In Sobotka v. Zimmerman, 2008 N.Y. Slip Op. 01224 (4th Dept. 2008), the plaintiff commenced action after she fell into an uncapped drain pipe on the defendant Zimmerman's property. The co-defendant, Town of Wheatfield Highway Department, maintained these particular drain pipes. Although the Highway Department conceded that it was responsible for the repair of the uncovered drain pipe it nevertheless moved for summary judgment dismissing the plaintiff's claims on the grounds that it did not have prior written notice of the defective drain pipe.

Pursuant to the applicable section of the code of the Town of Wheatfield, prior written notice of an alleged defect to "any highway, bridge, street, sidewalk, crosswalk or culvert is required to commence a civil action". The Fourth Department denied the Town's motion and held that a drain pipe does not constitute a "street, highway, bridge, culvert, sidewalk or crosswalk" and thus is not encompassed by the prior written notice law.

In Hertel v. Hueber-Breuer Const. Co., 850 N.Y.S. 2d. 806 (4th Dept. 2008), the plaintiff commenced a Labor Law action as a result of a slip and fall on a patch of ice which was situated in an unenclosed area between two buildings under construction. At the time of the fall, the plaintiff was unrolling a blanket to protect a concrete slab from overnight snow. The plaintiff's Labor Law § 241(6) cause of action was based on the defendant's alleged violation of 12 NYCRR 23-1.7(d) which provides that "employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition". The Fourth Department dismissed the plaintiff's complaint and held the regulation was inapplicable since the plaintiff did not slip and fall on an "elevated working surface". The Fourth Department further held that the regulation was also inapplicable since the area in which the plaintiff fell was a "common area" and not a passageway.

In Dawley v. McCumber, 850 N.Y.S. 2d 807 (4th Dept. 2008), the plaintiff commenced an action following a motor vehicle accident which killed her husband. The vehicle driven by the decedent collided with a truck driven by defendant Decker after that truck collided with a vehicle driven by co-defendant McCumber. The defendant Decker moved for summary judgment and submitted deposition testimony which established that the co-defendant McCumber's vehicle crossed over into his lane seconds prior to the collision. The Fourth Department held that the defendant Decker was faced with an emergency situation which was "sudden and unforeseen".

The Fourth Department still denied the defendant's motion for summary judgment since the plaintiff raised "a legitimate question of fact on the issue of reasonableness of defendant Decker's conduct in that particular circumstance". Specifically, the plaintiff submitted deposition testimony which established that the co-defendant McCumber's vehicle was approximately 1 foot over the center line and maintained that position for a period of 10-20 seconds before colliding with Decker's truck. The Fourth Department ruled that the plaintiff thereby raised an issue of fact whether Decker reacted reasonably when faced with an emergency situation.

In Ramos v. Howard Industries Inc., 2008 N.Y. Slip Op. 02081 (2008), the plaintiff sustained personal injuries when a transformer designed and manufactured by the defendant allegedly exploded. As a result of the accident, the plaintiff commenced the products liability action alleging that the transformer was defectively designed and manufactured. Following discovery, the defendant moved for summary judgment and offered an affidavit of an expert engineer who concluded that it was "virtually impossible for a transformer with an internal fault to leave the defendant's plant". The defense expert also posited other possible causes of the explosion unrelated to the defendant's actions.

The Court of Appeals held that, based on the expert affidavit, the defendant established its prima facie entitlement to judgment as a matter of law. The Court further stated that the plaintiff failed to present evidence excluding all other causes for the transformer's malfunction not attributable to the defendant such that a reasonable jury could find that the transformer was defective in the absence of evidence of a specific defect.

In Coston v. McGray, 2008 N.Y. Slip Op. 01885 (3rd Dept. 2008), the plaintiff commenced a personal injury action arising out of two motor vehicle accidents in November 2002 and February 2003. The defendant moved for summary judgment pursuant to Insurance Law § 5102(d). In support of its motion, the defendant submitted the report of its independent medical examiner which detailed the plaintiff's significant history of prior injuries. In opposition to the defendant's motion, the plaintiff relied solely upon his physician's affirmation. The physician's affirmation made no reference to the plaintiff's significant pre- existing medical history which included a work place injury, gun shot wound and a prior motor vehicle accident. The Court held that these numerous pre- existing incidents constituted contributory factors which interrupted the chain of causation between the accident and claimed injury.

In the Matter of the Arbitration between St. Paul Traveler's Insurance Company and Kreibich- D'Angelo, 2008 N.Y. Slip Op. 01673 (3rd Dept. 2008), the respondent Kreibich-D'Angelo was allegedly injured in a rear end collision. Jonathan Damphier, a driver of one of the vehicles, contacted his insurer, Progressive Northeastern Insurance Company, to inform it of the accident. On January 8, 2005, Damphier's mother was served with a summons and complaint commenced by Kreibich- D'Angelo against her son and other co-defendants. Four months later in April 2005, Progressive was notified of that action by Kreibich-D'Angelo's counsel.

Between April and May 2005, Progressive made several unsuccessful efforts to contact Mr. Damphier, ultimately disclaiming coverage in June 2005. Under the terms of his policy, Mr. Damphier was under an obligation to provide Progressive with prompt notice of this action and cooperate with it in any investigation. The Third Department held that Damphier's inaction could be considered a failure to cooperate, however, did not meet the heavy burden set forth in Thrasher v. United States Liability Ins. Co., 19 N.Y.2d 159 (1967). Under Thrasher, before Progressive could disclaim coverage it was required to demonstrate (1) that it acted diligently in seeking to bring about the insured's cooperation, (2) that the efforts employed by the insurer were reasonably calculated to obtain the insurer's cooperation and (3) that the insured exhibited "willful and avowed obstruction". The Third Department held that there was no evidence indicating that Mr. Damphier knew that Progressive was seeking his cooperation and that he willfully refused to cooperate. As such, Progressive's disclaimer was invalid.

In the Matter of the Arbitration between Erie Insurance Company and Tracy Calandra (4th Dept. 2008), Erie Insurance sought determination that it did not owe any uninsured motorist benefits to the respondent patrol officer who was injured while responding to a call in her patrol vehicle. During her response, the respondent lost control of her patrol vehicle while attempting to avoid a collision with an unidentified vehicle. It was undisputed that the unidentified vehicle did not make contact with the respondent's patrol vehicle. Erie Insurance denied coverage based on the lack of physical contact with the unidentified vehicle.

Although the respondent concedes that the insurance policy requires "physical contact" she nevertheless sought to expand the meaning of that term to include the above referenced circumstances. The Court dismissed the respondent's argument and held that "physical contact occurs within the meaning of Insurance Law section 5217 when the accident originates in collision with an unidentified vehicle or an integral part of an unidentified vehicle".

In Ferington v. Dudkowski, (4th Dept. 2008) the plaintiff commenced an action seeking damages after she fell while descending the front stairs to the defendant's home. The Fourth Department held that the defendant met his burden with respect to his lack of constructive notice by establishing that the defective condition was not "visible and apparent" and did not exist for a sufficient length of time prior to the accident". In opposition to the motion, the plaintiff submitted an affidavit of an architect which stated that the middle step was "one third of an inch out of level". The Fourth Department held that such a minor defect would not be "visible and apparent" upon reasonable inspection and dismissed the plaintiff's complaint.

Prepared by Kevin E. Loftus, Jr., Esq.