In Thomas v. Huh, 2014 WL 1099191 (4th Dept., 2014), the plaintiff commenced litigation against the defendants after a rear-end automobile collision. The defendants moved for summary judgment, arguing that there were no questions of fact as to whether the plaintiff sustained qualifying injuries, as defined by New York Insurance Law Section 5102(d). The trial court denied the defendants motion with respect to the "permanent consequential limitation" and "significant limitation" prongs of "serious injury" and this appeal followed.

The Appellate Division, Fourth Department, determined that the defendants failed to meet their initial burden of demonstrating their entitlement to summary judgment. In this case, the defendants submitted an independent medical examination report, as well as imaging studies. The Appellate Division determined that the independent medical examination report was "insufficient to eliminate all triable issues of fact and thus establish their entitlement to judgment as a matter of law". The defendants' physician opined that the plaintiff's alleged injuries were degenerative and preexisting in nature. However, the Appellate Division criticized this opinion for failing to account for "evidence that plaintiff had no complaints of pain prior to the accident". Additionally, the Appellate Division noted that there were "several other medical professionals" who concluded that the plaintiff's condition was causally related to the subject motor vehicle accident. As a result, the trial court's denial of the defendants' motion was affirmed.

In Seferagic v. Hannaford Bros. Co., 2014 WL 1099246 (4th Dept., 2014), the plaintiff slipped and fell in the defendant's grocery store and commenced litigation. The defendant brought a summary judgment motion on the basis that there was neither actual nor constructive notice of the allegedly hazardous condition.

In this case, the plaintiff allegedly slipped on a wet floor. It had rained the morning of the plaintiff's fall and the defendant's employees placed wet floor warning cones near the entrance.

The defendant met its initial burden with regard to actual notice by demonstrating that it did not receive any complaints about the allegedly wet floor prior to the plaintiff's fall. The Appellate Division, Fourth Department, ruled that the placement of wet floor warning cones did not require a finding that the defendant had actual notice of the allegedly dangerous condition since the defendant demonstrated that they were merely put out as a general safety precaution, and not in response to any complaints.

With respect to constructive notice, the defendant's manager testified that the floor was dry following the plaintiff's fall and that no remedial action was required. Additionally, the plaintiff testified that he himself did not observe any puddles on the floor.

The Court stated, "(i)t is well established that, to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Testimony of the plaintiff, as well as the defendant's manager, established that there was no visible puddle of water, thus entitling the defendant to summary judgment as a matter of law.

In Mann v. Wegmans Food Markets, Inc., 2014 WL 1099646 (4th Dept., 2014), the plaintiff commenced litigation after slipping and falling on ice in the defendant's parking lot. The trial court denied the defendant's motion for summary judgment.

In this case, the accident occurred at approximately 5:15 p.m. The defendant's expert meteorologist established that light snow mixed with freezing drizzle fell from 3:00 p.m. to at least 5:00 p.m.

According to the Appellate Division, Fourth Department, the 15 minute amount of elapsed time after the "storm in progress" did not provide the defendant with a reasonable amount of time to correct the hazardous snow and ice related conditions. As a result, the trial court's decision was reversed, and the plaintiff's summons and complaint was dismissed.

In Markham v. Schmieder, 980 N.Y.S.2d 676 (4th Dept., 2014), the plaintiffs commenced litigation against defendant Nothnagle Drilling, Inc. and Edward Schmieder, their employee, after Schmieder struck the plaintiffs' motorcycles, causing two of the plaintiffs to die. Defendant Nothnagle moved for summary judgment, arguing that Schmieder was using their truck for personal travel without their permission. During his deposition, Schmieder admitted that he was using the truck for personal use at the time of the accident. Both Nothnagle and Schmieder testified that personal use of a company truck was not permitted.

The Appellate Division, Fourth Department, reiterated that, "it is well settled that Vehicle and Traffic Law Section 388(1) creates a strong presumption that the driver of a vehicle is operating it with the owner's permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary". As a result, Nothnagle was presumed to have granted permission to Schmieder to have been operating their vehicle at the time of the accident. Furthermore, the Appellate Division noted that, "summary judgment for the owner will not inexorably follow whenever the owner and driver disavow consent, but, rather, whether summary judgment is warranted depends on the strength and plausibility of the disavowals, and whether they leave room for doubts that are best left for the jury to resolve".

In this case, the Appellate Division determined that Nothnagle failed to meet its initial burden, instead ruling that there was an issue of fact as to whether the disavowals of permission by the owner and operator were "arguably suspect". The court noted that the record was unclear as to whether permission for personal use was in fact required by the owner. There was no evidence of any written or oral instructions given to Schmieder regarding personal use of the truck. The court found it compelling that Schmieder's access to the subject vehicle was "unfettered", and that Schmieder was not required to record the vehicle's mileage, even though Nothnagle paid for the fuel for the vehicle. Finally, Schmieder could not recall any instances of Nothnagle denying permission to any employee to use a vehicle for personal travel, and he also testified that he had used the subject vehicle for personal travel prior to the accident. As a result, the trial court's denial of the defendant's motion for summary judgment was affirmed.

In Ridge v. Gold, 2014 WL 1099714 (4th Dept., 2014), the plaintiff was allegedly injured after falling from a ladder while building an addition to the defendant's home.

The Workers' Compensation Board determined that the plaintiff lacked credibility and that no accident had occurred as alleged by the plaintiff. Thereafter, the plaintiff commenced personal injury litigation against the defendants as a result of the same accident.

The defendants brought a motion for summary judgment based upon the doctrine of collateral estoppel, arguing that the Workers' Compensation Board had already determined that there was insufficient evidence that an accident had actually occurred in the first place.

The Appellate Division, Fourth Department reiterated the standard that, "the party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action". Here, the Appellate Division found it compelling that the C-7 notice submitted by the Workers' Compensation insurance carrier specifically listed "causally related accident" as one of the grounds for controverting the plaintiff's claim, thus establishing that this issue was before the Board. As a result, the Appellate Division found an identity of issues.

The Appellate Division also found that the plaintiff had had a full and fair opportunity to litigate the issue before the Workers' Compensation Board, noting that he was represented by counsel, had notice of the issue prior to the hearing, testified at the hearing, and had the opportunity to cross-examine opposing witnesses. As a result, the Appellate Division reversed the trial court's denial of the defendants' motion, and dismissed the plaintiff's summons and complaint.

Prepared by Michael J. Chmiel