In Trezza v. Trezza, 2012 WL 6685525, (2nd Dept., 2012), the plaintiff was injured in an automobile accident. She eventually settled the case against two defendants for a total of $75,000.00.

Nearly a year later, the plaintiff's Medicare Advantage insurer, Oxford, contacted the plaintiff's attorney to assert a claim in the amount of $37,787.64, which Oxford had paid for the plaintiff's accident-related care.

The plaintiff made a motion to extinguish Oxford's purported lien and/or claim for reimbursement, arguing that it is barred by New York General Obligations Law §5-335. (This statute, which went into effect in November of 2009, bars private insurers from seeking reimbursement of the expenses incurred in affording accident-related medical care to an enrollee who settles a personal injury action.)

The Trial Court granted the plaintiff's motion. However, the Appellate Division, Second Department, overturned the Trial Court's decision, ruling that the Medicare Act expressly pre-empts statutes such as General Obligations Law §5-335. In this case, the Medicare Act provides that Medicare Advantage organizations may create a right of reimbursement for themselves in their insurance agreements with Medicare insureds. Furthermore, the statutory framework expressly states, "A State cannot take away a Medicare Advantage organization's right under federal law and the MSP regulations to bill, or to authorize providers and suppliers to bill, for services for which Medicare is not the primary payer."

Based upon this language, the Appellate Division ruled that federal law pre-empted New York State Law with regard to the application of New York General Obligations Law §5-335, as it pertains to Medicare Advantage plans.

In Luna v. Zoological Society of Buffalo, Inc., 101 A.D.3d 1745, (4th Dept., 2012), a plaintiff successfully moved for partial summary judgment under New York Labor Law §240(1). On appeal, the Appellate Division, Fourth Department, upheld the Trial Court's award of partial summary judgment.

At the Appellate Division, the defendant argued that there was a question of fact as a result of the application of the recalcitrant worker doctrine. The defendant submitted evidence that the plaintiff was instructed not to work in a particular area and violated those instructions. The Appellate Division disagreed with this argument, stating, "The non-delegable duty imposed upon the owner and general contractor, under Labor Law §240(1), is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing, and operating such devices, so as to give a worker proper protection." Thus, "(t)he mere failure by plaintiff to follow safety instructions does not render a plaintiff a recalcitrant worker."

In Faraci v. Urban, 101 A.D.3d 1753, (4th Dept., 2012), the plaintiffs brought an action for personal injury against a landlord and tenant dog owner after the plaintiffs' infant son was bitten by a dog. The defendant landlord brought a motion for summary judgment seeking dismissal of the complaint against her, which was denied by the Trial Court.

The Appellate Division stated, "To recover against a landlord for injuries caused by a tenant's dog on theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises, (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog."

There was no dispute that the landlord both knew about the presence of the dog, and that she also had the ability to remove or confine the dog. The Appellate Division determined that the defendant failed to demonstrate as a matter of the law that the dog did not have vicious tendencies, based upon the proof that the dog had previously growled at and tried to claw through a window to get at mail carriers and others who came to the door.

However, the Appellate Division agreed with the defendant's argument that she was entitled to summary judgment because she established as a matter of law that she neither knew, nor should she have known, of the dog's alleged vicious propensities. Specifically, the Appellate Division found, "There is no evidence from which to infer that the dog exhibited vicious propensities at a time when the defendant was present on the property . . . nor is there any evidence that anyone communicated any complaints about the dog to the defendant."

Since the plaintiff did not create a question of fact with respect to the defendant's alleged notice of the dog's vicious propensities, the Appellate Division, Fourth Department, reversed the Trial Court's denial of the defendant's motion for summary judgment.

In Monaco v. Steiner, 101 A.D.3d 1763, (4th Dept., 2012), the defendants brought a motion for summary judgment, arguing that the plaintiff's alleged injuries were not "serious" within the meaning of New York Insurance Law §5102(d). The Trial Court granted the defendants' motion.

The Appellate Division, Fourth Department, agreed with the Trial Court that the defendants met their initial burden of establishing that the plaintiff did not sustain a serious injury under any of the categories alleged, i.e., the "permanent loss of use", "permanent consequential limitation of use", "significant limitation of use", and "90/180" categories.

The Appellate Division also found that the plaintiff failed to raise a question of fact with regard to the "permanent loss of use" and "90/180" categories. Finally, although the Appellate Division conceded that the plaintiff arguably raised an issue of fact with regard to the "permanent consequential limitation" and "significant limitation" prongs, the Appellate Division nevertheless upheld the Trial Court's decision, based upon the failure of the plaintiff's medical expert to establish that the plaintiff's injuries were causally related to the subject motor vehicle accident, and not to her prior neck and back complaints.