defendant Gait. The injury occurred during a ground ball post drill, during which Gait and other coaches rolled lacrosse balls along the ground to the players. Instead of the ground ball that she was expecting, defendant Gait, without warning, threw the ball in the air towards plaintiff’s head.

Following the commencement of the lawsuit, the defendants moved to dismiss the plaintiff’s complaint pursuant to CPLR 3211, arguing that the waiver plaintiff signed constituted documentary evidence that plaintiff fully understood and assumed the risk that she could be injured while participating the in the lacrosse program. In opposition, plaintiff submitted an affidavit alleging that defendant Gait’s actions in throwing the ball through the air were inconsistent with the drill and, as such, his actions were “grossly negligent and extremely reckless.” The defendants’ motion was denied, and the defendants appealed to the Fourth Department.

The Appellate Division, Fourth Department, affirmed the denial of the defendants’ motion, holding that the waiver relied upon by the defendants was not enforceable with respect to “grossly negligent and extremely reckless” conduct as alleged by the plaintiff. The Court furthermore held that the plaintiff’s action was not barred by the doctrine of primary assumption of the risk at this juncture of the lawsuit given plaintiff’s allegations of gross negligence and reckless conduct and the requirement that such allegations be afforded the benefit of every possible favorable inference.  

Doctrine of Primary Assumption of the Risk Does NotBar Action Alleging Injuries During Sailing Lesson

The plaintiff in Ulin v. Hobart and William Smith Colleges (4th Dept., February 9, 2018) commenced this action for injuries she sustained while sailing on Seneca Lake during a beginner sailing course offered by the defendant and taught by the defendant’s agents. During class, the boat that the plaintiff was sailing capsized. She was struck in the head by the boom of the boat during her efforts to right the capsized boat.

Defendant moved for summary judgment, arguing that the complaint should be dismissed based on plaintiff’s assumption of the risk. The Court denied defendant’s motion, holding that even if the defendant established that plaintiff assumed all risks inherent in sailing, a triable issue of fact existed as the whether the defendant unreasonably increased the risks associated with sailing by failing to provide plaintiff with any capsize recovery training and by allowing plaintiff to go sailing under questionable weather conditions.

 Prepared by Katie L. Renda, Esq. and Thomas Kawalec, Esq.

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February 2018

Carrier Entitled to Offset of All Occupants of Vehicle in Sum Case

As discussed in In the Matter of the Arbitration Between New York Central Mutual Fire Insurance Company and Brandon J. Baker, (4th Dept. 2017), Brandon J. Baker was injured in a motor vehicle accident while riding as a passenger in a vehicle driven by Joseph J. Merkley.  The Merkley vehicle was rear-ended by a vehicle driven by Christie L. Bailey and was propelled into oncoming traffic when it was struck by a vehicle driven by Anna Swartsfelder. 

Merkley, Berkley, and Swartsfelder divided the Bailey vehicle’s insurance policy limit of $100,000.00 and each received $33,333.33.  Thereafter, Baker sought SUM benefits from New York Central Mutual, the insurer of the Merkley vehicle, but the claim was disputed.  According to New York Central Mutual (NYCM), in calculating the offset for the SUM endorsement under the policy, it was entitled to offset the aggregate amounts received by Merkley and Baker from the Bailey’ insurance carrier.  Since that payment amounted to $66,000.00, NYCM argued that the offset was greater than the SUM limit of $50,000.00. 

Respondent thereafter filed a demand for SUM arbitration under the Merkley policy.  The Appellate Division concluded that the Supreme Court properly granted NYCM’s petition for permanent stay of the arbitration noting that once Bailey’s insurance carrier tendered the policy limits, the exclusion in the SUM endorsement that limited SUM payments to the difference between the SUM coverage and the insurance payments received by Merkley and Baker from any person legally liable for bodily injuries applied.  As such, New York Central properly offset the $66,666.66 received by Baker and Merkley thereby obviating the potential recovery by Baker under the SUM endorsement.

Spoliation Sanctions Proper Against Defendant

In Warren v. J-M Manufacturing, (1st Dept. 2018), it was established that in the 1990’s JMM lost and destroyed numerous boxes containing records of the manufacturing, sale, and marketing of a pipe which contained asbestos.  The pipe was part of a line of product the defendants purchased from Johns-Manville in the 1980’s.  Consequently, the plaintiff requested a spoliation charge at the time of trial.

The Court determined that JMM contemplated the possibility of litigation, having entered into a litigation cooperation agreement with Johns-Manville at the time it purchased the pipe business.  Internal memos from the 1980’s showed that executives and lawyers at JMM discussed the risk benefit of continuing the product line, as well as the possibility that its insurance carriers would withdraw liability coverage for the product.  Accordingly, the Appellate Division affirmed the lower Court’s decision in its broad discretion in directing that the jury be charged with an adverse spoliation inference at the time of trial. 

Grocer Owed No Duty to Plaintiff When Plaintiff Was Injured Doing an Activity He Was Not Required to Do

In Lynch v. S&C Wholesale Grocers, Inc. (1st Dept. 2018), the plaintiff truck driver/delivery person alleges that he was injured while manually unloading heavy boxes from a trailer owned by defendant. Plaintiff claims the shrink-wrap used by defendant's employees to secure the boxes to a pallet came loose, causing the boxes to fall to the floor and requiring them to be unloaded by hand.  The plaintiff claimed he was injured when he was manually unloading boxes from a trailer that was owned by the defendant.

Defendant established its entitlement to judgment as a matter of law first by showing that it did not create the alleged hazardous condition. Defendant submitted through plaintiff's testimony that he and defendant's employees inspected the trailer before he left defendant's facility to commence deliveries, and did not observe loose boxes on the floor. Nor did plaintiff observe loose boxes when he re-secured the load after his first delivery on the day of his accident.

 Defendant also showed that it lacked actual or constructive notice that there were boxes on the trailer's floor. Plaintiff testified he did not notify defendant about the loose boxes before he decided to manually unload them at his second delivery of the day.

Additionally, the possibility of injury arose only when plaintiff voluntarily opted to pick up the boxes and toss them to a store employee, even though he was not required to do so since the law draws a sharp distinction between a condition that merely sets the occasion for or facilitates an accident and an act that is a proximate cause of the accident.

As such, the Court determined that the defendant was entitled to summary judgment.

Open and Obvious Furniture Platform Found Not Dangerous

In Faber v. Place Furniture, Inc., (1st Dept. 2017) plaintiff commenced an action as a result of injuries sustained when she tripped and fell on an eight inch furniture display platform at defendant’s store. 

The evidence established that the eight-inch furniture platform where the plaintiff tripped was an illuminated, open and obvious condition which was readily observable by the use of one’s own senses.  Furthermore, it was established that the plaintiff and her family had navigated the step on multiple earlier occasions without incident.  As such, the Appellate Division held that the defendant met its burden establishing prima facie entitlement to summary judgment.

 Prepared by Katy M Hedges. Esq. and Thomas Kawalec, Esq.

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January 2018

Plaintiff Entitled to Subpoena Billing and Payment Records of Defendants’ IME Expert

In Porcha v. Binette, (4th Dept. 2017), the plaintiff commenced an action for injuries she sustained as a result of a motor vehicle accident.  The defendants served plaintiff’s counsel with a notice for an Independent Medical Examination, which was later performed by Dr. Hubert F. Riegler, M.D.  Dr. Riegler was employed by non-party Legal Med. 

After receiving notice that defendants intended to call Dr. Riegler as an expert, plaintiff served a judicial subpoena duces tecum on Legal Med as well as the defendants’ insurer seeking various documents.  Relevant to the appeal, paragraph two of the subpoena sought the production of “all billing and payment records related to examinations performed by Dr. Riegler on behalf of all insurance companies and attorneys” for the five-year period preceding the instant action. 

Defendants and Legal Med moved to quash the subpoena, which was denied by the trial court.  The Fourth Department concluded that the trial court properly denied those portions of the motion seeking to quash paragraph two of the subpoena.  The Appellate Division held that the plaintiff was “entitled to the information to assist her in preparing questions for cross-examination of Dr. Riegler concerning his bias or interest.”

This decision opens the door to allow defendants to subpoena similar records from Plaintiff’s treating physicians that may have testified on behalf of former clients of the plaintiff’s counsel.

Issue of Defendant’s Permissive Use is a Question of Fact for Jury

In Baker v Lisconish, (4th Dept. 2017), a 3-2 decision, the plaintiff commenced a negligence action for injuries she sustained when she was struck by the vehicle operated by defendant John Lisconish.  Defendant Santo Heating and Air Conditioning, Inc. was the owner of the vehicle and employed Lisconish.  The trial court denied plaintiff’s motion for partial summary judgment on the issue of liability, but granted Santo’s motion for summary judgment finding, as a matter of law, that Santo was not liable under a theory of respondent superior for Lisconish’s negligence and that Lisconish was not a permissive user of the vehicle at issue.   

On appeal, however, the Fourth Department, modified the lower court’s order by denying Santo’s summary judgment motion.  In doing so, the Appellate Division noted that the lower court properly determined that Santo had no respondent superior liability for Lisconish’s negligence.  In order for respondent superior liability to apply, the employee must be acting within the scope of his employment.  “An act is within the scope of employment when it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment…, or where the act has the purpose to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employee’s business…In contrast, where an employee’s actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment.”

The facts were undisputed that at the time of the accident Lisconish was on his way to his girlfriend’s home after receiving permission from his employer to leave work for the day.  On the way to her home, Lisconish purchased beer and stopped at multiple bars to drink alcohol.  Therefore, the Fourth Department agreed that Lisconish was not acting within the scope of his employment and respondent superior liability was not applicable.

However, the Fourth Department concluded that the trial court improperly determined as a matter of law that Lisconish was not a permissive user of Santo’s vehicle.  As noted by the Appellate Court, Vehicle and Traffic Law §388 (1) “creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary.”

In this case, Lisconish contradicted Santo’s allegation that he did not have permission to use the vehicle for non-work related purposes.  The majority of the Court “declined to ascribe dispositive significance to a written policy regarding non-work-related usage of its vehicles that Santo allegedly distributed to its employees.”  The Fourth Department held that Lisconish’s own testimony created a question of fact in that he testified that despite the adoption of this written policy it was his understanding he continued to have permission to use Santo’s vehicle for non-work-related purposes. 

As a result, the Fourth Department denied Santo’s motion for summary judgment as the issue of Lisconish’s permissive use must be resolved at trial. 

Plaintiff Entitled to Partial Summary Judgment on the Issue of Labor Law §240(1) Liability in Falling Object Case

In Flowers v. Harborcenter Development, LLC, (4th Dept. 2017), the plaintiff was injured while attempting to move a bundle of steel rebar from one location to another.  The steel rebar bundle was attached to a steel hook, which was then attached to a main crane hook.  In transporting the rebar, the plaintiff was guiding the bundle from the ground while communicating with the crane operator when the bundle fell and struck plaintiff’s head. 

As a result, the plaintiff moved for partial summary judgment on the issue of Labor Law §240(1) and the defendants cross-moved for summary judgment dismissing the complaint.  The trial court granted the plaintiff’s motion for partial summary judgment and granted the defendants’ cross-motion in part, but denied those parts which sought dismissal of plaintiff’s Labor Law §240(1) claim and Labor Law §241(6) cause of action premised upon a violation of Industrial Code §23-6.1(d) and §23-8.1(f)(6). 

In support of his motion, the plaintiff submitted three witness affidavits, which were unsworn.  Therefore, the Fourth Department concluded that the trial court should not have considered them in determining whether the plaintiff met his initial burden of proof.  Despite this flaw, the Appellate Division concluded that the trial court properly granted plaintiff’s motion with respect to the Labor Law §240(1) cause of action.  When dealing with a falling object case, in order to prevail a plaintiff “must establish both (1) that the object was being hoisted or secured, or that it required securing for the purpose of the undertaking, and (2) that the object fell because of the absence or inadequacy of a safety device to guard against a risk involving the application of the force of gravity over a physically significant elevation differential.”

The Fourth Department concluded that the plaintiff established both factors and the defendants failed to raise a material issue of fact.  In reaching this conclusion, the Appellate Court noted that the deposition testimony and two witness affidavits established “that any safety devices in fact used [, i.e., the chokers’ failed in [their] core objective of preventing the [rebar] from falling, and that such failure was a proximate cause of the accident.”

The Appellate Division rejected the defendants’ argument that the plaintiff was the sole proximate cause of his injury because the defendants failed to present “some evidence that the device furnished was adequate and properly placed…”  The undisputed facts revealed that the plaintiff was not alone in preparing the rebar for transport and that his conduct, at best, raised an issue of comparative negligence, which is not a viable defense under Labor Law §240(1).  

