The Fourth Department in Allison v. Erie County Industrial Development Agency, et al. (December 22, 2006) set aside the jury's award of $2 million for past pain and suffering and $5 million for future pain and suffering because they deviate materially from what would be reasonable compensation pursuant to CPLR 5501 (c). The plaintiff sustained multiple fractures to his spine when the scaffolding on which he was standing collapsed. He required immediate surgery to fuse four of his lower vertebrae. As a result, the plaintiff continues to have back pain, requires the use of a catheter to urinate, is unable to defecate in a normal manner and suffers from sexual dysfunction. The court determined that an award of $1 million for past pain and suffering and $4 million for future pain and suffering is the maximum amount the jury could have found as a matter of law.

In Knupfer v. The Hertz Corp., et al. (December 22, 2006), the Fourth Department reversed Judge Glownia's decision denying Hertz' motion to vacate the default judgment entered against it. In deciding that the lower court erred, the court held that Hertz satisfactorily demonstrated a reasonable excuse for its failure to respond by establishing that a copy of the summons with notice never reached the desk of its employee who had been handling the matter and who had already been in communication with plaintiff's counsel.

The claimants in La Mendola, as Administrator of the Estates of Deborah La Mendola, Nicholas La Mendola and Deborah La Mendola, et al. v. NYS Thruway Authority (December 22, 2006) commenced a wrongful death and personal injury action seeking damages relative to an accident on the NYS Thruway in which the parents and siblings of the claimants Paul La Mendola, Jr. and Lauren La Mendola were killed. On appeal, the Fourth Department rejected the claimants' contention that they were entitled to a lesser burden of proof under Noseworthy v. City of New York (298 N.Y. 76) in attempting prove their claim for pre-impact terror damages. The Noseworthy Doctrine provides that a plaintiff in a death case is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the accident.

The plaintiffs in Lobello, et. al. v. BFI Waste Systems of North America, Inc. (December 22, 2006) commenced a personal injury action to recover for damages allegedly sustained while loading trash into a dumpster supplied to their employer by the defendant. In addition to causes of action under common law negligence, the plaintiffs also asserted strict products liability and breach of warranty causes of action. The Fourth Department affirmed the lower court's decision dismissing the plaintiffs' complaint. In doing so, the court opined the defendant had established that the dumpster was not defective, that there was no duty to warn of the risks inherent in lifting heavy loads of trash and that the dumpster was fit for the ordinary purposes for which it was used.

In the Matter of N.Y. Central Mutual Fire Insur. Co. v. Tammy A. McLeary (December 22, 2006) the Fourth Department upheld the decision of the Supreme Court, Erie County (Honorable Joseph D. Mintz, J.S.C.) granting New York Central's petition for a permanent stay of arbitration. The respondent was injured when a boat slipped from a trailer on a boat launch near where she was standing. After leaving the scene without obtaining identifying information about the vehicle to which the trailer and boat were attached, the respondent filed a demand for an uninsured motorist arbitration. The Fourth Department affirmed the lower court's decision and held that the boat was not an integral part of the vehicle.

In Davidson v. Town of Chili (December 22, 2006), the plaintiff commenced litigation to recover for injuries allegedly sustained in a motor vehicle accident he claimed was the result of the accumulation of drifting snow and ice on the roadway. The Fourth Department rejected the plaintiff's contention that the defendant's failure to erect snow fences was an affirmative act of negligence thus making the prior written notice requirement inapplicable.

In LoVerde v. Billone, et al. (December 22, 2006), the plaintiff was allegedly injured when he fell from a scaffold. Appealing from the lower court's decision which granted the plaintiff's motion on §240 (1) of the Labor Law, the defendants argued that the plaintiff's own conduct was the sole proximate cause of the accident because he chose to assemble the scaffolding without affixing available safety railings. Determining that the defendants failed to establish this, the Fourth Department rejected the defendants' argument and affirmed the lower court's decision.

In Sofia v. Jimenez-Rueda, M.D. (December 22, 2006), the Fourth Department rejected the plaintiff's contention that the annual screening for colorectal cancer performed by his primary cancer physician constituted the type of continuous treatment necessary to toll the statute of limitations. Holding that a patient's continuing general relationship with a physician or routine, periodic health examinations does not equate to "continuous treatment," the court affirmed the lower court's decision dismissing each of the plaintiff's causes of action that fell outside of the applicable statute of limitations.

In Bryer v. County of Niagara, et al. (December 22, 2006), the plaintiff, in opposition to the defendant's summary judgment motion, submitted the affidavit of an expert who opined that the unsafe condition of the bridge should have been apparent on any reasonable inspection for at least five years (i.e., the defendant had constructive notice). Determining that this would have been a sufficient length of time, prior to the accident, to have permitted the defendant's employees to discover and remedy the condition, the Fourth Department affirmed the lower court's denial of the defendant's motion.

In Anthony F. Endieveri, as Administrator of the Estate of Steven A. Endieveri, deceased v. County of Oneida, (December 22, 2006) the defendant appealed from the trial court's denial of its summary judgment motion. The plaintiff commenced litigation seeking damages for the wrongful death of the decedent who was killed in a car accident with another motorist on a road maintained by the defendant. Although the court recognized that there was a question of fact as to whether the County was negligent in allowing the lines on the road to fade, it opined that such negligence was not a proximate cause of the accident. In reversing the lower court's decision, the Fourth Department held that the affidavit submitted by the plaintiff's expert failed to raise a question of fact because his conclusions that the faded road lines caused or contributed to causing the accident were speculative.