SUM COVERAGE: Plaintiff/decedent was killed by a driver with a $25,000/$50,000 policy. In New York, the minimum coverage of $25,000 is increased to $50,000 in the event of a fatality. After accepting the $50,000 settlement from the automobile carrier, the Estate made a SUM claim under the decedent's $50,000/$100,000 SUM policy. The Appellate Division held that because the Estate had been paid a total of $50,000 (notwithstanding the fact that the tortfeasor's policy was only $25,000), the Estate had been paid "the equivalent" of the SUM limits and any claim for further SUM benefits was "academic" (
In re Ameriprise Auto & Home Ins. Co.).
OPEN AND OBVIOUS DEFECT: A property owner is not entitled to summary judgment despite the fact that the defective condition was "open and obvious." The Appellate Division said that defendant still needed to show in its motion for summary judgment that it maintained its property in a reasonably safe condition (
Johnson-Glover v Fu Jun Hao, Inc.).
TRIVIAL DEFECT: The Appellate Division granted a property owner summary judgment because it reasoned that a one inch differential between sidewalk slabs was too trivial to be actionable (
Chee v DiPaolo).
SUMMARY JUDGMENT STANDARD: A defendant was denied summary judgment when it pointed to plaintiff's gap in proof in its dispositive motion. The Appellate Division reminded litigants that a defendant moving for summary judgment must make a
prima facie showing of its entitlement to summary judgment; merely pointing out how plaintiff cannot establish an element of a tort is not sufficient. One example of this is constructive notice (
Belgium v Mateo Prods., Inc.).
CONSTRUCTIVE NOTICE: A property owner wasn't entitled to summary judgment on the issue of constructive notice of a defective condition because it could not show when the area was last inspected prior to plaintiff's fall (
James v Orion Condo).
PRACTICE TIP: Please keep in mind that a defendant in Federal Court
can point to a plaintiff's gap in proof to obtain summary judgment. In State Court, a defendant must prove how long a defective condition existed before an accident, whereas in Federal Court a defendant can simply show that plaintiff does not know how long the condition existed. As a result, defendants should try to remove a case to Federal Court, especially when it deals with the issue of notice.
SUMMARY JUDGMENT, CONT'D: The defense moved for summary judgment in a MVA case by arguing that plaintiff did not sustain a "serious injury" pursuant to the Insurance Law. After the filing of defendant's motion, plaintiff's counsel served a so-called Supplemental Bill of Particulars that alleged new bodily injuries. Defense counsel objected and said that this document actually was an Amended Bill of Particulars because it alleged a new injury. The Fourth Department rejected plaintiff's attempt to create a question of fact to deny the motion by raising the new injury for the first time in opposition to a dispositive motion (
Stamps v Pudetti).
PRACTICE TIP: Remember that there is a difference between a Supplemental and an Amended Bill of Particulars. As the name suggests, a Supplemental Bill of Particulars merely supplements the original Bill of Particulars with dates of medical treatment, the cost of medical care, etc. An Amended Bill of Particulars, however, alleges a new theory of liability or injury. A Bill of Particulars may only be amended once as of right before the filing of the Note of Issue, so you must ensure that any post-Note of Issue Bill of Particulars does not contain either new liability theories or claimed injuries.
