In Whiting v. Dave Hennig, Inc., et al., (4th Dept., April 28, 2006), the plaintiff sustained injuries when he fell from the roof of a house under construction. On appeal, the Fourth Department affirmed the lower court's decision granting the plaintiff partial summary judgment under §240(1) of the Labor Law.

In rendering that decision, the Court concluded that the plaintiff met his burden on motion by establishing that he was not furnished with the requisite safety devices and that the absence of such devices was a proximate cause of his injuries. Despite the defendants' attempts, the Court was not swayed by the defendants' contention that the sole proximate cause of the plaintiff's accident was his own failure to utilize a safety device made available to him.

Additionally, the Court disagreed with the defendants' argument that the plaintiff was a recalcitrant worker because he did not follow safety instructions and obtain the appropriate safety device which was available on site. Instead, the Fourth Department determined that those contentions lacked merit and opined that "the mere failure by a plaintiff to follow safety instructions does not render that plaintiff a recalcitrant worker." Id.

In Esposito vs. Wright, et al., (4th Dept., April 28, 2006) the Fourth Department affirmed the lower court's decision denying the defendant's motion for summary judgment based upon an application of the emergency doctrine. In the underlying accident, the defendant, Alexander Wright, was traveling approximately two car lengths behind the plaintiff.

The subject accident occurred when the plaintiff was pushed into the concrete median of the highway after being cut off by a non-party driver and then struck by the vehicle being operated by the co- defendant. After ricocheting off of the concrete barrier, the plaintiff's vehicle then collided with the vehicle being driven by the defendant, Alexander Wright.

In support of his motion to the lower court, Wright argued that he was faced with an emergency situation and did all he could to avoid the collision with the plaintiff's vehicle. Specifically, Wright submitted proof that he decelerated his vehicle and swerved in an attempt to avoid being struck by the plaintiff's vehicle.

Nonetheless, the trial court denied his motion. On appeal, the Fourth Department agreed with the trial court's decision and held that, with regard to the emergency doctrine, even where an emergency is found to exist, that does not automatically absolve one from liability. Rather, "a party may still be found negligent if the acts in response to the emergency are found to be unreasonable." Id.

Although Wright submitted proof that he decelerated his vehicle and swerved in an attempt to avoid being struck by the plaintiff's vehicle, the Court was not convinced that Wright met his burden on motion and concluded that the question of "[w]hether a party acted prudently [when faced with an emergency] is a question for the trier of fact to decide." Id.

In Bailey v. Veitch, et al., (4th Dept., April 28, 2006), the Fourth Department modified the decision of the lower court which granted the defendant's motion for summary judgment in a dog bite case and reinstated the plaintiff's complaint. In Bailey, the Court's decision hinged on the question of whether the defendant dog owner had notice of his dog's vicious propensities.

With regard to that issue, the Fourth Department considered proof submitted to the lower court indicating that several days before the incident at issue, the dog in question bit the hand of the defendant's grandson. When such proof was considered by the lower court, that court made a finding that because the bite did not require medical attention, it was too minor and trivial to establish that the dog in question had vicious propensities. In that regard, the trial court granted the defendant's motion for summary judgment.

On appeal, the Fourth Department disagreed and held that the question of whether the bite to the defendant's grandson was sufficient to provide notice to the defendant is a question to be resolved by the fact finder. In so holding, the Fourth Department determined that the lower court erred in finding that the bite to the defendant's grandson, as a matter of law, did not establish that the subject dog had vicious propensities because it was trivial and did not require medical attention.

In Allstate v. Marcone, et al., (2nd Dept., May 16, 2006), the Second Department considered the difference in standards that are utilized to govern instances when notice of an incident is reported by an insured versus the injured party. In Marcone, the decedent was accidentally shot by the defendant during a hunting trip on December 3, 1995.

The defendant/Allstate insured did not provide Allstate with notice of the accident until December of 1997. During the intervening time however, the Administrator of the decedent's Estate attempted to locate the defendant's insurance carrier and provide notice to same. Allstate Insurance Company commenced a declaratory judgment action seeking a finding that its policy of insurance to the defendant was vitiated by the defendant's failure to provide timely notice.

With regard to the notice provided by the defendant/insured, the Second Department opined that the lower court properly determined that the various excuses offered by the defendant were insufficient to raise a triable issue of fact as to the reasonableness of his two year delay in giving notice. However, the Appellate Division disagreed with the lower court concerning the attempts made by the Administrator of the decedent's Estate to give notice. The Court noted that "[a] party injured by an insured individual has an independent interest in the protection afforded by the insured's liability coverage." Id. As such, the Court opined that "[n] otice given by an injured party is not to be judged by the same standards, in terms of time, as govern notice by the insured, since what is reasonably possible for the insured may not be reasonably practical for the injured person." Id.

Prepared by Stephanie G. Elliott