Labor Law 240: Guizzotti v. Advanced Gutter Sys., Inc. (N.Y. Sup. Ct., Erie Co.)

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by Robert D. Leary, Esq. and Anant Kishore, Esq.


In Guizzotti, plaintiff alleged he fell off a ladder while he was performing gutter replacement work for a subcontractor retained by defendant.  Because the accident was unwitnessed, plaintiff provided the only account of how the accident allegedly occurred.  In opposition to plaintiff’s motion on the Labor Law 240 claim, defendant pointed out several inconsistencies within plaintiff’s testimony, including details about the mechanics of the accident (i.e., whether the ladder “kicked out” or “twisted,” or whether the left foot fell into a crevice); the height from which plaintiff allegedly fell (i.e., 8 feet, 10 feet, or 15 feet); and the surface onto which plaintiff landed (i.e., path stones or grass).


Defendant also pointed out inconsistencies between the testimony of plaintiff and his supervisor as to the aftermath of the accident, including whether plaintiff was on the ground in pain and required his supervisor’s assistance in getting up (per plaintiff), or whether the supervisor did not know plaintiff fell until plaintiff later told him so, never saw plaintiff on the ground, and never helped plaintiff up (per plaintiff’s supervisor). In addition, Defendant pointed out that the metadata of certain digital photographs (produced by plaintiff) depicting a ladder standing upright at the site suggest that plaintiff misrepresented certain facts as to whether the ladder fell down.  Defendant argued that, despite the lack of any proof supporting an alternate theory of the unwitnessed accident, all of the inconsistencies in plaintiff’s testimony, taken together, and bolstered by the metadata issues with plaintiff’s photographs, put plaintiff’s credibility at issue and prevent summary judgment on plaintiff’s Labor Law 240 claims.  The Supreme Court, Erie County, denied plaintiff’s motion for summary judgment, finding questions of fact as to who placed the ladder at the site, the circumstances surrounding the fall, and a possibility that the fall may not have occurred.

Motor Vehicle Accident: Furch v. Klinger (N.Y. Sup. Ct., Monroe Co.)

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by Nelson E. Schule, Jr., Esq.


In Furch, a 53-year-old male plaintiff sought damages for injuries, including multi-level lumbar fusion surgery, allegedly sustained as a result of a three-vehicle chain-reaction collision in the Town of Perinton.  There were competing theories as to how the accident occurred.  At trial, plaintiff testified that he was rear-ended twice:  first, a hard hit by the car immediately in line behind him driven by the defendant, followed by a second, less intense impact from defendant’s vehicle when she was hit from behind by a third party.  Plaintiff also offered the supporting testimony of an accident reconstruction expert.  Defendant then testified that she was indeed following behind plaintiff, and that she had to stop abruptly when the vehicle in front of plaintiff stopped to make a right hand turn, but that she did not hit plaintiff, having come to a rest approximately five feet behind him, and only then experienced a later impact from behind, which pushed defendant into the rear of plaintiff’s vehicle.  Defendant also offered the jury the testimony of an expert witness supporting her version of the accident.  Finally, the third party who collided with the defendant testified candidly that she was the cause of the accident.


The jury returned a verdict finding the defendant negligent, but found that her negligence was not a substantial factor in causing the accident.  The Supreme Court, Monroe County, denied plaintiff’s motion to set aside the verdict on the grounds that, pursuant to Berner v. Little, 137 A.D.3d 1675 (4th Dept. 2016),  where a jury is offered two inconsistent explanations for the occurrence of an accident, the decision to select which explanation best fits their view of the evidence (including the credibility of witnesses) properly belongs to the jury.  Given that the jury in this case was presented with conflicting evidence as to how this accident happened, the Court saw no reason to disturb the jury’s verdict.


Motor Vehicle Accident: Law v. Romano (N.Y. Sup. Ct., Niagara Co.)

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by Aalok J. Karambelkar, Esq.

