Plead it or loseJanuary 5, 2010
What happens is that once a month, the Fourth Department will slam the Most Recent Decision website with about 100 cases. As a practitioner, blogger and a never ending appellate writer, it is always important to know what new and relevant cases are out there. With that introduction, I will say that there were only a few worthwhile Fourth Department cases that deal tangentially with our area of practice.
Weaver v Town of Penfield was just a run of the mill Ins Law 5102(d) threshold case. But, Plaintiff’s counsel did not check his paralegal’s work and might have cost his client a viable claim. To quote the pertinent portion of the decision: “Although the record contains some objective evidence of an injury to plaintiff’s cervical spine, we note that the complaint, as amplified by the bill of particulars and supplemental bill of particulars, does not allege that plaintiff sustained a serious injury to his cervical spine as a result of the accident.” A lesson to us all – check what goes out the door.