As established in Pommells v. Perez, 4 N.Y.3d 566, 574 (2005), a plaintiff claiming a No-Fault "serious injury" because of a permanent consequential limitation, significant limitation or a medically determined injury or impairment, who discontinues treatment in a manner or at a time contradicting his or her contention must offer "some reasonable explanation" for terminating treatment for their injury. Pommells, however, did not indicate the particular proof required to support a "reasonable explanation."

In Ramkumar v. Grand Style Transportation, et al., (October 15, 2013), the Court of Appeals addressed the proof required in support of a "reasonable explanation" for cessation of treatment of a serious injury. In Ramkumar, the plaintiff testified at his deposition that the reason that he stopped physical therapy treatment was because "they cut me off like five months". The Court held that the Appellate Division's decision requiring additional documentary evidence to support the statement of the plaintiff was unwarranted under the Pommells's decision.

The Court of Appeals majority explained that although they would have preferred the plaintiff submit an affidavit in opposition to the summary judgment motion explaining why coverage was terminated and stating that he did not have medical insurance for further treatment, the plaintiff met the bare minimum by providing "some reasonable explanation for the cessation of physical therapy". Therefore, the Court of Appeals reversed the Appellate Division's decision.

The dissenting justice, Hon. Robert A. Smith, stated that the legislative intent of the No-Fault Law was to "weed out frivolous claims and limit recovery to significant injuries." He stated that due to the amount of frivolous lawsuits, the Court should require proof beyond the mere say so of the plaintiff. He explained that the majority in Ramkumar dilutes the rules established in Pommells by finding that "the plaintiff's ambiguous and self-serving statement at his deposition is a sufficient reasonable explanation." Justice Smith stated that if there is a reasonable explanation for the cessation of treatment, the plaintiff should have no problem providing additional proof such as a letter from the carrier stating that coverage has been terminated. He further opined that the majority "lowers the barriers that courts have erected against baseless no-fault claims."

In Panzica v. Fantauzzi, et al., (4th Dept. September 27, 2013), the Appellate Division addressed the issue of liability for a landowner whose property was adjacent to a public sidewalk. The plaintiff sustained an injury when she slipped and fell on ice that had accumulated on a public sidewalk in front of the defendant's funeral home. The plaintiff brought suit and argued that the defendant landowner was benefiting from the public sidewalk and had created the dangerous condition by artificial means thereby making the landowner responsible for her resulting injuries.

Under the special use doctrine, a landowner with property abutting a public sidewalk may be liable for a defect in the sidewalk if the municipality has provided the landowner the opportunity for a special use on that property that solely benefits the landowner. The Court characterized a special use as "the installation of some object in the sidewalk or street or some variance in the construction thereof." Mere construction of the sidewalk does not constitute a special use. Here, the plaintiff failed to show that the sidewalk was constructed in a specific manner for the benefit of the landowner.

Additionally, the Court addressed whether the defendant landowner would be liable for creating a dangerous condition by artificial means. The natural accumulation of ice or snow on a public sidewalk is insufficient to hold an abutting landowner liable for injuries that result from ice conditions. Here, the defendant showed that they did not create the hazard artificially by plowing the snow or ice in a specific manner. Consequently, the plaintiff failed to raise a question of fact as to whether the defendant created or exacerbated the dangerous condition or that the hazard was created by artificial means.

In Saint v. Syracuse Supply Company, (4th Dept. October 4, 2013), the Appellate Court discussed whether changing a billboard advertisement constituted an activity covered under Sections 240 and 241(6) of the New York Labor Law. The plaintiff fell as he was changing an advertisement on an elevated billboard.

The Court held that changing the advertisement did not constitute "altering" a building or structure for the purposes of Section 240. The Court considered it merely "cosmetic maintenance or decorative modification." Additionally, the Court noted that changing an advertisement was not an activity protected under Section 241(6) because it was not considered construction work. Therefore, the defendant was granted summary judgment on claims brought under Sections 240 and 241(6).

In Bunn v. Town of North Hempstead, (2nd Dept. August 28, 2013), the Appellate Court addressed the issue of inherent risks in sport and recreational activities. The plaintiff was injured after he tripped and fell on a metal cap that was part of a sprinkler system on a court owned by the Town.

When engaging in sports and recreational activities, a participant consents, by their participation, to those commonly appreciated risks which are inherent in and arise out of the nature of the sport but not to those unassumed, concealed or unreasonably increased risks. The metal cap was small, slightly raised above ground level, painted the same color of the court and difficult to see from more than a few feet away.

The Court held that the condition of the metal cap was enough to raise a triable issue of fact as to whether it was a concealed condition.

In Carey v. Schwab, (3rd Dept. July 18, 2013), the Court discussed the character of evidence sufficient to raise a triable issue of fact in regard to the vicious propensity and behavior of horses. The plaintiff was injured when he offered to hold an American Paint Horse, i.e. a horse of distinctive markings, for the defendant while the defendant retrieved another horse that had escaped. While the plaintiff was holding the reins of the horse, the horse spooked and flicked its head knocking the plaintiff unconscious. As the horse tried to run, it trampled the plaintiff.

An owner of a domestic animal is strictly liable, only if he or she "knows or should have known of the animal's vicious propensities." A vicious propensity is the "propensity to do any act that might endanger the safety of the persons and property of others in a given situation" as well as the "proclivity to act in a way that puts others at risk of harm." Normal or typical equine behavior is insufficient to establish a vicious propensity.

In support of his motion for summary judgment, the defendant offered an affidavit and deposition testimony of several people familiar with the horse, stating that the horse had a calm demeanor and lacked a history of aggressive behavior.

The plaintiff relied on deposition testimony from a neighbor who was a friend of the defendant as well. The neighbor testified that he was familiar with the horses owned by the defendant and was aware of an American Paint Horse that the defendant would often ride. This specific horse would rear and circle when a rider would attempt to mount. The horse would also flick its head in the air. The neighbor, well experienced in horses, described all of these actions as aggressive and not usually associated with horses. However, the neighbor could not specifically say whether the horse that he observed acting aggressively was in fact the horse that had injured the plaintiff because the defendant owned several American Paint Horses.

The Court held that the defendant failed to demonstrate that the horse that the neighbor was referring to was not the horse that injured the plaintiff. Therefore, he failed to meet his burden for summary judgment.

In Sarisohn v. Plaza Realty Servs., Inc., (2nd Dept. August 28, 2013), the Appellate Court discussed the duty of a contracted snowplower. Under previous case law, the Court has defined three situations in which a snowplower may become liable to an injured party for an accident occurring as a result of ice or snow on the premises. One of the situations arises when the contracting party has entirely displaced a land owner's duty to maintain the premises safely.

In Sarisohn, the plaintiff demonstrated that the defendant's oral agreement with the property owner was sufficient enough to constitute a comprehensive and exclusive contractual obligation for the defendant to maintain the exterior of the subject premises as well as the sidewalk and parking lot. Consequently, this oral agreement was sufficient to support a "duty of care running from the defendant to the plaintiff based on the defendant's displacement of the property owner's duty to maintain the premises safely."

Additionally, the plaintiff demonstrated that the defendant had sufficient time and notice of the condition after the storm ended but failed to take adequate measures to remedy the condition. Therefore, the Court granted summary judgment on the issue of liability against the defendant snowplower.

Prepared by Rebecca R. Josefiak