In James v. Steinmiller, _____ N.Y.S.2d ______, 2009 WL 1163882 (4th Dept. 2009), the plaintiff commenced an action seeking damages for injuries she sustained when she fell on a substance on the defendant's property. The defendant moved for summary judgment arguing that he lacked constructive notice because the plaintiff could not establish how long the substance was in place on the defendant's property nor could she establish the identity of the substance. The Fourth Department upheld the trial court's denial of the defendant's motion because the defendant failed to meet his initial burden that the substance had not been on his property "for a sufficient length of time to permit him to discover and remedy the condition." Id., citing Mancini v. Quality Mkts., 256 A.D.2d 1177, 684 N.Y.S.2d 391 (4th Dept. 1988).

In Herod v. Mele, _____ N.Y.S.2d ______, 2009 WL 1163932 (4th Dept. 2009), the plaintiff sued Orleans County and a Sheriff's Deputy for injuries sustained when she was struck by a police vehicle that was responding to an emergency call. The Fourth Department ruled that where the vehicle was enroute to an emergency operation, it was entitled to the protections of Vehicle & Traffic Law §1104(e) and should be held to the reckless disregard standard of care. The court further found that there was no evidence of reckless disregard, even where the defendant was operating his vehicle on wet roads at speeds exceeding the posted speed limit, because he was "duty-bound to use all reasonable means to arrive at the scene as soon as possible."

In Leifer v. Pilgreen Corporation, _____ N.Y.S.2d _____, 2009 WL 350723 (2nd Dept. 2009), the plaintiff moved for a default judgment after the defendant failed to timely serve its answer and failed to seek an additional extension of time once the first expired. The court ruled that the defendant did not successfully oppose the motion because it did not demonstrate a justifiable excuse for its default and the existence of a meritorious defense. In an attempt to demonstrate a reasonable excuse for the delay, the defendant argued that it failed to answer because of its insurance carrier's long delay in defending the action. The court ruled that the insurance carrier's delay did not constitute a justifiable excuse for the defendant's default and granted the plaintiff a default judgment.

In Bhatt v. Nationwide Mutual Ins. Co., 877 N.Y.S.2d 562, 2009 N.Y. Slip Op. 03301 (4th Dept. 2009), the plaintiff provided her SUM carrier prompt notice of a motor vehicle accident and of her subsequent claim for no-fault benefits. Nearly three years after the accident, the plaintiff provided notice to her SUM carrier of her claim under the SUM endorsement. The defendant SUM carrier disclaimed coverage on the ground that the plaintiff had failed to provide timely notice of the SUM claim. The Fourth Department held that where an insured previously provided timely notice of an accident, the carrier must establish that it was prejudiced by late notice of the SUM claim before it may properly disclaim coverage. The court held that the defendant failed to establish that it was prejudiced by the plaintiff's delay in providing notice of the SUM claim and upheld the trial court's denial of the defendant's summary judgment motion.

The Fourth Department recently overturned a jury verdict on the issue of liability in Bailey v. Daly, 876 N.Y.S.2d 805, 2009 N.Y. Slip Op. 03217 (4th Dept. 2009). This matter arose from a slip and fall accident that occurred on a walkway at the defendant's residence. The evidence presented at trial established that the subject walkway had not been completely cleared of snow and ice and patches of ice remained. Following the completion of trial, the jury found that the defendants were negligent, but that their negligence was not a substantial factor in causing the plaintiff's injuries. The Fourth Department reversed the Supreme Court's order denying the plaintiff's motion to set aside the verdict and granted a new trial on the issue of liability. The Fourth Department held that given the facts of the case, the issues of negligence and proximate cause were "so inextricably interwoven" that it was logically impossible for a jury to find negligence without also finding proximate cause.

In Myers v. MacCrea, 61 A.D.3d 1385, 876 N.Y.S.2d 806 (4th Dept., 2009), the plaintiff sued to recover for injuries sustained when one of the defendants' dogs ran into the road and collided with his bicycle. The defendants moved for summary judgment arguing that they had no constructive notice that their dog had a propensity to interfere with traffic on the road. The plaintiff opposed this motion, arguing a question of fact exists where the defendants' dogs were allowed to run freely on a 100- acre farm. The plaintiff further argued a question of fact exists where one of the defendants admitted that the dog was "trouble." The Fourth Department affirmed the lower court's decision in favor of the defendants holding that the evidence presented by the plaintiff failed to raise a question of fact that the defendants knew, or should have known, that their dog had a propensity to interfere with traffic.

Prepared by Patrick D. Slade