Plaintiff Denied Summary Judgment Relative to His “Serious Injury”
In Savilo v. Denner, 2019 N.Y. App. Div. LEXIS 1920, the Fourth Department reversed an order granting the plaintiff’s motion for summary judgment on the issue of serious injury as defined by Insurance Law § 5102 (d).
First, the court held that the “plaintiff failed to meet his initial burden of establishing that he sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories that was causally related to the accident.”
In support of his motion for summary judgment, the plaintiff submitted a report from defendant’s medical expert “who opined that plaintiff merely sustained spinal sprains and strains that had resolved and that plaintiff did not sustain a serious injury as the result of the accident.” Although plaintiff also included an affidavit from his chiropractor in which the chiropractor opined that plaintiff had suffered herniated discs and thus suffered a serious injury, the court declared that “conflicting expert opinions may not be resolved on a motion for summary judgment.”
The court further ruled that the plaintiff could not succeed under permanent consequential limitation of use and significant limitation of use because there was “persuasive evidence” that his injuries were related to a preexisting condition. Although plaintiff submitted a ruling from an Administrative Law Judge finding that he had a disability, this decision was “was based on the ALJ’s finding that plaintiff has a degenerative disc disease.”
Finally, the court held that plaintiff also failed to meet his initial burden with respect to the 90/180-day category of serious injury. The court reiterated the position that missing more than 90 days of work is not determinative, and referenced medical notes from various medical providers which stated that the plaintiff did not have trouble taking care of himself and could walk on a treadmill and perform various exercises. This evidence showed that the plaintiff did not all issues of fact with respect to that category, and therefore, summary judgment was improper.
Defendants Win Appeal, Granted New Jury Trial Even After Late Demand
In Braun v. Cesareo, 2019 N.Y. App. Div. LEXIS 2001, the Fourth Department granted a new trial to the defendants whose oral application for leave to file a late demand for a jury trial was denied. A judgment was entered following a nonjury trial, and defendants were found liable to the plaintiff for nearly $21.5 million.
In this case, the plaintiff filed a note of issue asking for a nonjury trial. Defendants demanded a jury trial one day after the deadline to do so had passed. In an off the record discussion, the trial judge found that the parties had waived their right to a jury trial. Nevertheless, defense counsel placed on the record his objection and made an oral application for leave to file a late demand for a jury trial. The court denied this application, and when defendant offered to make a formal motion, the plaintiff objected and the court ruled that any motion on the matter would be denied.
Defendants appealed this order but the Fourth Department dismissed the appeal, stating that the order “was not appealable as of right because it did not decide a motion ‘made upon notice.’” However, now that the defendants were appealing a final judgment, the order was appealable because “[a]n appeal from a final judgment ‘brings up for review…any non-final judgment or order which necessarily affects the final judgment.’”
Although Justice Curran dissented on the grounds that the order denying leave to file a late demand for a jury trial was not appealable as it was not actually an order because the motion was not made on notice, the majority ruled that “CPLR 5501(a)(1) does not expressly or impliedly place such a limitation upon our review of orders that affect the judgment.”
Therefore, the court reached the merits of the appeal. In so doing, the court explained that the right to a jury trial is a right found in the New York State Constitution, and, although it can be waived, a court can relieve a party from the effect of the waiver “if no undue prejudice to the rights of another party would result.” The court recognized that this was a decision that is left to the discretion of the trial court, but found that the court abused its discretion in denying the defendants’ application.
The court reasoned that since the defendants only missed the deadline by one day and since the plaintiff “established no prejudice from that negligible delay,” the court should have granted the defendants’ application. Furthermore, the trial court imposed an improper standard by “requiring defendants to explain why they would be prejudiced by a bench trial.”
Plaintiffs Prevail, Defendants Lose Spoliation, Directed Verdict Arguments
In Estate of David Smalley v. Harley-Davidson Motor Co. Group LLC, 2019 N.Y. App. Div. LEXIS 1934, the Fourth Department affirmed a judgment against defendant that awarded the plaintiffs money damages. This case involved an allegedly defective Harley Davidson motorcycle that was later recalled by the company. Plaintiffs alleged a cause of action in strict products liability, claiming that the motorcycle that was used by the plaintiffs was defectively designed in that 40 amp circuit breaker was used instead of a 50 amp circuit breaker.
Plaintiffs allege that David Smalley was driving the motorcycle with his wife as a passenger. While negotiating a curve, plaintiffs allege that the motorcycle lost power, and that David Smalley, in an effort to avoid being hit by other traffic on the road, drove the motorcycle off the road onto the grass, where it hit a rut and flipped several times, causing both him and his wife to sustain serious injuries.
Defendant first appealed on the grounds that the decision of the trial court in failing to provide a spoliation charge in defendant’s favor was an abuse of discretion. The Fourth Department stood behind the reasoning of the trial court, stating that the plaintiffs gave permission to their insurer to salvage the motorcycle three years before the lawsuit was initiated, and “well before plaintiffs received the recall notice from Harley-Davidson that prompted them to file suit.”
Second, defendants argued that their motion for a directed verdict should have been granted at trial. The Fourth Department did not agree, stating that a directed verdict should only be granted when “it would be ‘utterly irrational’ for the jury to render a verdict in favor of the plaintiff.” Here, this was not the case because the plaintiffs called an expert at trial who testified that the motorcycle was defectively designed, and there was nothing in the record that rendered his testimony incredible as a matter of law. Therefore, it was not irrational for a jury to find for the plaintiffs. The court also noted that “because plaintiffs offered evidence of a specific design defect through the testimony of their expert, it was not necessary for plaintiffs to exclude all other possible causes of the accident.”
Furthermore, the evidence presented by the plaintiffs did not establish that the accident was caused by driver error, contrary to the contention of defendant. Deposition testimony of the plaintiffs as well as eyewitness testimony supported plaintiffs’ claim that the engine shut down mid-ride. For these reasons, a jury verdict in favor of plaintiffs was not irrational, and the Fourth Department affirmed the judgment against defendants.
Defendants Denied Summary Judgment in “Storm in Progress” Case
In Patricola v. General Motors Corp., 2019 N.Y. App. Div. LEXIS 1939, the Fourth Department affirmed an order of the trial court which denied defendants summary judgment dismissing the complaint against them.
Plaintiff alleged that he slipped and fell on property owned by defendants, and defendants moved for summary judgment based on the “storm in progress” doctrine. According to this doctrine, “a landowner is not responsible for a failure to remove snow and ice until a reasonable time has elapsed after cessation of the storm.” However, this doctrine is inapplicable if “the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation.”
In this case, defendants’ own submissions established that “snow removal efforts had been underway for more than an hour prior to plaintiff’s accident and that only a negligible amount of snow had accumulated in the three hours prior to the accident.” In light of this, the court ruled that there was a triable issue of material fact as to whether the storm had subsided to such an extent that the “storm in progress” doctrine was inapplicable.
The court also found that there was a triable issue of material fact based on deposition testimony submitted by defendants that established that workers were removing snow from the area in which plaintiff allegedly fell prior to the accident, and may have failed to salt the area or at least may not have adequately done so. For these reasons, summary judgment for defendants was not proper, and the order denying such was affirmed.