In Lloyd v. Moore, 115 A.D.3d 1309 (4th Dept. 2014), the plaintiff commenced an action for damages he allegedly sustained as a result of exposure to lead paint in two apartments in which he lived as a child. Represented by Katie Renda of Chelus Herdzik Speyer and Monte, P.C., one of individually named defendants, the building owner, brought a motion for summary judgment to dismiss the claims against him on the grounds that he was not personally liable for the plaintiff's alleged damages. The Appellate Division, Fourth Department, reversed the order of the trial court and granted summary judgment dismissing the complaint as to the defendant building owner.

The Court noted that the "commission of a tort doctrine" permits personal liability against a corporate officer only when such officer has committed an affirmative tortious act. A corporate officer cannot be held personally liable for a failure to act. The Court held that defendant met his initial burden by presenting evidence that established that he did not personally participate in any affirmative tortious act. The Court held that plaintiff failed to raise a triable issue of fact in response by not submitting any evidence that defendant affirmatively created the dangerous lead condition at the property or did anything to make it worse.

In Johnson v. Time Warner Entertainment, 115 A.D.3d 1295 (4th Dept. 2014), the plaintiff brought an action for injuries he sustained when the vehicle in which he was a passenger was struck by a vehicle driven by the defendant, Lonkey. Defendant Lonkey moved for summary judgment dismissing the complaint. The Appellate Division, Fourth Department affirmed the trial court's order granting summary judgment for Lonkey, finding that Lonkey met his burden on summary judgment by establishing that he was driving within the speed limit, that he had no time to avoid the collision, and that plaintiff was entering the roadway from a parking lot.

The Court found that plaintiff failed to raise a triable issue of fact in response in several respects. First, the Court found that because plaintiff was not qualified as an expert, plaintiff's own testimony that he believed Lonkey was speeding based on the length of the skid mark and the force of the collision was speculative and without any probative value. Further, the Court found that the affidavit submitted by plaintiff's expert was also speculative and conclusory regarding defendant Lonkey's speed and whether he could have avoided the collision.

In Heltz v. Barratt, 115 A.D.3d 1302 (4th Dept. 2014), the plaintiff commenced an action against the owner and operator of a motor vehicle for injuries she sustained when the motor vehicle in which she was a passenger was struck by defendant Barratt's vehicle. The direction of traffic for the vehicle in which plaintiff was travelling was controlled by a stop sign, while the direction of travel of the Barratt vehicle had no traffic control devices. Defendants, the owner and the operator of the motor vehicle, moved for summary judgment dismissing the complaint. The trial court granted defendants' motion for summary judgment.

Plaintiff filed two appeals. First, plaintiff appealed the trial court's grant of summary judgment for the defendants. The Appellate Division, Fourth Department held that defendants met their burden of establishing that Barratt was operating the motor vehicle in a lawful and prudent manner and that there was nothing he could have done to avoid the collision. Defendants submitted testimony that Barratt saw plaintiff's vehicle at the stop sign, braked as soon as he saw it enter the intersection and turned to the left after he braked, but stated there was nothing he could have done to avoid the accident. The Court found that plaintiff failed to raised a triable issue of fact that Barratt could have avoided the accident.

Plaintiff also appealed the trial court's denial of her motion for leave to renew. The Appellate Division noted that a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination. In affirming the trial court's denial of plaintiff's motion, the Appellate Division noted that plaintiff stated her reason for failing to submit an expert affidavit in opposition to defendants' motion was because she believed that she had raised an issue of fact without it. The Court held that was not a reasonable justification for the failure to present the affidavit on the initial motion.

In Heatter v. Dmowski, 115 A.D.3d 1325 (4th Dept. 2014), the plaintiff brought a personal injury action for injuries she allegedly sustained in a motor vehicle accident. The defendant moved for summary judgment on the grounds that plaintiff did not sustain a serious injury pursuant to Insurance Law 5102(d) in any of the following categories: permanent loss of use; permanent consequential limitation of use; significant limitation of use; or "90/180", i.e. 90 days of specified disability within the first 180 days following the accident . The Appellate Division, Fourth Department reversed the order of the trial court and granted the defendant's motion for summary judgment.

In granting defendant's motion that plaintiff failed to meet her burden to show a serious injury in any of the serious injury categories, the Court noted that defendant submitted the affirmation of a physician who examined plaintiff and stated that although plaintiff had sustained a cervical strain that had resolved within weeks of the accident, the post-accident MRI films of the cervical spine were unchanged from the prior cervical MRI films taken five years earlier. Further, the Court noted these films revealed no objective evidence of a recent traumatic or causally related injury. With respect to the 90/180 day category, the Court noted that plaintiff failed to submit the requisite objective evidence and failed to establish that the alleged limitations in her daily activities resulted from the injuries sustained in the accident.

