In Cummings, et al. v. Jiayan Gu, CA 06- 02399 (4th Dep't, 2007), the jury decided no serious injury arose as described by Insurance Law § 5102 (d). The plaintiffs had presented testimony of two physicians, each stating that plaintiff's injuries were caused by the underlying motor vehicle accident. The Appellate Division, upholding the trial court's rejection of plaintiffs' motion for a directed verdict, stated "A jury is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross- examination."

In Harris, et al. v. Carella, CA 06-02593 (4th Dep't, 2007), the Appellate Division held the trial court's refusal to consider the affidavit of defendant's physician was inappropriate. In preparation of the affidavit, defendant's physician relied on medical reports prepared by plaintiff's treating physicians. Although those reports were unsworn, the medical opinion relying on those reports is sworn, and thus competent evidence.

In Kosicki v. Spring Garden Association, Inc., CA 06-03708 (4th Dep't, 2007), the plaintiff asserted a dangerous condition existed on the premises, namely a swing set. The defendant property owner claimed no dangerous condition existed and was granted their summary judgment motion. The Appellate Division reversed because defendant failed to submit an expert's affidavit regarding the reasonable safety of the swing set.

Effective August 10, 2005, federal legislation established that if the owner of a motor vehicle is "engaged in the trade or business of renting or leasing motor vehicles," such owner shall not be vicariously liable under state law for the negligence of vehicle operator. (49 USC § 30106). In Leuchner v. Cavanaugh, CA 06-02809 (4th Dep't, 2007), the Appellate Division noted this federal statute applied only to lawsuits commenced after its effective date. Here, the plaintiff commenced an action prior to the legislation in September, 2004, and moved after the legislation to add a leasing company as a defendant on August 29, 2005. Accordingly, the leasing company's motion for summary judgment was denied by the trial court and denial was affirmed by the Appellate Division.

In Wilson v. Walgreen Drug Store, CA 06- 01741 (4th Dep't, 2007), the plaintiff slipped and fell on ice in a Walgreen's parking lot. Because plaintiff was unable to describe the amount or thickness of the ice on which she fell, the Appellate Division concluded that plaintiff "failed to raise an issue of fact whether the hazardous condition was visible and apparent, and existed for a sufficient length of time before the accident for the defendants to discover and remedy it."

In Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York, 829 N.Y.S.2d 795 (4th Dep't, 2007), an insured attempted to claim consequential damages following a fire at a commercial property. Chelus, Herdzik, Speyer, & Monte, P.C. successfully obtained summary judgment for Harleysville by noting that consequential damages are specifically excluded in the Harleysville policy. This decision of the lower court was unanimously affirmed by the Appellate Division, Fourth Department. The Court of Appeals has decided to hear the Bi-Economy case due to the conflicting case law among the Appellate Departments.

Prepared by Christopher R. Poole