The Fourth Department, however, agreed with defendants that plaintiff’s Labor Law §241(6) cause of action premised upon a violation of Industrial Code 23-6.1(d) should have been dismissed since that provision “cannot serve as the basis for Labor Law §241(6) liability because the [tower] crane used by…plaintiff is specifically exempt from the mandate” of the statute. 

Therefore, the Fourth Department affirmed the trial court’s granting of plaintiff’s motion for partial summary judgment on the issue of Labor Law §240(1), but modified the order to the extent it granted the defendants’ cross-motion for summary judgment dismissing the Labor Law §241(6) cause of action premised upon Industrial Code 23-6.1(d). 

Jury Verdict Was Not Against the Weight of the Evidence and No Admissible Proof Existed to Establish Substantial Juror Misconduct

In Harris v. Campbell, (4th Dept. 2017), the plaintiffs commenced a personal injury action due to the injuries sustained by Monica Harris as a result of being rear-ended by the defendant.  At the conclusion of trial, the jury returned a verdict in favor of defendant by determining that Ms. Harris did not sustain a serious injury.  The trial court denied plaintiff’s motion to set aside the verdict premised upon juror misconduct and against the weight of the evidence.

Plaintiffs alleged that the Supreme Court made erroneous rulings throughout the trial which lead the jury to its determination that Ms. Harris did not sustain a serious injury.  The Fourth Department, however, concluded that the trial court properly limited the testimony of one of plaintiff’s treating physicians.  During the trial, one of plaintiff’s treating physicians, who also received a Ph.D. in biomechanical engineering, testified that he relies upon his biomechanical engineering background in his medical practice.  However, plaintiff’s counsel did not serve an expert disclosure for this physician pursuant to CPLR 3101(d)(1). 

As a result, defense counsel objected to the line of questioning during the trial concerning biomechanics, and specifically the force necessary to cause a lumbar injury.  The trial court sustained the objections.  The Fourth Department concluded that the objections were properly sustained because the defendant “did not receive sufficient notice that the treating physician relied on his engineering background to support his opinions and conclusions about plaintiff’s injuries.” 

Plaintiffs further argued on appeal that the trial court improperly admitted into evidence photographs of the plaintiff’s and defendant’s vehicles.  With respect to the issue of photographs of defendant’s vehicle same was raised for the first time on appeal not properly before the Appellate Division.  As it relates to the plaintiff’s vehicle, “photographs showing no damage to a plaintiff’s vehicle are admissible to impeach a plaintiff’s credibility on the issue whether the accident caused the alleged injuries.”  Moreover, the Fourth Department held that “even when liability is not at issue, proof as to the happening of an accident is probative and admissible as it describes the force of an impact or other incident that would help in determining the nature or extent of injuries and this relate to the question of damages.”  Therefore, the Appellate Division concluded that the trial court did not err in admitting the photographs of plaintiff’s vehicle.

The Fourth Department also rejected plaintiff’s argument that the trial court should have set aside the verdict due to juror misconduct.  In support of this argument, plaintiffs’ counsel submitted an attorney affidavit contain hearsay statements made by the jury foreperson.  “[A]bsent exceptional circumstances, juror affidavits may not be used to attach a jury verdict...and neither may affidavits from counsel that simply recite the hearsay statements of a juror.”  The record was also “devoid of evidence indicating the existence of [substantial] juror confusion.”       

A plaintiff who challenges a verdict that is rendered in favor of the defense can challenge same “as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence.”  Such a determination “is addressed to the sound discretion of the trial court, but if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury.”  Even if plaintiffs were able to establish a prima facie case for serious injury, “the jury nevertheless was entitled to reject the opinions of plaintiff’s physicians and expert witnesses.”        

As a result, the Fourth Department affirmed the trial court’s denial of plaintiffs’ motion to set aside the jury verdict based on juror misconduct and as against the weight of the evidence.       

       

 Prepared by Nicholas M. Hriczko, Esq. and Thomas Kawalec, Esq.

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December 2017

Fourth Department Protects a Portion of the Claims File Including Information Related to Reserves and Pre-Litigation Legal Opinion from Carrier’s Counsel

In Celani v Allstate Indem. Co., 2017 NY Slip Op 07799 (4th Dept. 2017), the plaintiff, individually and on behalf of her infant daughter, commenced suit seeking damages for injuries sustained by her daughter in July 2010, when she was injured as a result of being accidentally shot with a gun that was owned by her father, defendant Louis Territo.  The plaintiff previously filed a claim on her daughter’s behalf with defendant Allstate Indemnity Company pursuant to a homeowner's insurance policy issued to the father.  

Allstate disclaimed coverage on the ground that the policy excluded coverage for "bodily injury" to an "insured person," and that the daughter was an "insured person" because she was a relative of the policyholder, her father, and a "resident" of his household.  The plaintiff alleged in the amended complaint that her daughter’s injuries were caused by the father's negligence and, pursuant to the terms of the insurance policy, Allstate had agreed to indemnify the father for bodily injury.  

Thereafter, the plaintiff moved to compel disclosure of Allstate's entire claim file, including a legal opinion prepared by Allstate’s outside counsel and a claim investigation manual prepared by Allstate’s employees.  Allstate cross-moved for a protective order preventing disclosure of pre-disclaimer claim notes containing statements made by the father, the legal opinion of outside counsel and pre-disclaimer claim notes related thereto, pre-disclaimer claim notes containing information about Allstate’s reserves, and the claim investigation manual.  The court granted the plaintiff's motion to compel in its entirety and denied the defendant's cross motion.

On appeal, the Fourth Department found that the court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father, holding that they constituted accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation. 

However, the appellate court also held that the trial court abused its discretion in granting the portion of the plaintiff's motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying the part of defendant's cross motion seeking a protective order with respect to those items, as they were prepared by an attorney, are primarily and predominantly of a legal character, and made to furnish legal services.  Therefore, they are privileged and not discoverable. 

The Fourth Department further found that the court abused its discretion in granting the part of the plaintiff's motion seeking disclosure of Allstate’s reserve information and denying that part of the defendant's cross motion with respect thereto inasmuch as that information was not material and necessary to the action, and outside the scope of CPLR §3101(a).

Finally, the Court held that the court abused its discretion in granting the part of the plaintiff's motion seeking disclosure of the defendant's claim investigation manual and denying that part of the defendant's cross motion with respect thereto without first conducting an in camera review, as it was not readily apparent whether it contained information material and relevant to the issues to be decided in the action.

Lack of Evidence Prevents Finding of Storm in Progress

In Wrobel v Tops Mkts., LLC, 2017 NY Slip Op 07854 (4th Dept. 2017), the plaintiff brought suit to recover damages after she slipped and fell in the defendant’s parking lot.  The defendant brought a summary judgment motion based on the storm in progress doctrine.  The trial court denied defendant’s motion, and the Fourth Department affirmed.  The Fourth Department stated that because of the plaintiff’s testimony that it was not snowing at the time of her fall, and the fact that defendant’s expert meteorologist offered only conclusory opinions with no evidentiary basis in the record, the defendant failed to meet its initial burden of establishing that plaintiff's injuries were caused by a storm in progress.

Inasmuch as defendant failed to meet its initial burden, the burden never shifted to plaintiff to raise a triable issue of fact whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition.

Defendant Had No Control Over Plaintiff’s Work in Labor Law Case

In Knab v Robertson, 2017 NY Slip Op 07822 (4th Dept. 2017), the New York State Thruway Authority (Authority) hired Oakgrove Construction, Inc. (Oakgrove) to work on the thruway, including repaving a section thereof, and the Authority hired defendant Foit-Albert Associates, Architecture, Engineering and Surveying, P.C. (Foit-Albert) to inspect Oakgrove's work.  Foit-Albert subcontracted some of that work to plaintiff's employer.  Oakgrove began to perform drainage and clearing work in August 2010, but suspended the work in late November for the winter shutdown period. Oakgrove removed all of its equipment and employees from the work site, and all lanes of the thruway in the area of the proposed construction were opened. Before suspending its work, Oakgrove noted that some of the elevation measurements provided by the Authority were incorrect. Foit–Albert, whose contract with the Authority stated that its inspection responsibilities also included surveying, assigned plaintiff to take new measurements, including during Oakgrove's winter construction hiatus. In December, plaintiff was taking those measurements when a vehicle operated by defendant Drew Robertson left the roadway and struck him. Plaintiff brought suit, asserting claims under Labor Law §§ 200 and 241(6) as well as a common-law negligence cause of action against Oakgrove.

Oakgrove brought a motion for summary judgment, asserting that it was not responsible for supervising or controlling the plaintiff’s work, as Oakgrove had only contracted with Foit-Albert in that manner, not plaintiff’s employer.  The trial court denied Oakgrove’s motion but the Fourth Department reversed holding that Oakgrove established, as a matter of law, that it had no control over plaintiff or the work he was performing.  The plaintiff failed to raise a triable issue of fact on that issue. 

The Fourth department noted that under Labor Law § 241, while “owners and general contractors are generally absolutely liable for statutory violations ․, other parties may be liable under th[at] statute[ ] only if they are acting as the ‘agents' of the owner or general contractor by virtue of the fact that they had been given the authority to supervise and control the work being performed at the time of the injury.” Walsh v. Sweet Assoc., 172 A.D.2d 111, 113 (3rd Dept. 1991), lv denied 79 N.Y.2d 755 (1992). The owner or general contractor is not synonymous with the prime contractor ․ Generally speaking, the prime contractor for general construction (especially in State construction projects) has no authority over the other prime contractors unless the prime contractor is delegated to work in such a manner that it stands in the shoes of the owner or general contractor with the authority to supervise and control the work.

Oakgrove and Foit–Albert were both prime contractors, and plaintiff's employer contracted only with Foit–Albert. Oakgrove did not supervise or instruct plaintiff. Rather, plaintiff reported to a supervisor at Foit–Albert. Oakgrove established as a matter of law that it had no control over plaintiff or the work he was performing, and plaintiff failed to raise a triable issue of fact

Further, the Court found that Oakgrove did not have control over the work site at the time of plaintiff's accident, nor did Oakgrove create or have actual or constructive notice of the dangerous condition of the work site, thereby establishing a basis to dismiss the claims made under Labor Law § 200 as well as a common-law negligence.

Defendants’ Motion for Summary Judgment Granted in Labor Law Case

In Horton v Board of Educ. of Campbell-Savona Cent. Sch. Dist., 2017 NY Slip Op 07806 (4th Dept. 2017), the plaintiff, a journeyman electrician, was employed by a subcontractor hired to perform renovation work on Campbell-Savona High School.  On the day of the accident, the plaintiff and a coworker were instructed by their foreman to move two heavy switchgear segments from a loading dock to a room in the basement of the school.  The plaintiff and his coworker lifted a segment off of the cart with one of them positioned on each side of the segment, while the foreman secured the base.  As the plaintiff and his coworker were lifting the segment from an angled to an upright position, the plaintiff felt a sharp pain in his back when the segment dropped or "rock[ed]" approximately half an inch on his coworker's side and, for a "split second," the weight of the segment felt unstable and increased in plaintiff's hands.  Plaintiff and his coworker did not drop the segment and, after a momentary pause, they continued to raise it to an upright position.  The plaintiff brought suit under Labor Law §240(1) alleging that his injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.

At the trial level, both parties moved for summary judgment, and those motions were denied.  On appeal, the Fourth Department modified the order and granted defendants’ motion.  The Court found that the plaintiff was injured while lifting the heavy switchgear segment when the weight thereof momentarily shifted to his side as a result of instability or a slight downward movement of half an inch on the coworker's side.  Although the plaintiff's back injury was tangentially related to the effects of gravity upon the switchgear segment that he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law §240(1).  The Court concluded that defendants established as a matter of law that plaintiff's injuries resulted from a "routine workplace risk" of a construction site and not a "pronounced risk arising from construction work site elevation differentials"

Questions Relative to Whether a Roadway has One or Two Functional Lanes Raises a Question of Fact Relative to a Summary Judgment Motion

In Jackson v City of Buffalo, 2017 NY Slip Op 07798 (4th Dept. 2017), the plaintiff brought suit seeking to recover damages for injuries that he sustained while he was a passenger in a vehicle driven by his wife, the third-party defendant.  Defendant Jason Austin was operating a dump truck with an attached trailer, both of which were owned by defendant City of Buffalo.  Mr. Austin and the third-party defendant were traveling in the same direction on Eggert Road, when Mr. Austin turned right and collided with the vehicle driven by the third-party defendant, which was to his right.

