Bevan v. Murray (4th Dept., October 7, 2011) involved a plaintiff who fell at the defendant's residential property. The defendant homeowners were in the process of having a new deck installed. In order to facilitate the construction, exterior steps leading to the back door of the home had been removed. The plaintiff had no recollection of her fall and no one, including the defendants, witnessed the fall. The plaintiff was found sitting on the ground approximately ten feet away from the exterior door. Under these facts, the trial court granted the defendants summary judgment, but the Appellate Division reversed. In a departure from previous case law, the Appellate Division, Fourth Department, reasoned that the possibility that the alleged defect (missing stairs) caused the accident was sufficient to create a question of fact and preclude summary judgment.

In a decision involving New York State Labor Law §240, the plaintiff was granted summary judgment after falling from a scaffold. The plaintiff had been attempting to climb the scaffold, despite instructions from his superiors to use a ladder. Nevertheless, the Court granted the plaintiff summary judgment concluding that there was no triable issue of fact whether the plaintiff's own conduct was the sole proximate cause of the accident. See Mazurett v. Rochester City School District (4th Dept., October 7, 2011).

In Terrigino v. Village of Brockport (4th Dept., October 7, 2011), the claimant sought leave to serve a late notice of claim so as to bring an action against the defendant municipality, Village of Brockport. The trial court refused to grant the claimant this relief. Despite any excuse for failure to file the notice of claim in a timely fashion, the Appellate Division, Fourth Department, ruled that there was an abuse of discretion by the trial court due to the absence of any prejudice to the defendant. The claimant was thus allowed to proceed with her claim.

In Starr v. Holes (4th Dept., September 30, 2011), the infant plaintiff was burned when she fell into a basin of water. The basin had been placed on a grate covering a floor furnace by the defendant-tenants. The landlord, also a defendant, moved for summary judgment as his tenants had created the condition by placing the basin over the furnace area. Even under these facts, the Appellate Division, Fourth Department, refused to grant summary judgment in favor of the landlord. It was held that the landlord may be liable for failing to repair a dangerous condition. The Appellate Division reasoned that there were questions of fact as to whether the landlord had notice of the condition and had retained the right to inspect and repair the property.

Crough v. BJs Wholesale Club, Inc. (4th Dept., September 30, 2011) involved a plaintiff injured while attempting to load a box into his car. The plaintiff was doing so with the assistance of an employee from defendant BJs Wholesale Club. The trial court denied the defendant's motion for summary judgment, but on appeal the Appellate Division, Fourth Department, held that the actions of the employee, assisting the plaintiff-customer, did not create a new risk nor enhance the risk that the plaintiff faced in loading the box by himself.

Lograsso v. City of Tonawanda (4th Dept., September 30, 2011) involved a motor vehicle accident between a police patrol car and the plaintiff. In denying the defendant policeman's motion for summary judgment, the Court reasoned that because he stopped and looked both ways at a stop sign, the policeman's conduct was governed by principles of ordinary negligence, not the standard of recklessness.

Chow v. Reckitt & Coleman, Inc., 17 N.Y.3d 29, 926 N.Y.2d 377 (2011) involved a defendant's motion for summary judgment in a products liability case. The Court of Appeals held that, with regard to the design defect portion of the claim, the defendants could not rely on an attorney affirmation to meet their burden to make out a prima facie case for summary judgment.

The Court of Appeals in Groninger v. Village of Mamaroneck (2011) held that a prior written notice statute enacted by the defendant village required prior written notice of an icy condition on a parking lot owned by that defendant municipality. This is a significant expansion with regard to prior written notice statutes as the Court of Appeals considered the parking lot to be a "highway" under the statute.

Prepared by Scott R. Orndoff