In Auqui v. Seven Thirty One Limited Partnership, et al. (Court of Appeals, February 14, 2013), the plaintiff was injured on December 24, 2003 when, in the course of the plaintiff's employment, a sheet of plywood fell from a building under construction owned by the defendant. The plaintiff brought a Worker's Compensation claim, as well as a personal injury action. The Worker's Compensation Board found that the plaintiff's disability ended on January 24, 2006 and that the plaintiff required no further medical treatment thereafter. The defendant in the personal injury action brought a motion to preclude the plaintiff from relitigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the Worker's Compensation administrative proceeding. The trial court granted the defendant's motion to preclude, and the Appellate Division, First Department, reversed. In reversing the First Department's decision, the Court of Appeals held that the determination of the Worker's Compensation Board "should be given preclusive effect as to the duration of plaintiff's disability relevant to lost earnings and compensation for medical expenses". The Court found that the plaintiff had a full and fair opportunity to litigate these issues of his ongoing disability in the Worker's Compensation proceedings, and, therefore, the decision of the Worker's Compensation Board should be given a preclusive effect on the personal injury action based on the doctrine of collateral estoppel.

Nesmith v. Allstate Insurance Company (4th Dept., February 1, 2013) was a declaratory judgment action commenced by parents of infants allegedly injured due to lead paint exposure. In November, 1991, Allstate issued a policy to Tony Clyde Wilson, the owner of an apartment building in the City of Rochester. The policy had a per occurrence limit of $500,000.00 and was for one year. It was subsequently renewed for two additional one year periods. In 1993, two children were allegedly exposed to lead paint while living in an apartment in the building owned by defendant Wilson, and one allegedly suffered injuries as a result of lead paint exposure. The parents of this child commenced an action against Mr. Wilson for damages allegedly sustained (first tort action). In 1994, two children who were subsequent tenants were also allegedly exposed to lead in the same apartment. The parents of these children commenced a separate action to recover damages for the personal injuries allegedly sustained by the children (second tort action). While the second tort action was pending, the first tort action settled for $350,000.00 paid from the proceeds of the Allstate policy. Allstate took the position that the noncumulation clause in its policy limited its liability for all lead exposure in the apartment to a single policy limit of $500,000.00, and, consequently, offered the plaintiffs in the second tort action the remaining $150,000.00 of coverage to settle the action. The parties entered into a stipulation, whereby the defendant was released from liability and that the plaintiffs would recover $150,000.00 if the noncumulation clause limited recovery to a single policy limit, as claimed by Allstate, but would receive $500,000.00 if the policy required Allstate to pay the full policy limits for the injuries sustained. Accordingly, the plaintiffs in the second tort action commenced a declaratory judgment action to resolve this issue. Allstate brought a motion for summary judgment in the declaratory judgment action seeking a declaration that the total amount of insurance coverage to which the plaintiffs are entitled was the full $500,000.00 policy limits. In reversing the trial court's decision, the Appellate Division, Fourth Department, agreed with Allstate that it is only responsible up to its limit for a single policy and could not be forced to pay its full policy limits in each year that the policy was renewed.

In Watson v. Priore, et al. (4th Dept., March 22, 2013), the plaintiff commenced an action against various defendants seeking damages arising from his alleged exposure to lead paint as a child. Several of the defendants moved for summary judgment on the issue of negligence. Similarly the plaintiff cross-moved on the issue of negligence. The plaintiff argued in his motion that Real Property Law §235-b, which implies a warranty of habitability in all leases or rental agreements for residencies, gives rise to the presumption that the property owners had notice of alleged dangerous conditions in the properties arising from lead paint. As to every written or oral lease agreement for residential premises, Real Property Law §235-b mandates that the landlord covenants and warrants that the premises shall not be subjected to any conditions which would be dangerous to the health of the tenants. Nevertheless the Appellate Division, Fourth Department affirmed dismissal of plaintiff's action holding that the language of Real Property Law §235-b does not give rise to a presumption that an owner has constructive notice of the existence of lead paint conditions.

In Gutierrez v. Devine, et al. (4th Dept., February 1, 2013), the plaintiff commenced a negligence and a Dram Shop action seeking to recover damages for injuries she sustained when the vehicle in which she was a passenger struck a tree. The vehicle was operated by defendant Devine, a minor, who tested positive for alcohol after the accident. Before the accident, defendant Tatum and the plaintiff drove to a gas station/convenience store owned and operated by defendant Lutz Brothers, Inc. Defendant Devine, a friend of Tatum, met Tatum, Tatum and the plaintiff there. Defendant Tatum, who was 17 years old at the time, purchased beer from the store using false identification. The parties then drove to a beach where they drank the beer for approximately two hours. The resulting accident occurred when the group was driving back to defendant Devine's house in the vehicle being operated by defendant Devine. The storeowner brought a motion for summary judgment dismissing the plaintiff's complaint. The trial court granted summary judgment to the storeowner. In affirming the trial court's granting of summary judgment to the defendant, the Fourth Department held that the plain language of the Dram Shop Act specifies "that the individual who, by reason of intoxication, causes injury must be the very person to whom the defendant furnished the alcoholic beverages, or for whom they were procured". While the plaintiff claims that the store should be liable under the Dram Shop Act, as the store sold alcoholic beverages to a minor, the Fourth Department held that there is no liability, as there was no evidence that the store knowingly sold or furnished alcoholic beverages to the operator of the vehicle: defendant Devine.

Prepared by Michael M. Chelus