Defendants City of Buffalo and Jason Austin moved for summary judgment.  The Trial Court denied the motion, and the Fourth Department affirmed on appeal.  Although the defendants submitted the expert affidavit of an engineer who opined that there is only one lane of travel in each direction on the portion of Eggert Road where the accident occurred, the defendants also submitted the deposition testimony of plaintiff, third-party defendant, and Mr. Austin, each of whom testified that two cars can fit side-by-side each way on that portion of road, thereby functionally creating two lanes in the same direction from a single lane.  Moreover, the plaintiff further testified at his deposition that the vehicle in which he was riding was positioned on the right side of Mr. Austin's dump truck, and that Mr. Austin did not activate his turn signal before turning.  The Court therefore concluded that there were issues of fact as to whether the road had one or two lanes of travel in each direction and whether Mr. Austin made an improper right turn from the left lane.

No Summary Judgment for Defendant in Slip-And-Fall

In Dolinar v Kaleida Health, 2017 NY Slip Op 07832 (4th Dept.  2017), the plaintiff brought suit seeking damages for injuries she sustained when she allegedly slipped and fell in a puddle in a hallway that had just been mopped in a building owned and maintained by the defendant.  The defendant brought a motion for summary judgment, and the trial court denied the motion.

On appeal, the defendant argued that the wet condition of the floor was readily observable and the plaintiff was aware that the floor was wet.  The Fourth Department affirmed the trial court’s holding, stating that the open and obvious nature of the defect concerns only the issue of plaintiff's comparative negligence, and does not negate defendant's duty to keep the premises reasonably safe.  The defendant also failed to establish that it did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor sufficient to create a puddle. 

 Prepared byEric W. Marriott, Esq. and Thomas Kawalec, Esq.

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November 2017

Defense Counsel’s Statements at Trial Did Not Improperly Reference Insurance Coverage

Boehm v Rosario, ___ AD3d ___, 2017 NY Slip Op 07049 (4th Dept. 2017), is a negligence action in which plaintiff sought damages for injuries allegedly sustained in a motor vehicle accident. After trial, the jury found both plaintiff and defendant negligent, apportioned fault, and also found that plaintiff did not sustain a “serious injury” under the Insurance Law.

On appeal, plaintiff’s main contention was that she was entitled to a new trial because defense counsel, who was retained by defendant’s insurance carrier, repeatedly made statements to the jury implying that defendant did not have insurance and that defendant should not be held responsible for certain medical expenses. Defense counsel’s comments, which occurred during both opening and closing statements, included the following:

“You know, he’s an immigrant, he works full time, he has two jobs, and just trying to make a living.”

Defendant “hired me to defend him in this lawsuit.”

Plaintiff, who “wasn’t working at the time of the accident,” is “trying to get money from my client.”

“I don’t think it’s my client’s responsibility to pay this woman.”

“Should my client be responsible for paying this woman’s [medical] bills?”

“[Defendant] shouldn’t have to pay for plaintiff’s pain medication.”

“I don’t think my client should have to pay for” certain of plaintiff’s claimed expenses arising from the accident.

Generally, references to insurance coverage are irrelevant to the issues and are improper because of their prejudicial nature. SeeLeotta v Plessinger, 8 N.Y.2d 449, 461 (1960). However, in rejecting plaintiff’s claim, the majority opinion found that defense counsel never stated or implied that defendant lacked insurance coverage for the accident or would have to pay out of pocket. According to the court, “defense counsel’s references to defendant as her ‘client’ were not improper, and her statements that defendant should not be held ‘responsible’ for certain medical expenses were in response to plaintiff’s testimony and the arguments of plaintiff’s counsel.”

The lone dissenting justice disagreed with the majority on this point, opining that defense counsel’s comments “may very well have engendered sympathy [for defendant] in the jurors’ minds,” thus depriving plaintiff of a fair trial.

Plaintiff’s other contention, that she was entitled to a new trial based on alleged cumulative error during trial, was also rejected by the court. The court determined there was no error by the trial court in failing to take judicial notice of a certain mathematical computation on speed and distance because this was never requested by the plaintiff. The court also did not abuse its discretion in not allowing redirect examination and limiting the duration of cross-examination for certain witnesses because these rulings were based on time constraints, and plaintiff had the opportunity to have witnesses returned the following day but chose not to do so.

Amended Answer Was Permissible Where Theory of Recovery in New Cross Claim Arose Out of the Same Occurrence Set Forth in Original Pleadings

In Taylor v Deubell, 153 A.D.3d 1662 (4th Dept. 2017), plaintiff sought damages for injuries she sustained in May 2012 while she was a passenger in a bus driven by defendant Darlene Deubell and owned by defendants First Student, Inc. and Firstgroup America, Inc. (collectively, First defendants). The bus allegedly hit a pile of gravel left in the road by defendant Masters Edge, Inc. and struck a nearby house.

The First defendants’ answer, served timely in October 2012, included a cross claim seeking indemnification and contribution from Masters Edge. After the trial on liability in 2015, the First defendants sought leave to amend their answer to include a second cross claim against Masters Edge for property damage and loss of use of the bus. Technically, the statute of limitations for the proposed cross claim had expired over seven months earlier (see CPLR 214 [4]), but the First defendants contended that the amendment should be permitted because it related back to the original pleading (see CPLR 203 [f]).

The Supreme Court granted the motion to amend. The Fourth Department affirmed, concluding that the Supreme Court did not abuse its discretion in finding that the new theory of recovery against Masters Edge arose out of the same occurrence set forth in the original pleadings, i.e., a motor vehicle accident allegedly caused by the negligence of Masters Edge.

Defendant Failed to Overcome Presumption That the Driver of a Vehicle Operates with the Owner’s Permission

In Rhodes v Scott,153 A.D.3d 1661 (4th Dept. 2017), the Fourth Department affirmed the Supreme Court’s denial of summary judgment to defendant, Darryl Epps. The action was commenced by plaintiff seeking damages for injuries she sustained when she was struck in a hit and run accident by a vehicle owned by defendant Epps and allegedly driven by defendant Jenny Scott. Epps moved for summary judgment to dismiss the complaint against him on the ground that Scott operated the vehicle without his permission.

According to the Fourth Department, the Supreme Court properly denied the motion because defendant failed to meet his initial burden. Under VTL § 388 (1), there is a strong presumption that the driver of a vehicle is operating with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary (Liberty Mut. Ins. Co. v General Acc. Ins. Co., 277 A.D.2d 981, 981-982 (4th Dept. 2000) (emphasis added). The uncontradicted testimony of a vehicle owner that the vehicle was operated without his permission, by itself, does not overcome the presumption of permissive use (Talat v Thompson, 47 A.D.3d 705, 706 (2nd Dept. 2008). Contrary to Epps’ contention, Scott’s unsworn statement that she was not driving the vehicle and did not know him was inadmissible and could not be considered in support of his motion.

Summary Judgment Granted to Plaintiff on Appeal Where Defendant Was Negligent in Turning Left Into Oncoming Traffic at Intersection

In Giwa v Bloom, ____A.D.3d___, 2017 NY Slip Op 07430 (2nd Dept. 2017), plaintiff commenced action to recover damages for personal injuries sustained when her motor vehicle was struck by defendant’s vehicle, which turned left at an intersection against the right of way. Plaintiff moved for summary judgment on the issue of liability and for dismissal of defendant’s first and second affirmative defenses, which alleged that plaintiff was comparatively at fault in the accident and that she failed to wear a seatbelt. The Supreme Court denied summary judgment, and the Second Department reversed, citing Vehicle and Traffic Law § 1141 and the deposition testimony of plaintiff and defendant.

Under VTL § 1141, “the driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.” Here, plaintiff established, prima facie, that defendant was negligent in violating VTL § 1141 by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety. Defendant testified at her deposition that she observed plaintiff’s oncoming vehicle prior to the accident, but she thought she had enough time to cross the opposite lane of travel. According to the Second Department, the undisputed fact that the defendant was, in fact, unable to complete her turn without being struck by the plaintiff’s vehicle is compelling evidence of the immediate hazard created by the plaintiff’s vehicle as it approached the intersection.

Plaintiff also demonstrated that defendant’s negligence was the sole proximate cause of the accident, and that she was not comparatively at fault in the accident because the traffic light was in her favor, and because she slammed her brakes in an unsuccessful attempt to avoid the collision. Plaintiff’s deposition testimony further established that she was wearing her seatbelt at the time of the accident.

Defendant’s submission, which contained only an attorney affirmation, failed to raise a triable issue of fact in opposition to plaintiff’s motion.

 Prepared by Andrew Fiske, Esq. and Thomas Kawalec, Esq.

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October 2017

Plaintiff Fails to Demonstrate Diligent Efforts to Identify Defendants Prior to Expiration of Statute of Limitations

In Walker v. Hormann Flexon, LLC, 153 A.D.3d 997 (3rd Dept. 2017), the plaintiff appealed from a Supreme Court Order, which granted defendant Rytec Corporation’s motion to dismiss. The plaintiff commenced an action on August 1, 2014, three days prior to the expiration of the statute of limitations. Amongst the defendants listed on the complaint were “John Does Nos. 4 through 6.”

The plaintiff explained that these John Does were the corporate entities “who designed, manufactured, sold, distributed, assembled, installed, maintained, repaired and/or serviced the overhead door.” Ten months after filing the Summons and Complaint, the plaintiff served an amended Complaint and identified John Doe 5 as the Rytec Corporation.

Rytec moved to dismiss since the statute of limitations expired and the Supreme Court granted Rytec’s motion. The plaintiff appealed and argued that under CPLR 1024 he was entitled to “relate back” t

o the date of the original complaint, which would have been within the statute of limitations. The plaintiff argued that an inspection of the door was necessary prior to identifying Rytec. However, this inspection did not occur until May 2015 and he offered no explanation as to his lack of efforts to identify the defendants prior to the expiration of the statute. Rytec argued that the plaintiff failed to establish that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute.

The Supreme Court held that the plaintiff failed to meet his burden and the Third Department affirmed. Plaintiff failed to demonstrate that diligent efforts were made to identify necessary parties prior to the expiration of the statute of limitations and failed to provide any explanation as to this failure.

Defendant Fails to Establish A Prima Facie Showing Entitling Her to Dismissal Under Negligence Theory But Succeeds on Res Ipsa Loquitur Claim

In Correa v. Matsias, 2017 WL 4159254, (2nd Dept., 2017), the defendant appealed from a Supreme Court Order which denied her motion for summary judgment dismissing the complaint. The plaintiff commenced this action after she allegedly sustained an injury when a portion of her ceiling fell on her while she was sleeping. She moved under a theory of negligence and a theory of res ipsa loquitur.

The doctrine of res ipsa loquitur is applicable when an inference of negligence can be drawn solely from the happening of the accident. The plaintiff must show: (1) the incident would not occur without someone’s negligence; (2) the injury causing instrument was in the control of the defendant; and (3) the injury was not the result of any voluntary action by the plaintiff. Here, the Court held that the doctrine of res ipsa loquitur was inapplicable because the plaintiff was residing in the apartment for more than a year prior to the incident; and therefore, the defendant would not have the requisite exclusive control.

The Court, however, found that the defendant failed to establish a prima facie case that the defendant maintained the property in a reasonably safe condition. The defendant must establish that he or she neither created the alleged defect nor had actual or constructive notice of its existence. Here, a question of fact existed because it was the plaintiff’s testimony that she had previously complained to the building superintendent of the condition relating to the ceiling and that she was afraid it might fall on her. However, the superintendent’s deposition testimony indicated that he had never received any complaints of the subject area. As such, the defendant’s motion for summary judgment under negligence was properly denied as a matter of law.

Conflicting Testimony by Doctors is Insufficient to Vacate a Jury Verdict

In Eastman v. Nash, et al., 2017 WL 4159240 (2nd Dept. 2017), at the conclusion of trial, both defendants moved to vacate a jury verdict which found that the plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law Section 5102(d). The jury awarded $150,000 for past pain and suffering and $50,000 for future pain and suffering. Only defendant Nash appealed the order denying his motion to set aside the jury verdict on the issue of damages and for judgment as a matter of law. In the alternative, defendant Nash requested that the verdict be set aside as contrary to the weight of the evidence and excessive and sought a new trial.

The action arose after the plaintiff was allegedly injured in a motor vehicle accident. At trial, the plaintiff presented a neurologist who testified that he measured the range of motion of the plaintiff’s lumbar spine and found deficits of up to 50%. The plaintiff’s neurologist also reviewed an MRI and concluded that she had no preexisting conditions and that the accident caused a disc herniation at L4-5.

In opposition, defendants presented a diagnostic radiologist who reviewed the same film and concluded that the L4-5 herniation was a result of years of degeneration. In addition, the defendants presented a neurologist who examined the plaintiff after the accident and concluded that she had decreased range of motion of the lumbar spine.

