In Hawley v. Town of Ovid, 2013 WL 3358026 (4th Dept., 2013), the plaintiff was injured while bicycling over a bridge located in the defendant municipality. The Town of Ovid moved for summary judgment based upon lack of written notice of a "dangerous and/or unsafe condition" on the bridge. The trial court denied the defendant's motion in its entirety, concluding that the lack of notice defense did not apply.

On appeal, the Appellate Division, Fourth Department, determined that the Town of Ovid did enact a prior notification law, and also met its initial burden in demonstrating a lack of prior written notice. However, the Appellate Division refused to dismiss the claim against the Town of Ovid, instead finding that there was an issue of fact as to whether the defendant created the dangerous condition that caused the accident. The Appellate Division did, however, dismiss the plaintiff's claims insofar as they were based upon the defendant's nonfeasance, reiterating that, "absent prior written notice, the municipality cannot be held liable for failing to repair, inspect or maintain its roads and bridges."

In Belsinger v. M&M Bowling and Trophy Supplies, Inc., 2013 WL 3358034 (4th Dept., 2013), the plaintiff was allegedly injured after entering the defendant's bowling alley and unknowingly stepping down from a concrete step inside the doorway. This step had a 4.5-inch drop to the floor below.

The defendants moved to dismiss the plaintiff's various claims of negligence. The trial court granted this motion in its entirety.

On appeal, the Fourth Department reversed the trial court's decision in part. First, the Fourth Department found that the defendants failed to meet their initial burden of establishing as a matter of law that the step in question was not inherently dangerous. Additionally, the Court was not swayed by arguments that the defendants had never been issued a code citation for the step, or that the step was in compliance with customary or industry practices.

The Fourth Department similarly found that the defendants failed to meet their initial burden of establishing entitlement to judgment as a matter of law with respect to the plaintiff's failure to warn claim.

On appeal, the Court found that a nearby sign reading, "Caution Step Down" was not visible to anyone if someone else was holding the door open. Additionally, the Court found that the sign was faded and accompanied by too many other nearby distracting signs.

However, the Fourth Department did find that the defendants met their initial burden as a matter of law with respect to the plaintiff's inadequate lighting claim. Here, the defendants submitted evidence not only demonstrating that the lighting complied with applicable industry standards, but that it was otherwise adequate for the purpose at hand.

In Stubbs v. Capellini, 2013 WL 3358046 (4th Dept., 2013), the plaintiff brought a claim for personal injuries after a multi-collision accident.

In this case, defendant Capellini was involved in the first collision when his pick-up truck and horse trailer slid on ice on a highway overpass. He came to a rest on the left hand shoulder, but soon noticed that his trailer was blocking part of the left lane. He then exited the vehicle and proceeded to warn other vehicles about his accident. He then noticed for the first time that the pavement was icy.

Soon thereafter, a tractor trailer approached the scene of the accident from the right lane of the highway traveling in the same direction as defendant Capellini. The tractor trailer driver applied his brakes, but could not control his own trailer, which lost control and struck some other trucks parked as a result of the collision.

Finally, the plaintiff approached the scene of the accidents on the overpass and applied her brakes, thus causing her to spin her vehicle and strike the guardrail.

The matter proceeded to trial, with the jury returning a verdict finding that none of the parties, including the plaintiff, were negligent. The plaintiff then brought a motion to set aside the verdict as against the weight of the evidence and for a new trial. Both motions were denied by the trial court.

On appeal, the Appellate Division, Fourth Department, upheld the trial court's rulings, reiterating that "a motion to set aside a jury verdict of no cause of action should not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence." In this case, the Fourth Department found that the actions of the defendants were reasonable and not negligent, thus justifying the jury's verdict.

In Accetta v. Simmons, 2013 WL 3358930 (4th Dept., 2013), the plaintiff moved for default judgment against the defendant after the late service of the defendant's answer in a personal injury case. The defendant brought a motion to compel the plaintiff to accept her answer as timely. The lower court denied the plaintiff's motion for default judgment, and granted the defendant's motion to compel acceptance of the late answer.

The Appellate Division, Fourth Department, found that the defendant demonstrated sufficient factual support for a meritorious defense. More importantly, the Fourth Department found that the defendant's excuse for the lateness of her answer was reasonable. In this case, the defendant's insurer misunderstood the defendant's warning that she had been served with a summons and complaint. As a result, the insurer did not immediately begin the process of assigning an attorney to the defendant. After the defendant sent a copy of the summons and complaint to the insurer, an attorney was promptly provided. The answer was eventually served 40 days late.

The Appellate Division, Fourth Department, refused to follow its prior rationale in Smolinski v. Smolinski, 13 A.D.3d 1188 (4th Dept., 2004) that "an excuse that the delay in appearing or answering was caused by the defendant's insurance carrier is insufficient." Furthermore, the Fourth Department ruled that this is no longer to be followed. Rather, the determination as to whether delay caused by an insurer constitutes a reasonable excuse for a default in answering lies "in the discretion of the court in the interests of justice". The Appellate Division finally determined that the plaintiff failed to establish that she sustained any prejudice from the delay of service of the answer.

In Harleysville Insurance Company of New York v. Potamianos Properties, LLC, 2013 WL 3359267 (4th Dept., 2013), the plaintiff, Harleysville Insurance, commenced a declaratory judgment action seeking a declaration that the policy excludes coverage for the defendant's loss.

In this case, the defendant's building sustained damage when an underground water supply line ruptured. The water line provided water to the building's sprinkler system. The water pressure from the rupture, in combination with the eroded soil adjacent to the building, caused a large section of the building's concrete block foundation wall to fall inward, which permitted water, mud and debris to flow into and fill the basement.

The defendant's liability policy with Harleysville contained a "Water Exclusion Endorsement" which excluded coverage for damage caused by "mudslide or mudflow", as well as "water under the ground surface pressing on, or flowing or seeping through . . . foundations, walls, floors or paved surfaces; or . . . basements, whether paved or not." Under the terms of the endorsement, the exclusion applies "regardless of whether the loss is caused by an act of nature or is otherwise caused." The endorsement further provided that Harleysville would pay for loss or damage caused by any fire, explosion or sprinkler leakage caused by any of the above-referenced occurrences.

The Appellate Division, Fourth Department, agreed with the trial court's finding that the loss arose when the water from "under the ground" pressed on and flowed through the building's foundation walls into the basement.

Additionally, the Fourth Department agreed with the trial court's contention that the portion of the endorsement providing coverage where an excluded occurrence results in "sprinkler leakage" does not apply, since the ruptured pipe did not cause the sprinkler to leak. Furthermore, the Court found that since the exclusion applied regardless of whether the occurrence was "caused by an act of nature or is otherwise caused", it did not matter that it was caused by a ruptured pipe rather than a natural phenomenon. As a result, the Fourth Department upheld the trial court's granting of the plaintiff's motion for summary judgment.

Prepared by Michael J. Chmiel