In Law, the plaintiff, a passenger in Frank Galloway’s vehicle, brought claims against Mr. Galloway and Mr. Romano for injuries sustained as a result of a motor vehicle accident at an intersection controlled by a four-way stop sign in the City of Niagara Falls.  Despite Mr. Romano’s presence at the intersection being confirmed by two credible non-party witnesses (i.e., a Niagara Falls Police Officer and Fire Department Battalion Chief, who were incidentally stopped at the same intersection when the accident occurred), Mr. Galloway admitted he never saw Mr. Romano’s vehicle prior to the impact.  Mr. Galloway and Mr. Romano asserted cross-claims against each other, each claiming the accident occurred a result of the other’s negligence.


In a bifurcated trial, the jury returned a verdict in favor of Mr. Galloway, finding Mr. Romano was 100% negligent in causing the accident.  Despite Mr. Galloway’s failure to see Mr. Romano’s vehicle before proceeding into the intersection, the jury found that Mr. Galloway’s negligence was not a substantial factor in causing the accident because Mr. Galloway nonetheless had the right-of-way under New York Vehicle and Traffic Law section 1142(a).  Witness testimony and the point of impact on Mr. Galloway’s rear door established that Mr. Galloway had arrived at the intersection prior to Mr. Romano and entered the intersection prior to Mr. Romano, and that Mr. Romano was required to yield the right-of-way to Mr. Galloway as a matter of law.

Motor Vehicle Accident: Gift v. Dise (N.Y. Sup. Ct., Monroe Co.)

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by Aalok J. Karambelkar, Esq.


In Gift, plaintiff claimed she sustained serious injuries as a result of a rear-end motor vehicle accident.  The plaintiff’s claims included aggravation of a prior cervical condition, neck pain, cervical sprain, whiplash, and bilateral carpal tunnel syndrome requiring bilateral carpal tunnel release surgeries. Plaintiff claimed “serious injury” under the permanent loss of use, permanent consequential limitation, significant limitation, and 90/180 categories under Section 5102(d) of the New York Insurance Law.


Defendant moved for summary judgment on the grounds that plaintiff did not sustain a qualifying “serious injury” as defined by the statute.  The Supreme Court, Monroe County, granted defendant’s motion, dismissing the case in its entirety.  Specifically, the Court found defendant’s medical expert provided evidence of preexisting bilateral carpal tunnel syndrome and an extensive history of cervical spine injury, concluding the accident only caused a temporary mild exacerbation of ongoing neck pain.  The Court also found plaintiff failed to plead (or set forth any claim in her bill of particulars as to) an exacerbation of preexisting carpal tunnel.  The Court also found plaintiff’s symptoms of cervical range-of-motion deficits were not causally connected to the accident but instead stemmed from pre-existing conditions, as medical records showed she was on disability for the condition prior to the accident and she was involved in prior accidents involving the cervical spine.  The Court also held that plaintiff’s testimony that she “stayed in bed a lot” following the accident was insufficient to raise a question of fact regarding the 90/180 category, as that category requires a medically-determined injury or impairment that prevented her from performing her daily activities, whereas here the plaintiff’s limitations were subjective and belied by medical records generated during the statutory period.


On oral argument, the Court also took issue with the fact that plaintiff did not submit an affirmed opinion regarding the categories of “serious injury” claimed, instead relying on certified medical records to raise a question of fact.  Pursuant to Irizarry v. Lindor, 110 A.D.3d 846, 847 (2d Dept. 2013) and Parmisani v. Grasso, 218 A.D.2d 870 (3d Dept. 1995), the Court held that even if medical records are properly before the Court, the opinions and conclusions contained within those medical records are not properly before the Court unless affirmed or sworn to under penalty of perjury.  The Court also found the medical records insufficient in that the records themselves did not speak to whether plaintiff’s injuries met the threshold for the claimed categories of “serious injury.”

Motor Vehicle Accident: Cicco v. Durolek (N.Y. Sup. Ct., Niagara Co.)

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by Patrick S. Kenney, Esq.


In Cicco, the plaintiff alleged a motor vehicle accident aggravated a pre-existing low back condition, and that as a result he was unable to work or care for his child, that he was required to move in with his parents, and that his treating physician had recommended surgery.  Plaintiff asserted claims for past and future wages, past and future medical expenses, and economic loss in excess of basic economic loss.


