In McLeod v. Taccone (2014 WL 6504317), a plaintiff-bicyclist commenced an action seeking damages for injuries sustained when his bicycle collided with a motor vehicle driven by the defendant. Immediately prior to impact, the plaintiff-bicyclist was attempting to cross a four-lane road from a side street controlled by a stop sign.

The defendant motor vehicle operator moved for summary judgment. The Supreme Court, Monroe County partially granted defendant's motion holding that the plaintiff was negligent as a matter of law. Plaintiff appealed. The Appellate Division, Fourth Department affirmed holding that the defendant met his initial burden of establishing that plaintiff was negligent as a matter of law.

The Court reasoned that Vehicle and Traffic Law § 1231 imposes upon bicyclists upon a roadway the same responsibilities imposed upon a driver of a motor vehicle. Plaintiff violated Vehicle and Traffic Law § 1142(a) by proceeding into an intersection controlled by a stop sign without yielding the right of way, and violated Vehicle and Traffic Law § 1236 by operating his bicycle without lights or sufficient reflectors. The Court noted that, in response to the motion papers of the defendant, plaintiff failed to raise a triable issue of fact as to his freedom from negligence. Therefore, summary judgment on the issue of the plaintiff's negligence was appropriate.

In Carducci v. Russell, 120 A.D.3d 1375 (2d Dept., 2014), the plaintiff, acting pro se, commenced an action to recover damages against defendant by filing, by means of the New York State Electronic Filing System ("NYSCEF"), a summons with notice. Approximately one month later, defendants uploaded to the NYSCEF system a notice of appearance and demand for service of a complaint.

More than one year later the plaintiff served defendants with a proposed complaint. Defendants immediately moved to dismiss the action pursuant to CPLR 3012(b). In opposition to defendants' motion, plaintiff submitted an affidavit indicating that plaintiff retained an attorney to represent him in this action after filing but before serving the summons on the defendants. Plaintiff claimed a "technical glitch" in the NYSCEF system as his reasonable excuse for failing to timely serve the complaint. The Supreme Court, Westchester County granted defendants motion and plaintiff appealed. The Appellate Division, Second Department affirmed.

The appellate court noted that to avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action. The appellate court held that the plaintiff's affidavit established that he was no longer acting in a pro se capacity when the defendants uploaded the notice of appearance and demand. The Court further held that plaintiff's purported excuse that his failure to serve the complaint was due to a "technical glitch" was unavailing since the defendants notice of appearance and demand remained in the e-filing system for over one year, during which the plaintiff was represented by counsel. This, the Court held, is not a mere technical glitch, but law office failure which is not a reasonable excuse under CPLR 3012(b). The Court concluded that since plaintiff could not demonstrate a reasonable excuse for the delay, or a potentially meritorious cause of action against the defendants, the defendants' motion to dismiss was properly granted.

In Mayer v. Conrad, et al. (2014 WL 6494550), a wrongful death action was brought on behalf of a decedent against defendant property owners for fatal injuries the decedent sustained during construction of the defendants' home. Plaintiff's complaint alleged, among other causes of action, common-law negligence and defendants' violation of Labor Law §200. Defendant property owners then commenced a third-party action seeking common-law indemnification from the decedent's employer, Fisher Concrete. Fisher Concrete was hired by defendant property owners to perform the excavation work. Several weeks prior to the accident, Fisher installed a seven to nine foot vertical embankment. At the time of the accident, the decedent was smoothing concrete in nearby trenches when the embankment collapsed onto him inflicting fatal injuries.

The defendant property owners and Fisher each moved for summary judgment; defendant property owners seeking to dismiss plaintiff's complaint in its entirety and Fisher seeking to dismiss defendant property owners' claims in the third-party action. The Supreme Court, Erie County denied defendant property owners' summary judgment as to those claims alleging violations of the Labor Law Section 200 and denied Fisher summary judgment as to defendants' claim of common-law indemnification. Both defendants and Fisher appealed. The Appellate Division, Fourth Department upheld the Supreme Court's decision as to defendant property owners, but reversed the Supreme Court's decision as to Fisher, granting Fisher's motion dismissing the third-party complaint for common-law indemnification.

The Appellate Division, Fourth Department noted that Labor Law §200 cases fall under two categories: injuries resulting from dangerous or defective premises conditions, and those involving the manner in which the work is performed. The Court held that although Fisher created the dangerous condition (the embankment), the decedent's injury was the result of a premises condition, since the embankment which collapsed upon the decedent was in place for several weeks prior to the accident.

Where a premises condition is at issue, property owners may be liable for a violation of Labor Law §200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of it. The Court concluded that defendants' motion papers failed to establish a lack of actual or constructive notice of the dangerous condition. Defendant property owners were at the site each morning, including the date of the accident and had frequent conversations with Fisher about the project while the condition existed for two to three weeks prior to the accident. The Court, however, granted Fisher's motion and dismissed defendants' common-law indemnification claim. The Court cited Village of Palmyra v. Hub Langie Paving, Inc., 81 A.D.3d 1352 (4th Dept. 2011) in support of its conclusion that under no circumstances could the defendants recover from the third-party plaintiff in indemnification because any finding of liability on the part of the defendants would require some degree of negligence directly attributable to defendants.

In Freeman v. Village of Hempstead, 120 A.D.3d 1393 (2d Dept. 2014), the plaintiff brought an action against the Village seeking to recover for injuries sustained while plaintiff was attempting to dive off a diving board into the Village pool. According to the plaintiff, he slipped on the board's surface and fell off. Plaintiff alleged that he slipped because the traction strips on the diving board were worn. The Supreme Court of Nassau County entered summary judgment in the Village's favor. Plaintiff appealed. The Appellate Division, Second Department reversed, holding that there was a question of fact as to whether worn traction strips on the diving board unreasonably increased plaintiff's risk of slipping.

The Court, in coming to its conclusion, recognized that under the doctrine of primary assumption of risk, the participant in a sport or recreational activity consents to commonly appreciated risks inherent in and rising out of the nature of and participation in the sport. One obvious risk in diving is the risk of slipping on the diving board's surface. However, the defendant failed to establish that the allegedly dangerous condition (the worn traction strips) did not unreasonably increase the risk of injury beyond that assumed by the plaintiff.

Prepared by Leah A. Costanzo