In the wrongful death claim of Milczarski v. Walaszek (4th Dept, July 19, 2013), the defendants sought partial summary judgment seeking dismissal of the plaintiffs' action insofar as it sought damages for pecuniary losses. The defendants contended that the decedent's brother Christopher did not suffer pecuniary losses beyond funeral expenses. Defendants also argued that the decedent's other brother Matthew and sister Cynthia did not suffer any pecuniary losses.

The Fourth Department agreed that the defendants were entitled to summary judgment with respect to pecuniary losses for decedent's brother Christopher beyond funeral expenses. The Court further held that the defendants were entitled to summary judgment with respect to Cynthia's claim for pecuniary losses.

With respect to the decedent's brother Matthew, however, plaintiff presented evidence of a longstanding close and interdependent relationship shared between the two. Based on this evidence, the Court determined that questions of fact existed as to whether Matthew suffered pecuniary losses as a result of the decedent's death.

In Haire v. The Pyramid Companies, et al and Silk v. The Pyramid Companies, et al, (3rd Dept., June 13, 2013), the plaintiffs were injured when a gunman entered the Hudson Valley Mall ("Mall") with an automatic assault rifle and fired off sixty rounds of ammunition. The plaintiffs commenced actions against several defendants, including the Mall, alleging that the Mall failed to provide adequate security.

The Mall moved for summary judgment on the grounds that the gunman's actions were unforeseeable and they owed no duty to the plaintiffs to provide security measures to prevent such unforeseeable acts. In support of this argument, the defendant submitted evidence that criminal activity at the Mall prior to the shooting consisted of much less serious offenses, such as larceny, trespassing and disorderly conduct.

The Court was unpersuaded by plaintiffs' arguments that the gunman's actions were foreseeable because he was seen in the Mall's parking lot immediately before the shooting and because the Mall security director acknowledged that he was aware of mall shootings nationwide and of the possibility that a shooting could occur at the Mall. It was held that the gunman's actions were not reasonably foreseeable and the Mall was entitled to summary judgment.

In Kesick v. New York Central Mutual Fire Insurance Company (3rd Dept, May 9, 2013), the plaintiff; who was a State Trooper, licensed registered nurse and paramedic; responded to a motor vehicle accident site where two vehicles, one driven by Joseph Prindle and one driven by Ralph Williams, had collided. Williams' vehicle had flipped over and Williams was trapped inside. Williams was complaining of severe neck, hip and chest pain. The plaintiff climbed into Williams' vehicle to stabilize his neck. Plaintiff was injured while lifting Williams out of his vehicle.

The plaintiff commenced a personal injury suit against Prindle and Williams. The action was dismissed as against Williams, and plaintiff settled his claim with Prindle for the $25,000 limit of Prindle's insurance policy. Plaintiff then sought coverage under the supplemental underinsured-uninsured ("SUM") policy that he held with the defendant New York Central. New York Central denied coverage, claiming that plaintiff was not injured as a result of a motor vehicle accident. Plaintiff thereafter commenced the instant action seeking payment under the SUM policy, arguing that the doctrine of "danger invites rescue" established a causal connection between the motor vehicle accident and his injuries. New York Central moved for summary judgment.

The "danger invites rescue" doctrine imposes liability in favor of a rescuer upon a defendant who, by his or her culpable act, invites the rescuer to come to the aid of a person the defendant placed in danger. The doctrine applies where the rescuer had a reasonable belief that the person being rescued was in peril.

In this case, the Court held that plaintiff's belief that Williams was in peril was reasonable. When plaintiff responded to the accident scene, Williams told him that he had extreme pain in his neck, check and hip. Plaintiff knew from his experience as a nurse and paramedic that Williams' neck needed to be stabilized to prevent further injury. That finding, combined with the undisputed fact that Prindle's negligent use of his vehicle caused the accident that that led to Williams' injuries, led the Court to conclude that the defendant's summary judgment motion should be denied.

In Shetsky, et al v. Corbett, (3rd Dept, June 6, 2013), the plaintiffs were traveling northbound on a two-way highway when drifting snow caused the vehicle to cross the center line. Plaintiffs' vehicle collided head-on with a southbound vehicle being operated by the defendant. The defendant moved for summary judgment on the basis that she was faced with an emergency situation not of her own making and acted reasonably under the circumstances. In support of her motion, the defendant submitted all parties' deposition testimony and the police accident report, all of which clearly established that the accident occurred when the plaintiffs' vehicle entered her lane of travel. The defendant's deposition testimony also established that when she saw the plaintiffs' vehicle cross the center line, she applied her brakes and tried to move to the right but was unable to avoid the collision.

Plaintiffs, by submitting an affidavit from an accident reconstruction expert, attempted to raise a question of fact as to whether the defendant caused or contributed to the accident. The plaintiffs' expert opined that defendant was driving too fast for conditions and therefore contributed to the accident.

The Court was unpersuaded by the expert's affidavit, stating that the conclusion that the defendant was driving too fast was unsubstantiated by any evidence on the record and was merely an assumption insufficient to raise a question of fact. It was held that summary judgment in favor of the defendant was warranted.

In K2 Inv. Group, LLC v. American Guarantee & Liability Ins. Co., (Court of Appeals, June 11, 2013), the plaintiffs commenced a legal malpractice action against one Jeffrey Daniels for failing to record a mortgage, alleging that such a failure was a departure from good and accepted legal practice. Daniels notified the defendant American Guarantee, his malpractice carrier, and forwarded to American Guarantee a copy of the complaint. American Guarantee refused to provide Daniels with a defense and/or indemnification on the basis that the plaintiffs' allegations were not based on the rendering or failing to render legal services for others.

The plaintiffs pursued the lawsuit against Daniels, which resulted in a default judgment in excess of the $2,000,000.00 limits of the policy Daniels had with the defendant. Daniels assigned his rights against American Guarantee to the plaintiffs, and the plaintiffs brought this action against American Guarantee for breach of contract and bad faith failure to settle the underlying lawsuit.

The defendant moved for summary judgment, relying two policy exclusions for indemnification. The plaintiffs cross-moved for summary judgment. The Supreme Court granted plaintiffs' cross-motion on the breach of contract claims, and the Appellate Division affirmed, with the majority holding that the policy exclusions cited by the defendant did not apply to the circumstances of this case.

The Court of Appeals affirmed summary judgment in favor of the plaintiffs on the breach of contract claim without reaching the question of whether the policy exclusions relied on by the defendant were applicable. Instead, the Court held that, by breaching its duty to defend Daniels, the defendant had forfeited its right to rely on policy exclusions to escape its duty to indemnify.

Prepared by Katie L. Renda