OK, so it's getting colder and you're pulling out your winter coats from the basement.  Al Roker is telling us that the "arctic blast" is just around the corner (it's snowing as I type this).  As you brace for the cold weather, what better to read than this month's Nash Connors update?  This month you'll find a great round-up of New York cases, an update on pending SUM legislation and some news from the office.  We hope everyone has a safe and enjoyable Thanksgiving!

COULDA, SHOULDA, WOULDA:  A plaintiff who could only state that the cause of her slip and fall "could have been grease from the kitchen" was unable to defeat defendant's motion for summary judgment. The court held that in a slip and fall case, a plaintiff's inability to identify the cause of her fall is fatal to her case because a finding that defendant's negligence caused plaintiff's injuries would be based on speculation ( Cross vs Friendship Restaurant Group, LLC).

YOU GOTTA SEE WHAT'S OUT THERE, FOLKS: Plaintiff was riding a bike the wrong way down a one way street, with his friend and co-plaintiff riding on the pegs of his bike. Defendant was driving his vehicle the correct way down the one-way street when there was an impact between plaintiffs and defendant's vehicle. Defendant moved for summary judgment arguing he had no liability. The court found that although the bike "driver" was negligent as a matter of law for riding the bike the wrong way, defendant's deposition testimony presented a triable issue of fact regarding whether he failed to see what was there to be seen ( Rojas vs Solis).

WITH FRIENDS LIKE THIS.... Plaintiff sued his best friend for negligence after defendant put the plaintiff in a "bear hug," causing both men to topple over an air mattress and plaintiff to strike his head on a space heater. The defense moved for summary judgment, arguing that defendant's conduct was intentional and that once intentional offensive conduct is established, the actor is responsible for assault and not negligence. Plaintiff testified in his deposition that defendant "has that goofy mentality, which I love, that's why he's my best friend. He's just-he's innocent, like, it's like nothing would ever be done like to do that to you on purpose." Defendant testified that when he put the plaintiff in a bear hug, they "managed to roll off the air mattress" which raised a triable issue of fact as to whether defendant's conduct, though intentional, was intended to be offensive ( Stampfl vs Salvoni).

DIDN'T YOUR MOTHER TELL YOU NOT TO STEP IN PUDDLES? Plaintiff slipped and fell in a puddle in a hallway that had just been mopped.  In denying the property owner's motion for summary judgment, the court noted that it had not proven that its employee did not negligently mopped the area such that it created the puddle.  Further, the court said the puddle allegedly was "readily observable" does not negate a property owner's duty to maintain its premises ( Dolinar vs Kaleida Health).

BUT, DIDN'T YOUR FATHER TELL YOU TO SNOWPLOW?  An appellate court affirmed the denial of a defense motion for summary judgment based on a storm-in-progress. Plaintiff fell on snow or ice in supermarket parking lot. She testified that it was not snowing at the time of her fall. The appellate court found that the defense did not meet its initial burden of making out a prima facie case. Their expert meteorologist's opinion was described as "at best conclusory" and lacking in evidentiary support. Because defendant did not meet its initial burden of proof, the burden never shifted to plaintiff to create a question of fact whether the ice had pre-existed the storm ( Wrobel v Tops Markets, LLC).

GENERAL vs PRIME CONTRACTOR:  Plaintiff was injured as he was working on a median of the NYS Thruway.  He commenced a Labor Law lawsuit against a company hired to do paving work, along with another contractor (Foit-Albert) hired to inspect the work.  In turn, Foit-Albert subcontracted some of that work to plaintiff's employer. The paving contractor moved for summary judgment on the Labor Law claims.  The court granted it summary judgment on the § 240 claim because there is a distinction between a general contractor and a prime contractor, especially in the context of a state construction job.  A prime contractor has no authority over other prime contractors unless it is delegated work such that it stands in the shoes of the owner.  The contractor was granted summary judgment on the § 200 claim because it did not control plaintiff or the work he was performing and, additionally, because it had no notice of a dangerous condition ( Knab vs Robertson, et al.).

GRAVES AMENDMENT:  An appellate court recently affirmed the denial of a leasing company's motion to dismiss under the Graves Amendment. That statute provides that the owner of a leased or rented vehicle cannot be held liable for personal injuries from the use of the vehicle if the owner is engaged in the business or renting or leasing and engaged in no negligence. In this case, plaintiff alleged improper maintenance of the vehicle, in addition to negligence of the driver. The affidavit of the claims manager from the leasing company stated that the vehicle was properly maintained and operated with no defects or complaints. On appeal, the Court found that viewing the facts in the light most favorable to the plaintiff, the affidavit failed to meet the high standard because it did not provide any specific information about the maintenance record of the car or include any service records in support of the motion ( Nelson vs Citiwide Auto Leasing, Inc.).

PRODUCTION OF CLAIM FILE:   A contractor sued its subcontractor's carrier (Utica First) for indemnification arising out of a property damage incident.  During litigation, the insurer refused to turn over the entirety of their pre-denial claim file, claiming that it was privileged as material prepared in anticipation of litigation.  The  appellate court disagreed, holding that the insurer needed show that the file was prepared solely in preparation of litigation, and that it had not done so, especially considering that "the payment or rejection of claims is part of the regular business of an insurance company" ( Cascade Builders Corp. vs Rugar, et al.).

CLAIM FILE, PT II:  An infant plaintiff was injured when she was accidentally shot by a gun owned by her father. The homeowner's insurance denied coverage on the basis that the infant was an "insured person." Plaintiff moved to compel disclosure of the entire claim file including a legal opinion prepared by defendant's outside counsel. In compelling disclosure of the entire claim file but denying disclosure of the legal opinion, the appellate court held that there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than litigation. The basis of the disclosure was that the accident investigation was in part motivated by the decision to provide or disclaim coverage (Celani vs Allstate Indemnity Co.).