The Second Department held that defendant Nash’s motion was properly denied. The Court held that a motion under CPLR 4401 or 4404 may only be granted when the trial court determines that there is no valid line of reasoning from the evidence presented. Here, the Court held that the verdict was not contrary to the weight of the evidence. The Court further held that it was a fair interpretation of the evidence to credit the testimony of the plaintiff’s neurologist over the defendant’s diagnostic radiologist. The lower court’s decision was, therefore, affirmed.

Defendant’s Routine Cleaning of Lobby was Sufficient to Dismiss Complaint after Slip and Fall

In Kelly v. Roza 14W, 2017 N.Y. Slip Op 79735U, (2nd Dept. 2017), the plaintiff was allegedly injured when he slipped and fell on water located in the defendant’s lobby. At the time of the alleged incident, there were floor mats throughout the entry way, but none were in the area where the plaintiff fell.

The defendant moved for summary judgement dismissing the complaint. The lower Court denied the motion for which the defendant appealed.

The defendant argued that it made reasonable efforts to maintain the area where the fall occurred. The lobby had floor mats located throughout the lobby and a cleaning routine was established to maintain the area. This cleaning routine included placing wet floor signs in the lobby and having two employees assigned to walk through the lobby with a dry mop to clean and water accumulation. The defendant additionally offered proof that its employees dry mopped the area ten minutes prior to the plaintiff’s fall.

The First Department held that the defendant established a prima facie showing that reasonable efforts were made by the defendant and that it was not obligated to continuously mop up moisture tracked on the floors or cover the entire floor mat as the plaintiff argued. Furthermore, the plaintiff failed to present any proof that the defendant violated any industry practice, standard, code or regulation. The First Department reversed the lower court and dismissed the complaint.

 

 Prepared by Rebecca R. Josefiak, Esq.

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September 2017

Second Department Affirms Order Dismissing Lawsuit Where Plaintiff Failed to Oppose Defendant’s Motion for Summary Judgment

In Kisiletskiy v. Pena, 2017 N.Y. Slip Op. 06261 (2nd Dept., 2017), the plaintiff sued the defendant for injuries allegedly sustained following the occurrence of a motor vehicle accident. The defendants moved for summary judgment on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) as the result of the accident.

Plaintiff did not submit any opposing papers to defendants’ motion. At the time of oral argument, plaintiff requested an adjournment of the motion to allow additional time to submit opposition papers. The Court denied plaintiff’s request for an adjournment and granted defendants’ unopposed motion for summary judgment dismissing the complaint.

The plaintiff moved to vacate the order granting summary judgment. In support of this motion, plaintiff’s counsel asserted law office failure as the excuse for failing to oppose defendants’ summary judgment motion. Plaintiff’s motion to vacate was denied by the trial court.

Plaintiff appealed the order denying his motion to vacate the order granting defendants’ summary judgment motion. The Appellate Division, Second Department held plaintiff’s assertion of law office failure did not demonstrate a reasonable excuse for his failure to respond to defendants’ motion. The Court therefore affirmed the decision of the trial court, holding that plaintiff’s motion to vacate was properly denied.

Defendants Failed to Establish Prima Facie Entitlement to Summary Judgment in Premises Liability Case

In Gallardo v. Gilbert, 2017 WL 3612045 (2nd Dept., 2017), the Second Department reversed the ruling of the Westchester County Supreme Court in granting defendant’s summary judgment motion in plaintiff’s action grounded in premises liability. This lawsuit was commenced by plaintiff for injuries allegedly sustained while she was performing cleaning services in the defendants’ home. As plaintiff was cleaning the attic, she stepped off of a plywood landing and fell through the sheetrock ceiling of the garage below.   

Following the completion of discovery, the defendants moved for summary judgment, arguing the condition of the ceiling was open and obvious. The Supreme Court granted the defendants’ motion and the plaintiff’s complaint was dismissed.

The Second Department reversed and reinstated the complaint, finding that the defendants failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open and obvious and not inherently dangerous as a matter of law. The Appellate Division further held that since defendants failed to make their requisite showing, it was not necessary to consider the sufficiency of plaintiff’s opposing papers.

Plaintiff’s Lawsuit for Injuries Sustained While Swimming in the Ocean at a State Park is Dismissed as the State Did Not Breach a Duty Owed to the Plaintiff

In Courtney v. State of New York, 2017 N.Y. Slip Op. 06250 (2nd Dept., 2017), the plaintiff alleged to have sustained injuries when he struck his head while diving into waves at Jones Beach State Park.

Following discovery, the plaintiff moved for summary judgment on the issue of liability. The State cross moved for summary judgment dismissing the plaintiff’s claim on the grounds that it satisfied its duty to provide adequate supervision of the beach and that the plaintiff assumed the risks inherent in swimming in the ocean. In support of its cross-motion, the defendant submitted proof that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure. Defendant also argued that it had no duty to warn swimmers of threats arising from the existence of the natural, transitory conditions of the ocean.

The Court of Claims denied the plaintiff’s motion and granted the defendant’s cross-motion, and the plaintiff appealed. The Appellate Division, Second Department affirmed the decision of the Court of Claims, holding that the defendant had established its prima facie entitlement to summary judgment and plaintiff, in response, failed to raise a triable issue of fact. The Court furthermore held that the plaintiff, in his motion for summary judgment, did not meet his initial burden because he failed to demonstrate that the defendant breached a duty of care that was owed to him.

Prepared by Katie L. Renda, Esq. and Thomas P. Kawalec, Esq.

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August 2017

Neighboring Property Found Not to be "In Connection With" the Insured Premises

In Chiarello v. Rio, et. al. v. Encompass Insurance Company (2nd Dept. 2017), the plaintiff was injured while visiting as a guest at the defendants' vacation home. Plaintiff was operating an off-road vehicle on a neighboring property approximately one half-mile from the defendants' property when the vehicle tipped over and allegedly caused the plaintiff to be injured. Defendants' insurance carrier, Encompass, disclaimed coverage since the accident did not occur on the defendants' property and also due to the defendants' failure to timely notify Encompass of the accident as required in the policy. The defendants brought an action against Encompass to challenge the disclaimer.

Upon completion of discovery, Encompass moved for summary judgment arguing that it did not owe a duty to defend or indemnify the defendants. In opposition, the defendants argued that the area where the accident occurred was used by them, such that it was considered an insured location as that term was defined in the subject policy.

The Supreme Court granted Encompass's motion, finding that Encompass did not owe a duty to defend or indemnify the defendants with respect to the personal injury action. Defendants appealed. In affirming the lower Court's decision, the Appellate Division found that Encompass established a prima facie entitlement to judgment as a matter of law by submitting deposition testimony that the vehicle was excluded under the terms of the subject policy, as it was not a recreational vehicle and it was not being operated on the defendants' property at the time of the accident. In opposition to the motion, defendants failed to raise a triable issue of fact and the case was dismissed.

Summary Judgment Not Granted as Defendants Failed to Address All Issues in Plaintiff's Bill of Particulars

In Adams v. Dura Cab Corp. (2nd Dept. 2017), defendants moved for summary judgment to dismiss plaintiff's complaint, as they alleged plaintiff failed to sustain a serious injury within the meaning of Insurance Law §5102(d). In reversing the Supreme Court's decision, the Appellate Division found that the defendants failed to adequately address the plaintiff's claims, as set forth in the plaintiff's bill of particulars, that he sustained a serious injury to his head, either by the permanent consequential limitation of use or significant limitation of use categories of Insurance Law 5102(d), and that he sustained a serious injury under the 90/180-day category of Insurance Law. Since those issues were not properly addressed in the moving papers, the defendants' motion was properly denied.

Defendants Failed to Establish Entitlement to Summary Judgment Under the Emergency Doctrine

In D'Augustino v. Bryan Auto Parts (2nd Dept. 2017), plaintiffs commenced an action for injuries as a result of being struck by a vehicle owned by defendant Boyle and operated by a mechanic from defendant Bryan Auto Parts.

The defendant, Boyle, left his vehicle on the street for the purpose of getting a New York State Motor Vehicle Inspection at Bryan Auto Parts. After Boyle gave the auto shop the keys to his vehicle, an employee of the shop – defendant Rattray, a shop mechanic - was instructed to drive the Boyle vehicle into the shop. It is undisputed that Rattray was driving the Boyle vehicle toward an intersection and he failed to stop at a stop sign, wherein he struck a vehicle driven by the plaintiff.

The injured plaintiff had the right of way to pass through the intersection, which had no traffic signal on the street in which he was traveling. Following the commencement of the action, defendants Bryan Auto Parts and Rattray moved for summary judgment dismissing the complaint and all cross-claims. In support of their motion, they submitted a transcript of the mechanic and driver, Rattray, wherein he testified that as he approached the stop sign, he pressed the brake pedal, but it went to the floor. Despite pumping the brake ten, fifteen, twenty times, the vehicle did not stop. As such, the defendants invoked the Emergency Doctrine defense.

Defendant Boyle also moved for summary judgment, dismissing the complaints asserted against him on the grounds that it was both not his fault and that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102 as a result of the accident. The Supreme Court granted the motion of Bryan and Rattray and denied Boyle's motion. The plaintiff's appealed and Boyle's cross-appealed.

As a general matter, the driver traveling on a roadway controlled by a stop sign who fails to yield the right of way is in violation of Vehicle and Traffic Law §1142(a) and is negligent as a matter of law. Under the Emergency Doctrine, however, when the driver is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the driver to be reasonably so disturbed that the driver must make a speedy decision without weighing alternative conduct, the driver may not be negligent if the actions taken are reasonably prudent under the Emergency Doctrine's context. In an automobile accident, when the driver of the offending vehicle lays blame for brake failure, it is incumbent upon that party to show that the brake problem was unanticipated.

The Appellate Division held that Bryan and Rattray failed to establish their prima facie entitlement to judgment as a matter of law, since their own submissions failed to eliminate triable issues of fact as to whether the Emergency Doctrine applied, and if so, whether Rattray acted reasonably under the circumstances of the emergency. Therefore, in reversing the Supreme Court's decision, the Appellate Division denied their motion for summary judgment. The Appellate Division affirmed that the Supreme Court properly denied Boyle's motion for summary judgment since he failed to establish that he properly maintained the brakes in his vehicle and he failed to meet his prima facie burden that the plaintiff did not sustain a serious injury under §5102 of the Insurance Law.

Appellate Division Modifies Jury's Award of Damages

In Ahumada v. Drogan, (1st Dept. 2017), the trial Court set aside a jury verdict which awarded plaintiff $500,000 for past pain and suffering, and $250,000 for future pain and suffering, as it found that the award was against the weight of the evidence and excessive. The trial court, consequently, lowered the verdict to $250,000.

The Appellate Division found that the trial Court properly directed the verdict in plaintiff's favor, as he had suffered a fractured fibula which constituted a serious injury under New York State Insurance Law §5102(d). However, the Appellate Division found that the Supreme Court's decision that the verdict should be, at maximum, $250,000 was incorrect. As such, the Appellate Division affirmed the jury's verdict, but reduced the award for past pain and suffering to $300,000, and future pain and suffering to $150,000.

 

Prepared by Thomas P. Kawalec, Esq.

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July 2017

Fourth Department Declines to Consider Town an Owner Under Labor Law

In Berner v. Town of Cheektowaga, 2017 N.Y. Slip Op. 04610 (June 9, 2017), the plaintiff commenced a Labor Law and common-law negligence action for injuries he allegedly sustained while replacing a board on the exterior of a vacant house, located in the Town of Cheektowaga, which was represented by our firm. While on the ladder, the plaintiff encountered bees and began to descend the ladder. During his descent from the ladder, he fell and injured his left arm.

For the purposes of the Labor Law, owner is defined as the titleholder of the property where the accident occurred or a person “who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for her benefit.” The plaintiff contended that the Town was an owner by definition under Labor Law §§ 240 (1) and 241(6).

The Town of Cheektowaga moved for summary judgment dismissing the complaint on the ground that the Town was not an owner, or general contractor on the project. Further, the Town argued that even if it were found to be an owner, it would be entitled to the homeowner exemption afforded to owners of single family dwellings.  The town submitted evidence that it was not the titled owner of the home, that no town employees were on the job site, that the Town did not direct the plaintiff on the job site, and had no authority to direct the plaintiff with respect to the method and manner of the job performance.

The Supreme Court Appellate Division, Fourth Department held that the Town established it was not an owner or general contractor and dismissed the plaintiff’s complaint against the Town in its entirety.

