New York Civil Law

Serious Injury Part II – New York Court of Appeals Hears Oral Arguments on Findings of Limitations of Range of Motion Contemporaneous With the Subject Motor-Vehicle Accident

Travis v. Batchi (Motion for leave to appeal granted on February 10, 2011) 75 A.D.3d 411 (1st Dep’t 2010)

 This appeal from the First Department addresses the same issue of contemporaneous findings. The Court noted that the examination records of the plaintiff’s own treating physician/expert fatally hindered the plaintiff’s opposition to summary judgment on a “serious injury” threshold motion. The physician submitted in opposition to the summary judgment motion that provided that the plaintiff sustained a permanent injury to the knee as a result of the accident. He prepared this affirmation a few years after the accident. However, his examination records from a few weeks and a few months after the accident indicated that the plaintiff had full strength and range of motion in the knee. The plaintiff also had full strength and range of motion in the knee after a right knee anterior cruciate ligament reconstruction, partial medial and lateral meniscectomy and chondroplasty.

 The Court reasoned that, absent some explanation from the physician, his negative findings cannot be reconciled with the physician’s affirmation submitted in opposition to the motion, prepared a few years after the accident, that the plaintiff sustained a permanent injury to the knee as a result of the accident.

 This appeal appears to differ from Adler v. Bayer because, here, the plaintiff’s physician indicated in the medical records that the plaintiff had full range of motion weeks and months after the accident.  

 

Serious Injury – New York Court of Appeals Hears Oral Arguments on Findings of Limitations of Range of Motion Contemporaneous With the Subject Motor-Vehicle Accident

 Adler v. Bayer (Motion for leave to appeal granted on Jan 18, 2011) 2010 N.Y. Slip Op. 07300 (Oct. 12, 2010)

The Second Department has developed a line of analysis regarding demonstrating a prima facie case of “serious injury” pursuant to Insurance Law § 5102(d) and the Court of Appeals’ decision in Toure v. Avis Rent A Car Sys., Inc.

The line of case law requires that a plaintiff demonstrate limitations of range of motion contemporaneous with the subject motor-vehicle accident.

 The plaintiff in Adler challenges this line of reasoning. The plaintiff in Adler was injured in a motor-vehicle accident when the vehicle in which he was a passenger went off the road and struck a tree. He sustained injuries to his back, needs, eyes, and head. The plaintiff’s treating physician – a physical medicine and rehabilitation physician – verified the plaintiff’s injuries to his right shoulder, right wrist, both knees, right ankle, and cervical and lumbar spine through different tests. However, he did not record the plaintiff’s range of motion limitations because he opined that doing so would be “unreliable”.  In several follow-up examinations, the plaintiff’s treating physician determined that the plaintiff’s examinations were no better and, therefore, he could not record range of motion limitations. Approximately four years after the accident, the plaintiff’s treating physician quantified the plaintiff’s range of motion limitations.  At trial, the treating physician opined, within a reasonable degree of medical certainty, that the plaintiff’s injuries constituted a “permanent partial disability and . . . had impairment in multiple joints and . . . has alterations on examination of different parts of his body.”

The Second Department reversed a judgment in favor of the plaintiff after a jury trial and granted the defendants’ motion for a directed verdict.  In a terse, unrevealing decision, the Court reasoned that “[t]he plaintiff was required to show the duration of the alleged injury and the extent or degree of the limitations associated therewith . . ., which he failed to do.”  By citing Ferraro v. Ridge Car Serv., the Court’s reasoning appears to based on the plaintiff’s failure to provide contemporaneous findings of range-of-motion limitations in his spine.

 The novel question presented is whether Section 5102 and the Court of Appeals’ case law interpreting the “serious injury” threshold require such a showing.  The plaintiff argued in his motion for leave to appeal that such a showing punishes a plaintiff for first concentrating on treatment and not the litigation process.

 Notably, the Court of Appeals will likely hear this appeal with another appeal on the same issue – Perl v. Meher, 74 A.D.3d 930 (2d Dep’t 2010).  Also see Travis v. Batchi tomorrow.

 

New York Insurance Law – New York Court of Appeals Will Hear Appeal on Notice to Insurer Concerning “Claims Made” Insurance Policy

McCabe v. St. Paul Fire & Marine Ins. Co. (Motion for leave to appeal granted on May 3, 2011)

Has the Fourth Department determined that an insurer regarding a “claims made” insurance policy need not receive a report of a claim during the policy period or extended reporting period, as long as there is a reasonable excuse for the late report outside of those time periods? The Fourth Department’s decision in McCabe raises that exact point.

