NYS Court of Claims, Bicycling, and the "Assumption of Risk" Defense

In Alfieri v. State of New York, 2024 Slip Op. 00886 (decided on February 21, 2024), the Appellate Division, Second Department reversed a NYS Court of Claims decision to dismiss an injured claimant's case - as the appellate court held, among other things, that the Court of Claims incorrectly applied the "assumption of risk" doctrine/defense to the case.

The case arose after the claimant commenced a claim in the NYS Court of Claims (a court which entertains just lawsuits, or "claims," against the State of New York).  The claim was against the State of New York, and it requested to recover damages for personal injuries allegedly sustained when the claimant fell from his bicycle as he rode on a paved path around Rockland Lake in Rockland Lake State Park.  At a non-jury trial (as the Court of Claims does not permit jury trials - but rather only "bench-trials," or trials in which a NYS/Court of Claims judge decides matters of both law and fact involving a NYS defendant), the claimant testified that he fell when his bicycle ran into loose asphalt at the end of a crack in an asphalt patch as he attempted to maneuver to the edge of the path to go around two people walking on the path.  After the bench-trial, the Court of Claims justice found that the claim was barred by the doctrine of primary assumption of risk; and thereafter, the court issued a judgment dismissed the claim. The claimant thereafter appealed.

The Appellate Division, Second Department, revered the Court of Claims' decision - thereby restoring the case (and remitting the case back to the Court of Claims for a decision on those issues left undecided as a result of its determination), holding, among other things, the following: "Here, the Court of Claims erred in determining that the path where the claimant's accident occurred was a designated venue used specifically for bicycling.  When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface.  The claimant was not participating in an organized group event or sponsored ride.  The claimant testified at trial that he could both bike and walk the path.  That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling.  Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant's activity...."

Salvatore R. Marino, Esq.

"Serious Injury" Need Not Be "Permanent" For Auto-Accident Case

In Strong v. Sigman, et al, 2024 N.Y. Slip Op. 1028 (decided on February 28, 2024), the Appellate Division, Second Department reversed a trial court's granting of a defendants' summary judgment motion - thereby restoring the case - as the appellate court found, among other things, that triable issues of fact existed with respect to whether the plaintiff's non-permanent injury constituted a "serious injury" by way of Article 51 of the NYS Insurance Law (also known as the "No-Fault serious injury threshold law").  

The case arose due to an automobile accident between the plaintiff and the defendants.  At some point after the accident, the plaintiff filed suit against the defendants, and set forth allegations including that the defendants were negligent and caused the accident, and that the plaintiff sustained injuries/damages.  During the pre-trial process, the defendants filed a motion for summary judgment which requested dismissal of the case as, the defendants' contended, the plaintiff's injuries were not "permanent" and therefore no "serious injuries" existed as a matter of law.  A Queens County Supreme Court Justice agreed with the defendants' position, and granted the motion, and the plaintiff thereby appealed.

The Appellate Division, Second Department, reversed - thereby restoring the case - and the decision included the following: "In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical and lumbar regions of her spine under the significant limitation of use category of Insurance Law 5102(d) [citing Perl v. Meher, 18 NY3d 208].  Contrary to the defendants' contention, Insurance Law 5102(d) does not expressly set forth any temporal requirement for the significant limitation of use category and a 'significant limitation' need not be permanent in order to constitute a serious injury [citing Vasquez v. Almanzar, 107 AD3d 538; Estrella v. GEICO Ins. Co., 102 AD3d 730]."  

Salvatore R. Marino, Esq.