In Coogan v. D'Angelo, 2009 N.Y. Slip. Op. 07038 (4th Dept., 2009), plaintiff commenced wrongful death action after his son was fatally injured while riding his all-terrain vehicle on defendant's property. The Fourth Department affirmed the lower court's ruling dismissing the complaint and cited to the recreational use statute or General Obligations Law §9-103 for support. That statute holds that an owner of a premises owes no duty to keep the premises safe from entry or use by others for a number of listed activities, one being motorized vehicle operation for recreational purposes.

In Rudat v. Mark Colf Excavating, 2009 N.Y. Slip. Op. 06989 (4th Dept., 2009), a plaintiff commenced action against defendants for injuries he sustained after diving head first into a pond located on the defendant's property. The Fourth Department affirmed the lower court's order which dismissed plaintiff's complaint. The Court held that the defendants met their initial burden of establishing that "the plaintiff's act of diving head first into water that he knew to be shallow was an unforeseeable superseding event absolving the defendants of any liability".

In McGee v. Van Erden, 2009 N.Y. Slip. Op. 06991 (4th Dept., 2009), plaintiff commenced a Labor Law action after he fell from the rafters of a barn while installing hurricane clips. It was alleged that defendant Venture Farms owned the barn. Venture Farms moved for summary judgment on the ground that workers' compensation benefits were the plaintiff's exclusive remedy. Plaintiffs argued in opposition that the plaintiff was an independent contractor and not an employee of Venture Farms and thus not subject to the exclusive remedy provisions of the Workers' Compensation Law. Supreme Court determined that there was a triable issue of fact as to whether plaintiff was an "employee" within the Workers' Compensation Law. The Fourth Department held that the Court erred in deciding that motion absent a determination by the Workers' Compensation Board whether plaintiff was an employee of Venture Farms. The Court further held that primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board and it is therefore inappropriate for the courts to express views with respect thereto pending determination by the Board. The matter was remitted back to the trial court to be reconsidered "after final resolution of a prompt application to the Board to determine the rights, if any, of plaintiffs to benefits under the Workers' Compensation Law".

In Crandall v. Wright Wisner Distributing Corp., 2009 N.Y. Slip Op 07289 (4th Dept., 2009), plaintiff commenced a Labor Law action seeking damages for injuries he sustained after he was struck by an overhead garage door. The Fourth Department held that the defendant property owner was not entitled to summary judgment pursuant to Labor Law §200 since the defendant "failed to establish as a matter of law it lacked the authority to control the allegedly defective condition of the work site". Furthermore, the defendant's own testimony established that it still retained control over the worksite throughout the course of the project.

In Derosia v. Gasbarre & Szatkowski Association, 2009 N.Y. Slip. Op 06987 (4th Dept., 2009), plaintiff commenced an action after she slipped and fell on ice in the defendant's parking lot. The Fourth Department agreed with the plaintiff and held that the defendants failed to meet their burden of establishing that they lacked constructive notice of the icy condition. Plaintiff testified that half of the lights in the parking lot were not functioning. Based on this testimony, an issue of fact arose whether the ice was difficult to see because of the defective lighting conditions, and not because it was simply "not visible".

In Hunt v. Ciminelli, 2009 N.Y. Slip. Op. 07283 (4th Dept., 2009), plaintiff commenced an action seeking damages for injuries he sustained when he slipped and fell on an icy unlit path at a construction site. Evidence demonstrated that the snow removal contractor co-defendant failed to remove snow from the area where the accident occurred. In denying defendant's motion for summary judgment, the Fourth Department held that the snow removal contractor's failure to remove snow from the accident area contributed, at least in part, to the melting and re-freezing of the accumulated snow.

In Sunshine Imaging v. GEICO, 2009 N.Y. Slip. Op. 06984 (4th Dept., 2009), plaintiff performed radiological services to 14 patients and sought reimbursement for each procedure. Plaintiff made a prima facie showing of entitlement to judgment by submitting evidence that the prescribed statutory billing forms were received by defendant and that the defendant's payment of no-fault benefits were overdue. However, GEICO raised a triable issue of fact by submitting its denial of claim forms and set forth the argument that the services for which recovery was sought were "not medically necessary".

In Christopher v. Coach Leasing, Inc., 2009 N.Y. Slip. Op. 07296 (4th Dept., 2009), the plaintiff commenced an action seeking damages for injuries he sustained when the New York State Corrections bus which he was occupying collided with a truck. The Supreme Court refused to charge the jury with a reckless disregard liability standard for the defendant bus. The Fourth Department held that because the bus was a "correction vehicle" rather than a "police vehicle", the bus was exempt from normal traffic regulations governing directions of movement. Yet the bus was subject to the reckless disregard standard of liability only if it satisfied the siren and light requirement set forth in Vehicle and Traffic Law §1104(c). The evidence presented at trial established that the bus did not satisfy those requirements and thus the reckless disregard standard was not given to the jury.

Prepared by Kevin E. Loftus