In Heimbach v. State Farm Insurance, 114 A.D.3d 1221 (4th Dept., 2014), the plaintiff commenced action against defendants to recover supplementary underinsured motorist (SUM) coverage pursuant to an automobile liability insurance policy issued by defendants. Plaintiff moved to compel defendant to produce its entire claim file and to compel a representative who handled plaintiff's claim to appear for depositions. Plaintiff argued that such disclosure was "material and necessary" to the prosecution of plaintiff's action. The Supreme Court, Erie County (Tracey A. Bannister, J.) issued an order denying plaintiff's motion and the plaintiff appealed.

The Appellate Division, Fourth Department, substituting their discretion for that of the Court, concluded that the plaintiff's motion should be granted. The Court held that "given the scope of the liability and damages issues framed by the pleadings" the plaintiff's request for defendant's entire claim file was not palpably improper and that disclosure was "material and necessary" for the prosecution of plaintiff's action. The Court further concluded that defendant failed to meet its burden of establishing that parts of the claim file contained privileged materials or information otherwise exempt from discovery. With respect to plaintiff's motion to compel the deposition of the defendant's representative directly responsible for handling plaintiff's claim, the Appellate Court, in granting plaintiff's request, held that the plaintiff established that the defendant representative possessed "material and necessary" information regarding the action.

In Quill v. Churchville-Chili Central School District, 114 A.D.3d 1211 (4th Dept., 2014), the plaintiff commenced action seeking damages for injuries he sustained when he slipped and fell on snow or ice in a school parking lot located in defendant school district. The defendant moved for summary judgment to dismiss plaintiff's complaint, arguing that defendant had no duty to remove the snow and ice from the parking lot because there was a storm in progress at the time the plaintiff fell. The Supreme Court, Monroe County, denied defendant's motion and determined that "while defendant...had no duty to remove snow until the storm had ended, factual issued remain regarding the claimed presence of pre-existing hard-packed snow, and attendant actual or constructive notice to defendant."

On defendant's appeal, the Appellate Division, Fourth Department, unanimously reversed, granted defendant's motion for summary judgment and dismissed plaintiff's complaint. The Court concluded that defendant met its initial burden on the motion by establishing that there was a storm in progress at the time of the accident. The facts show that the plaintiff fell at approximately 6:30 a.m. as he was walking back to his truck after removing waste from a dumpster in defendant's parking lot. Defendant's expert meteorologist stated that a snowstorm began in the area between 10:00 p.m. the night before the accident and 12:00 a.m. the morning of the accident, and that snow and freezing rain continued until approximately 10:00 a.m. the day of the accident. A groundsman at the school testified that it was snowing before and at the time plaintiff fell. The Court held that this was sufficient evidence to sustain defendant's burden on their motion. The Court further held that the plaintiff failed to raise a triable issue of fact whether plaintiff slipped on a pre-existing condition of which defendant had actual or constructive notice, or whether plaintiff slipped on precipitation from the storm in progress.

The Court declined to consider plaintiff's argument that defendant failed to establish that it did not create a hazardous condition or exacerbate the hazards of the storm as this argument was improperly brought before the Court for the first time on appeal.

In Anthony v. Phelps, 114 A.D.3d 1142 (4th Dept., 2014), the plaintiff commenced action seeking damages for injuries he sustained while attempting to avoid a collision between the motorcycle he was driving and defendant's vehicle. At the close of proof at trial, the plaintiff moved for a directed verdict, which the Supreme Court, Jefferson County denied. The jury rendered a verdict of no cause of action. The plaintiff made a post-trial motion to set aside the verdict as against the weight of the evidence. The trial court denied plaintiff's motion. The plaintiff appealed.

The Appellate Division, Fourth Department unanimously reversed the judgment of no cause for the defendant and granted plaintiff a new trial. Although the Court agreed that the Supreme Court properly denied plaintiff's motion for directed verdict on the issue of negligence, when viewing the evidence in the light most favorable to the nonmoving party, the Court also agreed with plaintiff that the trial court erred in denying plaintiff's request to instruct the jury pursuant to New York Vehicle and Traffic Law Section 1142(a).

Section 1142(a) provides that defendant was obligated to yield the right-of-way "to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection". The Court held that the jury should have been instructed as to the standard of care in Section 1142(a) and instructed to determine whether defendant was negligent in failing to yield the right-of-way.

