In Abdulla v. Gross, -- A.D.3d --plaintiff commenced a personal injury action against a property owner for injuries she allegedly sustained in a slip and fall accident which occurred on the defendant's property on June 3, 2009. During discovery, it was revealed that plaintiff had a subsequent slip and fall accident at the same property on September 5, 2009, which exacerbated her injuries or refractured her leg.

Thereafter plaintiff executed a "General Release." Plaintiff subsequently filed suit for injuries alleged to have been sustained during the second accident of September 5, 2009. Defendant moved to dismiss plaintiff's second complaint, arguing that the previous settlement encompassed any injuries the plaintiff allegedly sustained in the September 2009 accident. The Appellate Division, Fourth Department affirmed the trial court's order denying defendant's motion.

The Appellate Division concluded that the language of the release, which specified that defendant was "released and forever discharged...for injuries sustained in a slip and fall accident which occurred on June 3, 2009" was unambiguous in specifying that the only claims discharged were those arising from the injuries plaintiff allegedly sustained in the first slip and fall accident. The Court stated that where the language of a release is clear and unambiguous, effect will be given to the intention of the parties as indicated by the language employed. The Court will not give effect to the fact that one of the parties may have intended something else.

In Hall v. Integrity Real Estate Properties, Inc., --A.D.3d -- plaintiff commenced a Labor Law and common-law negligence action for personal injuries allegedly sustained when he fell from a ladder. During the discovery process, the court ordered the plaintiff to appear for depositions in response to defendants' motion. Plaintiff failed to appear for the court-ordered deposition and defendants moved for dismissal.

The Appellate Division, Fourth Department affirmed the trial court's order dismissing the action, noting that trial courts have broad discretion in supervising disclosure and that the trial court's exercise of its authority should not be disturbed absent clear abuse of that discretion. The Appellate Division upheld the trial court's decision, finding that plaintiff's failure to appear for his deposition was "willful, contumacious, or in bad faith" and plaintiff failed to offer a reasonable excuse for his failure to appear.

In Redd v. Juarbe, --A.D.3d -- plaintiff commenced an action seeking damages for injuries she allegedly sustained when the vehicle she was traveling in was struck by a vehicle that failed to yield the right of way at an intersection controlled by a stop sign. Plaintiff moved for partial summary judgment dismissing the defendants' affirmative defense of comparative negligence.

The Appellate Division noted that a driver who has the right-of-way is entitled to anticipate that other motorists will obey the traffic laws; however, a driver who lawfully enters an intersection may still be found partially liable for an accident of he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection.

The Appellate Division held that plaintiff made a prima facia showing that she had the right-of-way but that defendants raised a triable issue of fact whether plaintiff was comparatively negligent. Defendants raised a triable issue of fact by submitting the affidavit of an accident reconstruction expert who opined that contrary to plaintiff's deposition testimony in which she testified that she was travelling 20 miles per hour, plaintiff was travelling at a speed of at least 40 miles per hour in a 30 mile per hour zone. Based on the defendants' expert affidavit, the Appellate Division affirmed the trial court's denial of plaintiff's motion for dismissal of defendants' affirmative defense, finding that the defendants raised a triable issue of fact whether plaintiff was driving at an excessive rate of speed and could have avoided the accident through the exercise of reasonable care.

In Bernard v. Lysander, -- A.D.3d.-- plaintiff commenced a personal injury action under Labor Law § 240(1) seeking damages for injuries allegedly sustained when he fell from a scaffold that collapsed while he was working at a construction site owned by the defendant. Plaintiffs moved for summary judgment that, as a matter of law, defendant failed to afford plaintiff proper protection under the statute. The trial court denied plaintiffs' motion and the Appellate Division, Fourth Department reversed.

To perform his work, plaintiff was provided only with a 14-foot-long aluminum scaffold plank. Plaintiff then used this scaffold plank to construct a makeshift scaffold by placing one end of the plank in the bucket of a backhoe and securing the other end of the plank with two pieces of wood that were nailed into the side of a building. Plaintiff was injured when the end of the plank gave way and plaintiff fell to the ground. It was undisputed that defendant did not provide any other scaffolding or safety devices for plaintiff to perform his work.

The Appellate Division held that the fact that the scaffolding collapsed was sufficient to establish, as a matter of law that the scaffold was not so placed as to give proper protection to plaintiff pursuant to the statute. The Court further rejected defendant's contention that an issue of fact existed whether plaintiff was negligent in constructing a makeshift scaffold which was the sole proximate cause of the accident. The Court held that because defendant violated Labor Law § 240(1) by failing to provide plaintiff with proper protection, plaintiff's alleged negligence could not be deemed the only cause of the accident. Additionally, the Court noted that comparative negligence is not an available defense under Labor Law § 240(1).

Prepared by Martha E. Donovan