Bridge the Gap

Home , Maurice Gibb

NYCLA CLE I NSTITUTE Board for a maximum of 8.5 Transitional and Non-Transitional for amaximum Board and Non-Transitional 8.5 Transitional of This course has been approved inaccordance with the requi

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P DMITTED ROGRAM Bob Genis Robert Kelner Lawyers’ Association New YorkCounty DAY scheduled for July20, 2012. scheduledfor Mound Wollan Cotton&Greengrass , Everest National InsuranceCompany Everest National Faust GoetzSchenker&BleeLLP FACULTY: , Sonin &GenisEsqs. TRANSITIONAL MCLEC TRANSITIONAL rements ofthe New York Stat , A

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G EWLY AP e Continuing Legal Education R EDITS:

Information Regarding CLE Credits and Certification Bridge the Gap Day Two July 20, 2012 9:00AM to 5:00PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

New York Bridge the Gap July 20, 2012 9:00AM – 5:00PM

AGENDA

9:00 AM – 10:50 AM Twittering Jurors and the Rules of Professional Conduct Ken Labbate, Mound Cotton Wollan & Greengrass Robert Usinger, Everest National

11:00 AM – 12:00 PM Legal Research Dan Jordan, New York County Lawyers’ Association

12:00 PM – 12:30 PM LUNCH

12:30 PM – 2:35 PM Motor Vehicle Litigation Bob Genis, Sonin & Genis, Esqs.

2:45 PM – 5:00 PM Voir Dire Hon. Allen Hurkin Torres, (Ret.) Marisa Goetz, Faust, Goetz, Schenker & Blee Bob Kelner, Kelner & Kelner

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007

Bridge the Gap Friday, July 20, 2012 9:00AM – 5:00PM

COURSE MATERIALS Section

Twittering Jurors and the Rules of Professional Conduct 1 Materials Presented by Ken Labbate, Esq. and Robert Usinger, Esq.

Legal Research 2 Dan Jordan, Esq.

Motor Vehicle Litigation 3 Bob Genis, Esq.

Voir Dire 4 Marisa Goetz, Esq. Bob Kelner, Esq. Hon. Allen Hurkin Torres

Labbate, Kenneth M. Page 1 of 2

Kenneth M. Labbate Partner P: (212)804-4243 F: (212) 344-8066 New York, NY [email protected]

Kenneth M. Labbate concentrates his practice in the defense of complex civil litigations including disputes arising from professional, product and general liability claims. He has successfully defended various professionals including accountants, attorneys, insurance agents and brokers, real estate and other miscellaneous professionals.

Mr. Labbate also provides coverage advice to and handles declaratory judgment actions for various insurers analyzing a variety of issues arising under professional liability, property and commercial general liability policies. He also defends construction claims and appears regularly before the United States Department of Labor in the defense of claims for benefits under the Defense Base Act extension of the Longshore and Harbor Workers’ Compensation Act.

Mr. Labbate is admitted to practice in New York and Connecticut and has litigated in federal and state courts throughout the United States. His experience includes jury and bench trials, arbitrations, and appeals. Mr. Labbate is a graduate of the State University of New York at Albany and Hofstra Law School, where he was a member of the Labor Law Journal.

MEMBERSHIPS/HONORS

• Professional Liability Underwriters Society • Council on Litigation Management (CLM) • CLM - Professional Liability Committee • CLM - Worker's Compensation Committee • American Bar Association • Member, Labor Law Journal, Hofstra University School of Law 1990-1991 • Committee Membership - ABA Advisory Panel

SPEAKING ENGAGEMENTS

• Speaker, "Indemnification and Additional Insured Coverage", Insurance Law: The Basics, New York City Bar, November 2011.Speaker, "Indemnification and Additional Insured Coverage", Insurance Law: The Basics, New York City Bar, November • Speaker, "When More than One Insurance Policy May Respond to a Claim - Other Insurance and Excess Insurance," Insurance Law: The Basics, New York City Bar, November 2010. • Presenter, "The Policy Application & Rescission," Insurance Law: The Basics, New York City Bar, November 2009.

ADMISSIONS

New York, 1993 Connecticut, 1993 United States District Court - Southern District of New York United States District Court - Eastern District of New York United States Court of Appeals - Second Circuit

EDUCATION

B.A., State University of New York at Albany, 1989 J.D., Hofstra University School of Law, 1992

http://www.moundcotton.com/print/68 7/16/2012 Labbate, Kenneth M. Page 2 of 2

http://www.moundcotton.com/print/68 7/16/2012 Rob Usinger, Esq. Claims Manager at Everest RE, NYC

Experience Claims Manager at Everest Specialty Underwriters, LLC August 2010 - Present (2 years) Manage a pending of professional liability, D&O and Fidelity Bond claims files, assign professional liability claims to claims professionals, assist underwriting in writing E&O professional liability policies as well as review of D&O policy language, warranties etc., participate in settlement and mediations of claims.

Claims Analyst IV at Chartis Claims April 2007 - August 2010 (3 years 5 months) Analyze, evaluate and settle professional liability, directors and officers, insurance company liability and employment practices claims on both E&O and D&O policies. Participate and travel for mediations to reach settlement of high exposure claims. Promoted from Analyst III to Analyst IV December, 2008. Winner Meritorious Bonus Award, 2009.

Attorney at The Law Offices of John Ciurcina September 2006 - March 2007 (7 months) General Civil Practice responsibilities include writing motions, conducting research and court appearances for, commercial housing court, residential housing court, NYC administrative hearings, supreme court foreclosure actions, federal bankruptcy appearances. Conducted Commercial, residential and civil court trials and argued various motions in all forums.

Attorney at Israel, Israel & Purdy, LLP August 2004 - August 2006 (2 years 1 month) Attorney, argued and wrote motions, conducted depostions and trials, settled cases with insurance carriers

Summer Associate/Law Clerk at Law Office of White May 2003 - April 2004 (1 year) Worked primarily as liaison for insurance defense of personal injury actions and No-Fault litigation arising from automobile accidents. Conducted over two hundred examinations under oath of claimants.

Instructor at Mesivta Ohr Torah Institute February 2001 - June 2001 (5 months) Taught American Government and history to high school students.

Research Assistant/Teaching Assistant at State University December 1999 - January 2001 (1 year 2 months)

Page1 Education Brooklyn Law School J.D., Law, 2001 - 2004

Nelson A. Rockefeller College of Public Affairs and Policy M.A, Political Science/Public Policy, 1998 - 2000

Adelphi University B.A, Political Science, 1994 - 1998

Page2 Twittering Jurors and the Rules of Professional Conduct

Presented by Ken Labbate, Mound Cotton Wollan & Greengrass and Robert Usinger, Everest National The Internet Age

Jurors are now tech‐savvy: Blogging “Twittering” Using Facebook, MySpace, Friendster, etc. Searching Google, And so on… Ethical Questions for Attorneys

• Should an attorney investigate prospective jurors? • Conduct research on jurors during the evidentiary phase of trial? • What should an attorney do when confronted with a juror’s inappropriate use of the internet during a trial? Jury Instructions

New York Pattern Jury Instructions, 1:11

“It is important to remember that you may not use any internet services such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties or the lawyers or the court.” (emphasis added)

Jury Instructions Proposed Instruction from the Federal Judicial Conference:

“You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service, or any internet chat room, blog, or website such as Facebook, MySpace, LinkedIn, You Tube or Twitter, to communicate about this case or to conduct any research about this case . . .” (emphasis added)

Jurors Behaving Badly

• Russo v. Takata, 2009 S.D. 83 (2009)

Jury verdict set aside because juror’s internet search uncovered evidence that had been excluded from trial. Jurors Behaving Badly

• Criminal Trial of Former Baltimore Mayor Sheila Dixon

Jurors “friend” each other on Facebook and post public messages about the trial. Jurors Behaving Badly

• The People v. Jamison, 899 N.Y.S.2d 62 (Kings County 2009)

New York juror “Googled” defense counsel and discussed results with a stranger at a social gathering. Jurors Behaving Badly

NBC Weatherman Al Roker “Tweeted” about his fellow jurors during jury service. Jurors Behaving Badly

Jurors Using Twitter to Conduct Polls

“Be Carona’s judge, what should ex‐Sherriff get?” – “Tweet” from a juror in the criminal trial of a disgraced Sherriff

“I don’t know which way to go, so I’m holding a poll.” – “Tweeted” by a British juror in a criminal case

What is an attorney to do?! A.B.A. Model Rules of Professional Conduct ABA Model Rule 3.5

A Lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment. . .

Sources of Authority

• ABA Model Rules do not address the situation in which an attorney learns about jury deliberations via the internet

• The Restatement of the Law Governing Lawyers does not address this situation either Sources of Authority

• ABA Rules prohibit contact with jurors, e.g.:

“A Lawyer shall not: Communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case, or during the trial of a case, with any member of the jury unless authorized to do so by the law or court order . . .”

New York RPC 3.5(a)(4) Is visiting a juror’s website direct communication? “Friending” or “Following”

Passively Viewing Publicly‐Posted Content Sources of Authority

• Some states, e.g., New York, require a lawyer to promptly report juror misconduct:

“A lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of his or her family of which the lawyer has knowledge.”

New York RCP 3.5(d) Sources of Authority

Guidance based on analogy to contact with witnesses.

• New York State Bar Association Committee on Professional Ethics Opinion 843

• Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York Formal Opinion 2010‐2 Sources of Authority

• NYSBA Opinion 843 • Lawyer/ investigator contact with unrepresented adverse witness or party • Lawyer seeks to cross examine the party RPC 8.4 prohibits a lawyer, directly or indirectly, from “friending” the party by means of deception or misrepresentation without disclosing that the lawyer is an agent of the client. Sources of Authority

• NYCBA Formal Opinion 2010‐2

A lawyer may ethically “friend” an unrepresented party or witness without revealing the lawyer’s true motive, provided that the lawyer does not misrepresent his or her identity. New York State Bar Has Upper Hand

• Authority prohibits attorneys from misrepresentation by omission

• Complaints by witness or unrepresented party are likely to occur

• Despite authorities permitting pretexting, no authority permits attorneys from pretexting without qualification Putting It Together

• New York RPC does not prohibit attorneys from reading or monitoring juror internet postings during trial, • Attorneys must bring any misconduct to the court’s attention immediately, • Therefore: – Passive monitoring of juror social sites during trial is probably okay – Avoid actual contact or communication with jurors – Do not exploit information for the client’s benefit 4 Hypotheticals Hypotheticals

• Hypothetical # 1:

• Larry Lawyer, counsel for the plaintiff • Mom's Courthouse Café • two jurors seated at a nearby table. • Juror one: "I don't believe a word that so‐called expert says,"

• Juror 2:"Why don't they just pay that poor plaintiff?" Questions for discussion

• Does Lawyer have an obligation to inform the court? • May Lawyer take into consideration (and advise his client about) the eavesdropped communication? Hypotheticals

• Hypothetical #2: Larry Lawyer represents the plaintiff in a products liability case. • Two jurors sit stone‐faced during the plaintiff's testimony. • Larry Lawyer sends investigator to slink to Mom's Courthouse Café during the lunch break • Investigator overhears conversation: "What a malingerer that plaintiff is! Why doesn't she get a job like everybody else? " QUESTIONS FROM HYPO 2

• Must Lawyer report the information to the court? • If Larry has received a settlement offer, may he consider the eavesdropped intelligence in determining whether to recommend acceptance or rejection of the offer? Hypotheticals • Hypothetical #3:

• Larry Lawyer, who represents the same plaintiff in the same products liability case. • Lawyer assigns investigator Lisbeth Salander to monitor the nightly blog, Twitter and Facebook postings of the six jurors. • As they leave the courtroom on the eve of closing arguments, Larry's opposing counsel, Dana Defendant, makes him a settlement offer of $300,000, an amount in excess of his settlement authority, but less than his demand of $500,000. • Lisbeth walks into his office with news: The jury foreman blogs that he plans to award the injured plaintiff $1 million

• Larry now believes that the jury is likely to award his client triple the amount of the latest settlement offer. • A rational lawyer might reject the $300,000 offer and, assuming it's credible, go to the bank with the $1 million verdict. • What are his duties to the court, and to his client? Hypotheticals

• Hypothetical #4:

• Larry Lawyer represents the plaintiff • His investigator visits the website of nightmare jurors, who announce :

• "We have already made up our mind: To bounce the plaintiff and award her no money."

• Larry has received the same $300,000 settlement offer described in Hypothetical 3.

• Should he accept the offer, and if he does, would he violate the ethics rules? If he rejects the offer, does he violate a different ethics rule?

Hypotheticals Revisited

All Four scenarios involve the temptation to use information for the client’s benefit. Hypotheticals Revisited

• Hypothetical #3: – May the attorney ethically advise the client to turn down the $300,000 settlement offer based on the unauthorized Facebook disclosures? – If the attorney acts on the information, does he still have to notify the court? – If he doesn’t act, does he expose himself to malpractice or an ethics complaint? Hypotheticals Revisited

RECOMMENDED ACTION:

• Don’t seek to benefit the individual client

• Report the misconduct promptly to the court before acting on settlement offer Hypotheticals Revisited

• Hypothetical #2: – Few would defend attorney who uses an investigator to eavesdrop on private juror conversation – Should this rule apply to attorneys who monitor juror websites during trial? Hypotheticals Revisited

RECOMMENDED ACTION:

• To the extent an attorney “surfs the ‘net” intending to benefit his client and not notify the trial judge, the attorney runs a risk of violating RPC 3.5. • If the attorney’s concern is to uncover suspected juror misconduct, then looking at internet content or hiring an investigator to do so is permissible provided there is no direct contact. CONCLUSION

• There is no proscription on reading social networking sites of prospective jurors during voir dire provided there’s no direct contact. (e.g., “friending”)

• During the evidentiary phase, refrain from contacting jurors directly or indirectly. BEST PRACTICE:

Abstain from exploiting information about juror use of the internet for the benefit of the client, even if information is publicly posted by jurors. CONCLUSION

• When juror misconduct is suspected, monitoring juror social networking sites is permitted if the attorney: – promptly notifies the court, – does not contact jurors to gain access to their content, and – does not engage in deception, either directly or via proxy, to gain access to content. Legal Research 2 Dan Jordan, New York County Lawyers’ Association

Dan Jordan

Dan Jordan has held various Law Librarian positions since 1980. He is a 1980 graduate of the University of the Pacific, McGeorge School of Law in Sacramento, California and a 1982 Masters in Library Science graduate from Pratt Institute in Brooklyn, New York. His BA is from Brooklyn College. Mr. Jordan has worked in legal academia for most of his career and also has experience working in law firm libraries. He has been the Director of Library Services at NYCLA since May 2008. He is a member of the California Bar.

Cost Effective Legal

Types of Legal Literature

Primary Source Material

Secondary Source Material

Finding Tools Types of Legal Literature Types of Legal Literature Formats for legal

Information

Formats of Legal information have changed through time. Some continue to have vibrancy, while some are now disused. A now disused format

Cuneiform Hammurabi’s Code For example, the 8th law of the Code reads: “If any one steal cattle or sheep, or an ass, or a pig or a goat, if it belonged to a god or to the court, the thief shall pay thirty fold; if they belonged to a freed man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death.” Formats for legal Information Formats for legal Information Formats for legal Information

The Oral tradition: Formats for legal Information

The Oral Tradition continues: Formats for legal Information Hand written 13 Century Law, Iceland Formats for legal Information

Books Formats for legal Information

Microforms / Microcards Formats for legal Information

Modern alternate formats:

CDs Formats for legal Information

Online sources: costly

Formats for legal Information

Online sources ‐Not costly:

NYCLA Resources New York State Library P‐card Public Library Resources Free Legal Sites on the Internet New York County Lawyers’ Association Resources:

Westlaw Lexis Bloomberg Professional Cost: Your dues to the Association Training: Every month Limitations: Onsite only NYSL ‘P’ – Borrower’s Card

• Applying for a NYSL Borrower's Card • Individuals can request a New York State Library Borrower's card application or a New York State Resident Borrower's card application at the Circulation Desk located on the 7th floor of the New York State Library or over the phone by calling (518) 473‐7895 or by sending an email to [email protected]. • Please specify the type of NYSL Borrower's card that you are applying for: New York State Library ‘P’ (Privileged) Borrower’s Card

NYSL ‘P’ – Borrower’s Card

• Attorneys • Attorneys who are residents of New York State and are admitted to the New York bar are eligible to receive a NYS Library Borrower card. Applicants must complete a NYSL Attorney Borrower's application and present personal identification that includes their home address such as a current NYS Driver's license or a current photo‐identification card issued by the NYS Department of Motor Vehicles AND one of the following: • Letterhead from the individual's firm with his/her name on it, business card or NYS bar card, or • A listing in a current legal directory. NYSL ‘P’ – Borrower’s Card

• Loislaw ‐ Primary source material for NY and Federal, cases, statutes, regulations and some secondary source materials. • State Capital Universe – Annotated Statutes for 50 states • Congressional Universe – Annotated Federal Statutes

• LegalTrac – Index to 1,800 legal periodical w/ 200 full text

• IndexMaster – Index to 5,000 legal treatises

• Remote Access for NYSL P Card

Public Library Resources

New Yorkers can access information 24 hours a day, 7 days a week by logging on to NOVELny—the New York Online Virtual Electronic Library. A wide variety of resources − books, magazines, newspapers, research and reference sources and more are available with NO FEES 24 hours a day, 7 days a week. Public Library Resources

• NOVELNY —a pilot project for the Statewide Internet Library —is an online library of literally hundreds of magazines, newspapers, maps, charts, research and reference books that are available to every New Yorker, free of charge. All you need is your public library card, New York driver license, or non‐driver ID. Students may also access the NOVELny databases through their school or academic library.

• NOVELny saves time on endless, frustrating searches. Providing comprehensive information, NOVELny is organized and has been judged to be accurate and fair.

• Across New York State, NOVELny gives communities online access to the full text of hundreds of journals, newspapers, and other references.

• Access information 24 hours a day, 7 days a week from your desktop by logging on to NOVELny—the New York Online Virtual Electronic Library.

Public Library Resources

• NOVELNY Resources by Subject: • Business & Finance • General Reference • Health & Medicine • Literature • Multi‐Subject • Newspapers Free sites on the Internet

Findlaw for Legal Professionals http://lp.findlaw.com/

Cornell Law School Legal Information Institute http://www.law.cornell.edu/

WashLaw‐ one of the nation's leading Internet legal research portals, http://www.washlaw.edu/

Google Scholar http://scholar.google.com http://www.courts.state.ny.us/reporter/Decisions.htm

• The New York Slip Opinion Service provides access to recently released decisions prior to publication in the Official Reports, together with an electronic citation for each decision. Opinions selected for on‐line publication only are also available. (There is no access charge.)

• The New York Official Reports Service provides access to the text of all decisions published or abstracted in the Official Reports from January 1, 1993 through the latest Advance Sheet. The Official Reports Service Archive provides the text of landmark and other notable decisions published in the Official Reports prior to January 1, 1993. (There is no access charge.)

A Local site

The Center for New York City Law at New York Law School A library of decisions decided by New York City agencies Total decisions available: 65,069

http://www.nyls.edu/centers/harlan_scholar_centers/center_for_new_y ork_city_law/cityadmin_library

Or Google <“Center for NYC Law”> The Center for New York City Law at New York Law School

• GENERAL CITY AGENCIES • LAND USE AGENCIES • CHR (Comm. on Human Rights) • BSA (Board of Standards & Appeals) • COIB (Conflicts of Interest Board) • BORO PRESIDENTS (ULURP • DCA (Department of Consumer Affairs) Recommendations ) • DOI (Department of Investigation) • COUNCIL (City Council Land Use) • ECB (Environmental Control Board) • CPC (City Planning Comm.) • LAW DEPT. (Opinions of the Corporation • DOB (Department of Buildings) Counsel) • LANDMARKS (Landmarks Preservation • MAYOR (Mayor's Executive Orders) Comm.) • MOCS (Mayor's Office of Contract • LOFT (Loft Board) Services) • OATH (Office of Admin. Trials & Hearings ) • OCB (Office of Collective Bargaining) Board of Collective Bargaining Board of Certification • TAT (Tax Appeals Tribunal) • TLC (Taxi and Limo Commission) Hammurabi’s Code

See: http://www.wsu.edu/~dee/MESO/CODE.HTM Motor Vehicle Litigation 3 Bob Genis, Sonin & Genis Esqs.

ROBERT J. GENIS, ESQ.

Robert J. Genis is a senior and founding partner in the law firm of SONIN & GENIS, ESQS. Mr. Genis is a trial attorney specializing in plaintiffs negligence, personal injury, wrongful death, medical malpractice and products liability cases in the State and Federal Courts of New York and New Jersey, and has litigated cases in a number of other states. Mr. Genis has obtained numerous multi-million dollar verdicts and settlements, and is a member of the Million Dollar Advocates Forum.

Some of his note-worthy verdicts include: $ 10 million wrongful death case for inadequate security; $ 8 million for a man that slipped and fell on pigeon poop on a staircase of an elevated subway station for an aggravation of a pre-existing spinal condition, a $ 6.5 million in a wrongful death case on behalf of a chronic alcoholic on welfare who at the time of her slip & fall had a .316 BAC level (no comparative negligence), her daughter (the plaintiff) was a methadone addict on welfare; a $ 3 million for an aggravation of a soft tissue condition in a man involved in a car accident, where the man was unemployed and permanently disabled at the time of his accident; $ 2.5 million settlement in a medical malpractice; a $ 2 million for a pedestrian hit by a police car; $ 1.5 million in a medical malpractice case; $ 2 million against the City of New York for a bicyclist injured due to a pothole; $ 1.75 million for a bicyclist injured on ice. He received national attention on behalf of Teron Francis, who became brain damaged and on life support as a result of medical malpractice.

In addition to trying cases, Mr. Genis is a past Associate Editor of the National Trial Lawyer magazine and Past Editor in Chief of the Bronx Bar Journal, The Advocate, and has been published in those journals as well as the New York Law Journal, where he has been a frequent contributor, as well as the New York State Trial Lawyers Quarterly, New York State Trial Lawyers Bill of Particulars, the Queens Bar Journal and the Insurance, Negligence and Compensation Law Section Journal of the New York State Bar Association. Some of his articles have been cited in McKinney’s and other treatises.

Mr. Genis is a long time Director of the New York State Trial Lawyers Association, Past Vice President of the Jewish Lawyers Guild, and a past Secretary of the Tort Litigation Committee of the Association of the Bar of the City of New York. He has served on the Judicial Screening Committees of various bar associations and the Independent Democratic Screening Committee.

Mr. Genis has lectured Chaired and moderated numerous CLE programs and has lectured extensively for the New York State Trial Lawyers Association, has Chaired its annual Evidence Seminar for almost a decade, and taught at its Decisions Seminar for many years, and has also lectured for the Association of the Bar of the City of New York, the Bronx County Bar Association and the Bronx Women’s Bar Association, on numerous topics.

Mr. Genis has handled numerous high profile cases that have attracted national and international media attention on TV, radio, newspapers and the internet.

Mr. Genis is a graduate of the Syracuse University College of Law.

New York County Lawyers Association

The ABCs of Motor Vehicle Litigation

By Sherri Sonin and Robert J. Genis*

Table of Contents

Contents ………………………………………………………………………………... i

Case Intake ….………………………………………………………………………… 1

Insurance ……………………………………………………………………………… 2

SUM/UM v. WC …….……………………………………………………….. 2

Consent of SUM Carrier……………………………………………………………3

DMV Hearing ………………………………………………………………………… 12

Cell Phones and Smart Phones ………………………………………....…………….. 13

GPS Tracking …………………………………………………………………………. 17

Black Box/EDR ...………………………………………………………………………. 18

What is an Event Data Recorder? ……..………………………………………. 18

What Information is Recorded by Vehicle Black Boxes? …………………….. 21

Obtaining Data From Black Boxes ……………………………………………. 23

How Vehicle Black Boxes are Regulated ……………………………………... 24

Uses of Vehicle Black Box Data …………………………………………….... 26

Form …………………………………………………………………………... 27

Buses ………………………………………………………………………….. 28

Cars …………………………………………………………………………… 28

Liability ………………………………………………………………………………... 32

* Sherri Sonin, Esq., and Robert J. Genis, Esq., are senior and founding partners in the law firm SONIN & GENIS, ESQS., and specialize in the trial and litigation of wrongful death and significant personal injuries suffered as a result of the negligence or medical malpractice of others.

VTL v. NYC Traffic Rules ………………………………………………….... 32

Judicial Notice ……………………………………………………………….... 33

Ownership Vehicle …………………………………………………………….. 33

Permissive Use ……………………………………………………………….... 34

Graves Amendment ……………………………………………………………. 35

Taxis………………………………………………………………………36

Loaners……………………………………………………………………36

Improperly Parked Car ………………………………………………………… 36

Red Light ……………………………………………………………………….. 37

Stop Sign ………………………………………………………………………. 39

Left Turn ……………………………………………………………………….. 39

Rear Ender ……………………………………………………………………… 40

Intersection ……………………………………………………………………... 42

Pedestrian ………………………………………………………………………. 42

Bicycle …………………………………………………………………………. 43

Bus ……………………………………………………………………………... 45

Trailer ………………………………………………………………………….. 46

Emergency Doctrine ………………………………………………………….... 47

Dram Shop ……………………………………………………………………... 47

Only in NYC …………………………………………………………………… 49

Municipal Liability …………………………………………………………….. 50

Roads …………………………………………………………………………… 50

Emergency Vehicles ……………………………………………………………. 53

Hearsay ………………………………………………………………………………….. 58

Accident Reports ……………………………………………………………….. 62

Police Reports ………………………………………………………………….. 66

Rebut Recent Fabrication ………………………………………………………. 69

Credibility ………………………………………………………………………. 70

Bifurcation ………………………………………………………………………………. 70

Threshold ……………………………………………………………………………….. 71

Plaintiff’s Perspective …………………………………………………………. 71

Proving the Threshold …………………………………………………………. 72

Soft Tissue Inquiries …………………………………………………………… 73

Proving the Injury ……………………………………………………………… 74

Medical Proof ………………………………………………………………….. 74

Threshold – Some Recent Cases ……………………………………………….. 77

Medical Records ……………………………………………………………….. 94

Judicial Notice ……………………………………………………….... 94

Use of Reports ………………………………………………………… 95

Medical History ……………………………………………………….. 99

Treating Doctors…………………………………………………………..101

Psychological Injury …………………………………………………………… 105

Pre-Trial Summary Judgment …………………………………………………………... 106

Biomechanical Expert Witnesses ………………………………………………………... 107

Law ……………………………………………………………………………... 108

Discovery Issues ……………………………………………………….. 108

Timeliness of Disclosure ………………………………………………. 108

Adequacy of Disclosure ……………………………………………….. 108

Uses of Biomechanical Expert ………………………………...... 110

Summary Judgment ……………………………………………………. 110

Non-threshold Cases …………………………………………………………….. 111

Precluding the Expert Substantively …………………………………………...... 111

iii

Frye Hearing …………………………………………………………………….. 111

Credentials – Qualifying the Expert Substantively ……………………………… 116

The Methodology ………………………………………………………. 118

The Literature ………………………………………………………….. 119

Cross Examination of the Biomechanical Engineer ……………………………. 121

Literature ………………………………………………………………. 121

Facts …………………………………………………………………… 122

Credentials …………………………………………………………….. 123

Sample Questions ……………………………………………………... 123

References ……………………………………………………………………... 127

Seat Belt ………………………………………………………………………………... 128

Trial Preferences ……………………………………………………………………….. 128

Trial Tips – Presentation of Threshold ………………………………………………… 130

Aggravation/ Pre-existing Condition ………………………………………….. 131

Surveillance ……………………………………………………………………………. 131

Miscellaneous Issues……………………………………………………………………….. 132

Missing Witness ……………………………………………………………………….. 135

Summary Jury Trial ……………………………………………………………………. 136

Arbitration ……………………………………………………………………………… 138

Conclusion ……………………………………………………………………………… 138

Biographies of Authors …………………………………………………………………. 139

New York County Lawyers Association

The ABCs of Motor Vehicle Litigation

By Sherri Sonin and Robert J. Genis*

Case Intake

When a client comes to your office, you want to know about the “Holy Trinity” of litigation: liability, damages and insurance coverage. Obviously you need to carefully question your prospective client to get all information, but you have to get the necessary records. This may include:

1. Police Report; 2. MV-104 accident report for your client and the other driver(s); 3. Photographs of damage to vehicles; 4. Photographs of scene (google earth can be very helpful); 5. Map of area (mapquest); 6. Photographs of damage to client; 7. Estimates for cost of repairs to vehicle; 8. No-fault (PIP) insurance information and claim forms; 9. Hospital/ER records (and ACR); 10. Doctors records and reports (and MRI reports etc); 11. Proof of earnings/loss of earnings; 12. NYS DMV hearing transcripts and determination (if applicable); 13. NYS DMV driving history print-out of other driver; 14. NOC (if applicable – beware MABSTOA v. NYCTA, Liberty Lines etc); 15. SUM/UM coverage (household); 16. Arbitration decisions (beware); 17. Traffic Cameras.

Insurance

SUM/UM v. WC

In Matter of IDS Prop. Cas. Ins. Co. v Wynter, 2010 NY Slip Op 05475 (1st

Dept.)

The record establishes that, at the time of the accident respondent was a passenger in an uninsured motor vehicle. He and the driver of the vehicle, a fellow employee, were on their way to a store where the driver intended to carry out a personal errand unrelated to work. Since respondent and the driver were not acting within the scope of their employment, workers’ compensation, if it is a remedy, is not respondent’s exclusive remedy (see Workers’ Compensation Law § 29[6]; Macchirole v Giamboi, 97 NY2d 147, 150 [2001]).

In Matter of Government Empls. Ins. Co. v Hengber, 66 AD3d 1020 (2nd Dept. 2009) On December 24, 2005, the respondent Louis Hengber was driving a vehicle owned by Fred Hengber when he was involved in a collision with a vehicle owned and operated by Basil Fields. Following the accident, the respondent settled a personal injury claim against Fields for the sum of $25,000, the maximum available under Fields' automobile insurance policy. When the respondent subsequently sought to arbitrate a claim for underinsured motorist benefits under the Hengber policy, the petitioner, Government Employees Insurance Company (hereinafter GEICO), commenced this proceeding to stay arbitration upon the ground that the respondent failed to obtain its written consent to settle his personal injury claim against Fields. In opposition to the petition, the respondent alleged that GEICO had not been prejudiced by his failure to obtain its written approval to the settlement because GEICO was also the carrier which provided automobile insurance to Fields. The Supreme Court denied GEICO's petition to stay arbitration, agreeing that GEICO had not been prejudiced because it provided insurance coverage to both the respondent and Fields. GEICO contends that the Supreme Court erred in failing to recognize that the Hengber policy was issued by the GEICO Indemnity Company, while the Fields policy was issued by a separate entity, the GEICO General Insurance Company. However, in its petition to stay arbitration, GEICO alleged that it had issued the Hengber policy under which the respondent sought underinsured motorist benefits, and that the "GEICO Insurance Company" insured the offending vehicle owned and operated by Fields. Moreover, GEICO offered no evidentiary proof that the subject policies were actually issued by separate GEICO affiliates, and the reply affirmation of its attorney did not address the respondent's claim that GEICO insured all parties involved in the accident. Under these circumstances, the court properly concluded that GEICO provided coverage to both the respondent and Fields. [*2]

The Supreme Court properly concluded that GEICO was not prejudiced by the respondent's failure to obtain its written consent to settle his personal injury claim

2 against Fields. The settlement did not impair GEICO's subrogation rights against Fields because an insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered (see generally ELRAC, Inc. v Ward, 96 NY2d 58, 76 [2001]; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 471 [1986]; see also Moring v State Farm Mut. Auto. Ins. Co., 426 So 2d 810 [Ala 1982]; Richards v Allstate Ins. Co., 193 WVa 244, 455 SE2d 803 [1995]; Stetina v State Farm Mut. Auto. Ins. Co., 196 Neb 441, 243 NW2d 341 [1976]).

Consent of SUM Carrier \ In In re Arbitration between Cent. Mut. Ins. Co. (Bemiss), 12 N.Y.3d 648 (2009), the Court addressed this issue.

We are asked in this appeal whether consent-to-settle and subrogation-protection provisions in the supplementary uninsured/underinsured motorists (SUM) endorsement in an automobile liability insurance policy fall by the wayside once an insured has exhausted the available policy limits of a single tortfeasor in a multi- tortfeasor accident. We hold that these provisions remain in force and govern any settlements that the insured may subsequently make with other **2 tortfeasors.

I. During the morning rush hour on April 12, 2005, a chain-reaction automobile accident unspooled in the westbound lane of Interstate 90 in the City of Albany when the first car in the ensuing five-vehicle pileup stopped in traffic to avoid becoming entangled in a two-car collision. The vehicle driven by Beverly Bemiss (the third in line in the pileup) was struck twice in the rear—once by the vehicle driven by Kati Kowalczyk, the fourth in line; and again when the automobile driven by John Genski, the fifth in line, rear- ended Kowalczyk's vehicle, pushing it into the back of Bemiss's vehicle a second time. As a consequence of this accident, Bemiss seriously injured her right foot and ankle, which required surgery to repair the Achilles tendon.

Kowalczyk was insured for motor vehicle liability under a policy issued by Government Employees Insurance Company (GEICO), with bodily injury liability limits of $25,000; Genski was insured under a policy issued by Progressive Northeastern *652 Insurance Company, also with bodily injury liability limits of $25,000. Central Mutual Insurance Company was Bemiss's automobile liability insurance carrier. Her single limit policy provided $100,000 per accident for bodily injury and property damage, and a SUM endorsement for $100,000 per accident. The provisions in her SUM endorsement were prescribed by the New York State Department of Insurance (the Department) in Regulation 35-D (11 NYCRR subpart 60-2). And since both Kowalczyk's and Genski's bodily injury liability limits were less than Bemiss's, her SUM coverage was activated or triggered as to each of them (see Matter of Prudential Prop. &

3 Cas. Co. v Szeli, 83 NY2d 681, 685 n 1, 686-688 [1994]). SUM benefits are not payable, however, until the available policy limits of a single tortfeasor have been exhausted by payment or settlement (see S'Dao v National Grange Mut. Ins. Co., 87 NY2d 853, 854- 855 [1995]).

By letter dated July 27, 2006, Bemiss's attorney informed Central that GEICO, Kowalczyk's insurance carrier, had tendered the policy limits of $25,000. He further advised that Bemiss intended to accept this offer and execute a release on or after August 27, 2006 unless Central advanced this amount to her in return for her cooperation in any lawsuit on her behalf. Central did not respond to the letter. Bemiss also at some point agreed to settle with Genski and his insurer, Progressive, for $2,500—i.e., less than the $25,000 policy limit. Bemiss never notified Central that she intended to settle with Genski, or solicited Central's consent.

On December 21, 2006, Bemiss executed a single general release in favor of Kowalczyk, GEICO, Genski, and Progressive in consideration of the sum of $27,500— $25,000 from GEICO and $2,500 from Progressive. The release did not preserve Central's subrogation rights with respect to any payment that might be made to Bemiss under her SUM coverage. Earlier in December (and therefore before exhausting Kowalczyk's policy), Bemiss served Central with a request for arbitration, seeking $72,500 in SUM benefits.

On January 9, 2007, Central's attorney wrote to Bemiss's attorney to ask whether **3 an action had been filed against Genski. On January 17, 2007, Bemiss's attorney replied that his client had settled with Genski and his insurance carrier for $2,500, and that Bemiss was seeking $72,500 from Central under the SUM endorsement.

*653 By letter dated January 26, 2007, Central disclaimed liability to Bemiss and denied coverage. Specifically referencing Condition 10 (without waiving any other ground that it might have for disclaimer), Central told Bemiss that she had violated policy conditions by “settl[ing] with both responsible parties [i.e., Kowalczyk and Genski] in this loss, and in signing the release, waived [Central's] subrogation rights.” Condition 10 allows an insured to collect under SUM coverage in a multiple-tortfeasor accident before exhaustion by settlement or judgment. Specifically, 30 days after having given the insurer notice of a tortfeasor's offer to settle for the maximum available policy limits, the insured may execute a general release with the tortfeasor and retain SUM eligibility unless, in the meantime, the insurer has agreed to advance the settlement amount in exchange for the insured's cooperation with its subrogation claim.

In March 2007, Bemiss served Central with another request for arbitration, having withdrawn the December notice after arbitration was temporarily stayed at Central's behest. She again sought $72,500 in SUM benefits. And Central again successfully moved by order to show cause, entered on March 26, 2007, to stay arbitration temporarily pending disposition of its application for an order permanently staying arbitration and vacating Bemiss's notice.

4 Central maintained that Bemiss was not entitled to SUM benefits because she did not protect its subrogation rights, give prior written notice of her intent to settle, or obtain its written consent before settling with Genski/Progressive. In opposition, Bemiss argued that “[t]he policy . . . reads that when there are multiple tortfeasors, and one of those tortfeasors offers the maximum coverage under its policy, then written notice must be given of the policy tender before execution of a release. The policy [does not contain] any language that requires the insured to provide written notice for a partial tender from a second tortfeasor.”

In May 2007, Supreme Court granted Central's application and permanently stayed arbitration, reasoning that, under the terms of the SUM endorsement, Central “expressly require[d] that it retain the right to subrogate regardless of the exact nature of the settlement.” Thus, “[e]ven if the Court were to accept [Bemiss's] argument that once [she] settled for the entire *654 amount of coverage with [GEICO], [she] could settle with Progressive without notice and consent of [Central], this argument does nothing to remedy the fact that [Bemiss] failed to preserve Central's right to subrogate.” Bemiss appealed.

The Appellate Division, with one Justice dissenting, affirmed. As an initial matter— and contrary to Supreme Court's assessment—both the majority and the dissenting Justice concluded that Condition 10 in the SUM endorsement “permitted [Bemiss] to settle with the first **4tortfeasor [Kowalczyk] without preserving [Central's] subrogation rights” with respect to Kowalczyk (Matter of Central Mut. Ins. Co. [Bemiss], 54 AD3d 499, 500 [3d Dept 2008]). The majority, however, rejected Bemiss's additional claim that once she qualified for SUM payments by exhausting Kowalczyk's policy, she was free to settle with Genski without obtaining Central's prior written consent or safeguarding its subrogation rights. The dissent disagreed, and we granted Bemiss permission to appeal (11 NY3d 711 [2008]). We now affirm.

II. To decide this appeal, we must examine the interplay of the consent-to-settle (Condition 10), exhaustion (Condition 9), and subrogation-protection (Condition 13) provisions in the standard SUM endorsement prescribed by Regulation 35-D, which the Department designed to “reduce confusion regarding [SUM] coverage, make it easier to collect benefits and, when disputes arise, make it simpler to resolve those disputes” (NY Reg, Apr. 22, 1992, at 21). To put these provisions in perspective, a bit of history is in order.

Insurance Law § 3420 (f) (2) (A) provides that “[a]s a condition precedent to the obligation of the insurer to pay under the [SUM] insurance coverage, the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements.” And in S'Dao, we concluded that “the exhaustion requirement of section 3420 (f) (2) relates back to the

5 statute's reference to ‘another motor vehicle’ and indicates that the proper focus is on the underinsured status of each individual tortfeasor” (87 NY2d at 854). As a result, SUM benefits are payable in a multiple-tortfeasor accident once the insured exhausts the bodily injury liability limits applicable to any single tortfeasor. Our decision in S'Daoreversed the Appellate Division, which had interpreted the statute to require a SUM *655 claimant to exhaust the bodily injury liability limits of the policies held by all tortfeasors—i.e., to exhaust the aggregate limits of liability of all applicable policies. Further, in Weinberg v Transamerica Ins. Co. (62 NY2d 379, 381-382 [1984]), we held that in settling personal injury claims arising out of a motor vehicle accident, “an insured will be held to have prejudiced the subrogation rights of his insurer unless he establishes by express provision in the release . . . or by necessary implication arising from the circumstances of the execution of the release that the settling parties reserved the rights of the insurer against the third-party tort-feasor or otherwise limited the extent of their settlement to achieve that result.”

As a corollary, an insured who settles with a tortfeasor without his carrier's written consent forfeits SUM benefits (see State Farm Mut. Auto. Ins. Co. v Taglianetti, 122 AD2d 40 [2d Dept 1986]).

These principles created what commentators referred to as a “Catch-22” for the SUM claimant (see e.g. Dachs and Dachs, Insurance and No-Fault Law, The Underinsured Motorist, NYLJ, Dec. 11, 1990, at **5 3, col 1). That is, if the insured's carrier withheld its consent to an offer of a tortfeasor's full available policy limits in exchange for a general release (which was naturally always demanded), the insured faced unpalatable options: either refuse the offer and litigate the case to judgment in order to exhaust the tortfeasor's policy and become eligible to receive SUM benefits, or accept the offer and risk losing SUM coverage on account of having prejudiced the carrier's subrogation rights. The Department set out to eliminate this dilemma when it formulated Regulation 35-D.

To this end, Regulation 35-D, as initially drafted by the Department, mandated the following in the standard SUM endorsement as Conditions 7 and 8: “7. Exhaustion Required: Except as provided in Condition 8, we will pay under this SUM coverage only after the limits of liability have been used up under all motor vehicle bodily injury liability insurance policies or bonds applicable at the time of the accident in regard to a person that may be legally liable for the bodily injury sustained by the insured.

*656 “8. Release or Advance: In accidents involving the insured and one or more negligent parties, if such insured settles with all such parties for the aggregate limits of the liability coverage of such parties, release may be executed with such parties after thirty calendar days actual written notice to us, unless within this time period we agree to advance such settlement amounts to the insured in return for the cooperation of the insured in our lawsuit on behalf of the insured.

