Wednesday, November 14, 2012

Court of Appeals Watch: Guryev v. Tomchinsky

Update: New post discussing the Court of Appeals' opinion in this matter

Guryev v. Tomchinsky - In this action the plaintiff alleges that during the course of a condominium renovation a nail from a nail gun ricocheted and struck him in the eye.  The plaintiff was employed by a contractor hired by the unit apartment owners, the Tomchinsky defendants.  The Tomchinsky defendants had obtained approval for the renovation from the Condominium in the form of an alteration agreement that included a right to reject the choice of contractor as well as a right to inspect the work and limit work hours.  The plaintiff brought this Labor Law action, including a section 241(6) claim against various defendants, including the Condominium, its Board of Managers, and the managing agent, the Trump Corporation. 

The trial court denied the Condominium-related defendants’ motion to dismiss these Labor Law claims, finding the existence of questions of fact.  The Appellate Division, Second Department, reversed and granted summary judgment, holding that that they were not owners or agents within the meaning of the Labor Law.  The Appellate Division concluded that the Condominium-related defendants did not function as an owner because they lacked the interest of an owner, they did not hire contractors, supervise or control the work, and had no authority with respect to proper safety practices. 

The Court of Appeals granted Guryev leave to appeal.  At issue will be plaintiff’s argument that the Condominium-related defendants are “owners” or “agents of owners” against which a section 241(6) claim could be brought.  Plaintiff will argue that the Condominium Law designates the Condominium as landowner and that the Appellate Division’s decision would exempt condominiums from responsibility and thus thwart the purpose of the Labor Law. Oral argument will be this Wednesday, November 14, 2012.  The Court streams oral arguments online.  To watch them live, you can visit the New York Court of Appeals website on Wednesday after 12:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

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