Monday, March 28, 2011

Second Department Makes Rare Admission

In Stukas v. Streiter, the Second Department made a rare admission that its decisions related to a plaintiff's burden in opposition to a motion for summary judgment in medical malpractice cases "lacked a precise consistency."  In Stukas, the defendant moved for summary judgment, making a prima facie case that it did not depart from standard and accepted practices. In response the plaintiff attempted to raise a question of fact on that issue, but did not address the issue of causation.  At issue on appeal was whether the plaintiff was required to address causation, even though the defendant had not raised it in its motion.  The Appellate Division held that despite many of its own cases stating or implying to the contrary, a nonmoving party is not required to raise a triable issue of fact when the moving party has not addressed the issue.  

CPLR 2001 Can Only Bend So Far

In Goldenberg v. Westchester County Health Care Corporation, the plaintiff commenced a special proceeding to file a late notice of claim, attaching a copy of a proposed complaint.  After the Supreme Court granted the petition, the plaintiff served the hospital with a notice of claim as well as a summons and complaint.  The plaintiff, however, did not purchase an index number and failed to file a summons and complaint.  The Court of Appeals held that while CPLR 2001 was amended to allow trial courts to fix or overlook defects in the filing process, the amendments were not meant to excuse a complete failure to file within the applicable statute of limitations. Since the plaintiff never filed a summons and complaint, the Court held that the mistake could not be excused.  

Wednesday, March 9, 2011

Court Declines to Apply Assumption of Risk to Rollerblading on A Sidewalk

In Ashbourne v. City of New York, the plaintiff was injured while rollerblading on a public sidewalk. She commenced an action against the City and NYCHA. The trial court dismissed the plaintiff's complaint on the basis of the assumption of risk doctrine. On appeal, the First Department reversed and reinstated the complaint.

The First Deparment initially observed that, in Trupia v. Lake George CSD (14 NY3d 392 [2010]), the Court of Appeals declined to apply the assumption of risk doctrine by limiting the doctrine to protect only organizers and sponsors of athletic and recreational activities because of their "enormous social value". The First Department then observed that assumption of the risk doctrine was applied by the Court of Appeals to a golfing game in Anand v. Kapoor (2010 NY Slip Op 09380 [2010]) because "[a] person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation."

Applying the foregoing analsyis, the First Department held that the rollerblading engaged in by plaintiff on a public sidewalk was not part of an organized sporting event, but was merely a form of exercise no different than jogging. As such, plaintiff did not consent to the negligent maintenance of the sidewalk by the City.

Friday, March 4, 2011

Third Department Declines to Adopt First Department Interpretation of "Use of Auto" Exclusion in CGL Policy

In Essex Ins. Co. v. Grande Stone Quarry, LLC, the underlying plaintiff was injured while using an ATV on property owned by Grande Stone Quarry. Grande Stone notified its insurer, Essex Ins. Co., of the potential claim. Essex disclaimed coverage pursuant to an endorsement amending its policy in pertinent part as follows:

This insurance does not apply to "bodily injury". . . or any injury, loss, or damages. . . arising out of, caused by or contributed to:

a. by ownership, non-ownership, maintenance, use, or entrustment to others of any "auto". . . all terrain vehicle (ATV), or motorcycle. Use includes operation and "loading" and "unloading".

By comparison, the standard language in Essex's CGL policy, which was amended by the above-referenced endorsement, excluded coverage as follows:

"Bodily injury". . . arising out of the ownership, maintenance, use or entrustment to others of any. . . "auto". . . owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading".

As can be seen, the exclusion was clearly amended to apply to ATV use. As can also be seen, the exclusion was amended to delete the limiting language for application to ownership or use of an ATV by "any insured." Despite the foregoing, the Third Department found that the exclusion did not apply to "any other persons" without adding such explicit language. The Court stated that Essex had "failed to create an exclusion having a definite and precise meaning, unattended by danger of misconception" (citations omitted). (The Third Department did not discuss the fact that the exclusion also applied to "non-ownership" of any ATV).

Most notably, the Third Department specifically observed that it was declining to adopt the holding of the First Department, thereby creating a conflict between the Departments on this issue, in DMP Contr. Corp. v. Essex Ins. Co. (76 AD3d 844, 846-47 [1st Dept. 2010] [holding that: "The plain meaning of this language, which focuses on the connection between a vehicle and the injury, not between a vehicle and the insured, is that bodily injury occurring as described is not covered, whether or not it is the insured who owned, maintained, used or entrusted to others the subject automobile]).

