Monday, June 20, 2016

Second Department Holds that “Graves Amendment” Defense Not Sufficient to Succeed on a CPLR 3211(a)(1) and (7) Motion to Dismiss

In Argelo v Hanif, plaintiff passengers were injured when defendant hit their car while driving a rented U-Haul truck. The plaintiffs then brought a negligence claim against the drivers of both vehicles and U-Haul as owner of the truck. U-Haul moved pursuant to CPLR 3211(a)(1) and (7) to have the claims dismissed relying on 49 USC § 30106(a) (“Graves Amendment”), which relieves a motor vehicle owner from liability if the owner is (1) engaged in the trade or business of renting motor vehicles, and (2) engaged in no negligence or criminal wrongdoing. U-Haul relied on the affidavit of its investigator who opined that he believed that the accident had been staged. U-Haul’s motion to dismiss was denied and they appealed to the Second Department.

On appeal, although U-Haul could show pursuant to CPLR 3211(a)(1), regarding documentary evidence, that they were engaged in the business of renting motor vehicles, the court held that the affidavit of U-Haul's investigator could not be considered in support of this portion of U-Haul's motion because it was not "documentary evidence" within the meaning of the statute.

With respect to CPLR 3211(a)(7), U-Haul failed to establish that no “significant dispute exists” as to whether U-Haul was negligent. The only evidence which U-Haul presented was the affidavit of its investigator related to insurance fraud and that the accident was staged.  This evidence, however, did not support the fact that U-Haul was not negligent in the maintenance of the vehicle. Therefore, accepting as true the allegations in the plaintiffs' complaint, which the the Second Department was compelled to do, the Court affirmed the lower court’s decision to deny U-Haul’s motion to dismiss. 

Second Department Affirms Jury Verdict Despite Admittance of Improper Hearsay Evidence

In Parris v New Work City Transit Auth., plaintiff was injured when he came into contact with a bus owned by defendant. The plaintiff claimed that he had no memory of the accident.  During trial, hearsay evidence (a NYCTA accident report) was admitted stating that the driver of the bus saw plaintiff drinking from a bottle before the accident occurred. The jury rendered a verdict for defendants, finding that although defendants were negligent, such negligence was not a substantial factor in causing the accident. The plaintiff moved to set aside the jury's verdict and his motion was denied. As such, the plaintiff appealed to the Second Department.

First, the plaintiff contented that the lower court erred in not holding a unified trial on issues of liability and damages based on the fact that plaintiff could not recall how the accident happened. The Second Department affirmed the lower court’s decision to deny plaintiff’s motion in limine stating that “[c]ourts are encouraged to bifurcate issues of liability and damages in personal injury trials.”  A unified trial is only appropriate when “the nature of the injuries has an important bearing on the issue of liability.”  The court held that plaintiff failed to show such a relationship existed.

Next, the Second Department agreed with plaintiff that it was error to admit hearsay evidence, which did not qualify under any exception to the hearsay rule. The error, however, did not “constitute prejudice or reversible error” and the Court found that the trial result would have been the same even if the statement had been excluded. Plaintiff’s other contentions, including an argument that the jury should have held him to a lesser standard of proof because of his alleged amnesia, were unfounded. The Court found that plaintiff could recall the events leading up to the accident, but not the accident itself and that he failed to submit medical proof that his amnesia was caused by the defendants. Therefore, the Court affirmed the jury's verdict in favor of the defendants.

First Department Excludes Routine Household Cleaning from Labor Law §240 Claims

In Morales v Avalon Bay Communities Inc., the plaintiff was injured when she fell from a three foot step ladder while cleaning the interior of a kitchen in an apartment complex.  At the time of her fall, construction of the complex was nearing completion and approximately 90% of the units within the building were occupied. The plaintiff nevertheless brought suit against the owners of the building alleging violations of "the Scaffold Law," Labor Law §§240(1) and 241(6). The lower court granted the defendant’s motion for summary judgment dismissing the complaint and the plaintiff appealed.

On appeal, the First Department considered whether plaintiff was engaged in “cleaning” within the meaning of Labor Law §240(1). The court considered the factors set out in Soto v J. Crew Inc., (21 NY3d 562, 568 [2013]) (holding that “activity cannot be characterized as ‘cleaning’ under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project”).  After review, the court concluded that plaintiff was not engaged in §240 “cleaning” and the §240(1) claim was properly dismissed.

In dismissing the §241(6) claim the First Department likewise agreed with the trial court that “plaintiff was not engaged in duties connected to the inherently hazardous work of construction, excavation, or demolition.”

Monday, June 13, 2016

First Department Determines That Elevators Are Falling Objects Under Labor Law § 240

In McCrea v Arnlie Realty Co., the First Department held that an injured elevator repairman was entitled to recovery under Labor Law § 240 as an elevator is considered a “falling object” within the meaning of the Labor Law. Although an elevator is not technically “hoisted or secured at the time of the accident,” it requires securing when suspended during repair work and therefore falls under the statute’s purview.  Therefore, the defendant was held strictly liable for injuries sustained from the falling elevator.

