Thursday, April 28, 2016

Second Department Affirms Finding of Question of Fact in Labor Law Action as to Whether Plaintiff Was Permitted to Work on Roof At the Time of His Accident and Awards Conditional Contractual Indemnification to Owner

In Jardin v. A Very Special Place, Inc., the plaintiff was employed by a sub-subcontractor when he fell from an unsecured ladder while attempting to reach the roof of a building undergoing renovation. The trial court denied plaintiff's motion for partial summary judgment on liability pursuant to labor Law § 240(1), finding questions of fact as to whether plaintiff was permitted to be on site at the time of the accident and whether anyone had instructed plaintiff to access the roof of the building. On appeal, the Second Department affirmed.

The Second Department also modified the order appealed to award the owner conditional summary judgment on its claim against the general contractor. The relevant indemnity provision indicated that the owner could be indemnified for the negligent acts of its general contractor, a subcontractor or anyone directly or indirectly employed by them. Since the owner demonstrated that it was free from fault with respect to the happening of the plaintiff's accident, it was entitled to summary judgment conditioned to the extent that the owner is ultimately held vicariously liable to the plaintiff, and limited to the extent that incident arose out of the negligence of either the general contractor, the subcontractor or the sub-subcontractor.   

Second Department Grants Renewal Based on Change In Testimony Between Witness's Affidavit and His Deposition

In Deleo v. Federal Express Corp., the plaintiffs were the driver and passenger in a vehicle struck in the rear by a Federal Express truck. The driver of the truck submitted an affidavit in opposition to the plaintiff-driver's motion for summary judgment, attesting to the fact that the plaintiff-driver had come to a sudden, unexpected and abrupt stop in front of the affiant's truck. The Supreme Court denied the plaintiff-driver's motion, finding a question of fact to be resolved at trial.

At his deposition, however, the truck driver testified that he saw a vehicle in front of the plaintiff's vehicle also come to an abrupt stop. As such, the plaintiff-driver moved for leave to renew his motion for summary judgment based on the truck driver's change in testimony. The Supreme Court denied the motion.  

On appeal, the Second Department reversed and granted the motion. The Court found that the driver's deposition testimony contained new facts that were not offered on the initial motion for summary judgment. The Court further found that the new facts were sufficient to establish the plaintiff-driver's entitlement to summary judgment as a matter of law on the issue of liability.   

First Department Finds Question of Fact in Labor Law Action As to Whether Plaintiff Was Sole Proximate Cause of His Fall From Scaffold

In Batista v. Manhattanville College, the plaintiff was injured in a fall from a scaffold that he was constructing. Plaintiff had been instructed to use only pine planks for the flooring and to check the planks for knots. He fell two stories from the scaffold when an alleged spruce plank that he was standing on broke.

On motions for summary judgment the trial court granted plaintiff partial summary judgment on liability pursuant to Labor Law § 240(1), finding that the scaffold failed to provide plaintiff with proper protection. On appeal, the First Department reversed and denied the motion. The Court found that whether plaintiff disregarded instructions to use only pine planks and whether more pine planks were readily available to him were questions of fact. The Court also found that whether plaintiff was responsible for checking the planks for knots was also a question of fact.    

Thursday, April 21, 2016

Second Department Affirms Dismissal of Section 240(1) Claim, Finding Plaintiff Was Not Exposed to Elevation Related Hazard

In Vitale v. Astoria Energy II, LLC, the plaintiff was working as a surveyor on a construction site when he was instructed to verify the placement of anchor bolts across a rebar grid. The rebar grid was 5 feet high with square openings measuring at most 12 inches by 12 inches. The plaintiff stepped through one of the openings up to his groin and was allegedly injured.

On motions by the parties, the Supreme Court granted the defendants' cross motion to dismiss the plaintiff's Labor Law §240(1) claim. On appeal, the Second Department affirmed. The Court found that the openings in the grid were not large enough to have permitted plaintiff to fall through, and as such did not present an elevation-related hazard that required one of the statutory enumerated safety devices.  

The Court likewise affirmed dismissal of the plaintiff's section 241(6) claim as predicated upon an alleged violation of Industrial Code 23-1.7 pertaining to "hazardous openings." Once again, the opening was not large enough for the plaintiff's entire body to completely fall through. As such, the Code did not apply under the circumstances.  

Monday, April 18, 2016

Second Department Affirms Finding of Liability Against City, Finding that City Owed Special Duty to Homeowners

In Stanciu v. Bilello, the plaintiff tripped over a sidewalk flag that was raised because of tree roots. The plaintiff sued the adjacent property owners and the owners, in turn, sued the City.  The owners argued that, before they could repair the sidewalk they were instructed by the City that the Department of Forestry needed to inspect the sidewalk around the tree and create a design plan. Although the owners allegedly made repeated attempts to schedule an inspection, no one from the City responded before the plaintiff was injured. 

A jury returned a verdict against the owners and the City in which the jury apportioned 35% of the fault to the owners and 65% to the City. The Second Department affirmed. The Court observed that, although Administrative Code 7-210 shifted liability for sidewalk defects from the City to the adjacent property owner, if the City owed a special duty to the owner the City could be held liable despite the fact that it owed no duty to the injured plaintiff. The existence of a duty to the adjacent property owner is premised upon a special relationship, which includes (1) the assumption by the City of an affirmative duty to act, (2) the failure of which could lead to harm (3) and there must be some form of contact between the City and the party (4) upon which the party justifiably relies.

Here, the Court found that the jury's determination that a special relationship existed between the City and the property owners was supported by legally sufficient evidence.     

Majority Panel in the First Department Affirms Awards for Conscious Pain and Suffering, Loss of Custodial Services and Loss of Guidance

In Oates v. NYCTA, the plaintiff's decedent was struck and killed by a City bus. Plaintiffs' uncontroverted expert testimony demonstrated that the decedent was conscious for 2 to 5 seconds after being hit by the bus. The jury awarded plaintiffs $300,000 for conscious pain and suffering, $150,00 for past loss of custodial services, $400,000 for 10 years of future custodial services and $100,000 for 5 years of future loss of guidance. On appeal, a majority panel of the First Department affirmed.  The dissent would have reversed on liability and dismissed the case against the defendants, finding no evidence of negligence on the part of the bus driver.  

Thursday, April 7, 2016

Second Department Affirms Finding that Residential Owner of Two-Family Dwelling Was Entitled to Labor Law Exemption

In Sandals v. Shemtov, the plaintiff was injured in a fall from a ladder while painting a fire escape. He commenced an action against the defendant alleging, in part, a violation of Labor Law § 240(1). The premises on which the fire escape was located was classified as a "multiple dwelling." The evidence established, however, that there were only two separate living spaces. Therefore, the Second Department affirmed the finding that the premises qualified as a two-family dwelling for purposes of the homeowner exemption to Labor Law § 240(1). The Court also affirmed dismissal of the plaintiff's Labor Law § 200 claim, finding that the homeowner did not supervise or control the plaintiff's work.