In Melski v. Fitzpatrick Weller, Inc., (4th Dept., June 7, 2013), the Appellate Division, Fourth Department affirmed the lower Court's order granting summary judgment in favor of the defendant and third-party defendant as to plaintiff's Labor Law §§ 200, 240(1) and 241 (6) and common-law negligence claims.

Deceased Plaintiff's Administrator contended on appeal that the lower Court erred in granting the defendant and third-party plaintiff's motions with respect to the Labor Law §§ 240(1) and 241(6) claims inasmuch as plaintiff Melski was engaged in a protected activity at the time of injury. The defendants were able to establish that deceased plaintiff's work involved replacing components to a boiler at a hardwood lumber plant, which was performed in the ordinary course and following normal wear and tear. It did not involve work or other activities enumerated in section 240(1). Furthermore, the defendants established that the deceased plaintiff's activities did not fall within the purview of Labor Law §241(6) as he was not performing construction, demolition or excavation work.

The Court held that the plaintiff failed to raise a triable issue of fact with respect to Labor Law §240(1) and §241(6) to survive the defendant and third party defendant's summary judgment motions, and accordingly dismissed plaintiff's amended complaint.

In Reynolds v. Ferrante, D.C., (4th Dept., June 7, 2013), the plaintiff was covered under a no-fault policy issued by Geico for injuries sustained to his neck, back and left shoulder as the result of a motor vehicle accident. Geico scheduled a no-fault examination of plaintiff by a chiropractor through defendant SCS Support Claims Services, Inc., an independent contractor for Geico. During this examination, the chiropractor manipulated plaintiff's left knee in a way in which plaintiff sustained injuries. Plaintiff commenced an action as against Geico for negligence in selecting, instructing and supervising SCS and the chiropractor. The Supreme Court denied Geico's motion to dismiss wherein Geico alleged Geico was not liable for the acts of the independent contractor.

The Appellate Division, Fourth Department, in affirming the Supreme Court's decision, held that any person who hired an independent contractor may be held liable for negligence in selecting, instructing or supervising that independent contractor. The Court further denied Geico's contention that the plaintiff did not alleged sufficient facts to state a cause of action against them, reasoning that plaintiff receives the benefit of every favorable inference and plaintiff's pleading provided Geico with enough notice to apprise them of the basis of plaintiff's claims.

In Payton v. 5391 Transit Road, LLC, et al., (4th Dept., June 7, 2013), the plaintiff commenced action seeking damages for injuries he sustained when he slipped and fell in a Burger King parking lot. The plaintiff's complaint alleged that a mound of snow in the parking space near the entrance was a dangerous condition as he was caused to fall after climbing over the mound to reach his parked vehicle.

Third-party defendant, who was hired to perform snow removal services, and defendants and third-party plaintiff cross-moved for summary judgment seeking contractual indemnification from one another. Judge Diane Y. Devlin of the Erie County Supreme Court denied the motions, and the parties appealed.

The Appellate Division, Fourth Department unanimously affirmed the Supreme Court's decision holding that the deposition testimony of the plaintiff, the restaurant manager and third-party defendant raised a triable issue of fact as to whether the snow mound was created by third-party defendant's removal of snow from the parking lot or whether it was created by defendants' removal of snow from the sidewalk, or both, and whether defendants were aware of the dangerous condition.

In Thompson v. Sithe/Independence, LLC, (4th Dept., June 7, 2013), the plaintiff commenced a Labor Law and common-law negligence action seeking damages for injuries he sustained when he fell from an elevated work site on defendants premises. At the time of the accident, plaintiff had removed his safety harness and climbed out of the mechanical lift to attach a clamp to a diffuser and fell 10 to 15 feet to the ground. In the area in which plaintiff was working, a drop line, typically provided in these work areas, was removed. The plaintiff moved for partial summary judgment on liability under Labor Law §240(1) and to amend his bill of particulars to include a violation under 12 NYCRR 23-1.16. Defendants cross-moved to dismiss plaintiff's complaint. The Supreme Court granted plaintiff's motion to amend his bill of particulars, but denied the plaintiff and defendants remaining motions.

The Appellate Division, Fourth Department affirmed the lower Court's decision concluding that there are triable issues of fact as to whether plaintiff was provided with appropriate safety devices, whether plaintiff was a recalcitrant worker, and whether the nature of plaintiff's work came within the protection of Labor Law §240(1), issues to be presented to the jury for determination.

In Borowski v. Ptak, (4th Dept., June 7, 2013), the Appellate Division, Fourth Department affirmed an order issued by Judge Donna M. Siwek of the Erie County Supreme Court that denied defendant's motion for summary judgment in a three car motor vehicle accident. The defendant argued that the plaintiff's negligence warrants summary judgment in favor of defendant as plaintiff's vehicle rear-ended defendant's stopped vehicle. The plaintiff presented evidence to show that traffic was "congested" and "stop and go" on the date of the incident, and that defendant's vehicle stopped suddenly.

The Court, upon review of the evidence presented, held that plaintiff submitted sufficient evidence of an adequate nonnegligent explanation for the collision to preclude summary judgment in favor of the defendant. The Court further reasoned that defendant cannot meet its burden by relying on claimed deficiencies in plaintiff's proof.

In DelSol v. Family Dollar Stores of New York, Inc., (4th Dept., June 7, 2013), plaintiff commenced an action to recover damages from injuries he sustained when he slipped and fell on a slippery, wet substance at the Family Dollar store. Defendant moved for summary judgment dismissing plaintiff's complaint and the Supreme Court granted defendant's motion. The plaintiff appealed. The Appellate Division, Fourth Department unanimously affirmed the lower Court's decision, holding that absent evidence that the owner of the premises created the dangerous condition, the defect must be apparent, visible or the owner must have actual or constructive notice of the condition. Further, the defect must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.

Because defendant submitted sufficient evidence demonstrating the absence of constructive notice, the defendant's motion for summary judgment was granted and plaintiff's amended complaint dismissed.

Prepared by Leah A. Costanzo