6 “We shall have a right to the proceeds of any such lawsuit equal to the amount advanced to the insured and any additional amounts paid under this SUM coverage. Any excess above those amounts shall be paid to the insured.

“An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired” (see Dachs and Dachs, The Undersinsured Motorist, NYLJ, Dec. 11, 1990, at 3, col 1 [discussing development of Department's proposed Regulation 35-D]; Dachs and Dachs, Insurance and No-Fault Law, SUM Regulation Redux, NYLJ, June 9, 1992, at 3, col 1 [comparing text of proposed and final Regulation 35-D]).

Notice of proposed Regulation 35-D was published in the State Register on September 11, 1991.

In response to comments and criticism, Regulation 35-D was subsequently **6 amended and another notice was published in the State Register on April 22, 1992.FN* In the amended version, Conditions 7 and 8 of Regulation 35-D were renumbered Conditions 9 and 10, and provided respectively as follows: “9. Exhaustion Required: Except as provided in Condition 10, we will pay under this SUM coverage only after the limits of liability have been used up under all motor vehicle bodily injury liability *657 insurance policies or bonds applicable at the time of the accident in regard to any one person who may be legally liable for the bodily injury sustained by the insured.

“10. Release or Advance: In accidents involving the insured and one or more negligent parties, if such insured settles with any such party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty calendar days actual written notice to us, unless within this time period we agree to advance such settlement amounts to the insured in return for the cooperation of the insured in our lawsuit on behalf of the insured.

“We shall have a right to the proceeds of any such lawsuit equal to the amount advanced to the insured and any additional amounts paid under this SUM coverage. Any excess above those amounts shall be paid to the insured.

“An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired” (11 NYCRR 60-2.3 [f]).

By changing the reference in Condition 9 (former proposed Condition 7) from “a person that” to “any one person who,” eliminating the reference in Condition 10 (former proposed Condition 8) to “aggregate limits” and substituting the singular “party” for the plural “parties,” the Department unambiguously applied the exhaustion requirement in section 3420 (f) to any single tortfeasor, not to all potential tortfeasors. This is exactly how we subsequently **7 interpreted the statute in S'Dao.

7 Urging us to read Conditions 9 and 10 together, Bemiss contends that “where multiple tortfeasors are involved and the insured has permissibly settled with one tortfeasor for his/her policy limits, . . . the insure[r] has no right under Regulation 35-D to be notified of and withhold consent to a settlement with another tortfeasor for less than his/her policy limit” even though Condition 10 mandates that “[a]n insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired.” In her view, this restriction “is intended to apply to an insured seeking . . . to settle for the policy limits of [the first] tortfeasor . . . The *658 goal is to allow the settlement to be consummated while giving the insurer the opportunity to protect its subrogation right”—i.e., to remedy the “Catch-22.” Bemiss argues that to read Condition 10 as governing an insured's settlement with a second tortfeasor would “take away” what Condition 9 and our decision in S'Daogive—i.e., the rule that SUM benefits become payable in a multiple-tortfeasor accident after one tortfeasor's policy has been exhausted.

As already noted, an insured generally may not settle with a tortfeasor without the SUM insurer's written consent, and may not prejudice the SUM insurer's subrogation rights. As to the latter point, Condition 13 of the SUM endorsement specifically states as follows: “13. Subrogation: If we make a payment under this SUM coverage, we have the right to recover the amount of this payment from any person legally responsible for the bodily injury or loss of the person to whom, or for whose benefit, such payment was made to the extent of the payment. The insured or any person acting on behalf of the insured must do whatever is necessary to transfer this right of recovery to us.Except as permitted by Condition 10, such person shall do nothing to prejudice this right” (11 NYCRR 60-2.3 [f] [emphasis added]).

The final sentence of Condition 10—the crux of Bemiss's argument—specifies that the insured “shall not otherwise settle with any negligent party, without [the SUM carrier's] written consent, such that [the SUM carrier's] rights would be impaired” (emphasis added). Looking at both this language and the structure of Condition 10, “otherwise” refers back to the settlement scenario delineated in the first sentence—i.e., an insured's 30 days' written notice to the insurer of a tortfeasor's offer to settle for the maximum available policy limits. And while Bemiss contends that “any negligent party” refers only to the first tortfeasor whose policy is exhausted so as to make SUM benefits payable, this is not readily apparent from the words used or the regulatory history. In the original version of Condition 10 (former Condition 8), “any negligent party” clearly referred to all the tortfeasors in a multiple-tortfeasor accident. When the Department revised the SUM endorsement to make the exhaustion requirement applicable to any single tortfeasor rather than the aggregate limits of the liability coverage of all tortfeasors, it **8 retained in new Condition 10 the stipulation that *659 the insured could not “otherwise settle with any negligent party” (emphasis added). Bemiss, in effect, asks us to read this provision to mean “otherwise settle with the first party to tender the available limit of his/her motor vehicle bodily injury liability coverage.” Even if Bemiss's interpretation of “any negligent party” were correct, there is nothing in the SUM endorsement to suggest that the subrogation-protection provisions in Condition 13

8 become inoperative once an insured has exhausted a single tortfeasor's policy limits in a multiple-tortfeasor accident.

In short, Condition 10 delineates the sole situation in which an insured may settle with any tortfeasor in exchange for a general release, thus prejudicing the insurer's subrogation rights, without the carrier's written consent. Here, Bemiss violated Condition 10 when she settled with Genski for less than the maximum available policy limits without Central's written consent, such that its subrogation rights were impaired. Moreover, this result is not inconsistent with our decision in S'Dao or Condition 9 of the SUM endorsement. In this case, Bemiss settled with Kowalczyk in compliance with Condition 10, thereby also fulfilling the exhaustion requirement in Condition 9. At that point, she was entitled to make a claim for $75,000 under her SUM coverage and, if Central disagreed, to proceed to arbitration. That is, she did not have to pursue a claim against Genski in order to become eligible to collect up to the remaining limits of her SUM policy. But once having chosen to resolve her claim against Genski, she was not free under the SUM endorsement to compromise Central's subrogation rights unilaterally.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Order affirmed, with costs.

FOOTNOTES FN* Trade associations and insurers brought a CPLR article 78 proceeding to challenge Regulation 35-D, which resulted in a stay of enforcement and a delay in implementation (seeMatter of National Assn. of Ind. Insurers v Curiale, 190 AD2d 597 [1st Dept 1993], lv denied 81 NY2d 711 [1993]; see alsoDachs and Dachs, Insurance and No-Fault Law, The Latest on Regulation 35-D, NYLJ, Nov. 10, 1992, at 3, col 1; Dachs and Dachs, Insurance and No-Fault Law, Regulation 35-D: A Reality at Last, NYLJ, Sept. 14, 1993, at 3, col 1).

In Day v One Beacon Ins., ___ A.D.3d ___, 2012 NY Slip Op 05281 (4th

Dept. 2012),

Plaintiff commenced this breach of contract action seeking supplementary underinsured motorist (SUM) coverage under an automobile insurance policy issued by defendant. Plaintiff was a passenger in a Ford Windstar van driven by her husband that collided with a pickup truck that had failed to yield the right-of-way at an intersection. Upon impact, plaintiff's car seat detached from the floor of the minivan and plaintiff became airborne as the vehicle spun out of control. She allegedly sustained severe and permanent injuries as a result of the accident. The driver of the pickup truck (motorist

9 tortfeasor) had liability coverage of $100,000. The minivan in which plaintiff was riding was insured by defendant pursuant to a policy with plaintiff and her husband, with SUM coverage of $500,000. Plaintiff timely placed defendant on notice of her potential SUM claim, and commenced the underlying personal injury action against, inter alia, the motorist tortfeasor, sounding in negligence, and against Ford Motor Company (Ford), sounding in strict products liability. Following mediation, the motorist tortfeasor's insurer offered to settle for the policy limits of $100,000, and Ford, which was self-insured, offered to settle for $475,000. In the meantime, plaintiff commenced the instant action, which the parties had agreed to hold in abeyance pending settlement discussions in the underlying action. Upon learning of plaintiff's potential settlement with the motorist tortfeasor and Ford, defendant wrote to plaintiff and her attorney "to remind" plaintiff that, pursuant to the release or advance and subrogation protection conditions of the SUM endorsement, settlement of plaintiff's claims against the motorist tortfeasor and Ford without defendant's consent would vitiate plaintiff's right to SUM [*2]coverage. Shortly thereafter, plaintiff formally notified defendant of the settlement offers and stated that she intended to accept the offers unless defendant advanced the full amount of the settlement offers, i.e., $575,000, within 30 days. Defendant responded that, pursuant to the release or advance condition of the SUM endorsement, it was obligated to advance only the $100,000 limit of the motorist tortfeasor's policy and that, pursuant to the release or advance and subrogation conditions of that endorsement, plaintiff could not thereafter settle her action against the motorist tortfeasor. Defendant further responded that those conditions further prohibited plaintiff from settling her action against Ford without defendant's consent, which it refused to provide. After its initial response to plaintiff, defendant repeatedly offered to advance the $100,000 limit of the motorist tortfeasor's policy, but plaintiff rejected those offers and proceeded to settle her underlying action against the motorist tortfeasor and Ford for $100,000 and $475,000, respectively, issuing general releases to both parties. Plaintiff then pursued this action seeking, inter alia, $400,000 in SUM coverage from defendant, and she thereafter moved to dismiss defendant's affirmative defenses of failure to satisfy the release or advance and subrogation provisions of the SUM endorsement. Defendant cross-moved for summary judgment dismissing the amended complaint. We agree with defendant that Supreme Court erred in denying its cross motion. Exclusion 1 of the SUM endorsement provides that, except as provided by Condition 10, "if [an] insured . . . without [defendant's] written consent, settles any lawsuit against any person or organization that may be legally liable for such injury," coverage is excluded. Condition 10, the standard "release or advance" condition, provides that "[i]n accidents involving the insured and one or more negligent parties, if such insured settles with any such party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty calendar days actual written notice to [defendant], unless within this time period [defendant] agree[s] to advance such settlement amounts to the insured in return for the cooperation of the insured in [defendant's] lawsuit on behalf of the insured . . . An

10 insured shall not otherwise settle with any negligent party, without [defendant's] written consent, such that [defendant's] rights would be impaired." Finally, Condition 13, the standard subrogation provision of the policy, provides that, where defendant makes a payment under the SUM endorsement, it has "the right to recover the amount of this payment from any person legally responsible for the bodily injury or loss of the person to whom, or for whose benefit, such payment was made to the extent of the payment." It further provides that "[t]he insured . . . must do whatever is necessary to transfer this right of recovery to [defendant]. Except as permitted by Condition 10, such person shall do nothing to prejudice this right."

Here, we conclude that plaintiff violated Conditions 10 and 13 by settling with the motorist tortfeasor without defendant's consent. Pursuant to Condition 10, defendant was obligated either to consent to the settlement with the motorist tortfeasor or to advance the $100,000 settlement funds offered by that tortfeasor's insurer. That release or advance condition, however, applies only to settlements "for the available limit of the motor vehicle bodily injury liability coverage of such party," and therefore does not apply to the settlement offer by Ford, which was not based upon a motor vehicle bodily injury policy. Thus, defendant satisfied its obligation to plaintiff under Condition 10 by offering to advance the $100,000 offered by the motorist tortfeasor (see generally Matter of Central Mut. Ins. Co. [Bemiss], 12 NY3d 648, 654-655) and was not obligated to advance the $475,000 offered by Ford, as plaintiff had demanded.

We further conclude that plaintiff violated Conditions 10 and 13 by settling with Ford without defendant's written consent. Condition 10 provides that plaintiff "shall not otherwise [*3]settle with any negligent party, without [defendant's] written consent" (emphasis added). Similarly, Condition 13 gives the SUM carrier the subrogation right to recover a SUM payment from "any person legally responsible for the bodily injury or loss" (emphasis added). Thus, although defendant was not obligated to advance the settlement offer made by Ford, Ford was nevertheless "legally responsible" for plaintiff's injuries, and defendant therefore had subrogation rights against Ford to the extent that its SUM payments represented payment for injuries for which Ford was legally responsible. We reject plaintiff's contention that the last sentence of Condition 10, which provides that the insured "shall not otherwise settle with any negligent party, without [defendant's] written consent," applies only to motorist tortfeasors, not to settlement with non-motorists such as Ford. The provision on its face plainly refers to settlements with "any negligent party," and does not refer merely to motorist tortfeasors. We thus reject plaintiff's "strained, unnatural and unreasonable" interpretation of that policy condition (Progressive Northeastern Ins. Co. v State Farm Ins. Cos., 81 AD3d 1376, 1378, appeal dismissed 16 NY3d 891, lv dismissed 17 NY3d 849; see Central Mut. Ins. Co., 12 NY3d at 658-659). Plaintiff's interpretation would require the replacement of the word "motorist" for "party" in the last sentence of Condition 10, such that the phrase would read "negligent motorist" rather than "negligent party." Had the sentence been intended to read in the manner suggested by plaintiff, it would have been easy enough to phrase it that way.

11 We thus conclude that, by settling with Ford and the motorist tortfeasor in violation of Conditions 10 and 13, plaintiff prejudiced defendant's subrogation rights and thereby vitiated her right to SUM coverage (see Weinberg v Transamerica Ins. Co., 62 NY2d 379, 381-382). In view of our determination, we need not address the parties' remaining contentions.

DMV Hearing

In Alamo v. McDaniel, 44 A.D.3d 149 (1st Dept. 2007), the court discussed the

application of the doctrine of collateral estoppel.

Collateral estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits (Ryan v New York Tel. Co., 62 NY2d 494 [1984]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]). Collateral estoppel is equally applicable to confer conclusive effect to the quasi-judicial determination of an administrative agency (see Ryan, 62 NY2d at 499). While the proponent of collateral estoppel has the burden of demonstrating that the issue in question is identical and decisive, it is the opponent's burden to show the absence of a full and fair opportunity to litigate the issue in the prior determination (id. at 501). Collateral estoppel is proper here because (1) the issue before the ALJ of whether defendants were responsible for the accident is identical to the issue before the motion court and this Court, (2) the issue was fully litigated in the DMV hearing and fully decided, (3) plaintiffs had a full and fair opportunity to litigate the issue of liability at the hearing, and (4) pursuant to Vehicle and Traffic Law § 510, the issue litigated was necessary to support the DMV determination. After hearing extensive testimony from both Brandon and Chaudhry at the hearing in which plaintiffs' counsel participated, the ALJ held that the Hillary vehicle "disobeyed a red light and came into contact with at least one other vehicle," and the evidence "fails to establish any violation of law on the part of either [Brandon or Chaudhry] which was a contributory cause of the accident." Plaintiffs, whose burden it was, failed to demonstrate that they did not have a full and fair opportunity to litigate the issue of whether Brandon or Chaudhry was negligent. Plaintiffs' counsel was permitted to ask a multitude of questions of both Brandon and Chaudhry, as well as Hillary. Among the subjects inquired of Brandon were when he first saw the Hillary vehicle, where he was when he first saw it, and the specific timing of the accident. Counsel for plaintiffs also asked Brandon whether he had the opportunity to apply his brakes before the Hillary vehicle entered the intersection. Counsel also had a full and fair opportunity to question Chaudhry at the hearing. He questioned him as to the exact location of the vehicles in the intersection, and specifically as to when the traffic signals changed.

12 That the ALJ on occasion interjected and reformulated the question for the sake of clarity does not change the fact that counsel was permitted to ask any question he wished, whether within or beyond the scope of the hearing, and especially those questions related to whether Brandon or Chaudhry was responsible in any way for the accident. Moreover, plaintiffs' counsel never noted any objections on the record as to any failure to receive less than a full and fair opportunity to ask any questions related to the liability of Brandon and Chaudhry. The plaintiff would have been better off by not participating in the administrative trial (assuming he/she was not a party to the proceeding). See, Curtin v. Curtin, 244

A.D.2d 927, 665 N.Y.S.2d 241 (4th Dept. 1997); Augustine v. Interlaken, 68 A.D.2d 705

(4th Dept. 1979), app. dis., 48 N.Y.2d 608 (1979); Walther v. News Syndicate Co., Inc.,

276 App. Div. 169 (1st Dept. 1949); Parkes v. Ahmad, 23 Misc. 3d 1120(A), 2009 NY

Slip Op. 50872(U); VTL § 155 [see former VTL § 2(29).

Cell-phones & Smart Phones

In a motor vehicle collision case, VTL 1225-c and d, is playing an increasingly important role.

§1225-c. Use of mobile telephones. 1. For purposes of this section, the following terms shall mean: (a) “Mobile telephone” shall mean the device used by subscribers and other users of wireless telephone service to access such service. (b) “Wireless telephone service” shall mean two-way real time voice telecommunications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. S 20.3. (c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear. (d) “Hand-held mobile telephone” shall mean a mobile telephone with which a user engages in a call using at least one hand. (e) “Hands-free mobile telephone” shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.

13 (f) “Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. (g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear. 2. (a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion. (b) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call. (c) The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a mobile telephone, unless otherwise provided by law. 3. Subdivision two of this section shall not apply to (a) the use of a mobile telephone for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician’s office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter, or (c) the use of a hands-free mobile telephone. 4. A violation of subdivision two of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred dollars.

§ 1225-d. Use of portable electronic devices. 1. Except as otherwise provided in this section, no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion. 2. For the purposes of this section, the following terms shall have the following meanings: (a) "Portable electronic device" shall mean any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article, personal digital assistant (PDA), handheld device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device. (b) "Using" shall mean holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.

14 3. Subdivision one of this section shall not apply to (a) the use of a portable electronic device for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital; a physician's office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter. 4. A person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle is presumed to be using such device. The presumption established by this subdivision is rebuttable by evidence showing that the operator was not using the device within the meaning of this section. 5. The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a portable electronic device, unless otherwise provided by law. 6. A violation of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred fifty dollars. Provided, however, that a summons for operating a motor vehicle in violation of this section shall only be issued when there is reasonable cause to believe that the person operating such motor vehicle has committed a violation of the laws of this state other than a violation of this section.

In Morano v. Slattery Skanska Inc., 18 Misc. 3d 464, 475-476 (Sup. Queens 2007),

after a detailed analysis, the court held that:

it is the opinion of the court that the mere fact that a defendant was in the possession of a cell phone at the time of an accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant's cell phone records, since such a discovery request would amount to nothing more than a fishing expedition (see Carpio v Leahy Mech. Corp., 30 AD3d 554 [2006]; Auerbach v Klein, 30 AD3d 451 [2006]).

However, in the instant matter, plaintiff has submitted an affidavit indicating that he observed defendant Katoni “with an object in her hand held to her head” immediately before the accident, which gave him the impression that she was using a cell phone to call for assistance. Under these circumstances, plaintiff would be entitled only to that portion of defendant Katoni's Verizon cell phone records, which would disclose calls transmitted or received by her on April 1, 2006, limited to the estimated time of the subject accident. Such limited disclosure, obtained via in camera review, would protect privacy, while revealing any calls made or received within the estimated time zone in close proximity to the accident, and would be relevant to the issue of negligence …. (citations omitted). …upon in camera review of defendant Katoni's Verizon cell phone records, the court discloses that on April 1, 2006, at 9:47 a.m., a call was placed that lasted one minute; at

15 10:50 a.m., a call was placed for an interval of two minutes; at 10:52 a.m., a call was placed which lasted three minutes; and at 11:06 a.m., a call was placed which lasted one minute. The defendants are hereby directed to serve plaintiff, within 20 days of the date of service of a copy of this order together with notice of entry, with a copy of that portion of the aforementioned cell phone records, indicating which specific telephone numbers were called from 9:47 a.m. to 11:06 a.m. on April 1, 2006. In accordance with defendant Katoni's deposition testimony, it would appear that the cell phone number listed in her records as the one to which she placed a call at 11:06 a.m., matches the cell phone number of her husband. Thus, based on the deposition testimony of Lieutenant Calabrese and the parties, the court has disclosed the relevant cell phone numbers within the general time frame of the subject accident.

In Detraglia v. Grant, 68 A.D.3d 1307, 1308-1309 (3rd Dept. 2009), the only

Appellate Division decision in New York State on this issue, the court was affirmed for ordering the defendant to provide certain discovery related to cell phone usage and wireless air card usage.

Although disclosure is limited to information that is material and necessary to the prosecution or defense of an action, the discovery statutes are liberally construed and trial courts are “afforded broad discretion in managing disclosure” (American Assn. of Bioanalysts v New York State Dept. of Health, 12 AD3d 868, 869 [2004]; see CPLR 3101 [a]; Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]). The record here contains information indicating that Grant may have been distracted immediately prior to the accident. There is also conflicting evidence concerning his possible use of the laptop computer in his vehicle. Grant testified at his deposition that the laptop was in a bag, either behind his seat or in the passenger seat, that he never used it while driving, and that while driving he never left it strapped to the computer desk bolted to the vehicle. The tow truck driver who arrived at the scene submitted an affidavit stating that he saw the laptop on the vehicle's computer desk, with the screen flipped up and turned on, indicating recent use. This conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence. Accordingly, Supreme Court did not abuse its discretion in determining that the records were subject to disclosure (see Andon v 302-304 Mott St. Assoc., 94 NY2d at 747; Czarnecki v Welch, 23 AD3d 914, 915 [2005]). Disclosure of the records should be limited to a narrow time frame surrounding the accident, namely 2:30 p.m. to 3:30 p.m. (see McMahon v Aviette Agency, 301 AD2d 820, 821 [2003]; Morano v Slattery Skanska, Inc., 18 Misc 3d 464, 475 [2007]). However, the records should be provided for the court to review in camera, with the court providing the parties only relevant information redacted to protect defendants' privacy interests (see Morano v Slattery Skanska, Inc., 18 Misc 3d at 475).

16 The telephones and laptop that Grant possessed on the date of the accident were upgraded for newer models, the original devices were returned to Hawkeye and those originals possibly contained information concerning whether they were in use at the time of the accident. Thus, Supreme Court correctly determined that Franzone's deposition could reveal material information (see Walsh v Liberty Mut. Ins. Co., 289 AD2d 842, 843 [2001]).

As these cases point out, there must an evidentiary basis for obtaining these

records, otherwise, they are not discoverable. See, Page v. Napier, 2009 NY Slip Op.

30325(U) (Sup. Nassau 2009); Kaur v. Saliba, Index No. 6312-2007 (Sup. Queens 2009),

app. withdrawn, 2009 NY Slip Op 86132(U) (2nd Dept. 2009); Monahan v. Callow,

Index No. 4184-2004 (Sup. Nassau 2006); Franzese v. Katz, Index No. 11926-2008 (Sup.

Nassau 2009)(discover granted even though defendant denied using a cell phone at the

time of the accident).

More liberal discovery was granted concerning the defendant’s cell phone records

in Einstein v. Douso, Index No. 13254-2004 (Sup. Nassau 2006), and in Pepitone v.

Orwasher, Index No. 5395-2001 (Sup. Nassau 2002).

GPS Tracking

In People v. Weaver 12 N.Y.3d 433, 436, 447 (2009)

In the early morning hours of December 21, 2005, a State Police Investigator crept **2 underneath defendant's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper. The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.

The GPS device, known as a “Q-ball,” once attached to the van, operated in conjunction with numerous satellites, from which it received tracking data, to fix the van's location. The Q-ball readings indicated the speed of the van and pinpointed its location within 30 feet. Readings were taken approximately every minute while the vehicle was in motion, but less often when it was stationary. The device's battery required replacement during the monitoring period, which resulted in yet another nocturnal visit by the investigator to the van's undercarriage. To download the location information retrieved by the Q-ball, the investigator would simply drive past the van and press a

17 button on a corresponding receiver unit, causing the tracking history to be transmitted to and saved by a computer in the investigator's vehicle.

It is not clear from the record why defendant was placed under electronic surveillance. What is clear is that he was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries—one committed in July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. ------

Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.

Black Box/EDR

What Is an Event Data Recorder?

Event data recorders have been built into almost every vehicle sold in the United States over the past decade. EDR devices record data supplied by sensing diagnostic modules

(SDMs)2 that are part of the air bag protection systems in almost every 21st century vehicle.3 Terminology regarding EDRs is not completely consistent. However, recent regulations from the National Highway Traffic Safety Administration have sought to standardize the terminology, data elements, and operations of EDRs at least by the year

2013.4 Members of the news media often refer to EDRs as crash data recorders, or

CDRs, even though CDR is technically the acronym for a device known as a Crash Data

Retrieval System that is used to download EDR data.5

EDRs borrow their “black box” nickname from flight data recorders in aircraft. But

EDRs are substantially different from flight data recorders that continuously record both

18 cockpit sound and aircraft status readings. In contrast, vehicle “black boxes” record only episodically, when a vehicle senses a potential collision. Moreover, EDRs do not record any sounds, conversations, or video. As is true with regard to many technical developments, EDRs gradually succumbed to mission creep. First designed to provide vehicle manufacturers proprietary information about vehicle performance, EDRs and the data they collect found their way into court when this information proved helpful to vehicle manufacturers in products liability litigation. Naturally, insurance carriers were eager to use the data in automobile accident litigation.

The safety-related data EDRs contained became a major concern of government agencies, particularly the National Highway Traffic Safety Administration (NHTSA) in the U.S. Department of Transportation. By 2013, NHTSA regulations will require that

EDR data be retrievable by widely available retrieval tools and devices, and that vehicle manufacturers license proprietary intellectual property to make that possible. These regulations also endorse use of EDR data for summoning emergency medical assistance and the now-available automatic crash notification subscription programs, such as those associated with OnStar by General Motors. In short, EDRs and their data have shifted from triggering air bag deployment to more generally recording information about vehicle and driver behavior in crash and near-crash situations.

EDRs take the form of small metal boxes (a little thicker than a deck of playing cards and roughly four inches by four inches square) that are tucked away inside the vehicle where they remain invisible to the driver. Typically, they are embedded under the front seat or

19 the center console or behind the dash board. The information they contain can be accessed through the diagnostic link connector (DLC), sometimes referred to as the On-

Board Diagnostic port (OBD2), in the passenger compartment. The OBD2 is a required component of vehicles driven in the United States that were manufactured after 1996.

EDR data can only be downloaded by using retrieval tools provided or authorized by vehicle manufacturers. Vetronix’s Crash Data Retrieval (CDR) system can download

EDR data from many makes of vehicles.

EDRs capture data from a vehicle’s electronic diagnostic systems through a computer module that continuously analyzes sensor data throughout the vehicle. When certain data thresholds are detected by the SDM, that device prepares the air bags for deployment. At the same time, the EDR begins to record such data as the speed of the vehicle, whether seat belts are fastened, the use of braking systems, and the like. In other words, the intelligence behind air bag protection also records data about how the vehicle, its air bags, and its driver, perform. Not only is information collected about vehicle and driver behavior when a vehicle actually crashes, the EDR also covertly records the same data when there is a near-crash event such as running up on a curb or hitting a pothole, when no air bag inflates.

What Information Is Recorded by Vehicle Black Boxes?

In vehicles of varying vintages, EDRs may contain many different types of data. In other words all EDR data is not the same, but rather a range of possible information that depends on the year, make, and model of the vehicle. Beginning around 1974, General

Motors began including event data recorders made by Delphi in a few GM vehicles

20 equipped with air bags. Since the beginning of this century, nearly all cars sold in the

United States by General Motors, Ford, Isuzu, Mazda, Mitsubishi, Subaru, and Suzuki have Vetronix EDRs built into them. Chrysler was the latest vehicle manufacturer to adopt Vetronix EDRs in 2007. Now a subsidiary of Bosch Group, Vetronix not only makes most of the vehicle black boxes used in the United States, it also manufactures the commonly used CDR tool for retrieving vehicle black box data.6 Other manufacturers install proprietary diagnostic modules that trigger air bags and usually also have recording devices with functions similar to those of EDRs.

EDRs are not required as standard equipment under federal law. In a 2008 rulemaking, the NHTSA stated its unwillingness to require such devices because the agency believes that the devices are sufficiently penetrating the United States market as part of air bag systems.7 What NHTSA regulations do require is that by 2013 EDRs built into vehicles sold in the United States will have standardized minimum data elements and functionality.8 Required data will include: the speed of the vehicle at five-second intervals, accelerator pedal position (percent of full engine throttle), various measures of

Delta-V (changes in forward crash speed and timing of maximum speed change), brake status (on/off), the number of ignition cycles (engine start-ups before and after EDR data is downloaded), seat belt status one second before the crash, a safety systems warning light, timing of air bag deployment, the number of events (pulses) involved in a crash, and finally, whether the EDR recording is complete (because in serious crashes EDR recordings are often incomplete). Vehicles with advanced safety features such as stability control or side air bags will be required to provide additional data elements from these

21 systems. Moreover, the regulation requires that vehicle manufactures disclose the EDR system in owners’ manuals and make EDR data available for download from the cars they manufacture through a reasonably priced download tool. Complete listings of all standardized data sets associated with EDRs to take effect in 2012 and 2013 are provided in the final rule adopted by NTHSA in 20069 and published in revised form on January

14, 2008.10

At present, most vehicle black box devices (EDRs) record two types of vehicle data: crash data (deployment data) and pre-crash data (near-deployment data). Crash data is recorded during the last five to 10 seconds before air bags deploy and the vehicle crashes.

In the more advanced data systems that will be required by 2013, all EDRs must be able to record more than one impact as part of the crash data that is permanently encoded in the EDR’s Electrically Erasable Programmable Read-Only Memory (EEPROM, non- volatile memory used to store small amounts of data that must be saved when power is removed). This data cannot be overwritten. After air bags deploy, both the air bags and the EDR have to be replaced. When there is an actual crash, the driver and occupants of the vehicle are aware that the air bags have deployed. What they usually do not know, however, is that the EDR made an automatic recording of the last few seconds before the crash.

Almost no one, outside the vehicle manufacturer and regulation communities, is aware that pre-crash data is recorded. Pre-crash data includes the same information about the behavior of the vehicle and driver as that recorded when there is an actual crash. The

22 only difference is that there is no air bag deployment because there is no crash event.

This pre-crash data, including vehicle speed, engine RPM, throttle, braking status, and

seat belt use is recorded whenever the vehicle’s sensory system (e.g., SDM) senses a

potential crash situation. Potential crash situations include such events as the vehicle

making a sudden bounce or stop, rapidly changing speed, or steering sharply in a

different direction — in short, avoiding an obstacle in the roadway. Pre-crash data is

stored and eventually overwritten after a period of time (a month or two) or numerous

ignition cycles. Before the information is overwritten, it remains silently in the EDR.

Obtaining Data From Black Boxes

Initially, only the vehicle manufacturers had access to EDR data. These days, data

extraction normally requires a technician who has physical access to the vehicle and to

the EDR through the OBD2 port noted above. If the vehicle is locked, access to EDR

data is generally blocked. Sometimes an EDR is removed to access the data in it. Once

air bags have deployed, the EDR data is frozen and the EDR has to be removed from the

vehicle and replaced by a new one, along with new air bags. Once removed, a technician

can put the EDR on a workbench and use a computer to download the data.

The EDR and its electronically stored data require considerable care, since both physical and electrical damage can erase or mangle EDR data. Generally, pre-crash data is more vulnerable to harm because this data can be overwritten. Crash data may be more robust, but crash forces can also cut off power to the EDR and stop the recorder. After crash or pre-crash data has been downloaded from the EDR, the next step is usually interpretation

23 of the EDR data by an accident reconstructionist qualified to work with such data.

In some vehicles, crash data and various sensing and diagnostic data (information about the behavior of various car parts, such as brake linings or lubricant levels) are combined with GPS location information and transmitted by wireless communications to vehicle manufacturers or service providers through such subscription programs as OnStar and

BMW Assist. Most providers of these services carefully guard the data they receive and require formal warrants for law enforcement access to it, even when the information is badly needed by law enforcement. In its recent rulemaking regarding EDRs, NHTSA stated that it looks forward to wider availability of such automatic crash notification.

How Vehicle Black Boxes Are Regulated

Vehicle black boxes are primarily regulated and studied by NHTSA, which has long been interested in increasing the use of both air bags and EDRs. Federal regulation of EDRs is contained in 49 C.F.R. Part 563, which will become effective in 2012 and 2013. These regulations will require voluntarily installed EDRs to collect specified data at specified levels of accuracy and report that data in standardized formats. Moreover, EDR data will have to be downloadable by a publicly available tool, even if that means mandatory licensing of vehicle manufacturers’ proprietary data. Such a widely available tool for accessing EDR data is likely to make EDR data even more vulnerable to various potential downloaders — from the simply curious, to the mischievous, to the malicious. Vehicle owners will be required to be notified about the EDR in the vehicle owner’s manual; specific owner’s manual language is required under the regulation.

The most recent changes to these regulations were published January 14, 2008, in 73

Federal Register 2168. These 2008 NHTSA amendments extend the effective date of the final EDR rule to 2013 and also respond to several petitions regarding suggested changes in the rule. One petition sought to make EDRs mandatory; but NHTSA replied that mandating EDRs is unnecessary given the already impressive market penetration of

EDRs. Another petition sought to have NHTSA require a mechanical lockout so that vehicle owners could better prevent tampering and control access to EDR data, particularly pre-crash data that vehicle owners usually never know has been collected.

The agency denied this request. Replying that it is unaware of tampering or erasure of

EDR data, NHTSA said that it would be willing to revisit the issue if EDR tampering were to become a problem. In New York, however, state legislation has been recently introduced to prohibit tampering with EDRs.

Roughly a dozen states have enacted statutes that regulate EDRs, require that vehicle owners be informed about the presence of EDRs, and stipulate that the data contained in an EDR belongs to the owner of the vehicle. Various restrictions on access are provided in these statutes, particularly requiring the consent of the vehicle owner for manufacturer or insurance company access. Some of the statutes require a warrant for law enforcement access to EDR data, irrespective of who else may have access to an EDR or EDR data.

Some of the legislation provides continuing ownership of EDR data, even after the title to the vehicle has been transferred. These EDR statutes, and additional legislation pending in other states, were part of the reason for NHTSA’s event data recorder regulations

25 intended to pre-empt differences between state statutes governing EDRs and uniform national federal law requirements promulgated in NHTSA regulations.

Uses of Vehicle Black Box Data

Safety remains the primary reason for installing EDRs in vehicles. A recent study sponsored by the U.S. Department of Transportation (DOT) concluded that EDRs “can provide objective real-world crash information for vehicle safety research purposes.”11

The study did not address directly the use of EDR data as evidence in court proceedings.

However, the study’s concluding remarks caution, “It is very important to understand the limitations of EDR data and care should always be exercised when interpreting any EDR- reported parameter.” The DOT report also says “a clear understanding of what (and when) the EDR is measuring needs to be gained before any analysis. Awareness of the

EDR limitations is needed for correct interpretation and use of the data.”12 These warnings should be presented to courts considering admission or exclusion of EDR in evidence.

1. Estimates range from 40 to 50 million light vehicles (cars and light trucks) currently on the road. In other words, between 65 and 90 percent of all vehicles on the road are equipped with air bags and event data recorders. 2. “Sensing and Diagnostic Module” or SDM, is the term used by General Motors Corporation. Ford Motor Company calls the diagnostic module RCM for “Restraint Control Module.” Other manufacturers call it the Air Bag Control Module (ACM). No matter what name this module is given, each vehicle manufacturer embeds such a system that reads interlinked sensors throughout a vehicle equipped with an air bag. These modules are small computers that collect and analyze information used to activate passive restraints in the five to 10 seconds preceding a car crash or what the modules recognize as an impending crash. See “Use of Event Data Recorder (EDR) Technology for Highway Crash Data Analysis,” a report prepared for the Transportation Research Board by H.C. Gabler, D.J. Gabauer, H.L. Newell, and M.E. O’Neill (December 2004) at 7-20. 3. In 2006, the National Highway Traffic Safety Administration (NHTSA) estimated at least a fleet penetration of 64 percent. Event Data Recorders, 71 Fed. Reg. 50998, 50999

26 (Aug. 28, 2006) (to be codified at 49 C.F.R. pt. 563). 4. See Event Data Recorders, 73 Fed. Reg. 2168 (Jan. 14, 2008) (to be codified at 49 C.F.R. pt. 563). 5. See Crash Data Retrieval System Web site at http://www.cdr-system.com (last visited April 2, 2009). 6. In 2006, Vetronix merged into Bosch Diagnostics; see http://www.boschdiag nostics.com (last visited April 2, 2009). 7. Event Data Recorders, 73 Fed. Reg. 2168, 2178 (Jan. 14, 2008) (to be codified at 49 C.F.R. pt. 563). 8. National Highway Traffic Safety Administration, Event Data Recorders, 47 C.F.R. pt. 563. 9. Event Data Recorders, 71 Fed. Reg. 50998 (Aug. 28, 2006) (to be codified at 49 C.F.R. pt. 563). 10. Event Data Recorders, 73 Fed. Reg. 2168 (Jan. 14, 2008) (to be codified at 49 C.F.R. pt. 563). 11. Analysis of Event Data Recorder Data for Vehicle Safety Improvement, U.S. Department of Transportation Research and Innovative Technology Administration, John A. Volpe National Transportation Systems Center (April 2008) DOT HS 810 935. 12. Id. at 78.

New York is considering legislation pertaining to EDR’s and their evidentiary

use. 2010 NY Assembly Bill A00690; 2009 NY Assembly Bill A03059.

Form

“All electronically stored information, data, tapes, discs, etc. and all transcriptions and interpretations, and coding information to interpret same, of same for all event recorders/EDRs/SDMs/CDRs/DERMs/ECMs from the vehicle(s), including, but not limited to those kept pursuant to • 49 C.F.R. 229.135 [trains] • 49 CFR 563 [motor vehicles]

Buses

In Then v. New York City Tr. Auth., 22 Misc.3d 1129(A), 2009 N.Y. Slip Op.

50367(U), 2009 WL 565085 (Sup. Queens 2009), the court sanctioned the NYCTA $

300.00 for not supplying the data from their bus involved in an accident.

It is further ORDERED that in the event that the aforementioned sought after data from the event recorder cannot be located by defendant or is otherwise unavailable for production at this time, defendant is ordered to comply with the following additional

27 conditions within forty-five (45) days after service of a copy of this order with notice of entry:

1. Defendant must serve plaintiffs with an affidavit made by the custodian of such data, or the person charged by the defendant with the responsibility and obligation to store, maintain, preserve, and search for said sought after data.

2. The affidavit must include: (a) a detailed description of the ”diligent and reasonable efforts“ made to locate and produce said sought after data including the date, time and place of each search conducted; (b) a detailed explanation as to why the said sought after data is not now available; (c) the identity of the person or persons who are in the authorized chain of custody of such data, and if unknown, an explanation must be provided; (d) the identity of the person last in possession of said data, and if unknown an explanation must be provided; (e) all of the authorized locations where such data is, or should have been, stored, maintained and preserved in accordance with the defendant's regular business practices and procedures; and,

It is further ORDERED that should defendant fail to comply with this order, defendant, New York City Transit Authority's Answer shall be stricken without further order of the Court….

Cars

In People v. Muscarnera, 16 Misc. 3d 622, 634-635 (Dist. Ct. Nassau 2007), a

case involving the issue of whether the defendant drove recklessly, the court addressed

the admissibility of the data from the EDR.

The defendant seeks the "preclusion" of the results of the data from the powertrain control module (black box) obtained from the defendant's automobile after the accident, [*9]based upon the grounds that the results are scientifically unreliable. In the alternative, the defendant requests that the court conduct a Frye hearing prior to the trial to ascertain the reliability of the results.[FN5] The admissibility test for expert testimony was established in Frye v United States (293 F 1013 [1923]). It requires that expert testimony be based on scientific principle or procedure which has been sufficiently established to have gained general acceptance in the particular field in which it belongs. (People v Wesley, 83 NY2d 417 [1994].) The New York Court of Appeals has unanimously affirmed the continuing validity of the Frye test, rather than the federal Daubert test standard. (See, Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579 [1993].) The Frye test standard only applies to novel scientific theories or tests. (People v Wernick, 89 NY2d 111 [1996].) Whether the Frye standard has been satisfied with respect to a particular type of scientific evidence is for the trial judge to decide. A court may be able to make its determination by reference to

28 scientific literature or judicial opinions. (People v Hopkins, 6 Misc 3d 1008[A], 2004 NY Slip Op 51748[U] [Monroe County Ct 2004].) If there is insufficient scientific literature or judicial opinions, a court may conduct a hearing on the issue of general acceptance in the relevant scientific community. (People v Jeter, 80 NY2d 818 [1992].) In New York, trial level courts have held that data recorded on a "Sensing Diagnostic Module" (SDM) or a "black box" seized from a defendant's automobile is reliable, without holding a Frye hearing. (See, People v Hopkins, 6 Misc 3d 1008[A], 2004 NY Slip Op 51748[U], supra; People v Christmann, 3 Misc 3d 309 [Just Ct, Wayne County 2004].) In Nassau County, Judge Honorof, after conducting a Frye hearing, found the data recorded on a SDM to be scientifically reliable. (See, People v Slade, Index No. 0666-03.) Notwithstanding the foregoing, however, no appellate court in New York State has ruled on the admissibility of data recorded on a SDM. Nor have the People presented this court with any literature concerning the scientific principles of a SDM or the reliability of data recorded on a SDM. Thus, this court finds that there is a lack of binding judicial precedent on this issue and this court cannot admit into evidence the data recorded on the "black box" without first holding a hearing on its reliability. Moreover, in the instant case the data was recorded on a "powertrain control module" (black box), not a SDM (black box). The court is not certain whether a "powertrain control module" and a SDM are one and the same. In view of the foregoing, the portion of the defendant's motion seeking an in limine pretrial evidentiary ruling prohibiting the use of data from the "black box" found in the defendant's automobile is granted to the extent that a Frye hearing shall be held prior to [*10]trial.