In McCabe, the plaintiffs Amy and Thomas McCabe were the owners of a residence that was totally destroyed by fire on December 30, 2003. They retained attorney David E. Fretz to handle their fire loss claim under their homeowner’s policy. During the course of that representation, Fretz began to suffer from severe depression and thus became unable to handle his own and the plaintiffs’ business and legal affairs. As a consequence of Fretz’s neglect of their insurance claim, the plaintiffs lost their ability to recover on that claim.

The plaintiffs commenced a declaratory judgment action seeking a declaration that Fretz’s professional liability insurer, the defendant St. Paul Fire & Marine Ins., is obligated to indemnify Fretz in the underlying legal malpractice action the plaintiffs brought against Fretz. Fretz’s malpractice insurance policy was a “claims made” professional liability insurance policy that required that any claims must have been reported to the insurer within the policy period and the extended reporting period, which expired March 15, 2007.

The insurer first learned of the plaintiffs’ claim against Fretz on June 22, 2007, approximately three months after the extended reporting period for the “claims made” policy had expired. It disclaimed coverage for Fretz based on the untimely notification. The plaintiffs had obtained default against Fretz in the underlying action and, following an inquest, Supreme Court awarded the plaintiffs $226,000 in compensatory damages. The commenced the declaratory judgment action against the insurer in an attempt to recover the compensatory award they received in the underlying action.

 The Fourth Department concluded that the plaintiffs’ claim was not invalidated even though they failed to give notice to Fretz’s insurer during the policy period or extended reporting period; the Court noted that the plaintiffs gave the insurer notice of their claim against Fretz as soon as reasonably possible. The Court rejected the insurer’s contention that Insurance Law sections (a)(3) and (4) included exceptions for claims-made insurance policies. Those sections of the Insurance Law concern what is deemed notice and whether giving that notice as soon as reasonably possible suffices under insurance policy notice conditions. They generally apply to occurrence-based insurance policies, not claims made policies. 

The Court of Appeals will decide whether notifying an insurer as soon as reasonably possible within the context of a claims-made policy is sufficient. If the Court affirms the Fourth Department’s holding, insurers of claims made policies will not have the same closure that they once had once the reporting period and extended reporting periods expired.

 

New York Court of Appeals Revisits Sole Proximate Cause Defense

With the last few Labor Law decisions from the New York Court of Appeals (read post here and here) acting as a backdrop, I've heard defense attorneys complain that the Court has cut back the sole proximate cause defense in its recent decision Gallagher v. New York Post.  The decision in Gallagher seems less to do about the Court retracting from its prior decisions on this defense and more about the proof that was adduced on summary judgment (see prior post).  

The plaintiff in Gallagher was injured when he fell into an opening decking floor after the blade of a circular cut-off saw he was using became bound up in the decking that he was cutting.  At his deposition, the assistant project manager at the work site testified that "safety harnesses with shock-absorbing lanyards" and "retracting lanyards" were available for use.  He could not say whether any of those safety devices were in the area from which the plaintiff fell.  The assistant project manager also testified that, at the time of the accident, there was a "standing order," issued by the project manager to the project foremen, that the ironworkers should "have a harness on and be tied off".  He could not recall whether these instructions had been given to the ironworkers.

The plaintiff and his wife moved for partial summary judgment on his Labor Law sec. 240(1) claim, pointing to the affidavit of his co-worker who stated that "there were no safety lines, lifelines or stanchions in the work area, and [he and the plaintiff] were not provided with safety belts, harnesses or yo-yos in order to tie off."  The defendant owner relied on the assistant project manager's deposition testimony that safety devices were available for use at the project site; it also relied on the "standing order".

In further support of their motion, the plaintiff adduced an affidavit signed by the injured plaintiff's foreman.  The foreman would have been the person responsible for relaying safety instructions to the ironworkers.  The foreman stated that the injured plaintiff had not been provide with a safety harness or lifeline, nor were any stanchions or safety cables in the accident area at the time of the accident."

The Court granted the plaintiffs' partial summary judgment motion, holding that the owner's evidence did not raise a question of fact that the injured plaintiff knew of the availability of the safety devices and unreasonably chose not to use them.  The Court pointed out that there was no evidence that the injured plaintiff knew where to find the safety devices that the owner argued was available.  