At trial, plaintiff repeatedly attempted to introduce non-testifying treating physicians’ opinions and medical records through a testifying doctor.  Plaintiff argued that the opinions of non-testifying treating physicians could be presented to the jury through the testimony of a testifying treating physician, essentially by reading those opinions into evidence as set forth in the non-testifying physicians’ medical records.  Defendant objected to the introduction of the non-testifying physicians’ hearsay opinions and records, citing Wagman v. Bradshaw, 292 A.D.2d 84 (2d Dept. 2002) and pointing out that plaintiff’s counsel was free to call the additional treating physicians as witnesses but chose not to do so.  The Court sustained defendant’s objections, refusing to permit the records from being introduced into evidence and preventing the opinions from being read to the jury.


Also at trial, defendant challenged plaintiff’s credibility by showing that contrary to his testimony, plaintiff failed to be truthful and honest with his post-accident physicians about his prior history.  Defendant also established through the use of social media that contrary to plaintiff’s testimony, he maintained an active social life.  After establishing plaintiff’s credibility issues, defendant cross-examined an IME doctor, who then admitted that his previously stated opinions as to causation (favoring the plaintiff) would change if it was shown that plaintiff was not truthful and honest in reporting his prior history and subjective complaints.


The jury concluded plaintiff was not credible, and rendered a verdict in favor of defendant, finding plaintiff did not sustain an aggravation of his prior back injury as a result of this motor vehicle accident.

Motor Vehicle Accident: Haag v. Adams (N.Y. Sup. Ct., Onondaga Co.)

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by Brent C. Seymour, Esq.


In Haag, there were two competing versions of the facts as to a three-car accident that occurred on Route 481-S near Syracuse, New York.  According to the the driver of the middle car, plaintiff Ms. Haag, she was initially able to bring her vehicle to a stop behind the first vehicle driven by Ms. Granzow, and was only propelled into Ms. Granzow’s vehicle when rear-ended by the rear-most car driven by defendant Mr. Adams.  However, Mr. Adams testified that Ms. Haag was involved in a large rear-end collision with Ms. Granzow, that his vehicle was hit with debris from that first accident, and that he was unable to avoid striking the rear-end of Ms. Haag’s vehicle.  Although Mr. Adams admitted he did strike the rear-end of Ms. Haag’s vehicle, he stated this was a minor impact and that he was only going a few miles an hour at the time.  Ms. Granzow was dismissed from the case upon dispositive motions.


At a bifurcated negligence-only trial, the Supreme Court, Onondaga County, heard testimony from all three drivers, as well as from the responding police officer.  Plaintiff’s accident reconstruction expert, Mr. Camerato, then testified that due to the damage patterns of each vehicle, plaintiff’s version of the events was the more likely scenario.  Defendant’s consulting accident reconstruction expert, Mr. Puckett, reviewed Mr. Camerato’s reports and ran the various scenarios in his own system, assisting in defendant’s cross-examination of Mr. Camerato.  After hearing all of the proof, the jury returned a unanimous verdict that Mr. Adams was not negligent.  Since Mr. Adams admitted he struck the rear-end of the middle vehicle operated by Ms. Haag, it appears the jury accepted Mr. Adams’ defense based on the emergency doctrine — i.e., that there was a large collision between the first and second vehicles and that Mr. Adams could not avoid colliding with the second vehicle due to the sudden nature of the first impact and the debris that hit Mr. Adams’ vehicle.

Motor Vehicle Accident: Polak v. Glassman (N.Y. Sup. Ct., Erie Co.)

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by Melissa A. Foti, Esq.


In Polak, plaintiff sought damages for injuries she allegedly sustained in a rear-end motor vehicle accident near a toll barrier on the New York State Thruway.  Plaintiff alleged low back and neck injuries including two herniated lumbar discs, lumbar radiculopathy ultimately requiring a triple-level lumbar fusion with instrumentation, bladder control issues due to the lumbar disc injury, several cervical herniations with the need for future cervical surgery, and migraines.  Plaintiff claimed “serious injury” under the permanent consequential limitation, significant limitation, and 90/180 categories under Section 5102(d) of the New York Insurance Law.


At trial, plaintiff argued to the jury that the defendant was negligent and that the accident caused her injuries, including the need for back surgery and recommended neck surgery.   Defendants argued this was a low-speed impact with minimal damage to plaintiff’s vehicle, and that plaintiff’s complaints were due to her longstanding, documented, prior degenerative condition in her lumbar and cervical spine.


