Feroleto Law, Buffalo NY

RECENT FOURTH DEPARTMENT CASE LAW

In Kmiotek v Chaba ____ A.D. 3d ____ the Appellate Division, Fourth Department set a minimum value for spinal disc injuries. The Appellate division also upheld the trial Court’s Order directing a verdict on the issue of serious injury. This case involves an appeal from a judgment of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered November 13, 2007.

At trial the plaintiff was awarded $35,000 for past pain and suffering and $40,000 for future pain and suffering. In order to avoid a new trial on damages, the defendant was required to stipulate to $75,000 for past pain and suffering and $150,000 for future pain and suffering with a 40 year life expectancy.

In addition, the Fourth Department rejected defendants’ contention that Supreme Court erred in directing a verdict on the issue of serious injury. The Court held that medical evidence established that plaintiff sustained an annular tear and herniated discs at L4-5 and L5-S1 that required surgery. Plaintiff thus established that she sustained a permanent consequential limitation of use of her back and a significant limitation of use of her back within the meaning of Insurance Law § 5102 (d).

Trenca v. Culeton, et al., CA 08-01376.

This case involved an appeal from an Order of the Supreme Court of Oswego County, Entered December 19, 2007 in a personal injury action. The Order granted the defendant’s motions and cross motions for summary judgment dismissing the amended complaint. The Fourth Department, unanimously reversed upon the law and reinstated the complaint.

In this action, the plaintiff fell into a trench on a neighboring property and sustained injuries. The defendant, Culeton, contracted with a co-defendant, Furdi, for the construction of a modular home on a vacant lot owned by Culeton. Defendant Furdi, in turn, hired another defendant to excavate and backfill the foundation. At the time of the plaintiff’s accident, the foundation walls had been erected but the excavation had not been back-filled leaving a trench around the foundation. The plaintiff was walking her dog to her back yard on the night of the accident and passed by the excavation. According to her testimony, the plaintiff at her deposition she recalled walking back along the side of our house and next she recalled waking up several hours later at the bottom of the trench.

The Fourth Department agreed with the plaintiff that the Supreme Court erred in granting defendant’s motions and cross motions for summary judgment dismissing the complaint. The Court held that Culeton, as the owner of the property had a duty to keep his premises in a reasonably safe condition and failed to meet his initial burden of establishing that he did not have actual constructive notice of the alleged dangerous condition. With respect to the other defendant’s the Court held that they failed to meet their initial burden of establishing that they did not create the dangerous condition.

It is significant to note in this case that the court held that contrary to defendant’s contention, the fact that the plaintiff does not recall how she fell into the trench is not dispositive. The plaintiff alleged that her injuries were caused by the defendant’s negligence in failing to place a barricade around the open trench, and defendants made no showing that they were not negligent under the common law in failing to provide such protection. The plaintiff also alleged regulatory violations, which the Court held provided some evidence of negligence and defendants failed to establish as a matter of law that those regulations were not applicable to the facts of this case.

Trala v. Afif, CA 08-01406. In this action, the plaintiff was seeking damages for injuries he sustained when he slipped and fell on snow and ice in the driveway of property owned by the defendant. At the time of the accident, the defendant hired a third-party defendant to remove snow from the driveway, but there was no written contract for those services. The defendant commenced third party action seeking contribution and indemnification on the ground that the third-party defendant was negligent and had breached the alleged snow removal contract. The Appellate division held that the Supreme Court erred in denying the motion of the third-party defendant for summary judgment dismissing the third-party complaint in as much as he met his burden of establishing entitlement to judgment as a matter of law and that defendant failed to raise a triable issue of fact in opposition to the motion. With regard to the third-party complaint, which asserted a claim for contribution, the Appellate Court held that the third-party defendant met his burden of establishing that he did not owe defendant a duty of care, independent of the alleged contract. Contrary to the contention of the defendant, his retention of responsibility and control of the premises precludes his recovery on the common law that indemnification cause of action. The Court also held that with respect to the cause of action for contractual indemnification, there is no basis upon which to impose liability against a third-party defendant in as much as he established that at the time of the accident, there was no snow removal contract containing an indemnification provision.

