Congratulations to Andrea Ferrucci for a victory on Appeal in the Appellate Division Second Department on Madtes v. Scher, 151 A.D.3d 1049, 54 N.Y.S.3d 588 (N.Y. App. Div. 2017), decided on June 28, 2017. The appeal was from a jury verdict in favor of the defendants entered on January 21, 2015 in a case Tom Craven won in Queens County before Judge Greco. In affirming the jury verdict the Appellate Court stated, "Contrary to the plaintiff's contention, the verdict in favor of the defendant, finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, under the significant limitation of use and permanent consequential limitation of use categories, was not contrary to the weight of the evidence. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Samouelian v. Amroan, 127 A.D.3d 723, 724, 4 N.Y.S.3d 536; Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184). Where, as here, conflicting expert testimony is presented, the jurors are entitled to accept one expert's opinion and reject that of another expert (see Pyong Sun Yun v. GEICO Ins. Co., 145 A.D.3d 694, 695, 43 N.Y.S.3d 117; Samouelian v. Amroan, 127 A.D.3d at 724, 4 N.Y.S.3d 536; David v. EZ Rate Rental Corp., 298 A.D.2d 353, 751 N.Y.S.2d 376)" Read the decision here.

Congratulations to Gil Hardy for a defense verdict on June 28, 2017 in Nassau County before Judge Thomas Feinman on the issue of liability in HARVEY DUPUY v JAMIE ELYSE GORMAN, MICHAEL GORMAN, et. al. (Index No.: 3742/13)

Congratulations to Bob Brown for a defense verdict on June 27, 2017 in Suffolk County before Judge Joseph A. Santorelli on the issue of liability in WILLIAM BREWER v. SERINA L. ROSS, MILTON E. NIELSON, JR., et. al. (Index No. 08616/11)

11 NYCRR 65-4.10 codifies the standard of review of a No Fault Arbitration award by a Master Arbitrator. An award by an arbitrator rendered pursuant to section 5106(b) of the Insurance Law and section 65-4.4 or 65-4.5 of this Subpart may be vacated or modified solely by appeal to a master arbitrator, and only upon one or more of the following grounds:

(1) any ground for vacating or modifying an award enumerated in article 75 of the Civil Practice Law and Rules (an article 75 proceeding), except the ground enumerated in CPLR subparagraph 7511(b)(1)(iv) (failure to follow article 75 procedure);

(2) that the award required the insurer to pay amounts in excess of the policy limitations for any element of first-party benefits; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of an appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;

(3) that the award required the insurer to pay amounts in excess of the policy limitations for any element of additional first-party benefits (when the parties had agreed to arbitrate the dispute under the additional personal injury protection endorsement for an accident which occurred prior to January 1, 1982); provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;

(4) that an award rendered in an arbitration under section 65-4.4 or 65-4.5 of this Subpart, was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground);

(5) that the attorney's fee awarded by an arbitrator below was not rendered in accordance with the limitations prescribed in section 65-4.6 of this Subpart; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart.

11 NYCRR 65-4.10(a)(4) states that an arbitration award may be vacated or modified solely by appeal to a master arbitrator, when "an award rendered in an arbitration under section 65-4.4 or 65-4.5 of this Subpart, was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)." A petition to vacate the award of a Master Arbitrator is subject to the following:

1. As arbitration pursuant to Insurance Law § 5105(b) is compulsory, the arbitrators determination is subject to "closer judicial scrutiny" than an arbitration conducted pursuant to a voluntary agreement (Motor Vehicle Acc. Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 674 N.E.2d 134, 9652 N.Y.S.2d 584 [1996] ). Acuhealth Acupuncture, P.C. v. New York City Transit Auth., 50 Misc. 3d 1228(A) (N.Y. Sup. Ct. 2016)

2. "Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether any reasonable hypothesis can be found to support the questioned interpretation' " (Fiduciary Ins. Co. v. American Bankers Ins. Co. of Florida, 132 AD3d 40, 14 N.Y.S.3d 427 [2 Dept., 2015], quoting Shand v. Aetna Ins. Co., 74 A.D.2d 442, 428 N.Y.S.2d 462 [2 Dept., 1980]).

3. The grounds for vacating or modifying an arbitrator's award by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator's award is five thousand dollars or greater, exclusive of interest and attorney's fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.

The Insurance Carrier is faced with a difficult road in an attempt to vacate the decision of a master Arbitrator. As the Court stated in Singh v. Allstate Ins. Co., (137 A.D.3d 1046), "Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied."

