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 In Cabreja v. Rose, Vargas and Resto were riding along upper Manhattan in a car driven by Diaz Cabreja, when they were hit by a car owned by Citiwide Auto Leasing and driven by James Rose -- a New York City cop.
After a personal injury suit was filed, Citiwide and Rose asked the Bronx County Supreme Court for a change of venue to New York County, citing a state law -- CPLR 504(3) -- which requires suits brought against the City, or one of its officers, to be maintained in the county where the accident occurred.
When the Bronx County Supreme Court denied that request, an appeal to the Appellate Division, First Department, ensued.
Since the City wasn't a party to the action, the AD1 found CPLR 504(3) inapplicable because the law wasn't "intended as a benefit for individual litigants."
Trying breaking that!
 For a copy of the Appellate Division's decision, please use this link: Cabreja v. Rose
 In McCord v. City of New York, Richard McCord, the Trustee of Susan Elazm's bankruptcy estate wanted to file a late notice of claim for an injury she suffered on a public sidewalk.
The injury occurred in August 2006, but a Notice of Claim wasn't filed with the City of New York until October 2007, way beyond the governing 90-day period.
The City argued that, since McCord neither came forward with a reasonable excuse for the delay nor proved that the City had actual knowledge of the sidewalk's condition, Elazm's negligence case was forever lost. McCord countered an "automatic stay" was in effect when Elazm filed bankruptcy and he was thus prevented from filing a Notice of Claim on her behalf. The City argued that the obligation to file wasn't "tolled" or stayed merely because Elazm had sought bankruptcy protection.
The Kings County Supreme Court sided with the City and noted McCord's "bare assertion ... that DEP created the defective condition" wasn't enough to show the City was aware of the defective sidewalk. Further, since a Notice of Claim could have been prepared and submitted by Elazm, or anyone else on her behalf, the delay was inexcusable.
With that, Elazm got slammed.
 (Here's hoping a Notice of Appeal was timely filed.)
To download a copy of the Supreme Court's decision, please use this link: McCord v. City of New York, Richard McCord
 In People v. Caban, Lynette Caban was backing up her Jeep into a pedestrian right of way when she struck an elderly pedestrian and killed her. (At the time of the accident, one of the jeep's windows was taped up with a brown paper bag, causing a blind-spot in the direction from which the pedestrian was approaching.)
After a jury trial, Caban was convicted by the New York County Supreme Court of criminally negligent homicide and was sentenced to 1 to 3 years in prison.
While the Appellate Division, First Department, agreed that the evidence was sufficient to support the verdict, the lower court was found to have erred when it allowed the jury to hear that Caban's driver's license had been suspended. The AD1 was of the opinion the suspension of her driver's license wasn't relevant to the case or to a negligence determination. Therefore, since that information lacked "probative value" and was "highly prejudicial," the AD1 reversed and sent the matter back for a new trial.
We're wondering why it's OK for someone to be driving with a suspended license.
 What's up that?
To download a copy of the Appellate Division's decision, please use this link: People v. Caban
 In Vucetovic v. Epsom Downs, Inc., Dzafer Vucetovic was injured on property maintained by Epsom Downs, Inc. (Epsom).
The City of New York removed a tree in front of Epsom's building, leaving a tree stump inside the cobblestone-lined tree well, which was installed prior to Epsom's acquisition of the building.
While walking along the sidewalk, Vucetovic tripped on the cobblestone and injured himself. He later sued claiming a violation of New York City law which "imposes tort liability on property owners who fail to maintain City-owned sidewalks in a reasonable safe condition."
After the New York County Supreme Court granted Epsom's request to dismiss the case -- on the ground that the tree well wasn't a part of the sidewalk -- both the Appellate Division, First Department, and, the New York State Court of Appeals later affirmed.
Our state's highest court concluded that local law excluded "tree wells" and, since they are "City-owned" and local law didn't expressly transfer liability to private landowners, Vucetovic's case couldn't survive.
Guess who needed a soak after getting that news?
 For a copy of the Court of Appeals' decision, please use this link: Vucetovic v. Epsom Downs, Inc
 In Vushaj v. Insignia Residential Group, Inc., handyman Kanto Vushaj was injured while making electrical repairs to a fuse block in a building managed by Insignia Residential Group, Inc. (Insignia).