A contrary result was reached in People v Hopkins, 6 Misc.3d 1008(A), 800

N.Y.S.2d 353, 2004 N.Y. Slip Op. 51748(U), 2004 WL 3093274 (Monroe Co.Ct. 2004).

Defendant has moved, in limine, for a hearing pursuant to Frye v. United States, 293 F 1013, to test the reliability of the information contained in the SDM (sensing diagnostic module or "black box") modules seized from the vehicle, a 2004 Cadillac alleged to have been driven by the defendant at the time of the crash [FN2]. He contends that application of the Frye standard would preclude the admission of such information because the SDM module has not been generally accepted as reliable in the scientific community in this state as indicated by the absence of judicial precedent on this issue. The People oppose a Frye hearing and urge this court to adopt the reasoning and findings set forth in Bachman v. General Motors Corporation, 332 Ill App 3rd (4th Dist 2003), a decision issued by an appellate level court in the State of Illinois recognizing SDM data as being generally accepted as reliable and accurate by the automobile industry and, therefore, admissible pursuant to Frye v. United States, 293 F 1013. They also refer the court to a Newark Village Court case [*13]decided on January 16, 2004, wherein the court, based upon its adherence to the Frye determination rendered in Bachman v.

29 General Motors Corporation, concluded that the evidence of data recorded on a SDM was admissible (People v. Christmann, 3 Misc 3d 309 defendant was charged with speeding and failure to exercise due care in a fatal automobile accident involving a pedestrian). Additionally, the People have submitted several other exhibits in support of their position, namely, a copy of the transcribed minutes of the Davis-Frye hearing held on January 10, 2003, in the Circuit Court for the County of Eaton in the case People of the State of Michigan v. Stephan Wood which reflects the trial court's decision to admit evidence of data collected from SDMs as well recognized and accepted in the scientific community; and three articles entitled, respectively, "Recording Automobile Crash Event Data" presented at the International Symposium on Transportation Recorders held May 3-5, 1999 and authored by Augustus "Chip" Chidester, John Hinch, members of the National Highway Traffic Safety Administration and Thomac C. Mercer, Kevin S. Schultz, representatives of the General Motors Corporation; "Real World Experience With Event Data Recorders" authored by Augustus "Chip" B. Chidester, John and Thomas A. Roston, all members of the National Highway Traffic Safety Administration (undated); and "Crash Data Retrieval System Validation Testing," a report of the Wisconsin State Patrol Academy issued on November 2, 2001. The People argue further that defendant's stated concerns regarding the SDM data limitations raise foundational issues regarding the specific reliability of the procedures used to generate data, all of which go to the weight of the evidence rather than its admissibility. When discussing the Frye standard of admissibility in connection with DNA evidence, the New York Court of Appeals in People v. Wesley, 83 NY2d 417, 420-423 stated: "While foundation concerns itself with the adequacy of the specific procedures used to generate the particular evidence to be admitted, the test pursuant to Frye v United States (293 F 1013) poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. *** The long-recognized rule of Frye v United States (supra) is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has 'gained general acceptance' in its specified field. In Frye (supra, at 1014) the court stated: 'Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs' (emphasis supplied). *** This Court has noted that the particular procedure need not be 'unanimously indorsed' by the scientific community but must be 'generally accepted as reliable' (see, [*14]People v Middleton, 54 NY2d 42, 42, 49, supra)."

Also in Wesley, the Court of Appeals acknowledged that application of the Frye standard to other types of novel scientific evidence, e.g. use of radar in speed detection (People v. Magri, 3 NY2d 562, 565-566) and identification through bite marks (People v.

30 Middleton, 54 NY2d 42, 49-50), had resulted in a judicial determination concerning their general acceptance as reliable in the relevant scientific community. The key to admissibility of novel or scientific evidence is general acceptance in the scientific community as reliable. According to one noted treatise, reliability may be established in at least three ways: (1) "general acceptance may be so notorious that the court may take judicial notice of it" (2) "acceptance may be established by reference to legal writings and judicial opinions" (3) if neither of the above can be resorted to, the trial judge "may conduct a hearing at which the proponent may establish admissibility by offering evidence of acceptance, including the expert's own testimony" (Prince, Richardson on Evidence § 7-311 [Farrell 11th ed]; cites omitted).

In this case, the court is persuaded, based upon its review of the cases and other supporting documentation submitted by the People, and in the absence of any contrary or contradictory evidence, that the SDM module technology has been generally accepted as reliable in the relevant scientific community. A Frye hearing is, therefore, unnecessary to determine the admissibility of evidence with respect thereto at trial. The defendant's request for such hearing is denied.

This decision was affirmed. 46 A.D.3d 1449 (4th Dept. 2008), app. den., 10

N.Y.3d 812 (2008).

Contrary to defendant's further contention, the court did not abuse its discretion in denying defendant's motion for a Frye hearing with respect to the admissibility of the data contained in the sensing diagnostic module (SDM) in *1450 defendant's automobile, which provided information concerning the speed at which defendant was traveling. “A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings . . . ‘Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered[, and courts] may take judicial notice of [its] reliability’ ” (People v LeGrand, 8 NY3d 449, 458 [2007]). “The admissibility of evidence of the data recorded on a[n] SDM has been received into evidence as ‘generally accepted as reliable and accurate by the automobile industry and the [National Highway and Traffic Safety Administration]’ ” (People v Christmann, 3 Misc 3d 309, 315 [2004], citing Bachman v General Motors Corp., 332 Ill App 3d 760 [4th Dist 2002]). In any event, even assuming, arguendo, that the court erred in determining that the data in question was admissible, we conclude that the error is harmless. The People otherwise presented the testimony of eyewitnesses and accident reconstruction specialists, as well as defendant's own statement, all of which was consistent with the data in question, and there is no significant probability that defendant would have been acquitted if not for the **2 admission of the data in evidence (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

Liability

31 The NYS PJI [primarily PJI 2:75 – 87.2, 2:25-26A, 2:29] is the best resource to

research virtually all areas of law. The following are some recent cases relevant to the

area of liability. Note that the limitations of CPLR Article 16 do not apply to a motor

vehicle accident. CPLR 1602(6).

The key issues to establish are:

1. speed; 2. distance; 3. time.

VTL v. NYC Traffic Rules

In Kakaroubas v Limberatos, 70 AD3d 781 (2nd Dept. 2010)

In this two-car accident that occurred at the intersection of Crescent Street and 36th Avenue in Queens, the drivers of both cars, the defendants, Theofrastos Limberatos and Peter Golfinopoulos, each claimed that they had a green light when they entered the intersection and that they did not see the other car until the impact. At trial, the plaintiff, a passenger in the vehicle operated by Limberatos, testified that the Limberatos vehicle had the green light when it entered the intersection.

As pertinent to the appeal, at the charge conference, inter alia, the plaintiff requested that the court instruct the jury pursuant to PJI 2:79, which sets forth that even a driver with a green light must still use reasonable care in entering the intersection. The court denied the request, explaining that since New York City traffic rules and regulations governed, and such rules allow a driver with a green light to proceed without a duty to look for oncoming traffic, the Vehicle and Traffic Law, upon which the requested charge applies, was inapplicable. The jury returned a verdict finding only Limberatos liable. The plaintiff and Limberatos then settled as to liability, for the sum of $100,000. Subsequently, a judgment was entered dismissing the complaint and the cross claims insofar as asserted against Golfinopoulos. The plaintiff appeals from so much of the judgment as dismissed the complaint insofar as asserted against Golfinopoulos. We affirm. Contrary to the plaintiff’s contention, the evidence adduced at trial did not warrant [*2]instructing the jury pursuant to PJI 2:79, which provides, in pertinent part, “a driver who has a green light must still use reasonable care under the circumstances. Thus, if the driver saw or should have seen another vehicle in the intersection or so near the intersection that a collision was likely to occur, the driver was required to use reasonable care to avoid the collision” (PJI 2:79 [emphasis added]).

32 Here, both defendants testified that they did not see the other’s car enter the intersection prior to the impact, and indeed, never saw the other’s car until the collision. Thus, the evidence at issue here did not give rise to a question of comparative negligence, i.e., whether either defendant entered the intersection with a green light despite seeing the other defendant’s vehicle already in the intersection. Accordingly, the only issue at trial, with respect to liability, was which vehicle entered the intersection against the red light, a fact rendering the requested PJI 2:79 instruction unwarranted (cf. Siegel v Sweeney, 266 AD2d 200 [1999]; Walker v Dartmouth Plan Leasing Corp., 180 AD2d 952 [1992]). Judicial Notice

Ownership Vehicle

In Zegarowicz v Ripatti, 67 AD3d 672 (2nd Dept. 2009) In his amended complaint, the plaintiff alleged that the defendant HVT, Inc. (hereinafter HVT), was the owner of the vehicle operated by the defendant Pertti Ripatti, and that it was vicariously liable for Ripatti's negligence under Vehicle and Traffic Law § 388. In its answer to the amended complaint, HVT denied these allegations, except to admit that it had leased the vehicle to Ripatti, and was identified as the owner on the certificate of title; HVT nonetheless denied that it was an "owner" as defined by Vehicle and Traffic Law §§ 128 and 388, referring all questions of law to the court. Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v 81 & 3 of Watertown., 288 AD2d 890, 891 [2001]; Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655 [1893]). Here, HVT made a formal judicial admission that it was listed as owner on the certificate of title. A certificate of title is prima facie evidence of ownership (see Vehicle and Traffic Law § 2108 [c]; Switzer v Aldrich, 307 NY 56 [1954]; Corrigan v DiGuardia, 166 AD2d 408 [1990]; Salisbury v Smith, 115 AD2d 840 [1985]). Although this presumption of ownership is not conclusive, and may be rebutted by evidence which demonstrates that another individual owned the vehicle in question (see Aronov v Bruins Transp., 294 AD2d 523 [2002]; Dorizas v Island Insulation Corp., 254 AD2d 246 [1998]), there was no evidence in the record to rebut that presumption. "In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds 'warranted by the facts,' bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses" (Stevens v State of New York, 47 AD3d 624, 624-625 [2008], quoting Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Based on our review of the evidence, judgment in favor of the plaintiff and against HVT on the issue of liability is warranted.

Permissive Use

33 In State Farm Mut. Auto. Ins. Co. v Taveras, 71 AD3d 606 (1st Dept. 2010)

Additional respondents, the owner and insurer of the offending vehicle, assert that the vehicle was uninsured at the time of the accident because it was being driven by an unknown thief. No basis exists to disturb the court’s finding, after a framed-issue hearing, that the evidence of such theft and nonpermissive use was insufficient to overcome the presumption of permissive use (see Murdza v Zimmerman, 99 NY2d 375, 380 [2003] [“substantial” evidence needed to overcome presumption of permissive use]; Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992] [fact-finding court’s decision should not be disturbed on appeal unless it is “obvious” that its conclusions could not be reached under any fair interpretation of the evidence, especially where findings of fact largely rest on witness credibility]). In so finding, the hearing court properly took into account the owner’s failure to adequately explain his substantial delay in calling the police to report the alleged theft, which call immediately followed an alleged assault on the owner and his friends by a mob of angry people (see Minaya v Horner, 279 AD2d 333 [2001]). There being no dispute that the burden of proof was initially on additional respondents to prove nonpermissive use, it does not avail them that the hearing court also rejected as incredible the testimony of one of the victims, called by petitioner, that he had seen the owner sitting in the passenger side of the car in the seconds before the car jumped the curb and knocked him down. In Amex Assur. Co. v Kulka, 67 AD3d 614 (2nd Dept. 2009)

"Vehicle and Traffic Law § 388 creates a strong presumption' (Matter of State Farm Mut. Auto. Ins. Co. v Ellington, 27 AD3d 567, 568) of permissive use which can only be rebutted with substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner's express or implied permission" (Talat v Thompson, 47 AD3d 705, 705; see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704). " The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use'" (Talat v Thompson, 47 AD3d at 706, quoting Matter of State Farm Mut. Auto. Ins. Co. v Ellington, 27 AD3d at 568; see Matter of General Acc. Ins. Co. v Bonefont, 277 AD2d 379). Additionally, " [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury'" (Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d 172, 177, quoting St. Andrassy v Mooney, 262 NY 368, 372). Under the circumstances presented here, the defendants failed to sufficiently rebut the strong presumption pursuant to Vehicle and Traffic Law § 388 that Devin was operating the vehicle with the permission of the owner, NYIT, and its employee, Harriet (see Talat v Thompson, 47 AD3d 705; Cherry v Tucker, 5 AD3d 422). Accordingly, the Supreme Court properly determined that NYIT and Harriet failed to establish their prima facie entitlement to judgment as a matter of law. Graves Amendment

34 In Collazo v MTA-New York City Tr., 74 AD3d 642 (1st Dept. 2010),

defendants motion for summary judgment based on the Graves Amendment was properly

denied.

The motion was properly denied because while the Federal Transportation Equity Act of 2005 (49 USC § 30106) (Graves Amendment) bars negligence claims against car-rental companies based solely on a theory of vicarious liability (see Hernandez v Sanchez, 40 AD3d 446, 447 [2007]), here, the complaint alleges, inter alia, negligent maintenance of U-Haul’s truck. Such claim is not barred by the Graves Amendment since the statute does not absolve leasing companies of their own negligence (see Novovic v Greyhound Lines, Inc., 2008 WL 5000228,*3, 2008 US Dist LEXIS 94176, *7-9 [ED NY 2008]).

In Hood v Avis Rent A Car Sys., Inc., 69 AD3d 797 (2nd Dept. 2010) The appellants moved for summary judgment dismissing the complaint insofar as asserted against them, inter alia, on the ground that this dispute was governed by the law of Pennsylvania, which followed the common-law rule that, absent an employer- employee relationship, an automobile’s owner is not vicariously liable for the negligence of its driver (see Budget Rent-A-Car Sys., Inc. v Chappell, 407 F3d 166, 171 [2005], cert denied 546 US 978 [2005]). The Supreme Court denied the appellants’ motion and granted the plaintiffs’ cross motion for summary judgment on the issue of liability. Following a trial on the issue of damages, the jury returned a verdict in favor of the plaintiff Ruth Hood and against the appellants in the principal sum of $2,550,000 ($1,000,000 for past pain and suffering, $1,500,000 for future pain and suffering, and $50,000 for lost earnings). The court subsequently denied the appellants’ motion, inter alia, pursuant to CPLR 4404 (a) to set aside the verdict as excessive.

“New York law makes vehicle lessors, their assignees, and their agents vicariously liable as ‘owners’ under the Vehicle and Traffic Law in an action, such as the one here, which was commenced prior to the effective date of the Graves Amendment (49 USC § 30106), which bars actions to recover damages against certain lessors of vehicles that are predicated upon the negligence of their lessees, and preempts all state laws that purport to authorize such actions” (Zegarowicz v Ripatti, 67 AD3d 672, 674 [2009]).

Taxis

In Terranova v Waheed Brokerage, Inc.,78 A.D.3d 1040 (2nd Dept. 2010), the

court held that

Contrary to Waheed's contention, the Graves Amendment (49 USC § 30106) would not apply where, as here, the plaintiffs seek to hold Waheed directly liable for its alleged failure to maintain the taxi's brakes in adequate condition (see Collazo v

35 MTA-New York City Tr., 74 AD3d 642 [2010]; see also Vehicle and Traffic Law § 375 [1] [a]; Fried v Korn, 286 App Div 107, 109 [1955], affd 1 NY2d 691 [1956]; cf. Gluck v Nebgen, 72 AD3d 1023 [2010]).

In Hall v ELRAC, Inc. 52 A.D.3d 262 (1st Dept. 2008),

We also reject plaintiff's argument that the Graves Amendment violates equal protection by favoring car rental companies over other vehicle owners, such as taxi owners, repair shop owners who provide loaner vehicles to customers, and car dealerships that allow test drives, who also allow others to operate their vehicles.

Loaner

In Zizersky v Life Quality Motor Sales, Inc. , 21 Misc.3d 871 (Sup. Kings

2008), the court held that the Graves Amendment did not apply to “loaner” cars.

Improperly Parked Car

In Hopkins v Ambrose, 74 AD3d 1455 (3rd Dept. 2010)

“It is well settled that owners of improperly parked [vehicles] may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact of the issues of foreseeability and proximate cause unique to the particular case” (Boehm v Telfer, 250 AD2d 975, 976 [1998] [internal quotation marks and citation omitted]; see Ferrer v Harris, 55 NY2d 285, 293-294 [1982]). Here, in opposition to the Petkashes’ motion for summary judgment, plaintiff submitted affidavits from eyewitnesses—one of whom was in the Petkashes’ vehicle at the time of the accident—stating that Lucas Petkash backed his truck onto Route 7, facing westbound, and stopped on the center yellow line with the vehicle’s headlights in operation. These eyewitnesses also averred that plaintiff walked up to the truck to talk to its occupants, and was hit while walking away from the Petkashes’ truck. Although Ambrose testified that he saw a white or grey truck—as opposed to a black truck such as that driven by Lucas Petkash—facing him in his eastbound lane of travel, we conclude that the evidence presented by plaintiff created questions of fact regarding whether Lucas Petkash negligently parked his vehicle on Route 7, thereby obstructing the roadway and contributing to the accident (see Ferrer v Harris, 55 NY2d at 293-294; Perry v Pelersi, 261 AD2d 780, 781-782 [1999]; Boehm v Telfer, 250 AD2d at 976; see also Yavkina v New York City Police Dept., 60 AD3d 669, 669-670 [2009]; Murray-Davis v Rapid Armored Corp., 300 AD2d 96, 96 [2002]).

In Borbon v Pescoran, 73 AD3d 502 (1st Dept. 2010)

This personal injury action arises from a motor vehicle accident in the Bronx in 2006. The vehicle in which plaintiff was a passenger drove up behind a Marvarino’s box truck

36 double-parked in the right-hand travel lane of Webster Avenue, in front of a Cookies department store. When plaintiff’s vehicle shifted lanes to the left, it came into contact with a tractor-trailer driven by defendant Pescoran. There was no contact between any vehicle and the Marvarino’s truck.

An issue of fact exists as to whether the Marvarino’s truck was illegally double- parked, which would constitute some evidence of negligence (see Murray-Davis v Rapid Armored Corp., 300 AD2d 96 [2002]). But for the position of that truck, plaintiff’s vehicle would not have had to make the lane change that purportedly precipitated the accident (Ferrer v Harris, 55 NY2d 285, 293 [1982]; see also Naeris v New York Tel. Co., 6 AD2d 196 [1958], affd 5 NY2d 1009 [*2][1959]). Furthermore, even if the Marvarino defendants were not the sole cause of the accident, they could still be found liable if they were a contributing cause (see e.g. Commisso v Meeker, 8 NY2d 109, 117 [1960]). Red Light

In Tselebis v Ryder Truck Rental, Inc. , 72 AD3d 198 (1st Dept. 2010), the

First Department issued an interesting decisions.

Summary judgment in favor of plaintiff is warranted by the proof before the court. Melendez’s admission that he entered the intersection while the traffic light was red constituted a prima facie showing of liability on his part (cf. Diasparra v Smith, 253 AD2d 840 [1998]). The proffer of brake failure by Melendez and his employer, defendant{**72 AD3d at 200} Tom Cat Bakery, as a cause of the accident, is insufficient to raise a triable factual issue with respect to their liability. A defendant claiming brake failure must make a two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that he exercised reasonable care to keep them in good working order (O’Callaghan v Flitter, 112 AD2d 1030 [1985]). These defendants have failed to meet the first prong in light of Melendez’s testimony of problems he experienced with the truck’s brakes prior to the accident.

Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. A plaintiff’s culpable conduct no longer stands as a bar to recovery in an action for personal injury, injury to property or wrongful death. Under CPLR 1411, such conduct merely acts to diminish the plaintiff’s recovery in proportion to the culpable conduct of the defendants. This statute, enacted in 1975, substituted the notion of comparative fault for the common-law rule that barred a plaintiff from recovering anything if he or she was responsible to any degree for the injury (Alexander, Practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR C1411:1). Here, plaintiff’s own negligence, if any, would have no bearing on defendants’ liability. Stated differently, it is not plaintiff’s burden to establish defendants’ negligence as the sole proximate cause of his injuries in order to make out a prima facie case of negligence (see Kush v City of Buffalo, 59 NY2d 26, 32-33 [1983]). To establish a prima facie case, a plaintiff “must generally show that the defendant’s negligence was a

37 substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980] [emphasis added]). We note that opinions by this Court and others suggest that freedom from comparative negligence is a required component of a plaintiff’s prima facie showing on a motion for summary judgment (see e.g. Palmer v Horton, 66 AD3d 1433 [2009]; Cator v Filipe, 47 AD3d 664 [2008]; Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736 [1993]). These opinions [*2]cannot be reconciled with CPLR 1411 if the statute is to be given effect. Canh Du v Hamell (19 AD3d 1000 [2005]) is distinguishable because it was a vacatur of a determination that a defendant’s negligence was the sole proximate cause of an accident, a finding we do not purport to make. Parenthetically, CPLR 1412 makes culpable conduct claimed in diminution of damages under section 1411 an affirmative defense to be pleaded and proved by{**72 AD3d at 201} the party asserting it. In this regard, Melendez and Tom Cat offer only speculation in support of their assertion that plaintiff failed to use reasonable care to avoid the collision. Accordingly, the order of Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 17, 2008, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment, should be reversed, on the law, without costs, the motion granted on the issue of liability, and the matter remanded for a trial on damages, to encompass the issues of plaintiff’s culpable conduct and the extent to which his recovery should be diminished in proportion thereto. In Roman v A1 Limousine, Inc. (2010 NY Slip Op 06367), the Second

Department then disagreed with this analysis in , so we will wait for the Court of

Appeals to resolve the issue.

To the extent that the Appellate Division, First Department holds differently (see Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198), we disagree and decline to follow that holding. In Thoma v Ronai (82 NY2d 736), a case directly on point, the Court of Appeals, in affirming an order issued by the Appellate Division, First Department, expressly concluded that the plaintiff’s motion for summary judgment on the issue of liability was properly denied where the plaintiff’s submissions failed to eliminate a triable issue of fact regarding her comparative negligence. Moreover, contrary to the Appellate Division, First Department’s statements in [*2]Tselebis, CPLR 1411 was not relevant to the issues presented herein. CPLR 1411 codifies the rule that any culpable conduct attributable to the plaintiff, including his or her negligence or assumption of risk, does not bar the plaintiff’s recovery of damages, but shall diminish that recovery in proportion to the culpable conduct of the defendant. CPLR 1411 pertains to the damages ultimately recoverable by a plaintiff. It has no bearing, procedurally or substantively, upon a plaintiff’s burden of proof as the proponent of a motion for summary judgment on the issue of liability. Stop Sign

38 In Thompson v Schmitt 74 AD3d 789 (2nd Dept. 2010))

A driver who fails to yield the right of way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law (see Klein v Crespo, 50 AD3d 745, 745; Gergis v Miccio, 39 AD3d 468, 468). “A driver is required to see that which through proper use of his or her senses he or she should have seen,” and the driver with the right of way “is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield” (Klein v Crespo, 50 AD3d at 745-746; see Sirot v Troiano, 66 AD3d 763, 764; Hull v Spagnoli, 44 AD3d 1007; Gergis v Miccio, 39 AD3d at 468). “The question of whether the driver stopped at the stop sign is not dispositive where the evidence establishes that he or she failed to yield even if he or she did stop” (Goemans v County of Suffolk, 57 AD3d 478, 479; see Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 652; Morgan v Hachmann, 9 AD3d 400, 400).

Left Turn

In Fenster v Ellis, 71 AD3d 1079 (2nd Dept 2010)

That branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against Ellis should have been granted. The plaintiff established, prima facie, that Ellis made a left turn into the path of her vehicle without yielding the right-of-way, and under circumstances when the turn could not be made with reasonable safety. The plaintiff, who had the right-of-way, was entitled to anticipate that Ellis would obey the traffic law which required him to yield, and his violation of Vehicle and Traffic Law § 1141 was the sole proximate cause of the accident (see Torro v Schiller, 8 AD3d 364 [2004]).

In Covington v Kumar, 67 AD3d 463 (1st Dept. 2009) Plaintiff was injured while riding in the back passenger seat of a taxicab, which was driven by Kumar and owned by Lal. The taxicab made a left turn across an intersection and was struck by an approaching vehicle driven by McCalla and owned by Thomas. After trial, the jury apportioned 100% fault against defendants McCalla and Thomas. The parties stipulated that defendant McCalla had a green light in his favor as he entered the intersection. Yet, inexplicably, the jury apportioned 100% fault against defendants McCalla and Thomas, and 0% against Kumar and Lal. The Court denied both the motion to set aside the verdict and also the motion for a directed verdict. We vacate the judgment insofar as it apportioned fault. CPLR 4404 (a) permits a court to set aside a jury verdict and direct a new trial if the verdict is against the weight of the evidence. "[W]hether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Vehicle and Traffic Law § 1141 provides that "[t]he driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the

39 right of way to any vehicle [*2]approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." Kumar did not testify at trial, and his attorney acknowledged his liability. Indeed, counsel stated that Kumar was challenging only the claim that plaintiff suffered a serious injury. At a minimum, Kumar was negligent when he made a left hand turn without yielding the right-of-way, in violation of Vehicle and Traffic Law § 1141. Under such circumstances, the jury verdict finding no fault against Kumar is against the weight of the evidence. We therefore remand for a new trial on the apportionment of damage, unless all defendants stipulate as indicated (see McGorry v Madison Sq. Garden Corp., 4 AD3d 264 [2004]).

Rear Ender

In Maynard v Vandyke, 69 AD3d 515 (1st Dept. 2010)

Plaintiff’s vehicle, while stopped at a traffic light, was struck in the rear by defendant’s vehicle. In opposition to plaintiff’s motion for summary judgment, defendant failed to raise a question of fact as to whether there was a nonnegligent reason for the collision (see Mullen v Rigor, 8 AD3d 104 [2004]). Since defendant herself would be the party with knowledge of any such nonnegligent reasons, it does not avail her that her counsel had not yet received plaintiff’s bill of particulars setting forth his claims in detail (Soto-Maroquin v Mellet, 63 AD3d 449 [2009])

In Celentano v Moriarty (2010 NY Slip Op 06154) (2nd Dept)

A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle and imposes a duty on that operator to provide a non-negligent explanation for the collision (see Carman v Arthur J. Edwards Mason Contr. Co. Inc., 71 AD3d 813, 813-814; Franco v Breceus, 70 AD3d 767, 768). Here, the defendant failed to provide a non-negligent explanation for the collision. Her assertion that the plaintiffs’ vehicle came to a sudden stop in front of her vehicle is not supported by any evidence in the record (see Farrington v New York City Tr. Auth., 33 AD3d 332). Accordingly, in response to the plaintiffs’ prima facie showing of their entitlement to judgment as a matter of law, the defendant failed to raise a triable issue of fact. Thus, the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability.

Similarly, in Avant v Cepin Livery Corp., 74 AD3d 533 (1st Dept. 2010)

Plaintiff was a passenger in the backseat of defendant Cepin Livery Corp.’s vehicle when that vehicle struck the back of appellants’ vehicle, which was stopped at a red light,

40 before hitting another car; plaintiff sustained injuries as a result of the accident. Under the circumstances, summary judgment in favor of appellants is warranted because when such a rear-end collision occurs, the owner and operator of the front vehicle are entitled to summary judgment on liability unless the driver of the following vehicle can provide a nonnegligent explanation for the collision (see Mullen v Rigor, 8 AD3d 104 [2004]; Johnson v Phillips, 261 AD2d 269, 271 [1999]). Here, the opposition failed to provide such a nonnegligent explanation (see Grimes-Carrion v Carroll, 13 AD3d 125 [2004]). Contrary to the finding of the motion court, depositions are not needed since the opponents of the motion had personal knowledge of the facts (cf. CPLR 3212 [f]), and failed to [*2]meet their obligation of laying bare their proof and presenting evidence sufficient to raise a triable issue of fact (Morgan v New York Tel., 220 AD2d 728 [1995])

In Dicturel v Dukureh, 71 AD3d 558 (1st Dept. 2010) Summary judgment on the issue of liability should have been granted in this action for personal injuries sustained when plaintiff’s vehicle was struck in the rear by defendant’s vehicle. “When such a rear-end collision occurs, the injured occupant[ ] of the front vehicle [is] entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form, for the collision” (Johnson v Phillips, 261 AD2d 269, 271 [1999]). Here, defendant’s opposition failed to provide such a nonnegligent explanation. Although defendant maintained that the accident was the result of plaintiff stopping suddenly, this does not explain his failure to maintain a safe distance from the vehicle in front of him and is “insufficient to rebut the presumption that no negligence on plaintiff’s part contributed to the accident” (Soto-Maroquin v Mellet, 63 AD3d 449, 450 [2009]; see Verdejo v Aguirre, 8 AD3d 63 [2004]; Vehicle and Traffic Law § 1129 [a])

In Posada v Great Atl. & Pac. Tea Co., 70 AD3d 1019 (2nd Dept. 2010), this

doctrine was applied to a case in a supermarket.

The plaintiff alleged that while she was shopping in the dairy section of the defendant supermarket, she reached for an item in an open refrigeration unit, and was struck from the rear by a “large multi-wheeled cart.” The cart, which contained products to put on the shelves of the supermarket, was being used by one of the defendant’s employees. The plaintiff commenced this action and subsequently moved, inter alia, for summary judgment on the issue of liability, which was denied by the Supreme Court. In response to the plaintiff’s establishment, prima facie, of her entitlement to judgment as a matter of law, the defendant failed to submit evidence sufficient to raise a triable issue of fact (see Araujo v Elkahlaoui, 68 AD3d 1030 [2009]). Intersection

In Stanford v Dushey, 71 AD3d 988 (2nd Dept. 2010)

41 The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence that the defendant driver failed to yield the right- of-way as the plaintiff proceeded lawfully through the intersection (see Vehicle and Traffic Law § 1142 [a]; Khan v Nelson, 68 AD3d 1062 [2009]; Falcone v Ibarra, 67 AD3d 858, 859 [2009]; Yelder v Walters, 64 AD3d 762, 763-764 [2009]; Grossman v Spector, 48 AD3d 750, 751 [2008]). In opposition, the defendants failed to raise a triable issue of fact. Since the defendant driver admitted in her affidavit that she did not see the plaintiff’s vehicle prior to the collision, the defendants’ contention that the plaintiff may have been speeding or may have been negligent in failing to take evasive action was speculative (see Loch v Garber, 69 AD3d 814 [2010]; Khan v Nelson, 68 AD3d at 1062; Falcone v Ibarra, 67 AD3d at 859; Yelder v Walters, 64 AD3d at 764; Exime v Williams, 45 AD3d 633, 634 [2007]). Furthermore, the defendants failed to establish that additional discovery would yield any facts indicating that the plaintiff was at fault and justify the denial of the plaintiff’s motion (see CPLR 3212 [f]; Falcone v Ibarra, 67 AD3d at 859; Carpio v Leahy Mech. Corp., 30 AD3d 554, 555 [2006]; Szczotka v Adler, 291 AD2d 444 [2002]). Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the issue of liability.

Pedestrian

In Topalis v Zwolski 76 A.D.3d 524 (2nd Dept. 2010), the Appellate Division,

Second Department, reversed the lower court for granting summary judgment to a driver.

The plaintiffs’ decedent allegedly was crossing the street within a crosswalk against the traffic light when he was struck by a vehicle operated by the defendant Kenneth E. Zwolski at or near an intersection. The plaintiffs’ decedent had already walked across three lanes of traffic when he came into contact with the middle of the front of the Zwolski vehicle. Zwolski testified at his deposition that it was dark outside, that the decedent was wearing dark clothing, and that he did not see any pedestrians prior to the impact. A police officer testified at a DMV hearing that a street lamp at the intersection illuminated the westbound lane in which Zwolski was traveling. A driver is bound to see what is there to be seen with the proper use of his senses (see Spicola v Piracci, 2 AD3d 1368; Gonzalez v County of Suffolk, 277 AD2d 350), and there can be more than one proximate cause of an accident (see generally Tapia v Royal Tours Serv., Inc., 67 AD3d 894, 896; Cox v Nunez, 23 AD3d 427; Romano v 202 Corp., 305 AD2d 576). Under the circumstances, Zwolski failed to submit evidence sufficient to establish, prima facie, that the decedent’s alleged negligence was the sole proximate cause of the accident, that he kept a proper lookout, and that his alleged negligence, if any, did not contribute to the happening of the accident (see Spicola v Piracci, 2 AD3d 1368; Gonzalez v County of Suffolk, 277 AD2d at 350). In light of our determination, we need not review the sufficiency of the plaintiffs’ opposition papers.

In Hernandez v We Transp., Inc., 67 AD3d 967 (2nd Dept. 2009)

The Supreme Court should have denied the defendants' motion for summary judgment

42 dismissing the complaint since the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. Based upon the deposition testimony of the parties, a triable issue of fact exists as to whether the defendant driver contributed to the subject accident by failing to exercise due care to avoid a collision with the infant plaintiff, who was crossing the street at a point other than an intersection or crosswalk (see Vehicle and Traffic Law § 1146; Ryan v Budget Rent a Car, 37 AD3d 698, 699 [2007]; Pareja v Brown, 18 AD3d 636, 637 [2005]; Vanni v Bartman, 16 AD3d 671, 672 [2005])

Bicycle

In Joannis v Cahill, 71 AD3d 1437 (4th Dept. 2010), the court reminded us that a

bicycle is a vehicle. (see, Vehicle and Traffic Law § 1231).

At the time of the accident, defendant was driving northbound on North Goodman Street and was attempting to turn right onto the Route 104 ramp. Plaintiff was also traveling northbound on the sidewalk adjacent to North Goodman Street and was attempting to proceed straight through the crosswalk on his bicycle. It is undisputed that the traffic signal controlling the intersection was green in favor of both plaintiff and defendant. Pursuant to Vehicle and Traffic Law § 1111 (a) (1), “[t]raffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the[right-of-way] to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited” (emphasis added). We reject the contention of plaintiff that he was lawfully within the crosswalk because the pedestrian- control signal displayed a “walking person” immediately prior to the accident (§ 1112 [a]). As a bicyclist, plaintiff was “subject to the vehicular traffic control devices at the intersection, i.e., the traffic signal light . . . , and not the pedestrian[-]control device” (Redcross v State of New York, 241 AD2d 787, 791 [1997], lv denied 91 NY2d 801 [1997]; see Vehicle and Traffic Law § 1231; see also §§ 130, 152). We also reject the contention of defendants, however, that defendant had the right-of-way because plaintiff was required to stop before entering the crosswalk pursuant to Vehicle and Traffic Law § 1234 I. That statute provides that “[a]ny person operating a bicycle . . . who is [*2]entering the roadway from a private road, driveway, alley or over a curb shall come to a full stop before entering the roadway.” It is inapplicable where, as here, the plaintiff was crossing the roadway in a marked crosswalk after leaving the sidewalk through a curb cut (cf. Abbate v Liss, 284 AD2d 487 [2001]). We thus conclude that both plaintiff and defendant had the right-of-way at the time of the accident and were each required to “yield the [right-of-way] to other traffic lawfully within the intersection or [the] adjacent crosswalk” (Vehicle and Traffic Law § 1111 [a] [1]). Plaintiff failed to meet his initial burden of establishing that he entered the intersection first (see generally Zuckerman v City of New York, 49 NY2d 557, 562

43 [1980]). Indeed, plaintiff submitted the deposition testimony of a witness who testified that she believed defendant had already begun turning into the intersection before plaintiff entered the crosswalk. Even assuming, arguendo, that plaintiff met his initial burden on the cross motion, we conclude that defendants raised a triable issue of fact in opposition by submitting, inter alia, an affidavit from an expert in accident reconstruction and forensic engineering who indicated that defendant’s vehicle had almost completed its turn when plaintiff entered the crosswalk (see generally id.).

In Hyatt v Messana, 67 AD3d 1400 (4th Dept. 2009) Plaintiff commenced this action seeking damages for injuries sustained by her daughter when she was struck at an intersection by a vehicle operated by Kathy L. Messana (defendant). At the time of the accident, plaintiff's daughter was 12 years old and was riding her bicycle to school, in a school zone. The street on which she was riding her bicycle was controlled by a stop sign, but the street on which defendant was driving was not. Supreme Court properly denied defendants' motion seeking summary judgment dismissing the complaint. "Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). Plaintiff's daughter was subject to the duties applicable to the driver of a vehicle pursuant to the Vehicle and Traffic Law when she rode her bicycle on the street (see Vehicle and Traffic Law § 1231; Baker v Nassau County Police Activity League, 265 AD2d 515 [1999]), and defendants established that plaintiff's daughter violated Vehicle and Traffic Law § 1142 (a) when she entered the intersection without yielding the right-of-way to defendant. In view of her age, however, it is for a jury to determine whether such statutory violation constitutes negligence (see generally Poczkalski v Cartwright, 65 AD2d 945 [1978]; 1A NY PJI3d 2:49, at 341 [2009]).

In addition, defendant was under a duty to exercise a high degree of care while driving in a [*2]school zone (see 8B NY Jur 2d, Automobiles and Other Vehicles § 1111), and defendants' own submissions raise triable issues of fact whether defendant violated that duty. "Giving plaintiff 'the benefit of every favorable inference' . . . , as we must, we conclude that the evidence indicates that [her daughter] may have been positioned directly in front of defendant's motor vehicle prior to impact" (Spicola v Piracci, 2 AD3d 1368, 1369 [2003]). That evidence, together with defendant's admitted failure to see plaintiff's daughter prior to the impact, raises a triable issue of fact whether defendant "failed to see that which through proper use of [her] senses [s]he should have seen" (Baker, 265 AD2d at 516; see Spicola, 2 AD3d at 1369).

Bus

In Smith v Sherwood, 68 AD3d 1785 (4th Dept. 2009)

44 Plaintiff commenced this action, individually and on behalf of his 12-year-old son, seeking damages for injuries sustained by his son when he was struck by a vehicle operated by defendant Hazel E. Sherwood. At the time of the accident, plaintiff’s son was a student at a private school in defendant City of Syracuse (City) and was transported to and from school on buses owned by defendant Central New York Regional Transportation Authority, also known as Centro, Inc. (Centro), pursuant to a contract between Centro and defendant School District. The buses were not yellow school buses and were not equipped with the safety features [*2]required for school buses pursuant to Vehicle and Traffic Law § 375 (20). On the date of the accident, defendant bus driver drove past the stop for plaintiff’s son and dropped him off on the opposite side of the street. Upon exiting the bus, plaintiff’s son walked in front of the bus and was struck by Sherwood’s vehicle while he was attempting to cross the street. Supreme Court erred in granting that part of the motion of Centro and defendant bus driver (collectively, Centro defendants) seeking summary judgment dismissing the common-law negligence claim against them, and we therefore modify the order accordingly. Because Centro was acting on behalf of the School District in transporting students, Centro had a common-law duty to perform that service in a careful and prudent manner (see Pratt v Robinson, 39 NY2d 554, 561 [1976]). Further, a bus driver has a continuing duty “to exercise reasonable care to [ensure] that discharged [students] reach[ ] a position of safety before moving his [or her] vehicle,” and that duty extends to discharged students who must cross to the opposite side of the street if the bus driver knows that they must do so (Sewar v Gagliardi Bros. Serv., 69 AD2d 281, 286 [1979], affd 51 NY2d 752 [1980]). Here, there is evidence in the record that defendant bus driver knew that plaintiff’s son had to cross the street after exiting the bus, without the benefit of the red flashing lights found on yellow school buses. Although Centro was not subject to the equipment requirements of Vehicle and Traffic Law § 375 (20), the absence of that equipment increased the danger of discharging plaintiff’s son on the wrong side of the street. “[B]ecause ‘[t]he presence of the bus necessarily created some hazard’ . . . by obstructing the views of the child and the drivers of overtaking vehicles, ‘the jury might well find that [the Centro defendants] assumed a duty to protect [the child] against the special danger which it had created’ “ (Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 671-672 [1999], rearg denied 93 NY2d 1042 [1999], quoting McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, Seneca County, 179 Misc 333, 336 [1941], affd 264 App Div 943 [1942], affd 289 NY 800 [1943]). We further conclude that the Centro defendants failed to meet their burden of establishing as a matter of law that defendant bus driver’s failure to provide any supervision or assistance to plaintiff’s son in crossing the street was not a proximate cause of the accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Trailer

In Finch v Ryder Truck Rental, Inc., 68 AD3d 1754 (4th Dept. 2009)

45 Plaintiffs commenced this action seeking damages for injuries sustained by Francis G. Finch, Jr. (plaintiff) when he fell during the course of his employment as a delivery truck driver. Plaintiff’s employer leased its delivery trucks and trailers from defendants and, pursuant to their “Truck Lease and Service Agreement” (Agreement), defendants agreed to provide maintenance and repairs for those vehicles. The trailer attached to the delivery truck that plaintiff was driving on the day of the accident had a refrigerated compartment that was accessed through a side door. At his first stop, plaintiff observed that the pull- out steps to the side door were broken and, after receiving instructions from his employer to continue with his deliveries, plaintiff used a wheeled handcart as a makeshift ladder to gain access to the side door. On his fourth stop, plaintiff fell while descending from the refrigerated compartment, using the handcart. Supreme Court erred in granting defendants’ motion seeking summary judgment dismissing the complaint. According to plaintiffs, defendants had prior notice of the “dangerous disrepair” of the pull-out steps on the trailer used by plaintiff and breached their duty to repair or replace them. Defendants’ own submissions in support of the motion raised triable issues of fact whether defendants had notice of the dangerous condition of the pull-out steps (see generally Seivert v Kingpin Enters., Inc., 55 AD3d 1406, 1407; Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532). In addition, defendants failed to establish as a matter of law that plaintiff’s conduct in using the handcart as a ladder was “unforeseeable or of such a character as to constitute a superseding cause absolving them from potential liability” (Mazzio v Highland Homeowners Assn. & Condos, 63 AD3d 1015, 1016). Finally, the contention of defendants that they owed no duty to plaintiff under the Agreement is raised for the first time on appeal and thus is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985). Emergency Doctrine

In Franco v G. Michael Cab Corp., 71 AD3d 1082 (2nd Dept. 2010)

The plaintiff was employed by an entity called Shelter Express. During the evening of October 26, 2003, he was on duty cleaning a bus stop located in the vicinity of 44th Street and Third Avenue in Manhattan. He had parked his truck near the curb and was bending over in its rear-bed section removing a hose when a yellow taxicab crashed into the rear of the truck, allegedly causing the plaintiff to fall to the ground and sustain injuries. Immediately before the accident, the plaintiff heard a noise and observed two yellow taxicabs—one proceeded straight on the roadway, and the other crashed into his truck. The taxicab which collided with the plaintiff’s truck was owned by the defendant G. Michael Cab Corp. (hereinafter the defendant) and operated by Smail Badrane. The Supreme Court properly denied the defendant’s motion. In support of its motion, the defendant invoked the emergency doctrine by asserting that Badrane was confronted with an emergency situation when the vehicle to his left collided with his taxicab, causing him to crash into the rear of the plaintiff’s vehicle. “[T]he emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection . . . may not be negligent if their

46 actions are reasonable and prudent in the context of the emergency” (Bello v Transit Auth. Of N.Y. City, 12 AD3d 58, 60 [2004]). The defendant could not properly rely on the emergency doctrine in support of its motion. Since the defendant failed to plead the emergency doctrine as an affirmative defense in its answer, and the facts relating to the emergency were known only to the defendant and Badrane, the motion raised new issues of fact not appearing on the face of the pleadings, which resulted in unfair surprise to the plaintiff (cf. Bello v Transit Auth. Of N.Y. City, 12 AD3d at 61).

