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Plaintiff Was Unable to Raise a Question of Fact About Whether Her Injuries Were Related to a Preexisting Condition

Over a dissent, the Fourth Department reversed the motion court’s denial of summary judgment to the defendant in an automobile-accident personal injury action.  The Fourth Department determined plaintiff had not raised a question of fact in response to the proof submitted by defendant that her injuries were linked to a preexisting condition, and not the accident:

“[E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury—such as a gap in treatment, an intervening medical problem or a preexisting condition—summary dismissal of the complaint may be appropriate” …. Here, defendants met their initial burden on the motion with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories by offering “persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition” … .  Kwitek… v Seier…, CA 12-01607, 352, 4th Dept, 4-26-13

TRAFFIC ACCIDENTS

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THE APPEAL WAIVERS WERE NOT EXECUTED UNTIL SENTENCING AND WERE THEREFORE INVALID; ARGUMENTS ABOUT A LATE FILED OMNIBUS MOTION AND DEFENSE COUNSEL’S FAILURE TO FILE OMNIBUS MOTIONS DID NOT SURVIVE THE GUILTY PLEAS (FOURTH DEPT).
EVIDENCE DID NOT SUPPORT A LEVEL THREE RISK ASSESSMENT, REDUCED TO LEVEL TWO; STANDARD OF PROOF IS PREPONDERANCE NOT CLEAR AND CONVINCING (FOURTH DEPT).
PLAINTIFF WAS REPAIRING THE FLASHING ON THE ROOF, NOT DOING ROUTINE MAINTENANCE, AT THE TIME HE WAS INJURED ENTITLING HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).
NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT).
THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).
THE GRAND JURY EVIDENCE OF TWO LACERATIONS ON THE VICTIM’S NECK, 3-4 AND 5-6 CENTIMETERS LONG, SUPPORTED THE TWO COUNTS OF FIRST DEGREE ASSAULT BASED UPON DISFIGUREMENT (FOURTH DEPT).
COUNTY COURT VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW BY FAILING TO NOTIFY DEFENDANT IT INTENDED TO ASSESS POINTS IN THE SORA RISK-LEVEL HEARING THAT WERE NOT RECOMMENDED BY THE BOARD OR PROPOSED BY THE PEOPLE; NEW HEARING ORDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).
SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT).

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