The recent Appellate Decisions on this issue include:
Encompass Ins. Co. v. Rockaway Family Med. Care, P.C., 137 A.D.3d 582, 26 N.Y.S.3d 697 (N.Y. App. Div. 2016)
GEICO Ins. Co. v. AAAMG Leasing Corp., No. 2015-05282, 2016 WL 2890106 (N.Y. App. Div. May 18, 2016)
Glob. Liberty Ins. Co. v. Prof'l Chiropractic Care, P.C., No. 1341N, 2016 WL 3042999 (N.Y. App. Div. May 31, 2016)
Singh v. Allstate Ins. Co., 137 A.D.3d 1046, 27 N.Y.S.3d 621 (N.Y. App. Div. 2016)

Can a Homeowner be sued for failing to trim their tree which obscures the view of a stop sign? The answer is, it depends where you live. The rule in New York is that: "The municipality has a duty to maintain its roads and highways in a reasonably safe condition (see Stiuso v. City of New York, 87 NY 2d 889, 639 NYS 2d 1009 [1995]; Carrillo v. County of Rockland, 11 AD 3d 575, 782 NYS 2d 668 [2d Dept. 2004]), which includes a responsibility to trim the growth of foliage within a roadway's right-of-way to ensure the visibility of stop signs (see Nichols-Sisson v. Windstar Airport Service, Inc., 99 AD 3d 770, 952 NSY 2d 223 [2d Dept. 2012]; Finn v. Town of Southamptom, 289 AD 2d 285 , 734 NYS 2d 215 [2d Dept. 2001]). A property owner is not under a common-law duty to control vegetation on its property from obstructing the view of motorists at an intersection (see Clementoni v. Consolidated Rail Corp., 8 NY 3d 963, 836 NYS 2d 507 [2007]). It is only in those cases where the property owner is under a statutory or regulatory obligation to prevent vegetation from visually obstructing the roadway that liability may attach by reason of the property owner's failure to comply therewith (see Lubitz v. Village of Scarsdale, 31 AD 3d 618, 819 NYS 2d 92 [2d Dept. 2006]).

In Szela v. Courtier, 278 A.D.2d 485, 485, 718 N.Y.S.2d 80, 81 (2000), the appellants were the owners of real property located at the intersection of Sommerset Avenue and Hawthorne Street in Mastic, New York. The applicable ordinance, the Brookhaven Town Code § 85-378, required only that "no tree which may cause danger to traffic by obscuring or obstructing visibility at intersections shall exceed two and one-half (2 1/ 2) feet in height" In Szela, plaintiffs failed to demonstrate any issue of fact as to whether the appellants violated this ordinance and the order denying summary judgment to the Homeowner was reversed on appeal and the case dismissed.

In Nichols-Sisson v. Windstar Airport Serv., Inc., 99 A.D.3d 770, 772-73, 952 N.Y.S.2d 223, 226 (2012), the accident occurred in Richmond County. Here, the Appellate Division dismissed the case against the Homeowner, Dora Homes, Inc., stating, "The Supreme Court also should have granted that branch of the motion of GLM and Dora Home which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against Dora Homes. Under some circumstances, a property owner may be held liable for hazardous conditions created by an independent contractor, where the property owner exercises control over the work of the contractor (see White v. Village of Port Chester, 92 A.D.3d 872, 940 N.Y.S.2d 94). Here, however, the contractor, GLM, demonstrated that the tree did not constitute a hazardous condition when it was planted, and the plaintiffs raised no triable issues of fact in response to that prima facie showing (see Hartofil v. McCourt & Trudden Funeral Home, Inc., 57 A.D.3d at 945-946, 871 N.Y.S.2d 299). Dora Homes established, prima facie, its entitlement to judgment as a matter of law, by showing that there is no basis for holding the property owner vicariously liable in this case, and, in opposition, the plaintiffs did not raise a triable issue of fact."

In the Town of Huntington, the Town Code provides: "If any wall or fence, bush, tree or shrub located on private property creates a vision obstruction to the operator of any motor vehicle seeking to enter onto or leave a Town road, such shall be deemed to be a violation of the Code." (Huntington Code §TC6-7)

