In Cohen vs. Memorial Sloan- Kettering Cancer Center, ---N.Y.S. 2d ----, 2008 WL 312646 (1st Dept., 2008) the plaintiff was provided a ladder which was neither too short nor subject to faulty construction, but when placed in the only possible position for the work required, its first rung was completely blocked and inaccessible. The First Department ruled that the owner and contractor violated §240(1) of the Labor Law even though the ladder provided was not physically defective. The Court found that the ladder was inappropriate for the plaintiff to safely ascend and descend given a certain obstruction in the room.

In Graham vs. Dunkley, ---N.Y.S.2d ----, 2008 WL 269527 (2nd Dept., 2008), the Appellate Division reversed the lower Court which originally held that the Transportation Equity Act of 2005 was unconstitutional. The Act intends to pre-empt all State statutes to the extent that they hold those owners in the business of renting or leasing motor vehicles vicariously liable for the negligence of drivers. In New York, the Act implicates Vehicle and Traffic Law §388. In overruling the lower Court, the Appellate Division noted that the Act aids in the regulation of the national market for leased and rented automobiles and that motor vehicles are "the quintessential instrumentalities of modern interstate commerce." The Court also found the Act constitutional as regulation of an economic "class of activities" which, taken in the aggregate, substantially affect interstate commerce.

Most municipalities have prior written notice requirements regarding defects in sidewalks and streets. Notice requirements have been held inapplicable where the municipality has affirmatively created the hazard or defect. In Yarborough vs. City of New York, ---N.E.2d ----2008 WL 320339 (2008), a pedestrian was injured when he stepped into a pothole on a New York City street. The plaintiff argued that prior written notice was not required as the City had affirmatively created the defect through negligent repair and patching of the pothole. In reversing the Appellate Division's denial of the City's motion for summary judgment, the Court of Appeals ruled that the mere "eventual emergence of a dangerous condition as a result of wear and tear and environmental factors," does not constitute an affirmative act of negligence that abrogates the need to comply with prior written notice requirements.

In Rhodes-Evans vs. 111 Chelsea, LLC, 44 A.D.3d 430, 843 N.Y.S.2d 237 (1st Dept., 2007), a field technician for a telecommunications company was allegedly injured when she slipped from her ladder as she was splicing fiber optic cable in a cable box located in the defendant's parking garage. The Appellate Division affirmed the lower Court's ruling that the injury producing activity does not fall within the ambit of Labor Law 240(1) as the plaintiff's work in splicing into a pre-existing cable did not constitute a "significant physical change" to the building or structure. Therefore, the plaintiff is not entitled to the protections of Labor Law §240(1).

In Foxworth vs. Jenkins, et al, ---N.Y.S.2d ---- 2008, WL 344211 (4th Dept., 2008), the plaintiff took a default judgment against the defendant Phillips, who rear-ended the plaintiff. The plaintiff effected service by way of "nail and mail" unaware of the fact that the defendant had moved from that address at least one month prior. At an inquest for damages the trial court granted a judgment in the amount of $200,000. Upon learning of the default judgment, the defendant moved to vacate it pursuant to CPLR 5015, which permits a court to relieve a defendant from a default judgment upon such terms as may be just. CPLR 5015(a)(1) states, in pertinent part, that a court may vacate a default judgment "if such motion is made within one year of service of a copy of a judgment or order with written notice of its entry upon the moving party . . .". CPLR 5015 does not explicitly require the demonstration of a meritorious defense.

Nevertheless and despite a timely motion to vacate, the trial court denied defendant's motion and the Appellate Division affirmed due to defendant's failure to assert a meritorious defense. With respect to CPLR 5015(a)(1), the Court noted that although a meritorious defense is not required, per se, the Appellate Division has consistently held that a defendant in default must assert a meritorious defense to support a motion pursuant to CPLR 5015 (a)(1). The defendant remained liable for a default judgment in the amount of $200,000.

In Lucido vs. Mancuso, ---N.Y.S.2d ----2008 WL 269522 (2nd Dept., 2008), the decedent's estate moved to amend a complaint to add a cause of action for wrongful death. In 1996, the decedent fell from a scaffold while working as a carpenter and timely commenced litigation in 1998. However, in 2003 as litigation was ongoing, the plaintiff died from a cocaine and heroin overdose. The decedent's widow moved to be substituted as the plaintiff, to lift the automatic stay due to her husband's death, and for leave to amend the complaint by adding a cause of action for wrongful death. The trial court granted the first two branches of the motion and denied the third without prejudice so the plaintiff could obtain proper proof which demonstrates the causal connection between the decedent's death and the decedent's fall from the scaffold. The Appellate Division reversed the lower court holding that the plaintiff's motion for leave to amend did not require medical evidence relating the decedent's death to the accident in question. In reversing the lower court's denial, the Appellate Division abandoned more than 50 years of legal precedent. In justifying the departure, the Appellate Division stated that "there is no reason wrongful death causes of action should be treated differently from any other motion for leave to amend a pleading under CPLR 3025(b)". The Court concluded that as long as the proposed amended complaint is neither "palpably insufficient" nor "patently devoid of merits" and the defendants did not establish that they were "surprised or prejudiced" a motion for leave to amend the complaint to add a cause of action for wrongful death should be freely granted.

In Beadleston vs. American Tissue Corp., 41 A.D.3d 1074, 839 N.Y.S.2d 283 (3rd Dept., 2007), a tractor-trailer driver was injured when he was struck by a falling waterlogged bail of waste paper on a loading dock. The defendants contended that Labor Law §200 cause of action should be dismissed because the plaintiff was not a construction worker, engaged in construction work or injured at a construction site. In affirming the lower Court's decision, the Appellate Division held that the statute is not limited to construction work or construction workers. Under Labor Law §200, a landowner has a duty to provide workers with a reasonably safe place to work. Further, the plaintiff did not have to show defendants controlled his work, but rather, as owners the plaintiff only needed to establish that they had actual or constructive notice of the dangerous condition.

In Edwards vs. Sultan Transp. Inc., ---N.Y.S.2d- ---2008 WL 257572 (2nd Dept., 2008), the plaintiff successfully appealed the lower Court's decision which granted defendant's motion for summary judgment. The Appellate Division ruled that the defendants failed to establish that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law §5102(d). The defendants' examining neurologist set forth range of motion findings concerning the plaintiffs' respective cervical and lumbar spines but failed to compare those findings to what is normal. Furthermore, the defendants did not adequately address the plaintiff's claims as set forth in their bill of particulars that they sustained a serious injury under the 90/180 day threshold.

Prepared by Nicholas L. Mineo