In the case of Bucklaew v. Walters, 2010 WL 2698423 (4th Dept. 2010), plaintiffs each commenced Labor Law and common law negligence actions seeking damages for injuries each sustained when each fell from a ladder while installing siding at a two-family residence which was owned by the defendants. The Appellate Division held that the trial court properly granted summary judgment to defendants dismissing plaintiffs' causes of action under Labor Law §240(1) and §241(6). The Court stated that the exception from liability afforded to the owners of one and two family dwellings under those sections of the labor law applies to defendants in this case because the unrefuted evidence demonstrated that defendants did not direct nor control the "method and manner in which the work was performed" at the property. The record established that defendants did not instruct plaintiff how to perform the work, and did not provide the necessary equipment, tools and materials to perform the work. The mere fact that defendants occasionally pointed out areas where the work was not completed properly did not subject them to liability under the Labor Law.

In the case of Garrasi v. Dean, 75 A.D.3d 1138 (4th Dept. 2010), plaintiff commenced an action in Erie County where plaintiff resided seeking damages for injuries he sustained when he slipped and fell in the parking area of property in Chautauqua County. Plaintiff's complaint failed to allege his residence as the basis of venue. Defendants moved for a change of venue to Chautauqua County. The defendants' motion for change of venue was granted. The plaintiff moved for leave to amend the complaint to reflect his county of residence and to "renew and/or reargue" his opposition to defendants' motion for change of venue. The Supreme Court granted plaintiff's motion and defendants appealed. The Appellate Division held that the lower court properly granted plaintiff's motion to amend his complaint but that with respect to the issue of venue, venue was not proper in plaintiff's chosen forum of Erie County. Venue was not proper in plaintiff's chosen forum because at the time of the change of venue motion there was not any evidence that any party to the action had sufficient ties to the forum. Plaintiff failed to plead that his correct residence was located within the jurisdiction of the court and failed to establish that any legitimate party to the action had sufficient ties with such forum. Further, plaintiff failed to establish that he had a reasonable justification for his failure to present the facts concerning his correct residence in opposition to defendants' motion for change of venue.

In the case of Dean v. City of Utica, 73 A.D.3d 1130 (4th Dept. 2010), the plaintiff commenced a Labor Law and common law negligence action seeking damages for injuries he sustained while working on a scissor lift. Plaintiff was replacing bearing brackets on a large garage door and he was injured when the garage door opened and struck the scissor lift, causing the lift to fall over. The Appellate Division held that the trial court erred in granting the parts of defendant's motion for summary judgment dismissing the Labor Law §240(1) claim. The Appellate Division stated that the mere fact that the scissor lift tipped over after being struck by the garage door was sufficient to establish, as a matter of law, that the scissor lift was not placed in a location to give proper protection to the plaintiff. Therefore, the plaintiff established the defendant's liability under the scaffold law. The Appellate Division rejected the contention of the defendants that the plaintiff's Labor Law §240(1) claim was inappropriate because the plaintiff was performing only "routine maintenance" rather than "repair work" on the garage door. The garage door had been installed several weeks prior to the accident and the new bearing brackets were required because the previously installed bearing brackets were wearing down prematurely. Premature deterioration of the bearing brackets could not be deemed ordinary wear and tear.

In Rusho v. State of New York, 2010 WL 3283666 (4th Sept. 2010), the Appellate Division, Fourth Department, reviewed the issue of the qualified privilege afforded by Vehicle & Traffic Law §1104 to drivers of authorized emergency vehicles engaged in emergency operations. Vehicle & Traffic Law §1104 provides that the driver of an authorized emergency vehicle, when involved in an "emergency operation," may exercise privileges such as proceeding past a steady red signal, exceeding maximum speed limits, and disregarding regulations regarding movement of traffic on the roadways. The Rusho case involved a personal injury action in the Court of Claims whereby a motor vehicle driven by a parole officer collided with the claimant's vehicle. The trial court granted defendant's cross-motion for summary judgment and determined that, as a matter of law, the defendant parole officer was protected from liability by the qualified privilege afforded by Vehicle & Traffic Law §1104. According to the trial court, the defendant parole officer was driving an authorized emergency vehicle and was engaged in an emergency operation with a fellow parole officer at the time of the collision. The Appellate Division, Fourth Department reversed and reinstated the claim. The Appellate Division determined that the parole officers were not engaged in an emergency operation at the time of the collision. The parole officer, who was driving the vehicle, was attempting to turn the vehicle around to determine whether a person he observed operating a vehicle in the opposite lane of traffic was a parole absconder. In addition, both parole officers admitted that, if they determined upon further investigation that the person observed was, in fact, the absconder, they would not have attempted to arrest him, but, instead, would have called the police to assist in the apprehension. Therefore, the Appellate Division held that the parole officers were in an investigative role at the time of the motor vehicle accident and were not in pursuit of an actual or suspected absconder. Consequently, they were not afforded the privileges of Vehicle & Traffic Law §1104.

Prepared by Kristen B. Degnan