The New York State Court of Appeals issued an important decision on a first party PIP actions on October 13, 2011 in the case of New York and Presbyterian Hospital v. Countrywide Insurance (2011 NY Slip Op 7149). Countrywide had sought to deny the claim for hospital treatment for failure to receive notice of the accident within 30 days of the occurrence as required by 11 NYCRR 65-1.1. Invoking a phrase with bitter irony for insurance carriers, the court stated: "The primary goals of New York's no-fault automobile insurance system are 'to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists' (Matter of Medical Socy. of State of N.Y. v Serio, 100 N.Y.2d 854, 860, 800 N.E.2d 728, 768 N.Y.S.2d 423 [2003])."
The Court held the failure of the hospital to comply with the 30 day notice of accident rule was fatal despite having received proof of claim within 45 days. The "notice of accident" and "proof of claim" under 11 NYCRR 65-1.1 are independent conditions precedent to a no-fault insurer's liability. "...nothing in 11 NYCRR 65-3.3 (d) explicitly dispenses with the 30-day notice of accident requirement. Rather, 11 NYCRR 65-3.3 (d) merely provides that a NF-5 form may constitute the written notice required under the notice of accident provision.... For the foregoing reasons, the submission of the proof of claim within 45 days of the date health care services are rendered may not serve as timely written notice of accident after the 30-day period for providing such written notice has expired."
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Raquel Adkins and Rosier Astrel are two Queens County plaintiffs who made their way up to the Appellate Division Second Department on different cases.
Raquel Adkins v. Queens Van-Plan, Inc.,(293 A.D.2d 503) was decided in 2002; and Rosier Astrel v. Saray Yarborough (31 A.D.3d 356) in 2005 I doubt these two plaintiffs have any idea how important their cases were on critical evidentiary questions. The Adkins case stands for the proposition that "A non-treating physician, retained only as an expert, may not testify regarding the history of an accident as related by the plaintiff or concerning the plaintiff's medical complaints."
At trial, the non-treating expert may testify regarding his or her examination of the plaintiff; however, the plaintiffs' expert may not testify regarding medical complaints or summarize and read statements and findings contained in the reports and records of treating physicians, as those reports and records were not in evidence and the physicians did not testify at trial.
Thank you Raquel for that key ruling causing a new trial. Rosier Astrel's case was dismissed before he ever testified. Here the opinion of the plaintiff's medical expert was based on medical records which were inadmissible at trial. The Appellate Division upheld the dismissal stating, "Given the absence of evidence as to the reliability of those out-of-court medical records, the Supreme Court providently exercised its discretion in granting the defendant's motion (dismissal)."
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Antoni Wilinski probably never knew Angelo Misseritti who died 21 years ago. Each has sought the protection of New York Labor Law § 240 (1) which mandates that building owners and contractors:
"in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
The statute imposes absolute liability on building owners and contractors whose failure to "provide proper protection to workers employed on a construction site" proximately causes injury to a worker. Whether a plaintiff is entitled to recovery under Labor Law § 240 (1) requires a determination of whether the injury sustained is the type of elevation related hazard to which the statute applies.
Angelo Misseritti lost the protection of the statute in 1995 in a decision which narrowed the application of Labor Law § 240 (1). "The plaintiff's decedent in that case sustained severe injuries, leading to his eventual death, when a completed, concrete firewall collapsed on top of him (see 86 NY2d at 489). Before the wall collapsed, "decedent and his co-worker had just dismantled the scaffolding used to erect the completed firewall and . . . [m]asons had not yet vertically braced the wall with the . . . planks it had on the work site" (id. at 491). We held that section 240 (1) did not apply to those facts, as the firewall did not collapse due to a failure to provide a protective device contemplated by the statute."
Antoni Wilinski prevailed in part in a Court of Appeals decision dated October 25, 2011 (2011 NY Slip Op 7477). He was demolishing brick walls in a vacant warehouse when vertical plumbing pipes which were unsecured fell during the demolition and hit him in the head. Based on Misseritti, the protection of 240 (1) would not apply. The Court of Appeals took a step back from Misseritti, however, stating, "We do not agree that Misseritti calls for the categorical exclusion of injuries caused by falling objects that, at the time of the accident, were on the same level as the plaintiff."
"There is an important distinction between the facts of this case and other cases where summary judgment has been granted in defendants' favor. Here, the pipes that caused plaintiff's injuries were not slated for demolition at the time of the accident. This stands in contrast to cases where the objects that injured the plaintiffs were themselves the target of demolition when they fell. In those instances, imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical. Here, however, securing the pipes in place as workers demolished nearby walls would not have been contrary to the objectives of the work plan."
The Court indicated a question of fact exists as to the application of Labor Law § 240 (1). "Whether plaintiff's injuries were proximately caused by the lack of a safety device of the kind required by the statute is an issue for a trier of fact to determine."
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