When the Bronx County Supreme Court refused to dismiss the case against Insignia, the company appealed to the Appellate Division, First Department.
The AD1 determined that under the management agreement's terms, Insignia didn't have a duty to ensure the building was in "good repair" nor was there enough evidence to establish that Insignia was aware of an electrical defect.
In order to hold Insignia responsible for the accident, Vushaj needed to demonstrate that it was in "complete and exclusive control of the premises." Since the company lacked such "broad authority," the building's owner was solely responsible for any failure to make repairs.
Are you shocked by that?
 To download a copy of the Appellate Division's decision, please use this link: Vushaj v. Insignia Residential Group, Inc.
 In Tower Ins. Co. of N.Y. v. Lin Hsin Long Co., Tower wanted a court to rule that it wasn't obligated to defend or indemnify Lin Hsin Long Co. -- known as Hunan Ritz Restaurant -- in connection with a personal injury suit filed against the establishment.
When it received notice some nine months after Charlotte Theodoratos fell in defendant's place of business, Tower filed its own lawsuit contending that, since neither Lin Hsin nor Theodoratos timely notified the insurer of a possible claim, Tower wasn't responsible for the payment of any sums found due to Theodoratos.
After the New York County Supreme Court denied Tower's motion for relief in its favor, the insurer appealed to the Appellate Division, First Department, which agreed Tower hadn't been given notice of the accident within a "reasonable period of time."
While Lin Hsin argued that it didn't contact Tower because it didn't believe there would be a claim, the AD1 was of the opinion the restaurant wasn't in a position to make that kind of assessment. (The AD1 also found Theodoratos' counsel failed to exercise "due dilgence" when he merely urged the restaurant to notify its carrier.)
A lone dissenter -- Justice Andrias -- didn't believe Theodoratos or her attorney did anything wrong, and that the governing standard should have been less stringently applied to an injured party (rather that the insured).
If the Court of Appeals doesn't intervene, this Tower will be insurmountable.
To download a copy of the Appellate Division's decision, please use this link: Tower Ins. Co. of N.Y. v. Lin Hsin Long Co.
 In Heimbuch v. Grumman Corp., Elizabeth Heimbuch filed suit against Grumman Corp. -- her truck's manufacturer -- after she was injured lifting the hood.
Heimbuch alleged that the truck was missing a "gas assist" device, which facilitated opening the outer metallic panel shielding the engine. She claimed that Grumman was strictly liable for the accident "based on a manufacturing defect, design defect, and failure to warn."
When the Nassau County Supreme Court denied Grumman's motion to dismiss the case, the company appealed to the Appellate Division, Second Department.
While a manufacturer can be sued when a company releases a defective product which has caused injury, Grumman established this particular truck had the disputed piece of equipment when released.
Since the device was removed after the vehicle was manufactured, Grumman wasn't the "proximate cause" of Heimbuch's injuries -- a necessary element in a products liability case. According to the AD2, Heimbuch was responsible for her own injuries since she knew the gas assist device was missing, yet continued to lift the hood without it every day.
Did the AD2 pull a Heimbuch maneuver?
To download a copy of the Appellate Division's decision, please use this link: Heimbuch v. Grumman Corp.,
 In Oestreich v. Present, Joyce Oestreich's decedent died while being treated by Dr. Daniel Present.
When the New York County Supreme Court granted Present's request to dismiss the case based on his proof that the treatment "comported with good and accepted practice," Oestreich appealed to the Appellate Division, First Department, which affirmed the outcome.
Apparently Oestreich's experts failed to rebut Present's demonstration. Her doctors offered "general conclusions," "misstatements of evidence," and were unable to support their analysis in a legally sufficient way.
Clearly, the AD1 wasn't willing to hand someone a Present.
 For a copy of the Appellate Division's decision, please use this link: Oestreich v. Present
 In Cohen v. State of New York, a negligence and wrongful death case was filed against the State of New York by the families of four camp counselors who were killed by a turbulent whirlpool located in a remote and relatively inaccessible "cavern-like" area of Adirondack State Park.
After a camp counselor entered the whirlpool and struggled to stay afloat, three friends followed in an attempt to rescue him. Tragically, all four young men drowned.
