In Thome v. Benchmark Main Transit Associates, LLC, 86 A.D.3d 938, (4th Dept., 2011), the lower court granted the plaintiff's motion for partial summary judgment on liability pursuant to New York Labor Law §240(1).

In this matter, the plaintiff was injured when the scissor lift he was working on tipped over. The Appellate Division reversed the trial court's ruling of partial summary judgment after finding that the defendants had raised a triable issue of fact as to whether the plaintiff's actions were the sole proximate cause of his injuries. In opposition to the plaintiff's motion for partial summary judgment, the defendants submitted evidence that the plaintiff was aware that holes had been cut into the concrete floor of the building where he was working. Furthermore, it was established that the plaintiff, on the morning of the accident, was specifically directed not to operate the scissor lift in the areas where the holes had been cut. The defendants also submitted evidence that the plaintiff was driving the scissor lift in a raised position while looking at the ceiling rather than where the lift was traveling.

As a result, the Appellate Division, Fourth Department, determined that a question of fact existed as to whether the injured plaintiff's fall resulted from his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries.

The Appellate Division, Fourth Department, in Swavely v. Zhou, 86 A.D.3d 947, (4th Dept., 2011), reversed the trial court's denial of the plaintiff's motion to set aside the verdict.

In this matter, the defendant, a surgeon, lacerated the right ventricle of the plaintiff's heart during surgery, which led to the plaintiff's bleeding, cardiac arrest and eventual death.

After trial, the jury determined that the defendant physician's negligence was not a substantial factor in causing the deceased plaintiff's death.

The Appellate Division determined that, "the issues of negligence and proximate cause were so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause."

As a result, the Appellate Division, Fourth Department, found that the jury's verdict could not have been reached upon any fair interpretation of the evidence because the defendant's negligence necessarily contributed to the death of the plaintiff. The judgment of the lower court was reversed and the jury's verdict was set aside.

In Phillips v Henry B's, Inc., 85 A.D.3d 1665, (4th Dept., 2011), the plaintiff, a mail carrier, slipped and fell on black ice in a parking lot.. The defendant owner moved for summary judgment on the basis that he did not have actual or constructive notice of this alleged defect prior to the plaintiff's accident. The trial court denied defendant's motion.

The Appellate Division, Fourth Department, reversed the trial court's ruling in part. Specifically, the Appellate Division found that there was no question of fact with respect to the defendant's lack of actual or constructive notice of the patch of black ice that allegedly caused the plaintiff's accident. However, the Appellate Division found that there was a question of fact with respect to whether the defendant had actual constructive notice of a "recurring dangerous condition" on his property that may have contributed to the accident. The Court noted that the defendant had failed to replace a gutter downspout on his building that had been removed ten years prior to the accident and that as a result, water routinely drained from a hole in the gutter onto the area where the plaintiff fell.

In Martinez v. Paddock Chevrolet Inc., 85 A.D.3d 1691, (4th Dept., 2011), the plaintiff contended that his personal injury auto accident was caused by his vehicle's faulty brakes. The plaintiff alleged that the defendant dealer was negligent in failing to inspect the brakes prior to the sale of the vehicle, as well as during a repair ten days before the accident.

The vehicle was repossessed while at the collision shop after the accident because the plaintiff failed to make monthly payments to his lender.

The Appellate Division, Fourth Department, ruled that a spoliation charge will not be disturbed, "absent a clear of use of discretion". Although photographs were taken of the vehicle's brake components, which were admitted into evidence, the Appellate Division agreed that the photographs were not an adequate substitute for the vehicle itself, or at least for the specific parts in question.

In Englerth v. Penn Field Central School District, 85 A.D.3d 1714, (4th Dept., 2011), the plaintiff allegedly slipped and fell on icy conditions in a parking lot owned by the defendant. The defendant moved for summary judgment based upon its argument that it did not have actual or constructive notice of the allegedly icy condition. The defendant also argued that it did not create the condition as there was a storm in progress.

The Appellate Division, Fourth Department, ruled that the trial court's decision to grant the defendant's motion for summary judgment was in error. The Court determined that the plaintiffs raised an issue of fact by submitting sworn statements from a witness who observed "ice with water on top of the ice" near the area of the plaintiff's fall so that a slippery condition could have been present absent snow accumulating from the storm in progress

Prepared by Michael J. Chmiel