In Ali v. Ellis (4th Dept, June, 2012), defense counsel refused to concede liability at trial. Despite the fact that the plaintiff had never moved for summary judgment, Judge Polito of the Supreme Court, Monroe County, deemed defense counsel's questions and arguments regarding liability "frivolous conduct" and sanctioned him $10,000. The Appellate Division, 4th Department, concluded that Judge Polito abused his discretion and lifted the sanctions.

Dalton v. Lucas (4th Dept. June, 2012) involved a motor vehicle accident where the defendant crossed over the center line and hit the plaintiff's vehicle head-on. Plaintiff was able to establish that his own vehicle never left it's lane of travel. The plaintiff moved for summary judgment on the issues of negligence and proximate cause. The defense, however, was able to raise a question of fact under the "emergency doctrine" and avoid summary judgment. The accident happened on a bridge, and the defendant testified that the roads leading up to the bridge had not been slippery, but the surface of the bridge was. The Court found a question of fact as to whether the defendant's conduct was reasonable when faced with a sudden and unexpected situation (i.e., the icy condition of the bridge) and whether the defendant acted reasonably under those circumstances.

In Boyea v. Benz (4th Dept. June, 2012) the plaintiff made a pre-accident application to Social Security Disability related to her mental/emotional problems. The defense sought disclosure of the application to Social Security and related treatment records from before the accident. In response, the plaintiff withdrew her claim for emotional distress as a result of the accident. The plaintiff then argued that the records, including the Social Security Disability application were not relevant. The Trial Court agreed, but the Appellate Division, 4th Department, reversed. The Appellate Division found the disclosure of these materials was required, holding that the records were potentially relevant to plaintiff's broad allegations of injury, including loss of enjoyment of life.

In Englert v. Schaffer (4th Dept. June, 2012) plaintiff brought a legal malpractice action against their personal injury plaintiff's attorney and his law firm. The law firm moved for summary judgment seeking to dismiss the claim. The basis of the claim was that plaintiff's counsel had failed to relay a settlement offer to their client. The Appellate Division, 4th Department, agreed with the Trial Court that summary judgment should be denied and the malpractice case against the law firm should survive.

Close v. Darien Lake Theme Park & Camping Resort, Inc. (4th Dept. 2012) involved a plaintiff injured on a water ride at the defendant's amusement park. The amusement park argued that the plaintiff's voluntary participation, i.e., using the ride constituted assumption of risk and that summary judgment was appropriate. The Trial Court, Judge NeMoyer, agreed and, the 4th Department affirmed that decision. The Appellate Division explained that the plaintiff failed to raise an issue of fact as to whether the defendant engaged in reckless or intentional conduct, or whether there existed a dangerous condition that was concealed or unreasonably increased the risk of the ride. This is perhaps a departure from previous cases where a distinction between true sporting activities and mere recreational pursuits was recognized. Heretofore, summary judgment was only available with regard to actual sporting activities.

In Nikolov v. Town of Cheektowaga, Arthur A. Herdzik of our firm, represented the Town of Cheektowaga and its police officer Timothy Turnbull. Officer Turnbull was involved in a collision in his police cruiser with the plaintiff's vehicle. Turnbull was responding to an emergency call at the time of the accident. In doing so, he entered an intersection against a red light. Plaintiff argued that an issue of fact existed as to whether the sirens or emergency lights of the police vehicle were engaged. Herdzik successfully argued that, pursuant to the provisions of the Vehicle and Traffic Law, a reckless standard, not a negligence standard, should apply to a police officer responding to an emergency call. The Appellate Division, 4th Department agreed holding that even if Turnbull had not engaged his siren or emergency lights, his actions did not constitute reckless behavior. The action of the plaintiff was dismissed.

Prepared by Scott R. Orndoff