Fourth Department Decides a Physician Offering an Opinion Outside of the Physician’s Field Must Lay a Foundation to Support an Expert Opinion

In Chillis v. Brundin et. al., N.Y. Slip Op. 03646 (May 5, 2017), the plaintiff commenced a medical malpractice and wrongful death action seeking damages arising from the death of his brother, who died during the surgical removal of a mass. The defendant’s orthopedic surgeon, Dr. McGrath moved for summary judgment, dismissing the complaint against him. The Supreme Court denied his motion. He appealed to the Appellate Division, Fourth Department.

The Fourth Department found that defendant, Dr. McGrath, met his initial burden of demonstrating he did not deviate or depart from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff’s injuries by submitting a detailed affirmation.  The burden then shifted to the plaintiff to raise a question of fact. The plaintiff submitted an affirmation from an anesthesiologist. However, the anesthesiologist failed to establish in his affirmation the basis for his familiarity with the accepted standard of care for an orthopedic surgeon.

The Court held that although a medical expert need not be a specialist in a field to offer an opinion regarding the standard of care in that field, a physician offering an opinion outside his or her particular field must lay a foundation to support the reliability of their opinion.  The Fourth Department modified the Supreme Court’s order and granted Dr. McGrath’s motion for summary judgment. 

Fourth Department Finds That a Hotel Did Not Owe a Duty to the Plaintiff to Provide a Lifeguard

In Wallace v. M & C Hotel Interests, Inc. et. al., N.Y. Slip Op. 03647 (May 5, 2017), the plaintiff commenced a negligence action on behalf of her son, against a hotel, after her son suffered a near drowning in the hotel’s swimming pool. The plaintiff contended the defendants were negligent in failing to provide lifeguards or otherwise adequately supervisor bathers and in allowing a dangerous condition to exist on the premises, i.e., in allowing a group of children to play games in and around the pool. The defendants moved for summary judgment dismissing the complaints against them. Their motion was granted by the Supreme Court. The plaintiff appealed to the Appellate Division, Fourth Department.

The defendants met their initial burden in demonstrating they were not negligent in respect to lifeguard supervision, by submitting the relevant New York State Sanitary code which provided that swimming pools that are a part of a temporary residence or campground require supervision level IIa, IIb, III, or IV. Pursuant to the code, level III and IV do not require CPR certified staff on premises. The defendants further submitted a report from the Erie County Department of Health indicating that the pool on the hotel’s premises required supervision level IV and that defendants met all of the requirements for that level.  As such, the Fourth Department found that the hotel did not owe a duty to the plaintiff to provide a lifeguard.

The Fourth Department also held that the defendants met their initial burden in demonstrating they were not negligent in respect to permitting a dangerous condition to exist on the premises by allowing children to play in and around the pool. While landowners do have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are aware of the need for such control, the Court held that because the hotel did not have a duty to provide supervision of the pool, it was not aware of a need to control the children and did not have an opportunity to do so. As such, the Fourth Department affirmed the Supreme Court’s decision to dismiss the complaints against the defendants.

Fourth Department Decides Out-Of-Court Statements within the Affidavit of Defendant’s Prior Tenant Are Not Hearsay

In Stowe v. Furness, N.Y. Slip Op. 03648 (May 5, 2017), the plaintiff commenced a negligence action on behalf of her minor child, against her former landlord, to recover damages for injuries her child allegedly sustained as a result of lead exposure. The defendant moved for summary judgment and the Supreme Court denied that motion. The defendant appealed, contending that she asked the plaintiff to move out so that she could remedy the dangerous condition immediately after she learned of the condition. In support of that contention, the defendant submitted an affidavit stating that she learned of the condition in 2014.

In opposition, the plaintiff submitted an affidavit of a prior tenant, who stated that the New Orleans County Department of Health detected dangerously high lead levels in chipped paint on the premises in 2006 and that she informed the defendant of those results immediately after.

The defendant contended that the out- of court statements contained in the prior tenant’s affidavit were inadmissible hearsay. The court held that that out-of-court statements were not hearsay, as they were not offered for the truth of the matters asserted, i.e., the presence of flaking and chipping lead paint, but rather they were offered to establish notice of the chipping paint. The Fourth Department affirmed the Supreme Court’s decision and denied the defendant’s motion for summary judgment.

Fourth Department Finds Issue of Fact in Negligence Action Against the City of Syracuse

In Ahern v. City of Syracuse, N.Y. Slip Op. 03659 (May 5, 2017), the plaintiff commenced a negligence action for injuries he sustained when he tripped and fell on a broken curb. The defendant moved for summary judgment, dismissing the plaintiff’s complaint against it. The Supreme Court denied the motion, finding that the plaintiff properly raised a question of fact as to whether the defendant created the dangerous condition during recent excavation work on the road.

The defendant met its initial burden of establishing that it did not receive prior written notice of the defective condition. However, the plaintiff submitted evidence that he parked on the road every day for 10 years and was very familiar of the condition of the curb. He further testified that he first noticed that the curb was damaged immediately after the defendant completed construction work in the vicinity immediately surrounding the curb.

The Fourth Department held that the plaintiff’s testimony was sufficient to raise a question of fact regarding whether the defendant created the dangerous condition and defeat the defendant’s motion for summary judgment.

 

Prepared by Justina L. Potenzo, Esq.

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June 2017

Fourth Department Declines to Apply “Storm in Progress” Doctrine

In Mosley v State of New York, 2017 NY Slip Op 03653 (May 5, 2017), the plaintiff sought damages for injuries she allegedly sustained when she slipped and fell on ice and snow on a walkway leading to the entrance to the Orleans Correctional Facility during visiting hours.  The record established that the walkway was covered in snow, and the defendants asserted the storm in progress doctrine.  The record further established that it had been snowing up until two hours before the plaintiff fell, and that the defendant had cleared the snow from the walkway two hours before the fall.

Nevertheless, the Fourth Department upheld the Court of Claims’ finding that the defendant was 75% liable for the injury, and held that the storm in progress doctrine could not be applied. The Court found that even though the defendant had cleared snow from the walkway after it had stopped snowing, “it was just as likely that the wind blew snow from the adjacent field onto the sidewalk,” and “wind would blow snow onto the sidewalk ‘[a]ll the time’ and was in the nature of a recurring dangerous condition.”  The defendant had therefore failed to remedy the dangerous condition by removing the snow.

Fourth Department Decides Coke Oven Batteries Not a “Product”

In Terwilliger v Honeywell, 2017 NY Slip Op 03629 (May 5, 2017), a products liability and negligence action, the plaintiff sought damages for injuries sustained as a result of his exposure to asbestos and coke oven emissions while employed at the Bethlehem Steel plant (Bethlehem) in Lackawanna, New York.  The plaintiff alleged a manufacturing defect in the coke oven batteries manufactured by the defendant.

Honeywell moved for summary judgment seeking dismissal of the complaint, contending that the coke oven batteries were not products for purposes of products liability theories and that the defendant's contract was one predominantly for services, not the sale of a product placed into the stream of commerce. The trial level court disagreed and denied the motion for summary judgment.  

The Fourth Department reversed the decision of the trial court, and held that “service predominated the transaction herein and that it was a contract for the rendition of services, i.e., a work, labor and materials contract, rather than a contract for the sale of a product.”

The Court’s reasoning was that the coke oven batteries are installed as part of the construction of the "great complex of masonry structures" at Bethlehem, permanently affixed to the real property.  The Court noted the 18-month long installation process and 1,460,000 hours of labor it took to complete the process over six phases.  The intensity of the construction required made the service component of the contract more integral than simply the purchase of the coke oven battery.

Fourth Department Finds Issue of Fact in Labor Law Case

In Piche v Synergy Tooling Sys., Inc., 2017 NY Slip Op 03673 (May 5, 2017), the plaintiff sought damages for injuries he sustained when he fell while wearing stilts in order to install ceiling tile.  The plaintiff fell when he stepped on a flexible electrical wire conduit that was on the floor.  The defendant moved for partial summary judgment dismissing the Labor Law § 240 (1) claim against it, and plaintiff cross-moved for partial summary judgment on liability on that claim against the defendant.  The trial court denied plaintiff’s motion and granted defendant’s motion.

In modifying the order, the Fourth Department denied the defendant’s summary judgment motion noting that the plaintiff explained in his deposition and in his affidavit that his work was obstructed by electrical wiring and conduit in the ceiling that had not been properly secured, thereby leaving limited space in which to install the tile, which measured two feet by four feet.  With his arms fully extended overhead while attempting to move and secure the electrical wiring and conduit, he lost his balance and was forced to step backwards, at which point his right stilt came into contact with the conduit and he fell. The Court held that this raised an issue of fact as to whether his "injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant height differential" while he was attempting to secure the electrical wiring and conduit in the ceiling in order to install the ceiling and were not solely caused by the presence of the conduit on the floor.

Third Department Applies “Storm in Progress” Doctrine

Griguts v Alpin Haus Ski Shop, Inc., 2017 NY Slip Op 03820 (May 11, 2017), the plaintiff brought suit seeking damages for injuries she sustained when she slipped and fell while walking on the sidewalk in a strip mall owned by defendant Alpin Haus Ski Shop, Inc. 

The defendant asserted that there was a storm in progress and the Court found that it was snowing on the morning in question and that there was an accumulation of   snow on the sidewalk where the plaintiff fell.  The plaintiff then contended that there was black ice on the sidewalk, and the plaintiff’s expert witness opined that untreated patches of black ice observed by another witness were the result of several days of melting and refreezing of "any snow on or near the sidewalk and parking lot" that remained untreated after a snow event that had occurred roughly 12 days earlier.  However, the plaintiff produced no evidence identifying any specific conditions on or near the sidewalk that could have caused an accumulation of meltwater on the sidewalk that subsequently froze.

In light of that, the Court held that the plaintiff's claims that she fell on preexisting ice created by several days of melting and refreezing and that the defendant had actual or constructive notice of the alleged icy condition were speculative.  The Court affirmed dismissal of the lawsuit. 

Third Department Finds Construction Company Liable Under Labor Law

In Griffin v AVA Realty Ithaca, LLC, 2017 NY Slip Op 03829 (May 11, 2017), the plaintiff was constructing a masonry elevator shaft when the scaffolding he was working on collapsed.  The plaintiff brought suit seeking to recover damages for his resulting injuries against the defendant.

Two days prior to the accident, the plaintiff’s project manager directed him to relocate the scaffolding from the bottom of the elevator shaft to the fourth floor, and assisted him in doing so.  It was undisputed that the scaffolding's base plates, which were embedded in ice at the bottom of the shaft, were never reattached to the scaffolding when it was reassembled.  While the plaintiff was later working on the scaffolding, it punctured the decking that it was resting upon and collapsed, causing him to fall. The parties agreed that the presence of the scaffolding's base plates, or an appropriate alternative, would have prevented its collapse.  An OSHA citation and notification of penalty identified the absence of the base plates and a "personal fall arrest system or guardrail system" to be violations of OSHA regulations.

The plaintiff therefore established a prima facie showing of liability under Labor Law §240(1), and the burden shifted to the defendant to raise a question of fact.  The defendant asserted that it did not supervise or direct plaintiff's activities at the work site relative to the use of the scaffolding or the safety issues related to its use and construction, and therefore the injury was proximately caused by the plaintiff’s own negligence.

The Third Department found that the defendant failed to meet its statutory and contractual obligations to provide the protection that would have prevented the plaintiff's accident and resulting injuries.  This breach of duty was a direct cause of the failure of the required safety equipment and a proximate cause of the plaintiff's injuries, even if the plaintiff could also be shown to bear some partial responsibility.  As Labor Law §240(1)  places "ultimate responsibility for safety practices at building construction jobs where such  responsibility actually belongs, on the owner and general contractor," the Court held that the plaintiff was entitled to partial summary judgment on the issue of liability.

Prepared by Eric W. Marriott, Esq.

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May 2017

Court of Appeals Holds Competing Expert Affidavits Raise a Question of Fact Precluding Summary Judgment in Favor of Plaintiff on Labor Law §240(1) Claim

In O’Brien v. Port Auth. of N.Y. & N.J., 2017 WL 1166795 (2017), the plaintiff, who was an employee of a subcontractor at the 1 World Trade Center construction site, commenced a Labor Law action against the owner and general contractor. 

On the day of the accident, plaintiff was operating two welding machines located at the ground level of the job site.  Around 8:00 p.m., the plaintiff made his way down to his employer’s shanty, which was one level below ground, to get a rain jacket.  In order to do so, the plaintiff utilized a temporary exterior staircase, also known as a temporary scaffold.  According to the plaintiff, the metal staircase was wet due to exposure to the rain.  As a result, his foot slipped off the tread of the top step of the staircase causing him to fall.  The plaintiff also alleged that he could not hold onto the staircase’s handrail because it was wet.

