Case Digests

Daily Record (Rochester, NY), Jun 24, 2009

Ruling: Although one doctor restricted the plaintiff to lifting nothing overhead and lifting no more than 20 pounds generally, the evidence did not support a finding of disability. Further, the claimant credibility issue weighed against the plaintiff. The defendant's motion is granted and the action is dismissed.

Jere B. Fletcher for the plaintiff, and Christopher V. Taffe, assistant U.S. attorney, for the defendant

Appellate

division, third

Department

Insurance Law

Motor Vehicle Negligence

Mazzarella v. Paolangeli

506225

Appealed from Supreme Court,

Tompkins County

Background: The appeal is from an order that granted the defendant's motion for summary judgment dismissing the complaint. In October 2003, Darrell Cole, an employee of the defendant who was acting within the scope of his employment, lost control of the empty dump truck that he was driving. As a result, the truck slid into a ditch, damaging the vehicle's fuel primer pump. Unaware of the damage to the truck, Cole then moved it out of the ditch and drove a short distance on the roadway, causing the truck's running engine to deposit diesel fuel along the road. The plaintiff's car then skidded from the roadway and hit a tree, leading to a back injury. The lawsuit for damages followed.

Ruling: The question is whether the trial court properly dismissed the complaint on the ground that the plaintiff's injuries arose out of Cole's negligence "in the use or operation of a motor vehicle" such that recovery for non-economic loss is barred in the absence of a serious injury as provided under Insurance Law [section]5104(a). The court finds that it was Cole's negligence that was responsible for the accident as the plaintiff's accident was not wholly incidental to the negligence, nor was Cole's negligent use of the truck so remote in time and space from the accident that it cannot be considered a proximate cause of the injuries. The judgment is affirmed.

Dirk A. Galbraith of Holmberg, Galbraith, VanHouten & Miller for the appellants, and Jennifer L. Hunter of Costello, Cooney & Fearon PLLC for the respondent

Standing

Matter of Curley v. Binghamton-

Johnson City Joint Sewage Board

504357

Appealed from the

Workers' Compensation Board

Background: The appeal is by the employer in a worker's compensation matter, which granted the employer's request for reimbursement from the third-party administrator for the period it paid its employee wages prior to the employee's workers' compensation eligibility being established. Although the request was granted, the employer took issue with the language in the decision regarding the claimant's leave credits; the employer applied for board review, and the board decided that the employer is not an aggrieved party to the extent of establishing standing to appeal the decision.

Ruling: Per its request, the employer was reimbursed fully for the wages it paid to the claimant and, in fact, does not challenge the amount it received. Having received the relief sought, the employer is not an aggrieved party and has no standing to appeal the decision. Its challenge to the decision is dismissed.