In Jaramillo v. Weyerhaeuser Co., N.Y. Slip. Op. 02444 (Court of Appeals 2009), the Court of Appeals confirmed that the occasional seller of a used product could not be held liable under New York's Strict Products Liability Doctrine. The Court decided that, while there may be some imaginable future case in which facts justify imposition of strict products liability on the seller of used goods, "the onerous burden of strict liability is only imposed on certain sellers because of continuing relationships with manufacturers and a special responsibility to the public, which one has come to expect (these sellers) to stand behind their goods." The Court then reasoned that, as the used industrial equipment at issue was sold on an "as is, where is" basis, at irregularly scheduled times, it cannot be said that buyers expected the defendant to stand behind someone else's goods.

In Ferluckaj v. Goldman Sachs & Co., N.Y. Slip. Op. 02483 (Court of Appeals 2009), the Court of Appeals granted a lessee's motion for summary judgment in response to plaintiff's Labor Law §240(1) claim where a worker was injured after the effective date of the lease but before the lessee took occupancy of the building. The Court held that, in the instant matter, there was no evidence in the record indicating that the lessee defendant hired the plaintiff's employer to do the pre-occupancy cleaning and thus summary judgment was appropriate.

The Court of Appeals, in LMK Psychological Services, P.C. v. State Farm Mut. Auto. Ins. Co., N.Y. Slip. Op. 02481 (Court of Appeals 2009), confirmed that an insurance company who failed to pay or deny multiple bills within the requisite 30 days would have the attorneys' fees awarded against it based on the aggregate of all bills for each insured serviced by the plaintiffs' medical service providers. The plaintiffs had argued that the fees should be calculated on each bill submitted for each insured. The Court also decided that the 30-day tolling provision of New York State Insurance Law § 5106(a) would halt the accrual of interest for the first 30 days after denial of payment even where a timely disclaimer was not issued.

The Fourth Department, in R.B. Woodcraft Inc. v. Acadia Ins. Co., N.Y. Slip. Op. 02399 (Fourth Department, 2009), decided that the defendant insurance company would be responsible for payment for a destroyed pole barn which contained business items despite homeowner's insurance policy language excluding "other structures . . . used in whole or in part for business purposes." The Fourth Department reasoned that the phrase "used in whole or in part for business purposes" is ambiguous in the absence of any qualifying language and therefore must be construed in favor of the insureds.

The Fourth Department decided, in Shumway v. Kelley, N.Y. Slip. Op. 02409 (Fourth Department 2009), that although the plaintiff was injured while at work by a co-employee who collided with him, Workers' Compensation was not necessarily the plaintiff's exclusive remedy. The Court conceded that "it is well established that horseplay or frivolous activities, although involving intentional acts are natural diversions between co-employees which are compensable under the Workers' Compensation Law." However, evidence in defendant's own submissions were enough to establish questions of fact with regard to whether the collision was such a "natural diversion". Specifically the defendant submitted evidence that horseplay was not condoned by the employer and was not a common practice on the job; as well as deposition testimony that he approached plaintiff from behind without any warning, surprising plaintiff by colliding with him.

The Fourth Department, in Belvedere vs. Holiday Valley, Inc., N.Y. Slip Op. 02410 (Fourth Department, 2009), reinstated a complaint which the trial court had dismissed on a summary judgment motion based on the Doctrine of Primary Assumption of Risk. The Court re-affirmed that those engaging in sports or recreational activity consent to the commonly appreciated risks which arise out of the nature of the sport. However, the Court found that the plaintiff raised a triable issue of fact precluding summary judgment by submitting an expert's affidavit asserting that the plaintiff collided with a snowmobile driven negligently by a ski resort employee - not a commonly appreciated risk.

In Kiotek v. Chaba, N.Y. Slip Op. 02024 (Fourth Department 2009), the Fourth Department increased to $225,000.000 the amount awarded to a female plaintiff who suffered an annular tear and herniated discs at L4-5 and L5-S1. Initially, the jury awarded $35,000.00 for past pain and suffering and $40,000.00 for future pain and suffering. The Fourth Department, Appellate Division, increased these amounts to $75,000.00 for past pain and suffering, and $150,000.00 for future pain and suffering, stating that these were the minimum amounts a jury could have awarded to the plaintiff as a matter of law.

Prepared by Tara S. Evans