Ultimately, the plaintiff sought partial summary judgment on his claims pursuant to Labor Law §240(1) and §241(6).  In support, the plaintiff submitted an expert affidavit from Walter Konon, a professional engineer and licensed building inspector.  The plaintiff’s expert, however, did not inspect the stairs but based his opinion on the photographs included in the record. 

Konon opined that the stairs were “not in compliance with good and accepted standards of construction site safety and practice.”  Konon also noted that the stairs were not in compliance with a provision of OSHA which required that slippery conditions on stairways be eliminated before use.

According to Konon, the stairs revealed signs of longstanding wear and tear and the only anti-slip measures in place at the time of the plaintiff’s fall were “small round protruding [metal] nubs.”  Konon concluded that the stairs were not in compliance with accepted industry standards; and therefore, created a dangerous condition.

In response, defendants submitted two affidavits from safety expert, David Glabe.  Like Konon, Glabe did not physically inspect the stairs but based his opinions on photographs.  According to Glabe, the stairs were “designed and manufactured as to provide traction acceptable within industry standards and practice in times of inclement weather.”  Glabe found no evidence that the steel treads had been worn down by foot traffic.  The stairs provided both perforated holes allowing rain to pass through and metal nubs for traction.  According to Glabe, these anti-slip measures were sufficient. 

In Glabe’s second affidavit, he described an inspection of a staircase of the same make and model as to the one at issue.  As a result of the inspection, Glabe concluded there was adequate space on the tread surface of the steps allowing a person to avoid contact with the “nose or front of the step” when descending.  

Finally, Glabe opined that it was impossible for plaintiff’s expert to conclude from the photographs that the treads on the stairs had been worn down. 

The trial court denied the cross-motions on the issue of Labor Law §240(1) liability finding issues of fact existed as to whether the temporary staircase provided proper protection.  The lower court did, however, grant plaintiff’s motion for partial summary judgment on the issue of liability pursuant to Labor Law §241(6).

The Appellate Division modified the order of the trial court and granted the plaintiff’s motion for partial summary judgment on the issue of liability pursuant to Labor Law §240(1) and denied that portion of the plaintiff’s motion as to Labor Law §241(6).  Although the Appellate Division noted that the record contained conflicting expert affidavits, it was undisputed that the staircase was a safety device and was either inadequate or had malfunctioned at the time of the plaintiff’s fall.    

Notably, the Appellate Division granted the defendants leave to appeal to the Court of Appeals by certified question, asking “Was the order of the Supreme Court, as modified by this Court, properly made?”  In a 4-3 decision, the Court of Appeals answered in the negative.

The Court of Appeals noted that the mere fact “a worker falls at a construction site, in itself, does not establish a violation of Labor Law §240(1).”  The Court of Appeals held that this case was distinguishable from prior cases involving ladders and scaffolds because there were “questions of fact as to whether the staircase provided adequate protection.” 

The Court of Appeals noted that the defendants’ expert opined that the staircase at issue was specifically designed for both indoor and outdoor use, and provided the necessary traction for inclement weather.  The defendants’ expert added that additional anti-slip measures were not necessary and disputed the assertions made by plaintiff’s expert inasmuch it was alleged that the treads were worn down and the staircase was too steep. 

Although the dissent relied on Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985), the majority here noted that the holding in Zimmer was “in light of the uncontroverted fact that no safety devices were provided at the worksite, it was error to submit to the jury for their resolution the conflicting expert option as to what safety devices, if any” should have been provided. 

Ultimately, the Court of Appeals held that the record here included conflicting expert affidavits as to the adequacy of the safety device provided.  Moreover, the experts based their opinions on whether the defendants had complied with industry standards.  The Court of Appeals stated, “[w]e agree that such compliance would not, in itself, establish the adequacy of safety device within the meaning of Labor Law §240(1), but we do not read defendants’ expert’s opinion to be so limited. 

The Court of Appeals concluded that the plaintiff’s motion for partial summary judgment on the issue of Labor Law §240(1) should have been denied.   

Summary Judgment Granted in Favor of Defendant Manufacturer Where Admissible Proof Demonstrating the Product at Issue was Safe and Complied with Industry Standards

In Pacy v. Cowen Holdings, Inc., et al.,  2017 WL 11867733 (4th Dept. 2017), a matter handled by Thomas J. Speyer and Katie Renda of our office, the plaintiff’s infant daughter sustained injuries to her arm while attempting to unload towels from a commercial washing machine manufactured by defendant Alliance Laundry Systems.  Alliance moved for summary judgment arguing that the alleged defects were not the proximate cause of the infant plaintiff’s injuries and the washing machine at issue was not defectively designed.   The trial court granted summary judgment in favor of Alliance and was affirmed by the Fourth Department.    

In its decision, the Fourth Department noted that in order for a defendant manufacturer to meet its prima facie burden on summary judgment, it must establish that the product at issue was safe and complied with the applicable industry standards. 

In support of summary judgment, Alliance demonstrated that the washing machine was in fact safe because it was equipped with a door interlock and microswitch.  These devices automatically deactivated the spinning of the washing machine drum when the door was in the open position.

In opposition, the Fourth Department recognized that plaintiff failed to raise an issue of fact “by establishing that the product was not reasonably safe and that it was feasible to design the product in a safer manner.”  The Fourth Department held that the plaintiff’s expert failed to identify a suitable modification to the washing machine, which if made, could have allowed the washing machine drum to slow and stop instantaneously once the door was opened.  Additionally, the Court held that plaintiff’s expert failed to identify any regulations or industry standards requiring such a mechanism.

With respect to plaintiff’s failure to warn theory the Court noted that manufacturers have no duty to warn against those dangers “that are readily apparent as a matter of common sense.”  The Fourth Department rationalized that users of a product who are aware of an inherent danger through their own experience “need not be warned of that danger.” 

As a result, the Fourth Department held that Alliance submitted proof demonstrating that sufficient warnings had been placed on the washing machine and it was safe.  During the employee’s deposition, she acknowledged that she was aware of the danger of the moving drum.  This was due to the fact she would check to see if the drum was moving before reaching inside.

Plaintiff Failed to Establish his Entitlement to Partial Summary Judgment on the Issue of Liability Pursuant to New York Labor Law §240(1)

In Kopasz v. City of Buffalo, et al., 2017 WL 1116324 (4th Dept. 2017), plaintiff moved for partial summary judgment on the issue of liability pursuant to New York Labor Law §240(1).

The plaintiff allegedly sustained injuries as he stepped off from a ladder onto a Baker scaffold and struck his head on an overhead beam causing him to fall backwards to the floor.  The trial court granted plaintiff’s motion for partial summary judgment and denied the defendant’s cross-motion for summary judgment.  The defendant appealed the decision of the lower court. 

The Fourth Department, however, was not persuaded by plaintiff’s proof.  The Court held that the plaintiff failed to establish his entitlement to partial summary judgment because an issue of fact precluded summary disposition.  Specifically, the Fourth Department concluded that an issue of fact existed as to whether the scaffold failed to provide proper protection “because it was not properly placed, thereby precipitating plaintiff’s fall or whether plaintiff simply lost his balance and fell.” 

The Appellate Division also noted that the plaintiff failed to demonstrate that the lack of safety railings on the scaffold, as required by 12 N.Y.C.R.R. 23-5.18(b), was a sufficient basis for a finding of liability against the defendant.  The Court noted whether the presence of safety railings would have prevented the plaintiff’s fall merely raised a question of fact. 

Additionally, the Fourth Department affirmed the denial of summary judgment in favor of the defendant.  The defendant argued that the plaintiff’s own conduct in using the scaffold was the sole proximate cause of his injuries.  The Court held that the defendant “failed to eliminate any issue of fact that plaintiff ‘chose for no good reason’ to use the scaffold at issue when he knew that one of the wheels did not lock.”       

Claimant Not Barred From Serving Late Notice of Claim Where Respondent Failed to Make a Particularized Evidentiary Showing of Prejudice  

In the Matter of Diegelman v. City of Buffalo, 2017 WL 1115225 (4th Dept. 2017), the claimant alleged to have sustained injuries during his employment with the City of Buffalo Police Department due to exposure to asbestos.  The trial court granted claimant’s application for leave to serve a late notice of claim.  Initially, the Fourth Department reversed the lower court’s order on the ground that the claimant’s claim was “patently without merit” as it was barred by General Municipal Law §207-c.

Subsequently, the claimant was granted leave to appeal to the Court of Appeals.  The Court of Appeals concluded that the claimant’s case was not barred by General Municipal Law §207-c.  Therefore, the Court of Appeals reversed the order of the Appellate court and remitted the case to the Fourth Department. 

Upon remittitur, and with the direction from the Court of Appeals that General Municipal Law did not bar the claim, the Fourth Department determined that the trial court did not abuse its discretion in granting leave to serve a late notice of claim.  In reaching this determination, the Fourth Department noted that the court was required to “consider all relevant facts and circumstances, including the nonexhaustive list of factors” enumerated in General Municipal Law §50-e(5).  Moreover, the mere “presence of absence” of one of these factors is not determinative.

According to the Fourth Department, the three main factors to consider are: “(1) whether the claimant has shown a reasonable excuse for the delay; (2) whether the respondents had actual knowledge of the facts surrounding the claim within 90 days of its accrual or within a reasonable time thereafter; and (3) whether the delay would cause substantial prejudice to the municipality.”

In this case, even if the claimant failed to demonstrate a reasonable excuse for the delay, the Fourth Department noted that the remaining factors support the court’s exercise of discretion in grating the application.  The Appellate Division went one step further and held that, even though the City did not obtain knowledge of the facts of the underlying claim until about nine months after the expiration of the 90-day period, for the Court, this was reasonable because the City did not contend, “that there has been any subsequent change in the condition of the [premises]” hindering its investigation and defense of the claim. 

Lastly, the Fourth Department held that the claimant made a sufficient showing that the late notice of claim would not substantially prejudice the City.  In response, the City failed to make a “particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is allowed.”   

Plaintiff Failed to Raise a Triable Issue of Fact Relative to the Existence of a Dangerous Condition

In Langgood v. Carrols, LLC, 2017 WL 1186641 (4th Dept. 2017), plaintiff commenced a personal injury action for injuries he allegedly sustained after he tripped and fell on a rug located in the vestibule of the defendant-owner’s restaurant.  In Supreme Court, the defendant moved for summary judgment but its motion was denied.

Nonetheless, the Fourth Department reversed the lower court and granted the defendant’s motion for summary judgment dismissing the plaintiff’s complaint. 

The Court noted, however, “whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury…, summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit evidence that a particular condition is actually defective or dangerous.”

In this case, the Appellate Division held that the defendant made a prima facie showing entitling it to summary judgment whereby it submitted evidence that demonstrated that the placement of the rug in the vestibule of the restaurant did not constitute a dangerous condition. 

Despite the fact the plaintiff testified that he fell when his “right foot went underneath something” and that he saw the rug “kind of flapped over”, the Fourth Department held that the defendant met its burden.  The evidence submitted demonstrated that the rug was flush to the floor and that other patrons of the restaurant traversed over the rug without issue. 

Therefore, the Fourth Department held that the plaintiff was caused to fall, not because of a ripple in the rug or because a portion of the rug was raised, but the fall was due to the fact the plaintiff’s own foot picked up the rug.

With that being said, the defendant failed to establish that the plaintiff’s inattention was the sole proximate cause of his injuries.  The Court, however, held that any alleged defect created by the placement of the rug in the vestibule or any alleged height differential was “too trivial to be actionable.” 

The Fourth Department noted that the test is not “whether a defect is capable of catching a pedestrian’s shoe” but the correct test is “whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.”

Based upon this test, the Fourth Department noted that the videotape of the area where the accident occurred and a photograph of the rug demonstrated no irregularity with the rug and that the area was unobstructed.  Therefore, the Fourth Department reversed the lower court and dismissed the complaint. 

Prepared by Nicholas M. Hriczko, Esq.

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April 2017

Serious Injuries of Postconcussion Syndrome and Posttraumatic Headaches Found Attributable to First of Successive Collisions Upon Expert Testimony

In Armprester v Erickson (4th Dept., 2017), plaintiff sued to recover damages for injuries she sustained in successive motor vehicle collisions. In March 2013, plaintiff was driving her vehicle north on Niagara Falls Boulevard at approximately 45 miles per hour when she was struck on the passenger side by defendant’s vehicle making a left turn out of a gas station parking lot. Plaintiff’s vehicle spun three times before stopping in the center lane of the road. A third vehicle, driven by an intoxicated driver, collided with plaintiff’s vehicle as she waited for emergency personnel to arrive, throwing her onto the pavement beneath defendant’s vehicle.

