Plaintiff Survives Summary Judgment Thanks to Testimony of Neurosurgeon
In Taylor v. Kelly, 2019 N.Y. App. Div. LEXIS 9243 (4th Dept. December 20, 2019), the plaintiff brought an action against the defendant for injuries she allegedly sustained when the vehicle she was driving was rear-ended by the defendant. The plaintiff claimed to have sustained injuries to her cervical spine under the “significant limitation of use” and “permanent consequential limitation of use” categories of serious injury as defined by New York’s Insurance Law § 5102 (d). The defendant initially moved for summary judgment on the ground that the plaintiff’s injuries were not causally related to the accident. The lower court, however, denied the motion. The defendant appealed.
On appeal, the Fourth Department affirmed the lower court’s denial. The Court first pointed out that the defendant met its initial burden by offering “persuasive” evidence that the plaintiff’s injuries were related to a pre-existing condition. Nevertheless, the Court went on to explain that the plaintiff was able to raise triable issue of fact by submitting an affirmation of her treating neurosurgeon, who opined that the accident caused the plaintiff to suffer a disc herniation, which resulted in two surgeries. The neurosurgeon’s testimony was based on imaging studies, which showed that the herniation in question was not present prior to the accident. The Court concluded that this testimony was adequate to raise a triable issue of fact with respect to whether the plaintiff suffered a new injury as a result of the accident.
Treating Surgeon’s Affidavit Insufficient to Defeat a Summary Judgment Motion on the Issue of Whether Plaintiff Suffered a “Serious Injury” Under New York’s Insurance Law
In Hoosier v. Kelly, 2019 N.Y. App. Div. LEXIS 9211 (4th Dept. December 20, 2019), the plaintiff brought an action seeking damages for injuries she allegedly sustained when the vehicle in which she was a passenger was rear-ended by the defendant. The plaintiff claimed to have sustained a “serious injury,” as defined by New York’s Insurance Law, to her cervical and lumbar spine. Before trial, the defendant moved to dismiss the plaintiff’s complaint on the ground that the plaintiff did not sustain a serious injury. The Supreme Court denied the motion, and the defendant appealed.
The Fourth Department reversed the decision of the Supreme Court. First, the Court found that the defendant had satisfied its initial burden of showing that the injury was related to a pre-existing injury by submitting an affirmed report of the physician who conducted a medical examination of the plaintiff on behalf of the defendant. Though the plaintiff submitted an affidavit from her treating surgeon, the Court determined that the affidavit failed to address the defendant’s lack of causation. Specifically, the Court pointed to the fact that the surgeon failed to refute the defendant’s examining physician by “comparing the plaintiff’s pre-and post-accident range of motion restrictions.” Moreover, the plaintiff’s surgeon “failed to provide any basis for determining the extent of any exacerbation of plaintiff’s prior injuries.” For those reasons, the Court held that the plaintiff failed to raise a triable issue of fact concerning the issue of causation and, therefore, reversed the decision of the Supreme Court.
Court Found that the Defendants’ Own Submissions Raised a Triable Issue of Fact as to Whether They Were on Notice of Their Dog’s Vicious Propensities
In Opderbeck v. Bush, 2019 N.Y. App. Div. LEXIS 9197 (4th Dept. December 20, 2019), the plaintiff, a delivery employee of UPS, brought an action seeking damages for injuries he allegedly sustained when he was bitten on the wrist by the defendants’ dog while delivering a package to their home. The defendants immediately moved for summary judgment. The Supreme Court granted the motion with regard to the plaintiff’s first cause of action, for strict liability based on the dog’s vicious propensities. The plaintiff appealed.
On appeal, the Fourth Department reversed the Supreme Court’s order. The Court based its decision in part on testimony submitted by the defendants in which one of them admitted that he purchased the dog in part for protection and that he considered the dog’s bark to act like an alarm. The Court also pointed to the testimony of one of the defendants who stated that she told the dog to “stand still” as it was running toward the plaintiff. Moreover, both defendants admitted that there were three “Beware of Dog” signs posted on their premises. Thus, the Court held that, taken together, the defendant’s own submissions raised a triable issue of fact as to whether they had prior notice of the dog’s vicious propensities.
