In Lattimore Road Surgicenter, Inc. v. Merchants Group, Inc. (4th Dept., March 19, 2010), the plaintiff-insured sought coverage for a loss caused by a ruptured water main and nearby sewer pipe. The policy at issue had an exclusion providing that the insurer - Merchants - "will not pay for loss or damage caused directly or indirectly by water that backs up or overflows from a sewer, drain or sump." The policy also contained an endorsement which amended the exclusion to provide up to $5,000.00 for property damage "by water that backs up or overflows from a sewer, drain or sump." Based on the exclusion, Merchants paid only $5,000.00 toward the extensive water damage at the insured's facility. The insured sued, claiming the exclusion was not enforceable. On Merchants' motion for summary judgment, Judge Rosenbaum ordered dismissal of the plaintiff's claim. His order was affirmed by the Fourth Department which held that the provisions of the insurance contract were clear and unambiguous and must be enforced as written.

Nowacki v. Becker (4th Dept., March 19, 2010) involved a personal injury action sued by the plaintiff beyond the three-year statute of limitations. The defendant answered the complaint, despite its untimely nature, and then moved pursuant to CPLR §3211 to dismiss the complaint on the ground that the statute of limitations had expired. Despite the motion being untimely under the CPLR, Judge Whalen dismissed the plaintiff's complaint. On appeal, the Fourth Department affirmed that ruling, treating the motion to dismiss as a motion for summary judgment and rejecting the plaintiff's claim of equitable estoppel. However, the court did indicate that, under some circumstances, a defendant or a defendant's insurer may lose the benefit of the statute of limitations where they engage in affirmative misconduct "intended to lull the plaintiff into inactivity and to induce plaintiff to continue negotiations until after the statute of limitations had run."

Grillo v. Williams (4th Dept., March 19, 2010) involved a personal injury action for a dog bite. Summary judgment had been granted in favor of the defendant by Judge Sconiers and the plaintiff appealed. The defendant had established that she had no knowledge of the dog previously biting anyone. Nevertheless, the Fourth Department reversed Judge Sconiers decision and reinstated the complaint. It was held that the dog growling and barking at strangers was sufficient to raise a question of fact as to knowledge of that dog's vicious propensities.

Carlineo v. Atkins (4th Dept., March 19, 2010) involved a plaintiff who suffered catastrophic injuries when the dump truck he was traveling in tipped over as it was descending a steep hill on an unpaved road. The dump truck was filled nearly to capacity with gravel and was also towing a backhoe. The plaintiff was a passenger in that vehicle. One of the defendants, Fortuna Energy, argued that the workers involved, including the driver of the dump truck, were independent contractors and that their liability could not be imposed on Fortuna. The plaintiff argued that vicarious liability may be imposed, even in an independent contractors situation, where the activity involved is inherently dangerous. The court agreed with this general principle but held that the work at issue was not inherently dangerous for purposes of triggering vicarious liability. The court indicated that examples of activity sufficiently dangerous to trigger such liability include blasting and working with high-tension electrical wires.

Bennice v. Randall (4th Dept., March 19, 2010) involved an appeal from a summary jury trial. After the jury returned a defense verdict at the summary jury trial, the judicial hearing officer directed a verdict in favor of the plaintiff on the issue of causation of the plaintiff's injuries. The defendants had conceded that the accident resulted from the defendant's negligence and introduced evidence of an expert neurologist who concluded that the plaintiff's complaints of pain were subjective and could not be linked to the accident. The defendants also showed that at least some of the plaintiff's treating providers were unaware of the plaintiff's prior complaints of back pain. On this record, the Fourth Department reversed the hearing officer's ruling and reinstated the defense verdict rendered by the jury.

Barker v. Mobile Pallet Truck, Inc. (4th Dept., March 19, 2010) involved a personal injury action grounded in a products liability theory. The plaintiff was injured when an air compressor tipped off a pallet jack (manual forklift) manufactured by the defendant. The plaintiff admitted that he and his supervisor were transporting the air compressor directly on the pallet jack without using a pallet. There is no disagreement between the parties that using the pallet jack to transport objects without a pallet is ill advised because it results in unstable loads. Although there is a warning to "be extra careful when you handle wide or high loads", there was no specific instruction with regard to the use of a pallet. Three justices of the Fourth Department found this sufficient to reverse the trial court's order granting summary judgment to the defendant. There were, however, two dissenting justices and the case is likely to be appealed to the New York State Court of Appeals. The dissent felt that general knowledge, observation or common sense of any reasonable person would obviate the need for a more specific warning.

Prepared by Scott R. Orndoff