When the Court of Claims denied the State's motion to dismiss the case, an appeal to the Appellate Division, Third Department, followed.
The AD3 held that a landowner needn't take preventative measures to protect people from harm when there are "open and obvious conditions that are natural geographic phenomena."
Since the camp counselors knew (or should have known) of the dangers prior to entering the water, the AD3 concluded that dismissal was appropriate.
This is openly and obviously an atrocious result.
To download a copy of the Appellate Division's decision, please use this link: Cohen v. State of New York
 In Castro v. City of New York Dept. of Educ., Nicholas Castro -- a three-year old "special needs" student -- was allegedly attacked on three separate occasions by another student while at school.
When an assault ultimately resulted in a broken femur, Castro filed suit alleging that school officials had failed to adequately supervise the child who injured him.
When the New York County Supreme Court denied the New York City Department of Education's (DOE) request to dismiss the case, DOE appealed to the Appellate Division, First Department.
Since there were unresolved questions as to whether the school provided adequate supervision under the circumstances, the AD1 concluded that the case needed to proceed to trial.
Viva Castro!
 For a copy of the Appellate Division's decision, please use this link: Castro v. City of New York Dept. of Educ.
 In Bello v. New York City Transit Authority, the New York City Transit Authority (NYCTA) challenged the recovery awarded to 7-year old Vidal Bello, who was hit by a NYCTA bus driver.
Bello was standing on the curb with a bunch of "rowdy children," when he was pushed into the street and hit by the driver. In addition to fractures to his tibia and fibula, Bello suffered "significant scarring and deformity," and now "walks with a limp" -- which doctors speculated would "get progressively worse as he grows."
After trial, the Bronx County Supreme Court awarded Bello present and future damages totaling $1.5 million.
On appeal, the Appellate Division, First Department, found the driver "should have pulled in further from the curve" and didn't exercise the "proper use of his senses." And since the amount awarded didn't "deviate materially from reasonable compensation," the outcome was affirmed.
Here the AD1 made proper use of its sense by not throwing young Bello a curve ....
 To download a copy of the Appellate Division's decision, please use this link: Bello v. New York City Transit Authority
 In Fairclough v. All Service Equipment Corp., Tania Fairclough, a sous chef at a Manhattan Houston's Restaurant, filed suit against All Service Equipment after suffering burns caused by a faulty stove burner grate.
Houston's had a contract with All Service to inspect all food equipment installed on the premises and, a week prior to the accident, a technician hadn't detected any problem.
When the Bronx County Supreme Court denied All Service's request to dismiss the case, the company appealed to the Appellate Division, First Department.
The AD1 found that All Service would only owe a duty to Tania if the company had created an "unreasonable risk of harm," if she had reasonably relied on that contractor's performance, or, if All Service had taken over Houston's "duty to maintain the premises safely."
As the facts of this case didn't fit into any one of those categories -- and because Tania failed to alert the technician of the broken grate a week earlier -- that was a recipe ... for the lawsuit's dismissal.
 To download a copy of the Appellate Division's decision, please use this link: Fairclough v. All Service Equipment Corp.
 In Brookner v. New York Roadrunners Club, Inc., Larry Brookner was injured while running the 2004 ING New York City Marathon.
Before the event, Brookner signed a release form wherein he relinquished the right to sue the New York Roadrunners Club for any injuries sustained while participating in the marathon due to the Club's "ordinary negligence." When he later filed a personal-injury lawsuit, Brookner argued that the release was invalid, because he was required to pay an "entry fee" to run the course -- which was a "City-owned public roadway."
After the Kings County Supreme Court sided with Roadrunners (and the City of New York) and dismissed the case, Brookner appealed.
The Appellate Division, Second Department, concluded the entry fee was merely for Brookner's "participation" in the event, not a charge for use of the public roadways. And, since Brooklyn's streets couldn't be considered a "place of amusement or recreation," the Club couldn't be held liable for negligence.
Let's just say, we agree our City's streets are far from amusing.
 To download a copy of the Appellate Division's decision, please use this link: Brookner v. New York Roadrunners Club, Inc.
