Wednesday, August 24, 2016

This Summer's Notable Decisions Regarding Pre-judgment Interest, Appellate Procedure and Other Issues

The Appellate Courts release fewer decisions and with less frequency during the summer months. Below are a few of this Summer's notable decisions. 

Second Department Concludes That Pre-Judgment Interest Is Not Triggered By a Stipulation of Liability

In Mahoney v. Brockbank, the defendant stipulated to liability in exchange for plaintiff’s stipulation to discontinue a cause of action against defendant for punitive damages. Approximately 2 ½ years later, a trial on damages was held, resulting in an award in favor of plaintiff on damages.  Both sides submitted proposed judgments. The plaintiff’s proposed judgment included pre-judgment interest calculated from the date of the stipulation. The defendant’s proposed judgment included interest from the date of the jury verdict on damages. The trial court signed the defendant’s judgment and the plaintiff appealed.

The Second Department observed that CPLR 5002 governs pre-judgment interest “from the date the verdict was rendered or the report or decision was made.” The Court further observed that there are extensive cases regarding what constitutes a verdict, report or decision including decisions on motions for summary judgment, to enter default judgment and to strike defendant’s answer; decisions on unopposed applications for a directed verdict on liability; binding arbitrators’ awards; confirmation of a referee’s report; and the decision of an Appellate Court reversing the denial of a plaintiff’s motion for summary judgment on liability. The Second Department noted that each of these was an adjudication by a jury, court or arbitrator.

By contrast, in the present case, the stipulation was not an adjudication of liability – it was an agreement between the parties. Had the Legislature intended to include stipulations in CPLR 5002 it could have done so. Therefore, finding that it was significant that the Legislature had omitted stipulations from CPLR 5002, the Second Department concluded that the stipulation did not trigger an obligation to pay pre-judgment interest, and instead pre-judgment interest was properly calculated from the date of the jury verdict on damages.

Second Department Holds that Denial of Untimely Appeal Is Not an Adjudication on the Merits

In Mosby v Parilla, the Second Department points to a noteworthy distinction between an appeal that is dismissed because of a failure to timely perfect and an appeal that is dismissed because it was not timely taken. Here, the jury found for plaintiff in a medical malpractice suit. The defendant then moved, pursuant to CPLR 4404(a), to have the verdict set aside. While the 4404(a) motion was still pending, plaintiff caused judgment to be entered and defendant appealed. The Second Department subsequently dismissed defendant’s appeal as untimely, but the lower court granted defendant’s earlier CPLR 4404(a) motion and the verdict was set aside as a matter of law.

Plaintiff appealed, stating that the Second Department’s dismissal of defendant’s untimely appeal precluded the Supreme Court from subsequently granting defendant’s 4404(a) motion. In holding for defendant, the Second Department noted that the “dismissal of an appeal as untimely does not constitute an adjudication on the merits” (unlike the dismissal of an appeal for a failure to perfect) and therefore the CPLR 4404(a) motion survived the collateral estoppel arguments raised by plaintiff.

Second Department Holds that Contractor Did Not Exacerbate Dangerous Condition

In Barone v Nickerson, plaintiff was injured when he tripped and fell while ascending stairs, which defendant was hired by the property owners to repair. Defendant was a third party whose contractual obligations were to the property owners, not the plaintiff. Plaintiff brought an action against defendant and the trial court granted defendant’s motion for summary judgment.

On appeal, plaintiff claimed that defendant fell within one of the three Espinal exceptions, which may give rise to tort liability under contractual obligations of third parties: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, [or] (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d 136 (2002)). Specifically, plaintiff alleged that defendant had violated the first factor by exacerbating the dangerous condition. Defendant was then required to make a prima facie showing negating only the applicability of the exception “expressly pleaded” by the plaintiff. In holding for defendant, the Second Department held that defendant had met his burden by showing that he did not leave the steps or handrail in a condition more dangerous than he had found it.

