Results that Matter | Congratulations to Gil Hardy for his successful defense of Rafael Shimunov in the Appellate Division, Second Department.
Davidoff v Mullokandov Decided on June 8, 2010 by the Appellate Division, Second Department (2010 NY Slip Op 04944) sustained the dismissal of all claims as to our client, Rafael Shimunov. The Court indicated, "Generally, a rear-end collision with a stopped vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Carhuayano v J & R Hacking, 28 AD3d 413, 414). Here, Shimunov established his entitlement to judgment as a matter of law. The undisputed evidence that the motor vehicle operated by Avner Mullokandov struck the motor vehicle operated by Shimunov in the rear, while it was stopped, established a prima facie case of negligence against the defendant Avner Mullokandov." Why an appeal on such a clear cut case. The answer, of course, is coverage! Serious injuries and the lack of available coverage dictated this appeal more than the facts at issue. Click here for full decision.
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Decisions of Note
| |  The New York City Transit Authority often faces an insurmountable burden before New York City Jurors. No matter what the facts jurors can find fault against the Transit Authority. In Dibble v. The New York City Transit Authority the Appellate Division, First Department (2010 N.Y. Slip Op. 05494 decided on June 22, 2010), reversed a 65% finding of negligence against the Transit Authority and dismissed the plaintiff's complaint. Here, Dustin Dibble was hit by a subway train at the Union Square station on April 23, 2006 at about 1:30 A.M. The accident resulted in, among other things, the amputation of the lower half of his right leg. It was uncontested that he was intoxicated at the time of the accident and remembers nothing of the accident itself, only that he woke up in the hospital. Plaintiff's expert engineer, Nicholas Bellizzi, testified that had the subway operator put the train into emergency when he first saw what he described as the mass or the debris, the train could have stopped before striking plaintiff. The Court rejected the expert testimony based on "one second reaction time" stating, "As the defendants in this case assert, the use of an average reaction time of one second implicitly renders negligent any train operator with a longer than average reaction time... we also reject the plaintiff's contention that expert Bellizzi merely provided scientific corroboration for Moore's (The train operator, Michael Moore) concession that he could have stopped the train before hitting the plaintiff had he put the train into emergency when he first saw the debris. Moore's own speculation, in any event, was not an acknowledgment of negligence since it was made in the context of testimony as to Moore's belief that what he first saw was debris and not a person."
Read full decision here.
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No fault bench trials in Civil Court often involve more substantive evidentiary issues than a murder trial. Promed Orthocare Supply Inc. v. GEICO Ins. Co., 037272/08 decided on June 9, 2010 by Judge Lisa A. Ottley of Kings County, Civil Court is a good illustration. Counsel for the provider moved to preclude the testimony of Dr. Robert Snitkoff on the grounds that his testimony would be hearsay. Dr. Robert Snitkoff was testifying, based upon a PEER review of Dr. Sohn, that the medical supplies at issue were not medically necessary. Plaintiff argued the testimony of Dr. Snitkoff is based upon another doctor's report, and that the report was based on records that are not in evidence, and therefore, Dr. Snitkoff cannot come in and testify as to another doctor's report because his testimony would be hearsay. Urban Radiology, P.C. v. Tri-State Consumer Ins. Co. decided the day before Promed, on June 8, 2010, by the Appellate Term for the 2nd, 11th And 13th Judicial Districts 27 Misc.3d 140(A), provided authority for the Court in Promed with three pillars of evidence in No-Fault trials: (1) Plaintiff may not challenge the reliability of its own medical records; (2) With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor; and (3) As a result, plaintiff's contention that defendant must consider plaintiff's bills in a vacuum and ignore medical records which defendant received either from the assignor or from another provider who had submitted such records on behalf of the assignor, lacks merit. In Urban Radiology the Court held, "while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in Rafailova's records were true, the treatment allegedly provided was not medically necessary." The result in Promed was similar and the expert testimony allowed.
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 Judge Charles Lopresto of Civil Court, Queens County in a decision issued on June 7, 2010 precluded the testimony of a Biomechanical engineer for the defense in Garner v. Baird (157/08). Citing Frye, (Frye v. United States, 293 F. 1013 [D.C.Cir.1923), the Court precluded the Biomechanical expert stating "Defendants have failed to meet their burden of demonstrating that Dr. Fijan's proposed testimony is based on generally accepted methodologies and procedures in the area of biomechanical engineering and that their expert's theory of causation is generally accepted in the scientific community. While Dr. Fijan stated several times that the methodologies he used are generally accepted and have been used for decades, these conclusory statements were not supported by evidence such as peer review reports or other scientific studies. Dr. Fijan stated that he had a CD available with all the sources he used to form his opinion and he also stated that the documents he relied upon were contained in his expert's report, but neither was before the Court. There was no support given for the methodology of using repair costs and photocopies of photographs to determine the velocity of the vehicles and calculate the force of impact. Dr. Fijan is not a medical doctor and he failed to cite any studies to support his conclusion that a passenger in the back seat of a vehicle, whose knee hits the car door at the moment of the collision, could not have suffered a torn meniscus. Therefore, Dr. Fijan's opinion that the accident did not cause or contribute to plaintiff Christopher Garner's knee injury is based upon unreliable methodology and lacks sufficient foundation."
