In John v. Klewin Building Company, Inc., 94 A.D.3d1502 (4th Dept., 2012), the defendants moved for summary judgment seeking to dismiss the plaintiff's claims under New York Labor Law §§200, 240(1), 241(6) as well as under common law negligence. Additionally, the plaintiff moved for partial summary judgment as to New York Labor Law §240(1). The trial court denied all motions, finding questions of fact for each.

On appeal, the Appellate Division, Fourth Department modified the Court's order with respect to the summary judgment motions.

As to the defendant's motions, it dismissed the plaintiff's claims under common law negligence and New York Labor Law §200 on the basis that the defendant established as a matter of law that it did not have the authority to supervise or control the methods and manner of the plaintiff's work.

However, the Appellate Division, Fourth Department found questions of fact with respect to the defendant's motion for summary judgment under New York Labor Law §241(6) with respect to whether the work was to be performed from the roof, whether the roof had a slope steeper than "one in four inches", and whether the roof was wet at the time of the accident.

With respect to New York Labor Law §240(1), the defendant argued that the plaintiff's decision to work on a sloped roof surface was the sole proximate cause of his injuries. The Appellate Division upheld the trial court's ruling, finding triable issues of fact as to whether the plaintiff was specifically instructed to work only on the flat roof and not to work on the sloped roof surface from which he fell. Consequently, the Appellate Division, citing the same questions of fact, upheld the trial court's decision to deny the plaintiff's motion for partial summary judgment under New York Labor Law §240(1).

In Thornton v. Rickner, 94 A.D.3d 1504 (4th Dept., 2012), the plaintiff was injured on a ski trail when she was struck from behind by the defendant, a snowboarder. The trial court denied the defendant's motion for summary judgment.

The Appellate Division, Fourth Department reversed the trial court's decision regarding summary judgment finding that the plaintiff assumed the risks associated with the sport of skiing.

The Appellate Division noted that a sporting participant "will not be deemed to have assumed the risks of reckless or intentional conduct."

To that end, the Appellate Division found no evidence of such reckless or intentional conduct. The Court noted that the accident took place on a beginners trail and that icy conditions on the trail made it difficult for the defendant to turn and stop. Additionally, an independent witness testified that he believed the accident was caused by the defendant's lack of ability, and that he noted that the defendant appeared to be making an attempt to avoid the collision. As a result, the Appellate Division found that the plaintiffs failed to raise an issue of fact as to whether the defendant's conduct was "intentional or reckless, outside of the risks skiers normally assume."

In Hahn v. Tops Markets, LLC, 94 A.D.3d 1546 (4th Dept., 2012), the plaintiff was injured when she was pushing a shopping cart down the aisle of a Tops Markets store and the front wheel of the cart became stuck in a hole in the floor. The hole was an uncovered electrical box that was left open in the midst of a renovation that was going on in the store at the time. When the shopping cart wheel got caught in the hole, the cart began to tip over. The plaintiff was allegedly injured while attempting to prevent the cart from tipping over.

Defendant Tops hired third-party defendant Concept Construction Corporation as a general contractor for the renovation project. The third-party defendant, Industrial Power and Lighting Corp., was a subcontractor hired by Concept to perform electrical work. Third-party defendant Antonicelli Construction, Inc. was a contractor hired directly by Tops to replace aisle shelving.

Concept moved for summary judgment, seeking dismissal of all claims and crossclaims against it, contending that it owed no duty of care to the plaintiff and that its conduct was not the proximate cause of her injuries. Industrial also moved for summary judgment, arguing that its conduct was not the proximate cause of the plaintiff's injuries. Both Concept and Industrial argued that Antonicelli was solely responsible for the uncovered electrical box. Both third-party defendants also pointed out that, since Tops hired Antonicelli, neither party supervised nor controlled Antonicelli's work and could not be held liable for Antonicelli's negligence. The trial court denied the summary judgment motions of both Concept and Industrial.

The Appellate Division, Fourth Department upheld the trial court's decision. With respect to proximate cause, the Appellate Division concluded that there was more than one possible proximate cause to the accident.

Furthermore, the Appellate Division found that the plaintiff raised an issue of fact with respect to Concept's duty to the plaintiff. Specifically, the Appellate Division found that the plaintiff raised an issue of fact as to whether Concept, in failing to ensure that the hole was covered or that the dangerous condition was cured, thereby "launched a force or instrument of harm, or otherwise made the construction area less safe than before the construction project began."

In Stearns v. O'Brien, 94 A.D.3d 1536 (4th Dept., 2012), the jury returned a verdict of no cause of action finding that the plaintiff did not sustain a qualifying serious injury. The trial court then denied the plaintiff's motion to set aside the verdict.

The Appellate Division noted that the plaintiffs met their initial burden at trial by submitting the requisite objective proof that the plaintiff was injured as a result of the accident. However, the Appellate Division upheld the verdict, agreeing with the defendant that the jury was entitled to conclude that the injury was nothing more than a "mild, minor or slight limitation of use".

Prepared by Michael J. Chmiel