First Department Grants Partial Summary Judgment of Non-culpability for Innocent Driver

Oluwatayo v Dulinayan involved a motor vehicle accident, where plaintiff was rear-ended by defendant driver who was also rear-ended by another co-defendant driver. Plaintiff sought summary judgment on liability against both drivers. The lower court denied the motion, as plaintiff failed to meet his burden of eliminating triable issues of fact.

On appeal, the First Department, although agreeing with the lower court that there were triable issues of fact relating to the proportional fault of each defendant driver, held that the plaintiff was entitled to partial summary judgment under CPLR §3212(g) (“Limitation of issues of fact for trial”). In reviewing a series of cases involving innocent plaintiff passengers, the court stated the fact that the plaintiff driver here was rear-ended, while stopped was analogous to other cases where passenger plaintiffs were “entitled to a determination that [plaintiff] had no culpable conduct on the issue of liability irrespective of the unresolved issue of a defendant driver's negligence.” Unlike the innocent passenger cases, however, plaintiff here failed to establish the proportionality of fault of each defendant driver. Plaintiff was granted partial summary judgment “to the extent of finding no culpable conduct by plaintiff on the issue of liability.”

This Summer's Notable Labor Law Decisions

During the summer months the Appellate Courts release fewer decisions and release those decisions less frequently.  Below are two notable Labor Law decisions issued this summer. A third case regarding who is an "owner" under the Labor Law will follow in a separate blog entry. 

First Department Looks at Labor Law §240 Claim Where Plaintiff was Injured on Hilltop

In Ankers v Horizon Group, plaintiff was injured on a condominium construction site when a motorized wheelbarrow, which he was standing on, inadvertently rolled down a hill and caused plaintiff to tumble about fifteen feet. Among other claims, plaintiff brought a Labor Law §240(1) claim against defendant. The trial court granted plaintiff’s motion for summary judgment on the §240 claim and defendant appealed.

Under a Labor Law §240 claim contractors, owners, and their agents are responsible to furnish or erect devices to give proper protection from “gravity related” risks. The issue here was whether the wheelbarrow rolling down the hill was such a risk or an ordinary danger of the work site. The First Department held that because this determination was a genuine issue of fact, summary judgement on the §240(1) claim was improper and reversed the lower court’s decision.

Second Department Finds That Safety Consultant Is Not a Proper Labor Law Defendant

In Marquez v. L&M Dev. Partners, Inc., plaintiff was injured at a construction site when he fell through a plywood covered hole. Pro Safety Services (PSS) had been retained by the owner to provide “loss control and safety consulting services.” PSS solely acted in a consulting capacity and did not have any actual authority to control plaintiff’s work or the condition on which plaintiff was allegedly injured. As such, the Second Department granted summary judgment to PSS dismissing plaintiff’s complaint, finding that PSS was not a “statutory agent” of the owner and therefore not a proper labor law defendant for purposes of Labor Law §§240(1) and 241(6), and PSS’s lack of control over the work and the site conditions also entitled PSS to dismissal of plaintiff’s Labor Law §200 and common law negligence claims.

Tuesday, June 28, 2016

Court of Appeals States That the Appellate Division Does Not Need to Expressly Compare Damages Awards When Reviewing For Excessiveness or Inadequacy Under CPLR 5501(c)

For some time it has been argued that CPLR 5501(c), which mandates that the Appellate Division review awards for damages to determine if they deviate materially from reasonable compensation, requires the Appellate Division to provide a meaningful comparison of cases that involve awards for similar injuries in order to determine if the awards at present are excessive or inadequate.

In Matter of New York City Asbestos Litigation, the Court of Appeals stated that there is no such requirement. More specifically, the Court stated that "we reject TLC's contention that the Appellate Division applied the wrong legal standard in assessing whether Supreme Court's reduced damages award deviated materially from reasonable compensation. Neither CPLR 5501 (c) nor CPLR 5522 requires the Appellate Division to expressly compare the damages award in the judgment appealed from with damages awards in other cases in its written decision." Therefore, according to the Court of Appeals, it would be enough for the Appellate Division to simply state that it has considered the arguments regarding excessiveness or inadequacy and finds that the awards for damages do not deviate materially from reasonable compensation without providing either a rationale or comparable cases to support its decision.

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.