Friday, January 28, 2011

First Department Departs From The Remainder of The Appellate Divisions to Find 240(1) Liability For Fall From "Passageway"

In Auriemma v. Biltmore Theatre LLP, the plaintiff, who was assigned to install electrical conduit in a building, was injured in a fall from a plank that was being used by workers to enter an excavation trench. The plaintiff had planned to cross the trench by walking down the plank, crossing the trench to a ladder on the other side and then ascending the ladder back to the ground floor. The plank gave way and the plaintiff fell to the bottom of the trench. The plaintiff was not performing work in the trench.

In holding that the plaintiff was entitled to partial summary judgment on liability pursuant to Labor Law 240(1), the First Department rejected the defendant's argument that 240(1) did not apply because the plank was a passageway. In so holding, the decision of the First Department is in conflict with the remainder of the Appellate Division (and its own prior precedent, see Ryan v. Morse Diesel, Inc., 98 A.D.2d 615 [1st Dept. 1983] [an accident arising on “a passageway does not lie within the purview of section 240(1)”]).

For example, in Paul v. Ryan Homes, Inc. (5 A.D.3d 58 [4th Dept. 2004]), the plaintiff, a painter, attempted to enter a house under construction by using an unsecured plank. The plank tipped, causing him to fall to the concrete floor. The Fourth Department held that 240(1) did not apply because the plaintiff “used the plank as a passageway to enter the house, and there is no evidence in the record before us that the plank was used as a scaffold, ladder or other device enumerated in the statute” (id. at 61) . In other words, the plank was not a tool used in the performance of the plaintiff’s work, but rather was “merely a passageway from one place of work to another” (id.).

Similarly, in Donohue v. CJAM Associates, LLC (22 A.D.3d 710, 711-712 [2nd Dept. 2005]), the plaintiff fell from a ramp which provided access to the building where he was working. The Second Department held that “[t]he ramp from which the injured plaintiff fell was not being utilized in the performance of his work in the building under construction, i.e., it was not being utilized as a ladder, scaffold, hoist, or other safety device for the benefit of the injured plaintiff in his work. Rather, it was used as a passageway for laborers at the work site and, as such, did not come within the purview of Labor Law § 240(1)” (id. At 711-712).
In Straight v. McCarthy Bros. Co. (222 A.D.2d 775 [3rd Dept. 1995]), the plaintiff, a steamfitter/plumber, was injured at a construction site when he fell from a plank while entering the building where he was working and sustained injuries. The Third Department held that “the plank was not being utilized in the performance of Straight’s work in the building under construction, i.e., it was not being utilized as a ladder, scaffold, hoist or other safety device for the benefit of Straight in his work as a plumber. Rather, it was used as a passageway for laborers to transport materials and debris at the work site and, as such, did not come within the purview of Labor Law § 240(1)"(id. at 776).

Sunday, January 23, 2011

First Department Expands Scope Of Nurse's Duty

In Applewhite v. Accuhealth, Inc., the defendant was a registered nurse whose work was exclusively limited to home infusions of intravenous medication. During an infusion of a twelve year old girl at her home, the plaintiff had an allergic reaction to the medication causing her to go into anaphylactic shock. The nurse instructed the mother to call for an ambulance and then began CPR with a one-way breather she had brought with her. The plaintiff, however, rapidly deteriorated going into full cardiac arrest and by the time assistance arrived she had suffered oxygen loss and permanent brain damage. It was undisputed that epinephrine is commonly given to counteract the effects of the allergens that cause shock. The nurse, however, did not have epinephrine with her, it was not prescribed by the physician and was not shipped by her employer to the plaintiff’s house along with the other medical equipment that had been shipped there.

At issue was the scope of the nurse’s duty. While the panel agreed that questions of fact were presented as to whether the nurse did not properly handle the plaintiff's anaphylactic reaction, such as in the manner and position in which she provided CPR, they split as to the nurse's duty with respect to the epinephrine. The majority held that the nurse should have been proactive and inquired with the physician as to whether epinephrine was available. According to the majority, this was part of a nurses “critical role” “as a check against medical error.” The dissent argued that the majority’s ruling constituted a new “duty to inquire” and that nurses would now need to supervise doctors and the prescriptions they provide or do not provide. In September, we published an article in the New York Law Journal, entitled “Defining the Duty of a Physician” discussing the need for the courts to clarify how to determine the scope of a physician’s duty. Those same principles should have applied to this case.

