In Morris Park Contracting Corp. v. National Union Fire Insurance Company, 822 N.Y.S.2d 616 (2nd Dept., 2006), the ad damnum clause in the complaint, which sought $10,000.00 in damages, was not sufficient to require giving notice to the excess carrier. It is the combination of the ad damnum figure and evidence regarding the seriousness of injuries which triggers that obligation.

In Gerrity v. Muthana, 2006 WL 2669314 (2006), the Court affirmed the lower court’s ruling that the defendants were entitled to summary judgment because they established as a matter of law that their alleged negligence was not a proximate cause of the plaintiff’s injuries. The co-defendant bus company was illegally parked in a no-standing area. The co-defendant bus company met its burden by establishing as a matter of law that the sole proximate cause of the accident was the other co-defendant’s failure to stop at the red light.

In Campbell v. Central New York Regional Transportation Authority, 7 N.Y.3d 819 (2006), defendant bus company damaged plaintiff's wheelchair. The plaintiff secured a replacement wheelchair which was ill fitting and which caused physical injury. The Court held that the defendant bus company established that the ill-fitting replacement wheelchair provided by a third party constituted an independent, intervening occurrence which did not flow from the original negligence. As a result, the defendant’s negligence was not the proximate cause of the plaintiff’s injuries and the complaint was dismissed.

In Curtis v. Town of Inlet, -- N.Y.S.2d --, 2006 WL 2789500 (4th Dept., 2006), plaintiff was injured when his snowmobile went off a trail not properly signed. The Fourth Department reversed the lower court's dismissal of the plaintiff's action, and held that the defendant failed to submit evidence establishing that the trail at issue was free from defects not inherent in the sport.

In Mancuso v. Collins, 822 N.Y.S.2d 193 (4th Dept., 2006), plaintiff alleged serious injuries as a result of a motor vehicle accident. In support of their motion for summary judgment on the serious injury threshold, the defendants submitted the plaintiff’s entire worker’s compensation medical file. The defendant's evidence standing alone demonstrated objective evidence of serious injury, which failed to shift the burden back to the plaintiff.

In Khan v. Finchler, -- N.Y.S.2d --, 2006 WL 3086872 (2nd Dept., 2006), the defendant’s orthopedist refuted serious injury noting in an affirmed medical report that the MRI films of the plaintiff’s back showed pre-existing degenerative disc disease and age-related changes in the cervical region. The plaintiff's complaint was dismissed after the affirmations of the plaintiff’s physicians failed to address the findings of degeneration and age-related changes.

In Lam v. Spring Scaffolding, Inc., -- N.Y.S.2d --, 2006 WL 3086929 (2nd Dept., 2006), the court held that the defendants did not satisfy their initial prima facie burden of showing that the plaintiff did not sustain a serious injury. The affirmed medical report of the defendant’s examining orthopedist merely noted that the plaintiff had “full” range of motion without setting forth the objective tests or tests performed supporting these conclusions.

In Files v. Ken Goewey Dodge, Inc., 822 N.Y.S 2d 663 (3rd Dept. 2006) the jury returned a verdict finding that the defendant had been negligent, the plaintiff sustained a significant limitation of use, but the plaintiff’s surgery was not causally related to the accident. After the jury awarded damages, the defendant moved pursuant to CPLR 4404 to set aside the verdict. The court granted the defendant’s motion, dismissed the action, and held that after the jury found no causal relationship, it should not have proceeded to consider the issue of damages.

Subsequent to a domestic police call, a husband shot and injured his wife before committing suicide. In Halpin v. Town of Lancaster, 7 N.Y.3d 827 (2006), the Court of Appeals affirmed a Fourth Department decision which held that the plaintiff wife failed to state a cause of action for the defendant’s alleged breach of a special duty and breach of a duty voluntarily assumed. Absent proof of a special relationship, police, in dealing with domestic quarrels, “cannot be expected to predict and prevent irrational behavior”.

In Boyd v. Mammoet Western, Inc., 822 N.Y.S.2d 205 (4th Dept., 2006), a plaintiff was injured when he tripped over a fire extinguisher hose. The Fourth Department held that the plaintiff’s Labor Law §200 and Common Law Negligence claims survived a motion for summary judgment since the plaintiff raised an issue of fact as to whether the defendant had the authority to control the work of the injured plaintiff.

Prepared by Kevin E. Loftus