The Court also pointed out that there was no evidence that the injured plaintiff was expected to use the safety devices.  The owner failed to proffer evidence demonstrating that the injured plaintiff had been told to use the safety devices.  Although the owner pointed to the "standing order," there was no evidence that anyone conveyed the order to the ironworkers.  The Court also relied on the foreman's affidavit to demonstrate the injured plaintiff had not been provided with the requisite safety devices.  The Court noted that the foreman's affidavit was consistent with the conclusion that the injured plaintiff was ignorant of the availability of safety devices or with his knowledge thereof.

The Court distinguished its prior holdings in Montgomery v. Federal Express Corp. and Robinson v. E. Med. Ctr. LP.  The Court noted that both cases stand for the same proposition: Liability under sec. 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing the accident.  The Court concluded that the Gallagher facts did not present such a case.

Gallagher defines the outer boundaries of the prior sole proximate cause cases; the decision appears less a chipping away of the sole proximate cause defense and more an explanation of what proof a defendant must proffer to apply the defense successfully.

Landlord Possibly Liable for Tenant's Dog Who Bit Plaintiff's Child Off the Landlord's Property

The Appellate Division, Third Department in Champ-Doran v. Lewis recently held that an issue of fact existed regarding the defendant landlord's liability for injuries the plaintiff's child sustained.  The plaintiff's child was attacked by one of two dogs owned by the defendant's tenants on the plaintiff's front own front porch.  The plaintiff stated in his bill of particulars that the defendant landlord was aware of the vicious propensities of his tenant's dogs; he also alleged that the defendant tenant had actual and constructive notice that the fence surrounding the landlord's property was "broken and otherwise defective."

 Supreme Court denied the defendant landlord's summary judgment motion.  The defendant landlord argued that he was not liable because the incident did not occur on his property.

The Third Department agreed with Supreme Court, noting that the defendant had knowledge of the dog's vicious propensities and had an adequate opportunity to control the premises and confine the dogs.  The defendant admitted at his deposition that soon after he rented the property to the tenant he became aware of the dogs and received a complaint from a neighbor about barking.  He also admitted that he knew of prior occasions where the dogs escaped the property and told the tenant that the dogs had to go.  Affidavits from neighbors demonstrated that they complained to the defendant about the dogs and their vicious propensities.

The Court recognized that generally a landlord does not owe a duty of care to persons injured from a tenant's dog where the injury occurs off the landlord's property.  The Court concluded, however, that liability can nevertheless be imposed where it is established that the defendant knew of the dog's presence on the premises and its vicious propensities, and the defendant had control of the premises or otherwise had the ability to remove or confine the dog.

Appellate Division, Second Department Addresses Labor Law Action Regarding Scaffold Slipping in Hole

In Caballero v. Benjamin, the Appellate Division, Second Department held that the plaintiff injured worker established prima facie that the owner and general contractor were liable under Labor Law sec. 240(1).  A wheel on the scaffold upon which the plaintiff was working fell into a hole, causing him to fall.  The Court reasoned that the violation of sec. 240 was the proximate cause of the accident and, therefore, the plaintiff's conduct (not discussed in the decision) could not be the sole proximate cause.

The Court also held that the subcontractor was not liable under sec. 240(1) because the evidence established that the subcontractor did not have supervisory control over the work or did not have the authority to insist that proper safety measure were followed.

Also, the Court held that the owner and general contractor established their entitlement to judgment as a matter of law on their contractual indemnification claim against the subcontractor.  The noted that, "[a]though 'an indemnification agreement that purports to indemnify a party for its own negligence is void under General Oblications Law sec. 5-322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification to the fullest extent permitted by law."

Apellate Division, Second Department Addresses Multi-Vehicle Accident

In Biddy v. Vanmaltke, the Appellate Division, Second Department held that the defendant driver was not liable regarding a collision of the plaintiff's truck or the one in which the plaintiff was rear-ended by another tractor trailer.  The accident unfolded as follows: The defendant Vanmaltke was driving a minivan in the right lane of the eastbound roadway of the Cross Bronx Expressway, when his car was cut off by a Lincoln Town Car.  Defendant Vanmaltke testified at a deposition that he steered to the left to avoid the Town Car and, in doing so, he contacted a tractor trailer being driven in the center lane by the plaintiff Leon Biddy.  This caused the tractor trailer to veer into the left lane and strike the vehicle that the appellant was driving.  The appellant was driving straight in the left lane.  As the plaintiff Biddy was attempting to stop his truck, he was rear-ended by a tractor trailer.

