Tuesday, August 31, 2010

3-2 Majority Holds That Collapse of Middle Step of Three Step Staircase Is Not A Labor Law Violation

In a 3-2 decision in Lombardo v. Park Tower Mgt. Ltd., a majority in the First Department awarded summary judgment to the defendant dismissing plaintiff's Labor Law 240(1) cause of action. The Court held that the collapse of the middle step of a three step staircase was not a Labor Law violation. The Court found that the staircase was neither a safety device nor a temporary stairway that was intended to protect a worker from an elevation-related risk within the meaning of the Labor Law. Moreover, being only 18 inches above the floor, the modest height differential of the middle step did not expose the plaintiff to an elevation-related risk.

In dissent, Justice Moskowitz noted that the permanency and height of the staircase were irrelevant to the determination. Instead, the only relevant inquiry was whether plaintiff's injury flowed directly from the application of gravity. Citing Runner v. NYSE (13 N.Y.3d 599 [2009]), Justice Moskowitz found that, since it was undisputed that plaintiff's injury was caused by the application of gravity on his body while he stepped on the weakened stair, summary judgment should have been awarded to plaintiff.

If Properly Preserved, Inconsistency In Jury Verdict Need Not Be Raised Again On Post-Trial Motion

In Arrieta v. Shams Waterproofing, Inc., plaintiffs appealed from a jury verdict that awarded them damages for future pain and suffering, but no damages for past pain and suffering. Counsel for plaintiffs properly preserved his objection by raising the issue of inconsistency in the jury's verdict prior to the jury's discharge. In his concurring opinion, Justice McGuire observed that plaintiffs were not required by law to again raise in their post-trial motion the issue of inconsistency. Justice McGuire further observed that the timeliness of a post-trial motion is irrelevant with respect to an appeal from a judgment, but timeliness is relevant and outcome determinative with respect to an appeal from an Order denying the motion.

Sunday, August 22, 2010

Court of Appeals Watch

In April we reported on Salazar v. Novalex Contr. Corp., a Labor Law 240(1) and 241(6) action for injuries sustained when the plaintiff stepped backward into a four foot deep trench in a basement. The First Department reversed the trial court's grant of summary judgment to the defendants and reinstated claims under both statutes, with Judge Friedman dissenting. The First Department has now granted leave to appeal to the Court of Appeals.

With respect to Labor Law 240(1), the majority followed its prior decision in Carpio and concluded that the accident was gravity related because it was created by "the 'difference between the elevation level of the required work' . . . and 'a lower level.' " The Court then distinguished its holdings in Romeo and Geonie, as well as the Court of Appeals holding in Rocovich v. Consildated Edison Co. (78 N.Y.2d 509 [1991]) stating that in "each of these cases the dimensions of the opening in the floor were not sufficiently significant that the worker could be said to have been working at an elevation." In each of those cases the depth did not exceed two feet.

The majority further held that the plaintiff's claim fell within the meaning of "hazardous opening" within 12 NYCRR 23-1.7 and that there was no proof that the trench had to remain open in order to do the work.

The dissent argued that the majority's holding was inconsistent with prior decisions within the Department, the other three Appellate Divisions and the Court of Appeals holdings in Rocovich and Toefer (finding no liability under Labor Law 240[1] where a worker fell four to five feet from the trailer of a flatbed truck). The dissent called for Carpio to be overturned arguing that the defendants did not violate Labor Law 240(1) because none of the safety devices contemplated by the statute could have prevented the accident. Furthermore, the dissent argued that there should be no liability under Labor Law Sec. 240(1) and 241(6) where the injury producing activity was an integral part of the work. In that regard, the dissent sharply disagreed with the majority's characterization of the work being performed and whether the trench could have been covered.

Thursday, August 19, 2010

Law Journal Reviews the First 17 Months of the Lippman Court

Consistent with the mid-year analysis for the Court of Appeals we provided in July, the New York Law Journal reported earlier this week that when the Court is split "Judge Lippman is most apt to join Judges Ciparick and Jones."  The Law Journal then went on to explore whether this alignment reflects an ideological bent based on political philosophy, noting that Judges Lippman, Ciparick and Jones were each appointed by Democratic governors, while Justices Read, Graffeo, Smith and Pigott were appointed by Republican governors.  The Law Journal did not reach any conclusions, but did offer that Professor Stewart Sterk from Cordozo School of Law stated that "no Court of Appeals' judge has shown a slavish adherence to a political philosophy that can be counted on to produce predictable results."    

