Month: November 2011

Missing document charge

Krin v Lenox Hill Hosp., 2011 NY Slip Op 07498 (1st Dept., 2011)

The court properly exercised its discretion in directing that a missing document charge be given at the end of the trial in this case. While the record presents questions about whether
the pertinent document, a cosmetic operative report which defendants failed to turn over to plaintiff, ever existed in their file, there exists sufficient evidence from which a reasonable person could conclude that defendant's dictation of this report was transcribed and was, at one time, in his file. Defendant, Thomas Romo, admits that he dictated the document for transcription, and the functional operative report from the same operation was discovered in his file. Thus, the issue as to whether any spoliation of evidence actually occurred should be presented to the jury, along with the inferences to be drawn therefrom (see Marcano v Calvary Hosp., Inc., 13 AD3d 109 [2004]). Defendants will then be permitted to argue to the jury that the document either never existed in his file, is irrelevant to the issue of this case, that other documents cover the same information, or any other issue he believes will persuade the jury that no adverse inference is warranted. Under the circumstances of this case, the court's sanction was "appropriately tailored to achieve a fair result" (Balaskonis v HRH Constr. Corp., 1 AD3d 120, 121 [2003][internal quotation marks and citation omitted]).

Proving a negative

Arias v Skyline Windows, Inc., 2011 NY Slip Op 07725 (1st Dept., 2011)

Defendant failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff maintenance worker alleges that he was injured when, while pulling a trash container, he slipped on broken glass and fell, resulting in the trash container rolling over his foot. Defendant was the company that had been hired to replace and install new windows at the building where plaintiff worked. Defendant failed to demonstrate that its employees did not perform work at the location until after the day of the subject accident. Although an "affidavit[] indicating that a search of business records had demonstrated a negative is admissible" and can substantiate a summary judgment movant's initial burden (Dickson v City of New York, 43 AD3d 809 [2007]; see Piccinich v New York Stock Exch., 257 AD2d 438 [1999]), here, the affidavit of defendant's director of field operations for volume was inconsistent with his own deposition testimony and indicated a lack of "familiarity with the . . . project at issue" (Barraillier v City of New York, 12 AD3d 168, 169 [2004]).

Even were we to determine that defendant met its initial burden, plaintiff's opposition raised triable issues as to whether defendant's employees were responsible for creating the condition that caused his injuries. Plaintiff testified that he observed defendant's employees at the building in the days prior to the accident and the affidavit of plaintiff's coworker is consistent with plaintiff's testimony. Although defendant disputes the veracity of the coworker's affidavit, its truth is presumed at this procedural posture where the court's duty is to find issues rather than determine them (see Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]).

More than one 3212 = no. And other stuff. And “a reasonable opportunity to conduct discovery”

Courthouse Corporate Ctr., LLC v Schulman, 2011 NY Slip Op 07801 (2nd Dept., 2011)

The defendants' motion for summary judgment dismissing the third cause of action was based on matters that could have been, but were not, raised in the defendants' prior motion for summary judgment. Multiple motions for summary judgment in the same action should be discouraged in the absence of a showing of newly-discovered evidence or other sufficient cause (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427; Flomenhaft v Fine Arts Museum of Long Is., 255 AD2d 290; Dillon v Dean, 170 AD2d 574). Accordingly, the Supreme Court correctly denied the defendants' motion.

Mintz & Gold, LLP v Zimmerman, 2011 NY Slip Op 08490 (1st Dept., 2011)

This was defendants' second motion for summary judgment. The motion court should have denied it on that basis, as defendants did not present sufficient cause for their successive motions (see NYP Holdings, Inc. v McClier Corp., 83 AD3d 426 [2011]). Even were we to reach the merits we would affirm because plaintiff was not required to plead special damages to set forth its claim under Civil Rights Law § 70, (see Civil Rights Law § 71).