Whether a conflict between the Departments on the interpretation of this exclusion presents enough "leaveworthiness" for the Court of Appeals to take this issue might be dependent upon whether other insurers have similarly amended the standard CGL policy language to exclude coverage to use of "autos" or ATV's by persons other than the insured while operating such vehicles on the insured's property. If the issue is limited to Essex's policy, it may not present sufficient statewide implications or be of such public importance as to warrant leave. Stay tuned to this blog for any further developments.

Court Upholds Verdict Despite Evidence of Pre-Existing Condition and Failure To Give Comparative Negligence Charge For Physically Disabled Person

As discussed in our most recent blog, extensive evidence was offered to show that the plaintiff in Stewart v. NYCTA suffered from pre-existing conditions. The trial court limited the application of this evidence to the issue of damages, indicating that there was no evidence that the plaintiff was unable to walk the stairs on which he fell on the day of his accident. The jury ultimately found the plaintiff to be 20% at fault for the happening of his accident. The First Department affirmed both the trial court's determination and the jury's verdict.

Notably, however, the First Department indicated that the trial court should have charged the jury with PJI 2:47, which states: "Comparative Negligence—Persons Under Disability—Aged or Physically Disabled Person -- One who is disabled by reason of physical defects is held to a standard of care measured not by the care expected of an adult person without physical defects, but by that care which a reasonably prudent person having the same physical defects would use under the same circumstances. A person laboring under a physical handicap must use caution commensurate with the increased hazard caused by his disability." The trial court had instead given a simple comparative negligence charge. Taking this fact into consideration, the First Department found that the error in failing to give the Disabled Person charge was harmless.

(1) Pain and Suffering Award for Multiple Spinal Injuries and (2) Reduction of Future Loss of Earnings

In Stewart v. NYCTA, the plaintiff slipped and fell on defendant's stairs. The plaintiff sustained the following injuries: (1) a contusion of the cervical spine which required a laminectomy and fusion surgery; (2) compression fractures of the thoracic spine and (3) lumbar laminectomy and fusion surgery. The plaintiff required a baclofen pump to be surgically implanted to prevent muscle spasms in his legs. He has continued difficulty sitting, standing, walking, bending, dressing himself and sleeping. The first Department affirmed awards of $2 million for 9 years of past pain and suffering and $2.7 million for 20 years of future pain and suffering.

The Court reduced the jury's award of $900,000 for future loss of earnings, observing that it was against the weight of the evidence for the jury to assume, given the plaintiff's extensive pre-existing conditions, that he would work for the remainder of his life (20 years). Instead, the Court applied a work-life expectancy of 7.5 years based upon statistical averages. As such, the award for future loss of earnings was reduced to $337,500. (The Court also reduced future medical expenses from $1.3 million to $665,000 as being unsupported by the evidence).

Thursday, March 3, 2011

Pain and Suffering Award for Trimalleolar Fracture w/Surgery

In Hopkins v. NYCTA, the First Department affirmed jury awards of $350,000 for past pain and suffering and $275,000 for 55.4 years of future pain and suffering for a 22 year-old female who sustained a trimalleolar fracture of her right ankle in a trip and fall. The plaintiff underwent internal fixation surgery with a second surgery to remove screws. She was left with permanent pain and limitation of motion in her ankle and the potential for future surgery due to early onset arthritis.

First Department Dismisses Appeal for Failure to Assemble a Proper Record

In Lynch v. Con Ed, the plaintiff tripped on a defect in a roadway near a manhole cover. She sued Con Edison and Nico Asphalt, who Con Ed had hired to re-pave the area around the manhole. After trial, the jury found Nico free from negligence and because of the configuration of the verdict sheet it did not reach the issue of Con Ed's liability. The trial court thereafter denied plaintiff's motion to set aside the verdict and plaintiff appealed.

In dismissing plaintiff's appeal, the Court stated:"The appeal is dismissed because plaintiff failed to assemble a proper record on appeal, including the trial transcript and the minutes of the charge conference (see Sebag v Narvaez, 60 AD3d 485 [2009], lv denied 13 NY3d 711 [2009]; CPLR 5526; Rules of App Div, 1st Dept [22 NYCRR] § 600.5). Without the benefit of a proper record, this Court cannot "render an informed decision on the merits" (Matison v County of Nassau, 290 AD2d 494, 495 [2002])."