The Court further found that plaintiff was not the sole proximate cause of the accident. Although an adequate safety device was made available, a kill switch, plaintiff was never informed of the safeguard. Therefore, since plaintiff was unaware of the availability of the safety device, he could not be found to be the sole proximate cause of the accident.

Second Department Holds Defendant Liable Under Labor Law §240(1) Where Plaintiff Was Electrocuted and Fell From Scaffold

In Viera v WFJ Realty Corp., the plaintiff was injured from an electric shock and subsequent fall from a scaffold, which lacked railings. Plaintiff then commenced an action against defendants, asserting violations of Labor Law §§ 240 and 241. The Supreme Court denied plaintiff’s motion for summary judgment and plaintiff appealed to the Second Department. 

On appeal, the Court held that plaintiff was entitled to “judgment as a matter of law” under Labor Law § 240(1). The court noted that plaintiff was not provided with a safety device to prevent him from falling. As defendants failed to raise a triable issue of fact relative to proximate cause, summary judgment was granted in favor of plaintiff’s §240(1) claim.

Monday, May 23, 2016

First Department Affirms Finding That Plaintiff Was Not Engaged In A Labor Law § 240(1) Enumerated Activity

In Royce v. DIG EH Hotels, LLC, the plaintiff, a lighting engineer, fell from a ladder while replacing a "gel" that altered the color of light on a temporary lighting stand. Plaintiff's work involved delivering and assembling audiovisual and lighting equipment in a hotel ballroom.  Once the event for which the equipment was needed had concluded, plaintiff would then  be responsible to remove that equipment. It is notable that the fixture on which plaintiff was working was secured to the floor by sandbags.

Plaintiff commenced an action against the defendants asserting, in part, an alleged violation of Labor Law § 240(1). The Supreme Court granted the defendants' motion to dismiss that claim and plaintiff appealed. On appeal, the First Department affirmed.  The Court found that there was no evidence that any of plaintiff's work "altered" or caused a substantial physical change to the building, as required by the Labor Law. Therefore, plaintiff was not engaged in a Labor Law enumerated activity when he was injured and his section 240(1) claim against the defendants was properly dismissed.

Second Department Finds That Workers' Compensation Board Determination Could Not Be Used As Collateral Estoppel And Also Reinstates Jury's Award of Total Disability Despite Testimony From Plaintiff's Physicians That Plaintiff Was Employable

In separate decisions in Kowalsky v. County of Suffolk, the Second Department affirmed a judgment against the defendants in the principal sum of $5,387,591.36, which included $200,000 for past pain and suffering, $850,000 in future pain and suffering for 41 years and $4,038,000 in economic damages, and modified the partial granting of defendants' post trial motion regarding plaintiff's claims for economic damages, by reinstating the jury's awards.

Plaintiff was injured in an accident when he was struck by a vehicle owned by the County of Suffolk and Suffolk County Department of Parks, Recreation & Conservation.  At trial, the defendants moved to preclude plaintiff from offering evidence regarding surgery to his lumbar spine.  The defendants argued that plaintiff was collaterally estopped from offering such evidence on the basis that the Workers' Compensation Board had denied plaintiff's request for surgery on the basis of its examining physician who recommended that the plaintiff be evaluated by an independent spine surgeon or neurosurgeon before he rendered a determination as to whether the surgery was necessary.

The Supreme Court denied the motion and during trial plaintiff offered evidence that he underwent a laminectomy and spinal fusion surgery at L4-5. The plaintiff further offered evidence that he required a pain management regimen involving methadone and Flexeril. The side effects of these medications included sedation, cognitive impairment, and difficulty handling power tools. His physicians further testified that plaintiff could not return to his job as a Verizon technician and the side effects of his pain medication made it difficult for him to maintain any employment. 

By contrast, the defendants presented the testimony of a vocational expert who testified that there were jobs that the plaintiff could do with his disability, which would pay in the range of $30,000 to $40,000 per year. 

On the defendants' appeal from the judgment, the Second Department affirmed the denial the defendants' motion to preclude the plaintiff from submitting evidence regarding the surgery to his lumbar spine.  The Court observed that "[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal" (Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255, citing Jeffreys v Griffin, 1 NY3d 34, 39). Here, the defendants failed to establish an identity of issue. The Second Department also found that the defendants were properly precluded from introducing, at trial, the determination of the Workers' Compensation Board.

In the related decision on the separate appeals from the defendants' post-trial motion, the Second Department also found that the Supreme Court should not have reduced the jury's awards for economic damages. The Court found that the assumption by plaintiff's economist that plaintiff could no longer work in any capacity was supported by the testimony of the plaintiffs' physicians that the side effects of his pain medication limited his employment possibilities. The Court also found that although the defendants' vocational expert testified that there were jobs that the plaintiff could perform, this created an issue of fact for the jury to decide.