Christie v. Gilcrist, CA 08-00045. Decided December 31, 2008. This is an appeal from an Order of the Supreme Court in a personal injury action. The Lower Court Order granted the Motion of the plaintiff for leave to renew her opposition to defendant’s Motion for Summary Judgment dismissing the complaint and, upon renewal, the Court adhered to its prior decision. The Fourth Department, however, Ordered that the Lower Court’s Order is modified on the Law by denying defendant’s Motion in part in reinstating the complaint as amplified by the bill of particulars, with respect to the permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system categories of serious injury within the meaning of insurance law § 5102 (d). In this case, the defendant sought damages for an injury when she was rear ended by a vehicle driven by the plaintiff. The plaintiff eventually underwent a lumbar fusion as a result of her injuries. The Supreme Court, however, granted defendant’s Motion for Summary Judgment dismissing the complaint on the grounds that she did not sustain a serious injury. Plaintiff thereafter moved for leave to renew her opposition to the Motion and upon granting leave to renew, the Court adhered to its prior decision. The Appellate Division held that the lower Court properly adhered to its prior decision with respect to the 90/180 category of serious injury, but agreed with the plaintiff that the Court, upon renewal erred in adhering to its prior decision with respect to the permanent consequential limitation of use and significant limitation of use categories. The Court held that upon renewal of her opposition to the motion, the plaintiff submitted the affidavit of her treating neurologist, who conducted two surgical procedures after the court previously had granted defendant’s motion. The neurologist described her disc injuries and the “necessity of surgical intervention to alleviate the condition” as well as the permanency of her condition and the resulting limitations in her range of motion.

Deitzen v. Aldi, Inc. CA 08-00906. Decided December 31, 2008. In this case, the Fourth Department reversed the Lower Court’s Order dismissing the Complaint on a Motion from Defendant for Summary Judgment. In this action, the plaintiff sought damages she sustained when she tripped and fell over a wooden pallet at a store owned by the defendant. The Court held that, even assuming that the defendant’s initial burden of establishing its entitlement to Summary Judgment, the plaintiff raised in issue of fact sufficient to defeat the Motion. The Court held that although there are some inconsistencies between the affidavits submitted by the plaintiff’s in opposition to the Motion in plaintiff’s prior deposition testimony, we reject the defendant’s contention under the circumstances of this case that those affidavits are an attempt to raise feigned issues of fact. The Court held that such inconsistencies present credibility issues to be resolved at trial citing Knepka v. Tallman, 278 A.D.2d 811. The Court also held that contrary to defendant’s further contentions, there is an issue of fact whether the wooden pallet protruded into the aisle of the store creating a dangerous condition. Although the defendant contended that the location of the pallet was open and obvious, the Court held, nevertheless, that the defendant was not relieved of its obligation to keep the property in a safe condition, citing Mong v. Home Depot, 307 A.D.2d 501.

Dorr v. Farnham CA 07-01867. In this case, the Fourth Department reversed the Lower Court’s Order granting defendant’s Summary Judgment in dismissing the complaint. This case involved personal injury action resulting from an automobile accident sustained by a plaintiff. In support of their motion, the defendant submitted the affidavit on the defendant stating that the collision occurred when the plaintiff, after stopping at a stop, proceeded into defendant’s lane of travel, which was not controlled by any traffic devices. The defendant further stated that she removed her foot from the accelerator when she saw the plaintiff approach the intersection, but she did not forcibly apply her brakes or engage in other evasive maneuver until the plaintiff was in her lane of travel. The court held that although the defendant “was entitled to anticipate that the plaintiff the plaintiff would obey the traffic laws that required her to yield the right of way to the plaintiff, the defendant failed to establish that she, the defendant used a requisite reasonable care when proceeding into the intersection. The Court held that the defendant, therefore, failed to meet their initial burden on the Motion because they failed to establish that the sole approximate cause of the accident was the plaintiff failed to yield the right of way to the defendant.

Laclis v. Emerson, CA 08-01299. This case is an appeal from a judgment of the Supreme Court in the personal injury action, which entered judgment awarding plaintiffs the sum of over $850,000.00 against the defendants following a jury trial. The Appellate Court modified the lower court’s decision by granting the motion to set aside the verdict in part in setting aside the awarded damages for future medical expenses and ordered a new trial on damages for future medical expenses only unless the parties stipulate the reduce their award of damages for future medical to about $60,000.00. In this case, the Court held that the lower Court properly allowed plaintiff’s treating physician to testify concerning the cause of plaintiff’s injuries, despite the fact that neither physician had reviewed plaintiff’s chiropractic records. The Court held that the physician’s failure to review the records gives only to the weight of the testimony, not its admissibility. The Court held that the evidence viewed in the light most favorable to the plaintiff established that the plaintiff sustained injuries to a cervical and lumbar spinal cord, including a herniated disc that was impinging on the spinal cord. Based on the evidence, they concluded that the award of $125,000.00 for past pain and suffering and $275,000.00 for future pain and suffering does not deviate materially from what would be reasonable compensation. He also held that the award for future loss of earnings was established with the requisite reasonable certainty and it also did not deviate from what would be reasonable compensation. The Court did, however, hold that the plaintiffs failed to establish future medical expenses with the requisite “reasonable certainty”, holding that the highest amount that the jury could have awarded is just over $60,000.00.