In Moore v. Hoffman, 114 A.D.3d 1265 (4th Dept., 2014), the plaintiffs' commenced action against defendant seeking damages for injuries sustained by their daughter when the defendant collided with their daughter from behind while skiing. The defendant moved for summary judgment to dismiss the plaintiffs' complaint on the grounds that plaintiffs daughter was engaging in a sport or recreational activity wherein plaintiffs' daughter consents by participation to those commonly appreciated risks inherent in the nature of the sport. The Supreme Court, Erie County (Diane Y. Devlin, J.) denied defendant's motion. The defendant appealed and the Appellate Division, Fourth Department, unanimously affirmed without costs.

The Fourth Department concluded that the Supreme Court properly denied defendant's motion for summary judgment dismissing the plaintiff's complaint because there were issues of fact whether the doctrine of assumption of the risk applies and whether defendant's carelessness in colliding with plaintiffs' daughter was reckless conduct.

The daughter testified at her deposition that she was a novice skier and skiing down an easy trail when she heard the defendant yell "whoa" three times before striking her from behind. A friend skiing with plaintiffs' daughter at the time of the accident submitted an affidavit stating that she observed the defendant skiing "very fast" and running plaintiffs' daughter over "from nearly directly behind" and "without slowing, stopping or otherwise turning to avoid" her. The Court held that although the risk of injury caused by another skier is an inherent risk of downhill skiing, a participant will not be deemed to have assumed the risks of reckless or intentional conduct. Here, the Court concluded that there is at least a triable issue of fact as to whether defendant's overall conduct and speed in the vicinity was reckless and thus was over and above the risk assumed by plaintiffs' daughter.

In Benson v. City of Tonawanda, et al., 114 A.D.3d 1262 (4th Dept., 2014), the plaintiff commenced action seeking damages for injuries she sustained when her foot was caught in a gap between two wooden planks on a pedestrian bridge located within a park maintained by the City of Tonawanda. The plaintiff's complaint alleged defendants failed to maintain the bridge in a reasonably safe condition and created the condition that caused plaintiff's injuries. The defendants moved for summary judgment to dismiss plaintiff's complaint on the grounds the municipality enacted a prior notification law requiring prior written notice of a defective or unsafe condition as a condition precedent to an action against the municipality. The Supreme Court, Erie County (Michael L. D'Amico, A.J.) granted defendants motion in its entirety and dismissed the plaintiff's complaint. The plaintiff appealed.

The Appellate Division, Fourth Department concluded that the Supreme Court erred in granting the motion to the extent plaintiff alleges that defendants created the dangerous condition that resulted in her injuries. The Court held that although defendants met their initial burden of establishing, as a matter of law, that they did not receive prior written notice of a defective condition, the plaintiff raised an issue of fact whether defendants created a dangerous condition by constructing the bridge with half-inch gaps between wood planks instead of the quarter-inch gaps specified in the design plans for the bridge.

In Town of Oyster Bay v. Lizza Industries, Inc., et al., 2013 WL 6589560 (Dec. 2013), litigation arose out of defendants' construction of a sewer system pursuant to a public works contract entered into in the 1970s. Defendants completed the sewer construction work at various points in the 1970s and 1980s. Sometime thereafter, the sewer lines settled and caused damage to plaintiff municipalities' adjacent roadways, sidewalks and curbs. As a result, plaintiff municipalities commenced 10 related actions in July 2009 alleging a "continuing public nuisance" as the result of defendants' faulty workmanship under the contract.

The Supreme Court dismissed the complaints in each action, and the Appellate Division affirmed. Citing the rule from City School Dist. of City of Newburg v. Stubbins & Assoc., 85 N.Y.2d 535 (1995), the Appellate Division held that a cause of action arising out of a defective construction accrues upon completion of the contractual work. The Court found that plaintiff municipalities, although not parties to the original sewer construction contract, were third-party beneficiaries to the contract and as such were subject to and barred by a six year statute of limitations for a cause of action alleging breach of contract. The Appellate Division also rejected claimants' argument that the conduct gave rise to an ongoing nuisance. The Appellate Division granted plaintiff municipalities leave to appeal to the Court of Appeals.

The Court of Appeals, in affirming the Appellate Division's decision and applying Newburg, held that the causes of action brought by the plaintiffs were subject to a six year breach of contract statute of limitations. Despite alleging a cause of action for continuous public nuisance, the plaintiffs standing was as third-party beneficiaries to the original contract. The Court reasoned that "no matter how a claim is characterized in the complaint, all liability for defective construction has its genesis in the contractual relationship of the parties." Here, the Court held, the benefit of the sewer system to the plaintiff municipalities was a fact "surely known to all parties at the time the contracts were negotiated". The Court of Appeals concluded that the "completion of performance accrual rule" which applies to actions against architects or contractors brought by intended beneficiaries of construction contracts was applicable here to bar plaintiffs' claims against the defendant.

Prepared by Leah A. Costanzo