In Cook v. Suitor (4th Dept., February 18, 2011), Michael J. Chmiel, Esq. of our office was victorious in arguing this appeal at the Appellate Division, Fourth Department. In this matter, the plaintiff commenced an action as a result of a motorcycle accident. The defendant, Suitor, attempted to make a left-hand turn onto a street on which the motorcycle was traveling. The defendant-respondent, Blatner's Auto Inc., whom Michael Chmiel represented, had a used car dealership located on the corner of the intersection. The plaintiff alleged that the dealership was negligent in parking vehicles on its lot in a manner that obstructed the views of the co-defendant and the motorcycle driver. In affirming the trial court's grant of summary judgment to the dealership, the Fourth Department held that the dealership established a matter of law that its placement of vehicles did not violate any provision of the applicable City Code and the plaintiff failed to raise any issues of fact in response.

In Kabir v. County of Monroe (Court of Appeals, February 17, 2011), the driver of a vehicle rear-ended by a vehicle driven by a County deputy sheriff brought an action against the deputy sheriff, County, and others to recover damages for injuries sustained in the collision. The defendant sheriff's deputy and the County moved for summary judgment to dismiss the complaint, arguing that the reckless disregard standard found in Vehicle and Traffic Law §1104 applied. The trial court granted the defendants' motion and the Appellate Division, Fourth Department reversed. In a 3 to 2 decision, the Appellate Division, Fourth Department reversed, holding that the reckless disregard standard was limited to accidents caused by conduct privileged under §1104(b). In responding to a burglary alarm, the deputy did not activate the emergency lights or siren on his vehicle and was traveling below the speed limit. However, the deputy looked down for 2-3 seconds at the display in his patrol car. When he lifted his gaze back to the road, traffic had slowed. Although he immediately applied his brakes, he was unable to stop before rear-ending the plaintiff's vehicle in front of him. The Appellate Division held that the deputy's conduct was not exempt under the privileges afforded by §1104(b), and the applicable standard for determining his liability was that of ordinary negligence. The Court of Appeals affirmed the Appellate Division's decision and held that unless the officer's conduct fit into the four privileged types of conduct under §1104(b) of the Vehicle and Traffic Law, then his conduct must be held to a standard of ordinary negligence instead of that of reckless disregard.

In Acee v. State of New York (4th Dept., February 18, 2011), the plaintiff served a notice of intent to file a claim against New York State as a result of a trip and fall accident. The trial court granted the State's motion to dismiss the claim, reasoning that the notice of intention to file a claim did not give a proper description of the scene of the plaintiff's fall. The Appellate Division reversed stating that even though it was later determined that the claimant did not fall in a parking lot as alleged in the notice of intent but rather on an adjacent road, the road was close enough to the parking lot whereby the State was provided with adequate notice of the claim.

In Kellerson v. Asis (4th Dept., February 18, 2011), the plaintiff brought a personal injury action seeking damages for injuries sustained when he was struck by a vehicle operated by the defendant. The defendant brought a motion for summary judgment on the serious injury threshold arguing that the plaintiff's gap in treatment was sufficient to negate a finding of "serious injury". The Appellate Division affirmed the trial court's denial of the defendant's summary judgment motion and held that the plaintiff's treating orthopaedic surgeon provided a reasonable excuse for the gap in treatment. The treating orthopaedic surgeon stated that although the plaintiff's condition improved to a point where he could be discharged from treatment, the potential for further complications was ever present. The court reasoned that needless continuous medical treatment is not necessary to establish a "serious injury."

In King v. Sam's East, Inc. (4th Dept., February 18, 2011), the plaintiff commenced an action seeking damages as a result of a slip and fall on an accumulation of water that had formed a puddle on the floor of the defendant's "Sam's Club" store. The Appellate Division reversed the trial court's granting of summary judgment in favor of the defendant and found that a question of fact existed as to constructive notice. While the defendant met its burden on the issues of actual notice and that the defendant did not create the defect, the Court ruled that a question of fact existed as to constructive notice as the plaintiff testified that she observed water on the floor prior to her fall, her right pant leg was saturated with liquid after the fall and she observed a "dinner plate size of water" on the floor. Equally unavailing was the defendant's submission of evidence that its produce manager made a safety inspection of the area prior to the plaintiff's fall as no evidence of the timing of the safety sweeps or that the inspection occurred before the plaintiff's fall were evident.

In Murdoch v. Niagara Falls Bridge Commission (4th Dept., February 18, 2011), the plaintiff brought a Labor Law, and common law negligence action seeking damages he sustained while repairing a bridge owned by the defendant. Upon a jury verdict in favor of the defendant, the plaintiff's complaint was dismissed in its entirety. The plaintiff argued that the trial court made an error in refusing to instruct the jury that the defendant's violation of a regulation promulgated by the Occupational Safety and Health Administration (OSHA) may constitute evidence of negligence. Although the Appellate Division agreed with this contention, it concluded that a reversal was not required based on the trial court's error as the jury determined that the defendant did not have the authority to control the activity that caused the plaintiff's injury. Therefore, a proper charge concerning the effect of the defendant's alleged regulatory violations would not have changed the jury's verdict.

In Pitts v. Bell Constructors, Inc. (4th Dept., February 18, 2011), the plaintiff commenced a Labor Law action seeking damages for injuries the plaintiff sustained when he fell from a column form in a trench. The plaintiff was standing on the column form while attempting to straighten out bolts located in other column forms in the trench when the bar upon which the plaintiff was standing slipped off a bolt and the plaintiff fell. The trial court granted the defendant's motion seeking a dismissal of the plaintiff's Labor Law §240(1) cause of action. In reversing this determination, the Appellate Division held that while generally a fall into a trench from the ground or on either side is not covered by this statute, where the plaintiff is working or walking over a plank or similar support suspended from a trench and falls into it, Labor Law §240(1) applies.

Prepared by Michael M. Chelus