Dram Shop

In Sullivan v Mulinos of Westchester, Inc. 73 AD3d 1018 2nd Dept. (2010)

In order to establish liability for violation of the Dram Shop Act, the plaintiff is required to prove that the defendants sold alcohol to Sullivan while he was “visibly intoxicated” (see Alcoholic Beverage Control Law § 65[2]; General Obligations Law § 11-101; Adamy v Ziriakus, 92 NY2d 396). In support of their motion, the Trotters defendants offered deposition testimony which, if unrebutted, was sufficient to establish that Sullivan was not served alcohol at Trotters while visibly intoxicated. In opposition, however, the plaintiff raised triable issues of fact. Contrary to the Trotters defendants’ contentions, the affirmation of the Rockland County Medical Examiner, which we find admissible under the circumstances of this case (see Westchester Med. Ctr. V Progressive Cas. Ins. Co., 51 AD3d 1014), was sufficient to raise a triable issue of fact as to whether Sullivan indeed was served alcohol at Trotters Tavern. In addition, although proof of a high blood alcohol content does not, without more, provide a sound basis for drawing inferences about a person’s appearance or demeanor (see Romano v Stanley, 90 NY2d 444), here, the Medical Examiner’s opinion that Sullivan was visibly intoxicated while served alcohol was supported by deposition testimony. Specifically, the person whom Sullivan met at Mulinos Restaurant and later accompanied to Trotters Tavern testified at his deposition, inter alia, that just five minutes before arriving at Trotters Tavern, Sullivan’s speech was heavily slurred, he was argumentative, he stumbled backwards attempting to navigate stairs, and his ability to walk a straight line was significantly impaired (see Adamy v Ziriakus, 92 NY2d 396; LaCatena v M.C. & E.D. Beck, Inc., 35 AD3d 388). In Cohen v Bread & Butter Entertainment LLC, 73 AD3d 600 (1st Dept 2010)

Defendant’s motion papers fail to satisfy its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person (see Darwish v City of New York, 287 AD2d 407 [2001]). The affidavit of its floor manager, that plaintiff’s assailant exhibited no visible signs of intoxication when the manager observed him ordering and being served a drink at the bar earlier on the night of the altercation, does not mention a second drink that, the assailant testified, had been served to him at the bar that night. Merely because the manager observed the assailant being served the first drink does not rule out that the assailant was visibly intoxicated by the time he was served the second drink. We

47 reject defendant’s argument that the assailant’s view of his own state of visible intoxication can serve to make out defendant’s burden on summary judgment. Furthermore, we note that defendant failed to supply affidavits from bartenders who were working on the night in question. Accordingly, the burden never shifted to plaintiff to adduce evidence that defendant served alcohol to the assailant despite visible signs of intoxication (see Duran v Poggio, 244

In Morris v Bianna, Inc., 69 AD3d 910 (2nd Dept. 2010)

On November 11, 2005, shortly after midnight, the defendant Michael Penzo stabbed the plaintiff in the abdomen with a knife, while both men were patrons of the appellant’s bar in Yonkers. The plaintiff subsequently commenced the present action, alleging, inter alia, that the incident was proximately caused by the appellant’s violation of General Obligations Law § 11-101 (1), also known as the Dram Shop Act. After issue was joined, the appellant moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. “General Obligations Law § 11-101 (1) . . . provides that a party who ‘unlawfully’ sells alcohol to another person is liable for injuries by reason of that person’s intoxication” (LaCatena v M.C. & E.D. Beck, Inc., 35 AD3d 388, 388 [2006]; see Romano v Stanley, 90 NY2d 444, 447 [1997]). Alcoholic Beverage Control Law § 65 (2) states that it is unlawful to furnish an alcoholic beverage to any “visibly intoxicated person.” In opposition to the appellant’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether an employee of the appellant furnished an alcoholic beverage to Penzo while he was “visibly intoxicated” by submitting, inter alia, [*2]the deposition testimony of Paul DeLuca, the manager of the bar on the night of the occurrence (see CPLR 3212 [b]). Notably, DeLuca testified that, when he observed Penzo shortly after he had stabbed the plaintiff, Penzo’s speech was slurred and his eyes were red and watery. Accordingly, the Supreme Court properly denied those branches of the appellant’s motion which were for summary judgment dismissing so much of the complaint as alleged that it violated General Obligations Law § 11-101 (1), and for summary judgment dismissing all cross claims insofar as asserted against it. Only in NYC

In Diaz v Sopade, 69 AD3d 558 (2nd Dept. 2010)

According to the appellant’s deposition testimony, while in the course of his employment as a car service driver, a passenger armed with a metal rod demanded the appellant’s money and then struck him in the head with the instrument, rendering him unconscious. The vehicle subsequently went out of control, struck another vehicle operated by the defendant Mary Whetstone, and mounted a sidewalk, striking the infant plaintiff, who was on his bicycle at the time. The plaintiffs commenced the present action, alleging,

48 inter alia, that the accident was proximately caused by negligence on the appellant’s part. The appellant moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him on the ground that the accident resulted from an unforeseeable criminal assault, which caused him to lose consciousness and rendered him unable to avoid colliding with the other vehicle and the infant plaintiff. The appellant established his prima facie entitlement to judgment as a matter of law by demonstrating that the underlying accident was caused as a result of an onset of a sudden emergency (see Hernandez v Ricci, 15 AD3d 351 [2005]). In opposition, the plaintiffs submitted, inter alia, an affidavit sworn to by Sebastian Diaz, the father of the infant plaintiff, attesting that the appellant apologized and stated that he had “tried to speed up [his] car and hit the other car because [he] thought that would knock [his assailant] out.” This was sufficient to raise a triable issue of fact as to whether negligence on the part of the appellant contributed to the occurrence (see CPLR 3212 [b]). Therefore, the Supreme Court properly denied the appellant’s motion for summary judgment

Municipal Liability

Roads

In Ferguson v Sheahan, 71 AD3d 1207 (3rd Dept. 2010)

“Municipalities owe a nondelegable duty to the public to construct and maintain their roads in a reasonably safe condition” (Temple v Chenango County, 228 AD2d 938, 938 [1996] [citations omitted]; see Madden v Town of Greene, 64 AD3d 1117, 1119 [2009]). This includes a duty to provide and maintain adequate and proper barriers or guide rails where appropriate (see Gomez v New York State Thruway Auth., 73 NY2d 724, 725 [1988]; Popolizio v County of Schenectady, 62 AD3d 1181, 1182 [2009]; McDonald v State of New York, 307 AD2d 687, 689 [2003]) and a duty to properly maintain curves and erect adequate warning signs (see Levine v New York State Thruway Auth., 52 AD3d 975, 976 [2008]; Duger v Estate of Carey, 295 AD2d 878, 878 [2002]). However, “’no liability will attach unless the ascribed negligence of the [municipality] is the proximate cause of the accident’” (Sherman v County of Cortland, 18 AD3d 908, 910 [2005], lv denied 5 NY3d 713 [2005], quoting Duger v Estate of Carey, 295 AD2d at 879). Plaintiffs do not dispute Supreme Court’s finding that the Town’s evidence was sufficient to satisfy its initial burden on the summary judgment motion by offering proof that the [*3]road was posted with warning signs, that the berm offered a barrier to prevent vehicles from entering the gorge and that, in any event, Sheahan’s negligence was the sole proximate cause of the accident (see Rossal-Daub v Walter, 58 AD3d 992, 995 [2009])[FN2]. It is undisputed that, at the time of the accident, there was an S-curve sign

49 approaching the accident site from the south recommending a 10-mile-per-hour speed limit and several chevron arrow signs on the south side of the curve. There also were guide rails within the curve; the 2 to 2½-foot earthen berm where the Bronco left the road was at the southern point of the curve before the guide rails began. In meeting its initial burden, the Town relied on Sheahan’s deposition testimony where he admits that he was barefoot, listening to loud music and in the process of putting on his seatbelt moments before the accident, and that he never saw the 10-mile-per-hour warning sign before entering the curve. The Town also submitted the deposition of its Highway Superintendent, who testified that the earthen berm was created to prevent cars from going into the gorge and was maintained by the Town, and the affidavit and report of George Ruotolo, an expert in accident reconstruction. Ruotolo opined that the Bronco was going between 23 and 28 miles per hour at the start of the skid and, given the road conditions, this speed was unreasonably high for the curve. Ruotolo concluded that the sole cause of the accident was Sheahan’s inattention and excessive speed and that, but for that conduct, the earthen berm would have been an effective barrier.

In response to the Town’s motion, plaintiffs proffered the affidavit of John Serth, a licensed professional engineer specializing in accident reconstruction, who opined that the guide rail was not long enough to adequately protect motorists from the gorge and that the Bronco’s speed was not unexpected, given the unposted speed zone and the suddenness of the curve. He also disagreed with Ruotolo’s findings that the earthen berm was an effective barrier, noting that the sloped side of the berm became a ramp that effectively vaulted the Bronco into the gorge. The divergence of expert opinions on the effectiveness of the berm and adequacy of the guide rail create an issue of fact that cannot be resolved here as a matter of law (see Hill v Town of Reading, 18 AD3d 913, 915-916 [2005]; Temple v Chenango County, 228 AD2d at 939-940; Appelbaum v County of Sullivan, 222 AD2d at 989- 990). Further, Sheahan testified that, when he returned to the accident site the following day, he noted that there were branches covering part of the S-curve sign and Serth opined that the posted signs were not installed and/or maintained correctly. Accordingly, an issue of fact also exists as to the adequacy of the posted signs (see Appelbaum v County of Sullivan, 222 AD2d at 990; Merchant v Town of Halfmoon, 194 AD2d 1031, 1033 [1993]). The Town argues that its failure to install a guide rail at the point of the accident is not actionable because there was no evidence of another accident where a vehicle went over the berm and into the gorge. The Town’s Highway Superintendent, however, acknowledged that the berm [*4]was designed to prevent vehicles from entering the gorge. Further, he acknowledged that there had been more than five accidents at the curve, including one within a day or two of the instant accident in which a truck had gone over the berm but not into the gorge. These prior instances where vehicles failed to negotiate the curve, combined with the inherently dangerous roadside condition posited by a 150-foot-deep gorge, are ample evidence that the curve presented a danger to motorists (see Hill v Town of Reading, 18 AD3d at 915-916).

50 The Town also contends that it is entitled to summary judgment because the sole cause of the accident was Sheahan’s negligence. Although it is uncontraverted that Sheahan was distracted at the time of the accident, plaintiffs successfully raised unresolved issues of fact concerning whether plaintiffs’ injuries were caused or aggravated by the earthen berm, the absence of a guide rail and/or the lack of adequate warning signs (see Hill v Town of Reading, 18 AD3d at 916; Holmes v City of Elmira, 251 AD2d 844, 845-846 [1998]; Temple v Chenango County, 228 AD2d at 940). In Stockwell v Town of New Berlin, 69 AD3d 1266 (3rd Dept. 2010)

This action stems from a tragic accident which occurred at approximately 5:30 a.m. [*2]when decedent’s vehicle plunged into a large gap in the roadway that had torn open. Defendant Town of New Berlin in Chenango County had recently performed repair work on a culvert in the area and plaintiff alleged that the Town was negligent in performing such work. Plaintiff further alleged that defendants Mason G. White and Allen White (hereinafter collectively referred to as defendants) were negligent in their maintenance of an earthen dam[FN*] which gave way, allegedly causing the downstream culvert and roadway, that were approximately 200 yards away, to wash out. Defendants moved for summary judgment dismissing the claim against them. Supreme Court granted defendants’ motion and plaintiff and the Town now appeal. We reverse. In support of their motion, defendants alleged—and it is undisputed—that the area had received significant amounts of rainfall and that other roads in the area had also washed out or been damaged prior to decedent’s accident. Defendants further alleged that their dam could not have been the cause of the roadway’s collapse, as the dam did not collapse until several hours after decedent’s accident. As a landowner, any person who owns a dam or other structure that impounds waters must operate and maintain said structure in a reasonably safe manner (see 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 290 [2001]; Basso v Miller, 40 NY2d 233, 241 [1976]). Since there is no evidence here that defendants’ dam was designed for flood control purposes, defendants had “the right to let nature take its course, i.e., the right to permit flood waters to go over [their] dam [so long as] the volume of water cast into the channel below the dam [did] not exceed the volume coming in above the dam” (Iodice v State of New York, 277 App Div 647, 649-650 [1951], affd 303 NY 740 [1951]). However, defendants are not relieved of liability if their dam failed due to their negligent maintenance or operation and this failure resulted in water being released at a faster rate than would have flowed naturally, which proximately caused decedent’s death (see id. At 649-650; see also Briggs v Chapman, 30 AD3d 923, 924 [2006]). In order to determine whether defendants were negligent and, if so, whether such negligence contributed to decedent’s injuries, further discovery is required to more fully develop the record to include, among other things, information concerning the design and maintenance of the dam, which is within the exclusive knowledge of defendants (see Sorbello v Birchez Assoc., LLC, 61 AD3d 1225, 1227 [2009]; Reohr v Golub Corp., 242 AD2d 850, 851 [1997]). Inasmuch as defendants’ motion was brought before plaintiff

51 and the Town had an opportunity to conduct such discovery, the motion should have been denied or held in abeyance (see CPLR 3212 [f]). However, even if determination of defendants’ motion was not premature, plaintiff and the Town have raised triable questions of fact concerning why and when the dam failed (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324, 326 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d [*3]1065, 1068 [1979]). In opposition to the motion, the Town submitted the affidavit of Daniel Neilsen, the Town’s Highway Superintendent, who averred that, when he arrived at the scene of decedent’s accident at 6:30 a.m., the force and speed of the water from the pond had eroded the top portion of defendants’ dam. In addition, plaintiff testified that one of the defendants informed her that they had heard something the previous night, from which she inferred that he was referring to the dam giving way. Taken together and giving plaintiff every favorable inference (see Gadani v Dormitory Auth. Of State of N.Y., 43 AD3d 1218, 1219 [2007]; Tenkate v Tops Mkts., LLC, 38 AD3d 987, 989 [2007]), this evidence contradicts defendants’ allegations as to the condition of the dam at the time of decedent’s accident and creates a question of fact as to whether its erosion and collapse were a proximate cause of decedent’s accident (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]; Lynch v Liberty Mut. Fire Ins. Co., 58 AD3d 939, 942 [2009]; Tenkate v Tops Mkts., LLC, 38 AD3d at 989; Goff v Clarke, 302 AD2d 725, 727 [2003]). Accordingly, defendants’ failure to offer any proof of lack of negligence on their parts is also fatal to their motion. In Kohn v City of New York, 69 AD3d 463 91st Dept. 2010)

Plaintiffs were passengers in a taxi that collided with another taxi at the intersection of Lexington Avenue and East 23rd Street in Manhattan, at a time when the traffic signals were not functioning at that spot. Pursuant to a contract with the City, Petrocelli was required to respond within two hours of receipt of notice of an outage. The accident occurred before the time Petrocelli was required to arrive.

A municipality has a duty to maintain its streets in a reasonably safe condition. In order to prevail, plaintiff must show that the City permitted a dangerous or potentially hazardous condition to exist and cause injury (cf. Thompson v City of New York, 78 NY2d 682 [1991]). Plaintiffs presented sufficient evidence to raise a triable issue of fact as to whether the City promptly acted to repair the traffic signal or whether the City deployed a traffic officer to the scene in a timely fashion. Furthermore, there is a question of fact on whether either event was a significant factor in causing the accident. Emergency Vehicles

In order to hold a municipality liable for its operation of an emergency vehicle,

the plaintiff must prove that the vehicle was operated with reckless disregard. In

52 Corallo v Martino, 58 A.D.3d 792 (2nd Dept. 2009), the court tells us how this may be

accomplished.

Pursuant to Vehicle and Traffic Law § 1104, drivers of "authorized emergency vehicles" have a qualified privilege to disregard certain traffic laws during an emergency operation (see Vehicle and Traffic Law § 1104[b][1]-[4]; Szczerbiak v Pilat, 90 NY2d 553, 553). An officer's conduct during such an emergency operation may not form the basis of civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104[e]; Saarinen v Kerr, 84 NY2d 494, 501; Shephard v City of New York, 39 AD3d 842; Badalamenti v City of New York, 30 AD3d 452; Rodriguez v Incorporated Vil. of Freeport, 21 AD3d 1024; Molinari v City of New York, 267 AD2d 436). The "reckless disregard" standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow (see Szczerbiak v Pilat, 90 NY2d at 557; Campbell v City of Elmira, 84 NY2d 505, 511; Saarinen v Kerr, 84 NY2d at 501; Burrell v City of New York, 49 AD3d 482; Puntarich v County of Suffolk, 47 AD3d 785). Here, even accepting the appellants' contention that the appellant police officer Paul Martino was operating his police vehicle during an emergency operation, the appellants failed to establish, prima facie, that Officer Martino did not act in reckless disregard for the safety of others when he entered the subject intersection. Pursuant to Vehicle and Traffic Law § 1104(b)(2), "[t]he driver of an authorized emergency vehicle may . . . [p]roceed past a steady red signal . . . but only after slowing down as may be necessary for safe operation." The appellants' submissions in support of their motion failed to eliminate questions of fact as to whether Officer Martino slowed down his police vehicle prior to entering the intersection against a red light, checked for oncoming traffic before entering the intersection, and activated the siren on his vehicle before proceeding into the intersection. Accordingly, the appellants did not establish their entitlement to summary judgment dismissing the complaint insofar as asserted against them (see Burrell v City of New York, 49 AD3d 482; Badalamenti v City of New York, 30 AD3d 452; see also Baines v City of New York, 269 AD2d 309; Gordon v County of Nassau, 261 AD2d 359). Since the appellants did not meet their initial burden, we need not review the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In Flack v State of New York, 57 AD3d 1199 (3rd Dept. 2008), the Court of

Claims was reversed for not finding that the defendant had demonstrated reckless

disregard.

Here, it is undisputed that it was raining heavily at the time of the accident, other cars on the road were traveling well under the speed limit, the road contained S-curves and knolls, and Kijowski knew that there recently had been other serious accidents caused

53 by inappropriate speed in the area where this collision occurred. Additionally, while Kijowski testified that the reason he was chasing the speeding vehicle which was traveling at 73 miles per hour was that it posed a risk to the public based on the above conditions, he nevertheless pursued that car at a speed of over 80 miles per hour, a speed at which he had never driven on that road even under ideal conditions and a speed which he admitted posed a significant risk to the public (see Fioriello v Sasson, 255 AD2d 549, 550 [1998], lv denied 93 NY2d 817 [1999]). Under these circumstances, we find that Kijowski's conduct was reckless.

In Ayers v. O’Brien, 13 N.Y.3d 456 (2009)

Operators of authorized emergency vehicles are protected from liability for conduct privileged under Vehicle and Traffic Law § 1104, unless their conduct rises to the level of reckless disregard. In this personal injury action, we are asked whether an emergency vehicle **2 operator may assert that same statute in an action in which he is the plaintiff, thereby preventing the defendant from raising a comparative fault defense. We hold that he may not. ------Vehicle and Traffic Law § 1104 (e) cannot be used as a sword to ward off a comparative fault defense. It is to be applied only when the emergency vehicle operator is sued or countersued. Plaintiff’s proposed interpretation of the statute would shift the responsibility for any contributory negligence on the part of an emergency vehicle operator to the driver of another vehicle whom the emergency vehicle operator sues. This would result in significant unfairness in some cases. For instance, the operator of an emergency vehicle whose own negligence, while not rising to the level of reckless disregard, caused his or her injuries would be entitled to full damages even from a minimally negligent defendant. There is no evidence that such a financial windfall was intended or foreseen by the Legislature when it granted emergency vehicle operators greater freedom to disregard rules of the road while undertaking their responsibilities.

In Kabir v. County of Monroe, 16 N.Y.3d 217 (2011) On this appeal, we hold that the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.

In Rusho v State of New York (2010 NY Slip Op 06449) (4th Dept. 2009)

Memorandum: Claimants commenced this action seeking damages for injuries they sustained when a State-owned vehicle operated by a parole officer collided with a vehicle driven by claimant Wayne K. Rusho in which claimant Julie L. Rusho was a passenger. The Court of Claims denied claimants’ motion for partial summary judgment on liability and granted defendant’s cross motion for summary judgment dismissing the claim (Rusho v State of New York, 24 Misc 3d 752). That was error. In granting the cross motion, the

54 court determined as a matter of law that defendant was protected from liability by the qualified privilege afforded by Vehicle and Traffic Law § 1104. According to the court, the parole officer was driving an authorized emergency vehicle and was engaged in an emergency operation with a fellow parole officer at the time of the collision. The record establishes, however, that the parole officers were not engaged in an emergency operation at the time of the collision. Rather, the parole officer who was driving the vehicle was attempting to turn the vehicle around to determine whether a person he observed operating a vehicle in the opposite lane of traffic was a parole absconder. In addition, the parole officers admitted that, if they determined upon further investigation that the person observed was in fact the absconder, they would not have attempted to arrest him but instead would have called the police to assist in his apprehension. It thus follows that, at the time of the accident, the parole officers were still engaged in an investigatory role and were not in pursuit of an actual or suspected absconder. With respect to claimants’ motion, we conclude that claimants established their entitlement to partial summary judgment on liability by submitting evidence that the parole officer who was driving the State-owned vehicle was negligent when he turned the vehicle into the opposing lane of traffic, and that such negligence was the sole proximate cause of the accident. In response, defendant failed to raise a triable issue of fact to [*2]defeat the motion (see Pomietlasz v Smith, 31 AD3d 1173; Kelsey v Degan, 266 AD2d 843). In Ramos v City of New York, 68 AD3d 632 (1st Dept. 2009)

Applying “the narrowly restricted level of appellate review governing insufficiency-as-a- matter-of-law’ challenges” to jury verdicts (see Campbell v City of Elmira, 84 NY2d 505, 509-510 [1994]), we find that the jury’s verdict apportioning liability for plaintiff’s injuries 40% to the City and 60% to Brian Morales was rationally supported by the evidence. Contrary to the City’s contention, the jury could reasonably have concluded that the police officers continued their pursuit of the stolen vehicle driven by Morales after entering the Bronx River Parkway, thereby recklessly disregarding the safety of others (see Vehicle and Traffic Law § 1104[e]; see Fioriello v Sasson, 255 AD2d 549 [1998], lv denied 93 NY2d 817 [1999]). There was also sufficient evidence to support the jury’s verdict that the police officers’ conduct was a proximate cause of the accident and plaintiff’s injuries. Contrary to the City’s contention, it cannot be said as a matter of law that Morales’s conduct was the sole, superseding cause of the accident (see Mercado v Vega, 77 NY2d 918, 919-920 [1991]).

In Alvarado v Dillon, 67 AD3d 1214 (3rd Dept. 2009) This appeal arises from a three-car accident involving a State Trooper in the process of responding to an emergency call. On the evening of June 19, 2002, in the Town of Thompson, Sullivan County, defendant Brendan M. Dillon, a State Trooper, was driving westbound at a high rate of speed on Route 17B, in response to a report of a domestic disturbance. Defendant Lindsey M. Kesten was also traveling westbound on Route 17B, and was stopped waiting to make a left hand turn. Although conflicting reports regarding the rate and manner in which Dillon was traveling were presented at trial, it is undisputed that, upon approaching Kesten's car from behind, Dillon swerved to his left into the eastbound lane to avoid a collision. In doing so, he first collided with plaintiff Steven

55 Flood's vehicle, and then, as the patrol car rolled over, with plaintiff Antonio Alvarado's vehicle. Alvarado commenced action No. 1 against, among others, Dillon, Kesten and Flood. Flood brought action No. 2 against Dillon. The claims against Flood were eventually discontinued and a joint trial was held to determine liability. A jury found Dillon liable to both Alvarado and Flood, and found Kesten not liable. A subsequent trial on damages was held in action No. 1, resulting in a judgment to Alvarado for an amount that included ordinary litigation expenses. A judgment and amended judgment were entered in action No. 1 reflecting the award to Alvarado and the jury verdict in favor of Kesten. To date, no trial has been held in action No. 2 to determine damages, but an interlocutory judgment was entered reflecting the finding of Dillon's liability to Flood. Dillon now appeals from all three judgments. Dillon first contends that the jury charge in the trial to determine liability, regarding the standard of care owed by him, was confusing and therefore warrants a new trial.[FN*] When responding to an emergency, an on-duty police officer's conduct "may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others" (Saarinen v Kerr, 84 NY2d 494, 501 [1994]; see Vehicle and Traffic Law § 1104 [e]; Ayers v O'Brien, 60 AD3d 27, 30 [2008]). Because Dillon was responding to an emergency at the time of the accident, he was only liable if the jury concluded that he had acted recklessly, while Kesten could be liable for ordinary negligence (compare Vehicle and Traffic Law § 1104, with Vehicle and Traffic Law § 1144). "Before a new trial is ordered on the ground of juror confusion, 'it must be shown that the jury was substantially confused by the verdict sheet and the charge and was thus unable to make a proper determination upon adequate consideration of the evidence' " (Harmon v BIC Corp., 16 AD3d 953, 954 [2005], quoting Dunn v Moss, 193 AD2d 983, 985 [1993]; see Tel Oil [*2]Co. v City of Schenectady, 303 AD2d 868, 872-873 [2003]). Here, Dillon asserts that Supreme Court erred in reciting the statutory language (see Vehicle and Traffic Law § 1104) rather than giving a more complete instruction. While the statutory language may be confusing standing alone (see Saarinen v Kerr, 84 NY2d 494, 500 [1994]), the court did not rely solely on the statute in its charge to the jury. After reading the statute, the court went on to give a charge that closely mirrored PJI 2:79A and, on multiple occasions during its charge, referenced the fact that Dillon and Kesten were to be judged by different standards (see PJI 2:79A). Additionally, the verdict sheet very clearly indicated these differing standards. Furthermore, there is no tangible evidence that the jury was confused in this case as it did not request a clarification on the instructions given (see Pyptiuk v Kramer, 295 AD2d 768, 771 [2002]). Next, Dillon argues that Supreme Court failed to properly charge the jury regarding the consideration of departmental rules as a factor in determining whether the standard of care was met. Specifically, Dillon correctly points out that when a court instructs a jury that it may consider departmental guidelines in its assessment of due care, it must also instruct the jury that it may do so only upon first determining that the allegedly violated departmental guidelines "imposed a standard of care no greater than that required of [a

56 police officer] under the reckless disregard standard" (Brkani v City of New York, 211 AD2d 740, 742 [1995]). Defendant concedes, however, that he failed to preserve this issue before Supreme Court. Indeed, he requested the very charge given by Supreme Court, consistent with PJI 2:79A. Further, although we may order a new trial upon an unpreserved error in a jury charge when that error is fundamental (see Curanovic v New York Cent. Mut. Fire Ins. Co., 22 AD3d 975, 977 [2005], citing Pyptiuk v Kramer, 295 AD2d 768, 771 [2002]; see also Pagnotta v Diamond, 51 AD3d 1099, 1100 [2008]), here we find no such error. The charge set forth many factors that the jury could consider in determining whether the requisite standard of care was met and, viewing the charge as a whole, we find that the jury was not prevented from fairly considering the issues at trial (see Curanovic v New York Cent. Mut. Fire Ins. Co., 22 AD3d at 976). Accordingly, a new trial is not warranted on this basis.

Hearsay

In Hochhauser v. Elec. Ins. Co., 46 A.D3d 174 (2nd Dept. 2007), the court gave a

thorough analysis of hearsay. The case invovles a seemingly simple issue, but as often

the case, nothing is simple.

These appeals present a novel issue as to whether an insured's statement in an insurance investigation report, as well as testimony regarding the statement, are admissible at a hearing under the business records exception to the hearsay rule. We hold that, since an insured lacks a business duty, as opposed to a contractual duty, to report to his or her insurer in the course of its investigation regarding insurance coverage, neither the insured's statement nor testimony regarding such a statement is admissible pursuant to the business records exception to the hearsay rule.

To reach this conclusion, an extensive discussion of hearsay was made.

As often defined, "[h]earsay is a statement made out of court . . . offered for the truth of the fact asserted in the statement'" (People v Goldstein, 6 NY3d 119, 127, 843 N.E.2d 727, 810 N.Y.S.2d 100, cert denied 126 S. Ct. 2293, 164 L. Ed. 2d 834, quoting People v Romero, 78 NY2d 355, 361, 581 N.E.2d 1048, 575 N.Y.S.2d 802; see Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, 392, 721 N.Y.S.2d 380). Such a statement " may be received in evidence only if [it] fall[s] within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable'" (Nucci v Proper, 95 NY2d 597, 602, 744 N.E.2d 128, 721 N.Y.S.2d 593, quoting People v Brensic, 70 NY2d 9, 14, 509 N.E.2d 1226, 517 N.Y.S.2d 120). Further, in assessing reliability, "a court must decide whether the declaration was spoken under

57 circumstances which render . . . it highly probable that it is truthful'" (Nucci v Proper, 95 NY2d at 602, quoting People v Brensic, 70 NY2d at 14-15).

The business records exception to the hearsay rule provides: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter"

(CPLR 4518[a]).

The basis of the business records exception to the hearsay rule is the trustworthiness of the document (see 5 Wigmore, Evidence § 1522, at 442 [Chadbourn rev 1974]; Barker and Alexander, Evidence in New York State and Federal Courts § 8:41, at 875; Frumer and Biskind, 6 Bender's New York Evidence CPLR § 19.04, at 19-71). "The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for the purposes of the conduct of the enterprise" (Prince, Richardson on Evidence § 8-301 [Farrell 11th ed.], citing People v Kennedy, 68 NY2d 569, 578-579, 503 N.E.2d 501, 510 N.Y.S.2d 853).

Further, the concern relating to trustworthiness extends to "each participant in the chain producing the [business] record, from the initial declarant to the final entrant" (see Matter of Leon RR, 48 NY2d 117, 122, 397 N.E.2d 374, 421 N.Y.S.2d 863). As one treatise explains:

"In the leading case of Johnson v Lutz (253 NY 124, 170 N.E. 517) the Court of Appeals read into the business records statute a qualification which, though not traceable to the language of the statute itself, is not controverted as a sound interpretation of the statute's intent. The effect of Johnson v Lutz and its progeny is a refusal by the courts to admit into evidence, solely on the strength of the business records statute, those entries in business records which, though otherwise qualified under the statute, are based on information supplied by a person who was outside of the enterprise and who was not therefore communicating the information under the compulsion of a business duty"

(Frumer and Biskind, 6 Bender's New York Evidence CPLR, § 19.04[4], at 19-104 [emphasis in original]; see Prince, Richardson on Evidence § 8-307).

In Matter of Leon RR, relied upon by the plaintiff, the Court of Appeals explained that "each participant in the chain producing the [business] record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception" (id. at

58 122). Thus, the Court of Appeals noted, "not only must the entrant be under a business duty to record the event, but the informant must be under a contemporaneous business duty to report the occurrence to the entrant as well" (id. at 122). The Court of Appeals further explained that the "reason underlying the business records exception fails and, hence, the statement is inadmissible hearsay if any of the participants in the chain is acting outside the scope of a business duty" (id. at 123; see Johnson v Lutz, 253 NY 124, 128, 170 N.E. 517).

Generally, however, the trend has been to prohibit the admission of a business record or a statement within such a record where the declarant is outside the business enterprise because the statement lacks the inherent trustworthiness or indicia of reliability to except it from the general prohibition against admitting an out-of-court statement asserted for the truth of the statement (see generally Frumer and Biskind, 6 Bender's New York Evidence CPLR § 19.04 [4], at 19-106 [noting "if the supplier of information was not acting under a business duty to communicate accurately the assurance of accuracy that underlies the business records exception does not guarantee the truth of the information supplied even though it may have been scrupulously recorded"]).

What prompted this analysis was an objection to the hearsay.

We reject the insurer's contention that the plaintiff failed to object to Quinn's testimony on hearsay grounds. CPLR 4017 provides:

"Formal exceptions to rulings of the court are unnecessary. At the time a ruling or order of the court is requested or made a party shall make known the action which he requests the court to take or, if he has not already indicated it, his objection to the action of the court. Failure to so make known objections, as prescribed in this section . . . may restrict review upon appeal"

(see Horton v Smith, 51 NY2d 798, 799, 412 N.E.2d 1318, 433 N.Y.S.2d 92). Further, "[a]n objection must be clear enough to apprise the court of the nature of the objection" (Gallegos v Elite Model Mgmt. Corp., 28 A.D.3d 50, 59, 807 N.Y.S.2d 44). Here, the plaintiff lodged a general objection based on hearsay prior to Quinn's testimony but did not object to Quinn's specific testimony that constituted the hearsay. Since the general objection to both the testimony and the business record apprised the Judicial Hearing Officer that the plaintiff objected on the grounds of hearsay, the plaintiff preserved the issue for appellate review (see CPLR 4107; Gallegos v Elite Model Mgmt. Corp., 28 A.D.3d 50, 807 N.Y.S.2d 44).

Here, undisputedly, the insured was outside the insurer's enterprise. Thus, under the rationale presented in both Johnson v Lutz and Matter of Leon RR, as well as their progeny, and the policy underlying the business records hearsay exception, the insured's statement regarding the plaintiff's residence and Quinn's testimony regarding that statement are inadmissible hearsay. The insurer, however, argues that the

59 insured had a duty to speak with the insurance investigator based on the underlying contractual duty which requires all insureds to cooperate with their insurer during an insurance investigation.

As the insurer correctly notes, generally an insured has a duty to cooperate in an insurance investigation by its insurer. In fact, typically, an insurer may disclaim coverage where an insured deliberately fails to cooperate with its insurer as required by an insurance policy (see City of New York v Continental Cas. Co., 27 AD3d 28, 31-32, 805 N.Y.S.2d 391; Utica Mut. Ins. Co. v Gruzlewski, 217 A.D.2d 903, 903-904, 630 N.Y.S.2d 826; State Farm Fire & Cas. Co. v Imeri, 182 AD2d 683, 683, 582 N.Y.S.2d 463). The insurer, however, fails to support this argument with any case law holding that the duty to cooperate with an insurer equates to a business duty to report information during an insurance investigation, thereby affording a statement given by an insured during the course of such an investigation the requisite reliability or trustworthiness to fall within the business records exception to the hearsay rule. Here, notwithstanding the insured's contractual relationship with the insurer, the insured was outside of the insurer's enterprise. Therefore, the insured was not communicating information regarding the plaintiff's residence to the insurer under the compulsion of a business duty (see generally, Matter of Leon RR, 48 NY2d 117, 397 N.E.2d 374, 421 N.Y.S.2d 863; Johnson v Lutz, 253 NY 124, 170 N.E. 517; Matter of Loren B. v Heather] A., 13 AD3d 998, 788 N.Y.S.2d 215; People v Cruz, 283 AD2d 295, 728 N.Y.S.2d 1; People v Edmonds, 251 AD2d 197, 674 N.Y.S.2d 361). Rather, the insured was acting pursuant to the terms of his contractual relationship with the insurer which requires cooperation in providing requested information during an insurance investigation. Under such circumstances, an insured is acting in his or her own interest and not necessarily in the interest of the insurance enterprise (cf. People v Cratsley, 86 NY2d 81, 653 N.E.2d 1162, 629 N.Y.S.2d 992; Chubb & Son v Riverside Tower Parking Corp., 267 AD2d 128, 700 N.Y.S.2d 153; Lopez v Ford Motor Credit Co., 238 AD2d 211, 656 N.Y.S.2d 257). In other words, despite potential consequences which may befall an insured who fails to provide accurate and truthful information to, or to cooperate with, an insurer, the insured's statement to the insurance investigator regarding the plaintiff's residence was not made under circumstances which create a high probability that the statement was truthful. The insured's statement within the insurance investigator's report is not, therefore, inherently trustworthy the very foundation of the business records exception to the hearsay rule (see generally Frumer and Biskind, 6 Bender's New York Evidence CPLR § 19.04 [4], at 19-106). The contractual relationship between the insured and the insurer is, thus, insufficient to cloak the insured's statement with the needed trustworthiness to except it from the general rule prohibiting the admission of hearsay statements into evidence (accord People v Edmonds, 251 AD2d 197, 674 N.Y.S.2d 361; Romanian Am. Interests v Scher, 94 AD2d 549, 464 N.Y.S.2d 821). Accordingly, we hold that the insured's statement and testimony regarding that statement lack the requisite indicia of reliability or trustworthiness necessary to allow them into evidence under the business records exception to the hearsay rule (see Matter of Leon RR., 48 NY2d 117, 397 N.E.2d 374, 421 N.Y.S.2d 863; Johnson v Lutz, 253 NY 124, 170 N.E. 517).

60 Without the benefit of the business records exception to the hearsay rule, both Quinn's testimony regarding the insured's statement and the statement itself in the subject business record equate to impermissible hearsay, unless an independent basis for their admission exists (see Taft v New York City Tr. Auth., 193 AD2d 503, 504, 597 N.Y.S.2d 374; Toll v State of New York, 32 AD2d 47, 50, 299 N.Y.S.2d 589). Here, no such independent basis exists. Contrary to the holding of the Supreme Court, the insured's statement is not admissible as a statement against interest (see Kelleher v F.M.E. Auto Leasing Corp., 192 AD2d 581, 583, 596 N.Y.S.2d 136; Basile v Huntington Util. Fuel Corp., 60 A.D.2d 616, 617, 400 N.Y.S.2d 150; Jamison v Walker, 48 AD2d 320, 323, 369 N.Y.S.2d 469).

In Kaufman v Quickway, Inc., 14 NY3d 907 (2010), the Court of Appeals

reversed the Appellate Division.

In this Dram Shop Act action involving a convenience store's allegedly illegal sale of alcohol to a visibly intoxicated customer who later caused a fatal traffic accident, the Appellate Division reversed Supreme Court's order denying defendants' motion for summary judgment, granted the motion, and dismissed the complaint. The Appellate Division held that the store clerk's out-of-court statements to a State Trooper investigating the accident were not admissible under the hearsay exception for prior inconsistent statements to rebut her later deposition testimony (see Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518, 524 [1968]; cf. Nucci v Proper, 95 NY2d 597, 603 [2001]). We disagree. The supporting deposition prepared by the Trooper and signed by the witness under penalty of perjury contained numerous indicia of reliability justifying its admissibility under Letendre. And, as in Letendre, the store clerk was available for cross-examination. In addition, the statement was sufficient to{**14 NY3d at 909} create a triable issue regarding whether the driver was visibly intoxicated at the time of the alcohol sale (see Alcoholic Beverage Control Law § 65 [2]; General Obligations Law § 11-101).

Accident Reports

The definition of hearsay is usually not in dispute; the application of the rule

and its exceptions is where the problems arise. This dispute frequently occurs in

determining whether an accident report is admissible.

