In Sharpe v. Ulrich Development Co., LLC, --- N.Y.S.2d ----, 2008 WL 2390401, the defendants were denied summary judgment by the trial court in an action seeking damages for injuries sustained when the plaintiff allegedly tripped and fell on the sidewalk while entering the building where she had worked for two years. Plaintiff testified at her deposition that she used the entrance at issue approximately half the time when entering and exiting the building, and she did not determine that "a raise in the sidewalk" caused her to fall until she returned to the scene some unspecified time after her fall. Plaintiff further testified that the height differential in the blocks of the sidewalk was one inch or less, that the weather on the day of her fall was clear, sunny and warm, and that she and a coworker were the only people entering the building at that time. The Appellate Division, Fourth Department reversed the trial court's decision and concluded that defendants established as a matter of law that the defect was too trivial to be actionable.

In Lux. v. Jakson, --- N.Y.S.2d ----, 2008 WL 2315699 (4TH Dep't), an action was commenced seeking damages for injuries allegedly sustained in a motor vehicle accident. The defendants brought a summary judgment motion seeking dismissal of the complaint on the ground that plaintiff did not sustain a serious injury within Insurance Law § 5102(d). The trial court denied the motion. The Appellate Division reversed on the law. The Appellate Division held defendants met their initial burden by submitting an affirmed report of a physician who concluded that there was no objective evidence that plaintiff sustained a serious injury as a result of the accident but, rather, plaintiff suffered from a preexisting degenerative condition and was suffering from a previous injury. The affidavit of plaintiff's treating chiropractor submitted in opposition was insufficient to raise an issue of fact whether plaintiff's condition was caused by the accident, as the chiropractor did not address degenerative changes in plaintiff's cervical spine or the prior injury thereto.

In McConnell v. Freeman, --- N.Y.S.2d ----, 2008 WL 2314280 (4TH Dep't), an action was commenced seeking damages for injuries allegedly sustained when plaintiff was struck by a vehicle driven by defendant while plaintiff was crossing a street. Defendant was granted summary judgment by the Appellate Division because plaintiff failed to provide a reasonable explanation for the gap in plaintiff's treatment. The plaintiff's explanation for the gap in treatment, i.e., that she ended treatment because she understood that her no-fault carrier would no longer pay for her medical expenses, was not valid, as plaintiffs' own supplemental bill of particulars indicated that plaintiff's medical bills had been paid by the no-fault carrier.

In Page v. Rain Hacking Corp., --- N.Y.S.2d ---- , 2008 WL 2246291 (1st Dep't), the trial court granted, and the Appellate Division affirmed, defendants' summary judgment motion holding that plaintiffs failed to submit objective medical proof demonstrating serious injuries causally related to an accident within meaning of no-fault law. The plaintiffs' MRI reports were sufficient to establish the existence of disc bulges and herniations. However, the plaintiffs' expert attributed present pain to an unquantified loss of range of motion. Also, plaintiffs' expert did not report his personal observations of plaintiffs while sitting and standing, identify the tests he performed, or compare his observations to "the norm." Plaintiffs' experts also failed to address the degenerative nature of plaintiffs' pre-existing condition.

In the Matter of GEICO v. Steinmetz, 857 N.Y.S.2d 507 (2nd Dep't, 2008), a demand for uninsured motorist arbitration was challenged by the insurer. An application to temporarily stay arbitration was granted in view of respondent's claim that there was no physical contact between the vehicles, a requirement in a claim of a hit-and-run accident. The courted conducted a hearing and determined that no physical contact occurred. Thus, the arbitration was then permanently stayed as the applicant was not in a qualifying hit-and-run accident. The appellate court refused to disturb the findings of the lower court.