In Cragg v. Allstate Indemnity Corporation, (4th Dept., May 7, 2010), a declaratory judgment brought forth an issue of first impression in New York as to whether an insurer is required to defend or indemnify its insureds for the wrongful death of an insured person, here, plaintiff's decedent. Plaintiff's decedent, an infant, sustained fatal injuries when she drowned in a swimming pool located at the residence of her grandparents. The plaintiff, the infant's father, did not reside there. He brought action against the mother and grandparents with whom the infant resided. The Appellate Division, Fourth Department, affirmed the summary judgment granted for the defendants by concluding that the plain language of the policy in question excluded coverage for bodily injury to an insured person when such coverage would inure to the benefit of an insured person. The Court concluded there was no coverage for the simple reason that a homeowners' insurance policy is essentially designed to indemnify the policyholders against liability for injuries sustained by non-insureds.

In Gravino v. Allstate Insurance Company, (4th Dept., May 7, 2010), the plaintiff sued his insurer seeking coverage for damage to an in-ground swimming pool pursuant to the terms of his homeowners' insurance policy. Plaintiff had drained his pool in order to paint it, but was delayed for five days due to rain. On the fifth day, the plaintiff noticed that one end of the pool had lifted out of the ground and that the concrete around the pool had been damaged. Defendant disclaimed coverage for the loss based on a provision in the policy excluding damage to a swimming pool caused by "pressure or weight of water." The trial court denied defendants' motion for summary judgment and granted plaintiff's cross-motion for partial summary judgment. The Fourth Department unanimously reversed the order appealed from concluding that the action was for breach of contract and is not a declaratory judgment action. The Appellate Division further held that the exclusion for damages caused by "pressure or weight of water" applied to plaintiff's loss, and plaintiff failed to raise a triable issue of fact in opposition. The experts for each party agreed that the pool had lifted from the ground because of the hydrostatic pressure in the soil surrounding the pool. Although the drainage of the pool may have been a pre-condition to the lifting of the pool from the ground, the defendant established that the ground water pressure was the "predominant cause of the loss, thus rendering applicable the policy exclusion for damages."

In Gronski v. County of Monroe, (4th Dept., May 7, 2010), plaintiff commenced a negligence action seeking damages for injuries allegedly sustained when the plaintiff was struck by a bale of recycling material, weighing almost one ton, while working at a recycling facility owned by, but not operated by defendant. Pursuant to a written agreement, defendant assigned operational control over the facility to plaintiff's employer. The Appellate Division, Fourth Department, affirmed the defendant's motion for summary judgment and dismissed the plaintiff's complaint, concluding that defendant delegated all responsibility for operation and maintenance of the facility to plaintiff's employer, including responsibility for safety measures. Defendant met its initial burden of establishing that it "did not exercise control over the subject facility or assume any contractual responsibility to maintain and repair it. Rather, [plaintiff's employer] was contractually obligated ... to repair and maintain" the facility. Plaintiff failed to raise a triable issue of fact sufficient to defeat the motion.

In Lewis v. Lustan, (4th Dept., April 30, 2010), plaintiff commenced an action seeking damages for injuries that she sustained while walking her dog by defendants' residence. Defendants' unleashed dog emerged from behind a car, barking. The dog ran toward plaintiff, startling her, causing her to lose her balance and fall. Defendants' motion for summary judgment dismissing the complaint was granted by the trial court. The decision of the trial court was reversed in a three-two decision from the Appellate Division, Fourth Department. The Fourth Department concluded that the deposition testimony of the defendants created a question of fact regarding the dog's known tendencies and behaviors to rush toward cars and people. The Appellate Court majority noted that an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities.

In Reynolds v. Knibbs, (4th Dept., May 7, 2010), plaintiffs commenced an action seeking damages for injuries sustained when plaintiff fell while descending the basement stairs of his residence, which was rented from the defendants. According to plaintiffs, the stairs detached from the wall and collapsed. Initially, defendants' motion for summary judgment to dismiss the complaint was denied. The Appellate Division, Fourth Department reversed on the law and granted defendants' motion to dismiss the complaint. The Fourth Department concluded that defendants met their initial burden of establishing that they had no actual or constructive notice of any defective condition of the staircase, and plaintiffs failed to raise a triable issue of fact. Defendant testified that he inspected the stairs prior to plaintiff's accident and believed that the stairs were adequately secured. Defendants submitted evidence that no one previously had a problem with the stairs or complained about them prior to the plaintiff's accident. In opposition to the motion brought by defendants, the plaintiff submitted an affidavit of an expert who averred that the stairs were improperly secured to the concrete wall and that the defect "would have been clearly obvious to anyone with construction experience." Defendant had over 30 years of experience as a contractor, however, plaintiff's expert never specified the kind of construction experience needed to determine whether the defect was "obvious," nor did he state, e.g., whether the use of concrete fasteners with metal washers as opposed to concrete nails was standard in the industry or whether a building inspector would have noted the alleged defect."

Prepared by Christopher R. Poole