In McHugh v. Marfoglia, --- N.Y.S.2d ----, 2009 WL 2635483 (4th Dept. 2009), the Appellate Division unanimously reversed the order appealed from by agreeing with the plaintiff that trial court erred in denying plaintiff's motion seeking partial summary judgment on the threshold issue of serious injury from a motor vehicle accident. The Appellate Division granted summary judgment under Insurance Law § 5102(d) for permanent consequential limitation of use and significant limitation of use categories. Plaintiff met his burden with respect to those two categories by submitting objective evidence that he suffered a disc herniation at C6-C7 that required surgical intervention, and by submitting the affirmation of his treating neurosurgeon who concluded that, based upon his examination and treatment of plaintiff and his review of plaintiff's medical records, plaintiff's injuries were significant, permanent, and causally related to the accident ( see LaForte v. Tiedemann, 41 AD3d 1191, 1192; see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353). Plaintiff also submitted the affirmed report of the neurosurgeon who examined him at defendants' request, who quantified the degree of loss of range of motion in plaintiff's cervical spine, including a 66% loss of extension and a 50% loss of right rotation, and correlated that loss to the normal range of motion in the relevant areas of plaintiff's cervical spine. Defendants failed to raise a triable issue of fact sufficient to defeat the motion with respect to the issue of serious injury or causation by only submitting an attorney's affirmation and a copy of an unauthenticated surveillance videotape.

In Oursler v. Brennan, et al., 884 N.Y.S.2d 534 (4th Dept. 2009), the Appellate Division reversed the trial court's decision and determined that genuine issues of material fact precluded summary judgment on issue of whether widower was entitled to recover from seller of alcohol for alleged violations of Dram Shop Act after widower purchased decedent two alcoholic beverages at a party. There was also evidence that decedent obtained her own drinks, that the couple's friends purchased alcohol for decedent, that the bar provided Jell-O shots directly to decedent, and that plaintiff and decedent were apart for much of the party. Under the Alcoholic Beverage Control Law, it is unlawful to sell, deliver or give away alcoholic beverages to "any visibly intoxicated person" (§ 65[2]). New York's Dram Shop Act affords a person injured "by reason of the intoxication" of another person a right of action against the party that unlawfully purveyed the alcohol (General Obligations Law § 11-101[1]; see Mitchell v. The Shoals, Inc., 19 N.Y.2d 338, 340-341). An intoxicated person, or his or her estate, cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person's own intoxication (see Mitchell, 19 N.Y.2d at 340-341). The trial court properly dismissed the Dram Shop Act cause of action against the seller of the alcohol on behalf of decedent's estate. The Fourth Department opined that widower, however, may maintain a cause of action in his individual capacity for loss of support as decedent's surviving spouse (see Coughlin v. Barker Ave. Assoc., 609 N.Y.S.2d 646). A plaintiff "must play a much more affirmative role than that of drinking companion to the intoxicated person before the plaintiff may be denied recovery against the establishment that served" the intoxicated person.

In Colavito v. Steyer, 883 N.Y.S.2d 807 (3rd Dept. 2009), the Appellate Division affirmed the trial court's decision to deny defendant's motion for summary judgment under Insurance Law §5102[d] and §5104[a] in an action brought by plaintiff to recover for injuries to her right shoulder allegedly sustained in a motor vehicle accident. Defendant failed to meet his initial burden of proving, as a matter of law, that plaintiff did not sustain a serious injury. Defendant's experts, relying on an MRI taken shortly after the accident, opined that plaintiff's symptoms were related to a preexisting condition and, thus, were not causally related to the accident. Yet the experts failed to address any aggravation of the preexisting condition, which had reportedly been asymptomatic prior to the accident. Defendant's experts did not examine the plaintiff and did not adequately address plaintiff's condition or limitations within the first 180 days following the accident, a necessity to foreclose the 90/180-day category of serious injury.

In Boyea v. Aubin, 883 N.Y.S.2d 808 (3rd Dept. 2009), a restaurant patron and her husband brought a negligence action against a restaurant's general manager and restaurant owner when the plaintiff (a patron at a restaurant owned and operated by one of the defendants) was struck in the back of the head during a melee that erupted between the restaurant's general manager, defendant Aubin, and a disgruntled customer. The altercation was preceded by a lengthy argument between the customer's female companion and restaurant staff regarding the service she was receiving. This verbal dispute, which involved yelling and cursing, escalated over a period of 15 minutes and then erupted into a physical "brawl." Restaurant defendants argued they could not have anticipated any danger to plaintiff because the altercation between the customer and Aubin was sudden and unexpected. However, defendants' motion for summary judgment was denied, and the Appellate Division affirmed, stating landowners have a duty to act in a reasonable manner so as to prevent harm to those on their property; specifically, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control. Fifteen minutes was enough of a warning to establish such duty.

In Davis v. City of Schenectady, et al, 883 N.Y.S.2d 810 (3rd Dept. 2009), plaintiff was allegedly injured when she rode her bicycle into a hole located in a driveway apron owned by defendant Sangiovanni. Property owner had previously contacted the City to determine if City would patch up a 8-12" portion of the apron. City inspected and agreed to patch up the area, and requested the loose debris be removed from the cracked section prior to the repair. Property owner then removed almost the entire apron and the City refused to undertake such an extensive repair. Subsequently, the plaintiff had her accident. Trial court granted summary judgment for City, and the Third Department affirmed, stating that City did not create a hole where none had existed previously. This did not constitute an affirmative act of negligence on the part of the City.

Prepared by Christopher R. Poole