Thursday, September 20, 2012

Second Department Re-Affirms the Principle That Whether An Object Is A "Structure" Within the Meaning of the Labor Law Requires A Fact-Specific Inquiry

In McCoy v. Kirsch, the plaintiff was injured in a fall from a ladder while dismantling a "chupah," a canopy under which brides and grooms stand during weddings conducted in the Jewish religious tradition.  After noting that the Court of Appeals indicated long ago that "the word 'structure' in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Caddy v Interborough R.T. Co., 195 NY 415, 420), the McCoy Court cited various cases in which the Labor Law was applied to "several diverse items" found to be such structures and other various cases in which the object at issue was found to not be a structure.  The Court indicated, therefore, that: "[w]hether an item is or is not a 'structure' is fact-specific and must be determined on a case-by-case basis. In determining each case, courts may consider a number of relevant factors. These factors should include, but are not necessarily limited to, the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor should be deemed controlling."

In McCoy, the Court affirmed summary judgment in the plaintiff's favor, finding that this particular chupah, which was constructed of interconnected pipes, wood and fabric, all of which were secured to steel metal bases and required a ladder and hand tools to dismantle, was a structure within the meaning of the Labor Law, but the Court further indicated that another less durable, merely decorative chupah or other object, might not be considered such a structure.   

First Department Speaks on Labor Law § 240(1): Couplings Are Statutory Safety Devices. And, Foreseeability of the Need For A Device May Be the Dispositive Inquiry.

In Fabrizi v. 1095 Ave. of the Americas, L.L.C., a three opinion decision, a majority of the First Department found that questions of fact existed as to whether a "coupling" provided to the plaintiff to secure conduit was an adequate safety device under Labor Law § 240(1). The plaintiff, an electrician, was injured when a piece of conduit fell and struck his hand after it had separated from a "compression coupling." The plaintiff had specifically asked his supervisor for a "set screw coupling" to secure the pipe. Defendants argued that the compression coupling, along with an additional support system that had been provided, were sufficient for the work being performed. Four of the five Judges found that neither side had established their position as a matter of law, and therefore both plaintiff's and defendants' motions for summary judgment should have been denied.

In his dissenting opinion, Judge Tom argued that the defendants were entitled to summary judgment either because plaintiff was the sole proximate cause of his accident or because a "coupling" is not a statutory enumerated safety device. With respect to sole proximate cause, Judge Tom observed that plaintiff had removed two securing devices, without rational explanation, and left the conduit connected only to the compression coupling while he worked directly underneath the conduit. As to the coupling itself, Judge Tom found that it was not a statutory safety device, but rather a component part of the conduit system "whose purpose is to connect two sections of conduit" not to secure the conduit against falling.

In a third opinion, Judge Román felt constrained to address the concept of "foreseeability" in the context of Labor Law § 240(1). As the readers to this blog may recall, Judge Acosta had previously written an opinion in Ortega v. City of New York in which the Judge indicated that foreseeability applied only to Labor Law actions involving the collapse of a permanent structure. By contrast here, Judge Román argued that foreseeability applies to all Labor Law § 240(1) claims, especially claims involving falling objects. Of particular note is Judge Román’s observation that “foreseeability in the context of Labor Law § 240(1) jurisprudence, is a term we seldom see expressly mentioned in the relevant case law… Nevertheless, even when not specifically mentioned, in a great number of cases… foreseeability has been dispositive and has been necessarily implied.” Therefore, according to Judge Román, the relevant inquiry must address “whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute.”

Given the apparent split within the First Department on the issue of foreseeability as applied to Labor Law § 240(1), “coupled” with the fact that apparently anything can constitute a statutory enumerated safety device when placed in context with gravity related work, defendant’s counsel would be well advised to develop an argument that it was unforeseeable that plaintiff’s work would involve a gravity related risk, and therefore the defendant did not owe plaintiff a duty to provide a statutory safety device in the first instance.

Sunday, September 9, 2012

Court of Appeals Watch: Dean v. Tower Insurance Co. of New York

Dean v. Tower Insurance Co. of New York will be argued at the Court of Appeals this Tuesday.
In this insurance coverage action, at issue was an insurance policy Tower issued in March 2005 with respect to a house purchased by the Deans.  The policy stated that it covered physical loss to the "residence premises," which it defined as "[t]he one family dwelling, other structures, and grounds . . . where you reside."

After closing on their new house, the Deans discovered termite damage that delayed their ability to move in because of needed extensive renovations.  During this time, the Deans continued to reside in their old house without informing Tower. In March 2006, the policy was renewed for a second year while renovations were ongoing. Ultimately, an unrelated fire destroyed the new house and the Deans filed a claim under their policy. Tower disclaimed coverage on two grounds (1) that the insured house was not a “residence premises” under the policy; and (2) that the Deans misrepresented that they occupied the insured house. The Deans commenced an action against Tower, seeking to compel Tower to insure their loss.

The Supreme Court granted Tower's motion for summary judgment dismissing the complaint, holding that the house was not a "residence premises" under the policy.  The Court found that, "[g]iving the words 'where you reside' their 'plain and ordinary meaning,' the policy covered a dwelling where the Deans lived for a permanent or extended period of time."  Here, since the Deans never resided in the new house, the Court found that the new house was not a "residence premises."

In modifying the Supreme Court's order to deny summary judgment to Tower, the Appellate Division found that "residence premises" was ambiguous under the facts of the case, particularly where the term "resides" was undefined by the policy, and that there was an issue of fact as to whether the plaintiff's misrepresented their intention to reside at the insured house.

The Appellate Division granted Tower leave to appeal to the Court of Appeals. Arguments will be this Tuesday, September 11, 2012. The session begins at 2:30 p.m. and this matter is listed fourth on the calendar.  Based on the requested oral argument times of earlier matters, this matter should be argued, beginning at approximately 3:50 p.m.

The Court streams oral arguments live online. To watch the oral arguments, you can visit the New York Court of Appeals website on Tuesday after 2:30 p.m. and click on the "Oral Arguments Webcast" link on the right-hand side of the screen. Alternatively, on Tuesday after 2:30 p.m. you may click here to open the windows media player stream directly.