The Supreme Court granted plaintiff’s motion for partial summary judgment on the issue of serious injury within the meaning of Insurance Law § 5102 (d) as a result of her initial collision with defendant.

On appeal, defendant argued that plaintiff failed to establish that her injuries were attributable to the initial collision and that there was an issue of fact created by plaintiff’s deposition testimony in which she stated that she did not recall having pain during the few minutes between collisions.

In unanimously affirming the lower court’s decision, the Fourth Department concluded that plaintiff met her initial burden by submitting her deposition testimony and the expert affirmation of her treating physician. Her physician opined with a reasonable degree of medical certainty that plaintiff suffered postconcussion syndrome, posttraumatic headaches, and cognitive dysfunction as a result of the initial collision with defendant’s vehicle. Defendant did not dispute that plaintiff’s injuries constituted a “significant limitation of use of a body function or system” (Insurance Law § 5102[d]), and, once the burden shifted to defendant, he failed to raise an issue of fact.     

Letter to Insured and Phone Message to Insured’s Independent Agent Did Not Constitute Proper Notice of Lawsuit to Insurance Carrier

In BN Partners Associates, LLC v Selective Way Insurance Co. (4th Dept., 2017), plaintiffs sought a declaration that defendant Selective Way Insurance Co. (Selective) was obligated to defend and indemnify them in an underlying personal injury action pursuant to a commercial general liability insurance policy issued to defendant JAG I, LLC (JAG).  The Supreme Court denied plaintiffs’ motion for summary judgment and granted, in part, Selective’s cross motion for summary judgment. Plaintiffs appealed, and the Fourth Department unanimously modified the lower court’s order by granting Selective’s cross motion in its entirety and declaring that Selective is not obligated to defend and indemnify plaintiffs in the underlying action.

In the underlying action, an employee of JAG was injured while working on a property owned by plaintiff BN Partners Associates, LLC (BN) and leased to plaintiff The Golub Corporation (Golub). Plaintiff LeChase Construction Services (LeChase) the general contractor on the project subcontracted with JAG.

The injured JAG employee sued BN and LeChase and commenced a related action against Golub. Thereafter, BN, LeChase, and Golub commenced a declaratory judgment action against Selective and JAG.  Selective answered, asserting that plaintiffs failed to comply with the insurance policy by not timely notifying Selective of the claim or the underlying lawsuit and not immediately forwarding copies of legal papers received in connection with the lawsuit. Selective therefore asserted it had no obligation to defend or indemnify plaintiffs.

Plaintiffs moved for summary judgment on their declaratory judgment cause of action, claiming they provided timely notice to Selective in the form of (1) a letter that LeChase’s insurance carrier sent to JAG informing it of the lawsuit and advising JAG to turn the matter over to its general liability carrier, and (2) a voicemail message with JAG’s insurance agent following up on that letter. Selective cross-moved for summary judgment, seeking a declaration that it has no obligation to defend or indemnify plaintiffs in the underlying lawsuit. In its motion, Selective claimed it did not receive notice of the claim or lawsuit until it was served in the instant matter after a 17-month delay. Selective also argued that notice to JAG’s insurance agent did not suffice as written notice to Selective’s agent.

In modifying the Supreme Court’s order of partial summary judgment, the Fourth Department concluded that plaintiffs did not provide Selective with notice of the claim or lawsuit in accordance with the policy, which required plaintiffs to “see to it that [Selective] receive[s] written notice of the claim or ‘suit’ as soon as practicable.” The court determined that this language unambiguously required an insured to provide Selective with written notice of a claim or lawsuit brought against an insured. According to the Fourth Department, neither the letter sent to JAG, nor the telephonic voicemail message left with JAG’s carrier complied with the written notice requirement under the Selective policy.

The Fourth Department further rejected plaintiffs’ contentions that JAG’s insurance agent was an agent of Selective and that Selective’ decision to afford JAG a courtesy defense raised an issue of fact with respect to the timeliness of plaintiffs’ notice.

Concussion and Minor Cervical and Lumbosacral Strains Which Resolved Did Not Constitute Serious Injury

In Brown v Miller (4th Dept., 2017), the plaintiff sued for damages for injuries sustained when his vehicle collided with defendants’ vehicle. Defendant’s moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102. Agreeing with defendants, the Fourth Department unanimously reversed the Supreme Court’s order and granted summary judgment dismissing the complaint.

According to the Fourth Department, defendants met their burden by submitting the affirmed report of a physician who examined plaintiff and reviewed his prior medical records. The physician concluded that plaintiff sustained only a concussion and a minor cervical and lumbosacral strain in the collision, and that those injuries had resolved. The physician also opined that plaintiff’s prior imaging studies revealed preexisting degenerative changes not related to the collision, and that the collision did not aggravate or exacerbate plaintiff’s preexisting degenerative condition.

Although plaintiff submitted expert medical evidence establishing that he sustained injuries causally related to the collision, the court concluded that plaintiff failed to raise an issue of fact as to whether those injuries constituted “serious injury” within the meaning of Insurance Law § 5102.

Twelve Week Delay in Providing Notice of Disclaimer in Dog Bite Case Was Not Unreasonable As a Matter of Law

In Stachowski v. United Frontier Mutual Insurance Co., (4th Dept., 2017), plaintiffs commenced an action seeking a declaration that defendant is obligated to defend and indemnify them in the underlying personal injury action arising out of a dog bite. After being placed on notice of the claim and a subsequent 12-week delay, defendant disclaimed liability based upon the exclusion in homeowner’s policy for canine-related injuries caused by a dog in the insured’s care that had not been inoculated as required by law.  Pursuant to Insurance Law § 3420 (d) (2), defendant is required to provide written notice of its disclaimer as soon as is reasonably possible.

Defendant, with the burden of establishing the reasonableness of its 12-week delay in providing notice of its disclaimer, moved for summary judgment, and plaintiffs cross moved.

In modifying the Supreme Court’s order granting summary judgment on plaintiffs’ cross motion, the Fourth Department concluded that issues of fact remained as to whether the delay in disclaiming liability was reasonably related to defendant’s performance of prompt, diligent, thorough, and necessary investigation of the canine inoculation issue.  “Normally the question of whether a notice of disclaimer of liability or denial of coverage has been sent as soon as is reasonably possible is a question of fact which depends on all the facts and circumstances, especially the length of and the reason for the delay […] It is only in the exceptional case that it may be decided as a matter of law.”  The court held that this was not such an exceptional case.

Prepared by Andrew D. Fiske, Esq.

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March 2017

Speculative Opinion of Expert Does Not Raise Triable Issue of Fact

In Slattery v. Tops Markets, LLC, 2015 WL 5446354, (4th Dept., Feb. 10, 2017) the decedent plaintiff sued for damages as a result of a slip and fall in a Tops Markets grocery store. The defendant moved for summary judgment dismissing the complaint. The lower Court denied the motion and the defendant appealed.

Whether a condition is a dangerous defect is often a question of fact for the jury. However, summary judgment is appropriate when a plaintiff fails to prove that the condition is actually defective or dangerous.

In Slattery, the plaintiff tripped over a rug that had been laid flat over a “recessed mat system” at the entrance of the store. Through testimony of the plaintiff, photographs and video of the incident, the defendant established that the rug or placement of the rug was not an inherently dangerous condition. The plaintiff’s expert examined the area approximately two and a half years after the accident and the Court held that it was insufficient to raise a triable issue of fact regarding the condition of the area at the time of the fall.

Therefore, the Court held that the plaintiff failed to raise a triable issue of fact to defeat the defendant’s summary judgment motion. The Fourth Department unanimously reversed on the law and dismissed the complaint.

Snow Plow Contractor Has No Duty to the Plaintiff Where the Property Manager Extensively Supervised the Snow Removal Operations and the Obligations of the Contractor. 

In Waters v. Ciminelli Development Company, 2017 WL 460421, (4th Dept., Feb. 3, 2017), a case that was handled by Kevin E. Loftus in our office, the plaintiff moved for damages after she was allegedly injured after a slip and fall on ice.

The plaintiff, Jackueline Waters, allegedly fell on ice in a parking lot owned by 205 Park Club Lane, LLC. The parking lot was managed by the Ciminelli Development Group and JB Landscaping and Snowplowing LLC was contracted for snow and ice removal.

The defendants moved for summary judgment dismissing the complaint. The lower court denied the motion by both defendants. LB Landscaping appealed the lower court’s denial under theories established in the Espinal case.

A snow plowing company may be liable for injuries that occur only if: (1) it fails to exercise reasonable care in performance of their duties and create the condition; (2) the injured party detrimentally relies on the continued performance of the contracting party’s duties; or (3) the snow plowing company entirely displaces the other party’s duty to maintain the premises safely.

The Appellate Division unanimously modified on the law by granting the part of the motion that sought dismissal against defendant JB Landscaping and Snowplowing LLC and granted in part the motion seeking dismissal of the complaint against the defendants Ciminelli Development Company Inc., and 205 Park Club Lane, LLC.  Claims that defendants Ciminelli Development Company Inc., and 205 Park Club Lane, LLC created or had actual notice of the allegedly dangerous condition were dismissed.

Here, the issue was whether LB Landscaping entirely displaced Ciminelli Development Group from their duty to maintain the premises. LB Landscaping established that the contract with Ciminelli Development Group did not entirely displace Ciminelli's responsibility to maintain the lot. Here, LB Landscaping's contract with Ciminelli did not entirely alleviate their responsibility to maintain the lot because of their intensive overseeing process of LB Landscaping's work. Ciminelli had the right to request additional services, selected depth of the snow for removal, directed LB Landscaping's placement of the snow removal and required monthly snow log submissions. LB Landscaping did not entirely displace Ciminelli and, therefore, LB Landscaping could not be liable directly to the plaintiff.

Therefore, the Court reversed the lower court’s decision and dismissed the complaint against LB Landscaping.

Reasonable Delay in Serving Notice of Claim Did Not Prejudice Defendant

In King v. Niagara Falls Water Authority and Niagara Falls Water Board, 2017 WL 460426, (4th Dept., Feb. 3, 2017) the defendants appealed the lower court's decision which allowed the plaintiff to serve a late notice of claim. The Appellate Division unanimously affirmed the decision.

On April 18, 2014, the plaintiff was injured in a motor vehicle accident after his vehicle allegedly struck a depression in the roadway in Niagara Falls. A timely notice of claim was timely served against the City of Niagara Falls. As a result of a FOIL request in February 2015, the plaintiff learned that the Niagara Falls Water Board was the general contractor for a construction project that allegedly caused the depression. On April 17, 2015, the plaintiff applied for leave to serve a late notice of claim against the Niagara Falls Water Board.

When a town or municipality is sued, a notice of claim is required within 90 days of the incident. The moving party may serve a late notice of claim if granted leave by the Court. There are several factors that the Court considers in allowing a moving party to serve a late notice of claim. The three main factors include: (1) whether the claimant has shown a reasonable excuse for the delay; (2) whether the governmental entity had actual knowledge of the facts surrounding the claim within 90 days of its accrual; and (3) whether the delay would cause substantial prejudice to the governmental entity.

Here, the Court held that the plaintiff demonstrated a reasonable excuse for the delay because the plaintiff had timely served the notice of claim upon the City and then promptly applied for leave to serve the Niagara Falls Water Board after discovering that it was allegedly involved in causing the defect. Additionally, the Niagara Falls Water Board could not show that it was substantially prejudiced by the delay. Furthermore, because it was the general contractor on the site, the Court held that it would possess documents and other information related to the construction project and was not only knowledgeable about the alleged defect but would not have been prejudiced in the discovery process. Therefore, the lower Court's decision was affirmed.

Knowledge within a Different Municipal Department Does Not Impute Knowledge to Other Departments to Establish Actual or Constructive Notice

In Blake v. County of Wyoming, 2017 WL 459973, (4th Dept., Feb. 3, 2017), the plaintiff sought damages after she allegedly sustained injuries after she was bitten by a dog at an animal shelter. The defendant moved for summary judgment which was denied by the lower court. The defendant appealed this decision.

The plaintiff volunteered at the County of Wyoming animal shelter as a dog walker. The dog that was involved in this incident was surrendered to the shelter approximately two weeks prior to the incident. The County of Wyoming argued that it should not be found liable under the theory of strict liability because it lacked actual or constructive knowledge of the dog’s vicious propensities. The plaintiff attempted to argue that the staff was aware that the dog had previously knocked over a small child and that the County of Wyoming Health Department was aware that the dog had previously bitten a child. 

The Appellate Division reversed the denial of summary judgment and found in favor of the defendant. The Court held that knocking over a small child was insufficient to raise an issue of fact regarding the propensity to bite. Although the dog’s tendency to knock a person over could demonstrate a “proclivity to act in a way that puts others at risk of harm,” the plaintiff’s injuries were caused by a bite which is not akin to the dog’s previous actions.

