In Briggs Avenue, LLC v. Insurance Corporation of Hanover, 11 N.Y.3d 377 (2008), the insured failed to update its address it had listed with the Secretary of State. The plaintiff in the underlying action served the insured with a summons and complaint at its old address through the Secretary of State. The insured did not receive the summons and complaint and never knew the lawsuit existed. Approximately a year later, the insured was served with a motion for default judgment. The insured then gave notice to its liability insurer, Hanover, who disclaimed coverage based upon late notice. The Court of Appeals upheld Hanover's disclaimer and ruled that the insured failed to comply with the condition of its policy requiring it to give notice of a lawsuit "as soon as practical".

In Continental Casualty Company v. Stradford, 11 N.Y.3d 443 (2008), the insurer, Continental Casualty, disclaimed coverage based on the insured's "non-cooperation". There was no dispute between the parties regarding the validity of Continental's disclaimer. The only issue taken up by the Court was whether that disclaimer was "timely". The Court held that even if an insurer possesses a valid basis to disclaim for non-cooperation, it must still issue its disclaimer within a reasonable time. The Court further held that the issue of "timeliness" almost "always presents a factual question" and denied Continental's motion for summary judgment.

In Snyder v. Gnall, 2008 N.Y. Slip Op. 10096 (3rd Dept., 2008), the Third Department granted the defendant's motion for summary judgment and dismissed the plaintiff's action under Labor Law §§ 200, 240(1) and 241(6). The Court's ruling was based on the Labor Law exemption which holds, "Owners of one- and two-family dwellings who contract for but do not direct or control the work" cannot be held liable under Labor Law §§ 240(1) and 241(6). The Court held that while the defendant was involved in many aspects of this project, his participation never rose to the level of direction or supervision.

In Auchampaugh v. Syracuse University, 2008 N.Y. Slip Op. 10097 (3rd Dept., 2008), the plaintiff was injured while working a platform when he stepped backward and tripped over the trapdoor which he had left open. As a result of his trip, the plaintiff fell and struck his left elbow on the platform and his head and shoulders went into the open hatchway. The Appellate Division dismissed the plaintiff's complaint in its entirety and held that the plaintiff did not fall from a height. The Court's ruling was based primarily on the plaintiff's own testimony which established that he never fell through the opening of the trapdoor.

In Ellis v. Emerson, 2008 N.Y. Slip Op. 10312 (4th Dept., 2008), the Fourth Department granted the defendant's motion to set aside the verdict in part with respect to the jury's award of damages for future medical expenses. The Fourth Department held that the plaintiffs failed to establish future medical expenses with the "requisite reasonable certainty". Unless the plaintiffs stipulated to a court-determined amount for future medical expenses, a new trial on damages would be scheduled.

In Martinez v. Wascom, 2008 N.Y. Slip Op. 10293 (4th Dept., 2008), a plaintiff was injured after he was struck by a vehicle while riding a motorized scooter. Following a bifurcated trial on liability, the jury found that the defendant was negligent but that his negligence was not a proximate cause of the accident. The Fourth Department in a 3-2 decision held that such a verdict was inconsistent and could not have been reached upon any fair interpretation of the evidence.

In Christie v. Coady, 2008 N.Y. Slip Op. 10276 (4th Dept., 2008), the lower court granted the defendant's motion for summary judgment and dismissed the plaintiff's complaint holding that the plaintiff did not sustain a serious injury under Insurance Law §5102. Following that decision, the plaintiff underwent two surgical procedures for her lumbar injuries. The plaintiff at the lower court renewed her opposition to the defendant's motion and submitted an affidavit of her physician. Based upon her two surgeries, the Fourth Department reversed the lower court's affirmation of its earlier decision and reinstated the plaintiff's complaint.

In Dorr v. Farnham, 2008 N.Y. Slip Op. 10285 (4th Dept., 2008), the decedent's estate commenced action as a result of motor vehicle accident which occurred at an intersection. Discovery established decedent, who had a stop sign, failed to yield the right of way. The Fourth Department overturned the lower court's motion which granted summary judgment for the defendant. The Fourth Department held that the defense failed to establish that the defendant driver used the requisite "reasonable care when proceeding into the intersection". As a result, the defendant failed to meet his initial burden on the motion by failing to establish that the sole proximate cause of the accident was the plaintiff decedent's failure to yield the right of way.

In Phipps v. Michalak, 2008 N.Y. Slip Op. 10261 (4th Dept., 2008), the plaintiff commenced action for injuries he sustained when the driver of the vehicle in which he was a passenger lost control on the roadway in the County of Allegany. According to the record, the vehicle which the plaintiff occupied rolled over on the passenger side and struck a driveway culvert. The Supreme Court granted the County's motion for summary judgment. The Fourth Department reversed and held that there was an issue of fact with respect to the County's alleged negligence in failing to maintain the roadway in a reasonably safe condition.

In Dietzen v. Aldi, Inc., 2008 N.Y. Slip Op. 10423 (4th Dept., 2008), the plaintiff commenced an action after she tripped over a wooden pallet in the defendant's store. The defendant moved to dismiss the plaintiff's complaint based upon inconsistencies between the plaintiff's deposition and her affidavits offered in opposition to the motion. The Fourth Department held that even though there were some inconsistencies with the plaintiff's story, there were at least credibility issues present which needed to be resolved at trial. Issues of credibility are for a jury to decide.

Prepared by Kevin E. Loftus