Faced with a motion to dismiss the complaint against the Homeowner, Judge Rebolini issued an Order dated March 3, 2016, which denied the defendants' motion for Summary Judgment on the issue of liability in Bekas et.al. v Tjornhom (27641/10). The Court noted: "Here, triable issues of fact exist as to whether the Higgins defendants violated the duty created by Town of Huntington Code (the "Code") §TC6-7 and, if so, whether such violation was a proximate cause of the accident (see Noiler v. Peralta, 94 AD 3d 833, 941 NYS 2d 703 [2d Dept. 2012]; Pelak v. Sollin, supra). This section of the Code provides that if a tree "located on private property creates a vision obstruction to the operator of any motor vehicle seeking to enter onto or leave a Town road, such shall be deemed to be a violation of the Code. "The Higgins defendants have failed to establish that they were not in violation of the Code. Although they deny that the tree was on their property, in their respective depositions the Higgins defendants could not confirm that the tree did not belong to them, and they have not proffered a survey. Their testimony simply established that the tree existed when they moved in several years prior to the accident. Similarly, the testimony of Alfred Gorski, the tree foreman employed by the Town on the date of the subject accident, does not shed any light on whether the tree was planted by the Town and/or on Town property.

It is established law that violation of an ordinance is "evidence of negligence which the jury could take into consideration with all other evidence on the subject" (Major v. Waverly & Ogden, 7 NY 2d 332, 226, 197 NYS 2d 165 [1960], adopted by Elliot v. City of New York, 97 NY 2d 730, 724 NYS 2d 379 [2001]). Code §TC6-7 imposes a duty on property owners that may give rise to tort liability for damages proximately caused by its violation (see Lubitz v. Village of Scarsdale, supra; McSweeney v. Rogan, 209 AD 2d 386, 618 NYS 2d 430 [2d Dept. 1994]). The Higgins defendants have failed to make out a prima facie case entitling them to summary judgment dismissing the complaints as asserted against them in Action 2; Action 3 and Action 4. Thus, having failed to satisfy their initial burden, the motion must be denied regardless of the sufficiency of the plaintiffs' opposition papers (Alvarez v. Prospect Hosp., 68 NY 2d 320, 508 NYS 2d 923 [1986])."

Read the decision here.

What would be considered reasonable damages in Suffolk County for a 34 years old plaintiff who underwent a laminectomy and spinal fusion surgery? Would anyone answer $5,837,591.36? Take a look at Kowalsky v County of Suffolk decided on May 18, 2016 by the Appellate Division, Second Department

At the trial on the issue of damages, the 34 year old plaintiff presented evidence that he underwent a laminectomy and spinal fusion surgery at L4-5. The plaintiff claimed he required a pain management regimen involving opioid medications, methadone and Flexeril. The plaintiff's physicians testified that he could not return to his job as a Verizon technician, and, considering the side effects of his pain medication, his employment possibilities would be extremely limited. The plaintiff's economist computed his economic damages under the assumption that he would not be able to return to any employment.

The jury found that the accident was a substantial factor in causing the plaintiff's injuries, and that those injuries constituted a significant limitation of use of a body function or system. The jury awarded $200,000 for past pain and suffering and $850,000 for future pain and suffering for a period of 41 years. The jury also awarded a total of $4,038,000 in economic damages.

On Appeal the Appellate Division refused to upset the award: "The Supreme Court further erred in reducing the awards for economic damages. A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588; see generally Lolik v Big V Supermarkets, 86 NY2d 744; Nicastro v Park, 113 AD2d 129). "Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert" (Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d at 588; see Frenchman v Westchester Med. Ctr., 77 AD3d 618, 619). The economist's assumption that the plaintiff could not return to any type of employment was supported by the testimony of the plaintiff's physicians that the side effects of his pain medication limited his employment possibilities. Although the defendants' vocational expert testified that there were jobs that the plaintiff could perform, this created an issue of fact for the jury to decide. Thus, "[t]he jury could reasonably have concluded, based on the expert testimony presented at trial, that the plaintiff was totally disabled and that, therefore, the projections of his earnings by his economist were properly based on an assumption that he was totally disabled" (Janda v Michael Rienzi Trust, 78 AD3d 899, 901; cf. Harris v City of New York, 2 AD3d 782, 784)."

Read the decision here.

On May 5, 2016, the New York Court of Appeals in Millennium Holdings LLC v. Glidden Co., addressed the extension of the New York Anti-subrogation rule to third parties who are not covered by the insurance policy. In rejecting the extension in this case, based on a lead paint claim, the Court stated: "If we were to extend application of the anti-subrogation rule to all non-covered third parties, an insurer who fulfills its obligation to pay on the risks insured by the relevant policy would essentially be foreclosed from the ability to subrogate. For this reason it is essential, absent a policy reason supporting application of the anti-subrogation rule, that the third party against whom the insurer seeks to exercise its right of subrogation is not covered by the relevant insurance policy."

