In Gilbert v. Evangelical Lutheran Church in America, (4th Dept., 2007), the plaintiff sought damages for injuries she sustained when she slipped and fell on black ice in a parking lot owned by the defendant church. The plaintiff contended only that the church had constructive notice of the condition and did not allege that the church created or had actual notice of the black ice. The Appellate Division ruled the Supreme Court erred in denying defendant's motion for summary judgment where the record indicates the plaintiff was in the church approximately an hour and a half and the condition was not present when she exited her vehicle. Further, evidence indicated that water dripping from the plaintiff's own car was the likely cause of the icy condition. The Court ruled therefore, that the church did not have constructive notice of the dangerous condition where the condition had existed for only, at most, an hour and a half.

In Capasso v. Kleen All of America, Inc., (4th Dept., 2007), plaintiff construction worker fell from scaffolding in an elevator and lacerated his arm. The plaintiff moved for summary judgment under a Labor Law 240(2) claim on the grounds that the scaffold was 50 feet from the ground and there were no safety rails as required by law. The statute provides that scaffolds "more than 20 feet from the ground to floor" must be equipped with safety rails. The Appellate Division overturned the lower court's granting of plaintiff's motion holding that while the scaffold was over 50 feet above the floor of the elevator shaft, it was only 6 or 7 feet from the floor of the elevator car upon which it rested and in which the plaintiff was working. This created an issue of fact thereby precluding the court form granting plaintiff's motion for summary judgment.

In Wilson v. Niagara University, (4th Dept., 2007), a laborer engaged in mold remediation injured his back when a five-gallon bucket he was standing on overturned. At the time, the laborer and his coworkers were using the bucket as a step to gain access to a crawlspace. The defendant moved for summary judgment as to the plaintiff's Labor Law 240 (1) claim contending that plaintiff's fall was not the type of elevation-related risk for which this statute provides protection. The Appellate Division disagreed, affirming the lower court's denial of defendant's motion and holding that the bucket from which the plaintiff fell was serving as the functional equivalent of a scaffold or ladder.

In National Grange Mutual Insurance Co. v. T.C. Concrete Construction, Inc., (4th Dept., 2007), plaintiff commenced an action seeking a declaration that it was not obligated to indemnify the insured defendants where the insured failed to provide timely notice of the accident, loss or claim as required by the insurance policy. The insured counterclaimed seeking indemnification for attorney's fees incurred in defending the underlying action as well as the immediate coverage action. The Appellate Division affirmed the decision of the lower court holding that the plaintiff impliedly conceded coverage of the defendant when it participated in a binding arbitration and had thus waived its right to disclaim coverage. The court held the plaintiff was responsible for all defense costs, including the defense of the immediate action because "an insurer's responsibility to defend reaches the defense of any actions arising out of the occurrence," including those against an insurer seeking to avoid coverage.

In Green v. Pamela Sivret, (4th Dept., 2007), the defendant, while following too closely in stop and go traffic, ran her car into the stopped car in front of her. The collision resulted in injuries to the plaintiff child, a passenger in the stopped car. The plaintiff was granted summary judgment and met her burden by showing that her stopped car was rear-ended by the defendant. The Appellate Division affirmed the lower court's holding and granted plaintiff's motion where the plaintiff established a prima facie case and defendant failed to submit a "nonnegligent explanation for the collision." Indeed, defendant's only excuse for the accident was that she was looking out her passenger side window and did not see the stopped car ahead of her.

In Schragel v. Juszczyk, (4th Dept., 2007), plaintiff commenced an action seeking compensatory and punitive damages for injuries she sustained when her vehicle was struck by the defendant's vehicle. The lower court initially dismissed the plaintiff's claims for punitive damages holding that the plaintiff presented no triable issue as to whether the defendant's conduct was wanton and reckless. The Appellate Division reversed this dismissal finding that the plaintiff had indeed raised a triable issue by presenting evidence as to the level of defendant's intoxication while driving. Among the evidence presented by the plaintiff was the .026 BAC level of the defendant, the fact that he failed numerous field sobriety tests performed at the scene and the defendant's testimony that he had consumed four 22- ounce beers and five tequila shots prior to driving. The Appellate Division held that this level of intoxication and his "utter disregard" for the "rights and safety of others" raised an issue of fact whether an award of punitive damages was warranted.

In In re Mays-Carr, (4th Dept., 2007), plaintiff brought an action seeking to set aside an arbitration award, as well as a new hearing before a different arbitrator on the grounds that the arbitrator had exceeded his power. In the underlying arbitration, the arbitrator determined petitioner was not entitled to an award for economic loss in excess of her basic economic loss. The Appellate Division rejected petitioner's argument and affirmed the arbitrator's decision not to award economic damages in excess of basic economic loss where petitioner was able to work and her bill of particulars stated "[a]ll lost wages were reimbursed." The Court upheld established New York precedents in holding that arbitrator's determination will not be overturned where there is a rational basis for his decision.

Prepared by Patrick D. Slade