The decision is contrary to Appellate precedents Rodriguez v. Ford Motor Co. 17 A.D.3d 159, N.Y.A.D. 1 Dept.,2005., where the Court stated, "An expert should generally be permitted to offer an opinion on a matter involving professional or scientific knowledge not within the range of ordinary training or intelligence, but in order for a particular scientific principle-or a particularly novel theory-to be considered sufficiently reliable to serve as the basis for an expert's opinion, it must first be shown to have general acceptance in the relevant field. " See also Valentine v. Grossman 283 A.D.2d 571, N.Y.A.D.,2001." The trial court erred in excluding the testimony of the second biomechanical engineer on relevancy grounds. That expert testified that in his opinion, the difference between the force applied in the studies conducted on living people and the force generated in this collision was not significant. The testimony was clearly relevant. It tended to make the defendants' contention, that the accident was not severe enough to have caused the injuries sustained, more probable (see, People v Fagan, 215 AD2d 686, 687). The weight to be accorded this expert testimony is a matter to be determined by the jury (see, Coates v Peterson & Sons, 48 AD2d 890). This testimony was also admissible because it was probative of the central issue of the case (see, Crisci v Sadler, 253 AD2d 447).
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A Slip and Fall at Riker's Island heads to Court of Appeals |
|  A slip and fall on Riker's Island with a claim of back injury makes its way to the Court of Appeals and provides another important decision on additional insureds. On June 3rd, 2010 the Court of Appeals in R egal Construction Corp. v National Union Fire Insurance Co. (2010 NY Slip Op 04661) revisited the issue of the obligation of an insurer to defend and indemnify an additional insured for potential liability arising out of the operations of the primary insured. The Court of Appeals had last addressed this issue in Worth Construction Co. Inc. v. Admiral Insurance Co. 10 N.Y.3rd 413 (2008) holding, "An insurer's duty to defend "arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim" ( Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997]). This standard applies equally to additional insureds and named insureds (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 715 [2007]). In Worth, the Court narrowly construed the phrase "arising out of" in the policy and declared there was no connection between the accident of record and the risk covered in the policy. Regal Construction Corp v National Union Fire Insurance Co. (supra) evolved from a construction project at Rikers's Island. URS Corporation was hired by New York City as the Construction Manager for this project. URS then hired Regal Construction as the prime contractor. Regal was required to obtain a CGL policy naming URS as an additional insured. A project manager for Regal was injured in a slip and fall accident at Riker's and blamed employees of URS for the accident. The Insurance carrier for URS sought coverage under Regal's policy and a declaratory judgment action followed. In a decision which was contrary to the holding in Worth, the Court of Appeals indicated the focus of the inquiry "is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained" Here the Court found " the injury "arose out of" Regal's operations notwithstanding URS's alleged negligence, and fell within the scope of the additional insured clause of the insurance policy." Justice Ciparick, no doubt, envisioned a few insurance defense attorneys straining to reconcile this holding with the 2008 Worth decision and added "This case is factually distinct from Worth. Here, there was a connection between the accident and Regal's work, as the injury was sustained by Regal's own employee while he supervised and gave instructions to a subcontractor regarding work to be performed. That the underlying complaint alleges negligence on the part of URS and not Regal, is of no consequence, as URS's potential liability for LeClair's injury "ar[ose] out of" Regal's operation and, thus, URS is entitled to a defense and indemnification according to the terms of the CGL policy." Read full decision here. |
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What's a "Zipcar"?
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The movement to "Go Green" inspired the founders of Zipcar New York Inc. to introduce the " European Car Sharing Model" to New York. Members have 24/7 access to thousands of cars with prepaid insurance and fuel. The company lists dozens of benefits including, "The cool confidence that comes from knowing you live a responsible, eco-friendly lifestyle" The "cool confidence" of driving a Zipcar had a run in with New York Vehicle and Traffic Law section 388 vicarious liability rules in a recent case before Judge Roger Rosengarten in Queens. In Minto v. Zipcar New York Inc. (15401/09), decided on June 11, 2010, Judge Rosengarten applied the provisions of the Graves Amendment, 49 U.S.C 30106 to the car sharing model. The Court gave a broad interpretation to the Graves Amendment holding the act passed by Congress did not define "renting" or "leasing" and the Zipcar concept is protected from vicarious liability under the statute. The plaintiff argued that the extension of the Graves Amendment would frustrate New York public policy, allowing an innocent victim to seek compensation from a financially viable defendant, however the Court indicated Congressional Authority to regulate interstate commerce through the enactment of the Graves Amendment compels the Court to find in favor of the car sharing company and dismiss the complaint. As a postscript to this story, a concerted effort has been undertaken to repeal the Graves Amendment. H.R. 5381, is currently under consideration by the House of Representatives' Energy and Commerce Committee. An amendment to the bill, offered by Rep. Bruce Braley, former head of the Iowa Trial Lawyers Association, would repeal the Graves Amendment. The bill, spurred by the Toyota rapid acceleration cases, passed the House Committee on May 26, 1010 by a vote of 31 to 21. The "cool confidence" of Zipcar and all rental and leasing companies may soon disappear if this legislation is enacted. Read the full decision here. |
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We look forward to continuing to keep you informed about substantive issues of insurance defense law in 2010.
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