In Lee v. Astoria Generating Co., LP, 2009 WL 4016121 (2009), the Court of Appeals reviewed the issue of whether a barge was a vessel under the Federal Long Shore and Harbor Workers' Compensation Act (hereinafter "LHWCA") and whether the Act pre-empted the plaintiff's New York State Labor Law §240(1) and §241(6) claims. The plaintiff injured his back while performing work on a barge owned by defendant, Astoria. The barge was located on navigable waters in the Gowanus Canal in Brooklyn and had not been moved for over ten years. After being injured, the plaintiff was awarded benefits under the LHWCA, which provides benefits to maritime workers akin to workers' compensation benefits. The plaintiff also commenced a state court action asserting Labor Law §240(1) and §241(6) claims and a common law negligence claim. After plaintiff commenced the state court action, the defendant barge owner moved for summary judgment arguing that plaintiff's exclusive remedy for injuries occurring on a "vessel" in navigable waters lied under the LHWCA and that the LHWCA pre-empted the New York State Labor Law claims. In opposition, the plaintiff argued that the claims were not pre-empted because the barge in question did not constitute a vessel and maritime jurisdiction did not apply to claims against the defendant barge owner. The Court of Appeals held that the LHWCA provides compensation to workers injured on navigable waters of the United States in the course of their employment. The Court stated that under the LHWCA, a vessel includes every description of water craft capable of being used as a means of transportation on the water. The Court of Appeals concluded that here, the barge in question was located on navigable waters in the Gowanus Bay and was a vessel within the LHWCA because it could be moved and had been moved for inspection in the past. Furthermore, the Court stated that the LHWCA pre-empted the Labor Law claims because Congress clearly intended that actions maintained against a "vessel" be brought solely within the confines of the LHWCA and nowhere in the Act did it permit strict liability claims, such as provided by Labor Law §240(1) and §241(6). Summary judgment was granted to the defendant barge owner.

In the Fourth Department case of Trotman v. Rochester City Sch. Dist., 2009 WL 3931509 (4th Dept. 2009), the Appellate Division held that the Supreme Court abused its discretion in denying the claimant's application for leave to serve a late notice of claim. The Court stated that even though the claimant failed to offer a reasonable excuse for delay in serving the notice of claim, that delay was not fatal because the respondent had actual notice of the facts underlying the claim and was not substantially prejudiced by the delay. The claimant was a student in the respondent school district. The claimant alleged that he was sexually abused by one of respondent's employees and the abuse occurred between February, 2006 and July, 2007. The record established that the respondent acquired actual knowledge of the abuse no later than January, 2007 when the respondent's employee was arrested on criminal charges and suspended without pay. The Court held that once respondent was advised of the criminal charges asserted against its employee, it should have conducted a prompt investigation and that respondent could not now complain that the late filing of the claim prejudiced it in its preparation of a defense.

In the Fourth Department case of Passucci v. The Home Depot, Inc., 2009 WL 3931056 (4th Dept. 2009), the plaintiff commenced an action seeking damages for defendant's alleged malicious prosecution and intentional infliction of emotional distress. The Appellate Division held that the Supreme Court erred in denying the defendant's summary judgment motion. The motion sought dismissal of the plaintiff's malicious prosecution cause of action. The Court held that the plaintiff's conviction of petit larceny in the underlying criminal proceeding created a presumption of the existence of probable cause for that criminal proceeding, despite the fact that the conviction was later reversed on appeal. The Court held that because originally there was a conviction, the defendant met its burden of establishing that there was no meritorious malicious prosecution claim. The Court noted that as part of a malicious prosecution claim, the plaintiff has to assert and prove that a criminal proceeding was commenced, that it was terminated in favor of the plaintiff, that it lacked probable cause, and that the proceeding was brought out of actual malice.

In the Fourth Department case of Council Financial Services, LLC v. David McQuade Leibowitz, P.C., 2009 WL 3931449 (4th Dept. 2009), defendants appealed from an order and judgment granting plaintiff's motion for summary judgment in lieu of complaint. The Supreme Court ordered defendants to pay a specified amount due on a promissory note executed by defendant, David McQuade Leibowitz, P.C., and personally guaranteed by David McQuade Leibowitz. The order and judgment was entered upon the default of the defendants. The defendants did not move to vacate the order and judgment, but they appeared in court on an adjourned return date of the motion for summary judgment and contested the entry of the default judgment. The Appellate Division affirmed the Supreme Court and held that the plaintiff met its burden for obtaining a default by submitting the promissory note, the personal guarantee, and submitting evidence of defendants' default. The record established that only plaintiff's counsel appeared in court on the initial return date of the motion, but that the court, thereafter, granted defendants additional time in which to submit papers in opposition to the motion and adjourned the matter to a date subsequent. Defendants then failed to submit opposition papers by the date specified by the court. Although defendants appeared in court on the adjourned return date to request an adjournment in which to prepare opposing papers, defendants were already in default at that time.

In the Fourth Department case of Andrews v. Northwest Auto Mall and Frank Santonastaso, 2009 WL 3930951 (4th Dept. 2009), the Appellate Division held that the Supreme Court properly granted plaintiff partial summary judgment with respect to plaintiff's Labor Law §240(1) cause of action. The Appellate Division held that plaintiff established that defendants violated Labor Law §240(1) by furnishing him with a defective ladder, and the plaintiff established that the violation was a proximate cause of his fall and resulting injuries.

CPLR §4545 was amended as of November 12, 2009 to preclude private health insurers from recovering pursuant to their contractual and equitable subrogation rights. While private health insurers have not been formally barred from initiating claims against tortfeasors, they will now be blocked from asserting any claims against any "settling party." The Legislative intent of the statute is to protect the claimant, and his attorney, from subrogation claims by private health insurers after cases have been settled. General Obligations Law §5-335 provides protections to the settling defendant, even if there remains insurance coverage available. General Obligations Law §5-335 provides that upon settlement, all recovery rights against the settling parties, plaintiff and defendant are extinguished.

Prepared by Kristen Degnan