In Thomas v. Ku, 2013 WL 6670324 (3rd Dept., 2013), the plaintiff was rear-ended by the defendants in a July 2010 motor vehicle accident. The plaintiff went to the emergency room that day where he complained of head, neck and back pain. After the emergency room visit, plaintiff did not seek medical treatment for three months at which time plaintiff was examined by a surgeon who had previously performed a 2009 C6-7 fusion on the plaintiff for weightlifting injuries.

When plaintiff first saw his surgeon after the 2010 motor vehicle accident the surgeon did not detect injury and referred the plaintiff to physical therapy.

Following the accident plaintiff went to physical therapy for two months. Then plaintiff did not treat again until January 2011 when the plaintiff was examined by Dr. Luis Mendoza to whom he was referred by his attorney. Thereafter, plaintiff's treatment was sparse and intermittent.

To qualify as having sustained a "serious injury" as required by the New York No Fault Law, the plaintiff asserted claims of permanent consequential limitation of use, significant limitation of use and a 90/180 day claim.

In seeking summary judgment, the defendants submitted the plaintiff's deposition testimony that established the plaintiff sought limited medical treatment. Further plaintiff's deposition testimony established that his visit to Dr. Mendoza was at the direction of his attorney and that he missed work after the accident only because he was preparing to find new employment.

The defendants also submitted a report of defendants' medical examiner who examined the plaintiff and the plaintiff's records. The report stated that the plaintiff's decreased range of motion resulted from plaintiff's prior cervical spine fusion and degenerative changes. The report further established that the plaintiff had no current, causally-related injury.

In response to defendants' motion, plaintiff submitted a report by Dr. Mendoza.

The Appellate Division upheld the decision of the lower court holding that the plaintiff was required to come forward with "objective medical evidence distinguishing his pre-existing condition from the injuries claimed to have been caused by this accident." The Appellate Division noted that in his report, Dr. Mendoza did not distinguish plaintiff's pre-existing condition from the injuries claimed to have been caused by this accident. Further, the Appellate Division noted that Dr. Mendoza's opinion on causation was based in part on an incorrect assumption that the plaintiff had been out of work since the accident by reason of his injuries.

In Rickert v. Diaz, 976 N.Y.S.2d 80 (1st Dept., 2013), plaintiff was a passenger in a livery cab when the cab was struck by another vehicle. As a result plaintiff claimed to have sustained significant limitations of use and permanent consequential limitations of use to her knee, shoulder, cervical and lumbar spine.

In seeking summary judgment, the defendant's radiologist provided a detailed explanation why plaintiff's MRI films showed only pre-existing degenerative changes to the plaintiff's cervical spine, knee, and shoulder. The defendant's examining orthopedist opined that MRI films of the plaintiff's lumbar spine showed temporary "soft tissue injury superimposed on underlying degenerative processes".

The defendant also established a lack of a permanent consequential limitation of use by submitting an affirmed report of defendant's examining orthopedist based on an examination of the plaintiff four years after the accident. The defense orthopedist found that the plaintiff had full range of motion and negative clinical test results in each body part that plaintiff claimed to be injured.

The Appellate Division noted that plaintiff's efforts to respond to defendants motion through submission of medical opinions and diagnoses in the form of business records was fatally defective, as medical opinions and diagnoses cannot be admitted as business records. The Appellate Division parenthetically noted that even if the opinions and diagnoses were considered, given their unpersuasive content, they would not suggest a triable issue of fact.

In Lee v. Cornell University, 946 N.Y.S.2d 85 (1st Dept., 2013), defendants met their initial burden on summary judgment by demonstrating the absence of a significant or permanent consequential limitation of use to plaintiff's cervical and lumbar spine. Defendants submitted an affirmation of an orthopedist who examined the plaintiff and her medical records. Furthermore, defendants established that the plaintiff had a gap in treatment which entitled the defendant's to summary judgment.

