In Cummings v. Vargo, ___ N.Y.S.2d___ (2009), 2009 WL1652272, the plaintiff fell from the metal roof of the defendant's commercial apartment building while applying fiber aluminum coating to the roof surface using a paint roller.

The plaintiff moved for partial summary judgment as to liability pursuant to New York Labor Law §240(1). The defendant contended that the plaintiff was engaged in "routine maintenance" in performing this task, and hence, not subject to the protections of the statute.

However, the Appellate Division, Fourth Department, agreed with the trial court's ruling that the application of the fiber aluminum coating was the functional equivalent of painting, which is a protected activity under §240(1).

In Frega v. Gallinger Real Estate, ___ N.Y.S.2d ___ (4th Dept., 2009), 2009 WL 1652462, the plaintiff commenced a personal injury action after colliding with another vehicle at an intersection. The plaintiff contended that the defendant had installed one of its real estate signs at the corner of the intersection, allegedly obstructing her view of oncoming traffic. The plaintiff further contended that the defendant's sign caused or contributed to the collision.

The defendant moved for summary judgment as to liability, which was denied by the trial court. However, the Appellate Division, Fourth Department, reversed the trial court's denial and dismissed the plaintiff's summons and complaint. The Appellate Division ruled that the plaintiff was required to stop "at the point nearest the intersecting roadway where she had a view of the approaching traffic on the intersecting roadway before entering the intersection." Furthermore, the Appellate Division took note of the defendant's expert, who established that the sign was located a sufficient distance from the intersection to enable the plaintiff to stop safely and view approaching traffic. As a result, the Appellate Division ruled that the sign was not a proximate cause of the accident and that the plaintiff failed to raise a triable issue of fact.

In Hartley v. White, ___ N.Y.S.2d ___ (4th Dept., 2009), 2009 WL1652838, the defendant moved for summary judgment, alleging that the plaintiff's injuries do not qualify as "serious" within the meaning of New York Insurance Law §5102(d). The trial court denied the defendant's motion in its entirety.

The Appellate Division, Fourth Department, reversed the trial court's ruling in part. With respect to the "permanent consequential limitation" and "significant limitation" prongs of "serious injury", the Appellate Division ruled that the defendant established her entitlement to judgment as a matter of law by submitting the affirmation report of a physician who stated that the plaintiff's injuries were attributable to pre-existing degenerative disc disease, and that the plaintiff merely sustained only a temporary aggravation of the condition as a result of the accident. The Appellate Division rejected the contention of the plaintiffs that they raised a triable issue of fact via the submission of a report from a chiropractor and uncertified medical records. The chiropractor's report, although affirmed, was not in admissible form as it was not sworn to before a notary or other authorized official.

However, the Appellate Division affirmed the trial court's denial of the defendant's motion with respect to the 90/180 category of "serious injury". While the defendant's physician opined that the plaintiff sustained a temporary aggravation of pre-existing degenerative changes, the plaintiff herself testified that the she was unable to engage in her typical "household stuff", such as knitting or riding her bike. The Appellate Division concluded that the plaintiff's own testimony raised a triable issue of fact with respect to this category of "serious injury".

In Heckman v. Skelly, ____ N.Y.S.2d ___ (4th Dept., 2009), 2009 WL1652470, the defendants moved for summary judgment dismissing the plaintiff's summons and complaint. In this case, the plaintiff commenced a personal injury action after sustaining injuries to his leg when a concrete step leading to the defendant's residence collapsed. The plaintiff was leaving the premises at the time of the accident after performing an inspection for a home rehabilitation and improvement company.

The Appellate Division, Fourth Department, affirmed the trial court's holding that the doctrine of res ipsa loquitur did not apply to this case, since the injury was not "caused by the agency or instrumentality within the exclusive control of the defendant." In this case, the defendants established that the house and front steps were built nearly 100 years before they owned or occupied the residence. As a result, any negligence associated with the construction or maintenance of the front steps could have been attributable to a previous owner or builder.

The Appellate Division also affirmed the trial court's ruling that the defendants had established as a matter of law that they neither created the dangerous condition nor had actual or constructive notice of it. The defendants demonstrated that the front steps were constructed before they purchased the house and that they were unaware of any problems with the steps. Additionally, the plaintiff himself, as a part of his inspection, had indicated that he did not consider the front steps to be a safety concern prior to his own accident.

In Lang v. Newman, ___ N.Y.3d ___ (2009), 2009 WL 1585827, the plaintiff awoke with numbness on the left side of her body, slurred speech and facial drooping. After arriving to the emergency room, the defendant doctors performed a routine neurological examination and gave her medicine to treat her headache. The plaintiff was subsequently discharged with a final diagnosis of a migraine headache.

Shortly thereafter, the plaintiff's primary care physician sent to her a different hospital believing that she was experiencing a stroke - which was later confirmed through MRI testing.

At trial, the plaintiff's expert testified that, had the defendant admitted the plaintiff to the hospital rather than discharging her, the stroke would have been diagnosed and she would have been given anti- coagulant medication which would have mitigated the seriousness of the injuries she sustained.

The jury found the defendants liable for failing to admit the plaintiff to the hospital and that such negligence was a substantial factor in causing her injuries. The Appellate Division affirmed the jury's verdict, and the Court of Appeals agreed with this ruling, indicating that the verdict was based on legally sufficient evidence.

In Petrone v. Fernandez, ___ N.Y.3d ____ (2009), 2009 WL 1585848, the plaintiff, a mail carrier, was injured while fleeing an unrestrained Rottweiler. According to the plaintiff, she was about to deliver mail to the defendant's home when she noticed that the dog was unrestrained. She turned to walk back to her vehicle. According to her deposition testimony, she then witnessed the dog approaching her. In a panic, she attempted to jump into her car window, injuring her finger in the process. It was undisputed that the dog neither bit her nor barked at her. The deposition testimony established that the dog did little more than harmlessly sit next to her while she attempted to jump through her car window.

The plaintiff sued the defendants (the dog's owner and the homeowner), alleging that the defendants knew of the dog's vicious propensities. Additionally, the plaintiff alleged a separate cause of action based upon the defendants' violation of the local leash law.

The trial court granted the defendants' motion for summary judgment after the defendants established that there was no evidence to suggest their knowledge of the dog's vicious propensities.

The Appellate Division reversed the trial court's decision, ruling that a dog owner "may be held liable to a plaintiff based upon an alleged violation of the local leash ordinance, and the dog's behavior, even though the dog has not displayed any prior vicious propensities."

The Court of Appeals reversed the Appellate Division's decision and articulated that, "(w)hen harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier v. Zambito, 1 N.Y.3d 444 (2004), i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities." The Court of Appeals found the defendants' violation of the local leash law to be "irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability." In other words, no cause of action stated in negligence will be recognized for damages attributable to the conduct of domestic animals. As a result, the Court of Appeals reversed the ruling of the Appellate Division and reinstated the order of summary judgment in favor of the defendants.