In Kostyo v. Schmitt & Behling, LLC, (4th Dept., March 25, 2011), the Fourth Department unanimously modified an order that dismissed plaintiff's common-law negligence and Labor Law action to recover damages for injuries sustained by plaintiff when he fell from the front porch of a rental property owned by the defendant. The trial court had granted defendant's motion for summary judgment based on the rationale that the plaintiff was performing only routine maintenance at the time of the accident, specifically fixing and "winterizing" a window over the front porch. This involved nailing together the wooden window frame that had fallen apart, and placing plastic sheeting over the window. The Fourth Department determined that a question of fact existed precluding summary judgment with respect to the Labor Law §240(1) claim on the issue of whether the plaintiff was doing work that constituted a "repair." The Court noted that for such a determination to be made, there must be proof that the object being worked upon was inoperable or not functioning properly. The appellate court held that by submitting evidence that the window was not functioning properly and required securing because there was a risk that the window would fall out of the frame, the plaintiff was successful in raising a question of fact as to whether the plaintiff was in fact repairing the window.

In Ngyuen v. Kiraly, et al., (4th Dept., March 25, 2011), the jury found that the plaintiff sustained a serious injury under the 90/180-day category of serious injury as defined in Insurance Law §5102(d). However the jury awarded plaintiff zero damages. The trial court then denied plaintiff's post-trial motion seeking to set aside the verdict with respect to damages for past pain and suffering. The Fourth Department held that while the amount of damages to be awarded for personal injuries is primarily a question for the jury, an award for damages may be set aside when it deviates materially from what would be reasonable compensation. The Fourth Department continued that a jury verdict will generally be considered flawed when a "serious injury" under the No-Fault Law is found or conceded, but the jury then makes no award for past pain and suffering. A new trial on damages only was ordered.

In Conti v. City of Niagara Falls Water Board, (4th Dept., March 25, 2011), the plaintiffs commenced an action seeking to recover damages sustained as a result of a sewage backup on their property. The plaintiffs alleged the damage was caused by defendant's failure to maintain its sewer system in a proper manner. The defendant was granted summary judgment by the trial court dismissing the complaint on the ground that the defendant did not have prior notice of a defective or dangerous condition in the sewer system. The Fourth Department unanimously reversed the trial court and reinstated the complaint. The Fourth Department stated that the defendant failed to meet its initial burden of establishing that it had no notice of a dangerous condition, had no reason to believe the pipes had shifted or deteriorated, and that the defendant regularly inspected and maintained the subject sewer line. The Appellate Division determined defendant failed to reach its burden by relying only on the affirmation of its attorney who had no personal knowledge of the facts surrounding this issue. Such an affirmation is without evidentiary value. It was the defendant's burden to come forward with evidence in admissible form establishing its entitlement to judgment as a matter of law.

In Haymon v. Pettit, et al, (4th Dept, March 25, 2011), the Appellate Department affirmed the trial court's decision to grant the motion of the defendant City of Auburn for summary judgment dismissing the plaintiff's complaint against it. The plaintiff commenced this action, individually and on behalf of her 14-year-old son, seeking damages for personal injuries that the child sustained when he was struck by a vehicle operated by a co-defendant. The plaintiff's son had been standing with a group of children outside of a stadium while a baseball game was in progress within the stadium. Plaintiff's son chased after a baseball that had been hit out of the stadium. The child ran across the street in an attempt to catch the baseball, but was struck by a vehicle. The Appellate Court noted: "There are inherent risks associated with crossing the street. Those risks are multiplied when doing so indiscriminatel . . . We must assume that adults, and children of the age of the plaintiff's son, will act prudently in doing so."

In Greico v. Kaleida Health, et al., (4th Dept., March 25, 2011), a plaintiff, as executrix of the estate of her husband (decedent), commenced an action seeking damages for the alleged medical malpractice of the defendants in the care and treatment of the decedent. The Fourth Department affirmed the trial court's decision to compel the plaintiff to execute medical authorizations compliant with the HIPAA, permitting defendants to interview decedent's treating physicians with respect to the medical information relevant to the case. A list of the allegations of negligence set forth in the plaintiff's bill of particulars were to be attached to the authorizations so as to limit the scope of disclosure to only those medical conditions relevant to the action. The Fourth Department reiterated that the authorization clearly state that the physician to be interviewed is permitted to discuss only the listed medical conditions and that the purpose of the interview is to assist defendants. Despite plaintiff's authorization, the physician is free to decline defendant's request for an interview.

In Stever v. HSBC Bank USA, N.A., et al., (4th Dept., March 25, 2011), a plaintiff commenced an action seeking damages for injuries allegedly sustained when plaintiff drove his vehicle into a parking lot light stanchion on property controlled by defendants HSBC. The trial court denied HSBC's motion for summary judgment. HSBC submitted the affidavit of an architect experienced in the design of parking lots who had inspected the subject parking lot, and concluded that the placement of the light stanchions was not improper and that the light stanchions were properly designed. The Appellate Division unanimously reversed. The Appellate Division determined that the defendants met their initial burden on the motion based on the evidentiary proof provided. In opposition, plaintiff submitted the affidavit of a licensed engineer who opined that the subject light stanchion was unsafe at the time of the accident. There was evidence that the light stanchions were modified following the accident. The Appellate Division determined that the plaintiff's expert, although a licensed engineer, failed to present evidence that the he had any practical experience with, or personal knowledge of stanchions or parking lots. No further information was offered by plaintiff to establish that plaintiff's expert had any specialized knowledge, experience, training or education with regard to the relevant subject matter. The conclusions of the plaintiff's engineer were insufficient to raise a triable issue of fact in this design defect case.

Prepared by Christopher R. Poole