In Guishard v. General Security Ins. Co., (Ct. of Appls. 2007), the insured sought judgment declaring its insurer obligated to defend and indemnify it in an underlying personal injury action pursuant to a general liability insurance policy. In the underlying action, plaintiff alleged severe injuries sustained while riveting metal to a van owned by the insured for the purpose of converting it into a "Mr. Softee" ice cream truck. The general liability policy excluded coverage for bodily injury "arising out of the ownership, maintenance, use or entrustment to others of any...auto...owned or operated by or rented or loaned to any insured." The Court of Appeals affirmed the granting of the insured's motion for summary judgment obligating the insurer to defend and indemnify the insured. The Court stated that maintenance was equivalent to performance of work on an intrinsic part of the mechanism of a car, but, in the case at hand, riveting metal to a van in furtherance of its conversion to an ice cream truck was transforming the auto's function, which was distinct from maintenance and not excluded by the general liability insurance policy.

In English v. City of New York, et al., (2nd Dept., 2007), the plaintiff's decedent, a supervising engineer at Woodhole Hospital, accompanied a maintenance worker to investigate a missing fan belt in the heating and cooling system. While walking along a beam between two catwalks, plaintiff's decedent fell 30 feet to his death. The Appellate Division affirmed the granting of summary judgment to defendants dismissing claims asserted under Labor Law §240(1) and §241(6), noting that the work to be performed on the system was "routine maintenance" and did not constitute erection, demolition, repairing, or altering a building or structure. The decedent's investigation of a malfunctioning unit prior to the commencement of maintenance work did not fall into the protected activities of Labor Law §240(1). Further a claim under Labor Law §241(6) could not be sustained as the accident did not occur in connection with construction and the decedent was not working in a construction area.

Plaintiff, in Pasqua v. Handels-En Productiemaatschappij de Schouw, et al., (1st Dept., 2007), brought an action for personal injuries sustained in a slip and fall at a shopping center against the shopping center owner, tenants, and snow removal contractor. The Appellate Division reversed the granting of summary judgment on behalf of defendant owner and tenants. The Appellate Division stated that plaintiff's proof showed that the defendants may have had constructive notice of the alleged icy condition. There was evidence that the ice on which plaintiff slipped was formed by water that had dripped onto the sidewalk from an overhang. Further, the dripping was a longstanding condition on the premises which occurred often after rain or snowfall in violation of the State Uniform Fire Prevention & Building Code dealing with methods of storm water disposal.

In Bloom v. Lula Realty Corp., (1st Dept., 2007), a 71 year old plaintiff, tenant, brought an action for personal injuries sustained when she fell, breaking her wrist. The plaintiff fell while trying to close a gate that did not have a knob or handle. The Appellate Division held that the Supreme Court properly granted defendant's summary judgment motion dismissing plaintiff's complaint because plaintiff had failed to demonstrate that the absence of a knob or handle on the gate in anyway constituted a defect, violated a statute, or was inherently dangerous. It was undisputed that the gate had lacked a knob for 8 years, that the plaintiff was aware of the condition, and that the plaintiff had opened and closed the gate without incident on prior occasions.

The City of New York has in place an Administrative Code which requires owners of real property to maintain abutting sidewalks in a reasonably safe condition. In Vucetovic v. Epsom Downs, Inc., (1st Dept., 2007), plaintiff was injured when he stepped into a tree well near a sidewalk directly in front of a building owned by defendant. Plaintiff filed a lawsuit alleging that defendant property owner was negligent in failing to maintain sidewalks in a reasonably safe condition in violation of the Code. The Appellate Division affirmed the dismissal of the claim, noting that the section of the Administrative Code dealing with sidewalks limits its applicability to areas "intended for the use of pedestrians." The Appellate Division felt that neither trees nor tree wells were "intended for the use of pedestrians" and, therefore, were not part of the sidewalk that building owners must maintain under the Code.

The plaintiff, in Spierer v. Bloomingdales, (1st Dept., 2007), alleged as injuries multiple chemical sensitivity (MCS) caused by a two week exposure to a mattress and box springs manufactured by defendant Simmons and purchased from defendant Bloomingdales in 1984. The Appellate Division reversed the denial of Bloomingdale's summary judgment motion, stating that the reports of plaintiff's experts failed to support a scientific link between the chemicals in the mattress and the condition of MCS. There were reports from two of plaintiff's experts that could not demonstrate the bedding substantially caused the MCS injuries. The first report, the Clayton report, was inconclusive as to plaintiff's symptoms and stated that numerous compounds might have caused the symptoms, but that testing for all such compounds would be a "gargantuan task." The second expert report, the ASTB report, examined the bedding, but failed to find hydrochloric acid vapors or other substances that could have caused the plaintiff's injuries. The Appellate Division felt that the plaintiff's contention that the temporal relationship between purchasing the bedding and the alleged injuries, without further scientific proof, was not sufficient to defeat the summary judgment motion.

In McCulley v. Sandwick, (3rd Dept., 2007), plaintiff commenced an action for damages from personal injuries sustained in a motor vehicle accident that occurred when the plaintiff tried to make a left-hand turn at a green light and was broadsided by defendant who was traveling in the same direction as plaintiff. Following a trial on the issue of liability, the jury determined that defendant's negligence was not a substantial factor in causing the collision. The plaintiff moved to set aside the jury verdict. The Supreme Court denied the motion and the Appellate Division affirmed, noting that defendant testified that he saw the plaintiff start to make a right-hand turn and the next thing he knew, she was turning left and he broadsided the vehicle. In addition, a police officer testified that the plaintiff had told him at the accident scene that she accidentally started to turn right and then turned left, at which time she was hit by the other vehicle. The Appellate Division stated that in a light most favorable to the defendant, and in accordance with the jury deference in resolving credibility of witnesses, the evidence did not so preponderate in favor of the plaintiffs that the jury could not have reached such a verdict.

Prepared by Kristen B. Degnan