 In Sanatass v. Consolidated Investing Co., Inc., Christopher Sanatass was injured while installing an air conditioning unit in a building owned by Consolidated Investing.
C2 Media (C2) -- a tenant in Consolidated's building -- agreed not to make any changes to the premises without the owner's written consent. Yet, C2 secretly hired Sanatass's employer to install an air-conditioning unit and, because of faulty lifts, Sanatass was "nearly crushed."
Sanatass sued Consolidated under a New York State law which imposes "strict liability" on building owners when laborers employed to perform services are injured. Consolidated argued that since its tenant didn't have permission to make these repairs, C2 was solely responsible for Sanatass's damages. The New York County Supreme Court agreed with that position, as did the Appellate Division, First Department.
On appeal to our state's highest court, the New York State Court of Appeals looked to the Labor Law's legislative history and found the statute clearly intended to hold building owners responsible for most on-site accidents which result in a laborer's injuries. As a result, Consolidated was unable to "escape strict liability" even though it had no "notice or control over the work ordered by its tenant."
In a dissent, Judge Smith rejected such a "literal, mechanical" application of the law and was of the opinion the majority was inappropriately treating the building owner as an "insurer" and wrongfully holding it responsible for the tenant's misconduct.
The law's "strict liability" standard is quite frigid, wouldn't you agree?
To download a copy of the Court of Appeals' decision, please use this link: Sanatass v. Consolidated Investing Co., Inc.
 In Havens v. County of Saratoga, Loretta Havens filed a personal injury lawsuit against the County of Saratoga.
Havens was an inmate at Saratoga County Correctional Facility and was assigned to clean to bathroom tiles and stalls using "soapy water, a sponge, and a Brillo pad." After turning on a shower nozzle to wash out the soap, to avoid getting wet, Haven ran out of the stall, slipped and injured her hand.
Not only did the County admit that the shower stall's layout exposed Havens to a wet surface, but prison officials failed to discourage the inmates' practice of running out of the shower after turning on the water.
When the Saratoga County Supreme Court granted the County's motion to dismiss the case, and found Havens solely responsible for her injuries, Havens appealed to the Appellate Division, Third Department, which reversed.
The AD3 didn't think that Saratoga established an entitlement to dismissal, nor was the activity of running across the wet floor reckless enough to excuse the County from liability.
This time, it looks like Havens will get showered with cash.
 To download a copy of the Appellate Division's decision, please use this link: Havens v. County of Saratoga
 In DiGiose v. Bellmore-Merrick Cent. High School Dist., Nicole DiGiose was participating in cheerleading practice at Bellmore-Merrick Central High School, when another cheerleader fell without warning and knocked DiGiose to the floor.
DiGiose alleged that the school negligently allowed the team to practice without adequate supervision and on a floor which wasn't covered with protective mats.
When the Nassau County Supreme Court refused to dismiss the case, the school appealed to the Appellate Division, Second Department, which found Nicole knew of the risks and consented to the activity.
Even when risks are apparent, and consented to, a school must still use "ordinary reasonable care" to protect its students. In this instance, Nicole's case faltered because her expert presented "speculative and conclusory opinions" as to the school's purported negligence.
Jeez, DiGiose!
 To download a copy of the Appellate Division's decision, please use this link: DiGiose v. Bellmore-Merrick Cent. High School Dist.,
 In Matter of Progressive Northeastern Ins. Co. v. Scalamandre, Progressive wanted to stop the arbitration of an uninsured motorist claim.
Maria Scalamandre was injured when she was hit by the driver of an uninsured all-terrain vehicle or ATV. When Scalamandre submitted a demand for arbitration seeking uninsured motorist benefits from her insurer, Progressive countered with a lawsuit claiming that an ATV wasn't an "uninsured motor vehicle."
After the Suffolk County Supreme Court sided with the company's position, Scalamandre appealed to the Appellate Division, Second Department, which found that the policy excluded ATVs from the definition of "motor vehicles."
Had the ATV been a three wheeler, it might have been considered a "motorcycle" entitling Scalamandre to coverage. However, this particular ATV was a four-wheeled vehicle which didn't fit within the law's definition or the policy's coverage parameters.
No pay dirt there.