The trial included seven days of proof from many witnesses.  As to negligence witnesses, plaintiff called herself and the reporting State Trooper, while defendants called the driver of the motor vehicle.  As to damages witnesses, plaintiff called several physicians (including both of her treating chiropractors and her treating neurosurgeon) to testify as damages witnesses.  Plaintiff also subpoenaed a physician who had conducted a No-Fault IME and whose testimony was video-recorded prior to the trial; however, plaintiff chose not to play the video for the jury.  Plaintiff also called her nephew, who testified that the injuries resulting from this accident altered plaintiff’s personal life.  Plaintiff also called the mechanic who repaired the defendant’s vehicle to testify about the actual cost of the repair versus what was on the invoice, arguing that the property damage was more severe than reflected.   Defendants also called damages witnesses including an independent medical doctor/neurosurgeon, a radiologist, and a biomedical expert.  Defendants also played the video testimony of the No-Fault physician.


After less than an hour of deliberation, the jury found the defendant was negligent for the accident, but that the plaintiff did not sustain a qualifying “serious injury” as defined by Section 5102(d) of the New York Insurance Law, under any category alleged (i.e., finding 5-1 as to no significant limitation and unanimously as to the permanent consequential limitation and 90/180 categories).

The New “Ride Sharing” Law in New York State

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by David M. Goodman, Esq.


As a result of a final budgetary push in Albany last April, ridesharing finally made its way to Upstate New York this year.  Buffalo, Rochester, Syracuse, and Binghamton now have the benefit of ridesharing opportunities like Uber and Lyft that were previously only available in the New York metropolitan area.  As a result, more claims will be presented involving a ridesharing component.  However, although the enabling statutes are in place, many of the particular rules, regulations, and other details for this new area of law are still a work in progress.


Understanding the Language


Uber and Lyft are referred to as “Transportation Network Companies” (TNC).  A TNC is licensed and operates in New York State and uses only a digital network (i.e., app) to connect “TNC passengers” to “TNC drivers” who operate a “TNC vehicle” to provide a “TNC prearranged trip.”  A TNC prearranged trip begins when a TNC driver accepts a TNC passenger’s request through use of the digital network controlled by the TNC.  The trip begins at the moment of acceptance, and ends when the last requesting passenger departs the TNC vehicle.  The nexus of the process is the TNC digital network:  a TNC driver receives connections to potential passengers and related services through the app, and a TNC passenger uses the app to arrange for transportation.


Insurance Coverage


TNC drivers are not employees of the TNC and are using their own motor vehicles.  The TNC is not the owner or operator of the vehicle and is not the employer of the TNC driver.  This structure does not fit within the existing framework for insurance coverage and motor vehicle liability law in New York State.  The TNC law thus presents a new paradigm:  no vicarious liability can be attributable to the TNC for the potential negligent acts of the TNC driver, and the TNC driver is an independent contractor whose own auto policy may not cover TNC activities.


So, where does coverage come from?  The TNC statute creates and establishes financial responsibilities for TNCs and drivers.  The TNC is mandated to provide a “group policy” that recognizes the TNC driver and provides financial responsibility while the driver is both logged into the TNC’s app and engaged in a TNC prearranged trip.


The “group policy” is fundamental.  The group policy includes mandatory bodily injury, property damage, no-fault, uninsured motorist, supplementary uninsured/underinsured motorist, and motor vehicle physical damage coverages.  The driver’s own insurance carrier(s) can provide an additional layer of coverage in the form of TNC endorsements and TNC umbrella coverage (should the driver choose to purchase same), and carriers are now offering coverage to TNC drivers to be purchased as an add-on to their existing automobile policies, but the TNC group policy is mandatory.  The statute provides for both first-party and third-party benefits under the TNC group policy.  Coverage under the group policy is not conditioned upon an unavailability of coverage from the driver’s insurer; rather, it is understood that the driver’s insurer may in fact exclude all TNC coverage.


Standard no-fault coverage under the group policy is applicable to any passenger or pedestrian involved in a TNC transaction.  The statutory scheme for liability coverage is as follows:


  • During “Phase I,” when the TNC driver is logged into the app but has not yet received a passenger request, coverage is $75,000/$150,000.