Landlord Unable to Conclusively Establish that He Was Not Contractually Obligated to Remove Snow and Ice from Leased Premises
In Rainey v. Bonanno, 2019 N.Y. App. LEXIS 9222 (4th Dept. December 20, 2019), the plaintiff brought an action against the defendant landlord after he slipped and fell on snow and ice that had accumulated on a walkway at the defendant’s property. The defendant filed a pre-answer motion to dismiss the complaint pursuant to CPLR 3211 for, among other reasons, failure to state a cause of action. To succeed on a motion pursuant to CPLR 3211 for failure to state a cause of action, the defendant’s evidence must conclusively establish the plaintiff has no cause of action. In support of his motion the landlord submitted a lease agreement between the tenant and the defendant’s rental agent that expired prior to the date of the incident, which included a provision delegating responsibility for snow and ice removal to the tenant. The Supreme Court denied the motion, and the defendant appealed.
The Fourth Department affirmed the decision of the Supreme Court. The Court found that the evidence submitted by the landlord failed to conclusively establish that he was not contractually obligated to keep the walkway clear of snow and ice. The Court explained that the expired lease agreement, which was signed by neither the plaintiff nor the defendant, did not conclusively establish that there was a holdover tenancy and, therefore, that the provision delegating snow and ice removal to the tenant was in effect at the time of the incident.
Defendant’s Summary Judgment Motion Denied in a Slip and Fall Case
In Wood v. Buffalo & Fort Erie Pub. Bridge Auth., 2019 N.Y. App. Div. LEXIS 9280 (4th Dept. December 20, 2019), the plaintiff brought an action seeking damages after he allegedly slipped and fell on black top at the defendant’s premises, causing him to hit his head on the door frame of the vehicle that he was entering. The defendant moved for summary judgment on the grounds that 1) the plaintiff could not identify the cause the slip and fall without engaging in speculation and 2) the defendant lacked notice of the alleged icy condition. The lower court denied the motion. On appeal, the Fourth Department affirmed this decision.
With regard to the defendant’s first contention, the Court explained that although mere conclusions based on speculation are insufficient prove that a defendant was negligent, a negligence case based wholly on circumstantial evidence can be established if the plaintiff “shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” In this case, the plaintiff testified in his deposition that the night was cold, and that prior to his fall, he observed that the blacktop was “glossy” and “shiny,” and that the glossiness was the sole explanation for his fall. For that reason, the Court found that even though the plaintiff did not definitely identify the glossiness as ice, that did not establish that the fall was not caused by ice. The Court also found that the defendant’s maintenance log, which did not record the condition of the area inspected or reflect the actual time the area was inspected, was insufficient to establish the condition of the blacktop at the time of the accident.
Next, the Court found that the defendant failed to meet its initial burden of establishing that it lacked actual or constructive notice of the alleged icy condition. The Court clarified that with respect to constructive notice, the defendant has “the initial burden of establishing as a matter of law that that the alleged icy condition was not visible and apparent or that the ice formed so close in time to the accident that the defendant could not reasonably have been expected to notice and remedy the condition.” Here, the Court rejected the defendant’s argument that condition was not visible and apparent, as the plaintiff, in fact, testified that he noticed that the black top was “glossy” and “shiny” prior to the incident. Moreover, the Court pointed out that the mere fact that the plaintiff may have fell on “black ice” did not establish, as a matter of law, that the condition was not “visible and apparent.” The court, again, explained that the defendant’s maintenance log, which did not reflect the actual time of inspection or precisely what was done upon inspection, was insufficient to demonstrate the absence of constructive notice. Finally, with regard to actual notice, the Court likewise concluded that the defendant failed to meet its initial burden of establishing that it lacked actual notice of the alleged icy condition.
Prepared by Dominick F. Roa