In McCarthy v. Bellamy, -- N.Y.S.2d -- WL 1168517 (4th Dept. 2007), a case successfully appealed by this firm, the plaintiff survived summary judgment with the trial court holding a question of fact existed as to significant limitation and permanent consequential limitation categories. However, the Fourth Department reversed this decision and dismissed the complaint based upon the plaintiff's unexplained 15 month gap in treatment and pre- existing symptoms.

In Jaromin v. Northrup, -- N.Y.S.2d -- WL 1169301 (4th Dept. 2007), the court held that the plaintiff's physician affidavit did not raise a question of fact when the physician failed to address the finding of a defense expert who stated that the abnormality noted on the plaintiff's spine was the result of the plaintiff's chronic pre-existing back condition.

In Faso v. Fallato, -- N.Y.S.2d -- WL 1169196 (4th Dept. 2007), the plaintiff filed suit for injuries allegedly sustained after two separate accidents. The defendant in the second accident met his burden in part by submitting the plaintiff's testimony where she stated her complaints after the first accident stayed the same after the second. The court held that the plaintiff failed to connect her condition to the second accident.

In Murine v. City of Utica, -- N.Y.S.2d - WL1169205 (4th Dept. 2007), the plaintiff filed suit after falling during a 4th of July event. The court held that the prior written notice requirement applies to a driveway located within a City owned park.

In Robert v. Joller, -- N.Y.S.2d - WL 1169182 (4th Dept. 2007), the plaintiff filed suit after the defendant's dog collided with him while he was riding his bike. The court reversed the trial court's denial of summary judgment on behalf of the defendant and held that the plaintiff failed to raise an issue of fact as to whether the defendant had either actual or constructive notice of the dog's propensity to interfere with vehicular traffic.

In the Matter of South Insurance Co., -- N.Y.S.2d - WL 1216019 (3rd Dept. 2007), Progressive disclaimed coverage based upon late notice and the insured's failure to cooperate. The court noted that the insured never returned numerous phone calls, did not answer a number of certified letters and disregarded visits by Progressive agents to his home. The court concluded that the insured willfully obstructed the investigation.

In Danielwicz v. Klewin, -- N.Y.S.2d - WL 1168718 (4th Dept. 2007), the plaintiff filed suit alleging the violation Labor Law §240(1). The court held that the plaintiff's inconsistent accounts of the way the accident occurred raised issues of fact as to whether the statute was violated thereby precluding summary judgment in the plaintiff's favor.

In Arigo v. Spencer, -- N.Y.S.2d - WL 1168439 (4th Dept. 2007), the defendant raised questions of fact as to the applicability of Labor Law §240(1) when the evidence showed that the ladder was not defective, the plaintiff testified that the ladder had rubber feet and the plaintiff did not notice the ladder to be unstable.

In Chuqui v. Church of St. Margaret Mary, -- N.Y.S.2d-WL 1191516 (1st Dept., 2007), the plaintiff was injured when a heating unit, being lifted by a crane, crushed his hand against the platform. The court held that the injury was not the result of a significant risk inherent in the elevation differential between the heating unit and the platform and, therefore, no cause of action existed under the Labor Law.

Prepared by Brian R. Biggie