In Korthals v. LCB Capital, LLC, 115 A.D.3d (4th Dept. 2014), the plaintiff commenced a personal injury action to recover for injuries she allegedly sustained as a result of a slip and fall accident outside an apartment building. The defendant building owner moved for summary judgment, arguing that it had no duty to remedy the allegedly dangerous condition prior to the accident because there was a storm in progress when plaintiff slipped. The Appellate Division, Fourth Department affirmed the trial court's denial of the defendant's summary judgment motion, finding there were questions of fact as to whether defendant had a duty to remedy the dangerous condition prior to the happening of the accident.

The defendant submitted meteorological records which established that the alleged storm consisted of freezing rain and mist which ended no later than 4:52 a.m. on the date of the accident. Plaintiff fell approximately four hours later. The weather information submitted by the defendant showed that there were "mainly clear skies" in the area at the time of the accident. The Court determined that the defendant's submissions established that the storm had ended at the time of plaintiff's fall and that there was therefore a triable issue of fact whether a reasonable period of time had passed since the abatement of the storm to impose a duty on the defendant to remedy the dangerous condition caused by the alleged storm.

In Fanti v. Concepcion, 115 A.D.3d 1341, (4th Dept. 2014), the plaintiff brought an action for personal injuries allegedly sustained in a rear-end collision that occurred in May 2007. The plaintiff was also involved in another similar accident in October 2007. The defendant, a driver involved in the May 2007 accident filed a motion for summary judgment arguing that the plaintiff did not sustain a serious injury within the meaning of section 5102(d) of the Insurance Law. Plaintiff conceded that he did not sustain a serious injury as the result of the first accident in May 2007, but contended that defendants were nevertheless liable for the injuries sustained in the second accident. The Appellate Division, Fourth Department reversed the order of the Supreme Court, Erie County (Joseph R. Glownia, J.) and granted the defendants' motion for summary judgment dismissing the complaint. The Fourth Department reiterated that defendants are not liable for injuries sustained in a second accident that are distinguishable from injuries sustained a prior accident.

In Sims v. City of Rochester, 115 A.D.3d 1355 (4th Dept. 2014), the plaintiff brought an action based on Labor Law 240(1) and common-law negligence for injuries she allegedly sustained when she allegedly fell from scaffolding while performing asbestos abatement work during a construction project. Plaintiff moved for partial summary judgment on the issue of liability. The Appellate Division, Fourth Department affirmed the order of the trial court which denied plaintiff's motion. The Appellate Division noted that in order to be entitled to a judgment on liability for a violation of section 240(1) of the Labor Law, a plaintiff is required to show, as a matter of law, both a violation of the section which requires that "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices...shall be...constructed, placed and operated as to give proper protection to a person so employed" and also that the violation was a proximate cause of the injuries. The Court found that plaintiff failed to meet her burden because inconsistent versions of how the accident happened raised a question of fact as to the plaintiff's credibility. The Court found that these inconsistent versions were insufficient to prove that the defendant's failure to provide plaintiff with proper protection proximately caused her injuries.

In support of her motion, the plaintiff presented her own deposition testimony in which she stated that the accident occurred while she was working on a scaffold which shifted and caused her to fall to the ground. Plaintiff also submitted deposition testimony of two witnesses to the accident. One of the witnesses testified that plaintiff was not working on the scaffold when the accident occurred and that the scaffold was unoccupied and tipped over and fell while another employee was attempting to move the scaffold. This witness did not see the scaffold fall on plaintiff. A second witness to the accident testified that he observed one of plaintiff's co-workers push plaintiff out of the way of the falling scaffold and that plaintiff fell to the ground. This witness also did not see the scaffold fall on the plaintiff. The Court held that plaintiff's failure to eliminate all questions of fact mandated the denial of her motion for summary judgment on liability.

In Spain v. Holl, 115 A.D.3d 1368 (4th Dept. 2014), the plaintiff commenced an action seeking damages for injuries allegedly sustained as a result of his exposure to lead paint in two apartments in which he resided. Defendant owners of the apartments each moved for summary judgment dismissing the complaint. Plaintiff cross-moved for partial summary judgment against one of the defendants, on the issue of notice and negligence. The Appellate Division, Fourth Department reversed in part and affirmed in part the order of the trial court. The Appellate Division dismissed the complaint as to one of the defendants; reversed the order of the trial court and denied summary judgment as to the other defendant; and affirmed the trial court's order denying the plaintiff's cross motion.

As to the first defendant, the Court found that the defendant met his burden on summary judgment by demonstrating that he had no actual or constructive notice of the hazardous lead paint condition. As to the second defendant, the Court found that issues of fact remained whether this defendant took reasonable measures to abate the lead paint hazard after he received actual notice thereof and further, whether the plaintiff sustained additional injuries after defendant received such notice.

Prepared by Martha E. Donovan