In Sirface v. County of Erie (4th Dept., October 3, 2008), the plaintiff was injured when he drove his all terrain vehicle into a cable strung between two posts at an entrance way to a park owned and operated by the County. At the time of the accident, the park was closed and there were no lights in the parking lot outside the entrance way. The County moved for summary judgment, arguing that it did not owe a duty to illuminate the property at all hours. The Trial Court denied the motion and the Fourth Department affirmed, holding that a land owner with knowledge of the dangerous condition that could be alleviated by illumination may owe a duty to provide adequate lighting.

The case of Henderson v. New York Central Mutual Fire Insurance Company (4th Dept., November 14, 2008), was a declaratory judgment action based on an underlying action commenced by plaintiff Henderson. Plaintiff Henderson was injured when he was struck by a driver opening the driver's side door of her vehicle. New York Central Mutual ("NYCM") disclaimed coverage to the insured driver who opened the door, arguing that the conduct of the driver did not fall within the meaning of an "automobile accident" in its policy. The Trial Court granted NYCM's motion for summary judgment declaring that it had no duty to defend or indemnify the plaintiff. The Fourth Department reversed, holding that the act of opening a vehicle door constituted "use and operation" of a vehicle pursuant to the Vehicle and Traffic Law and therefore suggested a reasonable possibility of coverage. This reasonable possibility invoked NYCM's duty to defend the plaintiff in the underlying action.

In Nationwide Mutual Insurance Company v. Posa (4th Dept., November 14, 2008), the carrier commenced a declaratory judgment as a result of an underlying action where the plaintiff sought damages for injuries sustained when her vehicle collided with a pick-up truck owned and operated by defendant Posa, a Nationwide insured. It was undisputed that defendant Posa left the scene of the accident without providing any insurance information to the other driver and then submitted a claim to his carrier stating that he had damaged his pick-up truck by driving into it with his garden tractor. Posa subsequently pleaded guilty to leaving the scene of the accident. When the carrier learned of Posa's admission, it disclaimed coverage based on his failure to cooperate and his fraudulent misrepresentation to the carrier regarding the accident. The Trial Court denied in part the carrier's motion for summary judgment seeking a declaration that it had no duty to defend or indemnify Posa in the underlying action. The Fourth Department reversed this denial holding that Posa's failure to make fair and truthful disclosures in reporting the accident constitute a breach of the cooperation clause and the fraud and misrepresentation clause in the policy.

In Walter v. United Parcel Service v. Larry Lawn Service, Inc. (4th Dept., November 14, 2008), the plaintiff was injured when he slipped and fell on snow and ice in the parking lot of property owned by UPS. UPS moved for summary judgment contending it was not liable because there was a storm in progress and the Trial Court denied the motion. The Fourth Department affirmed holding that since copies of the National Climatic Data Center records upon which the meteorologist based the conclusions contained in his affidavit were not attached, the affidavit had no probative value.

In Johnson v. Dow (4th Dept., November 21, 2008), the plaintiff commenced an action seeking damages for injuries sustained when her vehicle was rear-ended at a stopped red light. Defendant moved for summary judgment dismissing the complaint arguing that the plaintiff failed to properly specify in her bill of particulars the particular category of "serious injury" that she allegedly sustained. The Trial Court denied the motion for summary judgment and the Fourth Department affirmed stating that the drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with the discovery demands was willful or contumacious. The Court held that the proper remedy for the plaintiff's failure to serve a properly detailed bill of particulars was a motion to compel and the defendant never made such a motion.

In Rile v. City of Syracuse (4th Dept., November 21, 2008), the plaintiff brought an action seeking damages for injuries she sustained when she slipped and fell on a sidewalk located in the City of Syracuse. The plaintiff alleged she provided actual notice of the defective condition of the sidewalk to the defendant through its telephone hotline. The City moved for summary judgment arguing that the plaintiff failed to provide prior written notice of the defective condition. The Trial Court granted the City's motion and the Fourth Department affirmed holding that notice provided through the defendant's telephone hotline did not obviate the necessity for prior written notice pursuant to the City's charter.

In Rodriguez v. Seven Seventeen H.B. Buffalo Corporation v. Capital Concrete Cutting, Inc. (4th Dept., November 21, 2008), the plaintiff commenced a Labor Law action seeking damages for injuries he sustained while performing demolition work at the Adam's Mark Hotel. While working, the plaintiff slipped and fell on exposed rebar. The defendant/third-party plaintiff commenced an action against Capital Concrete for contractual indemnification. Capital Concrete submitted evidence that the contract between the parties was not executed until after the plaintiff's accident and there were no provisions in the contract calling for retroactivity. As the contract that provided for contractual indemnification was not in effect at the time of the plaintiff's accident and there was no indication that the parties intended to or agreed to make the contract retroactive to the date of the plaintiff's accident, the Fourth Department affirmed the Trial Court's granting of Capital Concrete's motion for summary judgment and dismissal of the third-party complaint.

Prepared by: Michael M. Chelus