Subrogation may arise either contractually or under the doctrine of equitable subrogation. The purpose of subrogation is to "allocate[ ] responsibility for the loss to the person who in equity and good conscience ought to pay it, in the interest of avoiding absolution of a wrongdoer from liability simply because the insured had the foresight to procure insurance coverage" (North Star Reins. Corp. v. Continental Ins. Co., 82 N.Y.2d 281, 294 [1993] ).

Equitable subrogation " 'entitles an insurer to stand in the shoes of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse' " (ELRAC, Inc. v. Ward, 96 N.Y.2d 58, 75 [2001], quoting North Star Reins. Corp., 82 N.Y.2d 281, 294 [1993]). Subrogation rights may also be preserved by the parties to a contract, including an insurance contract. However, the anti-subrogation rule is an exception to the right of subrogation, "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 ... even where the insured has expressly agreed to indemnify the party from whom the insurer's rights are derived" In effect, "an insurer may not step into the shoes of its insured to sue a third-party tortfeasor ... for damages arising from the same risk covered by the policy even where there is an express subrogation agreement (see Jefferson Ins. Co. of N.Y. v. Travelers Indem. Co., 92 N.Y.2d 363, 373 [1998] ). The two primary purposes of the anti-subrogation rule are to avoid "a conflict of interest that would undercut the insurer's incentive to provide an insured with a vigorous defense" and "to prohibit an insurer from passing its loss to its own insured" Millennium Holdings LLC v. Glidden Co., No. 38, 2016 WL 2350158 (N.Y. May 5, 2016)

Insurers are barred under the anti-subrogation rule from seeking subrogation from a named insured or additional insureds (see Pennsylvania Gen. Ins. Co., 68 N.Y.2d at 471, 510 N.Y.S.2d 67, 502 N.E.2d 982). Conversely, subrogation is typically permissible where the third party is not a named or additional insured. The anti-subrogation rule, therefore, requires a showing that the party the insurer is seeking to enforce its right of subrogation against is its insured, an additional insured, or a party who is intended to be covered by the insurance policy in some other way. The essential element of the anti-subrogation rule is that the party to which the insurer seeks to subrogate is covered by the relevant insurance policy. The rule also requires that the insurer seek to enforce its right of subrogation against that covered party on a risk insured by the policy (see Pennsylvania Gen. Ins. Co., 68 N.Y.2d at 468, 510 N.Y.S.2d 67, 502 N.E.2d 982).

Read the decision here.

See Giordano v Giordano (2016 NY Slip Op 04177) decided on June 1, 2016 by the Appellate Division, Second Department. In this case the Plaintiff went into the garage at his mother's house to obtain Christmas decorations from the garage attic. A ladder had already been set up by Plaintiff's son. Upon climbing the ladder, when he was approximately 4-6 feet above the floor, the ladder "slipped" out from under him. Plaintiff landed on top of the ladder, and then rolled to the floor, when he noticed a slimy substance on the floor, which was under his pants legs. Plaintiff testified he believed the ladder was caused to slip due to the liquid from a bubble making machine stored in the garage.

In the decision, the Court recited "Hornbook Law" on a premises case, "With respect to the defendant's motion for summary judgment dismissing the complaint, "[i]n order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence [A] defendant can [also] make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation."

The Appellate Courts of this State have long held, "mere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action. Kudrina v. 82-04 Lefferts Tenants Corp., 110 A.D.3d 963 (2d Dep't 2013); Racines v. Lebowitz, 105 A.D.3d 934 (2d Dep't 2013); McFadden v. 726 Liberty Corp., 89 A.D.3d 1067 (2d Dep't 2011)."

In denying this appeal the Court stated: "Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not identify what had caused the ladder to move without engaging in speculation (see Viviano v KeyCorp, 128 AD3d 811, 812; Patrick v Costco Wholesale Corp., 77 AD3d 810, 811; Duncan v Toles, 21 AD3d 984). In opposition, the plaintiff submitted the deposition testimony of a nonparty witness, which raised a triable issue of fact as to whether the alleged slimy substance had caused the ladder to move and, consequently, the plaintiff to fall and sustain personal injuries (see generally Buglione v Spagnoletti, 123 AD3d 867). Additionally, a triable issue of fact exists as to whether the defendant, who did not inspect the garage within the week prior to the accident, had constructive notice of the alleged slimy condition (see Korn v Parkside Harbors Apts. LLC, 134 AD3d 769, 769-770; Campbell v New York City Tr. Auth., 109 AD3d 455; Yioves v T.J. Maxx, Inc., 29 AD3d 572, 573). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint."

Read the decision here.