In Alcombrack v. Swarts, 2008 N.Y. Slip Opinion 02239 (4th Dept. 2008), the plaintiff (deceased) was in a motor vehicle accident and sought medical treatment afterwards. All of the decedent's tests came back negative for a brain injury, however he continued to receive treatments for headaches. The decedent's estate moved for partial summary judgment on the issue of liability and the issue of "serious injury". Defendants conceded negligence, however contended that the decedent had not suffered a serious injury under Insurance Law §5102 (d). The court held that the plaintiff failed to meet its initial burden as a matter of law with respect to the 90/180 category of Insurance Law §5102 (d) in that they did not submit objective evidence establishing that the decedent sustained a "medically determined injury or impairment of a non-permanent nature." The court noted that the affidavit of plaintiff's treating physician was insufficient to establish judgment as a matter of law in that it was based solely on the decedent's subjective complaints of headaches. The observations of the decedent's doctor did not include any observations of qualified limitations. Defendants' cross motion for summary judgment was granted.

In Pallaci v. Albin, 2008 N.Y. Slip Op 00878 (4th Dept. 2008), the plaintiffs were involved in a motor vehicle accident and accordingly, commenced their respective actions. The Supreme Court sua sponte struck defendant's answer and ordered judgment in favor of the plaintiffs. The Supreme Court based its decision on the failure of the defendant's attorney to attend the pretrial conference as well as prior collective conduct of the other attorneys of the firm in unrelated litigation. The record established that the defense attorney's absence was a result of miscommunication and was not willful or contumacious. Accordingly, the Appellate Division reversed and vacated the Supreme Court orders and found that the defendant's attorney had a reasonable excuse for his failure to appear.

In Milbrand v Kenmore-Town of Tonawanda Union Free School District, 853 N.Y.S.2d 809 (4th Dept. 2008), a student was playing a game of "tape ball" in gym class and was injured when he fell to the floor. The plaintiff alleged that the school negligently supervised her son and failed to provide him with proper equipment to engage in the game of "tape ball." The Supreme Court denied the defendant's summary judgment motion, however the Appellate Division reversed on the law and dismissed the complaint. The Appellate Division stated that while schools are "not the insurers of the safety of students, schools are under a duty to adequately supervise the students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision." Further, in carrying out that duty, the school is not charged with a greater duty of supervision than that of a "parent of ordinary prudence would observe in comparable circumstances."

In the Matter of Crystal Lamay v. County of Oswego, et al., 2008 WL 748020 (4th Dept. 2008), the petitioner filed for leave to serve a late notice of claim. The trial court denied the petitioner's application. The petitioner's alleged injuries occurred as a result of the alleged negligence of the respondents in reporting to the petitioner's residence after a 911 call reporting an overdose. The Appellate Division noted that in determining whether to grant leave to file a late notice of claim, the key factors are whether the petitioner has shown a reasonable excuse for the delay and whether the municipality had actual knowledge of the claim and whether the delay would substantially prejudice the municipality in maintaining its defense. The Appellate Division reversed and found that due to the fact that the petitioner was in a coma, she had a reasonable excuse for the delay in filing the Notice of Claim. Furthermore, the municipality would not be prejudiced since they had knowledge of the underlying claim.

In Swiderska v. New York University, et al., 2008 WL 730772 (2008), the plaintiff was employed by a commercial cleaning company that contracted with the university for cleaning the 10 foot high interior windows in the dormitory. The plaintiff asked for a ladder, however her boss instructed her to climb on the furniture to clean the windows instead. While she was standing on furniture to clean the windows, she fell to the floor and sustained injuries. She moved for partial summary judgment under Labor Law §240 contending that her activity was the type of elevation related risk that was encompassed within the statute. The Appellate Division denied plaintiff's motion for summary judgment. The Court of Appeals reversed and determined that the plaintiff was engaged in an elevated related risk activity and that her motion for liability on Labor Law §240 should be granted.

In Fleming v. Graham, 2008 WL 731542 (2008), the plaintiff was in a motor vehicle accident while in the scope of his employment with "Pinstripes Garment Service." As a result of the accident, he sustained multiple scars on his forehead and right upper eyelid. The plaintiff sued the driver of the other vehicle under negligence theories. Defendant Graham sued in a third party action the plaintiff's employer, Pinstripes Garment Service. Pinstripes moved for summary judgment on the grounds that the plaintiff did not sustain grave injuries pursuant to Workers Compensation Law §11 and as such, the third party action was barred. The trial court denied the motion and found that questions of fact existed. The Appellate Division affirmed the lower court.

The Court of Appeals held that the plaintiff did not sustain a grave injury under Workers Compensation Law §11 and as such, the plaintiff's recovery against the employer was limited to Workers' Compensation benefits. The Court noted that in the enumerated list of injuries that qualify as a "grave injury," facial scarring is not specifically listed and would not fall under "permanent and severe facial disfigurement."

In Rossi v. Budget Rent-A-Car, 853 N.Y.S. 2d 728 (3rd Dept. 2008), the plaintiff was involved in a motor vehicle accident in 1997. The defendants served discovery demands, however the plaintiff elected to not answer said demands. The defendants wrote four follow up letters requesting disclosure and then proceeded to file a RJI. The plaintiff was ordered to respond, however she only partially responded and did not disclose medical records or authorizations. The defendants moved for the dismissal of plaintiff's complaint and the court granted the motion in favor of defendants. The Appellate Division held that the striking of plaintiff's complaint was proper where the plaintiff put her medical condition at issue and as such waived her physician/patient privilege and other privacy protections. The Court noted that this waiver extends to the furnishing of HIPAA compliant authorizations by the plaintiff. As such, the Court stated that since the plaintiff repeatedly disobeyed court orders and frustrated the disclosure process, dismissal of the complaint was proper.