In Pearl v. Sam Greco Construction Inc., -- N.Y.S2d--, 2006 WL 2014827 (3rd Dept. 2006), a plaintiff was able to recover under Labor Law §240(1) for injuries sustained as a result of a fall that occurred while he was attempting to retrieve safety equipment provided by the employer. The plaintiff presented evidence that the equipment was stored improperly and the court held that even if the plaintiff himself, as supervisor, chose the manner in which the equipment was stored, the plaintiff could still recover under the statute.

In Smith v. CSX Transp., Inc., 30 A.D.3d 1003, 818 N.Y.S.2d 369 (4th Dept. 2006), the court held that a plaintiff, who was injured while attempting to prepare the trailer of a railroad car to be unloaded, could not recover under Labor Law §240 (1) because his actions did not constitute an "alteration." Likewise, the plaintiff could not recover under 241(6) as he was not working in the context of construction.

In Ellis v. J.M.G., Inc., 818 N.Y.S.2d 724 (4th Dept. 2006), the court held that a plaintiff, who was injured when he stepped into a sump hole in a basement while running wiring, could pursue a Labor Law § 241(6) claim alleging a violation of an Industrial Regulation that regulated "hazardous openings."

In Portillo v. Roby Anne Development, LLC., - - N.Y.S.2d --, 2006 WL 2257182 (2nd Dept 2006), the court held that a plaintiff who was injured when an unsecured beam fell on him while working at a demolition site, could not recover under Labor Law §241(6) as the area was not prone to falling material as required under the Industrial Regulations allegedly violated by the owner.

In Uddin v. Cooper, --N.Y.S.2d--, 2006 WL 2291134 (1st Dept. 2006), the plaintiff failed to raise a question of fact despite the fact the IME physician noted that the plaintiff had limited range of motion and presented a herniated disc on an MRI. The court noted that the plaintiff's limitations of motion were secondary to expressions of pain and that he did not cooperate during the course of the examination. Additionally, his own physicians previously found negative results in a series of tests.

In Caldwell v. Grant, 818 N.Y.S.2d 700, (4th Dept. 2006), a case defended by our firm, the plaintiff failed to raise a triable issue of fact as to the existence of a serious injury where his treating chiropractor's affidavit failed to address pre-existing symptoms and did not provide an adequate qualitative or quantitative assessment of the plaintiff's injuries.

In Olsen v. Martin, --N.Y.S.2d--, 2006 WL 2285791 (3rd Dept. 2006), plaintiff police officer could not recover for injuries sustained as a result of a fall from a porch when the railing gave way while he was subduing a suspect since the owner did not have any notice of a defect with respect to the railing. An expert affidavit addressing the condition of the porch did not raise an issue of fact regarding the status of the railing prior to the accident.

In Brennan v. Sinski, 817 N.Y.S.2d 833 (4th Dept. 2006), the parents of an infant plaintiff filed suit against the infant’s maternal uncle for injuries sustained when the child jumped from a tree while the uncle and his wife were watching the child "for the day." The court held there was a question of fact over whether the uncle failed to provide adequate supervision.

In Hernandez v. American Transit Ins. Co., -- N.Y.S.2d --, 2006 WL 2076996 (1st Dept. 2006), a plaintiff arguing that an insurer's disclaimer was untimely, sought to recover a judgment obtained in a personal injury action from the insurer of one of the defendants. The court held that because neither the plaintiff nor the defendant ever notified the insurer, the insurer was not obligated to disclaim coverage

In BP Air Conditioning Corp. v. One Beacon Ins. Group, -- N.Y.S.2d --, 2006 WL 1843350 (1st Dept. 2006), the court held that an additional insured is entitled to defense once there is a "reasonable possibility" of liability against the additional insured. Findings of fact by the trial court are not necessary to trigger the defense obligations owed to an additional insured as the additional insured is entitled

Prepared by Brian R. Biggie