In Savage v. Brown (4th Dept., 2015), the plaintiff commenced an action for damages she allegedly sustained when she was struck in the leg by a sled at an outdoor winter birthday party. Katie Renda of Chelus, Herdzik, Speyer & Monte, P.C. represented the defendant riding on the sled which hit the plaintiff. Katie brought a motion for summary judgment to dismiss the claims against her on the grounds that the plaintiff assumed the risk of injury inherent in the nature of sledding. The trial court denied the motion. The Fourth Department reversed finding that by standing on the side of the hill while watching other people sledding, the plaintiff had assumed the risk of being struck by a sled. The Court additionally noted that the plaintiff had testified she saw a sled strike another person earlier in the day before her accident occurred.

In Lalka v. ACA Insurance Company (4th Dept., 2015), the plaintiff commenced an action to recover supplementary underinsured motorist coverage pursuant to an automobile liability policy issued by the defendant. During discovery, the plaintiff moved for an order compelling the defendant to disclose its entire claims file. The trial court granted the part of the motion seeking production of those portions of the claims file generated before the date of commencement of the action "with the exception of those materials reviewed in camera." The Appellate Division determined that the trial court properly denied the part of the plaintiff's motion seeking disclosure of documents in the claims file created after the commencement of the action. However, the Appellate Division reversed the trial court's determination finding that it abused its discretion to deny the portion of the motion seeking disclosure of the documents submitted to the Court for an in camera review. The documents submitted to the Court for the in camera review contained multi-purpose reports prepared by the insurance company's attorney before the decision was made to pay or reject the claim. The Appellate Division held that such mixed/multi-purpose reports are discoverable up until the time of commencement of the action.

In Johnson as P/N/G of Jones v. Gyles (4th Dept., 2015), the plaintiff commenced an action seeking damages for injuries allegedly sustained by her infant child as a result of the child's exposure to hazardous lead paint conditions at a property owned by the defendant. The defendant moved for summary judgment dismissing the complaint. The trial court granted the motion in part by dismissing the plaintiff's claims from the date of the plaintiff's first occupancy at the defendant's property through the date of a municipal inspection of the premises. The Appellate Division affirmed finding that the defendant met his initial burden in establishing that he did not have actual or constructive notice of the hazardous lead paint condition at the premises prior to an inspection conducted by the municipal authority. In response, the plaintiff failed to raise a triable issue of fact. The plaintiff did not challenge the question of actual notice, but contended that the defendant should be charged with constructive notice because there was peeling or chipping of paint in common areas. The Appellate Division rejected this contention finding that the plaintiff failed to present any evidence that the peeling or chipping paint was "visible and apparent [or that] it... existed for a sufficient length of time to allow defendant to remedy it." While the municipality had required the defendant to make repairs in another apartment in the building, the documents issued by the municipality regarding those repairs were vague and gave no indication whether the repairs were to address the presence of lead paint in the subject apartment.

In Charles v. Village of Mohawk (4th Dept., 2015), plaintiffs commenced an action seeking damages for injuries their son sustained in a cemetery owned and maintained by the defendant. While playing in the cemetery which was open to the public, the plaintiff, then age seven, climbed onto a cantilever gate at one of the cemetery's entrances and began "riding" the rolling gate as it was being pushed by his cousin and her friend. The infant plaintiff failed to remove his hands from the top of the rail of the gate as he approached the gate's rollers and his fingers were injured as they passed through the rollers. The plaintiffs alleged, among other things, that the defendant was negligent in failing to secure the gate so as to prevent it from being "ridden" by children. The defendant moved for summary judgment which the trial court denied. In affirming the trial court's decision, the Appellate Division stated that while there was nothing inherently dangerous about a gate that has no lock, the defendants own submissions raised triable issues of fact as to whether it was foreseeable that children such as the plaintiff would misuse the gate in the same manner giving rise to the accident. The defendant's former superintendent of cemeteries testified that although it was not typical, children sometimes played in the cemetery. This testimony coupled with that of the plaintiff's cousins who testified that they had played in the cemetery on prior occasions led the Appellate Division to determine that questions of fact exist sufficient to defeat the defendant's motion.

Prepared by Michael M. Chelus