In Kuntz v. WNYG Housing Development Fund Co., Inc., (4th Dept., March 22, 2013), the Appellate Division, Fourth Department, affirmed the lower Court's refusal to grant plaintiff's partial summary judgment motion on his Labor Law §240(1) claim. Plaintiff Kuntz contended that he was entitled to summary judgment on liability as a matter of law because the defendants had failed to provide him with adequate safety devices which could have prevented his fall, particularly a safety belt and lanyard. The defendants asserted that the scaffold itself had cross braces on it which constituted safety devices, and that therefore a material question of fact existed as to whether the safety devices which were provided afforded plaintiff proper protection. Additional questions of fact were raised regarding whether plaintiff intentionally removed a safety railing and whether a wood safety railing and cross braces were "safety devices" as interpreted by case law.

In evaluating plaintiff's entitlement to summary judgment, the Court reasoned that a triable question of fact existed as to whether a statutory violation occurred and whether the plaintiff's own acts or omissions were the cause of the accident.

In Madafferi and Madafferi v. Herring and Myers, (4th Dept., March 22, 2013), plaintiffs' infant daughter was a passenger in a vehicle driven by defendant Herring and allegedly purchased by defendant Herring from defendant Myers. Plaintiffs moved for summary judgment on the issues of proximate cause, serious injury and ownership of the vehicle. The Appellate Division, Fourth Department, unanimously modified the decision of the lower Court by granting those parts of the motion for summary judgment as to serious injury and ownership of the vehicle.

Because Myers admitted to leaving his license plates on the vehicle after transferring ownership to Herring, the Appellate Division held Myers was estopped from denying ownership of the vehicle against the plaintiffs.

In Menter v. City of Olean, (4th Dept., May 3, 2013) plaintiff commenced an action to recover damages for injuries he sustained when he slipped from a diving board at the City of Olean pool. The Appellate Division, Fourth Department, affirmed the Supreme Court's denial of defendant's motion for summary judgment, which was grounded in the argument that plaintiff had assumed the risks associated with diving into a pool.

The Court acknowledged that the doctrine of primary assumption of risk will usually constitute a complete defense in an action to recover damages for personal injury and is applicable to the voluntary participation in sports activities. Also, the Court noted that owners of recreational premises owe a duty to exercise care to make conditions as safe as they appear to be and that a plaintiff only consents to the risks of an activity when such risks are fully comprehended or perfectly obvious. The Court concluded that the City of Olean failed to meet its burden on the motion, partially because its submissions indicated that non-skid material was not present on all surfaces of the diving board and had not recently been reapplied. Plaintiff submitted evidence that his fall occurred while walking down the middle of the diving board and that non-skid material was not present on the middle of the board. Therefore, the Court rejected defendant's contention that as a matter of law the plaintiff's activity in diving into the pool constituted assumption of risk.

In Mullin v. Waste Management of New York, LLC, (4th Dept., May 3, 2013) first-party plaintiff worker sought damages from Waste Management of New York, LLC for injuries he sustained after falling from a ladder while adjusting a tarp on the trailer of his employer, third-party defendant Riccelli Enterprises, Inc. An agreement between Riccelli and Waste Management required Riccelli to name Waste Management as an additional insured on its commercial general liability policy. Riccelli failed to do so, and Waste Management sought summary judgment on its breach of contract cause of action.

In affirming the lower Court's ruling, the Fourth Department found that Waste Management was entitled to partial summary judgment for defense and indemnification due to Riccelli's admission that it failed to name Waste Management as an additional insured.

In Babiack v. Ontario Exteriors, Inc., et al., (4th Dept., May 3, 2013), Kevin Loftus, of Chelus, Herdzik, Speyer & Monte, P.C., represented Crescent on East Avenue, Inc. (Crescent) against which the plaintiff asserted claims stated in Labor Law §§240(1) and 241(6). The Appellate Division affirmed that the trial Court properly granted Crescent's motion for summary judgment seeking contractual indemnification from third-party defendant, Ontario Exteriors, Inc., and plaintiff's employer, Williamstown. The Court noted that Crescent secured indemnity agreements from both of those parties which did not purport to indemnify Crescent for its own acts of negligence. The court rejected the contentions of Ontario and Williamstown that the Court was required to make a finding that Crescent was not negligent in order to conclude that Crescent was entitled to contractual indemnification. Accordingly, Crescent will receive contractual indemnification from both Ontario and Williamstown with respect to plaintiff's Labor Law claims. Crescent's exposure will be limited to Crescent's negligence if and to the extent established by Ontario and Williamstown.

In Nevetta v. Onondaga Galleries, LLC, et al., (4th Dept., May 3, 2013), plaintiff commenced an action seeking damages for injuries sustained as a result of a slip and fall on a wet floor in a building owned and operated by the defendants. In their motion for summary judgment to dismiss plaintiff's complaint, the defendants argued that they had no actual notice of the allegedly dangerous condition. The Appellate Division, Fourth Department, found that the defendants met their burden of showing no actual notice existed because the defendants did not receive any complaints concerning the location at which the plaintiff fell and were unaware of any substance on the floor of the location prior to the plaintiff's accident.

However, as to plaintiff's reliance upon a claim of constructive notice, the Court found that the defendants failed to meet their burden of establishing no question of fact existed, as it was uncertain whether the wet floor was visible and apparent, whether the condition existed for a sufficient length of time prior to plaintiff's fall, and whether defendants would have or should have been able to discover and remedy the dangerous condition.

In overturning the Supreme Court's decision to deny appellant's motion to withdraw as plaintiff's counsel, the Appellate Division, Fourth Department, in Cantineri v. Carrere, d/b/a Home Works Builders, (4th Dept., May 3, 2013), found that the specific facts and circumstances showed the plaintiff's conduct rendered appellant's representation of him "unreasonably difficult." Citing the rules of professional conduct, which provide that a lawyer may withdraw from client representation if the client fails to cooperate or otherwise renders his representation unreasonably difficult for the lawyer to carry out his employment effectively, the Appellate Division found that Cellino & Barnes, P.C. was able to show good and sufficient cause for its request to withdraw as plaintiff's counsel.

Prepared by: Katelyn E. Dieffenderfer