The plaintiff, a window cleaner in Broggy v. Rockefeller Group, Inc. (Court of Appeals, 2007), was injured when he fell off a desk he was using to clean windows. He sued the building owner, managers, lessors and lessees of the building under Labor Law §§200, 202, 240 and 241 (6). The Court of Appeals noted that though window cleaning is encompassed in the labor law sections relied upon by the plaintiff, he did not meet his burden of showing that an elevated risk existed or that defendants did not provide safety devices.

In Morris v. Pavarini Construction (Court of Appeals, 2007), the plaintiff was working on the construction of a new building when a concrete form fell on him. He sued the construction manager and the owner under Labor Law §241(6). The Court of Appeals held that in order for the plaintiff to recover against the defendants under §241(6), he had to show a violation of a specific regulatory requirement. The Court of Appeals found that the Appellate Division was premature in affirming the motion of the defendant for summary judgment. The Court of Appeals remanded the matter to special term for a hearing to determine whether the procedures and instrumentalities used at the jobsite fell within the definitions of mandates found within the regulations.

In Cooper v. Carmike Cinemas, Inc., CA 06- 03262 (4th Dept. 2007), the plaintiff stepped on a nail at a movie theater and alleged in his complaint that the defendant owner failed to remove debris from the theater. The plaintiff introduced circumstantial evidence that there was no maintenance or cleaning done at the theater. When the defendant's employees were deposed, they had no knowledge of cleaning the theater that day and provided no testimony evincing that maintence was performed. The Appellate Division affirmed denial of defendant's summary judgment motion because the defendant failed to meet its burden of establishing it did not create the dangerous condition. The defendant did not establish that it lacked actual or constructive notice of the dangerous condition and the defendant failed to prove that the nail had not been on the floor for a sufficient length of time to permit an employee to find and remedy the condition.

In Hart v. State of New York, (3rd Dept., August 2, 2007), the claimants were involved in a motor vehicle accident due to black ice on the roadway near an area where rocks were cut out of a rock formation. The trial court acknowledged that the supervisor received notice of icy conditions, including knowledge of a prior automobile accident due to the icy conditions. However, notice was given only 15 minutes prior to the claimants accident and there was inadequate time to remedy the condition. Furthermore, an inspection conducted a few hours earlier deemed that the roadway was not icy. Claimants appealed the trial court determination in favor of the State. The Appellate Division affirmed, holding that icy road conditions and the occurrence of an accident do not establish liability, unless it is also shown that the State failed to diligently remedy the dangerous conditions once it was provided with actual or constructive notice.

In Moons v. Wade Lupe Construction Company, Inc., (3rd Dept., August 2, 2007), the plaintiff, was injured when she twisted her ankle in a pothole allegedly on the defendant's driveway/parking lot. The jury rendered a verdict in favor of the defendant and plaintiff appealed. The Appellate Division affirmed, holding that the pothole was located within the Town's right-of-way. The Court held that owners of land abutting public property are not liable for keeping that public property in a safe condition merely by reason of the proximity of their property. This, even though the area of the defect may be used to gain access to the abutting owner's property. Thus, liability for the pothole in the right-of-way could only be imposed on the defendant if it was shown that said defendant created the pothole or that a statute or ordinance charged the defendant with maintenance of the right- of-way.

In Jenkins v. Miled Hacking Corp., (2nd Dept., 2007), the plaintiff was injured in an automobile accident and claimed she had sustained a serious injury within the meaning of Insurance Law §5102(d). The defendant moved for summary judgment and the trial court denied the motion. The Appellate Division held that the defendant failed to meet its burden in that the physicians' reports and evidence submitted by the defendant failed to adequately quantify the injuries so as to establish the absence of a significant limitation of motion that could be permanent in nature.

In Taino v. City of Yonkers, (2nd Dept., 2007), the plaintiff in this wrongful death action received a jury verdict over a million dollars against the City of Yonkers and City of Yonkers Police Department. The Appellate Division noted that a municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large rather than to any particular individual, absent a special relationship However, the Appellate Division held that the jury verdict should not be set aside based upon the proof presented. The decedent had a special relationship with defendants in that he justifiably relied upon the police department's representations that a patrol car was in route to protect him from his assailant.

Prepared by Carla J. Miller Montroy