In Jones v. Bill, --- N.Y.S.2d ----, 2006 WL 3443273, the Appellate Division, Second Department ruled that the Graves Amendment, the federal legislation that bars vicarious liability on the part of leasing companies solely on ownership, is applicable to any action commenced after enactment of the statute. Furthermore, the Court determined that the plaintiff's attempt to rely upon the "relation- back doctrine" to subsequently add a leasing company as a defendant in an action otherwise commenced prior to the enactment of the Graves Amendment did not nullify application of the amendment.

The Fourth Department, in Jaehn v. Lahr Construction Corp. et.al., (November 17, 2006), ruled that a worker, who fell into a stairwell while attempting to adjust a prefabricated staircase, was working at an “elevated” work site, within the meaning of N.Y. Labor Law §240(1). As a result, the Court granted summary judgment to the plaintiff.

In Woodworth v. Hink, (November 17, 2006), the Fourth Department recently held that the Greenwood Central School District had no duty to prevent the infant plaintiff from driving home from school, despite the fact that it enacted a rule requiring that all students ride the school bus if they lacked written permission from their parents to drive.

The Fourth Department, in Frizzell v. Giannetti, (November 17, 2006), reversed the lower court’s summary judgment in favor of the defendants, ruling that the plaintiff created a question of fact with respect to the “significant limitation” and “permanent consequential limitation” prongs of “serious injury” by introducing medical records providing a qualitative assessment of the plaintiff’s condition, along with EMG study results.

In HealthNow NY v. White et.al. (November 17, 2006), Healthnow brought a subrogation action for medical expenses against Progressive's insured. Progressive's insured asserted settlement of the underlying bodily injury action as an affirmative defense. Progressive Insurance sought to quash a judicial subpoena requiring that it produce its entire liability file. The Appellate Division modified the lower court order compelling disclosure. Instead, an in camera review by the lower court of the entire file was directed by the Appellate Division.

The Fourth Department, in Tojek v. Root, (November 17, 2006), upheld the trial court’s directed verdict ruling, holding that the defendant was negligent as a matter of law when he made a right hand turn out of the left lane.

In Dowdall v. General Motors Corp., (November 17, 2006), the Fourth Department ruled that a derivative action on behalf of the plaintiff’s wife could not be added after the expiration of the statute of limitations, even on a “relation-back” theory.

In Wheeler v. Laechner, (November 17, 2006), the Fourth Department reversed the lower court’s finding of summary judgment in favor of the defendant on the “serious injury” threshold. Here, the Appellate Division found a question of fact as to the “fracture” prong of “serious injury” after the plaintiff’s examining physician found a “probable minor fracture” which was causally related to the subject motor vehicle accident.

The Fourth Department, in Warner v. Eastman Kodak Co., et.al, (November 17, 2006), ruled that a general contractor was not liable for an injury sustained by an employee of a subcontractor since it lacked the requisite supervision and control over the plaintiff’s work. However, it denied the summary judgment motion of the landowner, Eastman Kodak, since the injury was allegedly the result of a defective condition.

In Glen S. v. Provenzano, (November 17, 2006), the Fourth Department upheld the trial court’s contention that the plaintiff’s mother must be compelled to attend his independent medical examination in order to provide medical history, since the infant plaintiff was unable to do so himself.

Prepared by Michael J. Chmiel