In Buckley v. J.A. Jones/GMO, 38 A.D.3d 461 (1st Dept. 2007), the court found

that:

61 Contrary to plaintiffs' contentions, the incident report (which plaintiffs do not dispute was prepared in the ordinary course of J.A. Jones's business) may be admissible as a business record under CPLR 4518. Although White, the foreman who provided Caswell with the information in the report, stated in his affidavit that he did not see Buckley fall, White also stated in his affidavit that he "personally witnessed the circumstances surrounding Mr. Buckley's accident." Thus, White may be found at trial to have had "personal knowledge" of the information about the position of the ladder he provided to Caswell, the author of the report (see Matter of Leon RR, 48 N.Y.2d 117, 123, 397 N.E.2d 374, 421 N.Y.S.2d 863 [1979]). In any event, under the circumstances presented here, the use of the incident report to defeat the motion for summary judgment was appropriate (see Levbarg v City of New York, 282 A.D.2d 239, 241, 723 N.Y.S.2d 445 [2001]; Eitner v 119 W. 71st St. Owners Corp., 253 A.D.2d 641, 642, 677 N.Y.S.2d 555 [1998]). As to the requirement of a "business duty" to report the information in question (Matter of Leon RR, 48 N.Y.2d at 122), given that White was a foreman employed by a subcontractor on the project, it may reasonably be inferred that he was under a business duty to furnish information about an on-the-job accident to Caswell, the general contractor's safety supervisor (see id. at 123). That White and Caswell were employed by different companies (Cross Country and J.A. Jones, respectively) does not negate the inference that White had a business duty to report such information to Caswell (see People v Cratsley, 86 N.Y.2d 81, 90-91, 653 N.E.2d 1162, 629 N.Y.S.2d 992 [1995] [clinical report prepared for sheltered workshop by independent contractor was admissible]; Pencom Sys. v Shapiro, 237 A.D.2d 144, 658 N.Y.S.2d 258 [1997] [recruitment firm's business records containing information provided by job applicants not employed by firm were admissible]). In any event, any issue as to whether White had a business duty to report the incident to Caswell is, for present purposes, unpreserved, as plaintiffs failed to raise any such issue before Supreme Court. We also note that, to the extent the incident report reflects statements by Buckley that White reported to Caswell, such statements would be admissible against plaintiffs as party admissions (see Kelly v Wasserman, 5 N.Y.2d 425, 428-430, 158 N.E.2d 241, 185 N.Y.S.2d 538 [1959]; Penn v Kirsh, 40 A.D.2d 814, 338 N.Y.S.2d 161 [1972]; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4518:3). See also, Boccia v. City of New York, 46 A.D.3d 421 (1st Dept. 2007).

However, in Baez-Sharp v. N.Y.C.T.A., 38 A.D.3d 229 (1st Dept. 2007), the court held that to the extent that the motion court relied on the accident reports that were unaccompanied by affidavits attesting to the preparers' personal knowledge and/or duty to create such reports, that was error (Bendik v Dybowski, 227 A.D.2d 228, 229, 642 N.Y.S.2d 284 [1996]).

Similarly, in Montes v. N.Y.C.T.A., 46 A.D.3d 421 (1st Dept. 2007),

62 Contrary to the conclusions in the concurring opinion, the trial court did not error by refusing to admit into evidence all that was contained in a memorandum/report prepared by the Transit Authority during its internal investigation into the cause of the accident. Much of what is in this report is factual and either was proven through the use of other evidence or involved issues which are not the subject of any meaningful dispute at trial. What was at issue is the admissibility of any of the conclusions set forth at the end of the document. Specifically, the report concludes as follows: --The eleven (11) year old male youth ran against a red traffic signal in front of the moving bus; --The B/O failed to use caution, and to anticipate, while approaching a very active intersection; --The B/O failed to properly observe, and to recognize potential hazard; --The B/O failed to drive defensively by sounding his horn and stopping in a timely manner; When read in the abstract, these findings lead one to conclude that the Transit Authority has found that the operator of the bus was negligent in the operation of this vehicle, and was, at least in part, at fault for the cause of this accident. However, there was sworn testimony before the trial court which established that the last three of these conclusions were in reality an assessment by a representative of the Transit Authority as to how the driver's operation of this vehicle measured up to the Transit Authority's internal rules and standards, and did not represent an opinion by the Transit Authority that the driver at the time of the accident had failed to use reasonable care. The Transit Authority's internal standards impose a code of conduct on its drivers that exceeds that of the common law by presuming that every accident is preventable, and that when one occurs, the driver must have to some extent been at fault (see e.g. Veal v New York City Tr. Auth., 148 AD2d 443, 445, 538 N.Y.S.2d 594 [1989]). The concurring opinion takes the view that since the report does not expressly refer to this enhanced standard of care, it cannot be used either to clarify the report's conclusions or to determine their admissibility. Generally, business records are not self-proving, and determinations of their admissibility often require testimony of qualified witnesses familiar with how the documents are created (see National States Elec. Corp. v LFO Constr. Corp., 203 AD2d 49, 50, 609 N.Y.S.2d 900 [1994] [testimony required to determine admissibility of contractor's summary of damages]). Indeed, a trial court has broad discretion when ruling on the admission of evidence, and may "elicit and clarify testimony" in its attempt to control its courtroom (see Messinger v Mount Sinai Med. Ctr., 15 AD3d 189, 189, 789 N.Y.S.2d 132 [2005], lv dismissed 5 NY3d 820, 836 N.E.2d 1150, 803 N.Y.S.2d 27 [2005]; Henriques v Kindercare Learning Ctr., Inc., 6 AD3d 220, 221, 774 N.Y.S.2d 527 [2004]). This discretion allows the trial court to consider the circumstances by which a document was prepared in determining its relevance on the issue for which it has been proposed.

63 Here, sworn testimony was given by an official with personal knowledge of the criteria used in preparing this document - - testimony which the trial court obviously found to be credible - - which established that the report's conclusions were based on the Transit Authority's internal rules and practices, which in turn impose higher standards than the common law. As such, the opinions as rendered were not admissible to establish the driver's negligence (see Karoon v New York City Tr. Auth., 286 AD2d 648, 730 N.Y.S.2d 331 [2001]). Moreover, while it is true as noted in the concurring opinion that the report is a business record, the business record statute "does not make admissible evidence which is otherwise inadmissible" (58 NY Jur 2d, Evidence and Witnesses § 465, at 257; see Bostic v State of New York, 232 AD2d 837, 839, 649 N.Y.S.2d 200 [1996], lv denied 89 NY2d 807, 678 N.E.2d 500, 655 N.Y.S.2d 887 [1997] ["even assuming that the exhibit was admissible under CPLR 4518, it is well settled that the business records exception to the hearsay rule * * * does not overcome any other exclusionary rule which might properly be invoked * * * such as the requirement that the evidence sought to be introduced be relevant and material to the issue at hand" [citations and internal quotation marks omitted]). A trial judge has the right, albeit the obligation, to redact from a report any parts thereof which, standing alone, would not be admissible. The fact that these conclusions are not relevant is not changed simply because they are set forth in a business record of the Transit Authority. Equally important, there is no rational correlation between the conclusions as offered and the findings upon which they are based. For example, the report concludes "the B/O failed to use caution, and to anticipate, while approaching a very busy intersection." There are no factual findings listed in the report which would rationally support such a conclusion or reasonably lead to it. The only factual finding that is remotely related to this conclusion that is contained in the report states as follows: "The B/O first observed the male youth when he was already in front of the bus." That finding, if warranted, does not necessarily support the conclusion that the driver was negligent, nor is there any other explanation which explains the basis for this conclusion. Absent some rational connection supporting such inferences, the author of the report if called to testify, would not have been allowed to give these opinions, assuming he was otherwise found competent to render them. The other arguments have been considered and found to be unavailing. In Sydnor v Home Depot U.S.A., Inc. (2010 NY Slip Op 05542) (2nd Dept.)

At the trial, over the plaintiffs' objection, the Supreme Court allowed Home Depot to read [*2]into the record the handwritten statement Small gave to the police after the accident. Small stated that his brakes failed. He admitted that he had taken his car to his mechanic for brake problems, and that "each time," the mechanic told him there was nothing wrong. The Supreme Court precluded the plaintiffs from introducing prior complaints made against Home Depot, alleging that its placement of merchandise in the parking lot violated a zoning code provision requiring it to keep parking spaces clear for its patrons. ------

64 The plaintiffs further contend that the Supreme Court erred in precluding evidence of Home Depot's violations of the zoning code, and in denying their motion for leave to amend the complaint to allege that Home Depot was reckless on the basis of the code violations. The zoning code provisions at issue required Home Depot to keep its parking lot clear in order to provide parking spaces for its patrons; the provisions were not promulgated for the protection of pedestrians. Thus, the Supreme Court properly determined that these provisions could not be used to establish a duty of care from Home Depot to the plaintiffs (see Di Ponzio v Riordan, 89 NY2d 578, 585; Jean v City of New York, 40 AD3d 926). Therefore, the Supreme Court providently exercised its discretion in precluding the evidence, and in denying the plaintiffs' motion for leave to amend the complaint (see generally Tarantini v Russo Realty Corp., 273 AD2d 458, 459). Contrary to the plaintiffs' contention, the Supreme Court properly admitted Small's out- of-court statement to the police as an admission of a party (see generally Scott v Kass, 48 AD3d 785; cf. Cover v Cohen, 61 NY2d 261, 274). Police Reports

VTL § 603. Accidents; police authorities and coroners to report. 1. Every police or judicial officer to whom an accident resulting in injury to a person shall have been reported, pursuant to the foregoing provisions of this chapter, shall immediately investigate the facts, or cause the same to be investigated, and report the matter to the commissioner forthwith; provided, however, that the report of the accident is made to the police officer or judicial officer within five days after such accident. Every coroner, or other official performing like functions, shall likewise make a report to the commissioner with respect to all deaths found to have been the result of motor vehicle or motorcycle accidents. Such report shall include information on the width and length of trucks, tractors, trailers and semitrailers, which are in excess of ninety-five inches in width or thirty-four feet in length and which are involved in such accidents, whether such accident took place in a work area and whether it was being operated with an overweight or overdimension permit. Such report shall distinctly indicate and include information as to whether the inflatable restraint system inflated and deployed. Nothing contained in this subdivision shall be deemed to preclude a police officer from reporting any other accident which, in the judgment of such police officer, would be required to be reported to the commissioner by the operator of a vehicle pursuant to section six hundred five of this article. 2. In addition to the requirements of subdivision one of this section, every police officer or judicial officer to whom an accident shall have been reported involving a commercial vehicle as defined in either subdivision four of section five hundred one-a or subdivision one of section five hundred nine-p of this chapter shall immediately investigate the facts, or cause the same to be investigated and report the matter to the commissioner forthwith, provided that the report of

65 the accident is made to the police officer or judicial officer within five days after such accident, whenever such accident has resulted in (i) a vehicle being towed from the accident scene as the result of incurring disabling damage, (ii) a fatality, or (iii) any individual being transported to a medical facility to receive treatment as the result of physical injury sustained in the accident.

VTL § 603-a. Accidents; police authorities to investigate.

1. In addition to the requirements of section six hundred three of this article, whenever a motor vehicle accident results in serious physical injury or death to a person, and such accident either is discovered by a police officer, or reported to a police officer within five days after such accident occurred, the police shall conduct an investigation of such accident. Such investigation shall be conducted for the purposes of making a determination of the following: the facts and circumstances of the accident; the type or types of vehicles involved, including passenger motor vehicles, commercial motor vehicles, motorcycles, limited use motorcycles, off-highway motorcycles, and/or bicycles; whether pedestrians were involved; the contributing factor or factors; whether it can be determined if a violation or violations of this chapter occurred, and if so, the specific provisions of this chapter which were violated and by whom; and, the cause of such accident, where such cause can be determined. The police shall forward a copy of the investigation report to the commissioner within five business days of the completion of such report.

Merely because a police officer prepares a report in the regular course of business does not make its contents admissible; they must overcome any other exclusionary rule. In Afridi v. Glen Oaks Village Owners, Inc., 49 A.D.3d 571 (2nd Dept. 2008),

The infant plaintiff sustained second degree burns to her thighs and abdomen after coming into contact with hot water from a faucet in the bathroom of her family's apartment. The plaintiffs commenced this action against the cooperative corporation that owned the apartment where the family resided, alleging negligence in the supply of excessively hot water to the apartment. At the ensuing jury trial, the Supreme Court excluded from evidence a section of a police report indicating that, 12 days after the accident, the hot water from the subject faucet registered a temperature of 160 degrees Fahrenheit. The report failed to supply any details, inter alia, about how the temperature measurement was made.

The Supreme Court providently exercised its discretion in denying the plaintiffs'

66 request to admit the police report into evidence, where the plaintiffs failed to establish a proper foundation for its admission (see People v Freeland, 68 NY2d 699, 497 N.E.2d 673, 506 N.Y.S.2d 306; Sassone v Corhouse, 129 AD2d 924, 514 N.Y.S.2d 565). Contrary to the plaintiffs' contention, the mere fact that the report may have been a business record, as contemplated under CPLR 4518, "does not overcome any other exclusionary rule which might properly be invoked" (People v Tortorice, 142 AD2d 916, 918, 531 N.Y.S.2d 414; accord Bostic v State of New York, 232 AD2d 837, 839, 649 N.Y.S.2d 200).

In Noakes v Rosa, 54 AD3d 317 (2nd Dept. 2008), a plaintiff’s verdict in

Westchester was reversed because of the improper admission into evidence of a police

report.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff in an automobile accident. The plaintiff alleged that the defendant's car rear- ended his car. The defendant alleged that the plaintiff's car backed into her car. At the trial on the issue of liability the court admitted into evidence, over the defendant's objection, a police accident report. The report contained two opposing hearsay statements regarding how this accident allegedly occurred. It also contained a statement allegedly made by the defendant that she was upset because she had received bad news. The subscribing police officer was not an eyewitness and did not testify at trial. The police report should not have been admitted into evidence as a business record exception to the hearsay rule (see Johnson v Lutz, 253 NY 124). The statement in the report that the defendant "rear-ended" the plaintiff was from an unknown source. Since the source of this statement was not identifiable, it was error to admit it (see Battista v Rizzi, 228 AD2d 533). It could not be established whether the source had a duty to make the statement or whether some other hearsay exception applied (see Murray v Donlan, 77 AD2d 337).

It was also error to admit the statement in the report allegedly made by the defendant that the plaintiff's car backed into her car. This was a self-serving statement that did not fall within a hearsay exception (see Casey v Tierno, 127 AD2d 727). Since these statements bore on the ultimate issue of fact to be decided by the jury, their admission constituted prejudicial and reversible error, and a new trial is warranted (see Hatton v Gassler, 219 AD2d 697; Gagliano v Vaccaro, 97 AD2d 430). Similarly, in Huff v. Rodriguez, 45 A.D.3d 1430 (4th Dept. 2007), the court held

that a police report is not admissible unless the police officer authoring the report is an

67 expert or an eyewitness, or the report contains an identifiable admission against interest.

However, in Scott v. Kass, 48 A.D.3d 785 (2nd Dept. 2008), the police accident report submitted by the appellants in support of their cross motion for summary judgment contained a statement by the defendant Bryan Kass that he had fallen asleep while driving and that his vehicle had crossed over a double yellow line into oncoming traffic and struck a telephone pole on the opposite side of the road. The police officer who prepared the report was acting within the scope of his duty in recording Kass's statement, and the statement is admissible as the admission of a party (see Guevara v Zaharakis, 303 AD2d 555, 556, 756 N.Y.S.2d 465; Ferrara v Poranski, 88 AD2d 904, 450 N.Y.S.2d 596). Additionally, the diagram and other entries in the police accident report showing where the vehicles struck each other and the position and path of travel of each vehicle is admissible since the reporting officer could make these determinations himself when he arrived on the scene (see Exantus v Town of Ossining, 266 AD2d 502, 699 N.Y.S.2d 94).

Similarly, in Sulaiman v. Thomas, 54 A.D.3d 751 (2nd Dept. 2008), the Supreme Court properly granted the plaintiffs' motion for summary judgment on the issue of liability. In an affidavit submitted in support of the plaintiffs' motion for summary judgment on the issue of liability, the injured plaintiff stated that he was walking southbound on Euclid Avenue in Brooklyn, crossing Sutter Avenue in a crosswalk, with a green signal, when he was struck by a vehicle driven by the defendant. The defendant was traveling northbound on Euclid Avenue, and made a "sudden and abrupt turn" into the crosswalk on Sutter Avenue, leaving the injured plaintiff no time to react. Furthermore, the police report concerning the accident contains the defendant's statement that he was making a right turn into the intersection and he did not see the injured plaintiff because of another car turning left from Euclid Avenue onto Sutter Avenue. Accordingly, the plaintiffs made a prima facie showing of entitlement to judgment as a matter of law (see 34 RCNY 4-03 [a] [1] [i]; 4-04 [d]….

In Huang v. N.Y.C.T.A., 49 A.D.3d 308 (1st Dept. 2008),

The expert's opinions regarding the speed of the train, the time it took to stop and the distance it traveled after striking plaintiff and before stopping, were founded upon information supplied by defendant's own investigative reports and other disclosed internal documents, together with the police report and deposition testimony of the witnesses (see generally Soto v New York City Tr. Auth., 6 NY3d 487, 493-494 [2006]). Contrary to defendant's contention, the expert did not introduce a new theory of liability, i.e., that the conductor had negligently delayed in activating the emergency brake. The police report, which indicated that plaintiff was dragged 40 feet by the train, was properly admitted into evidence under the business record

68 exception through the testimony of the police sergeant who prepared the report, interviewed the witnesses, and recorded their statements (see Penn v Kirsh, 40 AD2d 814 [1972]).

Rebut Recent Fabrication

In McGloin v. Golbi, 49 A.D.3d 610 (2nd Dept. 2008), the trial court erred in

precluding the plaintiff from introducing her MV-104 accident report on the ground that

it merely bolstered her testimony (see Pomer v Chen, 187 AD2d 497, 589 N.Y.S.2d 192).

The plaintiff should have been permitted to introduce the report to counter a charge of

"recent fabrication" (Lichtrule v City Sav. Bank of Brooklyn, 29 AD2d 565, 286

N.Y.S.2d 307).

Credibility

In Pryce v. Gilchrist, 51 A.D.3d 425 (1st Dept. 2008), a defendant driver was

properly questioned concerning her prior accident as the intent of the questioning was to

impeach her credibility with regard to her assertion that she had no trouble operating the

vehicle she was driving.

Bifurcation

In Keane v Chelsea Piers, L.P., 71 AD3d 593 (1st Dept. 2010)

We further note that bifurcation of the liability and damages issues [*2]at trial was not an improvident exercise of discretion (Sommer v Pierre, 51 AD3d 464 [2008]), inasmuch as plaintiff was permitted to put on medical evidence in rebuttal.

In Carpenter v County of Essex, 67 AD3d 1106 (3rd Dept. 2009) Supreme Court did not abuse its discretion by denying the County's request for bifurcation of the issues of liability and damages. The trial court is "in the best position to evaluate whether a defense verdict was likely so as to obviate the necessity of a second trial" and is therefore afforded great discretion and equally great deference (Johnson v Hudson Riv. Constr. Co., Inc., 13 AD3d 864, 865 [2004]; see Sommer v Pierre, 51 AD3d 464, 465 [2008]). That discretion is properly exercised if the court reasonably concludes that bifurcation would not result in a more

69 expeditious resolution of the actions (see Johnson v Hudson Riv. Constr. Co., Inc., 13 AD3d at 865; 22 NYCRR 202.42 [a]; see also CPLR 603), or that " 'the nature of the injuries has an important bearing on the question of liability' " (Barron v Terry, 268 AD2d 760, 762 [2000], quoting Parmar v Skinner, 154 AD2d 444, 445 [1989]). [*2] There is little question but that the front-seat passenger's action will not result in a complete defense verdict after the liability phase of trial. Consequently, bifurcation would not hasten the end of action No. 2. The parties would have to "endure two trials and it is likely that two separate juries would need to be empaneled due to the coordination of expert witnesses" (Johnson v Hudson Riv. Constr. Co., Inc., 13 AD3d at 865). Here, bifurcation would likely prolong adjudication of these actions as well as the emotional toll taken on the families.[FN2]

The nature of the injuries suffered in this accident has an important bearing on the question of liability, rendering bifurcation inappropriate because the "liability and damages issues are entwined" (Mason v Moore 226 AD2d 993, 994 [1996]; see DeGregorio v Lutheran Med. Ctr., 142 AD2d 543, 544 [1988]). The front-seat passenger seeks a lesser burden of proof at the liability phase based upon his alleged memory loss as a result of his injuries (see PJI 1:62). To obtain this lesser burden, he will need to establish by expert medical proof that he has a genuine memory loss as a result of this accident (see Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 334-335 [1986]). The same medical expert who will testify to these circumstances at the liability phase will have to testify again at the damages phase. Additionally, plaintiffs seek damages for preimpact terror. They will be required to call both the back-seat passenger and a reconstruction expert—fact witnesses regarding liability—at the damages phase to prove the movement of the vehicle, the elapsed time of the accident and any utterances by decedent (see Barron v Terry, 268 AD2d at 762). Finally, the County raises a seat belt defense as to both decedent and the front-seat passenger. Countering this defense will require plaintiffs to call the initial responders during the damages phase to elicit their observations concerning the status of the seat belts and the positions of the occupants in the vehicle. Plaintiffs may also have to re-call an accident reconstruction expert concerning the nature of the impact and damage to the vehicle to prove whether the injuries would have been suffered with or without seat belts (compare Spier v Barker, 35 NY2d 444, 449-450 [1974]; Lustyik v Manaher, 246 AD2d 887, 888-889 [1998]). As it would be improvident to separate the issues of liability from damages, Supreme Court did not abuse its discretion in denying the County's request.

THRESHOLD

PLAINTIFF’S PERSPECTIVE

Pursuant to New York State Insurance Law, Section 5104(a), the right of a person that is covered by New York’s No-Fault Law to sue another “covered person” for their

70 non-economic loss (pain and suffering) is limited to those cases where a “serious injury

has been sustained.” This “serious injury” requirement is known as the “no-fault

threshold”. See, PJI 2:88A – 88G.

PROVING THE THRESHOLD

The term “serious injury” is defined by Ins. Law 5102(d) as:

1. death; 2. dismemberment; 3. significant disfigurement; 4. a fracture; 5. loss of a fetus; 6. permanent loss of use of a body organ, member, function or system; 7. permanent consequential limitation of use of a body organ or member; 8. significant limitation of use of a body function or system; or 9. a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

YOU MUST PLEAD THRESHHOLD IN YOUR COMPLAINT; IT IS A CONDITION

PRECEDENT, AND FAILURE TO PLEAD MAY RESULT IN DISMISSAL.

To recover money for the plaintiff’s pain and suffering, you must specifically

plead and prove that she sustained a “serious injury”. Whether the plaintiff has made a

prima facie showing of “serious injury” is for the court to determine. Only after this

issue has been decided in plaintiff’s favor does the jury get to decide if the threshold has

been met. Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 (1982). Once a case of

“serious injury” has been determined to exist by the jury, the plaintiff can be

compensated for all injuries sustained. At that point, recovery is not limited to only a

“serious injury”. Kelley v. Balasco, 226 A.D.2d 880, 640 N.Y.S.2d 652 (3rd Dep’t 1996).

71 While a court can rule as a matter of law that the threshold has been met,

Hutchinson v. Petropoulos, 119 Misc. 2d 1024, 465 N.Y.S.2d 110 (Sup. Queens 1983);

Luppino v. Busher, 97 A.D.2d 499, 468 N.Y.S.2d 17 (2nd Dep’t 1983)(Titone, J.,

dissenting in part and concurring in part), for certain types of threshold cases, the more

likely course is that issue will be submitted to the jury. This article will focus on

establishing the threshold for these types of cases.

You do not need to prove that your client makes the threshold in more than any

one category. This is not to say that you cannot do so. As a practical matter, you are

encouraged to do so and fit into as many categories as possible. A jury can find that

while your client’s injuries did not meet one category of threshold, they did meet an

alternative one.

The fact that your client may have had a prior or subsequent injury does not

preclude them from making the threshold; you can “piggy back” the various accidents to

make the threshold. Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2nd Dep’t

1989).

If you plan on trying a threshold case, you must read the Pattern Jury Instructions

(PJI) Civil, 3rd Ed., Secs. 2:75 and 2:88A through 2:88F. You will find virtually all of the

law applicable to the trial of a threshold case, i.e., what kind of injuries or testimony is

required to make the threshold. The No-Fault Handbook, published by the New York

State Trial Lawyers Institute, is also an excellent resource.

SOFT TISSUE INJURIES

Usually the threshold becomes an issue when you have an injury that does not fit

into categories 1-5 above; in other words you are dealing with an injury you are trying to

72 fit into categories 6-9. Typically you will be dealing with what is known as a “soft tissue” injury.

Soft tissue is sometimes used as a pejorative term for injury to any structure in the body that is not a bone. There are usually two types of soft tissue injuries: those that involve the disc and those that do not. In order to know what you are dealing with, it is vital that your client obtain all appropriate medical treatment and evaluation, and that you obtain all of your client’s medical records, and all records that indicate damages from the accident.

PROVING THE INJURY

Follow the trail of damages. Frequently in a car accident case, the police are summoned and fill out a report. The police accident report may confirm that at the scene of the accident your client was complaining of pain or injury. The report may also confirm that an ambulance came and took your client to a hospital. The report may also show that one or more of the vehicles involved were damaged.

Most jurors can readily understand if metal was damaged, so was flesh and bones.

If the car had to towed away and your client had to be taken away in an ambulance, it is no stretch of the imagination that a serious injury just occurred. To buttress your claim, get photographs depicting damage to the vehicles or instrumentality’s involved, and a copy of the appraisal to repair the car.

MEDICAL PROOF

While common sense and the circumstantial evidence may help you persuade the jury, you need admissible medical evidence to get to them. You must begin to build your medical proof. Get the hospital record. Usually there is at least an emergency room

73 treatment recorded. The first concrete piece of medical evidence is that record. Does it indicate complaints of pain? More importantly, what do the objective tests, such as x- rays show? Keep in mind that while an x-ray is a valuable tool, it has a limited diagnostic value; it only shows damage to the bone. Thus if there is no fracture, the radiologist may say it is a negative or normal x-ray. The discs in the spine are not made of bone. They are considered soft tissue structures, and do not appear on the x-ray.

Keep in mind that the spine has a normal curvature, known as the lordotic curvature. Because of the trauma of the car accident, the spine may be knocked out of alignment. This may cause a flattening/straightening or reversal of the lordotic curvature/lordosis. This may be visualized on the otherwise “normal” x-ray (no fracture) and is your first objective proof of a “serious injury”. Because of the proliferation of advertising by chiropractors, the jury will easily grasp this concept.

NOTE: To properly read and understand your client’s medical records, you must learn the medicine. A good starting point are some of the sets published by the Matthew

Bender Publishing Co.: the Attorneys Textbook of Medicine, and Courtroom Medicine series. They will clearly and succinctly explain the pertinent medicine to you and teach you what to look for. Demonstrative evidence, such as anatomical models and diagrams, are extremely helpful teaching tools for the doctor to use in explaining the medicine and the injuries.

At some point after the accident, your client will eventually wind up at a doctors’ office, whether it be their family doctor, a chiropractor, an orthopedist, neurologist, physiatrist or a specialist in pain management. Because no-fault pays the medical expenses, initially at least, your client can usually go to whatever they want; they are not

74 limited to whatever HMO or insurance carrier they normally use. If they are poor, this

means that they can see a private doctor, and not be condemned to “the clinic”.

Assuming the injuries your client sustained from the accident persist, the doctor will

usually send them for various objective diagnostic test: CAT/CT scans, MRIs and

electro-diagnosis, such as an EMG or nerve conduction study.

The CAT/CT scan visualizes both bony and soft tissue structures, while the MRI

“images” the soft tissue structures. In either event, they will give a picture that will show if your client has a protruding disc, whether it be bulging or herniated. Do not make your case a battle of herniated v. bulging disc. That is a battle that not only do you risk losing, it is a battle that ought not be fought. The real issue is does the disc protrude, and if so, is it impinging upon a nerve? Your client doesn’t care if their disc is herniated or bulging; they know it hurts and causes a limitation in the movement, a loss of function and pain.

The electro-diagnostic test may also show if the disc is in fact impinging on a nerve.

Keep in mind that all tests have limits and may have a “false negative” rate.

If you can prove to a jury that your client complained of pain at the scene of the accident, was taken away in an ambulance, the ER x-ray showed loss of lordosis, the

CAT/CT scan or MRI shows a protruding disc, you have a positive nerve conduction study, and your client has a resultant restriction of motion and loss of function, you can clearly show that your client has a permanent and “serious” injury to meet the threshold.

Assume that the CAT/CT scan or MRI is negative, as is the nerve conduction study. Does this mean that you lose? Not necessarily. This usually means that your client has a sprain or a strain. A sprain by definition means a tearing of the muscles,

75 tendons, ligaments and soft tissue structures that surround the bones. When these

structures heal, they do so by formation of scar tissue. Scar tissue is like a scab; it is

inelastic and can irritate the normal or undamaged surrounding tissue. Scar tissue is

permanent, and can also form the basis for a serious and permanent injury. See,

Holbrook v. Jamesway, 172 A.D.2d 910, 568 N.Y.S.2d 198 (3rd Dep’t 1991).

Last but not least, was your client unable to perform their usual and customary activities for about 3 months during the 6 months after the accident? If so, even though

they do not have a permanent injury, their injury may be “serious” and compensable.

If your client does not have an injury to the disc, while you may reach the jury,

you may not wind up with a substantial recovery, and you may wind up in the appellate

division on a costly appeal. Keep in mind that to even get that far, you have to put at

least one doctor on the stand. Doctors do not appear in court for free. The bottom line is

if you don’t have a solid permanent injury, discretion is the better part of valor; settle

your case.

Threshhold – some recent cases

Where did the accident take place? If it occurred out of state, the threshold requirements of the Ins. Law may not apply.

In Ofori v. Green, 74 A.D.3d 474, (1st Dept. 2010), the court noted that:

This personal injury action arose out of a 2006 automobile accident in New Jersey . It is undisputed that the parties were residents of New York, where their vehicles were registered. The sole issue on appeal is whether the fortuitous circumstance that the accident happened in New Jersey should negate the requirement of plaintiff having to prove a “ serious injury ” under Insurance Law § 5102 (d). It does. *475

By its express terms, New York's no-fault law applies only to “injuries arising out of negligence in the use or operation of a motor vehicle in this state” (Insurance Law § 5104 [a] [emphasis added]). In this regard, it has consistently been held that the statute is not to be given extraterritorial effect (see Matter of McHenry v State Ins.

76 Fund, 236 AD2d 89, 91 [1997],citing Morgan v Bisorni, 100 AD2d 956 [1984]). Since the statute abrogates a common-law right, it must be strictly construed, “and as so construed, the section does not purport to regulate actions for personal injury arising out of the negligent use or operation of a vehicle outside this State” (id. at 956).

We reject defendants' alternative argument that even if section 5102(d) is inapplicable, the matter should be remanded to the motion court to determine whether the New Jersey no-fault law, which similarly limits noneconomic loss, applies, since that law applies only to a vehicle “registered or principally garaged” in New Jersey (**2 NJ Stat Ann § 39:6A-3; see Zabilowicz v Kelsey, 200 NJ 507, 509, 984 A2d 872, 873 [2009]), which was not the case here.

In Perl v Meher, 18 N.Y.3d 208 (2011), the Court addressed some recent judicial changes in the definition of a “serious injury”, and is crucial to understanding this area of law.

In Pommells v Perez (4 NY3d 566, 571 [2005]), then Chief Judge Kaye described the working of the No-Fault Law (officially the Comprehensive Motor Vehicle Insurance Reparations Act, Insurance Law § 5101 et seq.) by saying: “Abuse . . . abounds.” That included, she said, “abuse . . . in failing to separate ‘serious injury’ cases” from others (id.).

No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23). “Serious injury” claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are “serious” with a “well-deserved skepticism” (Pommells, 4 NY3d at 571).

*215 Here, we confront three cases in which the Appellate Division rejected allegations of serious injury as a matter of law. We conclude that we must reverse in two of the cases, Perl v Meher and Adler v Bayer, because the evidence plaintiffs have put forward is legally sufficient. We affirm in the third case, Travis v Batchi.

In finding that two of these three claims survive our scrutiny, we by no means signal an end to our skepticism, or suggest that that of lower courts is unjustified. There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.

I Plaintiffs Joseph Perl, David Adler and Sheila Travis brought lawsuits for personal injuries allegedly resulting from automobile accidents; Perl's and Adler's wives also sued,

77 asserting derivative claims. Because the No-Fault Law bars recovery in automobile accident cases for “non-economic loss” (e.g., pain and suffering) unless the plaintiff has a “serious injury” as defined in the statute, Perl, Adler and Travis seek to show that their injuries were serious.**2

Of the several categories of “serious injury” listed in the statutory definition, three are relevant here: “permanent consequential limitation of use of a body organ or member”; “significant limitation of use of a body function or system”; and “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (Insurance Law § 5102 [d]).

Plaintiffs in all these cases rely on one or both of the first two of these categories, claiming permanent and significant limitations of their use of a bodily organ or system. Travis also relies on the third category, claiming that she was disabled from “substantially all” of her “usual and customary daily activities” for at least 90 out of the 180 days following her accident.

Defendants challenged plaintiffs' showing of serious injury in all three cases. In Perl, defendants moved for summary judgment; Supreme Court denied the motion, but the Appellate *216 Division reversed and dismissed the complaint, with two Justices dissenting (Perl v Meher, 74 AD3d 930 [2d Dept 2010]). The Adler case was tried, resulting in a jury verdict for plaintiffs after defendants had unsuccessfully moved for judgment as a matter of law under CPLR 4401; the Appellate Division reversed, granted defendants' motion and dismissed the complaint (Adler v Bayer, 77 AD3d 692 [2d Dept 2010]). In Travis, Supreme Court granted defendants' motion for summary judgment and the Appellate Division affirmed (Travis v Batchi, 75 AD3d 411 [1st Dept 2010]). Plaintiffs in Perlappeal to this Court as of right, pursuant to CPLR 5601 (a). We granted leave to appeal to plaintiffs in Adler and Travis.

All three cases turn on the sufficiency of plaintiffs' proof. In Perl andTravis, all of the Appellate Division Justices concluded, as do we, that the evidence offered in support of defendants' summary judgment motions sufficed to shift to plaintiffs the burden of coming forward with evidence to raise an issue of fact. The question is whether plaintiffs met that burden. In Adler, the question is whether plaintiffs offered enough evidence at trial to get to the jury.

II The Perl and Adler cases are not related, but they are similar in a number of ways, and plaintiffs in each relied on the testimony of the same expert, Dr. Leonard Bleicher.

Perl and Adler both testified that their ability to function had been significantly limited since their accidents. Perl, 82 when the accident occurred, testified that he could no longer garden, carry packages while shopping, or have marital relations. Adler, a

78 school teacher, testified that he could not move around easily, could not read for a long time and could not pick up his children.

We held in Toure v Avis Rent A Car Sys. (98 NY2d 345, 350 [2002]) that such “subjective complaints alone are not sufficient” to support a claim of serious injury; there must **3 be “objective proof.” Thus Dr. Bleicher's testimony was critical in both the Perl and Adler cases. In each case, the doctor testified that he examined the injured plaintiff shortly after the accident; that he performed a number of clinical tests, named but not fully described in the record, which were “positive”—i.e., indicated some departure from the norm; that he observed that the patient had difficulty in moving and diminished strength; and that the patient's range of motion was impaired. Bleicher *217 did not, at his initial examination of either Perl or Adler, quantify the range of motion he observed, except to say that Perl's was “less than 60% of normal in the cervical and lumbar spine.” In each case, however, Bleicher again examined the patient several years later, using instruments to make specific, numerical range of motion measurements.

We said in Toure: “In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury. An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system” (id.[citations omitted]).

(1) We need not decide here whether Bleicher's testimony would furnish legally sufficient proof of serious injury under the “qualitative” prong of Toure. While his observations at his initial examinations were detailed, it is debatable whether they have an “objective basis,” or are simply a recording of the patients' subjective complaints. Under the “quantitative” prong of Toure, however, Bleicher's later, numerical measurements are sufficient to create an issue of fact as to the seriousness of Perl's and Adler's injuries.

(2) Defendants argue that Bleicher's quantitative findings were made too long after Perl's and Adler's accidents. The Appellate Division in Perlagreed, holding that “plaintiffs are . . . required to demonstrate restricted range of motion based on findings both contemporaneous to the accident and upon recent findings” (Perl v Meher, 74 AD3d at 931 [citations omitted]). (The Appellate Division's rationale in Adler, though not specifically explained, is presumably the same.) Toure, however, imposed no such requirement of “contemporaneous” quantitative measurements, and we see no justification for it.

There is nothing obviously wrong or illogical about following the practice that Bleicher followed here—observing and recording a patient's symptoms in qualitative terms shortly after the accident, and later doing more specific,

79 quantitative measurements in preparation **4 for litigation. As the author of a recent article points out, a contemporaneous doctor's report is *218 important to proof of causation; an examination by a doctor years later cannot reliably connect the symptoms with the accident. But where causation is proved, it is not unreasonable to measure the severity of the injuries at a later time (see Morrissey,‘Threshold Law’: Is a Contemporaneous Exam by Court of Appeals in Order?, NYLJ, Jan. 18, 2011). Injuries can become significantly more or less severe as time passes.

Bleicher testified in Adler that it is the better practice to defer a precise quantitative assessment of an injury: “On initial examination when person has assorted extensive fresh recent acute injuries, then it's better to go with our visual parameters because measuring range of motion of the joint when it's acutely injured, it's not reliable. It doesn't present correct numbers.” The orthopedist who testified for the defense in Adler did not challenge this opinion. In fact, the defense doctor acknowledged that he, like Bleicher in his initial examination, relied on visual estimates of range of motion, not on measurements with instruments.

We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

Defendants in both Perl and Adler offer alternative grounds for upholding the Appellate Division's dismissal of the complaints. We find only one of those grounds to warrant discussion: Defendants in Perl claim that there was insufficient evidence of a causal connection between Perl's accident and his injury. They assert that here, as in Carrasco v Mendez(decided with Pommells v Perez), defendants “presented evidence of a preexisting degenerative . . . condition causing plaintiff's alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact” (4 NY3d at 579).

(3) Defendants in Perl did indeed present evidence, in the form of a sworn radiologist's report based on an MRI, that Perl's injuries were “degenerative in etiology and longstanding in nature, preexisting the accident.” However, plaintiffs' contrary *219 evidence, while hardly powerful, was sufficient to raise an issue of fact. They submitted another radiologist's affidavit, saying that, while some findings from the MRI “are consistent with degenerative disease,” a single MRI cannot rule out the possibility that “the patient's soft tissue findings are . . . **5 a result of a specific trauma.” That question, this radiologist said, can best be judged “by the patient's treating physician in conjunction with exam, history and any previous tests.”

80 The treating physician, Dr. Bleicher, opined that since Perl “had not suffered any similar symptoms before the accident or had any prior injuries/medical conditions that would result in these findings,” the findings were causally related to the accident. A factfinder could of course reject this opinion: It is certainly not implausible that a man of 82 would have suffered significant degenerative changes. We cannot say as a matter of law on this record, however, that such changes were the sole cause of Perl's injuries.

Though we hold plaintiffs' evidence of serious injury in both Perl andAdler to be legally sufficient, both cases have troubling features. Most striking is the sworn assertion by a defense physician who examined Perl, which in substance accuses Perl of malingering. The doctor said: “The fact that he sits, yet presents with a show of only 10 degrees of flexion of the lumbar spine is contradictory. His ‘give-away’ strength is contradictory with his ambulation. This individual's show of such decreased range of motion is totally contradicted by the fact that he followed me about, rotating the cervical spine 60 degrees and flexing at least 30 degrees. I do not believe that this individual presents with any true findings at this time.”

The issue presented by this evidence, of course, is one of credibility, which is not for this Court to decide.

III (4) We reach a different result in Travis, because we see no evidence in the record of that case of a serious injury as defined in the No-Fault Law.

Travis, like Perl and Adler, relies on the two “limitation of use” categories of the statutory definition—categories that in substance require some significant, permanent impairment. But no evidence of such an impairment is to be found—indeed we *220 cannot tell from the record what Travis's alleged permanent impairment is. She submitted a report from her treating physician, stating the conclusion that she has a “[m]ild partial permanent disability,” but the report does not describe the disability; it says that Travis is “[c]urrently able to perform the essential functions of her job.” There is no evidence that she suffered either a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.”

Travis relies more heavily on the category of the definition that relates to temporarily disabling conditions, claiming that she had a “medically determined injury or impairment of a non-permanent nature which prevent[ed] [her] from performing substantially all **6 of the material acts which constitute [her] usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” Again, however, the evidence to support the claim is lacking. Even Travis's subjective description of her injuries—which in any event would be insufficient, underToure, to defeat summary judgment—does not show that there were 90 of the 180 days after the injury when she was disabled from “substantially

81 all” of her usual activities. On the contrary, she acknowledges that she was able to do some work from home less than three months after the accident. And her doctor's reports say nothing at all about what activities she could and could not perform until, 111 days after the accident, she was found able “to perform the essential functions of her job,” though with “restrictions.” The record does not show any “medically determined injury” that would bring Travis within the “90/180” provision of the statute.

Accordingly, in Perl v Meher, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court denying defendants' motion for summary judgment reinstated; in Adler v Bayer, the order of the Appellate Division should be reversed, with costs, defendants' motion for judgment as a matter of law denied, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court; and in Travis v Batchi, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

*221 In Perl v Meher: Order reversed, etc.

In Adler v Bayer: Order reversed, etc.

In Travis v Batchi: Order affirmed, with costs.

Review of any decision that dismisses a threshold case pre- Perl may be “bad” law; post-Perl analysis is what must now be looked at. The court looked carefully at the dissent of the Appellate Division in Perl, and it weighed heavily on them. The dissent of the appellate court is below.