Additionally, the plaintiff provided notes that the dog may have previously bitten an 8-year-old girl. After that incident, a County employee of the Wyoming County Health Department was required to examine the dog for signs of rabies. The Court held that the knowledge of the County Health Department could not be imputed to the County Animal Shelter because municipalities often have numerous employees assigned to separate and diverse agencies and there was nothing to show an overlap with the scope of the authorities between the two departments which would prove that the County Animal Shelter had knowledge of the dog’s actions.

Therefore, the Court reversed the lower court’s decision denying the summary judgment motion.

Prepared by Rebecca R. Josefiak, Esq.

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February 2017

Issues of Fact Preclude a Finding of Summary Judgment In Favor of the Plaintiff on the Issue of Serious Injury

In Hines–Bell v. Criden, 145 A.D.3d 1537 (4th Dept., 2016), the plaintiff sued the defendant for injuries she allegedly sustained after the defendant rear-ended her vehicle. Plaintiff moved for summary judgment on the issue of serious injury arguing that she sustained qualifying injuries under the fracture, permanent consequential limitation of use and significant limitation of use categories as set forth in Insurance Law §5102(d). In support of her motion, plaintiff submitted medical records, an independent medical examination report and physician’s affidavit establishing that the plaintiff sustained a left wrist scaphoid fracture (requiring surgery), significant loss of range of motion in lumbar spine along with a large traumatic annular tear at L4-5 (which also required surgery) as a result of the subject accident.

The trial court granted the plaintiff’s motion. The Fourth Department reversed, holding that although plaintiff met her burden establishing entitlement to summary judgment, defendant raised a triable issue of fact with the submission of affidavits from two physicians. One of the affidavits submitted by the defendant was from a physician who also an engineer who specialized in the analysis of the response of the human body to forces resulting from events (such as automobile collisions) to determine how injuries are caused. Both of the defendant’s experts opined that the plaintiff’s wrist fracture pre-dated that accident and that the facts of the accident were inconsistent with the force needed to cause such a fracture. With respect to the plaintiff’s alleged lumbar spine injury, the defense experts concluded that the plaintiff’s low back condition was degenerative in nature and not caused by the accident. The Court therefore reversed the trial court’s decision, holding that the plaintiff was not entitled to summary judgment on the issue of serious injury.

Defendant Entitled to Summary Judgment Where His Negligence Merely Furnished the Occasion for an Unrelated Act to Cause Injuries Not Ordinarily Anticipated

In Kilmer v. Mastropietro, 145 A.D.3d 1559 (4th Dept., 2016), the Fourth Department affirmed the ruling of the Cayuga County Supreme Court in granting defendant’s summary judgment motion on the issue of negligence. This lawsuit was commenced by plaintiff for injuries allegedly sustained when he was struck by the defendant’s rolling car. According to the plaintiff, he ran behind the defendant’s rolling car in an attempt to stop it. While doing so, the plaintiff slipped and fell and was then struck by the car. Plaintiff alleged that the defendant’s negligence in creating the opportunity for the vehicle to begin rolling down an incline was a proximate cause of his injuries.

The defendant moved for summary judgment. The trial court granted his motion and the Appellate Division affirmed.  It held that any alleged negligence on behalf of the defendant merely furnished the occasion for an unrelated act which would not normally be anticipated to cause injuries to the plaintiff.

Plaintiff’s Lawsuit for Injuries Sustained When She Was Ejected from Golf Cart Is Barred by the Doctrine of Primary Assumption of the Risk

In Kirby v. Drumlins, Inc., 145 A.D.3d 1561 (4th Dept., 2016), the plaintiff alleged to have sustained injuries after being ejected from her golf cart while playing golf at the defendant’s golf course. According to the plaintiff, she was driving the golf cart down an excessively steep and winding golf cart path that was littered with wet leaves and other natural debris when she lost control of her cart and was injured.

The defendant moved for summary judgment, arguing any recovery sought by the plaintiff was barred by the doctrine of primary presumption of risk. In support of this motion, the defendant submitted evidence that the plaintiff was an experienced golfer who had previously played at that golf course and had indeed driven a golf cart down the path where her accident occurred several times in the past. Plaintiff was also aware that it had rained the night before and that the golf course was still wet that morning of the accident. Furthermore, she had driven her golf cart on the subject cart path just moments before her accident and at that time had observed the leaves and other debris on the path.

In opposition to the motion, the plaintiff submitted an affidavit from an expert in golf course design alleging that the defendant’s golf course failed to comply with industry standards.

The Onondaga County Supreme Court held that the defendant was entitled to an order granting summary judgment. The Fourth Department affirmed, holding that the plaintiff was aware of the risk posed by the cart path and assumed the risk by driving her golf cart on said path.

The Court further held that the trial court did not err in refusing to consider the conclusory affidavit of the plaintiff’s expert where the affidavit set forth none of the industry standards to which it alluded and provided no specific measurements taken at the scene of the plaintiff’s accident to which such industry standards might have compared. As such, there were no issues of fact which would preclude defendant’s entitlement to an order for summary judgment.

Plaintiff’s Injury Did Not Fall within the Scope of Labor Law §240(1) As the Height Differential between the Plaintiff and the Pipe That Fell on Him Was De Minimis

In Kuhn v. Giovanniello, 145 A.D.3d 1457 (4th Dept., 2016), plaintiff sought damages for injuries allegedly sustained while he was removing and replacing a sewer pipe in the basement of the defendants’ pizzeria. He was struck on the shoulder by a falling pipe that weighted approximately sixty pounds. Plaintiff was standing on the ground at the time the accident occurred. Although there was conflicting deposition testimony concerning the exact elevation of the pipe, it was undisputed that the pipe was, at most, one foot above the plaintiff’s head and was therefore always within his reach.

The defendants moved for summary judgment, arguing that the plaintiff’s accident did not fall within the ambit of Labor Law §240(1). The trial court granted the defendant’s motion. The Fourth Department affirmed the decision of the trial court, concluding that any height differential between the plaintiff and the pipe that fell on him was de minimis.As such, the plaintiff’s injury did not fall within the scope of Labor Law §240(1). A two justice dissent allows the plaintiff seek further review at the Court of Appeals.  Stay tuned for further development regarding this case.

Prepared by Katie L. Renda, Esq.

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January 2017

County Only Entitled to Reimbursement for Money Paid in Excess of Basic Economic Loss

In County of Erie v. Volante (4th Dept. 2016), plaintiff commenced an action pursuant to General Municipal Law §207-c (6) seeking reimbursement for the salary and medical expenses it paid on behalf of a police officer who was injured when his patrol car collided with a motor vehicle owned and operated by the defendant. 

In upholding the Supreme Court’s decision, the Appellate Division found that the plaintiff must be limited in its recovery to the amount it paid in excess of basic economic loss.  Pursuant to General Municipal Law §207-c (6), potential recovery of payments made to the police officer injured by the alleged negligence of the defendant in her ownership and operation of an automobile is limited by Insurance Law Article 51.  As such, the plaintiff can only recover those amounts that were paid in excess of the basic no-fault benefits.

Football Player Found to Assume the Risk of Injury Affording Summary Judgment to Defendant

In Butchello v. Herberger, (4th Dept. 2016), a case was handled by Mike Chmiel with the assistance of Rebecca Josefiak of our office, plaintiff commenced an action to recover damages for an eye injury that he sustained while participating in a collage football game.  In his complaint, plaintiff alleged negligent and reckless conduct on the part of the college that fielded the opposing team, that team’s coach, and Michael J. Herberger, the defendant, who allegedly injured the plaintiff.  The facts indicated that Herberger caused the plaintiff to lose sight in one of his eyes as a result of inadvertent gouging of the eye in the midst of blocking the plaintiff.  Herberger moved for summary judgment dismissing the complaint against him on the grounds that the plaintiff assumed the risk of his injury as a matter of law.  Herberger contended that plaintiff’s lawsuit is barred by the primary assumption of risk by demonstrating that the plaintiff voluntarily assumed the risk of injury by participating in the game.

The Appellate Division reversed the denial of Herberger’s motion for summary judgment finding that the plaintiff should have been aware that he could sustain this type of an eye injury due to his background, skill, and experience.  The Appellate Division reiterated that, by participating in certain sports, participants assume risks which are known, apparent, or reasonably foreseeable consequences of the participation.

Defendant Wins Summary Judgment Based On Plaintiff’s Knowledge of Swimming Pool Conditions

In Brady v. Domino (4th Dept. 2016), plaintiff commenced an action seeking damages for injuries he sustained when he dove into the shallow end of an in-ground residential swimming pool owned by the defendant.  In affirming the lower court’s decision, the Appellate Division held that summary judgment is appropriate in swimming pool injury cases in which plaintiff’s general knowledge of pools, observations prior to the accident, and plain common sense should have led the plaintiff to a conclusion that diving into said pool posed danger of injury. 

The record established that plaintiff lived on the same street as the defendant; swam in the subject pool on multiple occasions prior to the accident; and was aware that striking the bottom of the pool is a risk when diving into the shallow end.  Under these circumstances, the Appellate Division held that reckless conduct of the plaintiff was the sole proximate cause of his injuries leading to the dismissal of the plaintiff’s case.

Questions of Fact Exists with Respect to Whether the Recklessness Standard Applies and Whether the Defendants’ Actions Were Reckless.

In Rice, et al. v. City of Buffalo, et al. (4th Dept. 2016), plaintiffs commenced an action as a result of a motor vehicle accident that occurred at an intersection in Buffalo, New York.  Plaintiffs were passengers in a vehicle that was proceeding through a green light when it was struck by defendant Buffalo Fire Department’s vehicle while it was responding to a call regarding a suspicious package. 

Defendants moved for summary judgment dismissing the complaint, contending that the correct standard to determine potential liability was not ordinary negligence but reckless disregard for the safety of others, and that their conduct had not risen to the level of reckless disregard.  Plaintiffs cross-moved for partial summary judgment on the issue of liability, contending that the ordinary negligence standard applied and that the defendants had violated that standard as a matter of law. 

In support of plaintiffs’ cross-motion, plaintiff submitted a deposition transcript of defendant driver (Fitzpatrick), who testified that in the time leading up to the accident, he turned the siren off intermittently in order to communicate with the alarm office.  He further testified that he arrived at the intersection just before turning the siren on.  The trial court denied all motions on the issues of reckless disregard and ordinary negligence.

The Appellate Division found that the plaintiffs’ evidentiary submissions raise issues of fact whether Fitzpatrick sounded his siren “loud enough to be heard and . . . soon enough to be acted upon” thereby leading to a question of fact as whether an ordinary negligence standard applies. 

Furthermore, the Appellate Division also concluded that the “speed at which the emergency vehicle proceeded into the intersection does not render Fitzpatrick’s conduct unprivileged as a matter of law, but rather presents an issue of fact whether he acted with reckless disregard for the safety of others.”

Mere Fact That Lender Did Not Pursue Legal Remedies to Enforce Debt Did Not Result in Plaintiff Being Unjustly Enriched as A Matter of Law

In Moses v. GEICO Insurance Company (4th Dept. 2016), plaintiff commenced an action alleging that the defendant wrongfully failed to honor its obligations under the automobile insurance policy when plaintiff’s vehicle was allegedly stolen, vandalized, and later recovered.

Before the vehicle was recovered, the defendant disclaimed coverage on the grounds that theft does not qualify as a loss as defined in the policy contract.  Once the vandalized vehicle was recovered, the plaintiff notified the defendant.  The defendant then informed the plaintiff that her claim was denied.

The Appellate Division reversed the lower court decision which granted the defendant summary judgment dismissing the complaint and found that the Supreme Court erred in granting defendant’s motion on the grounds that the plaintiff would be unjustly enriched if the defendant were to fulfill its contractual obligations.  The defendant failed to establish, as a matter of law, that the loan for the automobile had been forgiven by the financing company.  The mere fact that the financing company had not pursued any legal remedies against the plaintiff did not establish that the loan was not forgiven.  In fact, the plaintiff testified at her deposition that the loan still appeared on her credit report and she was unsure if she would be required to pay the loan. 

Under the terms of the insurance policy, the defendant promised to pay the plaintiff actual cash value less the deductible for loss caused by theft or vandalism.  Plaintiff established that the defendant is contractually obligated to perform its obligations under the policy.  Thus, the Appellate Division reversed and granted the plaintiff’s cross-motion for partial summary judgment on liability.  It noted that with respect to the issue of damages, a damages inquest is necessary to determine whether, under the policy, the defendant must pay to the plaintiff or the lien holder. 

Prepared by Katy M. Hedges

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