In Oakes v. Wal-Mart Real Estate Business Trust (3rd Dept., July 19, 2012), the Appellate Division, Third Department, interpreted the Court of Appeals' decision regarding the elevation-related provisions of Labor Law §240. In its recent holding in Wilinski v. 334 E. 92nd Housing Development Fund Corporation (Court of Appeals, 2011), the Court of Appeals stated that in order to prevail on the Labor Law §240(1) cause of action concerning an elevation-related injury, a plaintiff must establish an elevation differential, which is "physically significant" versus "de minimis". In interpreting this holding, the Third Department held in Oakes that the plaintiff, an iron worker who was injured when a 30 ft. x 5 ½ ft. steel truss fell onto him, did not have a cause of action under Labor Law §240(1). The Third Department held that there was no "physically significant elevation differential" as the truss and the plaintiff were ground level and were approximately the same height, or the plaintiff was slightly taller than the truss. Accordingly, the plaintiff was not afforded any protection under Labor Law §240(1) as there was no significant elevation differential.

In Matter of Arbitration between Philadelphia Insurance and Utica National Insurance Group (4th Dept., July, 2012), the Appellate Division reversed the Supreme Court's granting of a petition to vacate an arbitration award where the petitioner failed to apply for a stay before arbitration and thus waived its contention that the respondent's claim for reimbursement of first party benefits is not arbitrable under Insurance Law §5105. The Appellate Division held that in the view of this waiver, a petitioner may not thereafter seek to vacate the arbitration award on the ground that the arbitration panel exceeded its power.

In Platek v. Town of Hamburg, et al. (4th Dept., July, 2012), the plaintiffs commenced an action for breach of contract alleging that its homeowner's carrier breached its contract with them by failing to provide coverage for water damage in the basement of their home after an abutting water main ruptured and water flooded their property. The homeowner's carrier disclaimed coverage pursuant to an exclusion which stated that the carrier would not cover losses caused by "[w]ater. . .on or below the surface of the ground, regardless of its source. . .includ[ing] water. . .which exerts pressure on, or flows, seeps or leaks through any part of the residence premises." The plaintiffs moved for summary judgment based on an exception to this exclusion, which provided that the policy covered "sudden and accidental direct physical loss caused by a fire, explosion, or theft". The plaintiffs argued that the water main rupture was an "explosion" as contemplated by the exception. Given this exception, the Appellate Division held that the exclusion was ambiguous and should be construed in favor of the plaintiffs and against the carrier. The court held that where, as here, both parties' interpretations of the policy were "reasonable", the exception was therefore ambiguous and must be viewed in the favor of the insureds.

In Bryndle v. Knab, et al. (4th Dept., June, 2012), the plaintiff was injured when the vehicle driven by defendant Knab rear-ended the plaintiff's vehicle. This caused the plaintiff's vehicle to make contact with the vehicle driven by the second defendant, Knapp. At the time of the accident, the plaintiff was attempting to turn into a driveway that served as the entrance and exit to a parking lot. The plaintiff testified that she was unable to turn into the driveway because Knapp's vehicle was in the center of the driveway. When the plaintiff observed the Knapp vehicle and attempted to slow down and/or stop, she was rear-ended by the Knab vehicle. The trial court granted summary judgment to Knapp as he established that his conduct was not negligent as a matter of law. The Appellate Division affirmed the trial court's granting of summary judgment to defendant Knapp, holding that the fact that the Knapp vehicle was positioned in the middle of the driveway did not raise a question of fact as to whether the accident was caused by Knapp's negligence.

Prepared by Michael M. Chelus