In opposition, the plaintiff's submitted an affirmation from plaintiff's orthopedic surgeon which stated that the plaintiff had a limited range of motion shortly after the accident and continued to have such limited range of motion. The plaintiff's surgeon also reviewed the plaintiff's MRIs and concluded that the bulging and herniated discs were causally related to the accident. The affirmation of plaintiff's orthopedic surgeon further explained her gap in treatment, in stating that after a series of examinations, that any further treatment would be palliative.

In affirming the lower Court's decision, the Appellate Division, found that the plaintiff created a question of fact as to whether she suffered

In affirming the lower Court's decision, the Appellate Division, found that the plaintiff created a question of fact as to whether she suffered a significant or permanent consequential limitation of use to her cervical and lumbar spine.

In Ragins v. Hospitals Insurance Company, Inc. 2013 WL 6588738, (2013), plaintiff commenced an action against his excess insurance carrier (HIC) on the theory that HIC must pay interest on a $1,100,000 judgment that was entered against the plaintiff. Plaintiff's primary carrier paid policy limit of $1,000,000 soon after the judgment was entered. Plaintiff's primary policy excluded payment of post-judgment interest after remittance of policy limits in satisfaction of a judgment.

The HIC excess policy provided coverage for any "sum" in excess of the primary insurance. HIC brought a motion to dismiss based on the language of its policy. The trial court denied HIC's motion to dismiss and the Appellate Division reversed and remitted. Leave to appeal was granted to the Court of Appeals.

The Court of Appeals found that the undefined term "sum" applies to any amount of any loss attributable to an otherwise covered claim, which includes post-judgment interest.

The Court of Appeals held that the primary policy excluded interest after the carrier issuing that policy paid its portion of the judgment; therefore, any interest along with any other unpaid portion of the judgment fell within the terms of the excess policy issued by HIC.

In Devito v. Feliciano, 2013 WL 6164447, (2013), plaintiff was involved in a motor vehicle accident, when the car she was traveling in was struck by the defendants. As a result plaintiff brought an action against the defendants alleging nasal and T12 fractures. Following discovery, it was found that plaintiff had previously fell four months before the motor vehicle accident and suffered a minor concussion and fractured left wrist.

At trial, plaintiff's treating physicians testified on cross-examination that plaintiff's nasal fracture could have resulted from the prior fall but did not believe that her T12 fracture could have.

As a result of the testimony of plaintiff's treating physicians the defendants elected not to have their examining physician testify because they believed that the testimony would be cumulative. As a result, plaintiff asked the trial court to charge the jury with a missing witness charge. The trial court held that the missing witness charge was not appropriate because the testimony would in fact be cumulative. The jury returned a verdict in defendants' favor and the plaintiff appealed.

The Appellate Division affirmed the trial court's judgment holding that the plaintiff was not entitled to the missing witness charge. The Court of Appeals reversed the Appellate Division's decision and held that testimony can only be found cumulative "when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness." Accordingly the Court of Appeals ordered a new trial.

In Ackman v. Haberer, 111 A.D.3d 1378, 945 N.Y.S. 2d 283, (4th Dept. 2013), plaintiff was a passenger on Haberer's snowmobile when it collided with a second snowmobile causing injuries to the plaintiff. Plaintiff previously sued the second snowmobile driver Gross. In that action Haberer was sued by Gross as a third-party defendant. After a jury trial in Ackman v. Gross v. Haberer, the jury found that Gross and Haberer were each 50% responsible in causing the accident and awarded the plaintiff $150,000.00. However because of the application of Article 16 of the CPLR, Gross was liable to the plaintiff for only his own relative culpability i.e. $75,000.00.

As the applicable statute of limitations had not yet run plaintiff then brought a direct claim against Haberer whom she eventually married.

Once the second action was commenced Ackman brought a motion for summary judgment in the amount of $75,000.00. Plaintiff's motion was denied by the Trial Court.

The Appellate Division held that the plaintiff was entitled to summary judgment in the amount of $75,000.00 based on the doctrine of collateral estoppel. The Appellate Division held that as he was the third-party defendant in the previous action the issues against Haberer were previously decided and Haberer had the full opportunity to litigate and defend the negligence claim against him.

Prepared by Katy M. Hedges