In Fasso v. Doerr, 2009 WL 435322 (2009), the Court of Appeals reversed the Fourth Department and re-instated a health insurer's subrogation claim which had been dismissed sua sponte by the trial judge upon settlement of the tort case. The Court of Appeals noted that the "made whole" rule allows an insurer to seek subrogation only against those funds that remain after the insured has been compensated. The Court of Appeals held that the "made whole" rule did not apply to the case at hand because the tortfeasor's insurance coverage and assets had not been exhausted. The underlying tort case had settled for $900,000.00 and the tortfeasor's insurance policy limits were 2 million dollars, leaving a potential 1.1 million dollars remaining in potential insurance coverage against which the subrogation claim could be pursued.

In the Fourth Department case of Luthringer v. Luthringer, 2009 WL 281327 (4th Dept. 2009), the plaintiff commenced a Labor Law action seeking damages for injuries he sustained when he fell while replacing the roof on a single family home owned by his brother, the defendant. Defendant argued that plaintiff was a volunteer who offered his services gratuitously and, therefore, plaintiff could not recover under the Labor Law. The Appellate Division held that plaintiff was a volunteer as a matter of law because the evidence showed that the plaintiff was not fulfilling an obligation to the defendant and plaintiff was not paid for his work on defendant's home. The plaintiff's complaint was thereby dismissed.

In the case of Tabone v. Lee, 2009 WL 281327 (4th Dept. 2009), plaintiffs commenced a medical malpractice action seeking damages based upon the alleged failure of defendants to diagnose the plaintiff with throat cancer. In response to defendants' demands, plaintiffs furnished the defendants with medical authorizations, but limited the authorizations to specific dates. The Supreme Court compelled the plaintiff to provide unrestricted authorizations. The Appellate Division reversed stating that the plaintiff's alleged injuries did not constitute broad allegations of injury that would place the plaintiff's entire medical history in controversy. The Appellate Division directed the plaintiff to produce current, time-restricted authorizations for the medical providers in question and, with respect to any medical provider from whom the plaintiff received treatment at a different time than that specified in the authorizations, directed the plaintiff to submit the records of such treatment to the court for an in camera review of the records. The Appellate Division noted that the Supreme Court had abused its discretion in compelling plaintiff to provide authorizations without restrictions without first conducting an in camera review of the records.

In the Fourth Department case of Champagne v. Peck, 2009 WL 323378 (4th Dept. 2009), a plumber commenced an action seeking to recover damages from injuries he sustained when the tread on the basement stairs of a home owned by defendant collapsed as he was descending the stairs to perform work in the basement. The Supreme Court granted summary judgment dismissing plaintiff's complaint for lack of constructive notice. The Appellate Division reversed, holding that photographs of the staircase and an expert's affidavit submitted by the plaintiff in opposition to the motion to dismiss were sufficient to raise a triable issue of fact as to whether defendant created or had constructive notice of the allegedly defective stairs.

In the case of Groth v. B.J.'s Wholesale Club, Inc., et al, 2009 WL 281806 (4th Dept. 2009), plaintiff commenced an action seeking damages for injuries sustained when plaintiff slipped and fell in a parking lot owned by defendant, B.J.'s Wholesale Club. The Appellate Division upheld the granting of summary judgment to defendant, Paul Massey, the snow removal contractor hired by B.J.s to remove snow from the parking lot where the accident occurred. Pursuant to the snow removal contract Massey was obligated to remove snow only after at least two inches of snow had accumulated. Mr. Massey established, that he plowed the parking lot two days before the accident and salted one day before the accident. He further established that, on the day of the accident, the snow accumulation was less than two inches and that B.J.'s did not request, as required by the snow removal contract, that he apply salt or plow that day.

In the case of Kash v. Jewish Home & Infirmary of Rochester, et al, 2009 WL 323306 (4th Dept. 2009), plaintiff commenced an action seeking damages for injuries she allegedly sustained as a result of defendant's medical malpractice. Several months after commencing the action, plaintiff moved for leave to amend the complaint by adding a separate cause of action under Public Health Law §2801(d). Public Health Law §2801(d) provides that any residential health care facility that deprives a patient of any right or benefit shall be liable for the injuries that result because of that deprivation. The Appellate Division held that the Supreme Court erred in denying the motion to amend. The Court held that plaintiff is entitled to assert a cause of action under both Public Health Law §2801(d) and traditional tort causes of action. Therefore, the Appellate Division determined that the plaintiff could amend her complaint to include a cause of action under Public Health Law §2801(d) in addition to the already alleged traditional tort causes of action.

In Christie v. Coady, 2008 N.Y. Slip Op. 10276 (4th Dept., 2008), the lower court granted the defendant's motion for summary judgment and dismissed the plaintiff's complaint holding that the plaintiff did not sustain a serious injury under Insurance Law §5102. Following that decision, the plaintiff underwent two surgical procedures for her lumbar injuries. The plaintiff at the lower court renewed her opposition to the defendant's motion and submitted an affidavit of her physician. Based upon her two surgeries, the Fourth Department reversed the lower court's affirmation of its earlier decision and reinstated the plaintiff's complaint.

In Dorr v. Farnham, 2008 N.Y. Slip Op. 10285 (4th Dept., 2008), the decedent's estate commenced action as a result of motor vehicle accident which occurred at an intersection. Discovery established decedent, who had a stop sign, failed to yield the right of way. The Fourth Department overturned the lower court's motion which granted summary judgment for the defendant. The Fourth Department held that the defense failed to establish that the defendant driver used the requisite "reasonable care when proceeding into the intersection". As a result, the defendant failed to meet his initial burden on the motion by failing to establish that the sole proximate cause of the accident was the plaintiff decedent's failure to yield the right of way.

In Phipps v. Michalak, 2008 N.Y. Slip Op. 10261 (4th Dept., 2008), the plaintiff commenced action for injuries he sustained when the driver of the vehicle in which he was a passenger lost control on the roadway in the County of Allegany. According to the record, the vehicle which the plaintiff occupied rolled over on the passenger side and struck a driveway culvert. The Supreme Court granted the County's motion for summary judgment. The Fourth Department reversed and held that there was an issue of fact with respect to the County's alleged negligence in failing to maintain the roadway in a reasonably safe condition.

In Dietzen v. Aldi, Inc., 2008 N.Y. Slip Op. 10423 (4th Dept., 2008), the plaintiff commenced an action after she tripped over a wooden pallet in the defendant's store. The defendant moved to dismiss the plaintiff's complaint based upon inconsistencies between the plaintiff's deposition and her affidavits offered in opposition to the motion. The Fourth Department held that even though there were some inconsistencies with the plaintiff's story, there were at least credibility issues present which needed to be resolved at trial. Issues of credibility are for a jury to decide.

Prepared by Kevin E. Loftus