In Thompson v. Mather, (4th Dept., Feb. 11, 2010), a medical malpractice action, plaintiff's counsel, in preparation for trial, arranged for the non-party respondents (the plaintiff's treating cardiologist) to provide testimony in advance of trial that would be videotaped and presented at trial. The cardiologist appeared for the scheduled videotaping with his own counsel, who had been retained by the cardiologist's medical malpractice insurance carrier. During the testimony, counsel for the cardiologist interposed objections to both form and relevance. Plaintiff's counsel objected to the participation by counsel during the videotaped trial testimony and the parties were unable to resolve the dispute. Plaintiff's counsel took the position that the cardiologist's counsel should be precluded from objecting during the trial testimony except as to privileged matters or in the event that she were to deem questioning to be abusive or harassing.

Citing CPLR 3113(c), the Fourth Department held that counsel for a non-party witness does not have the right to object during or otherwise to participate in a pretrial deposition. The Court reasoned that CPLR 3113 does not make a distinction between trial testimony and pretrial videotaped deposition testimony presented at trial. Further, the Court noted that the efforts of the cardiologist's counsel to condition the videotaping of the deposition upon receipt of a general release is "repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand."

In Doherty v. Merchants Mutual Ins. Co., (4th Dept., June 11, 2010), the plaintiffs, as assignees of the defendant in the underlying personal injury action, commenced an action against the defendant's insurer for bad faith for failing to settle the underlying action and thereby exposing the insured defendant to personal liability. The plaintiffs sought to recover the difference between the jury award and the policy limits.

The court held, "a plaintiff must establish that the insured lost an actual opportunity to settle the action at the time when all serious doubts about his or her liability were removed and that defendant insurer acted with gross disregard for the insured's interests." In the underlying action, prior to the trial, the attorneys for the plaintiffs requested that defendant settle the underlying action for the policy limits of $300,000. However, "it is settled that an insurer cannot be compelled to concede liability and settle a questionable claim simply because an opportunity to do so is presented."

The defendant insurance company established that it investigated the claim in the underlying action and arranged for a physical examination of the plaintiff to determine the extent of her alleged injuries and whether they constituted a serious injury. The expert retained by the insurer and the plaintiff's treating physician had different views with respect to the extent of the plaintiff's injuries. Further, insurer's investigation included a videotape of plaintiff engaged in activities without apparent difficulty, despite her alleged injuries. Prior to trial of the underlying action, plaintiffs reduced their demand, and during the trial, the plaintiffs further reduced their demand. Insurer thereafter increased its settlement offer. Internal records of the insurer submitted in support of its motion established that a high/low offer had been made after the commencement of trial, but had not been well-received by the plaintiffs' attorney.

The Fourth Department found that the insurer-defendant, in the instant action had established that the defendant, in the underlying action, did not lose an actual opportunity to settle the claim at the time when all serious doubts about its liability were removed and when it was clear that the potential recovery far exceeded the insurance coverage. Thus, it did not act with gross disregard for the defendant's interests.

In Garza v. Taravella, (4th Dept., June 11, 2010), the plaintiff commenced an action seeking damages for injuries she allegedly sustained when her vehicle collided with the defendant's vehicle. The defendant moved for summary judgment dismissing the complaint against him on the ground that the plaintiff did not sustain a serious injury within the meaning of the Insurance Law §5102. The defendant further contended that the plaintiff failed to explain a six month gap in treatment. However, the Court held that the plaintiff adequately explained the significant gap in her treatment history by stating in her affidavit that she stopped treatment for about six months after the subject accident because she could not afford to personally pay for further treatment. Further, there was no evidence in the record establishing that plaintiff knew that her medical bills would be paid by no-fault insurance during the six month period.

In Lauffer v. Macey, (4th Dept., June 11, 2010), the plaintiffs commenced an action seeking damages for injuries allegedly sustained in a motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury under the four categories alleged in the complaint and bill of particulars. Defendants met their initial burden on the motion by submitting an affirmed report of a physician who examined plaintiff at their request and concluded that there was no objective evidence that plaintiff sustained a serious injury as a result of the accident. The certified records of the plaintiff's treating physician were held insufficient to raise a question of fact where there is no objective evidence of a serious injury within the records. The Court held, "The certified medical records of one of the plaintiff's treating physicians submitted by plaintiffs in opposition to the motion were insufficient to raise a triable issue of fact. None of the findings of that physician is based on objective evidence of an injury and, in any event, to the extent that the physician concluded that plaintiff's symptoms were caused by the accident, that conclusion is conclusory."

In Anderson v. Great Eastern Mall, LP, (4th Dept., June 11, 2010), the plaintiff commenced an action seeking damages for injuries he sustained when he slipped on ice and fell in front of the entrance to a store owned by the defendants. The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint and cross-claims.

The Fourth Department disagreed and held that "a plaintiff is not required to prove that the defendants knew or should have known of the existence of a particular defect where they had actual notice of a recurrent dangerous condition in that location." Further, the Fourth Department noted "a defendant who has actual knowledge of an ongoing and reoccurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition."

In response to defendant's contention of lack of notice, the plaintiff offered evidence of the defendant having notice of the reoccurrence of the condition which lead to formation of ice. The plaintiff had testified that he fell as he was walking underneath a canopy. Witnesses testified that they believed that the ice had formed from water dripping from a nearby drain, from snow melting from the canopy, or from snow melting from a nearby snow pile. The defendants also submitted the deposition testimony of their own employees, who testified that they had observed water coming from a nearby drain and ice accumulation near that drain. The employees also testified that snow on top of the canopy would slide off onto the sidewalks and water would drip from the canopy onto the sidewalk near where the plaintiff fell.

The Fourth Department held that the defendants failed to meet their initial burden of establishing that they did not have actual notice of the ongoing and reoccurring dangerous condition. The Fourth Department reversed the decision of the Supreme Court.

Prepared by Manik J. Saini