In Perl v Meher, 74 AD3d 930 (2nd Dept. 2010),

Austin, J., dissents and votes to affirm the order appealed from, with the following memorandum in which Leventhal, J., concurs: By ruling that the injured plaintiff, Joseph Perl (hereinafter the injured plaintiff), failed to strictly comply with a standard of medical proof which can be found nowhere in Insurance Law § 5102 (d), the majority bars a colorably meritorious claim from reaching a jury. Because I believe that such an approach is contrary to New York’s long-standing policy of preferring cases to be determined on the [*3]merits (see e.g. Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]), I respectfully dissent and vote to affirm the order appealed from.

82 Put another way, from the four corners of his affirmation, Dr. Bleicher avers objective findings based on a norm which is stated once instead of the usual two times. Based upon the finding that, six days postaccident, the plaintiff suffered a greater than 60% loss of range of motion against the norm which is set forth later in Dr. Bleicher’s affirmation, the plaintiff was properly found to have met his burden of proof (see Dufel v Green, 84 NY2d 795, 798 [1995] [an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion sufficed to establish a claim of serious injury]; Lopez v Senatore, 65 NY2d 1017 [1985]). Any perceived deficiencies in Dr. Bleicher’s findings could be subjected to the crucible of cross-examination at trial (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002] [“(A)n expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the [*4]affected body organ, member, function or system. . . When supported by objective evidence, an expert’s qualitative assessment of the seriousness of a plaintiff’s injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact” (citations omitted)]). The Toure court did not establish a precise formula to which a treating doctor’s submission must rigidly adhere. The majority assumes that days after an accident, an injured plaintiff presents to his or her doctor for the purpose of litigation rather than treatment. Research reflects no case law which mandates that a treating physician record his or her findings of that initial examination in a particular manner. Rather, so long as the affirmation of the treating physician indicates that his or her contemporaneous testing revealed a measurable limitation of the injured plaintiff’s range of motion, the threshold set forth in Insurance Law § 5102 (d) should be deemed to be satisfied. The cases cited by the majority with regard to a treating physician’s contemporaneous examination are not inconsistent with this view (see Stevens v Sampson, 72 AD3d 793 [2010] [the plaintiff submitted an affirmed statement of a physician who did not treat the plaintiff at the time of the accident]; Jack v Acapulco Car Serv., Inc., 72 AD3d 646 [2010] [the plaintiff’s first treatment came four years after the accident]; Sierra v Gonzalez First Limo, 71 AD3d 864, 865 [2010] [absence of “any range of motion findings which were contemporaneous with the subject accident”]; Little v Locoh, 71 AD3d 837 [2010] [unaffirmed report of treating physician insufficient to meet the plaintiff’s burden]). To hold a treating physician to a litigation standard of marking his or her chart at such an early stage effectively turns away plaintiffs with arguably colorable claims who seek treatment with a physician who is more focused on providing care than preparing for litigation. This unfortunate result does little, if anything, to promote the legislative purpose of Insurance Law § 5102 (d) which was to “weed out frivolous claims” (Dufel v Green, 84 NY2d at 798; see Licari v Elliott, 57 NY2d 230, 234-235 [1982]). On the other hand, years after the accident, and in consultation with defense counsel, the defendants’ doctors see an injured plaintiff solely for the litigation purpose of dismissal of that plaintiff’s claim. This places an injured plaintiff and his or her treating physician at a severe disadvantage in opposing a defendant’s summary judgment motion. The majority fails to account for differences in approach by treating doctors which convey the required information in a less than perfect way. It should be of no

83 moment that some doctors do, in fact, record their findings in such a way that satisfies the majority view.

In McHugh v. Marfoglia, 65 A.D.3d 828 (4th Dept. 2009), the Appellate

Division reversed the lower court and granted the plaintiff’s motion for summary judgment on liability and threshold.

In Linton v Nawaz, 14 N.Y.3d 821 (2010)

In this personal injury case in which a taxi struck the plaintiff, the evidence plaintiff proffered relating to injuries to his right shoulder and lumbosacral spine raised a triable [*2]question of fact as to whether he suffered a serious injury that was causally related to the accident under the permanent consequential limitation of use of a body organ or member and/or significant limitation of a body function or system criteria (see Insurance Law § 5102 [d]). Since plaintiff established that at least some of his injuries meet the "no-fault" threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment.

In Rubin v SMS Taxi Corp., 71 AD3d 548 (1st Dept. 2010)

Once a jury determines that plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff's injuries causally related to the accident, even those not meeting the serious injury threshold. Whether plaintiff's back and neck injuries were causally related to the accident are questions of fact for the jury to resolve. The legislative intent of New York's No-Fault Law was to "significantly reduce the number of automobile personal injury accident cases litigated in the courts" (Licari v Elliott, 57 NY2d 230, 236 [1982]), and to "weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 NY2d 795, 798 [1995]). Accordingly, once an alleged claim meets at least one of the serious injury thresholds, the statute's gatekeeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied. As the case is already in the gate, so to speak, judicial economy is no longer a reason to preclude plaintiff from presenting to the jury all injuries causally related to the accident. This comports with the general principle that a plaintiff is entitled to recover damages that justly and fairly compensates him or her for all injuries proximately caused by the accident. In Ofori v Green, 74 AD3d 474 (1st Dept. 2010)

This personal injury action arose out of a 2006 automobile accident in New Jersey. It is undisputed that the parties were residents of New York, where their vehicles were

84 registered. The sole issue on appeal is whether the fortuitous circumstance that the accident happened in New Jersey should negate the requirement of plaintiff having to prove a “serious injury” under Insurance Law § 5102 (d). It does.

By its express terms, New York’s no-fault law applies only to “injuries arising out of negligence in the use or operation of a motor vehicle in this state” (Insurance Law § 5104 [a] [emphasis added]). In this regard, it has consistently been held that the statute is not to be given extraterritorial effect (see Matter of McHenry v State Ins. Fund, 236 AD2d 89, 91 [1997], citing Morgan v Bisorni, 100 AD2d 956 [1984]). Since the statute abrogates a common-law right, it must be strictly construed, “and as so construed, the section does not purport to regulate actions for personal injury arising out of the negligent use or operation of a vehicle outside this State” (id. At 956). We reject defendants’ alternative argument that even if section 5102 (d) is inapplicable, the matter should be remanded to the motion court to determine whether the New Jersey no-fault law, which similarly limits noneconomic loss, applies, since that law applies only to a vehicle “registered or principally garaged” in New Jersey (NJ Stat Ann § [*2]39:6A-3; see Zabilowicz v Kelsey, 200 NJ 507, 509, 984 A2d 872, 873 [2009]), which was not the case here In Mercado-Arif v Garcia, 74 AD3d 446 (1st Dept. 2010)

In opposition, plaintiff’s chiropractor’s affidavit was sufficient to raise a triable issue of fact, and plaintiff’s limitations cannot be deemed minor as a matter of law (see e.g. Toure v Avis Rent A Car Sys., 98 NY2d 345, 352-353 [2002]; Hernandez v Rodriguez, 63 AD3d 520, 520-521 [2009]). Plaintiff’s chiropractor relied, inter alia, on range of motion tests, the MRIs, the nerve conduction studies, and observation of spasm, and not solely on plaintiff’s subjective complaints of pain (see e.g. Cruz v Castanos, 10 AD3d 277, 279 [2004]; Brown v Achy, 9 AD3d 30, 31, 33 [2004]; Arjona v Calcano, 7 AD3d 279 [2004]; Adetunji v U-Haul Co. of Wis., 250 AD2d 483[*2][1998]). Contrary to defendants’ contention, the nerve conduction studies were affirmed. Although the MRIs were unsworn, plaintiff’s chiropractor’s opinion relying on them was “sworn and thus competent evidence” (Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]). The conflicting opinions of defendants’ expert, Dr. Tantleff, and plaintiff’s chiropractor as to whether the MRIs show degenerative changes present issues of fact and credibility for a jury to resolve. Plaintiff adequately explained the gap in her treatment between January 25, 2006 and July 29, 2008 by submitting her own affidavit, saying that no-fault had stopped her benefits (see Wadford v Gruz, 35 AD3d 258, 259 [2006]), and her chiropractor’s affidavit, stating that plaintiff had reached maximum medical improvement and that any further treatment would be palliative (see e.g. Pommells v Perez, 4 NY3d 566, 577 [2005]).

85 In Garvey v Talukder, 74 AD3d 477 (1st Dept. 2010)

Order, Supreme Court, New York County (Paul Wooten, J.), entered July 23, 2009, which granted defendants’ motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102 (d), unanimously modified, on the law, the motion denied to the extent of reinstating that portion of the complaint premised on allegations of serious injury involving permanent limitation of use of a body member and permanent limitation of use of a body function or system, and otherwise affirmed, without costs. Defendants’ experts did not address MRIs indicating that plaintiff had suffered lateral and medial tears in her menisci and straightening of the lordosis in her cervical spine. Similarly, none of those experts addressed the EMG results, which showed evidence of bilateral C5-6 radiculitis. Defendants’ experts also failed to state what, if any, objective tests they used to lead them to the conclusions that plaintiff had full ranges of motion in her cervical spine and right knee and that the alleged injuries to those body parts had fully resolved. Accordingly, defendants failed to establish prima facie that plaintiff did not sustain a permanent consequential or significant injury in accordance with the statutory threshold (see Wadford v Gruz, 35 AD3d 258 [2006]). In Mendez v Mendez, 72 AD3d 402 (1st Dept. 2010).

In opposition, plaintiff raised an issue of fact through the affirmations of her experts and her MRI reports. The experts opined that plaintiff suffered permanent injuries that were caused by the car accident. They provided range of motion measurements as well as the results of other tests they performed, and they examined plaintiff shortly after the accident and again in 2008 (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 353, 355 [2002]). Plaintiff’s experts also explained any gap in her treatment by stating that she had reached the maximum benefit possible from the treatment (see Pommells v Perez, 4 NY3d 566, 577 [2005]). The fact that the MRI reports of plaintiff’s ankle and cervical spine were unsworn does not avail defendant, since plaintiff’s experts related their own observations and findings as to her injuries and range of motion limitations (see Rosario v Universal Truck & Trailer Serv., 7 AD3d 306, 309 [2004]). Moreover, plaintiff’s expert neurologist reviewed the MRI films and concurred with the findings in the reports. In Reitz v Seagate Trucking, Inc., 71 AD3d 975 (2nd Dept. 2010)

In support of their cross motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Lois Reitz on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), the defendants failed to meet their prima facie burden of establishing that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendants submitted, inter alia, an affirmed medical report of Dr. Edward A. Toriello, an orthopedist, who examined Lois Reitz on March 25, 2008, and found range-

86 of-motion restrictions in her lumbosacral spine. Similarly, the affirmed medical report of Dr. Mark J. Zuckerman, the defendants' neurologist, found a restriction in Lois Reitz's lumbar spine and stated that she suffers from myofascial pain syndrome as a result of the subject accident. Although both physicians opined that any restrictions were subjective and resulted from preexisting degenerative changes noted in a December 2006 magnetic resonance imaging scan and not the subject accident, they failed to explain or substantiate, with objective medical evidence, the basis for their conclusions (see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734 [2009]; Moriera v Durango, 65 AD3d 1024 [2009]; Busljeta v Plandome Leasing, Inc., 57 AD3d 469 [2008]).

In Torres v. Knight, 63 A.D.3d 450 (1st Dept.,2009). We find that defendants failed to demonstrate their entitlement to summary judgment dismissing the complaint on that ground.

Both defendants' neurology and orthopedics experts reported significant limitations of range of motion in plaintiff's cervical and lumbar spine ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ), and neither identified a potential cause of the injury other than the accident ( see Diaz v. Anasco, 38 A.D.3d 295, 831 N.Y.S.2d 398 [2007] ). Rather, the experts opined that plaintiff's limited range of motion was the result of lack of effort on her part. However, this opinion was unsupported by objective medical proof, and therefore it is insufficient to establish a prima facie case ( see Lamb v. Rajinder, 51 A.D.3d 430, 859 N.Y.S.2d 4 [2008]; Busljeta v. Plandome Leasing, Inc., 57 A.D.3d 469, 870 N.Y.S.2d 366 [2008] ).

A similar result occurred in Chun Ok Kim v Orourke, 70 AD3d 995 (2nd Dept.

2010)

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The defendant's own examining neurologist reported findings of limitations in the ranges of motion in the cervical and lumbar regions of the injured plaintiff's spine (see Powell v Prego, 59 AD3d 417 [2009]; Norme v Ajons, 57 AD3d 749 [2008]; Wright v AAA Constr. Servs., Inc., 49 AD3d 531 [2008]; Umar v Ohrnberger, 46 AD3d 543 [2007]; Bentivegna v Stein, 42 AD3d 555 [2007]), and he failed to "explain or substantiate, with any objective medical evidence, the basis for his conclusion that the noted limitations were self-restricted" (Bengaly v Singh, 68 AD3d 1030, 1031 [2009]; see Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734 [2009]; Chang Ai Chung v Levy, 66 AD3d 946 [2009]; Moriera v Durango, 65 AD3d 1024 [2009]).

The same thing happened in Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734 (2nd

87 Dept. 2009)

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their motion, the defendants relied upon, inter alia, the affirmed medical report of their examining neurologist Dr. Monette G. Basson. In her report, Dr. Basson noted that the plaintiff had a significant limitation in her lumbar spine range of motion, and concluded that the decreased range of motion was "voluntary." However, she failed to explain or substantiate, with objective medical evidence, the basis for her conclusion that the limitation was voluntary (see Cuevas v Compote Cab Corp., 61 AD3d 812 [2009]; Colon v Chuen Sum Chu, 61 AD3d 805 [2009]; Torres v Garcia, 59 AD3d 705 [2009]; Busljeta v Plandome Leasing, Inc., 57 AD3d 469 [2008]).

In Sanchez v Ahmed, 67 AD3d 540 (1st Dept. 2009)

Defendants did not meet their burden of establishing prima facie that infant plaintiff did not sustain permanent loss or permanent consequential or significant limitations as a result of being struck by defendants' vehicle as he was crossing the street. Both the infant and his mother testified at their depositions on May 29, 2007, and reported to defendants' examining physician, that the child began having headaches three weeks after the accident for which his doctors prescribed 400 milligrams of ibuprofen, and that the headaches continued, particularly in the summertime. Thereafter, defendants referred the infant plaintiff to an orthopedic surgeon and a doctor specializing in plastic and reconstructive surgery for examination. Defendants submitted the doctors' letters opining that the infant had no disabilities from an orthopedic point of view or from the scarring on his forehead. However, defendants failed to submit an opinion from a neurologist who could have opined whether the infant's headaches and other symptoms were causally related to the accident.

In Chang Ai Chung v Levy, 66 A.D.3d 946 (2nd Dept. 2009), this also happened

(is there a pattern here?)

The Supreme Court erred in finding, upon renewal, that the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied on, inter alia, the affirmed medical report of Dr. Mathew M. Chacko, their examining neurologist. Dr. Chacko examined the plaintiff on November 7, 2007. On that date, Dr. Chacko performed various range-of-motion testing on the plaintiff, including cervical spine testing. According to Dr. Chacko's own findings, during this examination he noted significant limitations in the plaintiff's cervical spine range of motion (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805). While Dr. Chacko concluded that the decreased ranges of

88 motion were "voluntary," he failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the limitations that were noted were self-restricted

In Pfeiffer v New York Cent. Mut. Fire Ins. Co., 71 AD3d 971 (2nd Dept. 2010)

In support of its motion, the defendant relied upon, inter alia, the plaintiff's medical records related to a prior accident occurring in 2004 and examinations occurring after the subject accident, which occurred in July 2006. Under the circumstances of this case, those records were insufficient to establish, prima facie, that the plaintiff did not sustain an aggravation and/or exacerbation of her prior cervical spine injuries as a result of the subject accident (see McKenzie v Redl, 47 AD3d 775 [2008]; Cebularz v Diorio, 32 AD3d 975 [2006]).

In Garza v Taravella, 74 AD3d 1802 (4th Dept. 2010), the court addressed the

issue of gap and knowledge of insurance coverage.

We reject defendant’s further contention that plaintiff failed to explain a six-month gap in treatment. “[P]laintiff adequately explained the significant gap in her treatment history by stating in her affidavit that she stopped treatment [for] about [six] months after the subject accident because . . . she [*2]could not afford to personally pay for further treatment” (Jules v Barbecho, 55 AD3d 548, 549 [2008]; see Francovig v Senekis Cab Corp., 41 AD3d 643, 644 [2007]; Black v Robinson, 305 AD2d 438, 439-440 [2003]; see generally Pommells v Perez, 4 NY3d 566, 574 [2005]). Contrary to defendant’s contention, there is no evidence in the record establishing that plaintiff knew that her medical bills would be paid by no-fault insurance during that six-month period (cf. McConnell v Freeman, 52 AD3d 1190, 1191 [2008]).

In Clemmer v Drah Cab Corp. 74 A.D.3d 660 (1st Dept 2010), the court made

clear, yet again, why legislative reform is needed with respect to Ins. Law 5102(d). The

dissent, by Justice Renwick, is noteworthy.

RENWICK, J. (dissenting) I disagree with the majority’s conclusion that the order granting defendants’ motion for summary judgment dismissing the complaint should be affirmed. Specifically, in finding that plaintiff failed to meet her burden of raising a triable issue on serious injury, the majority incorrectly distinguishes our precedent in Rivera v Super Star Leasing, Inc. (57 AD3d 288 [2008]), which stands for the proposition that a plaintiff can rely upon unsworn reports of a treating physician to raise an issue of fact on serious injury as long

89 as such evidence is not the only evidence submitted in opposition to the motion for summary judgment. Accordingly, I respectfully dissent. On May 29, 2005, plaintiff was the passenger of a vehicle involved in a motor vehicle accident with a vehicle owned and operated by defendants. Plaintiff commenced this action against defendants seeking to recover damages; plaintiff alleged that he sustained injuries to the cervical and lumbar portions of his spine. Defendants moved for summary judgment dismissing the complaint in its entirety, arguing that plaintiff did not sustain a “serious injury” under Insurance Law § 5102(d). Supreme Court granted the motion and dismissed the action. I agree with the majority to the extent it finds that defendants met their burden of establishing prima facie that plaintiff did not sustain permanent consequential or significant limitations of his spine by submitting the affirmations of several doctors who, upon examining plaintiff and performing objective tests, similarly concluded that plaintiff’s injuries were resolved (see e.g. Charley v Goss, 54 AD3d 569, 570-571 [2008], affd 12 NY3d 750 [2009]; Figueroa v Castillo, 34 AD3d 353 [2006]). Likewise, I agree that defendants also established that plaintiffs had no 90/180-day injury by submitting plaintiff’s affidavit in which he said he returned to work 2½ months – i.e. less than 90 days – after the accident (see Lloyd v Green, 45 AD3d 373 [2007]; Guadalupe v Blondie Limo, Inc., 43 AD3d 669 [2007]). The burden then shifted to plaintiff to raise a triable issue of fact that he sustained a serious injury (see Licari v Elliot, 57 NY2d 230, 235 [1982]; accord Gaddy v Eyler, 79 NY2d 955, 957 [1992]). In opposition to the motion, plaintiff submitted an affidavit from Dr. Pervaiz Qureshi, who examined him on March 6, 2008, almost three years after the accident. The physical examination revealed significant limitations of use of plaintiff’s spine. Dr. Qureshi reviewed the medical report prepared by plaintiff’s treating chiropractor, Dr. Donald Trager, who had examined plaintiff on June 5, 2005, within a week of the accident, and found significant limitations of use of his spine. Dr. Qureshi also reviewed the MRIs taken of plaintiff on August 9 and August 15, 2005, and agreed with the MRI reports indicating, respectively, herniations and bulges of the cervical spine, as well as bulges of the lumbar spine. Based upon his recent physical examination and review of the medical reports and MRIs, Dr. Qureshi concluded that plaintiff sustained permanent consequential and significant limitations of use of his spine and that such serious injury was causally related to the automobile accident. Supreme Court found that plaintiff’s evidence was insufficient to raise a triable issue of fact that he had suffered permanent consequential or significant limitations of use of his spine. [*4]Initially, the court determined that the MRI reports submitted by plaintiff “though unsworn, were of the diagnostic studies relied upon by defendants’ expert for his radiologic[al] assessment, and, as such, are properly before the court.” The court, however, determined that “[t]he [unsworn] report of the chiropractor is not properly before the court and cannot be considered.” Disregarding such unsworn report, the court found the record devoid of any admissible contemporaneous evidence of the extent of plaintiff’s limitations of use of his spine. As a result, the court found that “[t]he examining physician’s quantification of spinal limitations, more than two and one half

90 years after the accident, is too remote in time to raise an issue of fact as to whether the limitations were caused by the accident.” Based on existing case law in this Department, I conclude that Supreme Court erred in finding, in effect, that the examining physician’s sworn opinion that plaintiff suffered a serious injury was deficient because of the expert’s reliance upon the unsworn report of plaintiff’s chiropractor to establish the contemporaneous limitations of use of his spine. It is well established that “ evidence, otherwise excludable at trial, may be considered to deny a motion for summary judgment provided that this evidence does not form the sole basis for the court’s determination’” (Largotta v Recife Realty Co., 254 AD2d 225, 225- 226 [1998] quoting Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541 [1981]). This principle applies with equal force to unsworn medical reports submitted to rebut a defendant’s showing of lack of serious injury (see e.g. Hammett v Diaz-Frias, 49 AD3d 285 [2008]; cf. Henkin v Fast Times Taxi, 307 AD2d 814 [2003] [unsworn reports are insufficient if they are the only evidence in opposition]). This Court’s holding in Rivera v Super Star Leasing, Inc. (57 AD3d 288 [2008]), illustrates the point. In Rivera, this Court found that the plaintiff raised a triable issue of fact on serious injury based upon the sworn report of a physician who conducted a recent examination of the plaintiff and found significant limitations of use of his spine. In rendering his sworn opinion that the plaintiff had suffered a serious injury (i.e. permanent consequential and significant limitations of use of his spine), the examining physician relied upon several unsworn reports including that of the treating physician who conducted a contemporaneous examination of the plaintiff and found significant limitations of use of his spine. This Court found that these unsworn reports were properly considered to deny a motion for summary judgment because they “were not the only evidence submitted by plaintiff in opposition to the motion” (id.). The facts of Rivera are essentially indistinguishable from the present case. Here, as in Rivera, the examining physician, who conducted the recent examination and rendered a sworn opinion that plaintiff suffered a serious injury, relied upon the unsworn report of the treating physician, whose contemporaneous examination of plaintiff also revealed significant limitations of use of plaintiff’s spine. Since, as in Rivera, the unsworn contemporaneous report was not the only evidence submitted by plaintiff in opposition to the motion, this evidence should have been considered by the court below in determining whether plaintiff had raised a triable issue of fact on serious injury, i.e. a permanent consequential or significant limitations of use of his spine. The majority’s attempt to distinguish Rivera is not persuasive. The majority asserts that Rivera is distinguishable because there the unsworn MRI reports relied upon by the examining physician, who rendered an opinion of serious injury, were properly before the court since the defendant’s medical experts also made reference to them. In contrast, in this case, defendant’s medical experts did not rely upon plaintiff’s MRI reports. The majority finds this factual distinction to be dispositive because they contend that defendant’s reliance on plaintiff’s MRI [*5]reports in Rivera provided “the other” contemporaneous medical evidence in admissible form, albeit concededly only insofar as establishing the existence of disc bulges and herniations in plaintiff’s spine.

91 The factual distinction the majority draws between Rivera and this case is analytically insignificant. The majority overlooks the crucial fact that, in this case, the examining physician himself reviewed the actual MRI films. He did not rely on any unsworn MRI reports. Rather, after his own review of the MRI films, he concluded that they established disc bulges and herniations in plaintiff’s spine. Thus, it was based upon his own MRI findings, his physical examination of plaintiff, and his review of the treating physician’s report that the examining physician concluded that plaintiff sustained a serious injury (cf. Byong Yol Yi v Canela, 70 AD3d 584 [2010] [“The affirmed report of plaintiff’s doctor was admissible, even though it relied in part on the unsworn reports of another doctor who read plaintiff’s MRIs”] citing Rivera, 57 AD3d 288; see also Pommells v Perez, 4 NY3d 566, 577 n5 [2005] [“Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence” [citation omitted]). Contrary to the majority’s contention, it remains that Rivera and this case are indistinguishable with respect to the central fact that in both cases the plaintiff relied upon the unsworn report of the treating physician to establish contemporaneous spine limitations. Nevertheless, as this Court explicitly held in Rivera, “[T]o the extent the expert incorporated into his affirmation several unsworn reports of other doctors who examined plaintiff, these unsworn reports were not the only evidence submitted by plaintiff in opposition to the motion, and may be considered to deny a motion for summary judgment” (Rivera at 288). The majority makes no attempt to address the significance of the fact that plaintiff’s expert (Dr. Qureshi) actually reviewed the MRI films and thus made an independent determination that they revealed bulges and herniations in plaintiff’s spine. Instead, the majority completely mischaracterizes Dr. Qureshi’s statements by alleging that plaintiff’s expert did not conduct his own independent review of the MRIs but rather simply stated that “ he [was] in agreement’ with the results of Dr. Schepp’s [treating physician] unsworn . . . report.” This “bootstrapping” allegation, however, is unsupported by the evidence. In actuality, in his affidavit, Dr. Qureshi states, “[A]fter a review of Mr. Clemmer’s MRI films, I am in agreement with the above noted results [indicating disk bulges and herniations of plaintiff’s spine]” [emphasis added]). Thus, there is no basis to dispute the fact that plaintiff’s expert rendered an opinion of serious injury based upon his own MRI findings, his physical examination of plaintiff and his review of the treating physician’s reports. In short, by submitting evidence that demonstrated recent and contemporaneous limitations in his spine (see Valentin v Pomilla, 59 AD3d 184, 184-185 [2009]; Thompson v Abbasi, 15 AD3d 95, 98 [2005]), plaintiff raised a triable issue of fact as to serious injury, and defendants’ motion for summary judgment should have been denied with regard to the claims of “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system.” I agree, however, with Supreme Court to the extent it dismissed the 90/180-day claim, since plaintiff submitted no medical evidence to substantiate his claim that his injuries precluded him from engaging in substantially all his customary daily activities for 90 of

92 the first 180 days after the accident (see Dembele v Cambisaca, 59 AD3d 352, 353 [2009]). For the foregoing reasons, I would modify the order of Supreme Court to the extent it [*6]granted defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). I would reinstate the complaint only as to the claims of “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system.”

Medical Records Judicial Notice

In Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 A.D.3d 13 (2nd Dept.

2009), the court gave extensive analysis of the doctrine of judicial notice, and in doing so, took judicial notice of Federal Diagnosis and Procedure Codes, and did so from the

Health and Human Services (HHS) website.

CPLR 4511(b) provides that upon request of a party, a court may take judicial notice of federal, state, and foreign government acts, resolutions, ordinances, and regulations, including those of their officers, agencies, and governmental subdivisions. While the concept of judicial notice is elastic (see Richardson on Evidence § 52 [10th ed]) and applicable to a wide range of subject matter, official promulgations of government appear to be particularly appropriate for judicial notice, given the manner that CPLR 4511 expressly singles them out for such treatment. Judicial notice has never been strictly limited to the constitutions, resolutions, ordinances, and regulations of government, but has been applied by case law to other public documents that are generated in a manner which assures their reliability. Thus, the concept has been applied to census data (see Affronti v Crosson, 95 NY2d 713, 720; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for City School Dist. of City of Buffalo, 261 AD2d 824, 825; Mackston v State of New York, 126 AD2d 710), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532), certificates of corporate dissolution maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667), the resignation of public officials (see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791; Matter of Maidman, 42 AD2d 44, 47), legislative proceedings (see Outlet Embroidery Co. v Derwent Mills, 254 NY 179, 183), legislative journals (see Browne v City of New York, 213 App Div 206, 233), the consumer price index (see Sommers v Sommers, 203 AD2d 975, 976; City of Hope v Fisk Bldg. Assoc., 63 AD2d 946, 947), the location of real property recorded with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23-24), death certificates maintained by the Department

93 of Health (see Matter of Reinhardt, 202 Misc 424, 426), and undisputed court records and files (see e.g. Perez v New York City Hous. Auth., 47 AD3d 505; Walker v City of New York, 46 AD3d 278, 282; Matter of Khatibe v Weill, 8 AD3d 485; Matter of Allen v Strough, 301 AD2d 11, 18). Even material derived from official government websites may be the subject of judicial notice (see Munaron v Munaron, 21 Misc 3d 295 [Sup Ct Westchester County 2008]; Parrino v Russo, 19 Misc 3d 1127[A] [Civ Ct Kings County 2008]; Nairne v Perkins, 14 Misc 3d 1237[A] [Civ Ct Kings County 2008]; Proscan Radiology of Buffalo v Progressive Cas. Ins. Co., 12 Misc 3d 1176[A] [Buffalo City Ct 2006]).

Here, the diagnosis and procedure codes key maintained by the United States Government on its HHS website is of sufficient authenticity and reliability that it may be given judicial notice. The accuracy of the codes key is not contested by White Plains Hospital, and is not subject to courtroom factfinding (see Affronti v Crosson, 95 NY2d at 720). The fact that the code system might not be readily understood by the lay public is of no significance, as the information is proffered for judicial notice not on the basis of being generally understood by the public, but rather, on the basis of its reliable source. We hold, therefore, that the diagnosis and procedure codes key published by the United States Government on its HHS website may properly be given judicial notice (see CPLR 4511[b]), as the key is reliably sourced and its accuracy not contested. Use of Reports

In Barry v Valerio, 72 AD3d 996 (2nd Dept. 2010)

In opposition, the plaintiff raised a triable issue of fact as to whether he sustained a permanent consequential limitation of use and/or a significant limitation of use of the cervical and lumbar regions of his spine within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Williams v Clark, 54 AD3d 942 [2008]; Casey v Mas Transp., Inc., 48 AD3d 610 [2008]; Green v Nara Car & Limo, Inc., 42 AD3d 430 [2007]; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645 [2007]; Acosta v Rubin, 2 AD3d 657 [2003]). Dr. Gautam Khakhar, one of the plaintiff's treating physicians, opined in his affirmation, based on his contemporaneous and most recent examination of the plaintiff, as well as upon his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia, herniated discs at L4-5, L5-S1, C4-5, C5-6, C6-7, that the injuries to the cervical and lumbar [*2]regions of the plaintiff's spine and quantified and observed range-of-motion limitations were permanent, significant, and causally related to the subject accident (see Paula v Natala, 61 AD3d 944, 945 [2009]; Desir v Castillo, 59 AD3d 659, 660 [2009]; Azor v Torado, 59 AD3d 367, 368 [2009]).

In Sin v Singh 74 A.D.3d 1320 (2nd Dept. 2010),

In opposition to the Singh defendants’ prima facie showing of their entitlement to

94 judgment as a matter of law (see Gaddy v Eyler, 79 NY2d 955, 956-957), the plaintiffs raised a triable issue of fact as to whether they sustained a permanent consequential limitation of use and/or a significant limitation of use of the cervical and lumbar regions of their spines, by the submission of the affidavits of their treating chiropractor (see Williams v Clark, 54 AD3d 942, 943). The plaintiffs’ treating chiropractor opined, based upon his contemporaneous and most recent examinations of the plaintiffs, as well as upon his review of the reports of magnetic resonance imaging scans, which showed bulging discs in the cervical and lumbar regions of each plaintiff’s spine, that the plaintiffs’ lumbar and cervical injuries and the observed range-of-motion limitations were permanent, significant, and causally related to the subject accident (see Williams v Clark, 54 AD3d at 943). Since the Supreme Court properly determined that there were triable issues of fact as to whether each of the plaintiffs sustained a serious injury to the cervical and lumbar regions of his or her spine, the plaintiffs are entitled to seek recovery for all injuries allegedly incurred as a result of the accident (see Marte v New York City Tr. Auth., 59 AD3d 398, 399). Accordingly, the Supreme Court erred in awarding summary judgment to the Singh defendants dismissing so much of the complaint insofar as asserted against them as alleged injuries to the right shoulder of the plaintiff Jessica Sin and the left knee of the plaintiff Richard Cardenas.

In Byong Yol Yi v Canela, 70 AD3d 584 91st Dept. 2010)

The affirmed report of plaintiff's doctor was admissible, even though it relied in part on the unsworn reports of another doctor who read plaintiff's MRIs (see Rivera v Super Star Leasing, Inc., 57 AD3d 288 [2008]; see also Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]).

In Whitehead v Olsen, 70 AD3d 678 (2nd Dept. 2010)

the plaintiff principally relied on the affidavit of her treating chiropractor, Dr. Kim L. Wist. In that affidavit, Dr. Wist opined that the plaintiff's lumbar injuries and observed range-of-motion limitations were significant and permanent, and causally related to the subject accident. Dr. Wist based her opinion on her contemporaneous and most recent examination of the plaintiff and her review of the plaintiff's magnetic resonance imaging reports of, inter alia, her lumbar region, which revealed a herniated disc at L4-5 and a bulging disc at L5-S1. Thus, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her lumbar spine under the permanent consequential limitation of use or the significant limitation of use category of Insurance Law § 5102 (d) as a result of the subject accident (see Eusebio v Yannetti, 68 AD3d 919 [2009]; Sanevich v Lyubomir, 66 AD3d 665 [2009]; Azor v Torado, 59 AD3d 367, 368 [2009]; Williams v Clark, 54 AD3d 942, 943 [2008]; Casey v Mas Transp., Inc., 48 AD3d 610, 611 [2008]; Green v Nara Car & Limo, Inc., 42 AD3d 430, 431 [2007]; Francovig v Senekis Cab Corp., 41 AD3d 643, 644-645 [2007]).

In Harris v Boudart, 70 AD3d 643 (2nd Dept. 2010)

95 The plaintiff's treating chiropractor, James W. Rogers, opined, based on his contemporaneous and recent examinations of the plaintiff, as well as on his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia, disc bulges in the cervical spine and disc herniation in the lumbar spine, that the plaintiff's lumbar and cervical injuries and observed range of motion limitations were permanent and causally related to the subject accident. He further concluded that the injuries amounted to a permanent consequential limitation of use of the cervical and lumbar spine as well as a significant limitation of use of those regions. Contrary to the defendants' contention, the plaintiff's treating physician, Philip Rafiy, [*2]sufficiently addressed a prior injury to the plaintiff's neck in 1988, 18 years before the subject accident, noting that despite her intermittent neck pain, she essentially had been asymptomatic and without treatment for at least 15 years. Coupled with the facts that even the defendants' doctor, Naunihal Sachdev Singh, concluded that what he described as a cervical spine sprain was caused by the instant accident and that the plaintiff also sustained an injury to her lumbar spine, the plaintiff was not obliged to do more to overcome the defendants' motion for summary judgment motion (see Pommells v Perez, 4 NY3d 566, 578; Linton v Nawaz, 62 AD3d 434, 441; Sforza v Big Guy Leasing Corp., 51 AD3d 659, 661). Similarly, contrary to the defendants' contention, although the plaintiff's submissions did not directly address the defendants' radiologist's opinion that the injuries were degenerative in nature, the magnetic resonance imaging reports based on testing performed contemporaneously with the subject accident contained no findings that the plaintiff's injuries were degenerative in nature. Moreover, the plaintiff's treating physician and chiropractor gave no indication that her symptoms may have been caused by degeneration changes, were chronic, or were caused by anything other than the accident (see Pommells v Perez, 4 NY3d at 577-578; Linton v Nawaz, 62 AD3d at 441; Sforza v Big Guy Leasing Corp., 51 AD3d at 660-661) In Peter v Palencia, 67 AD3d 660 (2nd Dept. 2009)

Moreover, in her affirmation, Dr. Anto properly noted the findings contained in the plaintiff's MRI report concerning his lumbar spine which revealed, inter alia, that the plaintiff had herniated discs at L4-5 and L5-S1. Dr. Anto concluded, in her affirmation, that the injuries to the plaintiff's lumbar spine were the result of the subject accident. Dr. Anto opined that the injuries to the plaintiff amounted to a permanent consequential limitation of use of, among other things, his back, and/or a significant limitation of use of, inter alia, his back. Thus, the affirmation of Dr. Anto was sufficient to raise a triable issue of fact as to whether the plaintiff sustained permanent consequential or significant limitation of use of his lumbar spine as a result of the subject accident

In Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op

50987(U), 27 Misc 3d 140(A) (App. Term 2nd Dept. 2010),

96 The fact that defendant’s peer reviewer considered medical records from plaintiff, as well as from other providers who treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]; see generally East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2009] [ in some instances, (the) regulations use the term applicant’ as a generic reference to both provider/assignees and injured persons”]). As a result, plaintiff’s contention that defendant must consider plaintiff’s bills in a vacuum and ignore medical records which defendant received either from the assignor or from another provider who had submitted such records on behalf of the assignor, lacks merit.

Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant. This decision is in accord with Bronx Expert Radiology, P.C. v New York

Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 51475(U) [24 Misc 3d 134(A)] (App. Term

1st Dept. 2009).

In this action to recover first party no-fault benefits, defendant’s medical expert should have been permitted to testify, since the expert witness “would be subject to full cross- examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report” (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U]

97 [2007]; see also Spruce Med. And Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [2007]). Nor is defendant’s expert precluded from testifying because his opinion may have been based, at least in part, on his review of the assignor’s medical records prepared by plaintiff (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]) or medical records prepared by other physicians and submitted to defendant, relating to treatment provided to the assignor for injuries arising from the same motor vehicle accident.

Medical History

In Coker v. Bakkal Foods, Inc., 52 A.D.3d 765 (2nd Dept. 2008), the court ruled

that:

A hearsay entry in a hospital record as to the happening of an injury is admissible at trial, even if not germane to diagnosis or treatment, if the entry is inconsistent with a position taken by a party at trial. However, there must be evidence connecting the party to the entry (see Cuevas v Alexander's, Inc., 23 AD3d 428, 429, 805 N.Y.S.2d 605; Thompson v Green Bus Lines, 280 AD2d 468, 469, 721 N.Y.S.2d 70; Echeverria v City of New York, 166 AD2d 409, 410, 560 N.Y.S.2d 473; Gunn v City of New York, 104 AD2d 848, 849, 480 N.Y.S.2d 365). Here, the Supreme Court properly precluded the admission of the entry contained in the plaintiff's hospital record, which indicated that the plaintiff fell at home, and the testimony of the physician's assistant who made the entry, where it was unclear whether the plaintiff was the source of that information (see Echeverria v City of New York, 166 AD2d at 410)(emphasis added).

In Zito v. City of New York, 49 A.D.3d 872 (2nd Dept. 2008),

On appeal, the plaintiff argues, inter alia, that the court erred in failing to redact part of his hospital record which indicated that the bullet entered through the front of his body and exited his back, that he was entitled to a missing witness charge with respect to the defendants' ballistics expert, and that the jury verdict was against the weight of the evidence with respect to the apportionment of fault. We agree with the plaintiff's contention that it was error to admit into evidence the statement, contained in the history portion of the plaintiff's hospital records, that the bullet entered through the front of his body. Inasmuch as the record does not establish whether the statement was germane to either diagnosis or treatment, it constituted hearsay and should have been redacted from the record (see People v Townsley, 240 AD2d 955, 659 N.Y.S.2d 906; Wilson v Bodian, 130 AD2d 221, 519 N.Y.S.2d 126). Similarly, in Carcamo v. Stein, 53 A.D.3d 520 (2nd Dept. 2008),

98 We agree with the defendant that the statements in hospital and ambulance records which the court read to the jury constituted inadmissable hearsay, as they related to the manner of the accident and were not germane to the plaintiff's diagnosis and treatment (see Williams v Alexander, 309 NY 283, 287, 129 N.E.2d 417; Cuevas v Alexander's, Inc., 23 AD3d 428, 429, 805 N.Y.S.2d 605). The statements in the records directly contradicted the defendant's account as to how the accident occurred. Under the circumstances, the erroneous admission of these statements cannot be deemed harmless, as the entries related to the very issue to be determined by the jury, i.e., how the accident occurred (see Cuevas v Alexander's, Inc., 23 AD3d at 429). We further note that it is not apparent from the record whether a proper foundation was laid for the admission of the statements pursuant to CPLR 4518 (cf. Bayne v City of New York, 29 AD3d 924, 926, 816 N.Y.S.2d 179). While the statements were redundant of the plaintiff's testimony in court, they bore on the ultimate issue determined by the jury, that is, how the accident occurred (see Berrios v TEG Mgt. Corp., 35 AD3d 775, 776, 826 N.Y.S.2d 740; Hatton v Gassler, 219 AD2d 697, 697- 698, 631 N.Y.S.2d 757), and the admission of the statements may have prejudiced the defendant by lending undue credence to the plaintiff's testimony (see Shufelt v City of New York, 80 AD2d 554, 555, 435 N.Y.S.2d 356). Since the effect of these statements on jury deliberations is unknown, we cannot say that their admission was harmless (see Shufelt v City of New York, 80 AD2d at 555).

In Preldakaj v Alps Realty of NY Corp., 69 AD3d 455 (1st Dept. 2010) The injured plaintiffs assert that they had merely stopped by an apartment to observe floor refinishing that was being performed by their cousin, who had been hired by defendant Alps, the corporation that owned the apartment and in which plaintiffs are shareholders and officers, when fumes from the polyurethane that the cousin was applying to the floor ignited, causing their injuries (see 47 AD3d 511 [2008]). However, hospital and fire department records indicate that plaintiffs admitted to ambulance attendants, hospital staff, and a fire department official that they were applying the polyurethane when the fire broke out.

