In Allstate Insurance Company vs. Swanson, et al. (4th Dept., December 21, 2007), the plaintiff disclaimed coverage on a claim brought when its insured shot an arrow from a bow and struck an individual in the eye. As a result of the incident, the insured pleaded guilty to assault in the first degree. Allstate denied coverage based on its policy exclusion for intentional or criminal acts. The Trial Court granted Allstate's cross-motion for summary judgment declaring that it had no obligation to defend or indemnify the insured based on the exclusion and the Fourth Department affirmed. Thomas P. Kawalec of our office was successful in arguing and winning this appeal.

In Arnold vs. Barone Construction Corp., et al. (4th Dept., December 21, 2007), the plaintiff commenced an action for injuries sustained when he fell nine feet to the ground from a plank on an I-beam above the unfinished basement of a house under construction. The defendant moved for summary judgment seeking a dismissal of the plaintiff's Labor Law §§240(1) and 241(6) causes of action, as the plaintiff failed to use an available ladder. The Fourth Department held that the plaintiff's failure to use an available ladder was the sole proximate cause of his injuries. Thomas J. Speyer of our office was successful in arguing and winning this appeal.

In Barends vs. Louis P. Ciminelli Construction Company, Inc., et al. (4th Dept., December 21, 2007), the plaintiff brought an action for injuries suffered when she caught her foot in a hole in the faculty parking lot of the school for which she worked. Ciminelli, the construction manager, brought a motion for summary judgment dismissing the common law negligence cause of action arguing that it did not create the defective condition and that it lacked actual or constructive notice of the condition. The Trial Court denied Ciminelli's motion. The Fourth Department reversed, holding that Ciminelli did not have sufficient control over the property rendering it liable for the plaintiff's alleged injuries.

In Barnes vs. Estes, et al. (4th Dept., December 21, 2007), the plaintiff brought an action for damages as a result of a motor vehicle accident. The defendants made a motion for summary judgment on the "serious injury" threshold arguing that the plaintiff's injuries were caused by a pre-existing condition. The Trial Court granted the defendant's motion and the Fourth Department affirmed finding, pursuant to the affirmation of the defendant's examining physician, that the plaintiff's injuries were the result of congenital abnormalities as opposed to any acute injury.

In Clar vs. Synthes, USA, et al. (4th Dept., December 21, 2007), the plaintiff commenced a lawsuit for injuries sustained as a result of the fracture of a surgical screw installed in her right shoulder. The screw was manufactured by Synthes USA. The defendant brought a motion for summary judgment dismissing plaintiff's cause of action for failure to warn. The Trial Court denied same. In affirming the Trial Court's denial, the Fourth Department held that the defendant failed to meet its initial burden. It did not submit any evidence that it provided warnings to the plaintiff's treating physician of the possibility of fracture of the surgical screw.

In Darling vs. Scott, et al. (4th Dept., December 21, 2007), the plaintiff commenced a medical malpractice and wrongful death action individually and on behalf of her deceased husband, alleging that the defendants failed to diagnose and treat the decedent's cancer in a timely manner. Dr. Scott examined a lump on the decedent's neck and determined that it was harmless based upon its characteristics. Months later it was determined that the mass was cancerous and ultimately led to the decedent's death. The Trial Court denied summary judgment. The Fourth Department reversed. The plaintiff did not raise a question of fact in opposition to the defendant's entitlement to summary judgment. The plaintiff supported its opposition to the defendant's motion with mere conclusory allegations that were not corroborated by competent medical evidence.

In Garman vs. East Rochester School Dist., et al. (4th Dept., December 21, 2007), the plaintiff commenced an action for injuries she sustained while maneuvering through an obstacle course on her senior class field trip. The School District moved for summary judgment dismissing the complaint and the Trial Court granted the motion. The Fourth Department reversed, holding that a triable issue of fact existed as to whether the defendant provided proper supervision of the plaintiff's activities on the obstacle course. Although the plaintiff assumed the risk of injury, that did not relieve the defendants of their obligation to use reasonable care in safeguarding against a reasonably anticipated risk to the plaintiff.

In Lauricella vs. Friol, (4th Dept., December 21, 2007), the plaintiff commenced an action seeking damages for injuries he sustained when he fell into an open pit inside a building owned by the defendants. The defendants moved for summary judgment, arguing that the open pit was readily observable and the plaintiff assumed the risk of his injuries. The Trial Court's denial of this motion was upheld by the Fourth Department. The Appellate Court held that, although it may be relevant to the issue of the plaintiff's comparative negligence, the fact that the pit was readily observable did not negate the duty of the defendants to keep their premises reasonably safe.

In Manias vs. Golden Bear Golf Center, Inc., (4th Dept., December 21, 2007), the plaintiff commenced a lawsuit seeking damages for injuries sustained when he fell from the upper level of a driving range at an indoor golf facility. The plaintiff alleged that the safety net extending out from the upper level was improperly designed and constructed as it failed to provide support when he lost his balance and fell over the edge of the platform. The defendant moved for summary judgment. The Trial Court denied the motion. In affirming the Trial Court's denial, the Fourth Department rejected the defendant's contention that the plaintiff assumed the risk inherent in driving golf balls from the upper deck of the driving range. Further, the Court held that the defendant failed to establish that its netting was reasonably safe for its intended purpose.

Prepared by Michael M. Chelus