Rubistello v Bartolini Landscaping, Inc., 2011 NY Slip Op 06483 (2nd Dept., 2011)

On its motion for summary judgment, the defendant bore the burden of " affirmatively demonstrat[ing] the merit of its claim or defense'" (Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 389, quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615) that it did not launch a force or instrument of harm as a result of a failure to exercise reasonable care in the performance of snow removal services. The defendant could not satisfy its burden by pointing to gaps in the plaintiff's proof (see Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388-389; George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d at 615). Having failed to come forward with evidence to negate this Espinal exception, the defendant failed to establish its prima facie entitlement to judgment as a matter of law on this issue, and the Supreme Court properly denied its motion.

Bank of Am., N.A. v Hillside Cycles, Inc., 2011 NY Slip Op 07788 (2nd Dept., 2011)

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Venables v Sagona, 46 AD3d 672, 673; Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785; Betz v N.Y.C. Premier Props., Inc., 38 AD3d 815; cf. McFadyen Consulting Group, Inc. v Puritan's Pride, Inc., 87 AD3d 620). Here, contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in denying, as premature, that branch of its motion which was for summary judgment on the complaint,  inasmuch as discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f]; Bond v DeMasco, 84 AD3d 1292, 1293; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Betz v N.Y.C. Premier Props., Inc., 38 AD3d at 815). The Supreme Court erred, however, in denying, as premature, those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first, second, third, and twelfth affirmative defenses, and, in effect, that branch of the motion which was for summary judgment dismissing the sixth affirmative defense. The plaintiff established its entitlement to judgment as a matter of law by showing that those defenses were either inapplicable to this breach of contract action or without merit, and that discovery could not result in disclosure of evidence relevant to those affirmative defenses (see Castrol, Inc. v Parm Trading Co. of N.Y.C., 228 AD2d 633, 634). In opposition, the defendant failed to raise a triable issue of fact (see St. Clare Dev. Corp. v Porges, 70 AD3d 925; cf. Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 747, 749).

 Robiou v City of New York, 2011 NY Slip Op 08461 (1st Dept., 2009)

The motion court did not improvidently exercise its discretion in denying plaintiff's cross motion to strike defendant's answer (see Talansky v Schulman, 2 AD3d 355, 361-62 [2003]; Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Moreover, we agree with the motion court's conclusion that further discovery could not lead to "facts essential to justify opposition" (CPLR 3212[f]), warranting a denial of defendant's summary judgment motion (see Auerbach v Bennett, 47 NY2d 619, 636 [1979]; Banque Nationale de Paris v 1567 Broadway

The perils of a reply to a counterclaim

Rossini Excavating Corp. v Shelter Rock Bldrs., LLC, 2011 NY Slip Op 07735 (1st Dept., 2011)

There was no default in answering. Plaintiff waived its objections to the untimeliness of defendants' answer by serving a reply to the counterclaims after rejecting the late answer and moving for a default judgment (cf. Oparaji v Duran 18 AD3d 725). In view of the foregoing, whether defendant demonstrated the grounds required for vacatur of a default and the other issues arising from the subsequent chain of events are academic.

Estoppels abound

Maybaum v Maybaum, 2011 NY Slip Op 07816 (2nd Dept., 3011)

The Supreme Court erred in granting that branch of the plaintiff's motion which was to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'" (Xiao Yang Chen v Fischer, 6 NY3d 94, 100-101, quoting Restatement [Second] of Judgments § 24[2]; see Smith v Russell Sage Coll., 54 NY2d 185, 192-193). Applying this test, we conclude that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment do not form a convenient trial unit. Thus, the defendant is not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court. 

"Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . , whether or not the tribunals or causes of action are the same'" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349, quoting Ryan v New York Tel. Co., 62 NY2d 494, 500). "The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349). "[C]ollateral estoppel effect will only be given to matters actually litigated and determined in a prior action" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [internal quotation marks omitted]). "An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation" (id. at 456-457). Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, cannot be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440-441; Singleton Mgt. v Compere, 243 AD2d 213, 216-218).

Further, "[t]he circumstances set forth by plaintiff simply do not rise to a level of unconscionability warranting application of equitable estoppel" (American Bartenders School v 105 Madison Co., 59 NY2d 716, 718; see Geller v Reuben Gittelman Hebrew Day School, 34 AD3d 730, 731-732).