In January we will have our end of the year review and we'll see if the trend has held.  The Court of Appeals also provides their yearly report with all of their statistics sometime in March or April.  Here is their 2009 report.      

Wednesday, August 18, 2010

Useful Practice Nuggets

Cornell University v. Gordon, provides trial practitioners with the following, helpful reminders:

1. If a party consents to the submission of the matter to the alternate jurors as well as the regular jurors, she fails to preserve her argument that the court committed reversible error by submitting the case to a jury of eight persons rather than six.

2. Timely objection must also be made under CPLR 4113(a), that 5/6ths of the jurors constituting the jury must agree (here, the vote was 6-2), or such objection will again be deemed unpreserved.

3. Since all eight jurors deliberated from start to finish, their deliberations would not be invalidated, as in a situation where alternates are substituted for regular jurors after deliberations have begun (see Gallegos v. Elite Model Mgt. Corp., 28 AD3d 50 [2005]).

Arrington v. Bronx Jean Co., Inc., reminds insurance defense practitioners that a carrier's delay in assigning defense counsel may constitute a reasonable excuse for the defendant's default in appearing.

First Department Joins With The Other Departments Finding That Open And Obvious "Natural Geographic Phenomena" Are A Defense To Landowner Liability

In Melendez v. City of New York, the plaintiff was injured when she fell into a waterfall in Bronx River Park. The waterfall was considered a "natural feature of the landscape." The plaintiff fell when she slipped on wet rocks on the edge of the waterfall. The First Department found that both the waterfall and the wet rocks were open and obvious and the hazard of kneeling near the waterfall should have been anticipated by the plaintiff.

In affirming the granting of defendant's motion to set aside the jury's verdict on liability, the First Department distinguished this case from its prior holding in Westbrook v. WR Activities-Cabrera Mkts. (5 AD3d 69 [2004]). In Westbrook, the Court had joined with the other Departments in dispensing with the "open and obvious" doctrine as a defense to readily observable conditions such as a carboard box left in a supermarket aisle. Here, however, since the alleged condition was a "natural geographic phenomena," the Court indicated that it was again joining with the other Departments that, post-Westbrook, have held that the open and obvious doctrine is available for such natural conditions as a whirlpool, a ten-foot cliff and a ravine.

Tuesday, August 17, 2010

First Department Strictly Construes Statute To Preclude Liability Finding Against Abutting Landowner For Fall Near Metal Grate Owned By MTA

In Storper v. Kobe Club, the plaintiff tripped on a broken portion of sidewalk adjacent to a vault cover owned by the MTA. By Rule (Rules of City of New York DOT) the MTA was solely responsible for maintaining the vault and the sidewalk area extending 12 inches outward surrounding the vault. Pursuant to the Administrative Code, however, property owners abutting a sidewalk are responsible for maintenance and repair of that sidewalk. The First Department declined to find that the MTA and the landowner could be concurrently liable, holding that nothing in the Administrative Code could be read to supplant the statutory obligation of the MTA. "In reaching this result, [the Court was] guided by the principle that legislative enactments in derogation of common law, and especially those creating liabilty where none previously existed, must be strictly construed".

Wholesale Insurance Broker Not Liable For Failing To Timely Notify Excess Insurer; Retail Broker Potentially Liable For Failure To Follow With Insured

In Abetta Boiler & Welding Service, Inc. v. American International Specialty Lines Insurance Company, et al, the First Department dismissed a Wholesale Insurance Broker from the action on the basis that it did not owe a duty to the insured to timely notify the insured's excess carrier of a wrongful death claim. The Retail Broker had forwarded notice of claim and all of the information in its possession to the Wholesale Broker, but the Retail Broker failed to follow up with either the Wholesaler or the excess carrier to ascertain whether notice was received. Since the Retail Broker was the only party who owed a duty to the insured, the Wholesaler could not be held liable for failing to forward the notice of claim to the carrier.

The First Department further held that a question of fact existed as to whether the Retail Broker owed a duty to the insured to monitor pending claims to ascertain whether they had given rise to lawsuits against the insured. The excess carrier required both timely notice of claim and timely notice of the action. Since the Retail Broker did not receive notice of the wrongful death action, an issue of fact existed as to whether the Retail Broker should have followed up with the insured to determine if such an action had been commenced.

