In Ayers v. O'Brien, 2009 W.L. 4840202 (2009), plaintiff, a Sheriff, was pursuing a speeding vehicle, when his car was struck by defendant's vehicle. Plaintiff commenced an action alleging serious injury as a result of the defendant's negligence. Plaintiff moved to strike the affirmative defense that any damages "must be diminished in the proportion which [the] culpable conduct, including contributory negligence and assumption of risk, attributed to [Ayers] bears to the culpable conduct, which caused the damages". The plaintiff's motion to strike was based on Vehicle and Traffic Law §1104 which protects operators of authorized emergency vehicles from liability unless the operator's conduct rises to the level of reckless disregard.

The Court of Appeals held that the affirmative defense should not be stricken. Further, the Court of Appeals stated that the purpose of Vehicle and Traffic Law §1104 is that it allows emergency personnel to act swiftly while, at the same time, protecting the public's safety, and can only be used when the emergency vehicle operator is sued or counter-sued.

In Andrews v. Northwest Auto Mall, 67 A.D. 3d 1466, 888 N.Y.S. 2d 451 (4th Dept., 2009), plaintiff commenced a Labor Law and common-law negligence action, seeking damages for injuries that he sustained when he fell from a ladder, while installing a security system in defendants building. Plaintiff brought a summary judgment motion on liability, based on the Labor Law §240(1) cause of action stating that the defendant violated Labor Law §240(1) by furnishing him with a defective ladder, and that violation was the proximate cause of his fall and resulting injuries. Defendant argued that Labor Law §240(1) did not apply because plaintiff was not "altering" its building within the meeting of Labor Law §240(1). The Appellate Division held that the plaintiff was engaged in "altering" a building at the time of the accident and by the defendant furnishing the plaintiff with a defective ladder the defendant violated Labor Law §240(1).

In Trotman v. Rochester City School District, 67 A.D. 3d 1482, 889 N.Y.S 2d 359 (4th Dept., 2009), claimant (who was allegedly abused by a employee of the respondent) brought a motion to extend the time to file a notice of claim. Although the claimant failed to offer a reasonable excuse for the delay, the Appellate Division held that the date of the motion was inconsequential as the respondent acquired actual notice of the alleged abuse of the claimant no later than January 2007, when the employee was arrested on criminal charges and suspended without pay by the respondent. In turn, once the respondent was advised of the criminal charges asserted against its employee, it should have conducted a prompt investigation of the incidents underlying and the charges. As such, allowing the claimant to serve a late notice of claim would not prejudice respondent's preparation of a defense.

In Darien v. Meldish, 2009 WL 4911365 (1st Dept. 2009) defendants brought a motion for summary judgment to dismiss plaintiff's complaint based on plaintiff not sustaining a serious injury. Defendants met their burden by establishing that the plaintiff's claimed disc condition was degenerative and unrelated to the accident. In opposition, the plaintiff's family physician affirmed that had the radiologist who conducted the MRI observed degenerative disc disease, the radiologist would have stated that in his report. The Appellate Division rejected the plaintiff's opposition and held that the plaintiff's family physician's opinion was mere speculation and insufficient to rebut defendants' proof.

In Eusebio v. Yannetti, 2009 WL 4856203 (2nd Dept. 2009), plaintiff defeated defendant's motion for summary judgment by submitting an affidavit of the plaintiff's treating chiropractor establishing that the plaintiff's gap in treatment was because she had reached maximum medical improvement. The chiropractor also based his affidavit on contemporaneous and recent examinations in which he noted range-of-motion limitations were significant, permanent, and causally related to the accident.

Prepared by: Katy M. Hedges