In Case v. Lincoln Moving & Storage, plaintiff Anna Case was injured when a bookcase at the office where she was employed fell over and struck her. The plaintiff filed suit against the defendant moving company, the latter having contracted with the plaintiff's employer to move office furniture, including the bookcase, to another building. The plaintiff's lawsuit was dismissed as it was found that the defendant moving company, having contracted with the plaintiff's employer, not the plaintiff herself, owed no duty to the plaintiff herself.

The recent trend in New York has been to slightly broaden the "sole proximate cause" exception to strict liability under Labor Law §240. However, Baker v. Essex Homes of WNY, Inc. may signal an end to this trend. There, the plaintiff fell while standing on bundles of shingles as he repaired a roof. He fell when the bundles, held together by roofing spikes, broke apart underneath his feet. The Fourth Department rejected the defendant's argument that adequate safety devices were available elsewhere at the worksite for the plaintiff's use and that the plaintiff's conduct was the sole proximate cause of his injuries. The Court noted that the plaintiff worked under the supervision of two forepersons, neither of whom required or suggested that the plaintiff install appropriate equipment (roof jacks) before beginning his repairs.

Kohler v. Midtown Athletic Club involved a personal injury action arising out of a trip and fall over the defendant's torn tennis net. The plaintiff's attorney had written to the defendant athletic club asking that the net be preserved as possible evidence. Both plaintiff's counsel and the defendant's insurer photographed the net. Thereafter, the net was disposed of by the defendant. The plaintiff moved for partial summary judgment based on the spoliation of evidence. The trial court granted the motion and found liability against the defendant athletic club. The Appellate Division, however, modified the order, agreeing that spoliation had occurred but reducing the sanction to an adverse inference charge at the time of trial.

Dann v. Yeh, like so many motor vehicle accident cases, involved a motion for summary judgment based on the plaintiff's failure to meet the "serious injury" threshold under New York State Insurance Law §5102(d). It was found that the defendants met their burden by submitting the affirmed report of a chiropractor who had examined the plaintiff.

The plaintiff attempted to defeat the motion with an affirmation by the plaintiff's treating neurologist and another by the plaintiff's treating physician. These were found to be insufficient as they did not set forth the tests conducted to support the conclusions and were based on review of unsworn MRI reports. The affirming physicians did not review the actual MRI films. It is important to note that the court refused to consider not only the MRI reports which were not in admissible form, but also the physicians' conclusions based upon same.

Lincourt v. Village of Winfield involved a slip and fall accident on village property. The plaintiff there slipped on snow and ice. The village did have a prior written notice statute and it was found that the defendant met its burden on the motion for summary judgment by establishing that they had received no prior written notice. As the plaintiff could not establish that the municipality created the defect or that a "special use" situation applied, summary judgment was granted.

In Muller v. Spencerport Central School District, the infant plaintiff, Cynthia Muller, was struck by a discus while at track and field practice. The plaintiff brought suit against the school district and the child who threw the discus. A motion for summary judgment was brought based on the theory of primary assumption of risk. The court held that while the co-participant was entitled to summary judgment based on this doctrine, the school district was not. The court reasoned that the primary assumption of risk doctrine does not apply to allegations of a failure to supervise.

Guy's Lumber and Home Center, Inc. v. Pennsylvania Lumbermens Mutual Insurance Company involved the insured lumberyard bringing suit against the insurer. During the pendency of the policy, a building on the lumberyard property collapsed due to a snowstorm. The Appellate Division found that the express terms of the policy provided that the insurer did not insure the particular building at issue at the time of the loss. The Fourth Department held that, "plaintiff is charged with conclusive presumptive knowledge of the terms and limits of the policy prior to the loss and took no action to close the gap in coverage."

In Bozek v. Derkatz, the plaintiff brought a medical malpractice action against the defendants. During initial discovery, the defendants sought authorizations to obtain medical records from several providers who treated the plaintiff for injuries and conditions unrelated to the injuries allegedly caused by the incident at issue. The defendants' argument was that they were entitled to all such records as there was a claim for "loss of enjoyment of life". Judge Caruso, the trial court judge in Niagara County, agreed with the defendants, holding that the plaintiff's prior condition/injuries were relevant insomuch as they might affect on damages sought for "loss of enjoyment of life". The Fourth Department reversed Judge Caruso however requiring the plaintiff to provide authorizations only for records related to any physical or mental condition "affirmatively placed in controversy" by the plaintiff. This may mean that authorizations for medical records involving only the same anatomical parts will be available in the future.

Howard v. Codick and Gianna's Gourmet Foods, LLC involved an issue of whether the defendant driver, Codick, had permission from the defendant vehicle owner, Gianna's, to operate a certain motor vehicle. The plaintiff was injured in a motor vehicle accident with the vehicle in question, operated by Codick. Codick was never served with the lawsuit and neither party was able to locate him. The owners of Gianna's testified that Mr. Codick did not have permission to use the vehicle. The trial court judge, J.S.C. Burns, granted summary judgment in favor of defendant Gianna's based on the lack of permissive use. In response, the plaintiff only claimed to have overheard Codick make a phone call to his boss after the accident. Even though the plaintiff did not overhear anything in the conversation related to permissive use, the Appellate Division reversed Judge Burns' ruling and reinstated the complaint finding that a question of fact existed because the defendant's testimony, though not contradicted, was "arguably suspect".

Prepared by: Scott R. Orndoff, Esq.