Thursday, August 12, 2010

Second Department Disagrees with First Department Regarding W-9 in connection with a Settlement

In Klee v. Americas Best Bottling Co., Inc., the parties agreed to settle the matter for $400,000.  Along with a release, stipulation of discontinuance and a tax ID number, the defendants' attorney requested that the plaintiff's attorney provide an IRS Form W-9. The plaintiff's attorney refused.  After the defendants failed to pay the $400,000 settlement within 21 days of the tender of the release and stipulation of discontinuance, the plaintiff entered judgment for the settlement amount, plus interest, costs and disbursements, pursuant to CPLR 5003-a.  The defendants then moved to vacate the judgment arguing that the W-9 was a condition precedent to payment of the settlement.

While the motion was pending, plaintiff's attorney provided the defendants with the W-9 and the defendants paid the amount of settlement, but not interest, costs and disbursements.  The trial court, relying on the First Department's decision in Cely v. O'Brien & Kreitzberg (45 A.D.3d 368 [1st Dept. 2007]), vacated the judgment finding that plaintiff's attorney was required to provide the W-9 as a condition precedent to payment of the settlement proceeds.  The Second Department, however, reversed disagreeing with the First Department's decision in Cely.  

The Second Department held that neither CPLR 5003-a nor the parties' settlement required the completion of a W-9. Furthermore, the Court held that the defendants made no showing that the portion of the personal injury settlement which the plaintiff's attorney may be entitled to retain as a legal fee is actually "reportable payment" subject to the reporting requirements of the IRS.  The Court also held that, even assuming an insurance carrier is mandated to report payment of the settlement proceeds, the defendants did not show that a W-9 was the sole means by which a carrier could comply with that obligation.    

In contrast in Cely, the First Department held, "Although neither the open court settlement agreement nor CPLR 5003-a requires the submission of those documents as a condition of payment of the settlement amount, defendant's request for them is supported by statute and case law (see Internal Revenue Code [26 USC] § 3406 [a] [1] [A] [corporation required to deduct and withhold tax if payee failed to furnish name, address and taxpayer identification number, information requested on W-9 Form]; In re Emergency Beacon Corp., 52 BR 828, 830 n 3 [SD NY 1985]; see also Liss v Brigham Park Coop. Apts. Sec. No. 3, 264 AD2d 717 [1999] [general release and stipulation of settlement defective in not providing for release of plaintiff's Medicare lien])."

Tuesday, August 10, 2010

A Contract Claim Permitted in a Medical Malpractice Action Against a Plastic Surgeon

In Duquette v. Oliva, the Appellate Division, Third Department reversed an Order of the Supreme Court, Clinton County, which denied the plaintiffs' motion for leave to amend their complaint. The plaintiff's sought to add a breach of contract claim to their medical malpractice action based upon the defendant's alleged "express special promise" to achieve a definite result in connection with a breast augmentation procedure. The Appellate Division concluded that the evidence showed some merit in the breach of contract cause of action to the extent that the defendant plastic surgeon "made express promises to insert smooth implants [as opposed to textured] and to increase her breasts to a specified size, but did not accomplish those results." Justices Spain and Cardona dissented, concluding that "the record is devoid of any evidence that any precise result was guaranteed that would convert this seemingly viable medical malpractice claim into a cause of action for breach of contract."

Friday, August 6, 2010

When Can A Construction Manager Actually Be A General Contractor?

In Salsinha v. Malcolm Pirnie, Inc., the First Department found that a question of fact existed as to whether a construction manager could be held liable to the plaintiffs under Labor Law sect. 241(6) based upon its contractual responsibility to choose subcontractors and testimony that it was "in charge of construction", i.e., the functions normally performed by a general contractor. The Court affirmed the dismissal of plaintiff's sect. 200 claim, however, on the basis that none of the defendant's exercised control over plaintiff's work methods.

The holding that Pirnie lacked control over the work suggests that Pirnie's potential liability under the Labor Law was not based upon Pirnie being a statutory agent of the owner - a finding that turns on whether control could have been exercised over the work. The Court of Appeals had held as much in Walls v. Turner Constr. Co. (4 N.Y.3d 861 [2005]). In Walls, the High Court found that the construction manager was a statutory agent of the owner in part on the basis that the construction manager had the authority to control the work and stop any unsafe work practices.

Thus, the First Department's holding in Salsinha may suggest that, if Pirnie were not an agent because it could not control the work, then, despite Pirnie's "construction manager" title, Pirnie could be held liable under the Labor Law as the "general contractor" for the project.