The motion court, after correctly finding that the admissions were not germane to the diagnosis or treatment of plaintiffs' injuries and therefore were not admissible under the business records exception to the hearsay rule (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95 [1999]), ruled that the records were to be redacted to omit statements that plaintiffs were applying the polyurethane. In addition, apparently addressing the exception to the hearsay rule for admissions against interest in hospital records (see Coker v Bakkal Foods, Inc., 52 AD3d 765 [2008], lv denied 11 NY3d 708 [2008]), the court ruled that the statements were unreliable, and therefore inadmissible, in view of uncontradicted evidence about the effects of the morphine that was administered to plaintiffs during treatment. This was error. The evidence concerning the effects of the morphine goes to the weight to be accorded the admissions, not their admissibility (see [*2]Gangi v Fradus., 227 NY 452, 457 [1920]).

99 The statements that plaintiffs were applying the polyurethane may only be admitted if there is clear evidence connecting the party to the entry (i.e., testimony that the party made the statement) (see Berrios v TEG Mgt. Corp., 35 AD3d 775 [2006]). If the statements are admitted at trial and it is determined that, contrary to plaintiffs' position, they were refinishing the floors when the fire broke out, then it will have been shown that plaintiffs' "role[s] in the affairs of [Alps] involved ensuring the performance of the particular corporate duty whose breach [they] allege[ ] caused [their] injur[ies]," and they will be unable to prevail in this action (see 47 AD3d at 512). Treating Doctors

In O’Brien v. Mbugua, 49 A.D.3d 937 (3rd Dept. 2008), the court issued a

decision many lawyers have been waiting for.

We conclude that where a treating physician orders an MRI clearly a test routinely relied upon by neurologists in treating and diagnosing patients, like plaintiff, who are experiencing back pain he or she should be permitted to testify how the results of that test bore on his or her diagnosis even where, as was apparently the case here, the results are contained in a report made by the nontestifying radiologist chosen by the treating physician to interpret and report based on the radiologist's assessment of the actual films. Significantly, this is not a case where the expert "essentially served as a conduit for the testimony of the report's author[]" by doing nothing more than "dictating the report's contents" and, thus, exceeded the bounds of permissible opinion testimony (People v Wlasiuk, 32 AD3d at 681). Instead, Danisi rendered an opinion based not only on the MRI results, but also his physical examinations of plaintiff where he identified muscle spasms in her lower and middle back and her other medical records. Under these circumstances, we hold that the MRI report, which was ordered by Danisi in the course of his treatment of plaintiff and is of the type of information which Danisi routinely relies upon in treating his patients, was "'merely . . . a link in the chain of data'" which assisted Danisi in forming his opinion and, thus, the testimony was properly admitted (Ciocca v Park, 21 AD3d 671, 672-673, 799 N.Y.S.2d 677 [2005], affd 5 NY3d 835, 839 N.E.2d 892, 805 N.Y.S.2d 539 [2005], quoting Borden v Brady, 92 AD2d at 984; see Anderson v Dainack, 39 AD3d 1065, 1067, 834 N.Y.S.2d 564 [2007]; cf. Murphy v Columbia Univ., 4

In Langhorne v. County of Nassau, 40 A.D.3d 1045 (2nd Dept. 2007), a jury

verdict that failed to make an award for past and future loss of services and for future

pain and suffering and future loss of earnings was reversed.

“The trial court erroneously precluded the plaintiffs from eliciting testimony from the injured plaintiff's treating physician as to the permanency of the injured plaintiff's injuries on the ground that the report indicating the permanency was not

100 timely exchanged with the defendants' attorney (see 22 NYCRR 202.17[h]). The relevant court rule only applies to new injures, and the permanency of a previously reported injury does not constitute a new injury (see Hughes v Webb, 40 A.D.3d 1035, 837 N.Y.S.2d 698 [2007] [decided herewith]). The trial court thus erred in precluding the plaintiffs from eliciting testimony from the injured plaintiff's treating physician regarding his findings and prognosis from his latest examination of the injured plaintiff, which took place approximately one week before the trial. The plaintiffs' counsel made clear to the trial court that there were no new injuries, and that he had just come into possession of the report that same day (see Hughes v Webb, supra; Krinsky v Rachleff, 276 A.D.2d 748, 715 N.Y.S.2d 712; Iasello v Frank, 257 A.D.2d 362, 683 N.Y.S.2d 49). Consequently, the court also erred in limiting the questioning of that physician to his findings as of December 30, 1998. Moreover, the trial court erred in permitting defense counsel to elicit certain testimony from the defendants' medical expert that was not only beyond the scope of his medical report, but inconsistent with the conclusions that were set forth in that report (see Matszewska v Golubeya, 293 A.D.2d 580, 742 N.Y.S.2d 309; Gregory v Mulligan, 266 A.D.2d 344, 698 N.Y.S.2d 309). Where, as here, there is a danger that substantial justice has not been done because improper evidentiary rulings tainted the jury verdict, an appellate court should order a new trial (see Gomez v Park Donuts, 249 A.D.2d 266, 267, 671 N.Y.S.2d 103; Wisotsky v Oak Leasing Corp., 212 A.D.2d 527, 632 N.Y.S.2d 574). Accordingly, there should be a new trial on the issue of the injured plaintiff's damages for past and future pain and suffering, and past and future loss of earnings. While not an issue of expert testimony, “Under the circumstances of this case, where the injured plaintiff's wife provided unrefuted evidence regarding the toll that her husband's injury had taken on her, including evidence of her activities in attending to him and taking care of his basic daily needs, at the expense of her social life and sexual relationship with him, and the likelihood that these circumstances would continue into the future, the jury's determination that she was entitled to no damages on her derivative cause of action for loss of past and future services could not have been reached on "any fair interpretation of the evidence," and thus, is against the weight of the evidence (Lolik v Big V Supermarkets, 86 N.Y.2d 744, 746, 655 N.E.2d 163, 631 N.Y.S.2d 122; see Nicastro v Park, 113 A.D.2d 129, 495 N.Y.S.2d 184). Accordingly, the trial court correctly ordered a new trial on those categories of damages (see CPLR 4404[a]; Grant v City of New York, 4 AD3d 158, 772 N.Y.S.2d 39; Simmons v Dendis Constr., 270 A.D.2d 919, 705 N.Y.S.2d 779).” In Hughes v. Webb, 40 A.D.3d 1035 (2nd Dept. 2007),

“…the Supreme Court erred in precluding the infant's treating physician from testifying as to the permanence of the infant's injuries, based upon a recent examination, on the ground that the plaintiff failed to serve a report of the

101 examination pursuant to 22 NYCRR 202.17(h). There could be no claim of surprise or prejudice engendered by this testimony. The plaintiff's bill of particulars clearly included allegations that the ankle fracture resulted in permanent injuries. "[P]ermanency cannot be considered an injury or condition" (Holshek v Stokes, 122 A.D.2d 777, 778, 505 N.Y.S.2d 664). Consequently, no medical report was required to be served prior to the physician's testimony, as no new injuries or claims were being made, and the physician was to testify merely to the consequences of the injury as described in the previously-served medical records (see Iasello v Frank, 257 A.D.2d 362, 363, 683 N.Y.S.2d 49; Serpe v Eyris Prods., 243 A.D.2d 375, 380, 663 N.Y.S.2d 542; Kurth v Wallkill Assoc., 132 A.D.2d 529, 530, 517 N.Y.S.2d 267). To the extent that our decision in Fienco v Rose (34 AD3d 629, 824 N.Y.S.2d 666), can be read as holding to the contrary, it should not be followed. The Supreme Court also improvidently exercised its discretion in precluding the infant's treating physician from giving expert opinion testimony as to the permanency of the infant's injuries, based upon the other evidence in the case (see Neils v Darmochwal, 6 AD3d 589, 590, 774 N.Y.S.2d 809; Markey v Eiseman, 114 A.D.2d 887, 495 N.Y.S.2d 61). Similarly, in Logan v Roman, 2009 NY Slip Op 00509 (2nd Dept. 2009), the court allowed a treating doctor to give testimony on subject matters that were not provided in his prior narrative report.

Under the circumstances, the Supreme Court improvidently exercised its discretion in precluding the plaintiff Bryan Cambridge (hereinafter the plaintiff) from offering videotaped trial testimony of his treating physician, Dr. William Walsh, concerning his pre-existing right hip arthritis and its aggravation, which allegedly was caused by a motor vehicle accident on May 9, 2002. Since Dr. Walsh was the plaintiff's treating physician, he should have been permitted to testify at trial notwithstanding any failure or deficiency in providing disclosure pursuant to CPLR 3101(d)(1)(i), as that provision does not apply to treating physicians (see Butler v Grimes, 40 AD3d 569, 570; Hunt v Ryzman, 292 AD2d 345). Dr. Walsh could testify to the cause of the injuries even if he had expressed no opinion regarding causation in his previously-exchanged medical report (see Overeem v Neuhoff, 254 AD2d 398). In any event, the defendants were not surprised or prejudiced by the videotaped testimony of Dr. Walsh, which included an opinion on causation which was not set forth in his previously-exchanged medical report (see 22 NYCRR 202.17[h]). The defendants' examining physician had issued a report more than two years before the trial which concluded that the plaintiff's right hip arthritis was pre-existing and was not "aggravated, accentuated, created, or rendered symptomatic" as a result of the motor vehicle accident. This report also contained an admission by the plaintiff that his right hip arthritis was pre-existing. Thus, the question of whether the plaintiff's pre-existing right hip arthritis was aggravated by the motor vehicle accident was

102 clearly "put in issue in the respective medical reports previously exchanged" (22 NYCRR 202.17[h]). Moreover, the videotaped testimony of Dr. Walsh was recorded 11 weeks prior to the trial date. Thus, the defendants had ample opportunity to prepare their defense to address this claim at trial. In addition, we note that on cross-examination of Dr. Walsh, during the videotaped testimony, the defendants' counsel was well prepared to and did question Dr. Walsh at length about the discrepancy between his testimony on direct and the opinion expressed in his written narrative report (see McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572, 573). In Dong Soo Kim v Kottler, 2009 NY Slip Op 00334 (2nd Dept. 2009), the court found that the plaintiff susccessfully established the threshhold when:

The plaintiff's treating physician, Dr. Jae O. Park, opined, based on his contemporaneous and more recent examinations of the plaintiff, as well as upon his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia, disc bulges in the cervical and lumbar spine as well as a disc herniation in the lumbar spine, that the plaintiff's lumbar and cervical injuries and observed range of motion limitations were permanent, and causally related to the subject accident. He further concluded that the injuries amounted to a permanent consequential limitation of use of the cervical and lumbar spine as well as a significant limitation of use of those regions. In LaForte v. Tiedmann, 41 A.D3d 1191 (4th Dept 2007),

The court also properly allowed plaintiff's treating orthopedic surgeon to testify that he had relied on the reports of nontestifying physicians, inasmuch as "those out-of-court materials are of the kind generally accepted as reliable by experts in the medical profession" (Fleiss v South Buffalo Ry. Co., 291 A.D.2d 848, 849, 737 N.Y.S.2d 723). Contrary to defendant's further contention, the court properly refused to give a missing witness charge with respect to plaintiff's primary care physician on the ground that the testimony of that physician would have been cumulative of the testimony of plaintiff's other treating physicians (see Stevens v Brown, 249 A.D.2d 909, 910, 672 N.Y.S.2d 194; cf. Dukes v Rotem, 191 A.D.2d 35, 39, 599 N.Y.S.2d 915, appeal dismissed 82 N.Y.2d 886, 631 N.E.2d 569, 609 N.Y.S.2d 563). In Tonaj v. ABC Carpet Co., Inc., 43 A.D.3d 337 (1st Dept. 2007),

Supreme Court properly denied defendants' motion, based on CPLR 3121 and 22 NYCRR § 202.17, to preclude the opinion testimony of Tonaj's treating neurologist causally linking the seizures to the accident, since both provisions are inapplicable.

103

PSYCHOLOGICAL INJURY

Query: can you meet the threshold with a psychological injury? Yes.

In Lacomb v. Poland Central School Dist., 116 Misc. 2d 585, aff’d, 85 A.D.2d

936 (4th Dept. 19 ), a court held for the first time that a psychological injury, a post-

traumatic stress disorder, can be the basis for sustaining a “serious injury” within the

meaning of the no-fault insurance statute.

In Small v. Zellin, 152 A.D.2d 690 (2nd Dept. 1989), the Appellate Division,

Second Department, held that a psychological injury, such as a post-traumatic stress

disorder, established a prima facie case of serious injury as defined by Ins. Law Sec.

5102. See also, Dover v. Metropolitan Suburban Bus Authority, 180 A.D.2d 661 (2nd

Dept. 1992). Similarly, in Spinrad v. Gasser, 235 A.D.2d 687 (3rd Dept. 1997), the

court held that a psychological injury coupled with insignificant physical injuries can be

the basis for a serious injury under the statute.

In Delosovic v. City of New York, 143 Misc. 2d 801, aff’d on op. below, 174

A.D.2d 407 (1st Dep’t), lv. den., 79 N.Y.2d 751 (1991), the court held that a psychological injury suffered by a person within the zone of danger in a pedestrian knockdown car accident can qualify as a serious injury under the law.

In Bartolone v. Jeckovich, 103 A.D.2d 632 (4th Dept. 1984), the court held that

where a plaintiff having a quiescent psychotic illness sustains minor physical injuries,

and the accident and minor physical injuries aggravates his psychological condition, the

threshold may be met.

104 In Hernandez v. Aetna Casualty and Surety Co., 146 Misc. 2d 938 (Civ. Ct. N.Y.,

1990), Judge Tom (now on the Appellate Division), found that treatment for psychological injuries was covered under the No-Fault Insurance Law as treatment for a medically related injury.

For other related cases, see, Jordan v. Goldstein, 129 A.D.2d 616, 514 N.Y.S.2d

nd th 252 (2 Dep’t 1987); Weider v. Senebouthyrath, 182 A.D.2d 1124 (4 Dep’t 1992);

Ovaglio v. Tomaselli, 99 A.D.2d 487, 470 N.Y.S2d 427 (2nd Dept’ 1984). Cf., Hohlakis

v. Raymond Rizzo Associates, 164 Misc. 2d 374 (Sup. Kings, 1995).

PRE-TRIAL SUMMARY JUDGMENT

Pursuant to CPLR 3212(a), a defendant cannot make a motion for summary

judgment, except with leave of court on good cause shown, no later than 120 days after

the filing of the note of issue. The defendant moving to dismiss the case for failure to

make out a “serious injury” must do so based on proof in an admissible form, i.e., by a

sworn affidavit by a doctor. An unsworn report will not suffice. Parmisani v. Grasso,

218 A.D.2d 870, 629 N.Y.S.2s 865 (3rd Dep’t 1995); Craft v. Brantuk, 195 A.D.2d 438,

600 N.Y.S.2d 251 (2nd Dep’t 1993).

Counsel should not ponder whether the defendant has met its burden of proof; file

your opposing papers with similar proof. Akujuo v. USA Truck, 227 A.D.2d 360 (2nd

Dep’t 1996); Cassagnol v. Williamsburg Plaza, Inc., 234 A.D.2d 208 (1st Dep’t 1996).

Biomechanical v. Accident Reconstruction

While some courts have used the terms “accident reconstruction” expert, seat belt

expert and biomechanical experts interchangeably, it is helpful for counsel to clearly state

what kind of expert is being produced.

105 The term “accident reconstruction expert” has been used to cover a variety of types of witnesses. In Bravo v. Victor’s Café, Inc., 172 A.D.2d 297, 568 N.Y.S.2d 606

(1st Dept. 1991), the defendants produced an orthopedist and an accident reconstruction engineer to testify that the plaintiff’s knee injury was not caused by the subject accident.

Similarly, in Bonilla v. N.Y.C.T.A., 295 A.D.2d 297, 742 N.Y.S.2d 903 (2nd Dept. 2002), the Appellate Division found that the trial court providently exercised its discretion in precluding the defendant’s accident reconstruction expert from testifying at the damages trial after the conclusion of the Frye hearing.

Clearly , these witnesses did not or were not going to testify as to how the accident happened or to reconstruct the collision. The witnesses, in reality were biomechanical experts, whose goal was to testify that the plaintiff could not have sustained the claimed injuries in the accident.

In Brullo v. Schiro, 239 A.D.2d 309, 657 N.Y.S.2d 92 (2nd Dept. 1997), the trial court erred in precluding the defendants’ accident reconstruction expert, who was going to opine that the plaintiff was not wearing his seatbelt at the time of the accident and that he would not have sustained facial injuries had he utilized the available restraint system.

Clearly this witness was what most attorneys would characterize as a seatbelt expert.

While in the above mentioned cases the denomination of the witness mattered not, there are certain judges, however, to whom semantics matters greatly, and counsel should use accurate terminology to avoid problems at trial. When counsel is attempting to utilize a witness to testify that certain injuries were or were not caused by the subject accident, a biomechanical expert witness is appropriate. When counsel is attempting to utilize a witness to opine that certain injuries would or would not have occurred if the

106 plaintiff was utilizing an available restraint system, a seat belt expert is appropriate.

When counsel is attempting to prove that the accident occurred in a certain manner, or was avoidable, an accident reconstruction expert witness is appropriate.

BIOMECHANICAL EXPERT WITNESSES

LAW

DISCOVERY ISSUES

TIMELINESS OF DISCLOSURE

In Gushlaw v. Roll, 290 A.D.2d 667, 735 N.Y.S.2d 667 (3rd Dept. 2002), the court properly precluded the defendant from producing a biomechanical engineer as an expert witness at the trial of a dental malpractice case where the defendant disclosed to plaintiff that he intended to produce the witness six weeks in advance of trial. The appellate court noted that “plaintiff’s counsel may well have been caught wholly unaware by such disclosure, and it was unreasonable to expect that he should be prepared in the six-week interim to engage such an expert to controvert the evidence sought to be produced by defendant.” 735 N.Y.S.2d at 670.

ADEQUACY OF DISCLOSURE

In Cocca v. Conway, 283 A.D.2d 787, 725 N.Y.S.2d 125 (3rd Dept. 2001), lv. to app. den., 96 N.Y.2d 721, 733 N.Y.S.2d 373 (2001), the defendant gave timely disclosure of his intent to produce two accident reconstructionists at trial: Albert Cipriani, a mechanical engineer, and Michael Woodhouse, a biomechanical engineer. After plaintiff objected as to the adequacy of defendants’ disclosure, defendants supplemented their response.

107 With respect to Cipriani, defendants disclosed that he “will testify that the

average rearward acceleration and the average lateral acceleration of the plaintiff’s

vehicle were minimal and that the anatomical forces resulting from an impact at the plaintiff’s computed accelerations are noninjurious, [and] are well within the range of

normal human physiological tolerance”. Based upon his calculations, Cipriani was

expected to opine “that the injuries alleged by the plaintiff are not causally related to the

motor vehicle accident” and that “the … medical records do not provide any clinical or

biomechanical evidence” which would support a finding that his injuries were caused by

the motor vehicle accident. Documents relied upon by Cipriani in formulating his

opinion included the police accident report, photographs, appraisal reports of the vehicle,

deposition transcripts and "studies well known in the industry". In a supplemental

response, specific computations concerning the acceleration of the vehicles, their point of

impact, the forces exerted upon plaintiff as a result of the impact and the effect that such

impact would have on the human body were provided.

A similar disclosure was made with respect to Woodhouse. Based upon his

biomechanical analysis and accident reconstruction, he was expected to testify that

plaintiff's description of the accident was not supported by the proof and "that the impact

between the vehicles did not have enough force to cause the injuries claimed by the

plaintiff". Such disclosure also advised that Woodhouse's testimony would mirror that

of Cipriani, he would adopt the calculations reached by Cipriani with respect to the

amount of force and Woodhouse's opinions would be predicated upon his review of the

same documents used by Cipriani, including "documents which an accident

reconstructionist customarily relies [on] in formulating the above referenced opinions".

108 It finally detailed that he would testify as to tolerance, limits of movement or flexion and

cervical extension and how they would be effected by various forces, including those which plaintiff experienced. 283 A.D.2d at 787-788, 725 N.Y.S.2d at 127.

The court found that these disclosures reflected full statutory compliance, sufficiently detailing the theory that defendants expected to and ultimately did advance at trial, along with the grounds for each expert’s opinion. The court did not abuse its discretion in denying the plaintiff’s motion in limine to preclude these witnesses.

USES OF BIOMECHANICAL EXPERT

While typically it is the defendant who retains the services of a biomechanical

engineer, such an expert witness may also be used by a plaintiff.

SUMMARY JUDGMENT

In Anderson v. Persell, 272 A.D.2d 733, 708 N.Y.S.2d 499 (3rd Dept. 2000), the

defendant moved for summary judgment, alleging that the plaintiff failed to meet the

“serious injury” requirements of the New York State Threshold Law. In support of the

defendant’s motion, he included supporting affidavits by two biomechanical engineers, as

well as affirmations by his examining physicians. In opposing the motion, plaintiff included an affirmation by a treating neurologist and her biomechanical expert, thereby raising an issue of fact as to whether the subject car accident was of a nature capable of producing the disc herniation.

NONTHRESHOLD CASES

A biomechanical engineer may be called as an expert witness on behalf of a plaintiff in a product liability case, and may testify with respect to the plaintiff’s injuries

109 and utilize all medical records even if the case is bifurcated. Martell v. Chrysler Corp.,

186 A.D2d 1059, 588 N.Y.S.2d 682 (4th Department 1992). A biomechanical expert may also give testimony as to how a defective condition caused a plaintiff to trip and fall. See

Record on Appeal, Thomassen v. J & K Diner, Inc., 152 A.D.2d 421, 549 N.Y.S.2d 416

(2nd Dept. 1989), app. dis., 76 N.Y.2d 771, mot. for rearg. den., 76 N.Y.2d 889 (1990).

PRECLUDING THE EXPERT SUBSTANITIVELY

FRYE HEARING

The failure to make a timely objection and request a Frye hearing in the lower

court will result in a waiver of counsel’s right to strike the objectionable testimony before

an appellate court. Cocca v. Conway, 283 A.D.2d 787, 788 725 N.Y.S.2d 125, 127-128

(3rd Dept. 2001), lv. to app. den., 96 N.Y.2d 721, 733 N.Y.S.2d 373 (2001).

The basis of the attack at such a hearing on the proposed testimony must be based

on the methodology of the expert. Clemente v. Blumenberg, 183 Misc. 923, 705

N.Y.S.2d 792 (Sup. Richmond 1999). Unless the proffered expert has virtually no

credentials, counsel will probably be unsuccessful in seeking to exclude the witness on

the basis of lack of expertise alone. Id. Where the court excludes the testimony on the

basis of relevance only, the court may commit reversible error. Valentine v. Grossman,

283 A.D.2d 571, 572-573, 724 N.Y.S.2d 504, 505-506 (2nd Dept. 2001). Preclusion on methodology will be sustained. Bonilla v. N.Y.C.T.A., 295 A.D.2d 297, 742 N.Y.S.2d

903 (2nd Dept. 2002). Where, however, an appropriate methodology is utilized by a

qualified expert with opinions based on admissible evidence, the court will not abuse its

discretion in permitting the defendant’s expert on injury causation analysis to offer his

opinion that the impact of the collision was insufficient to cause the alleged injury to

110 plaintiff. Cardin v. Christie, 283 A.D.2d 978, 979, 723 N.Y.S.2d 912, 913 (4th Dept.

2001), rearg. den., ___ A.D.2d ___, 727 N.Y.S.2d 374 (4th Dept. 2001).

The decision in Clemente is a virtual a roadmap of how to exclude “junk science”

from the courtroom, and is required reading for any attorney seeking to preclude such

testimony. Clemente has been followed by courts throughout the country. See, Suanez

v. Egeland, 353 N.J. Super. 191, 202, 801 A.2d 1186 (App. Div. 2002); Whiting v.

Coultrip, 324 Ill. App. 3d 161, 167, 755 N.E.2d 494, 499 (2001); Salerno v. Tudor, 202

WL 120608 (Cal. App. 1 Dist. 2002). Moreover, virtually every other court that has

addressed the issue has similarly held that there is no reliable scientific foundation in

biomechanical studies for an expert opinion that a low-speed impact automobile accident

cannot cause a herniated disc or other serious injury. See, e.g., Smeiser v. Norfolk

Southern Ry. Co., 105 F.3d 299, 305 (6th Cir.), cert. den., 522 U.S. 817 (1997); Schultz

v. Wells, 13 P.3d 846, 851-52 (Colo. Ct. App. 200); Cromer v. Mulkey Enter., Inc., 562

S.E.2d 783, 785-88 (Ga. Ct. App. 2002); Brock v. Artis, No. 45CO1-9602-CT-0034

(Lake Cty. Cir. Ct., Ind. July 16, 1998); Yaremchak v. Cornman, No. 97-SU- 00701-01

(York Cty. Ct. Com. Pl., Pa., August 8, 2000); Tittsworth v. Robinson, 475 S.E.2d 261

(Va. 1996); Mayse v. Kidd, No. 98-C-129 (Lincoln Cty. Cir. Ct., W. Va., June 8, 2000).

In Clemente, the court noted a “trial judge’s role as a gatekeeper of evidence is

not a role created by Daubert and rejected by the Court of Appeals; it is an inherent

power of all trial court judges to keep unreliable evidence (“junk science”) away from the

trier of fact regardless of the qualifications of the expert. A well-credentialed expert does

not make invalid science valid merely by espousing an opinion.” 183 Misc. 2d 923, 932,

705 N.Y.S.2d 792, 799.

111 With respect to biomechanical engineers and the injuries caused by low speed impacts, the court noted that “[U]sing repair costs and photographs as a method for calculating the change in velocity of two vehicles at impact is not a generally accepted method in any relevant field of engineering or under the laws of physics.” 183 Misc. 2d at 934, 705 N.Y.S.2d at 800. The court further noted that in this case before it, the defendant’s expert could not render certain opinions because the source of his data and the methodology employed by him in reaching his conclusion is not generally accepted in the relevant scientific or technical community to which it belongs, and was not technically valid. The court specifically found that “a biomechanical engineer lacks the training and experience to testify that the plaintiff did not sustain ‘serious injuries’ as a result of this accident.” 183 Misc. 2d at 934-935, 705 N.Y.S.2d 800.

In Santos v. Nicolos, 65 AD3d 941 (1st Dept 2009), affirming, 24 Misc.3d 999,

879 N.Y.S.2d 701 (Sup. Bronx 2009), the court’s preclusion of a defense biomechanical

expert was affirmed..

An evidentiary ruling made before trial is generally reviewable only in connection with the appeal from the judgment rendered after trial (Weatherbee Constr. Corp. v Miele, 270 AD2d 182 [2000]). Accordingly, no discrete appeal lies from an order granting plaintiff’s motion to preclude proposed expert testimony (Rodriguez v Ford Motor Co., 17 AD3d 159, 160 [2005]). Since the order defendants seek to challenge was nothing more than an evidentiary ruling, it did not go to the merits of the case (cf. Matter of City of New York v Mobil Oil Corp., 12 AD3d 77 [2004]).

Were we to reach the merits of the appeal, we would affirm. At the Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) to determine the admissibility of proffered expert witness testimony opining on the causation of plaintiff’s personal injuries, defendants failed to establish that this expert’s theory was generally accepted in the scientific community. The exclusion of such testimony was thus a provident exercise of the court’s discretion (see Coratti v Wella Corp., 56 AD3d 343 [2008]).

In Garner v. Baird, 27 Misc.3d 1231(A), 2010 WL 2293179, 2010 N.Y. Slip Op.

112 51004(U)(Civ. Queens 2010), a defense biomechanical expert was precluded.

Plaintiffs Christopher Garner, an infant by his mother and natural Guardian Sonia Garner, and Sonia Garner, individually, move to preclude portions of the proposed testimony of Dr. Robert Fijian which are not generally accepted as reliable in the scientific community or for a Frye hearing. (Frye v United States, 293 F 1013 [DC Cir 1923]). Defendants Trans & Limo, Inc. and Yakov Kogut oppose plaintiff’s motion seeking preclusion of Dr. Fijan’s testimony on the basis that the proposed testimony is based on generally accepted methodologies and procedures in the area of biomechanical engineering and is therefore admissible under the Frye standard. (Id). Defendant William Baird joins in co-defendants’ opposition.

Plaintiffs have met their burden of making a prima facie showing sufficient to challenge *2 the testimony of the proposed expert. The burden thus shifts to defendants to show by a fair preponderance of the credible evidence that the witness is competent in his field of expertise, that the testimony is based upon scientific principles generally accepted and that the matter about which the witness testifies is beyond the expertise of the jury and relevant to the issues in the case. (Id; Zito v Zabarsky, 28 AD3d 42 [2d Dept 2006]).

A Frye Hearing was conducted to determine whether the scientific methods used by Dr. Fijan to reach his conclusion that the force generated in the accident was not sufficient to cause the type of injury alleged to have been sustained by plaintiff Christopher Garner’s left knee and whether those methods are scientifically reliable.

According to defendants’ expert exchange made pursuant to CPLR 3101(d), Robert S. Fijan, Ph.D., is an expert in accident reconstruction, photoglammetry, biomechanical analysis and computer animation. Dr. Fijan obtained his B.S.E. in Engineering Science from the University of Florida, Gainsville and obtained his M.S. in Mechanical Engineering and in 1990 obtained his Ph.D. in mechanical engineering, both from Massachusetts Institute of Technology. He served as an assistant professor in the Department of Mechanical Engineering and Applied Mechanics at the University of Michigan from 1990 to 1994.

The Court heard the testimony of Dr. Robert Fijan, a self-employed biomechanical engineer. Dr. Fijan defined biomechanical engineering as the application of physics and mechanical engineering to the human body. He testified that he has no medical training but that through his training, he is able to review structural injuries to the human body. According to the witness, in the last forty years, the field of accident reconstruction is well accepted in the field of engineering through articles in scientific journals. Dr. Fijan testified that he relies upon other sciences and utilizes the general application of basic principles of physics and mechanical engineering and applies them to the human body.

While testifying, Dr. Fijan referred to his expert’s report. Plaintiffs objected on the ground that defendants had not provided plaintiffs with the report. Defendants correctly noted that they were not required to provide any more than a CPLR 3101(d) expert

113 exchange, which they did do, as the requirement that an expert’s report be exchanged only applies to medical reports. (Uniform Rules for the Trial Courts [22NYCRR] § 208.13). As the report had not been exchanged or provided to the Court it was not admitted into evidence and Dr. Fijan was not permitted to read from it.

Dr. Fijan testified that based on his calculations of force, the impact to plaintiff’s vehicle could not have caused the claimed meniscus tear in plaintiff Christopher Garner’s knee. Dr. Fijan stated that the methodology he employed in reaching his conclusion that the physical forces between the two cars were not capable of causing plaintiff’s injury has been accepted for decades in the relevant scientific community. The witness stated that the results of his calculations showed that the maximum force on plaintiff’s knee was 500 lbs compared to the force generated while walking which is 1000 lbs. Dr. Fijan testified he used vehicle stiffness parameters from the *3 results of publicly available crash tests, such as those performed by the National Highway and Traffic Safety Administration. Dr. Fijan referred to one textbook, “Basic Orthopedic Biomechanics” but did not provide its authorship and he mentioned a few other articles and their authors but gave no context for those sources and could not say whether they dealt with biomechanics and a torn meniscus.

It is well settled that the proponent of scientific evidence must establish that the theory and method used by a particular witness is generally accepted in the scientific community. (Frye v United States, 54 App DC 46, 293 F 1013 [DC Cir 1923]). New York courts permit expert testimony based on scientific principles or procedures only after the principle, procedure or theory has gained general acceptance in the relevant scientific field. (People v Wesley, 83 NY2d 417, 422 [1994]; Frye v United States, supra at 1014). A Frye inquiry poses the elemental question of “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” (People v Wesley, 83 NY2d at 422). Frye “emphasizes ‘counting scientists’ votes, rather than on verifying the soundness of a scientific conclusion.’ ” (Wesley, 83 NY2d at 439; see also Parker v Mobil Oil Corp., 7 NY3d 434, 446-447 [2006]). “[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Frye v United States, supra at 1014). “[T]he particular procedure need not be ‘unanimously indorsed’ by the scientific community but must be ‘generally acceptable as reliable.”’(People v Wesley, 83 NY2d at 423, quoting People v Middleton, 54 NY2d 42, 49 [1981]). “[B]ecause a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields.” (Nimely v City of New York, 414 F3d 381, 399 n 13 [2d Cir 2005]).

Defendants have failed to meet their burden of demonstrating that Dr. Fijan’s proposed testimony is based on generally accepted methodologies and procedures in the area of biomechanical engineering and that their expert’s theory of causation is generally accepted in the scientific community. While Dr. Fijan stated several times that the methodologies he used are generally accepted and have been used for

114 decades, these conclusory statements were not supported by evidence such as peer review reports or other scientific studies. Dr. Fijan stated that he had a CD available with all the sources he used to form his opinion and he also stated that the documents he relied upon were contained in his expert’s report, but neither was before the Court. There was no support given for the methodology of using repair costs and photocopies of photographs to determine the velocity of the vehicles and calculate the force of impact.

Dr. Fijan is not a medical doctor and he failed to cite any studies to support his conclusion that a passenger in the back seat of a vehicle, whose knee hits the car door at the moment of the collision, could not have suffered a torn meniscus. Therefore, Dr. Fijan’s opinion that the accident did not cause or contribute to plaintiff Christopher Garner’s knee injury is based upon unreliable methodology and lacks sufficient foundation.*4

Accordingly, based on the testimony adduced at the hearing, plaintiffs’ motion to preclude the testimony of Robert S. Fijan, Ph.D. is granted.

This constitutes the decision and order of the Court. ------

The following are excerpts from the decision in Clemente.

CREDENTIALS – QUALIFYING THE EXPERT

The defendant proffered an engineer, M. Kenneth Salzer, who has a Master of

Science degree in Biomedical Engineering from Rensselaer Polytechnic Institute in 1994 and a Bachelor of Science degree in Mechanical Engineering from Clarkson University in 1991.

“The engineer stated that he had studied physiology as part of the curriculum for his graduate and undergraduate degrees, but that he has not studied orthopedics *925 or neurology and has not attended medical school or chiropractic school. Mr. Salzer is not a licensed professional engineer (P.E.), but claimed that he is eligible to sit for the P.E. licensing exam in mechanical engineering. He further claims there is no P.E. license in either biomedical or biomechanical engineering.

115 Mr. Salzer has a certification as a diplomate in biomechanics through the

American Board of Forensic Examiners. He is currently the Director of Biomechanical

Engineering of the Eastern Division of CMR Forensic Consultants which

overwhelmingly prepares reports for defendants in the insurance industry. In the past he

claimed that he has given expert testimony in arbitrations, depositions and trials and has

testified in 21 states, including New York, and that his testimony has been almost 100%

for defendants.

Mr. Salzer testified that biomedical engineering and biomechanical engineering

are essentially the same and that these disciplines apply the principles of mechanics to the

specific facts of an accident and provide information about the forces generated in the

accident. Biomedical engineers also examine how the body moves in response to the

forces exerted in an impact. Lastly, Mr. Salzer claimed that biomedical engineers offer

opinions on the types of injuries that can result from the forces of an impact.

Mr. Salzer has never met Mrs. Clemente, nor did he physically examine her.

Nonetheless, based on his education, Mr. Salzer was qualified as an expert in the field of

biomechanical engineering. However, the admissibility of his opinion needed further

scrutiny.” 183 Misc. 2d 923, 924-925, 705 N.Y.S.2d 792, 794.

The Methodology

“Mr. Salzer was advised that the plaintiff, Mrs. Clemente, was wearing a seatbelt when she drove a 1996 GMC Jimmy SUV, the "target vehicle," that was struck in the rear by the defendant's 1989 Chevrolet van, the "bullet vehicle." It is the change in velocity of the target vehicle at impact that is used to calculate the forces exerted upon the occupants of the van.

116 The method the engineer used to compute the change in velocity of the vehicles at impact was to review color photographs of the damaged portion of the two vehicles along with the repair bills for the vehicles and to compare the cost of repair of the plaintiff's

1996 GMC Jimmy SUV with a chart entitled "Bumper Performance Repair Costs, 5 mph

Crash Tests." In the chart the engineer found a GMC Jimmy SUV listed amongst 13 other SUV models from 1995 to 1997 vintage and then found a column listed "Rear into flat barrier" and found the number "$882" which represented the average cost of repair.

Since the plaintiff's repair bill for her 1996 GMC Jimmy was $860.40, the engineer reasoned that it was close enough to the $882 average cost of repair for a 1995 to 1997

GMC Jimmy SUV when its rear is driven into a flat barrier at 5 mph. The engineer concluded that since the repair bill was almost identical to the chart (within 2.5%), therefore the change in velocity from the plaintiff's SUV, after being struck in the rear by the defendant's van, was 5 mph. By adopting the 5 mph change in velocity the engineer justified using the data and studies he presented, which generally conclude that rear end impacts at 10 km or 6 mph or less do not yield long term serious injuries to the occupants of the target vehicle.

However, the engineer disregarded the actual facts of this case in forming his conclusion that the change in velocity was 5 mph. The testimony of the plaintiff was that she was slowing down when she was hit and that caused her vehicle to move a few feet forward. The defendant stated that the plaintiff's vehicle was at a stop when he hit her and that he was traveling at about 25 miles an hour when his vehicle hit the plaintiff's

SUV. The defendant further stated that both vehicles did not move and remained in the same place after the impact.

117 In view of either version of the facts the defendant's statement that the vehicles did not move after the impact is contrary to the Newtonian theory of physics testified to by the defendant's expert engineer. Accordingly, the court finds the defendant's testimony that the plaintiff's vehicle did not move after impact to be incredible. Indeed, all the factual testimony was at odds with the methodology and assumption used by the biomedical engineer to reach his conclusion. The engineer acknowledged that if the speed of the defendant's bullet vehicle were traveling at 25 mph or 15 mph when it struck the plaintiff's target vehicle traveling at 5 mph or less then the change in velocity would be approximately double his basic assumption that the change in velocity was 5 mph.

Therefore, the studies and the literature upon which he relied to form his conclusion that the plaintiff would not have suffered a herniated disk from the impact may not be applicable.” 183 Misc. 2d at 925-926, 705 N.Y.S.2d at 794-795.

The Literature

“The studies [FN2] which the engineer used to form his opinion were first supplied to the court and the plaintiffs as the Frye hearing was about to commence. At that time the court stated that the studies may be reliable. However, on reflection and with more time to examine these studies, this court is of the opinion that the literature upon which the expert relies was not independent or reliable. A review of the studies reveals that five to ten human volunteers participated in the studies who are either associated with the authors or their sponsors. By knowing the hypothesis and purpose of the testing, the responses of the participants may have biased the results. Moreover, the size of the sample is too small to create a statistically significant inference to make a

118 general conclusion about the entire automobile riding population which is involved in

rear-end collisions.

FN2. See, Thomas J. Szabo and Judson B. Welcher, et al., Human Subject

Kinematics and Electromyographic Activity During Low Speed Rear

Impacts, Society of Automotive Engineers, Inc. (1996); Whitman E.

McConnell and Richard P. Howard, et al., Human Head and Neck Kinematics

After Low Velocity Rear-End Impacts--Understanding "Whiplash," Society

of Automotive Engineers, Inc. (1995); Whitman E. McConnell and Richard

P. Howard, et al., Analysis of Human Test Subject Kinematic Responses to

Low Velocity Rear End Impacts, SAE: The Engineering Society for

Advancing Mobility Land Sea Air and Space International (1993); Thomas J.

Szabo and Judson B. Welcher, et al., Human Occupant Kinematic Response

to Low Speed Rear-End Impacts, SAE: The Engineering Society for

Advancing Mobility Land Sea Air and Space International (1994).

Lastly, the attempts by the various authors to boot-strap the data from other studies supporting their hypothesis which utilized similar, but different, control variables and different methodology is a stretch in an attempt to overcome the obviously inadequate number of participants in any one study. Moreover, some of the studies utilized "crash dummies" with sensors upon them to measure the force upon a potential occupant. While "crash dummies" of various sizes are widely used by automobile designers, they do not indicate that a potential occupant cannot sustain serious cervical or lumbar injuries.” 183 Misc. 2d at 927, 705 N.Y.S.2d at 795-796.

119 CROSS-EXAMINATION OF THE BIOMECHANICAL ENGINEER

LITERATURE

There are various ways to cross-examine the biomechanical engineer at a hearing

to exclude their testimony. The first thing counsel must do is master the literature on the topic. There are various books and articles that should be consulted by counsel, both to

learn about articles that contradict the proposed testimony, as well as those that support

the expert’s testimony so that the errors and limitations of his/her data and methodology

may be exposed. An excellent source for some of these articles is the Society for

Automotive Engineers (SAE), and the Stapp Annual Car Crash Conference. Counsel

may also perform a Med-line search as well.

Keep in mind that if the defense expert’s testimony is based on publications by

the SAE, counsel should point out that said journal is not a peer review journal, and

therefore lacks reliability or acceptance in the scientific community. If, however, you intend on cross-examining the witness from articles published from the same journal, appropriate finesse is necessary.

Typically the articles that support the defense expert are those that come from journals that are not subject to peer review testing, and have other deficiencies. For example, the articles the defense expert relies upon may not have methodological validity because of the lack of random subject selection and subgroup testing for age, weight, gender, height and health status or pre-existing conditions. The studies may not have statistical validity because of the small sample size. Were humans used or crash dummies? Did the humans know that they were being crash tested?

120 Counsel should refer to an excellent article by Dr. Michael Freeman, A Review

and Methodologic Critique of the Literature Refuting Whiplash Syndrome, Spine 1999

Jan. 24;1:86-98, that systematically debunks most of the articles and literature that the defense expert will typically rely upon in a low speed impact case.

