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 and Thomas Kawalec