The Court held: "The evidence presented by the appellants on their motion for summary judgment, including the deposition transcripts of the parties and the police accident report, established, prima facie, that the appellant was not at fault in the happening of the accident and, therefore, could not bear an culpability for the plaintiff's injuries . . . .  There is no proof that the appellant operated his vehicle improperly or engaged in any conduct which helped bring about either the collision between his motor vehicle and the plaintiff's truck or the subsequent rear-end collision involving the two trucks.  Moreover, the appellant was 'in no position to take any steps to either reasonably foresee or avoid' the collision between his automobile and the plaintiff's truck."

Appellate Division, Third Department Addresses Juror Confusion

The Appellate Division, Third Department in Albarado v. Dillon recently addressed one of the defendant's claims of juror confusion.  The appeal concerned a three-car accident stemming from the defendant State Trooper's high-speed chase.  The other defendant was stopped on the same route, attempting to make a left-hand turn.  In attempting to avoid the defendant stopped in front of him, the defendant State Trooper first collided with the plaintiff Flood's vehicle and then, as the patrol car rolled over, with the plaintiff Alvarado's vehicle.

The appeal concerned plaintiff Alvarado's action against the State Trooper, the other defendant, and the plaintiff Flood.  A jury found the State Trooper liable to the plaintiff Alvarado and the plaintiff Flood; it found the other plaintiff not liable.

The State Trooper contended that the jury charge at trial to determine liability regarding the standard of care owed by him (as an on-duty police officer) was confusing and warranted a new trial.  The Third Department rejected the argument that the trial court should have given a more complete instruction.  

The Court held: "While the statutory language may be confusing standing alone . . ., the court did not rely solely on the statute in its charge to the jury.  After reading the statute, the court went on to give a charge that closely mirrored Pattern Jury Instruction 2:79a and, on multiple occasions during its charge, referenced the fact that [the defendant State Trooper and the other defendant] were to be judged by different standards . . . .  Additionally, the verdict sheet very clearly indicated these differing standards.  Furthermore, there is no tangible evidence that the jury was confused in this cse as it did not request a clarification on the instructions are.

The Court also addressed interesting points on review of unpreserved issues of fundamental error and costs of litigation under the CPLR.

Appellate Division, Second Department Affirms Rejection of Creative Rear-End Defense

In Carrington-White v. Malvey, the Appellate Division, Second Department recently affirmed  the plaintiff's summary judgment motion on liability.  The matter concerned a rear-end accident, where the defendant struck a cement barrier, causing her vehicle to strike the plaintiff's vehicle.  In opposition to the plaintiff's summary judgment on liability, the defendant contended that she must have been struck from behind by an unidentified vehicle immediately before striking the plaintiff.  The Second Department agreed with the trial court that the defendant's contention was pure speculation and failed to raise a triable issue of fact.

Decision on "Additional Insured" Coverage Will Reach New York Court of Appeals

The New York Court of Appeals in Worth Constr. Co. v. Admiral Ins. Inc. interpreted an additional insured endorsement of a commercial general liability insurance policy.  The issue concerned the provision providing that the additional insured was insured only regarding liability arising out of the insured's (subcontractor's) work.  In Worth, the injured worker fell on a stairway that the insured subcontractor had constructed.  However, the general contractor ultimately conceded that the insured was not negligent as to the worker's accident.  As such, the Court of Appeals held that the general contractor did not have coverage under the subcontractor's insurance policy as an additional insured because the injured worker's accident occurred at the situs of the subcontractor's work but was not due to any negligence on the subcontractor's part -- i.e., the liability did not arise out of the insured's work.

The Appellate Division, First Department recently addressed a gloss on Worth in Bovis Lend Lease LMB v. Garito Constr. Inc.  In that case, the injured worker's accident occurred at the situs of the insured subcontractor's work.  A jury found the general contractor and insured subcontractor negligence, but did not find that the subcontractor's work was the proximate cause of the accident.  

The Majority held that the jury's finding that the insured subcontractor was not the proximate cause of the accident was analogous to the general contractor's concession in Worth that the insured subcontractor was not negligent.  Therefore, the First Department held that the general contractor was not entitled to coverage as a general contractor.  The Dissenting Justices disagreed and held that coverage should have been afforded to the general contractor.

Because two Justices dissented on the same issue of law, and the declaratory judgment action is final, the Court of Appeals will hear the appeal.  New York Civil Law will keep you apprised of the results.