In Robert M.D. and Katherine A.D., Individually and as Parents and Natural Guardian of Brandon S.D. v. Sterling, (4th Dept., June, 2015), plaintiff moved for summary judgment on liability with respect to a cause of action for civil battery. Plaintiff contended that since defendant pleaded guilty to endangering the welfare of a child i.e. "sexually abusing" the plaintiff in an earlier criminal proceeding, there was no question of fact to be determined with respect to the defendant's liability for civil battery.

In upholding the lower Court's decision, the Appellate Division held that a criminal conviction may be given collateral estoppel effect in a subsequent civil action if there is an identity of the issues and a full and fair opportunity to litigate in the criminal action. The Appellate Division further found that to recover damages for battery founded on bodily contact, a plaintiff must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the plaintiff's consent. In the case at hand, bodily contact was the only element of the civil battery tort established by defendant's plea in the criminal action. Therefore the plaintiffs failed to establish the requisite "identity of the issues" between the crime of endangering the welfare of the child and civil battery.

In Render v. Gizzo, (4th Dept., June, 2015), plaintiff commenced an action seeking damages for personal injuries as a result of a motor vehicle accident. The jury awarded plaintiff damages for past pain and suffering and future medical expenses but did not award damages for future pain and suffering. After the jury rendered its verdict, the trial judge discharged the jury and directed the parties to later submit any motions either may have. The Court did not request, and was not asked by either party, to request of the jury further deliberation and a consistent verdict on future damages. In response to plaintiff's subsequent motion that the verdict was inconsistent the trial judge granted plaintiff's post trial motion to set aside the verdict and ordered a new trial on the issues of proximate cause, serious injury and damages. Defendant appealed the trial judge's order. The Appellate Division found that the trial judge properly granted that part of the motion seeking to set aside the verdict as inconsistent. The Appellate Division held that where, as here, the interest of justice manifestly requires it, the trial court's dismissal of the jury without objection did not negate a party's right to seek a new trial or the Court's capacity to grant it.

In County Park Child Care, Inc. v. SmartDesign Architecture and Todd Audsley, (4th Dept., June, 2015), plaintiff commenced an action alleging professional malpractice against the defendants, an architecture firm and one of its employees. Plaintiff alleged that the defendants were negligent in preparing architectural drawings for renovations to plaintiff's daycare facility. Following the trial, the jury returned a verdict of no cause of action. The trial court denied plaintiff's post trial motion seeking to set aside the verdict. The Appellate Division in upholding the trial court's decision found that the parties presented sharply conflicting expert testimony concerning whether defendants' actions constituted a deviation from accepted architectural standards of practice. The Appellate Division found that the plaintiff was not entitled to a directed verdict because affording the defendants every favorable inference to be drawn from the evidence there was a rational process by which the jury could base a finding in defendants' favor. Finally, the Appellate Division concluded that the trial court properly refused to set aside the verdict as against the weight of the evidence because the evidence did not so greatly preponderate in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence.

In Courtney v. Hebeler, et al, (4th Dept., June, 2015), plaintiff commenced an action seeking damages for injuries she sustained when the motor vehicle in which she was a passenger was struck from behind by defendants' vehicle. Following discovery, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not meet the serious injury threshold under Insurance Law §5102(d). In opposition, the plaintiff submitted an affirmation from one of plaintiff's treating physicians who opined that the plaintiff's injuries would be permanent in nature. In upholding the trial court's decision, the Appellate Division found that the Supreme Court properly granted defendant's motion with respect to the 90/180 day category and properly denied it with respect to the permanent consequential limitation of use and significant limitation of use categories. The Appellate Division found that although the medical report of the defendants expert made a prima facie showing of that the plaintiff did not sustain a permanent injury, plaintiff appropriately responded with proof that the plaintiff continues to suffer from her accident-related injuries more than seven years after the accident without a change in her condition. The expert affirmation submitted by the plaintiff was held to raise an issue of fact of whether her injuries are permanent. With respect to the significant limitation of use category, the Appellate Division concluded that the defendants' own submission in support of its motion raise an issue of fact. The defendant submitted imaging studies demonstrating that the plaintiff suffered from a bulging disc and that proof was accompanied by objective evidence of the extent of the alleged physical limitations resulting from the disc injury.

In Klepanchuk, et al v. County of Monroe, et al, (4th Dept., June, 2015), plaintiff commenced an action against defendants County of Monroe and Monroe County Airport Authority, a public benefit corporation, as a result of a multivehicle accident that occurred during "whiteout" conditions on Interstate 390 near the Greater Rochester International Airport. Plaintiffs alleged that defendants were negligent and such negligence was the proximate cause of the accident and their injuries because of certain alterations and modifications that were made to the airport property, including the addition of two tunnels and the construction of a retaining wall adjacent to the southbound lanes of the I 390 which caused snow to blow across the I 390 and create "white out conditions". Defendants moved for summary judgment dismissing the complaint. The Appellate Division found that the Supreme Court erred in denying the part of defendants' motion seeking dismissal of the complaint on the ground that they were immune from liability pursuant to the doctrine of governmental immunity. The Appellate Division found that with respect to that doctrine, if the municipal defendant acted as a traditionally private enterprise, ordinary rules of negligence would apply. If, however, the defendant acted for the protection and safety of the public pursuant to general police powers, no liability applies unless the defendant owed a special duty to the injured party. In the event that the plaintiff fails to prove such duty, the defendant is insulated from liability. The Appellate Division found that the defendants established by their motion papers that the construction of the tunnels and the retaining wall were undertaken in a governmental capacity. The Appellate Division further found that the plaintiff failed to raise a triable issue of fact that the defendants owed a special duty to the plaintiffs.

Prepared by Katy M. Hedges