In Catalano v. Tanner, 2013 N.Y. Slip Op 08683 (4th Dept. 2013), the plaintiff commenced an action seeking damages for injuries allegedly sustained when his chair at the defendant's restaurant collapsed. Defendants moved for summary judgment dismissing the complaint, and the Supreme Court, Erie County denied the motion.

Plaintiff testified he went to the restaurant five mornings per week and that he sat at the same table in the same chair every morning. He had never experienced any problems. In addition, plaintiff did not notice anything wrong with the chair when he sat down and had no idea what caused it to collapse.

The Appellate Division, Fourth Department found that defendant met her duty as a property owner to inspect her property. The defendant testified that she wiped down the chairs at the end of each day, that she performed a major cleaning of the restaurant every month or so, and that such included an inspection of the chairs. She also testified that there were no prior complaints, incidents, accidents, or any other circumstances regarding the chairs at issue.

Because the chair was located in a restaurant open to the public where many patrons had access to the chair, the Court held that the record was devoid of evidence that could exclusively rule out the chance that the defect was caused by some agency other than negligence on the part of the defendant. Therefore, the Appellate Division, Fourth Department, granted the defendant's motion for summary judgment dismissing the complaint.

In Haberl v. Verizon N.Y., Inc., 2014 N.Y. Slip Op 00049 (4th Dept. 2014), the plaintiff commenced an action to recover damages for injuries allegedly sustained during a slip and fall on a wet floor at premises owned by defendant Verizon N.Y., Inc. Co- defendant, Global Industrial, who maintained the premises, appealed from an order of the Supreme Court, Erie County, denying its motion for summary judgment against plaintiff.

Global had entered into a contract with Verizon to provide cleaning and snow removal services at the premises. The plaintiff was not a party to the contract. Global contended that therefore it owed no duty to the plaintiff. In Global, the Court held that no exception existed to the general rule that a contractual obligation, standing alone, cannot give rise to tort liability in favor of a third-party where no duty exists.

The Appellate Division, Fourth Department rejected plaintiff's contention that an exception to the general rule should be permitted and held that the circumstances present in the case before it did constitute a duty owed to plaintiff by Global.

In Tone v. Song Mtn. Ski Ctr., 2014 N.Y. Slip Op 00048 (4th Dept. 2014), plaintiff commenced an action seeking damages for injuries sustained while using a triple chair lift upon the premise of the defendant, Song Mountain Ski Center. Defendants moved for summary judgment to dismiss the complaint on the grounds that plaintiff assumed the risk of injury by willingly engaging in the recreational activity of skiing. Plaintiff appealed from an order of the Supreme Court, Onondaga County, which granted the motion of the defendants for summary judgment dismissing their complaint.

In modifying the order of the Supreme Court, the Appellate Division, Fourth Department agreed that plaintiff consented to the risk of injuries that are known, apparent or reasonably foreseeable, consequences of participation in an event such as downhill skiing, but that the principle did not completely eliminate the duty of care imposed upon the defendant, since negligence by the defendant could unduly enhance the level of risk assumed.

Plaintiff was injured when she either jumped or was thrown from the chair lift before it reached the safety gate that would have stopped it after failing to unload at the proper location because her skis were entangled with her son's skis. Relying on the defendant's own testimony, which indicated that the top lift attendant had sufficient time to observe the plaintiff's distress and slow or stop the lift, the Court held that such facts were sufficient to raise triable issues as to whether the alleged failure to operate the lift in a safe manner was a proximate cause of the accident.

In Guga v. Watertown Bd. of Educ., 2014 N.Y. Slip Op 00030 (4th Dept. 2014), the claimant's daughter was supposed to be placed on a school bus after school and transported home in order to avoid a potential conflict with two other students who had threatened the claimant's older child. It was alleged that the school district breached that duty by failing to tell the daughter to take the bus home or to even inform her that a potential danger existed. As such, the claimant's daughter walked home and was assaulted by the two students off school property.