Since the doctrines of res judicata, collateral estoppel, and equitable estoppel do not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(b) to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense has no merit.

The Supreme Court further erred in granting that branch of the plaintiff's motion which was to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage (see Vestal v Vestal, 273 AD2d 461, 462; Miglio v Miglio, 147 AD2d 460, 460-461). Further, the Supreme Court erred in granting that branch of the plaintiff's motion which was pursuant to CPLR 3016(c) to strike stated paragraphs in the counterclaim for lack of specificity and thereupon directing the defendant to serve and file an amended counterclaim. The "allegations sufficiently apprised the [plaintiff] of the accusations against him so as to enable him to prepare a defense" (Nolletti v Nolletti, 2 AD3d 421, 422; see Kapchan v Kapchan, 104 AD2d 358; Pfeil v Pfeil, 100 AD2d 725). Therefore, the Supreme Court also should have granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(b) to dismiss the plaintiff's third affirmative defense alleging that the counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c).

Farren v Lisogorsky, 2011 NY Slip Op 06366 (2nd Dept., 2011)

Prior to answering, the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7), for summary judgment dismissing the complaint, and for an award of sanctions. The Supreme Court, inter alia, granted that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(5), holding that the doctrine of res judicata precluded the instant action. We reverse the order insofar as appealed from. 

" [T]he general doctrine of res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were necessarily decided therein'" (Landau, P.C. v LaRossa, Mitchell, & Ross, 11 NY3d 8, 13, quoting Matter of Grainger [Shea Enters.], 309 NY 605, 616). Although the doctrine of res judicata may be invoked where there is either a final judgment in an action between the parties, or a stipulation of settlement withdrawing a complaint or cause of action with prejudice (see Liberty Assoc. v Etkin, 69 AD3d 681, 682-683), to establish "privity" of the kind required for the application of res judicata, the party raising a res judicata defense must demonstrate a connection between the party to be precluded and a party to the prior action "such that the interests of the nonparty can be said to have been represented in the prior proceeding" (Green v Santa Fe Indus., 70 NY2d 244, 253).

The doctrine of res judicata is inapplicable to the instant action, as the plaintiffs never asserted any claim against the defendant in his capacity as an employee of Metropolitan, and seek here to hold him liable solely in his professional capacity as a pharmacist (see City of New York v Welsbach Elec. Corp., 9 NY3d 124, 127-128; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d 665). The fact that the plaintiffs sued one tortfeasor, Metropolitan, does not automatically preclude them from suing another tortfeasor, such as the defendant herein, in a subsequent action (see Seaman v Fichet-Bauche N. Am., 176 AD2d 793, 794). In addition, the defendant inaptly sought to invoke res judicata against the plaintiffs based on his alleged privity with Metropolitan. Since there was an insufficient basis upon which to conclude that the defendant was in privity with Metropolitan, the Supreme Court incorrectly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint based on the doctrine of res judicata.

Uzamere v Senator Ehigie Edobor Uzamere, 2011 NY Slip Op 08583 (2nd Dept., 2011)

The Supreme Court properly directed dismissal of the complaint based on the doctrine of res judicata. The plaintiff previously commenced two prior federal court actions, one in the Eastern District of New York (hereinafter the Eastern District action) and one in the Southern District of New York based on the same alleged facts that form the basis of the complaint herein. In light of authority stating that a court should apply the rules of res judicata followed in the jurisdiction that rendered the earlier court decision (see Insurance Co. of State of Pa. v HSBC Bank USA, 10 NY3d 32, 38 n 3, citing Marrese v American Academy of Orthopaedic Surgeons, 470 US 373, 380-381; Langerman v Langerman, 303 NY 465, 474; Restatement [Second] of Conflict of Laws § 95, Comment[e]), we apply federal res judicata law in determining whether the doctrine of res judicata bars this action.

"In federal court, subsequent litigation is prohibited if a prior court ruling was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action'" (Insurance Co. of State of Pa. v HSBC Bank USA, 10 NY3d at 37, quoting EDP Med. Computer Sys., Inc. v United States, 480 F3d 621, 624).