FACTS

Typically, the defense expert has never examined the vehicle in question, and has

never met or examined the plaintiff. The expert will usually assume certain “facts”, such as the stiffness of the vehicle, the stiffness of the back of the car seat, the angle of

collision, the angle of the collision, the position of the seat back, the position of the

occupant, the position of the occupant’s head. Did the plaintiff anticipate the collision?

What was the vehicle weight, including passengers and cargo? What kind of bumpers

did each of the vehicles have? Did the expert examine the bumpers or the vehicle, was

the vehicle measured for deformation? Did the expert look inside the shell of the bumper

to see if the contents were damaged? Did the expert account for movement of the vehicle

after the impact? Did the expert base his/her opinions on certain assumptions, such as

average acceleration instead of peak acceleration? What was the plaintiff’s height,

weight, position of body, position of seat and seat back, position of head, age, health,

pre-existing condition, and gender?

CREDENTIALS

Is the expert a physician? Has he/she taken courses in orthopedics, neurology,

physical medicine and rehabilitation, radiology, anatomy or neuroanatomy? Can he/she

read an x-ray? Is the expert competent to contradict a medical opinion?

121 Sample Questions

• Agree that you are being paid by the defense to testify today?

• Agree you never spoke to Plaintiff or asked if he/she felt pain?

• Agree you have never seen or read any of Plaintiff’s medical records?

• Agree that you have never spoken with even one of the plaintiff’s doctors?

• Agree that you are not a MD?

• Agree that you have no training in epidemiology?

• Agree you have never even seen the cars in this crash?

• Agree you have never examined or inspected the cars involved in this crash?

• Agree you never took any measurements from the cars involved in this crash?

• Agree you are relying on some pictures given to you by the defense lawyer?

• Agree that you get more information from a physical inspection of a vehicle

than from pictures?

• Agree that some photographs, their lighting, position, depth of field,

definition, clarity, are better than others for your analysis?

• Agree that all of your information about this case came from the defense

lawyer?

• Agree that you did no testing?

• Agree your report is complete?

• Agree this is your only report?

• Agree that the list of research you relied upon is contained in your report?

• Agree that the list of research you relied upon contained in your report is

complete?

122 • Which of the research listed in your report were published with and subject to

peer review?

• Identify all of your publications that were printed with and subject to peer

review?

• Agree that the SAE has no peer review?

• Agree that Biodynamic Research Corp. research is funded by the insurance

companies?

• Which of the research you relied upon have a known or potential error rate?

• Which of the research you relied upon enjoy widespread acceptance in the

biomechanic community? By whom?

• Agree that if the research you relied upon is faulty, your conclusions in this

case would also be faulty?

• [Go through deficiencies in research that the expert bases his/her opinions on.

See discussion supra]

• Agree that there are additional steps you would like to take to feel more

confident in your analysis and conclusions?

• Agree that energy from a rear-end crash flows through the car and into its

occupants?

• Agree that your report calculates average vehicle acceleration or “G” forces of

the vehicle?

• Agree that peak vehicle acceleration, not average vehicle acceleration “G”

forces happen at just over 1/4th of a second after impact?

123 • Agree that peak vehicle acceleration in these crashes can be more than 200 %

of the average acceleration you claim exists?

• Agree that vehicle occupants can be accelerated by more than 200 % of the

car’s peak acceleration?

• Agree that occupants suffer most injury when hit by peak forces in car

crashes?

• Agree that the more rigid the car, the more energy gets transferred to the

occupants?

• Agree that in crashes like this, modern newer cars are less likely to show

damage than older cars?

• Agree that bent bumpers and body damage show absorbed energy that would

otherwise be transferred to occupants?

• Agree that you have never been to the scene of this crash?

• Agree that you have seen pictures of crashes where cars were crushed, and the

occupants walked away unhurt?

• Agree that there are crashes where vehicle damage was minimal but the

occupants were injured?

• Agree that different people have different injury thresholds?

• Agree that a 25 year old, 275 lb. 6’ football player is less likely to be injured

in the same car crash than a 50 year old, 150 lb. 5’3” woman?

• Agree that some people suffer serious injuries in crashes where other people

may suffer less or even no injuries?

124 • Agree that the following factors affect injury thresholds in rear-end car

crashes?

• Height of occupant

• Body weight of occupant

• Occupant fitness

• Gender

• Age

• Osteoporosis

• Arthritis

• Head position

• Body position

• Prior neck injuries

• Pre-existing degenerative conditions

• Seat position

• Seat Stiffness

• Head restraint position

• Seatbelt & lap restraints

• Anticipating crash

• Vehicle weights

• Vehicle velocity

• Vehicle plasticity & elasticity

• Road friction

• Brake application

125 • Vehicle heights

• Impact angle

• Torque, sheer & tension

• What do you know about each of the factors listed above in this crash?

• What is the “Concertina Effect” (looking down prior to rear end impact results in

enormous cervical loading)?

The above list of questions is merely illustrative and is not meant to be

comprehensive. Obviously, a biomechanical expert engineer is prone to a collateral

attack as being a “hired gun”, and is subject to cross-examination from authoritative

articles and texts.

REFERENCES

The following list is illustrative of some of the materials that may assist counsel, and is not meant to be comprehensive.

1. J.R. Brault, et al., Clinical Response of Response of Human Subjects to Rear-

End Automobile Collisions, 79 Archive Physical Med. Rehabilitation 72

(1998).

2. G.A. Ryan, et al., Neck Strain in Car Occupants: Injury Status after 6 Months

and Crash Related Factors, 25 Injury 533 (1994).

3. K. Kaneoka, et al., Motion Analysis of Cervical Vertebrae During Whiplash

Loading, Spine 1999 Apr 15;24(8):763-9.

4. Michael D. Freeman, et al., A Review and Methodologic Critique of the

Literature Refuting Whiplash Syndrome, Spine 1999 Jan. 24;1:86-98.

5. Levine, et al., Spine Trauma.

126 6. White & Panjabi, Clinical Biomechanics of the Spine.

7. Rothman & Simeone, The Spine.

8. Michael D. Freeman, at el., Discrediting Defense Experts in Whiplash Cases,

Trial, March 1999, at 62.

9. Bruce Stern, Putting the Brakes on the Low-Speed Collision Defense, Trial,

January 2000, at 30.

10. Phillip Miller, Cross-Examining a Biomechanical Engineer, Trial, September

2001, at 38.

11. Sal Fariello, Biomechanics: Science or Quackery?, Trial, April 2002, at 46.

12. Alan J. Watts, et al, Low Speed Automobile Accidents: Accident

Reconstruction and Occupant Kinematics, Dynamics and Biomechanics.

Seat belt

Counsel interested in the law on seatbelt experts should review: VTL 1229-c;

VTL 383; PJI 2:87; 2:87.1; 2:87.2. An owner of a vehicle has an obligation to provide working seatbelts. The defendants’ failure to do so constitutes negligence per se.

McMahon v. Butler, 73 A.D.2d 197 (3rd Dept. 1980).

It is beyond cavil that the defendants bear the duty of pleading and proving that

the plaintiff’s sustained injuries caused by their failure to wear properly working

seatbelts that were provided. See, Baginski v. New York Telephone Co., 130 A.D.2d 362;

515 N.Y.S.2d 23, 26 (1st Dept. 1987); O’Connor v. S and R Medallion Corp., 2 A.D.3d

176 (1st Dept. 2003). See, Boyd v. Trent, 297 A.D.2d 301, 746 N.Y.S.2d 191 (2nd Dept.

2002); Lustyik v. Manaher, 246 A.D.2d 887, 668 N.Y.S.2d 410 (3rd Dept. 1998).

TRIAL PREFERENCES

127 One places ones case on the trial calendar pursuant to CPLR 3402. To place your

case on the trial calendar, you must file a Note of Issue and Certificate of Readiness. The

rules with respect to the filing of a Note of Issue are detailed in the Uniform Rules for the

New York State Supreme Court, Section 202.21. The proscribed forms for the Note of

Issue and Certificate of Readiness are in the Uniform Rules. Copies of forms can be

obtained through Julius Blumberg, Inc., and are included on many software programs.

Pursuant to CPLR 3403, there are various grounds for getting a special trial

preference. Some of the requirements for a special preference are listed in the Uniform

Rules for the New York State Supreme Court, Section 202.24. Any time you are able to

get a special trial preference to move your case, take it! Pursuant to CPLR 3403(3), in

any action in which the interests of justice will be served by an early trial, a special

preference shall be granted.

One such basis for this application is based on financial hardship and/or serious

injuries caused by the accident. In the context of a car accident case, where the plaintiff became destitute and on welfare because he was unable to work due to the injuries he sustained in a car accident, and had already exhausted his applicable no-fault benefits, he was granted a special trial preference. Thompson v. City of New York, 140 A.D.2d 232,

528 N.Y.S.2d 77 (1st Dep’t 1988).

Obviously if your client is over 70 years of age or is terminally ill (such illness

may be unrelated to the accident), you should apply for the preference.

TRIAL TIPS - PRESENTATION OF THRESHOLD

128 If you are going to try your case, use the “magic words” i.e., the statutory

language whenever possible, and absolutely when you are questioning your doctor on

direct examination. Dufel v. Green, 84 N.Y.2d 795, 622 N.Y.S.2d 900 (1995).

While producing a medical doctor, especially a specialist, such as an orthopedist

or neurologist, is clearly preferable, you can prove your case through the use of a

chiropractor. Ottavio v. Moore, 141 A.D.2d 806, 529 N.Y.S.2d 876, app. den., 73

N.Y.2d 704, 537 N.Y.S.2d 492 (1989); Lauria v. New York City Dept. of Environmental

Protection, 152 Misc. 2d 543, 577 N.Y.S.2d 764, aff’d, 156 Misc. 2d 31, 600 N.Y.S.2d

603 (App. Term 2nd & 11th Jud. Dists. 1993); Clapp v. Williams, 168 A.D.2d 798, 564

N.Y.S.2d 228 (3rd Dep’t 1990); Ackerson v. Mincey, 162 A.D.2d 934, 558 N.Y.S.2d 261

(3rd Dep’t 1990); Washburn v. Vance, 154 A.D.2d 868, 546 N.Y.S.2d 732 (3rd Dep’t

1989); Amodea v. Pitcher, 125 A.D.2d 850, 509 N.Y.S.2d 957 (3rd Dep’t 1986).

Try to use lay witnesses to buttress your claims of “serious injury”, i.e., a friend or religious leader who can verify that your client can no longer kneel in church to pray; a neighbor that observes that your client no longer does yard-work; a former teammate can corroborate how the plaintiff can’t play sports anymore; a co-worker can talk about how they can’t do what they used to do and need help now.

In trying your case, make sure your client does not overreach. No one will believe that a sprained neck has crippled them for life. Also make sure you get your client’s entire no-fault file, all medical/insurance and work or school records. You will either use these records to assist you in proving that your client has a “serious injury”, or

use them to assist in preparing your client for questioning. You don’t want to learn about

a “suprise” in the middle of your trial.

129 AGGRAVATION/PRE-EXISTING CONDITION

The defense to a threshold case is that there is no damage to the disc and if it is damaged, it was a pre-existing condition, and it doesn’t hurt. This is reminiscent of the old law school maxim of pleading in the alternative: the defendant never touched the kettle, they never broke it, and it was broken when they got it. In the criminal law, the corollary is SODDI (Some Other Dude Did It).

Jurors can easily understand that this accident is the straw that broke the camel’s back. Jurors also understand that with the vicissitudes and vagaries of life, damaged goods are damaged goods, they don’t get better, and are more susceptible to future and further injury.

SURVEILLANCE

If surveillance tapes and materials exist, you are entitled to them. CPLR 3101(i).

Frequently there is a way to use surveillance tapes to your advantage. Your client can

give an example of how after trying to perform a certain activity, they went home in pain,

and they can discuss their lengthy and painful convalescence. The doctor can point out

how the activities portrayed in the film are consistent with this type of injury. Their

trained eye might even detect a sign of guarded movement that corroborates the

plaintiff’s injuries.

MISCELLANOUES ISSUES

130 While the pain and suffering component is usually the largest part of an

automobile case, counsel should be aware that you can also sue for economic loss in

excess of basic economic loss as defined by the statute. This includes:

1. basic economic loss over $ 50,000.00; 2. medical treatment expenses not ascertainable within one year of injury; 3. lost earnings which exceed $ 2,000.00 per month or continue beyond three years; 4. other reasonable and necessary expenses which exceed $ 25.00 per day or continue after one year.

A prudent attorney will therefore claim economic loss in excess of basic

economic in their Complaint and Bill of Particulars. Keep in mind that you cannot obtain

a double recovery, and your successful verdict for these items will be reduced by the

amount of the basic economic loss received or incurred, even where your client did not

actually receive first party no-fault benefits for these items. See, Shalom v. Sahani, 137

A.D.2d 454, 524 N.Y.S2d 714 (1st Dep’t 1988); Hughes v. Ryder Truck Rental, 125

A.D.2d 177, 508 N.Y.S.2d 442 (1st Dep’t 1986).

Pursuant to CPLR 214, the statute of limitations is three years from the date of the

accident. CAVEAT: if a municipal entity is involved, you will doubtless have a short

Notice of Claim period, typically 90 days from the date of the accident, and a short statute of limitations period, typically one year and ninety days from the date of the accident. See, e.g., Gen. Mun. Law Secs. 50-e and 50-i. Find out what entity is involved

and look it up. Also, if there is a death, there is less time. See, e.g., CPLR 210 and EPTL

5-4.1 through 5-4.5.

In Yakubova v Perper (2010 NY Slip Op 51439(U)) (Sup. Queens 2010), the

trial court addressed addressed the issue of “sun glare” and the “emergency charge “.

131 As an initial matter, the Court refused defense counsel’s request, made at the charge conference before the giving of summations, for a special opening question on each of the two verdict sheets to inquire whether the jury believed that there “was contact” between the vehicle and the pedestrian. The Court turned down the request since the normal instructions on negligence were adequate in this regard, and that counsel could certainly argue any alleged contact or lack of contact in their closing statements to the jury. The jury’s verdicts showed that they were able to follow the trial and the charge. Plaintiff Yakubova, right before the start of the damages portion of her case, reached a settlement of her claim. [*2] The remainder of this memorandum decision explains the issue of the sun glare raised by defense counsel and the jury instruction on the “emergency doctrine, “ predicated on Pattern Jury Instruction (“PJI”) 2:14, as revised by the Court to highlight the facts of this case. In Lifson v. City of Syracuse, 72 AD2d 1523 [4th Dept. 2010] [3-1 decision], the appellate court affirmed the trial judge’s crafting of a jury instruction on the emergency doctrine, even though it deviated from the standard charge contained in PJI 2:14. An impassioned dissenter argued that the court below should not have given the emergency doctrine charge since the motorist should have anticipated sun glare at that time of day. Compare, Gibson Coal Co. v. Kriebs, 150 Ind. App. 173, 275 NE2d 821 [1971] [instruction on sudden emergency given as a result of the sun glare] with Vasconez v. Mills, 651 NW2d 48 [2002] [affirming refusal to give sudden emergency instruction since the defendant was familiar with the route from prior experience and should therefore have anticipated the sun glare factor]. Other cases on sun glare reveal paradoxical, if not conflicting results. Compare, Benitez v. Olson, 6 AD3d 560, 561 [2nd Dept.], lv. To appeal dismissed in part and denied in part, 3 NY3d 753 [2004] [reversing, appellate court granted summary judgment to the defendant because the defendant Town established through their deposition testimony that “their [driver’s] view of the road was impeded by sun glare, and not because of any alleged negligence on its part.”] with Johnson v. Phillips, 261 AD2d 269 [1st Dept. 1999] [defendant’s unsworn allegations of sun glare that attempted to invoke the emergency doctrine were insufficient to defeat summary judgment for the plaintiff in a hit-from-the- rear case]. See also, In re Delmarine, Inc., 520 F. Supp 2d 422, 429 & 431 [EDNY 2007] [in motorboat collision, driver of vessel maintained that accident “could have been [produced by] sun glare” was adjudged 85% liable]; Beene v. Terrebonne Wireline Services, Inc., 1992 WL 193501, slip op. at 1 [E.D. La. 1992] [finding that the vessel was being conducted at an unsafe speed considering the bend in the bayou “and the sun’s glare which restricted his visibility’]; Black v. New York State Dept. of Motor Vehicles, 290 AD2d 635 [3rd Dept. 2002] [affirming a finding of an administrative hearing against the petitioner, because, despite blinding sun, petitioner had enough space to reduce her speed, but failed to do so]. Having studied the aforementioned precedents prior to holding the charge conference, the undersigned crafted and gave, on June 18, 2010, the following instruction to the jury

132 regarding the sudden glare and the emergency doctrine, refining the essential charge found in PJI 2:14.

THE COURT: Now, with regard to the defendant’s testimony regarding sun glare, you must consider whether that constituted an emergency. That a person, faced with an emergency and who [*3]acts without opportunity to consider the alternatives, is not negligent if she acts as a reasonably prudent person would act in the same emergency, even if it later appears the defendant did not make the safest choice or exercise the best judgment. A mistake in judgment, or wrong choice, is not negligence if the person is required to act quickly because of danger. This rule applies where a person is faced with a sudden condition, which could not have been reasonably anticipated, provided that the person did not cause or contribute to the emergency by her own negligence. If you accept the defendant’s testimony that sun glare blinded her; and, if you find that she was then faced with an emergency; and that her response to the emergency was that of a reasonably prudent person, then you will conclude that the defendant was not negligent; and if you find that the situation facing the defendant was not sudden, or could have reasonably been foreseen, or was created or contributed to, by the defendant’s own negligence, or that the defendant’s conduct in response to the emergency was not that of a reasonably prudent person, then [*4]you may find that the defendant was negligent. This Court believes that the above-quoted, crafted charge preserves the jury’s domain to determine all the facts and circumstances regarding the accident and whether or not an emergency situation existed. In Giovannelli v Gottlieb, 73 AD3d 853 (2nd Dept. 2010)

The Supreme Court committed reversible error in failing to charge the jury with Vehicle and Traffic Law § 1129 (a), which provides, “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” (see PJI 2:82A). The evidence adduced at trial, that the defendant driver, Jennifer A. Gottlieb, was unable to safely stop her vehicle, which was proceeding at a speed of less than five miles per hour at the time, without striking the plaintiff’s vehicle in the rear, warranted such a charge (see Krembs v Wetherbee, 205 AD2d 917, 917-918 [1994]; Schiffer v Korman, 40 AD2d 681 [1972]; see also Gamar v Gamar, 114 AD2d 487 [1985]).

In White v Diaz, 72 AD3d 482 (1st Dept 2010)

On a prior appeal, we affirmed the denial of defendants’ motion for summary judgment, finding issues of fact as to (1) whether plaintiff’s injuries, which were sustained when defendants-appellants’ (defendants) Access-A-Ride van was hit in the rear by a vehicle whose driver had admittedly fallen asleep at the wheel, were proximately caused by the double parking of the van, and (2) “whether plaintiff was unable to put on her seat belt because it was stuck, as plaintiff claimed, or because the accident occurred too quickly to allow [the driver] time to help plaintiff with her seat belt, or due to some other reason” (49 AD3d 134, 140 [2008]).

The court’s refusal to give a balanced jury instruction based on this Court’s

133 statement that “a reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double parking for five minutes on a busy Manhattan street” (49 AD3d at 139) was error. While foreseeability in these circumstances was an issue for the jury which precluded summary judgment, defendants were entitled to a more balanced charge that indicated to the jury that they may conclude that the accident was not a foreseeable consequence of the van being double parked. Furthermore, on the evidence adduced at trial, defendants were entitled to the requested [*2]intervening cause charge. In light of these errors, retrial is necessary and we need not consider defendants’ remaining arguments.

In Gerdvil v Rizzo, 67 AD3d 637 (2nd Dept. 2009)

To the extent the plaintiff claims that the Supreme Court erred in failing to submit to the jury his theories of podiatric malpractice other than the one actually submitted, he has waived the contention. At the conclusion of the court's charge to the jury, the plaintiff was given an opportunity to object (see CPLR 4110-b). As relevant here, the plaintiff objected only to the Supreme Court's failure to charge the theory of lack of informed consent.

Missing Witness

In Lauro v City of New York, 67 AD3d 744 92nd Dept. 2009)

contrary to the defendants' contentions, the Supreme Court properly gave a missing witness instruction (see Taveras v Martin, 54 AD3d 667 [2008]; Brown v City of New York, 50 AD3d 937 [2008]). " '[W]hen a doctor who examines an injured plaintiff on the defendant's behalf does not testify at trial, an inference generally arises that the testimony of such witness would be unfavorable to the defendant. The defendant may defeat this inference by demonstrating that the testimony would be merely cumulative, the witness was unavailable or not under the defendant's control, or the witness would address matters not in dispute' " (Hanlon v Campisi, 49 AD3d 603, 604 [2008], quoting Brooks v Judlau Contr., Inc., 39 AD3d 447, 449 [2007], revd 11 NY3d 204 [2008]). Here, the defendants failed to defeat the inference (see Taveras v Martin, 54 AD3d 667 [2008]; Brown v City of New York, 50 AD3d 937 [2008]).

In Pope v 818 Jeffco Corp. (2010 NY Slip Op 05529) (2nd Dept.)

“A missing witness charge should be given where the witness, who has not been called, is under a party’s control and is in a position to give substantial, not merely cumulative, evidence” (Zeeck v Melina Taxi Co., 177 AD2d 692, 694; see People v Gonzalez, 68 NY2d 424, 428). It is undisputed that, at the time of trial, Chung Ho, the former superintendent of the premises, was no longer employed by Jeffco. Consequently, he was not under Jeffco’s control (see Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562, 565; Zeeck v Melina Taxi Co., 177 AD2d at 694; Hershkowitz v Saint Michel, 143 AD2d

134 809). Moreover, we agree with the Supreme Court that, under the circumstances of this case, the Supreme Court’s error in giving a missing witness charge as to Ho was not harmless inasmuch as it cannot be determined if any inference drawn against Jeffco for failing to call Ho as a witness contributed to the jury’s finding that Jeffco was 70% at fault in the happening of the accident. Summary Jury Trial In Bennice v Randall, 71 AD3d 1454 (4th Dept. 2010) A summary jury trial agreement " 'is an independent contract subject to the principles of contract interpretation' " (Grochowski v Fudella, 70 AD3d 1407, 1408 [2010]), and the agreement at issue provides that "[t]he right to move to set aside the verdict, or to appeal, is limited to instances in which the rights of a party were significantly prejudiced by . . . an error of law that occurred during the course of the trial." We conclude that whether the JHO erred in directing a verdict in plaintiff's favor presents a question of law and thus the order is appealable pursuant to the summary jury trial agreement (see generally CPLR 4401). In GROCHOWSKI v. FUDELLA, 70 A.D.3d 1407 [4th Dept 2010]

Plaintiff commenced this action seeking damages [Page 1408] for injuries she sustained when her vehicle was rear-ended by a vehicle driven by defendant. Following a summary jury trial conducted pursuant to the parties' stipulation in accordance with "the Summary Jury Trial Rules of the Eighth Judicial District," the jury found in favor of defendant. Defendant appeals from an order granting plaintiffs motion to set aside the verdict as against the weight of the evidence and for a new trial. We reject defendant's contention that Supreme Court violated the terms of the stipulation in determining the motion. "A stipulation between parties is an independent contract subject to the principles of contract interpretation" (Matter of Black v New York State & Local Employees' Retirement Sys., 30 AD3d 920, 920 [2006]). Here, the parties stipulated that the issue of negligence would be submitted to the jury and that neither party would request the court to direct a verdict pursuant to CPLR 4401 on that issue. The stipulation is silent, however, with respect to motions to set aside the verdict as against the weight of the evidence pursuant to CPLR 4404, and thus the court properly concluded that the terms of the stipulation do not evince the intent of plaintiff to forgo her right to move to set aside the verdict (see generally White v Winter, 28 AD3d 1148 [2006]). In Kaiser v DeGeorge, 2009 NY Slip Op 52518(U) [25 Misc 3d 1240(A)] (Sup.

Suffolk 2009)

The prior motion to which defendants refer in their current motion was made on June 4, 2009, returnable June 24, 2009. It was returned to counsel by the Clerk of the Court (summary jury part clerk) with a written communication dated July 6, 2009, stating that

135 which is reflected in the Court's rules for the summary jury trial part, to wit, that no motions are permitted where, as here, counsel have bound themselves and their clients to the summary jury trial form stipulation. Rule 4 of the summary jury part rules, states clearly "No Motion Practice: The parties shall execute a written stipulation agreeing to withdraw any pending motions filed in the case and agreeing not to file any written motions subsequent to the execution of the written stipulation." The form stipulation - the one utilized and signed by counsel for both parties herein - states, in relevant part, "...the parties hereto agree not to file any written motions subsequent to the execution of the Stipulation" (see stipulation and order to transfer action to binding summary jury trial part dated February 24, 2009 (Baisley, Jr., J.), exhibit "A" to affirmation of Anne Marie Garcia dated August 11, 2009). [*2] Both the current motion and the earlier motion - which the Clerk rejected as running afoul of the rule embodied in the stipulation - are violative of that which was agreed to on February 24, 2009, inter alia, that no motions would be made. There has been a waiver of the right to make motions. The stipulation is a binding agreement clear on its face. The benefits and limitations of the summary jury trial procedures having been embraced by both parties' entry of the stipulation and the stipulation being valid and subsisting throughout (since entered February 24, 2009), that is, not having been set aside, its unambiguous provision prohibiting any motions is applied and defendants' motion must be and is denied. In any event, the defendants' contentions in support of its motions are rejected as without merit. The gravamen of the issue is whether the "high" parameter in the stipulation includes the (approximately) $14,000 interest reflected in the judgment actually entered after the summary jury trial (see exhibit "E" to affirmation of Anne Marie Garcia). Herein, the parties' attorneys clearly evinced the intent that interest (from the date liability was determined by interlocutory judgment dated November 5, 2007 (Arthur G. Pitts, J.)) was to be awarded to plaintiff; this intention was expressed in the undisputed, handwritten language added to the form stipulation's printed wording concerning the high and low parameters, in this case $10,000 to $100,000. If the defendants had intended that the total damages (i.e., both the principal plus the interest expressly agreed to) under no circumstance should exceed $100,000 in total they could have expressed that intention; they did not do so and the reason for the failure to do so is not pertinent. As written, the stipulation is clear and unambiguous and resort to extrinsic evidence is not required or permitted (see, Willsey v. Gjuraj, 65 AD3d 1228 [2nd Dept., 2009]). Moreover, the prohibition on motions contained in the stipulation is not in any way restricted to CPLR §44 motions as defendants contend. The defendants' motions are inconsistent with their obligation under the summary jury trial Rule 4; the Court notes in conjunction with such observation that it is frustrated by the circumstance that a procedure meant, inter alia, to dispense with the proliferation of motions which it deals with in other (non summary jury trial) civil cases in its inventory and is also meant to provide expeditious relief to parties who have their trials streamlined has in point of fact been foiled by the defendants' two post verdict motions herein (the present and prior motions). In order to prevent further abuse of the

136 intended procedure the defendants' attorney is cautioned that any further motions will be considered in view of the provisions of 22 NYCRR Part 130. Arbitration

In Cutway v S.T.A.R. Programs, Inc. (2010 NY Slip Op 06031) (3rd Dept.), the addressed the issue of arbitrating an infant’s case.

CPLR 1209 provides in relevant part that "[a] controversy involving an infant . . . shall not be submitted to arbitration except pursuant to a court order made upon application of the representative of such infant." This statute, like other provisions of CPLR article 12, is primarily designed to ensure that courts "safeguard the rights and interests of infants," whom courts "are bound to protect" (Valdimer v Mt. Vernon Hebrew Camps, Inc., 9 NY2d 21, 24 [1961]). Under the circumstances of these cases, CPLR 1209 should not be construed as essentially permitting plaintiffs to circumvent the arbitration provisions (signed as part of agreements to benefit their children) by their current refusal to apply to the court to permit resolution of their children's disputes in the forum where they had agreed to have those claims resolved. If there is a valid reason for not proceeding with arbitration that plaintiffs neglected to bring to the court's attention when defendants moved to compel arbitration, they can raise that issue in their CPLR 1209 [*3]application. In the event that plaintiffs continue to refuse to make a CPLR 1209 application, it does not mean that the children's claims must necessarily languish. We have recently held that, where there is an issue regarding whether a parent is adequately pursuing his or her child's action, "Supreme Court should hold a hearing to determine the reasons for [the parent's] failure to prosecute [the] action, and whether there is 'other cause' to appoint a guardian ad litem to prosecute [the] action on the [child's] behalf" (Mazzuca v Warren P. Wielt Trust, 59 AD3d 907, 909 [2009]). Although Mazzuca involved a plenary action, the same reasoning should apply to these cases [FN1].

CONCLUSION

Keep in mind that once the jury has decided that due to the defendant’s negligence, your client has suffered serious, significant, consequential and permanent injuries, they may well find that only a substantial sum of money will fully compensate her.

Biographies of Authors

137 SHERRI SONIN, ESQ.

Sherri Sonin is a senior and founding partner in the law firm of SONIN &

GENIS, ESQS. Ms. Sonin is a trial attorney specializing in plaintiffs’ negligence,

personal injury, medical malpractice and products liability cases in the New York State

Courts. Ms. Sonin is a member of the Million Dollar Advocates Forum and has obtained

numerous multi-million dollar verdicts and settlements.

Some of her more notable cases include a $ 4 million verdict for a man injured in

motor vehicle accident, a $ 2.5 million dollar settlement in a medical malpractice case, a

$ 1.5 million verdict against the City of New York for the wrongful death of a student

that was assaulted outside a school, and a $ 1.2 million settlement for an injured

construction worker.

In addition to trying cases, Ms. Sonin is a past Associate Editor of the National

Trial Lawyer magazine and Editor of the Bronx Bar Journal, The Advocate, and has been

published in those journals as well as the New York Law Journal, the New York State

Trial Lawyers Quarterly, New York State Trial Lawyers Bill of Particulars, the Queens

Bar Journal and the Insurance, Negligence and Compensation Law Section Journal of the New York State Bar Association.

Ms. Sonin has lectured at the American Bar Association’s National Convention, and has Chaired programs and lectured extensively for the New York State Trial Lawyers

Association, and has taught CLE programs for the Association of the Bar of the City of

New York, the Bronx County Bar Association, the Bronx Women’s Bar Association, and the Rockland County Women’s’ Bar Association.

138 Ms. Sonin is a past Dean of the New York State Trial Lawyers Institute, a long

time Director of the New York State Trial Lawyers Association, a past President of the

Bronx Women’s Bar Association, a past Vice President of the Metropolitan Women’s

Bar Association, a past Vice President of the Jewish Lawyers Guild, , a past Director of

the Bronx County Bar Association, was a member of the Amicus Committee for the New

York State Trial Lawyers Association, and has served on the Judicial Screening

Committees of various bar associations.

Ms. Sonin is a graduate of the Syracuse University College of Law, and while a member of its Law Review, was an Editor of the Annual Survey of New York Law.

ROBERT J. GENIS, ESQ.

Robert J. Genis is a senior and founding partner in the law firm of SONIN &

GENIS, ESQS. Mr. Genis is a trial attorney specializing in plaintiffs negligence,

personal injury, wrongful death, medical malpractice and products liability cases in the

State and Federal Courts of New York and New Jersey, and has litigated cases in a number of other states. Mr. Genis has obtained numerous multi-million dollar verdicts and settlements, is a member of the Million Dollar Advocates Forum, and was repeatedly inducted into the Super Lawyers.

He has successfully represented numerous victims of negligence, medical malpractice, lead poisoning, police brutality and false arrest, construction accidents,

premises and vehicular accidents, elevators/escalators accidents, municipal wrongdoing,

and other significant injuries. Some of his note-worthy verdicts include: a $ 15 million

verdict for a driver involved in a vehicular collision with a tractor trailer; a $ 10 million

dollar verdict for the wrongful death of a man caused by inadequate security; an $ 8

139 million verdict for a man that slipped and fell on pigeon poop on a staircase of an

elevated subway station for an aggravation of a pre-existing spinal condition, a $ 6.5

million verdict in a wrongful death case on behalf of a chronic alcoholic on welfare who

at the time of her slip & fall had a .316 BAC level (no comparative negligence), her

daughter (the plaintiff) was a methadone addict on welfare, and a $ 3 million verdict for

an aggravation of a soft tissue condition in a man involved in a car accident, where the

man was unemployed and permanently disabled at the time of his accident; A $ 3 million

settlement for a dairy clerk of a supermarket that fell off a truck while unloading goods

and sustained RSD in a rural upstate county; a $ 2.5 million settlement in a medical

malpractice; a verdict in excess of $ 2.4 for a chiropractor that sustained an injury to her

neck in a hotel; a verdict in excess of $ 2 million for a pedestrian hit by a police car; a

verdict for $ 1.5 million in a medical malpractice case; a verdict for $ 2 million against

the City of New York for a bicyclist injured due to a pothole; $ 1.75 million verdict for a

bicyclist injured on ice; a settlement for $ 1.5 million for a worker that sustained an

electric shock; a verdict for $ 1.35 million to a woman that broke her wrist in a subway

station; a settlement for $ 1.125 million in a wrongful death caused by EMS’s delay in responding to a call to “911”. He received national attention on behalf of Teron Francis, who became brain damaged and on life support as a result of medical malpractice.

In addition to trying cases, Mr. Genis is a past Associate Editor of the National

Trial Lawyer magazine and Past Editor in Chief of the Bronx Bar Journal, The Advocate, and has been published in those journals as well as the New York Law Journal, where he

has been a frequent contributor, as well as the New York State Trial Lawyers Quarterly,

New York State Trial Lawyers Bill of Particulars, the Queens Bar Journal and the

140 Insurance, Negligence and Compensation Law Section Journal of the New York State

Bar Association. Some of his articles have been cited in McKinney’s and other treatises.

Mr. Genis is a long time Director of the New York State Trial Lawyers

Association, Past Vice President of the Jewish Lawyers Guild, a past Director of the

Bronx County and the Bronx Women’s Bar Associations, and a past Secretary of the Tort

Litigation Committee of the Association of the Bar of the City of New York. He has served on the Judicial Screening Committees of various bar associations and the

Independent Democratic Screening Committee.

Mr. Genis has lectured Chaired and moderated numerous CLE programs and has lectured extensively for the New York State Trial Lawyers Association, has Chaired its annual Evidence Seminar and taught at its Decisions Seminar for many years, and has also lectured for the Association of the Bar of the City of New York, the Bronx County

Bar Association and the Bronx Women’s Bar Association, on numerous topics.

Mr. Genis has handled numerous high profile cases that have attracted national and international media attention on TV, radio, newspapers and the internet.

Mr. Genis is a graduate of the Syracuse University College of Law.

141 Voir Dire 4 Hon. Allen Hurkin Torres (Ret.) JAMS Marisa Goetz, Faust, Goetz, Schenker & Blee LLP Robert Kelner, Kelner & Kelner

RETIRED KINGS COUNTY SUPREME COURT JUSTICE ALLEN HURKIN‐TORRES JOINS JAMS NEW YORK PANEL

NEW YORK (September 8, 2010) - JAMS, the largest provider of mediation and arbitration services worldwide, today announced the addition of the Hon. Allen Hurkin-Torres (Ret.) to its panel. Justice Hurkin- Torres will be based in the JAMS New York Resolution Center, where he will specialize as a mediator, arbitrator and discovery master for disputes in a variety of areas including personal injury/mass torts, appellate, business/commercial, construction, insurance, professional liability and real property.

Since 2002, Justice Hurkin-Torres served in the Second Judicial District of the Supreme Court in Kings County where he was placed in charge of the entire court's trial-ready inventory of civil cases. One of his primary responsibilities involved resolving cases through mediation and he is credited with settling more than 15,000 civil cases of all case types.

“Justice Hurkin-Torres is known for being well-prepared, knowledgeable and a judge who knows how to move a case toward settlement,” said Chris Poole, JAMS president and CEO. “With the amount of experience and talent he brings, he will be a tremendous addition to the JAMS panel.”

“JAMS is the best in the industry and I’m looking forward to working with the superior case management team, its panel of high quality neutrals and utilizing its top-notch facilities,” said Justice Hurkin-Torres.

The Justice was in charge of all actions against the City of New York, the New York City Transit Authority, all medical malpractice actions against the New York City Health and Hospitals Corporation, as well as the general civil inventory of trial-ready actions commenced in Kings County. Many of these cases involved high profile matters, including one of the largest settlements of a police shooting case in New York City history.

Justice Hurkin-Torres has received numerous awards in the last decade highlighting his judicial work, including the Award for Judicial Excellence from the Brooklyn Bar Association, the Golda Meir Award from the Jewish Lawyers Guild, the Distinguished Jurist Award from the Catholic Lawyers Guild, the Charles C. Pinkney Award from the Defense Association of New York and the Harlan Fiske Stone Memorial Award for excellence in judicial service, presented by the New York City Trial Lawyers Association.

Justice Hurkin-Torres graduated with his B.A. from St. Francis College in Brooklyn and received his law degree, cum laude, from Brooklyn Law School.

About JAMS, The Resolution ExpertsFounded in 1979, JAMS, The Resolution Experts is the largest provider of mediation and arbitration services worldwide. With Resolution Centers nationwide and abroad, JAMS and its more than 250 exclusive neutrals are responsible for resolving thousands of the world’s important cases. JAMS may be reached at 800-352-5267 or www.jamsadr.com.

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Marisa Goetz

[email protected] 212-363-6900 973-422-9600

Education

B.A. Fordham University, Summa Cum Laude, 1978 J.D. Benjamin N. Cardozo School of Law, 1982

Marisa has protected the interests of McDonald’s Corporation in a variety of claims filed against its franchisees including, but not limited to, assault, food poisoning and premises liability cases. Marisa also defends product liability claims for Danaher Tool Group and Fitness Products International, makers of the Icarian, Flite Abench product lines. Her vast trial experience in all areas of insurance defense, including Labor Law cases, premises liability, auto, etc. has earned her a stellar reputation in the insurance defense community.

Marisa is also very active in the legal community and has lectured attorneys for continuing legal education credits for the New York City Bar Association. She also participated in a New Judges’ Seminar training course sponsored by the Judicial Institute of the Unified Court System of the State of New York and she has acted as a moot court judge at the Benjamin N. Cardozo School of Law and for a Student Trial Advocacy Competition sponsored by the American Association for Justice.

Bar Admission & Memberships

New York Bar, 1983; New Jersey Bar, 1995; U.S. Dist. Ct. - S.D.N.Y. and E.D.N.Y.; Assistant Corporation Counsel, City of N.Y., Tort Division/Senior Trial Attorney (1982 – 1987); Member - New York State Bar Association and New Jersey State Bar Association, New York State Trial Lawyers Association, N.Y. County Lawyers Association; Association of the Bar of the City of New York; Fellow of the Litigation Counsel of America.

http://fgsb.com/firm-partner-b.html 7/16/2012

Robert S. Kelner – Personal Injury Lawyer in New York

Robert S. Kelner, a founding partner of Kelner & Kelner with his father Joseph Kelner, graduated from Columbia Law School in 1971. Since that time, he has practiced as a personal injury and medical malpractice lawyer in New York.

His career has been characterized by a deep commitment to protecting the interests of injury victims. In fact, on April 8, 2004, the New York Times covered Mr. Kelner and his work in its “Public Lives” column, in an article entitled “No Apologies About Fighting for the Victims.”

Mr. Kelner has obtained over 200 verdicts and settlements of $1 million or greater. Many of these cases resulted in much larger amounts, including jury verdicts of over $36 million in Driscoll v. Transit Authority and over $22 million in Martin v. Dellwood. Some of his recent accomplishments include winning a $10.4 million jury verdict against the City of New York when only $1.5 million was offered as a settlement. He also recently secured an out-of-court settlement of over $17 million in a wrongful death case, and two additional settlements of $9 million each in personal injury cases.

Robert Kelner's legal career has included certain very high profile cases. Early in his career, he served as one of the trial lawyers representing the students shot at Kent State University. More recently, he represented the estate of Maurice Gibb of the Bee Gees in a wrongful death case, and Mariane Pearl, the wife of Wall Street Journal reporter Daniel Pearl who was murdered in Pakistan. Mr. Kelner also successfully defended Liza Minnelli in a suit brought by her husband, David Gest, that alleged assault. The case was dismissed. Robert Kelner is an active writer and speaker in the areas of personal injury law and trial practice. For many years, he has been the co-author of the “Trial Practice” column in the New York Law Journal. He has lectured at nearly every major bar association in New York and also at Princeton University and Columbia Law School. He is co-chairman of the Civil Trial Practice Institute of the New York County Lawyers Association, and its Civil Trial Practice course. He has also been chairman of the New York State Bar Association’s “Ethics in Litigation” program and the New York County Lawyers “Rock Stars of the Legal Profession” program.

Robert Kelner has appeared extensively in the media. He has appeared on television on NBC, ABC, CBS, CNN, Court TV, and CNBC, and has been interviewed by Wolf Blitzer, Maria Bartiromo, and Dan Abrams. He has also been interviewed on the radio in the U.S. and U.K., as well as by a variety of newspapers. He has been quoted in the New York Times, New York Post, Newsday, New York Daily News, and New York Law Journal, as well as other publications.

Voir Dire Fact Pattern Conducting a Voir Dire A Defense Analysis Jury Selection --- Plaintiff’s Side A Checklist for Jury Selection Robert Kelner, Esq. Kelner & Kelner Marisa Goetz, Faust, Goetz, Schenker & Blee Hon. Allen Hurkin Torres