In Amantia v. Barden & Robeson Corp., et al., (4th Dept., March 16, 2007), the plaintiff was in the back of the cargo truck unloading forms used to hold concrete for foundation walls. The Appellate Division, Fourth Department, affirmed Justice Devlin's grant of summary judgment in favor of the defendant's dismissing the plaintiff's Labor Law §240(1) cause of action. The Appellate Division reasoned that the work the plaintiff was engaged in at the time of the accident did not trigger Labor Law §240(1) protection because there was no exceptionally dangerous condition posed by the elevation differential between the cargo floor of the truck and the ground. Further, there was no significant risk inherent in the particular task the plaintiff was performing.

In Barry, et al v. Gorecki, et al., (4th Dept., March 16, 2007), an 18-year old sustained personal injuries when he fell from a cliff located at the edge of property owned by the defendants. He was on the property attending a party hosted by the defendants' son while the defendants were out of town. When the police were summoned because of the noise, the party goers, including the plaintiff, scattered, running through the defendants' back yard. The plaintiff fell off a ledge. The Appellate Division upheld the determination of Justice NeMoyer granting the defendant summary judgment. The Court held that the plaintiff's presence on the property at the time and place of the injury was not reasonably foreseeable to the defendants and thus, they owed no duty to the plaintiff.

In Bilodeau-Redeye v. Preferred Mutual Insurance Company, (4th Dept., March 16, 2007), the plaintiff commenced a declaratory judgment action seeking supplementary uninsured/underinsured motorist coverage for injuries that she sustained in a motor vehicle accident. The defendant defaulted and moved to vacate. The trial court denied the motion holding that the defendant did not demonstrate that it had meritorious defenses. The Appellate Division reversed, holding that the defendant met its burden in establishing support for its defenses. In support of its motion, the defendant established that the plaintiff may have been primarily, if not solely, responsible for the accident, having exited her driveway into the path of a vehicle having the right of way.

In Chautauqua Partners Insurance Association v. Ross, et al., (4th Dept., March 16, 2007) a declaratory judgment action was commenced by the plaintiff seeking a declaration that it was not obligated to defend or indemnify its insured with respect to the claims of Jeremy Mellin, the plaintiff in the underlying action. Mellin, then age 16, was injured while operating a corn chopper at a dairy farm owned by the insured, Ross Miller. The plaintiff disclaimed coverage on the grounds that the coverage of liability insurance covering the farm excluded coverage for bodily injury to any person under the age of 21 in the care of the insured or in the care of an insured's resident relatives. The Appellate Division concluded that Mellin was not in the care of the insured within the meaning of the policy and that the plaintiff was required to defend and indemnify its insured.

In Dunn v. Black Clawson Company, Inc., et al., (4th Dept., March 16, 2007), the plaintiff commenced an action seeking damages for injuries sustained when his left hand was crushed after being drawn into a paper processing machine. The defendant machine manufacturer moved for summary judgment arguing that the condition was obvious and that, therefore, no warning was required. The Appellate Division held that a question of fact existed as to the defendant's failure to warn. The defendant failed to establish as a matter of law that the danger of a worker's hand becoming entangled in the paper and then being drawn into the rolls of the machine was obvious.

In Guadagno v. City of Niagara Falls and Massaro, (4th Dept., March 16, 2007), the plaintiff commenced an action seeking damages for injuries sustained when she tripped and fell on an uneven sidewalk that crossed the driveway of the abutting landowner. The Appellate Division unanimously affirmed the Trial Court's dismissal of the plaintiff's complaint. The Court reasoned that as the abutting private landowner, the defendant was not liable for injuries sustained as a result of the defect in the sidewalk. Since the sidewalk was not constructed in a special manner for the benefit of the abutting landowner, the "Special Use Doctrine" did not apply.

In Hussain v. Nowak, (4th Dept., March 16, 2007), the plaintiff's commenced an action seeking damages for injuries sustained by the plaintiff when her hand became caught on a wire flag holder attached to the defendant's mailbox. The plaintiffs moved to strike the defendant's answer for spoliation of the evidence and submitted evidence establishing that the defendants' insurance company, to whom the defendants entrusted the wire flag holder, had either lost or destroyed it. The Appellate Division affirmed the trial court's denial of the plaintiff's motion and ordered that a curative charge be read to the jury.

In Maleski v. Lenander and Mitrano, (4th Dept., March 16, 2007), the plaintiffs commenced an action for personal injuries they sustained while passengers in a vehicle driven by defendant Mitrano. Defendant Lenander turned left in front of defendant Mitrano's vehicle as Mitrano's vehicle was proceeding through an intersection with the green light. Defendant Mitrano moved for summary judgment on the issue of negligence arguing that the conduct of the co- defendant, Lenander, was the sole proximate cause of the accident. The trial court granted Mitrano's motion and the Appellate Division affirmed.

In Princess v. Pohl, et al., (4th Dept., March 16, 2007), plaintiff brought suit for personal injuries sustained in a rear-end motor vehicle accident. At the time of the accident, the defendant was operating a car carrier that was blocking all three lanes of travel. As the plaintiff approached the carrier, she was able to stop and was then rear-ended. The owner/operator of the car carrier made a motion for summary judgment and the trial court determined that the negligence of the co-defendant who rear-ended the plaintiff was the sole proximate cause of the accident. The Appellate Division affirmed.

In Sontag v. Holiday Valley, Inc., (4th Dept., March 16, 2007), the plaintiff brought suit for injuries sustained while skiing at the defendant's ski resort. The Appellate Division affirmed the trial court's holding that the plaintiff had assumed the risk of his injury. The Court reasoned that the plaintiff was an experienced skier who had skied at the defendant's ski resort more than 100 times over a thirty-year period and was sufficiently aware of the inherent risks of downhill skiing.

Prepared by Michael M. Chelus