 To download a copy of the Appellate Division's decision, please use this link: Matter of Progressive Northeastern Ins. Co. v. Scalamandre
 In Fleming v. Graham, Cedric Fleming was injured when the van in which he was riding collided with a school bus driven by an employee of Evergreen Bus Service.
Fleming sustained scars on his forehead and right upper eyelid and it was unclear whether his scars were correctable. Since New York's Workers Compensation Law allows injured workers to file a negligence case when they suffer "permanent and severe facial disfigurement," the Kings County Supreme Court denied his employer's request to dismiss the case, citing "issues of fact" On appeal, the Appellate Division, Second Department, affirmed.
When the dispute reached our state's highest court, the New York State Court of Appeals found Fleming's injuries didn't meet the law's "severity" standard because his scarring wasn't shocking, unsightly, nor detrimentally altered his "natural beauty, symmetry or appearance."
Beauty was in the eyes of those beholders.
 For a copy of the Court of Appeals' decision, please use this link: Fleming v. Graham
 In Riley v. City of New York, Ronald Riley was injured when he tripped over a slightly elevated cellar door.
Riley had traveled over that same sidewalk on a daily basis and the incident occurred in broad daylight.
The Bronx County Supreme Court dismissed the case because it found the elevated door was a "trivial defect," which wasn't actionable.
On appeal, the Appellate Division, First Department, agreed since the area in question wasn't a "trap or nuisance."
Three guesses who got real riled up over that.
 For a copy of the Appellate Division's decision, please use this link: Riley v. City of New York
 In Bermel v. Dagostino, James Bermel sued Jason Dagostino for injuries suffered in an auto accident.
Dagostino made a number of requests for Bermel's medical records in order to determine whether the plaintiff suffered from a preexisting medical condition. Bermel's failure or refusal to respond prevented Dagostino from scheduling independent medical examinations (or IMEs) because the records were necessary to establish whether the accident had caused Bermel's injuries. Once Dagostino finally received the records he tried to schedule the IMEs, but Bermel again refused to cooperate.
When Dagostino asked the New York County Supreme Court to force Bermel to appear for the IMEs, that request was denied (probably because the applicable discovery deadlines had passed).
On appeal, the Appellate Division, First Department, reversed, finding that under these particular circumstances, Dagostino demonstrated "unusual and unanticipated circumstances" which warranted compelling Bermel to appear for the IMEs.
With that, Dagostino handed Bermel the bag.
 To download a copy of the Appellate Division's decision, please use this link: Bermel v. Dagostino
 In Swiderska v. New York University, Eugenia Swiderska sued New York University pursuant to Labor Law section 240(1) for injuries she sustained while cleaning some large dorm windows.
Before undertaking the task, Eugenia supposedly asked for a ladder but was told to use the existing furniture. While standing on a bed, Eugenia fell and suffered "multiple fractures and other injuries."
When the New York County Supreme Court dismissed her case -- finding Eugenia was engaged in "routine maintenance" and thus not covered by the law -- she appealed to the Appellate Division, First Department, which affirmed.
When the case reached our state's highest court, the New York State Court of Appeals concluded that Eugenia was entitled to relief in her favor, particularly since she had been subjected to an "elevation-related risk" when directed to climb upon furniture to perform her job and wrongfully denied "a ladder, scaffold or other safety device."
Looks like Eugenia will be the one cleaning up here!
To download a copy of the Court of Appeals' decision, please use this link: Swiderska v. New York University
 In Norton v. Nguyen, Jamie Lee Norton and her husband filed a medical malpractice case against Nathan Littauer Hospital and Nursing Home and Patricia Nguyen, a hospital obstetrician, for failing to properly diagnose (prior to discharge) that Jamie Lee was suffering from an infection.
Jamie Lee had given birth to a child at the hospital, and Nguyen performed the delivery. The day after she was released, Jamie Lee was readmitted with a severe streptococcal infection which required the removal of her reproductive organs.
After a jury trial, Jamie Lee was awarded $1 million for past pain and suffering and $4 million for 57 years of future damages. Her husband, Douglas, received $250,000 for past pain and suffering and $500,000 for future damages. When the Nortons protested the outcome, the Fulton County Supreme Court reduced Jamie Lee's future-damage component from $4 million to $2 million and Douglas' $500,000 award to $250,000. Of course, an appeal ensued.
