Summing Up
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.  
Chelus, Herdzik,Speyer & Monte, P.C. | mailbox@cheluslaw.com |716-852-3600 | www.cheluslaw.com
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