In Jones v. County of Erie (2014 N.Y. Slip. Op. 06726), the plaintiff commenced an action seeking damages under Labor Law §200, §240(1), and §241(6) for injuries he sustained at work when he fell out of a tree while trimming branches on a property owned by the defendant, County of Erie. In addition to seeking damages from Erie County, plaintiff also sought damages against the general contractor hired by Erie County and its subcontractor.

Each of the defendants moved separately for summary judgment, and the Supreme Court, Erie County, granted each of the motions. The opinion of the Appellate Division reflects that plaintiff only appealed from so much of the lower court's order which granted the defendants' motion to dismiss plaintiff's Labor Law §200 claims. The Appellate Division, Fourth Department, reasoned that plaintiff's causes of action under Labor Law §200 could not stand because Labor Law §200 requires that the party charged with the responsibility and duty to provide a reasonably safe place to work have the authority to control the activity which brought about the injury. The Court held that Labor Law §200 cannot be imposed upon a defendant if there is no evidence that the defendant exercised supervisory control or had input into how the plaintiff carried out the work which resulted in injury.

Since the County did not provide plaintiff with any of his equipment or a supervisor and since plaintiff acknowledged that he never took any instruction from either the general contractor or subcontractor or their employees with regards to how to perform work, the Fourth Department affirmed the lower Court's decision.

In Cason v. Smith (2014 N.Y. Slip. Op. 06412), plaintiff sought to recover damages for injuries he sustained when the bus he was operating collided with a tractor trailer owned by defendant Werner Enterprises, Inc. (Werner) and operated by defendant Smith. The Buffalo City Court granted plaintiff's motion to strike the answers of both Smith and Werner based on Smith's failure to appear for a Court-ordered deposition.

The Appellate Division, Fourth Department, affirmed that the City Court did not abuse its discretion in granting the plaintiff's motion to strike the answer interposed by Smith but found that the Court did abuse its discretion in striking the answer interposed by Werner. The Court found that Smith was no longer employed by Werner and had left his employment prior to commencement of the action. Since plaintiff offered no evidence in admissible form that Werner exercised control over Smith, or was otherwise responsible for Smith's failure to appear for his deposition, the Court held that Werner had no duty to produce Smith for a deposition.

With respect to Werner's failure to produce a corporate representative for a Court-ordered deposition, the Court held that although the plaintiff's papers established that Werner's failure to comply with the disclosure order was either willful, contumacious or in bad faith, Werner, in response, offered a reasonable excuse for its failure to comply. Plaintiff had sought to depose a Werner representative solely in connection with his cause of action involving negligent hiring, training and supervision, which was no longer relevant after Werner admitted the facts necessary to establish vicarious liability as a matter of law. Accordingly, the Court did not impose the drastic remedy of striking Werner's answer and instead sanctioned Werner to pay a sum of $1,500.00 to plaintiff's counsel.

In Young v. Lacy (2014 N.Y. Slip. Op. 06417), plaintiff commenced an action seeking damages for injuries sustained in a motor vehicle accident with the defendant. During the trial, defendant's attorney attempted to question plaintiff about information in her Federal tax returns which he believed to be inaccurate. According to defendant's attorney, plaintiff's improper filing as head of household resulted in plaintiff receiving tax credit to which she would not otherwise have been entitled. The Supreme Court, Onondaga County, precluded defendant's attorney from asking plaintiff any questions about information in her tax returns on the grounds that plaintiff had not been asked about the issues at her deposition. Defendant's attorney objected to the Court's ruling, preserving the issue for appellate review. Following trial, the jury rendered a verdict in favor of the plaintiff and awarded her damages of $329,517.00.

The Appellate Division, Fourth Department, found that defendant's attorney had a good faith basis to ask plaintiff about her Federal tax returns, including her filing status, at the trial of the matter. The Court concluded that evidence that the plaintiff may have committed tax fraud had a tendency to shed light on plaintiff's credibility. The Court held that defendant's attorney should have been permitted to ask plaintiff his questions because plaintiff's credibility was central to several close issues at trial, including proximate cause, serious injury, and damages and concluded by holding the lower Court's error was not harmless.

In Michaels v. Drake (2014 N.Y. Slip. Op. 06450), plaintiff commenced an action seeking damages for injuries sustained after the vehicle he was driving collided with defendant's vehicle. Defendant was a police officer with the City of Rochester, a named co-defendant in the case. Following a bench trial, the Supreme Court, Monroe County, found in favor of the defendants and dismissed the plaintiff's complaint in its entirety. The Appellate Division, Fourth Department, found that a fair interpretation of the evidence supported the lower Court's verdict.

The undisputed evidence showed that at the time of the accident, Drake was operating his vehicle in response to a dispatch call concerning a domestic dispute. Therefore, the Court found that he was engaged in the emergency operation of a vehicle as defined by Vehicle and Traffic Law §114-b. The applicable standard of liability to be considered was reckless disregard for the safety of others, as opposed to ordinary negligence. Though defendant Drake admitted he exceeded the speed limit in responding to the dispatch, the Court held that speeding is expressly privileged under Vehicle and Traffic Law §1104 so long as the driver does not endanger life or property. The Appellate Division affirmed the lower Court's holding that Drake's conduct did not constitute the type of recklessness necessary hold him liable for plaintiff's injuries.

Prepared by Katelyn E. Dieffenderfer