Here, the Eastern District action resulted in a dismissal of the complaint for failure to state a claim upon which relief could be granted, and that dismissal was a final adjudication on the merits by a court of competent jurisdiction (see Federated Department Stores, Inc. v Moitie, 452 US 394, 399 n 3; Angel v Bullington, 330 US 183, 190). Furthermore, the Eastern District action and this action involve the same parties or their privies (see Akhenaten v Najee, LLC, 544 F Supp 2d 320, 328-329), and involve the same cause of action. Specifically, the Eastern District complaint and the instant complaint arise out of the same "nucleus of operative facts" and, thus, the causes of action asserted in this litigation could have been asserted in the Eastern District action (Waldman v Village of Kiryas Joel, 207 F3d 105, 108). Moreover, under the circumstances of this case, it is not clear that the Eastern District would have, as a matter of discretion, declined to exercise supplemental jurisdiction over the State law causes of action asserted herein (see Troy v Goord, 300 AD2d 1086; cf. McLearn v Cowen & Co., 48 NY2d 696, 698; Urlic v Insurance Co. of State of Penn., 259 AD2d 1, 4).

Admission in deposition transcript

Singh v Actors Equity Holding Corp., 2011 NY Slip Op 07909 (1st Dept., 2011)

Plaintiff's argument that summary judgment should not have been granted because defendants failed to include signed, sworn copies of the deposition transcripts, is raised for the first time on appeal and thus, is precluded from review (Ta-Chotani v Doubleclick, Inc., 276 AD2d 313 [2000]). Were we to consider the argument, we would find that the signed, sworn documents were in defendants' possession and could have been provided to the motion court had defendants been notified of the omission. Moreover, the deposition transcripts are admissible as plaintiff's own admission since the transcripts had been certified as accurate by the court reporter (Morchik v Trinity School, 257 AD2d 534, 536 [1999]).

 

Late Amendment

CPLR R 3025 Amended and supplemental pleadings
(c) Amendment to conform to the evidence.

Panasia Estate, Inc. v Broche, 2011 NY Slip Op 07922 (1st Dept., 2011)

Although motions for leave to amend may be granted on the eve of trial (see CPLR 3025[c]; Reyes v City of New York, 63 AD3d 615, 616 [2009], lv denied 13 NY3d 710 [2009]), the motion court properly denied plaintiff's motion because defendants would be unduly prejudiced by the proposed amendment, which seeks to add a new theory of liability (see Spence v Bear Stearns & Co., 264 AD2d 601 [1999]). The record reveals that discovery, which had been tailored to the theories of liability set forth in the second amended complaint, was nearly complete and the filing date of the note of issue was imminent (see Chichilnisky v Trustees of Columbia Univ. in City of N.Y., 49 AD3d 388 [2008]). Plaintiff sought this amendment 18 months after the action was commenced, after it had amended its complaint twice, and after it and defendants had submitted motions for summary judgment that Supreme Court had resolved (see Heller v Louis Provenzano, Inc., 303 AD2d 20 [2003]).

Furthermore, the proposed amendment, wherein plaintiff seeks specific performance of an oral modification of the parties' contract, is lacking in merit (see e.g. Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [2009], lv dismissed 12 NY3d 880 [2009]). Plaintiff's conduct, as alleged in the proposed third amended complaint, does not unequivocally refer to the purported oral modification, and thus does not fall within the partial performance exception to General Obligations Law § 5-703(4) (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235 [1999]).

Weingarten v S & R Medallion Corp., 2011 NY Slip Op 06655 (1st Dept., 2011)

The court providently exercised its discretion in denying plaintiff's motion. The proposed allegation of a "tacit" modification of the parties' written agreement, which required modifications to be in writing, is clearly devoid of merit (see Bishop v Maurer, 83 AD3d 483, 485 [2011]). Plaintiff denies that there was any oral modification of the written agreement, and he makes no allegations to support a claim of modification based upon conduct. With respect to the remaining proposed allegations, plaintiff asserts that they merely clarify the existing pleading. Accordingly, the court properly determined that they may be proved at trial and, if necessary, the pleadings can be amended to conform to the proof.

