In Moore v. Ortolano ,___ N.Y.S.2d___(4th Dept., 2010), the plaintiff and her husband were allegedly injured when their second floor porch railing collapsed.

The defendant landlord was granted summary judgment on the basis that he did not have either constructive or actual notice of any defects with regard to the porch railing.

The Appellate Division, 4th Department, upheld the lower court 's decision, noting that the plaintiffs had lived in the apartment for approximately four years and have never noticed nor reported any apparent defects with regard to the railing. Furthermore, the defendant landlord had introduced evidence that he had, in fact, been adequately maintaining the porch and railing prior to the accident.

The Appellate Division also denied the plaintiff's argument with regard to res ipsa loquitur, noting that the defendant was an out of possession landlord who did not exercise exclusive control over the porch and it's railing.

In Larsen v. Rotolo, 910 N.Y.S.2d 756 (4th Dept., 2010), the Supreme Court ordered the defendant to pay the plaintiff's attorney $450.00 in fees associated with attending his client's independent medical examination. The lower court also ordered the defendant to pay $20 to the plaintiff's attorney for "gas and tolls." The Appellate Division, 4th Department, overruled the lower court's order, stating that, "in New York, the general rule is that each litigant is required to absorb the cost of his (or her) own attorney's fees. . . in the absence of contractual or statutory liability."

In Larson v. Cuba Rushford Central School District, ___ N.Y.S.2d___(4th Dept, 2010), the infant plaintiff was a cheerleader who was injured when she fell performing a stunt during cheerleading practice.

The Appellate Division, 4th Department agreed that, "by engaging in any sport or recreational activity, a participant consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation." The Appellate Division also agreed that "cheerleading is the type of athletic activity to which the doctrine of primary assumption of the risk applies."

However, the Appellate Division noted that the doctrine does not shield defendants from liability for "exposing plaintiff's daughter to unreasonably increased risks of injury." To this end, the Appellate Division ruled that the plaintiffs have successfully raised a triable issue of fact by presenting evidence as to the inexperience of the defendant cheerleading coach, as well as her alleged failures to utilize proper coaching techniques and to monitor the activities of the team members during practice.

In Beck v. Spinner's Recreational Center, Inc., ___ N.Y.S.2d___(4th. Dept., 2010), the plaintiff was injured after the go-cart he was riding had stalled and then caught fire.

The evidence demonstrated that the plaintiff sustained first and second degree burns to approximately 3-4% of his neck, back, and chest. He testified that he was in "unbearable" pain immediately after the incident. Several days later, he had dead skin removed with a steel-bristled brush for approximately 15-20 minutes, which again caused "unbearable" pain. Plaintiff testified that he developed several keloid scars, and the burn areas were still painful, as well as sensitive to touch and cold weather. He also testified the scars caused him embarrassment when his neck was exposed.

The jury awarded the plaintiff $15,000 for past pain and suffering, covering approximately three years, and $20,000 for future pain and suffering, covering 35.4 years. The plaintiff moved to increase these specific awards.

The Appellate Division, 4th Department, agreed with the plaintiff's arguments and awarded the plaintiff $30,000 for past pain and suffering and $60,000 for future pain and suffering.

In Sullivan v. RGS Energy Group, Inc., ___N.Y.S.2d____(4th. Dept., 2010), the plaintiff was allegedly injured when he slipped and fell on ice at the work site. The defendants moved for summary judgment, seeking to have the complaint dismissed, which was granted by the trial court.

The Appellate Division, 4th Department, overturned the trial court's ruling.

With respect to the plaintiff's claims pursuant to New York Labor Law §241(6), the Court determined that the industrial code regulation at 12 NYCRR 23-1.7(d) is sufficiently specific to support a Labor Law claim under the statute. The Appellate Division also determined that there is an issue of fact as to whether the area where the plaintiff fell was a passageway or walkway within the meaning of that regulation.

Furthermore, the Appellate Division determined that the trial court erred in granting those parts of the defendant's motion with respect to Labor Law §200, as well as common law negligence. "Where a plaintiff's claim arises due to a defect or dangerous condition at the work site. . . and the defendant moves for summary judgment dismissing a Labor Law §200 claim and a common law negligence cause of action, it must establish, as a matter of law, that it did not create nor have actual or constructive notice of the dangerous condition alleged." In this regard, the Appellate Division determined that the defendants were unable to establish that "the ice formed so close in time to the accident that they could not reasonably have been expected to remedy the condition."

Finally, the Appellate Division rejected the defendant's argument that the icy condition was "open and obvious." The Appellate Division ruled that "the fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition but rather, bears only on the injured person's comparative fault."

Prepared by Michael J. Chmiel