The Appellate Division, Third Department, was of the opinion that Douglas' damage awards were still too generous. Since Douglas failed to provide "testimony that his marital relations had been affected by his wife's injuries," he was awarded only $100,000 for past pain and suffering and $100,000 for future pain and suffering.
Not a very productive appeal.
To download a copy of the Appellate Division's decision, please use this link: Norton v. Nguyen
 In Simmons v. Neuman, Louise Simmons filed suit to recover damages for medical malpractice, alleging that she suffered burns to her right thigh during surgery on her right shoulder.
Invoking the doctrine of res ipsa loquitor, Simmons asked the court to rule in her favor on the issue of liability. She claimed that she was burned by an item interchangeably identified as a “Bovie apparatus,” a “Bovie device,” and “Bovie Pads.” When the Kings County Supreme Court denied her request, Simmons appealed to the Appellate Division, Second Department, which was equally unsympathetic. The AD2 noted that since the doctrine of res ipsa loquitor relies largely on circumstantial evidence, a plaintiff isn’t ordinarily entitled to summary judgment or a directed verdict. Rather, a party receives that kind of relief “'when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.'” Here, the governing standard wasn't met, since there were missing factual allegations concerning the surgery itself, and no description or explanation of the so called “Bovie apparatus.” We're reluctant to dissect this any further. To download a copy of the Appellate Division’s decision, please use this link: Simmons v. Neuman
 In Coston v. McGray, Willie Coston filed suit to recover damages for cervical and spinal injuries he suffered as a result of two motor vehicle accidents.
In order to win his case, Willie was required to prove he sustained “serious injuries” within the meaning of state law -- Insurance Law 5102(d) -- which requires a plaintiff to present evidence supporting a “causal relationship” between the injuries and the accident at issue. While Willie submitted an independent medical examiner’s report, which detailed cervical and spinal damage, he acknowledged that a prior fall and accident had caused significant back injuries. The Ulster County Supreme Court dismissed the case, finding that Willie hadn’t met the law's threshold because other factors had “interrupted ‘the chain of causation between the accident and the claimed injury.’” On appeal, the Appellate Division, Third Department, was equally unsympathetic to Willie’s posture. They clearly didn't have his back covered. For a copy of the Appellate Division’s decision, please use this link: Coston v. McGray
 In Colon v. Chelsea Piers Management Inc., Rose Colon filed suit to recover damages for the wrongful death of her 21-year-old relative who suffered cardiac arrest and died while playing basketball at Chelsea Piers.
When the defendants sought to have the case dismissed, Colon submitted an expert’s affidavit in opposition to the request, but the King County’s Supreme Court refused to accept the statement because Colon had “failed to identify the expert during pretrial disclosure.” On appeal, the Appellate Division, Second Department, was of the opinion that even if the admissibility issue had been ignored, the expert’s affidavit was still deficient since it still failed to address “whether the defendants violated industry custom by failing to provide … an automatic external defibrillator.” As a result, Colon’s case could not be resuscitated.* Will Colon seek an assist from the Court of Appeals? 
To download a copy of the Appellate Division’s decision, please use this link: Colon v. Chelsea Piers Management Inc. *A State law statute requiring an automatic defibrillator in health clubs wasn’t in effect at the time of this young man’s death.
 In Greenstein v. R & R of G.C., Inc, Pamela Greenstein was injured when she slipped and fell in a Wendy’s restaurant.
Greenstein alleges that she slipped and fell on a greasy spot near the joint's condiment section. When the Nassau County Supreme Court granted Wendy's request to dismiss the case, Greenstein appealed to the Appellate Division, Second Department, which reversed and reinstated the case. The AD2 was of the opinion that Wendy’s failed to establish it neither created nor had actual or constructive notice of the condition that caused the fall. Apparently, the restaurant manager’s testimony was inadequate because he hadn’t been present on the day of the incident and lacked personal knowledge as to what had transpired. Wendy’s evidence didn’t exclude the possibility that the greasy spot (where Greenstein allegedly fell) had been caused by an employee’s use of the wrong mop shortly before the accident. Does this make Wendy’s a greasy spoon? To download a copy of the Appellate Division’s decision, please use this link: Greenstein v. R & R of G.C., Inc
 In Summers v. Teddy Cab Corp., James Summers was injured when he was hit by a car owned by Teddy Cab Corp.
