In Harris v. Niagara Falls Board of Education, (February 14, 2006), the Court of Appeals addressed the situation where a claimant sought to sue a municipality but had not filed a timely notice of claim as required by §50-e of the General Municipal Law. Claimants in that situation can move to extend the time for service under the law up to one year and ninety days. The claimant makes that application in a special proceeding, which itself requires the payment of a filing fee and the assignment of an index number. The claimant in Harris paid the appropriate filing fee and was assigned an index number and made a motion to extend the time to serve the municipality. Thereafter, the claimant commenced the action by filing the summons and complaint under the previously secured index number, without paying a new fee.

The Court of Appeals held that the filing of that summons and complaint constituted a separate action for which a new filing fee and index number was needed. The claimant in Harris relied on the old index number and its claim was dismissed.

The Fourth Department, in a 3-2 decision, held that the Supreme Court erred in granting plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law §240(1). In Andrews v. Ryan Homes, (4th Dept., March 17, 2006), the plaintiff was injured when she fell from a ladder while cleaning a newly constructed house. The defense presented evidence that, approximately thirty minutes before the accident, the plaintiff was warned not to climb the ladder as it was positioned and to wait for a fellow worker to assist in steadying the ladder. As a result, the defense raised an issue of fact as to whether the plaintiff was a recalcitrant worker.

In Jones v. Village of Dannemora, (3rd Dept., March 9, 2006), the plaintiff was injured while removing sludge from a treatment plant's lagoon prior to the installation of a new aeration system in that lagoon. The court's inquiry in determining whether Labor Law §240(1) applied was what type of work was the plaintiff performing at the time of his accident. The plaintiff's drudging work was not performed contemporaneously with the aeration system upgrade. Therefore, the plaintiff's work did not constitute "altering or repairing" within the definition of Labor Law §240(1). Since the plaintiff was not engaged in the enumerated activity at the time of the accident, his Labor Law §240(1) claim was dismissed.

In Hunt v. Kostarellis, (4th Dept., March 17, 2006), the Fourth Department held that the defendant established entitlement to summary judgment as a matter of law by submitting deposition testimony from a waitress that the eighty year old plaintiff tripped over his own foot while walking to a salad bar. The plaintiff's opposition consisted of the plaintiff's testimony that he tripped when his foot got caught when another patron moved his chair. The Fourth Department ruled that the plaintiff failed to raise an issue of fact of whether a dangerous condition existed at the defendant's restaurant and whether the defendant had actual or constructive notice of that condition.

In Baia v. Allright Parking, (4th Dept., March 17, 2006), the Fourth Department reversed a lower court's ruling that denied the defendant's motion for summary judgment. The plaintiff in Baia slipped and fell on snow in the defendant's parking lot. The defense submitted evidence that there was a storm in progress at the time of the plaintiff's fall. The court ruled "it is well settled that a landowner is not responsible for a failure to remove snow and ice until a reasonable time has elapsed after the cessation of the storm." The defense's submission of climatological records, which established that a massive amount of snow had fallen two days before the plaintiff's fall and for four additional days, was enough to meet its initial burden on the motion.

In Boorman v. Bowhers (4th Dept., March 17, 2006), the Fourth Department affirmed a lower court's denial of a plaintiff's motion for summary judgment on issues of negligence and proximate cause. The court ruled that the plaintiff had met its initial burden on the underlying motion by establishing the defendant's automobile crossed a center line and struck the plaintiff's vehicle head on. The defendant raised a triable issue of fact by presenting evidence that she was confronted with an unanticipated emergency situation when her vehicle suddenly slid out of control due to icy and snowy conditions on the roadway.

In Kushner v. Albany, (3rd Dept., March 9, 2006), the plaintiff fell off her bike when she ran over a pothole located on a City of Albany street. At trial, the City argued that the plaintiff had failed to comply with the City's prior written notice statute. The plaintiff contended, however, that prior written notice was not needed due to the City's affirmative negligence in creating the defect. At the close of plaintiff's proof, the defense moved for a directed verdict, which the Supreme Court granted. The Third Department, in affirming the Supreme Court's order, stated that an ineffectual pothole repair job which does not make the condition any worse is not an affirmative act of negligence.