The defendants appealed from an order granting the claimant's application for leave to serve a late notice of claim. In affirming the decision of the Supreme Court, the Appellate Division, Fourth Department, reiterated the established precedent that key factors for the Court to consider in determining the application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for such delay, whether the respondents acquired actual knowledge of the essential facts constituting the claim within ninety days or within a reasonable time thereafter, and whether the delay will substantially prejudice the respondents in maintaining a defense on the merit.

The Appellate Division held that claimant established a reasonable excuse for the delay because claimant was unaware of the serious nature of her daughter's injury and its permanency during the ninety-day period immediately following the incident. The Court also concluded that the respondents had actual or constructive notice of the facts constituting the claim since it was undisputed that the School District had knowledge of the claimant's daughter's assault. In addition, it was shown that the District investigated the incident by questioning students and faculty within days of the assault.

In McKnight v. Coppola, 2014 N.Y. Slip Op 00015 (4th Dept. 2014), plaintiff commenced an action seeking damages for injuries she allegedly sustained from falling down a basement stairway at the defendant's residence. The accident occurred when plaintiff, intending to open the door to the first floor bathroom, instead opened the door to the basement. Plaintiff moved her hand along the wall in search of a light switch, took a step, and fell down the stairs. She filed suit, alleging defendant owner was negligent in failing to maintain his property in a reasonably safe condition and failing to warn her of the danger posed by the location of the basement door, which was next to the bathroom door and identical in appearance.

The Supreme Court, Niagara County, granted defendant's motion for summary judgment dismissing the complaint, but the Appellate Division, Fourth Department reversed, stating that triable issues of fact were raised by the defendant's own submissions regarding the proximity and appearance of the bathroom and basement doors. Furthermore, the Court held that defendant did not meet his burden of establishing that he discharged his broader duty to maintain his property in a reasonably safe condition, or, in the alternative, that plaintiff's conduct was the sole proximate cause of her fall.

In Pulver v. City of Fulton Dept. of Pub. Works, 2014 N.Y. Slip Op 00004 (4th Dept. 2014), plaintiff commenced an action to recover damages for injuries allegedly sustained when she tripped and fell in a hole in a grassy area between the curb and paved portion of the sidewalk. The area was owned and maintained by the defendant, City of Fulton. The record showed that an unidentified party placed a plywood board over the hole, but no City representatives had personal knowledge of the plywood being present. Each party could only offer speculative testimony with respect to who placed the plywood over the hole.

Defendants moved for summary judgment, and plaintiff cross-moved for partial summary judgment as to liability. Plaintiff argued that the City was on notice since she had submitted a pre-accident "work order" to the City for the location in question. The City established that it had sent an employee to inspect the area following that work order, and the employee found nothing wrong with the area and performed no work. The Supreme Court, Oswego County, denied both motions.

Since the City produced a witness with personal knowledge regarding the area in question, the City employee who responded to plaintiff's "work order", the Appellate Division, Fourth Department dismissed plaintiff's claims in their entirety, finding that no prior written notice of the alleged defect was given.

On December 26, 2013, President Obama signed into law changes to the Federal Medicaid Statute which were incorporated into the Bipartisan Budget Act. These changes now create practically unlimited recovery rights for state medical assistant agencies, such as the New York Medical Assistance program, from a beneficiary's personal injury recovery. The amendment has the effect of overruling two Supreme Court decisions that previously restricted Medicaid reimbursement claims in tort cases. Previously, as the federal statute was construed by the Courts, the statute limited a Medicaid agency's reimbursement right to the portion of a tort recovery actually representing payment for covered medical expenses. Under the new section titled "Strengthening Medicaid Third-Party Liability", state medical assistant agencies may now recover any payments made by such third-party. The legislation is set to take effect October 1, 2014.

Prepared by Katelyn E. Dieffenderfer