Fourth Department Upholds Dismissal of Claim against Town due to Plaintiff’s Failure to Comply with General Municipal Law Requirements

In Lee Fang v. Town of Amherst, Amherst Highway Dept. (CA 22-01408), the pro se plaintiff appealed the Supreme Court’s order granting the Town of Amherst’s cross-motion for summary judgment dismissing the amended complaint. On appeal, the Fourth Department affirmed.

Our office, representing the Town of Amherst, brought the motion to dismiss plaintiff’s amended complaint on the grounds that plaintiff failed to comply with the Town’s demand for an oral examination under General Municipal Law § 50-h(1). The Fourth Department noted that the 50-h statute entitles municipalities to such examinations and cited case law that “It is well settled that a plaintiff who has not complied with . . . [section] 50-h(1) is precluded from maintaining an action against a municipality.”

The Court reasoned that the Town met its initial burden of establishing that it timely served plaintiff with a demand for examination by certified mail as required under GML § 50-h(2). Plaintiff did not dispute that he timely received actual notice of the Town’s demand and that the examination was adjourned several times at plaintiff’s own request. Thus, the Supreme Court’s decision was affirmed and plaintiff’s claims against the Town remain dismissed.

Fourth Department Modifies Serious Injury Threshold Order under 90/180-day Category

In Brittani L. Sadler v. Micah S. James, LJ Construction WNY, LLC (CA 21-01552), our office, representing the defendants, appealed the Supreme Court’s Order which granted plaintiff’s motion for summary judgment in part and denied defendants’ cross-motion for summary judgment in a motor vehicle accident case. At the lower court level, plaintiff prevailed on the 90/180-day “serious injury” category of Insurance Law § 5102(d). The court found issues of fact on the “permanent consequential limitation of use” and “significant limitation of use” categories.

Our office appealed the motion decisions on the grounds that neither of the three serious injury categories were met here or, alternatively, that issues of fact existed on the 90/180-day category.

The Fourth Department agreed with respect to the 90/180-day category and thus found that issues of fact existed on that topic. As a result, the parties now have issues of fact on all three categories of “serious injury” that plaintiff pled, which therefore requires a trial by jury of all “serious injury” issues.

The Court reasoned that even assuming that plaintiff met her initial burden on the 90/180-day category, defendants still raised a triable issue of fact. This concerned plaintiff’s prior injuries to the affected body parts, giving rise to defendants’ argument that plaintiff’s alleged injuries were pre-existing and not causally related to the subject accident.

The Fourth Department noted that although plaintiff submitted an affirmation of her treating physician and an affidavit of her chiropractor establishing that she sustained serious injuries to her neck, back, and left shoulder as a result of the motor vehicle accident, defendants submitted a report from their expert physician who conducted an examination of plaintiff and concluded that plaintiff did not sustain any serious injury as a result of that accident. The Court then cited the rule of law that “It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment” and thus found that defendants raised an issue of fact regarding 90/180. For the same reasons, the Court affirmed the issues of fact found with respect to the remaining two serious injury categories.

Lastly, the Court remarked that although defendants’ IME doctor did not examine plaintiff until over one year after the accident, “which would call into question his ability to opine on any limitations that plaintiff had during the initial 180-day period following the accident”, the basis of the defense IME doctor’s opinion was that plaintiff did not sustain “any significant injury” as a result of the 2019 accident. The Court concluded that the IME doctor’s report thereby raised a triable issue of fact regarding causation sufficient to defeat plaintiff’s motion with respect to the 90/180-day category of serious injury.

Fourth Department Upholds Dismissal of Claim against Town due to Lack of Prior Written Notice of Alleged Condition

In Mary Haas and James Haas v. Town of Cheektowaga (CA 22-00657), plaintiffs sued the Town of Cheektowaga regarding a trip and fall on a street owned and maintained by the Town. The Supreme Court granted the Town’s motion for summary judgment dismissing plaintiffs’ complaint and plaintiff appealed.

On appeal, the Fourth Department affirmed the granting of the Town’s motion, which was based on the Town’s lack of prior written notice of the alleged condition.

The Court found that the Town met its initial burden on the motion by establishing the location of the accident and that it lacked prior written notice of a defect at that location as prescribed by the Town Code. In opposition, plaintiffs had the burden to demonstrate that defendant “affirmatively created the defect through an act of negligence … that immediately resulted in the existence of a dangerous condition.”

The plaintiffs attempted to do so by submitting an affidavit from an expert, who opined that defendant defectively paved portions of the street approximately one year prior to the accident. This was based on photographs taken by plaintiff’s son that depicted a portion of the street with “water risers” in the pavement.

However, the Fourth Department found that the expert’s affidavit did not raise a question of fact with respect to whether defendant created the defective condition that caused the accident, as defendant’s moving papers included evidence establishing that the area where plaintiff allegedly fell did not contain the water risers. Accordingly, the Fourth Department affirmed the lower court’s order dismissing plaintiffs’ complaint.

Prepared by Daniel Cercone

Daily Archives: June 30, 2023

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