Application denied

Matter of William Jamal W. Jr. v Marjorie C., 2011 NY Slip Op 07926 (1st Dept., 2011)

No appeal lies from an order entered on default (see CPLR 5511; Matter of Jessenia Shanelle R. [Wanda Y.A.], 68 AD3d 558 [2009]). However, the denial of respondent's counsel's request to adjourn the inquest and dispositional hearing is appealable because that request was "the subject of contest below" (see James v Powell, 19 NY2d 249, 256 n 3 [1967]). We find that the court properly declined to grant the adjournment, having warned respondent on the preceding court date that it would proceed to inquest if she failed to appear (see Matter of Cain Keel L. [Derzerina L.], 78 AD3d 541 [2010], lv dismissed 16 NY3d 818 [2011]).

 

A duty to read

Vulcan Power Co. v Munson, 2011 NY Slip Op 07917 (1st Dept., 2011)

Defendants-appellants and defendant Munson, their representative, signed the stockholders agreement without reading it. Defendants-appellants, in fact, never requested a copy of the agreement, depending instead on the representations of Munson, who, in turn, depended upon the representations of people whose interests were at odds with his and who he believed to be untrustworthy. As a result, defendants are bound by the terms of the stockholders agreement (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Pimpinello v Swift & Co., 253 NY 159, 162-163 [1930]). Defendants' argument that the holding in Sorenson does not apply to signers of loose signature pages is without merit. A signer's duty to read and understand that which it signed is not "diminished merely because [the signer] was provided with only a signature page" (Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009]; see also Friedman v Fife, 262 AD2d 167, 168 [1999]).

Defendants' failure to read the stockholders agreement also precludes its fraud in the execution defense (see First Natl. Bank of Odessa v Fazzari, 10 NY2d 394, 397-398 [1961] [finding a non-English speaker negligent for not asking his wife to read a document of obvious legal import, especially where he had done so in the past]; see also Sorenson, 52 AD3d at 266 ["negligent failure to read [an] agreement [precludes the assertion of] justifiable reliance, an essential element of fraud in the execution"]).

Kolmar Ams., Inc. v Bioversal Inc., 2011 NY Slip Op 07916 (1st Dept., 2011)

Plaintiff's attempt to insert ambiguity into the applicable tax clause contained in the General Terms and Conditions (GTC) of the agreement between the parties which required plaintiff to pay defendant all taxes "paid or incurred by [defendant] directly or indirectly with respect to the product sold," is unpersuasive. "A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Excel Graphics Tech. v CFG/AGSCB, 1 AD3d 65, 69 [2003], lv dismissed 2 NY3d 794 [2004]). Contrary to plaintiff's argument, the language employed in the contract should not be modified by, or read together with, the "Title and Risk of Loss" provision. Nor should the term "indirectly" be read narrowly as such a reading would render the counterpart term covering taxes paid "directly," meaningless, and run afoul of the "cardinal rule of construction that a court adopt an interpretation that renders no portion of the contract meaningless" (Diamond Castle Partners v IAC/Interactive Corp., 82 AD3d 421, 422 [2011]).

Article 2 of the UCC does not authorize the introduction of parole evidence to vary the plain meaning of the GTC tax clause. Extrinsic evidence does not merely "explain" or "supplement" a contractual term within the meaning of UCC 2-202 when the purported explanation or supplement actually contradicts the unambiguous contractual terms (see UCC 2-202; Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517, 523 [1991]).

The motion court's grant of partial summary judgment while directing that an inquest be held after discovery is completed was a provident exercise of its "wide discretion" (see Robert Stigwood Org. v Devon Co., 44 NY2d 922, 923-24 [1978]). Pursuant to the motion court's order, at the inquest, defendant will bear the burden of proving its damages, i.e., the amount it paid or incurred, directly or indirectly, with respect to Florida fuel taxes in connection with the subject contract.

A serious injury

Perl v Meher, 2011 NY Slip Op 08452 (2011)

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).

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.

It's a long decision. Click the link to read the rest.