Monday, January 10, 2011

This Week's Insurance Case To Watch At The Court of Appeals

Tuesday, January 11, 2011

Fieldston Property Owners Association, Inc. v. Hermitage Insurance Company, Inc. - a neighboring landowner sued Fieldston for interference with property rights and "injurious" statements made by Fieldston's directors and officers.  Hermitage had issued Fieldston a $1 million comprehensive general liability (CGL) policy.  Federal Insurance Company had issued Fieldston a $1 million directors and officers (D&O) policy.  At issue is who was required to provide the defense and to what extent.    

Federal conceded that at least some of the claims fell within its D&O policy, but argued that its policy was excess over Hermitage based on an "other insurance clause" within its policy.  When the injurious falsehood claims were dismissed, Federal assumed the defense of Fieldston on the remaining claims and Hermitage demanded reimbursement from Federal for defense costs it previously incurred. 

The First Department held that Federal must reimburse Hermitage for its equitable share of the costs Hermitage incurred in defending Fidelston.  With the exception of the injurious falsehood claim, all other losses are not insured by the CGL policy.  Accordingly, it held that the "other insurance" clause did not make Federal excess with respect to those losses. 

Friday, January 7, 2011

Court of Appeals Watch

The follwing cases were granted leave to appeal to the Court of Appeals by the First Department:

Suppiah v. Kalish: involves a claim of legal malpractice against an immigration attorney. The plaintiff claimed his attorney committed malpractice by seeking to renew rather than extend his status under a nonimmigrant temporary working visa.

Umeze v. Fidelis Care New York: after the pro se plaintiff failed to respond to the defendants' CPLR 3216 90-day demand to resume prosecution, the defendants moved to dismiss the complaint.  The trial court granted the motion, but only to the extent of directing the plaintiff to resume prosecution within 10 days of service of the order with Notice of Entry.  The defendants appealed based on the failure to grant an unconditional order of dismissal and the First Department affirmed in a 3-2 decision.   

The majority held that the plaintiff's attempts to obtain counsel twice during the 90-day period demonstrated that there was no intent to adandon.  Furthermore, they held that the plaintiff's verified complaint constituted a sufficient showing of merit.

The dissent (Justices Catterson and Gonzalez) argued that the plaintiff's attempts to find an attorney during the 90-day period did not provide a reasonable excuse and did not explain the plaintiff's prior 5-year delay in prosecuting the action.  Furthermore, they argued that while a verified complaint may, on occassion, serve as a sufficient affidavit of merit, this was not one of those cases.  They also did not find the plaintiff's pro se status as an excuse for the delay.   

Thursday, January 6, 2011

Fire Loss Claimed Dismissed, As No Insurable Interest Found

In Kittner v. Eastern Mutual Ins. Co., the defendant insured Design Science Toys, Ltd. (DST) and QK Properties against the risk of fire. DST operated a toy business from a building owned by QK. Ultimately, QK sold the building and DST went bankrupt.  After the bankruptcy, DST transferred its remaining assets, which consisted of inventory and equipment, to QK. The equipment/inventorty remained located in QK's former building. These materials were destroyed in a fire and both DST and QK made claim under the Eastern policy. DST then assigned its interest in the fire-loss to Kittner.

The Third Department held that Kittner lacked standing to sue Eastern because she lacked an insurable interest in the subject property. More specifically, since DST had already transferred its assets to QK, DST had nothing to assign to Kittner. The Court found that "[n]o contract or policy of insurance on property made or issued in this state. . . shall be enforceable except for the benefit of some person having an insurable interest in the property. . ." and a person has an "insurable interest" only when she has a "substantial economic interest" to protect the property which is the subject of the loss. Therefore, Kittner's claim was dismissed.

The decision is also notable for the finding that judicial estoppel applied to preclude QK from claiming that the value of the lost property was 40 times more than that previously asserted by DST in its bankruptcy proceedings.

Recent Pain and Suffering Award for Torn Meniscus with Surgeries

In Diaz v. City of New York, the plaintiff slipped and fell on oil or grease while descending from a collection truck, resulting in a torn meniscus. Plaintff underwent 4 arthroscopic procedures and was disabled at the time of trial. Moreover, he was highly likely to undergo knee replacement surgery in the future and would aslo require revision to the knee replacement. As such, the First Department affirmed a jury award of $800,000 for six years of past pain and suffering and increased the award for future pain and suffering from $150,000 to $600,000.