Therefore, Salsinha raises the question: What facts are necessary to establish that the construction manager for a particular project was actually the general contractor?

We will simply have to follow the case for the jury's answer.

Allegedly Inadequate Jury Charge Incites A Stinging Dissent

In Altamirano v. Door Automation Corp., a security guard at Lincoln Center was injured when a metal arm from a large motorized door broke free and struck him in the head. It was alleged that Door Automation Corp., who had repaired the door eleven times in the year preceding the accident, had improperly repaired the metal arm. On a prior appeal, the First Department had found that a question of fact existed as to whether DAC's repairs brought DAC within the exception to the rule precluding contractual third-party tort liability (48 A.D.3d 308 [2008]).

At trial, plaintiff's counsel sought to use the First Department's holding to formulate the jury charge. The trial court rejected counsel's proposed charge. On appeal from a jury verdict in favor of the defendant, a majority of the First Department reversed, finding that the charge chosen by the trial court did not "concisely explain, in fact-specific terms, what the jury needed to find in order to determine DAC's liability... Instead, it was both misleading and confusing..."

Writing for the dissent, Justice Nardelli, joined by Justice Abdus-Salaam, observed that counsel's proposed charge "erroneously" relied on the Court's dicta from its earlier decision and that counsel had "misinterpret[ed] the import of th[at] decision." Justice Nardelli wrote "[a]ny... observations made in [this Court's earlier] decision were, at best, explanations in support of its holding that issues of fact were presented, or, at worse, dicta..." The Judge instead found that the trial court's charge accurately tracked the law, and that nothing in the charge was incorrect or confusing. Therefore, "since the charge was clear and accurate as given" Justices Nardelli and Abdus-Salaam would have affirmed.

Injury's Proximity to Construction Site not the Operative Factor

In D'Alto v 22-24 129th St., LLC, the plaintiff was injured when he fell while climbing down from a truck located 100 feet away from the construction site. The Second Department held that the accident did not fall outside of the protections of Labor Law § 240(1) just because he was approximately 100 feet away from the work site when the accident occurred. The plaintiff’s work was “necessitated by virtue of the [cement being prepared for use] in the construction [site] and was incidental to its movement [to] the construction area.”

Wednesday, August 4, 2010

Court of Appeals Watch

Leave to appeal to the Court of Appeals has been granted in the following cases:

Strangio v. Sevenson Environmental Services, Inc.: in this Labor Law § 240(1), the issue is whether plaintiff's injuries were directly caused by the application of the force of gravity when plaintiff was struck in the face by the handle of a hand-operated hoisting mechanism while raising a scaffold that descended unexpectedly.  The Supreme Court granted the motions of third-party plaintiffs and third-party defendant for summary judgment dismissing the Labor Law § 240(1) claim. The Appellate Division, Fourth Department affirmed, with two justices dissenting relying on the Court of Appeals recent decision in Runner v. New York Stock Exch. Inc., 13 N.Y.3d 599 (2010).

Doherty v. Merchants Mutual Ins. Co.: in this action against an insurer, the insured alleged that the insurer acted in bad faith by failing to settle an underlying personal injury action within the policy limits, thereby exposing the insured to personal liability. The Supreme Court granted the insurer’s motion for summary judgment and the Fourth Department affirmed. Two justices dissented finding that there was a question of fact as to whether the insurer’s investigation into the claim and the value of the claim was reasonable. (UPDATE: motion to dismiss the appeal was denied).   

Butler v. Stagecoach Group, PLC: in these consolidated actions, the plaintiffs are seeking damages for injuries or wrongful death resulting from the collision of a tractor-trailer parked on the shoulder of highway in New York and a chartered bus transporting a women's hockey team from Ontario, Canada.  At issue is (1) whether the courts below erred in determining that the law of Ontario, Canada applied as to noneconomic damages and (2) whether the Appellate Division erred in concluding that the Supreme Court did not abuse its discretion by taking judicial notice of Ontario law regarding noneconomic damages, despite defendants' failure to raise the applicability of such law as an affirmative defense and to provide the substance of the law in their pleadings pursuant to CPLR 3016(e).  The Fourth Department held that this case fell within the exception to the general rule that the law of the forum where the tort occurred should apply, because under the circumstances, “displacing the normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.” The Court also held that because CPLR 4511(b) permits a court to take judicial notice of laws of foreign countries that are presented prior to the presentation of evidence at trial, the court is not barred from considering them based on the requirement in CPLR 3016 that such laws be set out in the pleadings.