After colliding with Summers' motorcycle, Teddy's driver admitted he changed lanes without determining whether he could safely do so. When the Kings County Supreme Court found Teddy liable for the accident, the company appealed to the Appellate Division, Second Department. Since Teddy was unable to show that Summers was somehow at fault for the accident, the AD2 affirmed the lower court's finding of liability. Undeniably, this Teddy was exposed. For a copy of the Appellate Division’s decision, please use this link: Summers v. Teddy Cab Corp
 In Wosner v. Elrac Inc., Moshe Wosner was seriously injured in a vehicle rented by Joel Leibowitz under a long-term lease with Elrac Inc.
While the accident occurred in New Jersey, both occupants — Wosner and Leibowitz — lived in New York. Things got a bit more complicated because the other driver was a Pennsylvania resident, and Leibowitz’ rental car was registered and insured in New Jersey by Elrac (a Delaware Corporation with New Jersey headquarters). Yet, when litigation ensued, the New York County Supreme Court found that New York law governed, and Elrac’s request that Jersey law be applied was denied. On appeal, the Appellate Division, First Department, noted that “when the driver-host and the passenger-guest share a common domicile, the law of that state generally controls.” Interestingly, the AD1 viewed the fact that the accident occurred in Jersey as unavailing since the Wosner and Leibowitz “were traveling between two New York locations” and “happened to pass” into another state. Now how fortuitous was that? To download a copy of the Appellate Division’s decision, please use this link: Wosner v. Elrac Inc.
 In Crooms v. Sauer Bros. Inc, James Crooms filed a personal injury lawsuit after he fell in the backyard of Sauer Brother’s apartment building.
Crooms fractured his left foot’s metatarsal bone and developed a deep vein thrombosis from the cast. In addition, Crooms’ ankle and spine injuries required two surgeries. After a jury trial, the Bronx County Supreme Court awarded Crooms a lowly $75,000 for past pain and suffering and zilch for future pain and suffering. During the trial, Crooms was questioned about an affirmation he had signed in connection with an auto accident that happened after his fall and repeatedly testified that the affirmation was “erroneous.” Although Crooms sought to offer into evidence a police report and other documents which would bolster his testimony, the trial court rebuffed that effort since the issue was “collateral” and only spoke to credibility. Crooms appealed to the Appellate Division, First Department, arguing that he should have been permitted to prove he hadn’t been in an auto accident after his fall so as to avoid any speculation by the jury. He further asserted that the jury’s verdict was “against the weight of the credible evidence” and materially deviated from “reasonable compensation.” The AD1 concluded that the dispute over his affirmation was a “collateral matter,” as it had no relevance to “any issue in the case, other than credibility.” At no point did any questioning suggest that Crooms’ injuries were caused by the auto accident; rather, during the summation, defendant's counsel reinforced that the document had been offered to show Crooms had signed a false statement. The appellate court further held that because Crooms made a full recovery, with no disability or permanent injury, there was sufficient evidence to support the jury’s decision to deny him any compensation for future pain and suffering. With that, Crooms was handed crumbs. To download a copy of the Appellate Division’s decision, please use this link: Crooms v. Sauer Bros. Inc
 In Martinez v. Pioneer Transp. Corp., Gladys Martinez and Juan Rivera (plaintiffs) sued Pioneer Transportation after they were hit by one of the company's school buses.
Although Martinez and Rivera were taken to the hospital and released later that day, Martinez lost three months’ of work, while Rivera missed two months of school. Yet, Pioneer argued that the case should be dismissed since the plaintiffs hadn’t suffered a “serious injury.” When the Bronx County Supreme Court granted Pioneer’s motion the plaintiffs appealed. On its review of the record, the Appellate Division, First Department, found that there were unresolved issues which warranted further inquiry. Although some of the medical reports showed no serious injury, others demonstrated that the plaintiffs each had herniated discs and a limited range of motion. Because of that conflicting medical evidence, the AD1 was of the opinion that Pioneer wasn’t entitled to the lawsuit’s dismissal. Now that’s serious! | | |