  • During “Phase II,” when the driver accepts a request and is heading toward pick-up, there is a single liability limit of $1,250,000.  The same limit is provided for SUM/UIM coverage.


  • During “Phase III,” when the driver is actually transporting passengers (e., from the moment of pick-up to the moment that the last passenger departs the vehicle), the same liability limits apply as for Phase II.


The TNC must also offer workers compensation insurance to a TNC driver under the New York Black Car Operators’ Injury Compensation Fund.


The Superintendent of the New York State Department of Financial Services has yet to promulgate rules to address a number of questions.  For example, it is common for TNC drivers to work for both Uber and Lyft simultaneously.  It is uncertain what coverage may apply when a driver is logged into multiple TNC networks simultaneously but has not yet engaged a TNC prearranged trip (i.e., during Phase I), or when a driver has engaged with one TNC (e.g., Uber) but still has the app open for another TNC (e.g., Lyft).  Another significant question is when a TNC’s involvement may be identified after an accident.  The TNC statute sets disclosure requirements and provides for the establishment of an information exchange.  The statute also provides that the TNC driver’s name and operating license number must be on the passenger’s e-receipt.


Within a very brief time, Uber and Lyft have become ubiquitous in Upstate New York.   As more claims are presented that have a ridesharing component, this area of the law will continue to be developed.  Having a foundation of the process is critical to understanding what will undoubtedly be a growing area of both tort and coverage law.

Motor Vehicle Accident: Harris v. Campbell (N.Y. App. Div., 4th Dept.)

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by Aaron M. Adoff, Esq.


In Harris, plaintiff commenced suit seeking damages for injuries sustained when her vehicle was rear-ended by a vehicle owned and operated by defendant.  At trial, the Supreme Court, Erie County, limited the testimony of one of plaintiff’s treating physicians.  While the physician testified he also had a Ph.D. in biomechanical engineering and that he often relies on his engineering background in his medical practice, no expert disclosure had been provided.  A jury then returned a verdict in favor of defendant, and the Supreme Court, Erie County, entered a judgment dismissing the complaint.  Plaintiff appealed.


The Fourth Department affirmed, holding the Supreme Court had properly sustained defendant’s objections to a line of questioning pertaining to biomechanics (i.e., regarding the amount of force needed to cause a lumbar injury), inasmuch as defendant had not received notice that the treating physician relied on his engineering background to support his opinions and conclusions about plaintiff’s injuries.

Insurance Coverage: Celani v. Allstate Indem. Co. (N.Y. App. Div., 4th Dept.)

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by Jessica L. Foscolo and Adam R. Durst


In Celani, the plaintiff sought coverage under her father’s homeowners policy for her bodily injuries sustained in connection with an accidental shooting involving a gun owned by the named insured father.  Allstate disclaimed coverage on the basis that bodily injury to an “insured person” was not covered and the daughter qualified as an “insured person” because she was a relative of her father and a “resident” of the father’s household.  Plaintiff filed suit and moved to compel the disclosure of Allstate’s entire claim file, including a pre-disclaimer coverage opinion authored by outside counsel, pre-disclaimer claim notes related to that coverage opinion, Allstate’s claim manual, and information concerning Allstate’s reserves for the accident.  The Supreme Court, Erie County, granted the motion to compel and denied Allstate’s cross-motion for a protective order.


The Fourth Department reversed and modified the Supreme Court’s order, holding that the coverage evaluation and the related claim notes were “absolutely privileged” and that the Supreme Court abused its discretion in ordering their production.  Specifically, the Fourth Department held the coverage evaluation was privileged because it was a document of primarily legal character prepared by an attorney made to furnish legal services, and confirmed that the privilege existed regardless of the fact that there was no litigation pending at the time counsel’s opinion was rendered.  The Fourth Department further held that Allstate’s reserve information was not discoverable because it was not “material and necessary” to the coverage action.  Finally, the Fourth Department held the Supreme Court abused its discretion in ordering the production of Allstate’s claim manual, as an Allstate employee had testified that the manual did not define the term “resident” and therefore the Court should have reviewed the claim manual in camera to determine whether it was relevant to the issues in the coverage action.