Friday, January 29, 2016

Second Department Reverses and Orders A New Trial For Plaintiffs Despite Their Lack of Objection to Jury Charge

In Figueroa-Burgos v. Bieniewicz, the plaintiffs commenced an action against the defendant for lack of informed consent regarding the plaintiff's breast-reduction surgery.  The jury found in favor of the defendant and the plaintiffs appealed.  The jury was charged that the defendant had a duty to inform the plaintiff of alternatives to surgery and also that the defendant had a duty to inform the plaintiff of the risks of surgery.  The jury was asked to determine if the defendant departed from good and accepted medical practice by failing to provide appropriate information to the plaintiff and, if so, whether such departure was a proximate cause of the plaintiff's alleged injury.  The plaintiffs did not object to the jury charge or verdict sheet.

On appeal, the Second Department nevertheless considered the unpreserved objection that the jury was not properly charged with the standard for lack of informed consent.  The Court found that the jury was not properly instructed on the three elements of lack of informed consent: (1) that the defendant failed to disclose alternatives to surgery and failed to inform the patient of reasonably foreseeable risks that a reasonable practitioner would have disclosed under the circumstances; (2) that a reasonably prudent patient would not have undergone surgery if she had been fully informed; and (3) the lack of informed consent is a proximate cause of the injury.  Here, the jury was only asked to decide if two of the three elements existed, so the Second Department reversed the judgment and remanded the matter for a new trial on lack of informed consent.  

Can A Party Appeal on Behalf of Another Party? Second Department Reminds the Bar That the Answer Is: "NO"

In Barrett v. Dennis Lounsbury Builders, Inc., defendant Garvey attempted to appeal the dismissal of the plaintiff's Labor Law § 200 and common-law negligence claims asserted against defendant Dennis Lounsbury Builders, as well as the refusal of the lower court to search the record and grant Garvey summary judgment on his cross-claim against Lounsbury for common-law indemnification. The Second Department dismissed Garvey's appeal, holding that "[w]here the order does not affect the rights of an appealing party, that party is not aggrieved by the order and the appeal must be dismissed."  Likewise, a party is not aggrieved by an order that does not grant relief that was not requested.     

Thursday, January 21, 2016

Majority of First Department Panel Finds That Study-Abroad Organizer Owed Duty to Care For Program Participant

In Katz v. United Synagogue of Conservative Judaism, the plaintiff was a participant in a study-abroad program in Israel operated by United Synagogue.  During her first semester abroad she allegedly injured her knee for which she was treated by a doctor.  During the second semester she performed volunteer work where she stayed with a host family.  Plaintiff's relatives lived an hour and a half away in Jerusalem, and plaintiff had a cell phone to contact her parents.  She allegedly re-injured her knee for which she again received treatment at a hospital.  She was told to rest and return in two weeks if the knee remained swollen.  A week later she was accompanied by a United Synagogue staff member to an orthopedist appointment where an MRI was prescribed.  Another week later she was again accompanied to her MRI appointment and the following week returned to the orthopedist, once again accompanied by United Synagogue.  She was prescribed physical therapy but did not seek treatment because she told United Synagogue to make arrangements for her.  When they failed to do so, she complained to the program director who was not responsive.  Finally, she complained to her parents.  Upon returning to the states she underwent surgery that she claims was exacerbated by her failure to obtain physical therapy in Israel.

The majority found that United Synagogue owed a duty to the plaintiff because it was in the best position to protect her from harm -- although the majority recognized that "plaintiff, an adult, with access to her parents in another country and family in Jerusalem, may not have been as helpless as she makes herself out to be."  The majority further found that this was not an ordinary study-abroad program because of portion of the program was not held at a university.  Lastly, the majority suggested that it was not extending the doctrine of in loco parentis, which does not apply at the college level, because the program had an internal policy of assisting with arrangements for medical care.

The dissent disagreed, finding that the majority was, in fact, applying the doctrine of in loco parentis, which has been affirmatively rejected by the Courts with respect to study-abroad programs.  The dissent noted that the plaintiff had the means to make arrangements for her medical treatment, and that any failure by defendant to do so amounted to a mere breach of contract, which would not create an independent tort duty. Finally, even assuming that defendant owed a duty to the plaintiff, the dissent would have dismissed the claim based on a lack of proximate cause. 

The majority consisted of Justices Acosta, Saxe and Moskowitz. The dissent was written by Justice Andrias, in which Justice Tom joined.  With a 3-2 split the defendant will have an automatic right of appeal to the Court of Appeals once finality has been achieved.  We will continue to monitor the case for a possible leave motion in advance of finality being obtained.          

First Department Finds That its Decision as to One Defendant Was Law of the Case as to the Remaining Defendants

In David v. Persaud, the plaintiff alleged that defendant Dr. Cerbone, an ER attending and defendant surgeon, Dr. Hutchinson, failed to diagnose and treat a post-operative infection at defendant St Barnabas Hospital which ultimately led to the death of her decedent.  On motions and cross-motions by all defendants for summary judgment, the trial court denied the motions and Dr. Cerbone appealed.  The First Department reversed and dismissed the claim against Dr. Cerbone, finding that "plaintiff's expert failed to causally relate the alleged four-day delay in diagnosis... to decedent's death."

Thereafter, Dr. Hutchinson and St Barnabas moved to renew their motions for summary judgment, which were granted and plaintiff appealed.  The First Department affirmed, finding that the lower court had properly relied on law of the case doctrine.  The First Department also found that renewal was the appropriate procedural course because its earlier decision dismissing the case against Dr. Cerbone constituted a change in the law. 

Friday, January 15, 2016

Third Department Appears to Indicate That "Hogeland" Indemnity Is Not Available Unless Insurance Is Actually Procured

The General Obligations Law at sections 5-321 and 5-322.1 prohibits a party to a contract or agreement from being indemnified for its own negligence.  Section 5-321 pertains to agreements related to the leasing of real property, and section 5-322.1 pertains to construction contracts.  Where a broadly worded indemnity provision purports to indemnify a party for its own negligence, it will be void or voidable upon a finding of active fault (the party may still be indemnified for its vicarious liability).

For years, however, the "Hogeland" exception has permitted an actively negligent landowner to be indemnified for its own negligence where sophisticated parties have negotiated the agreement at arms-length and have shifted the risk of loss to third-parties through mutually beneficial insurance (see Hogeland v. Sibley, Lindsay & Curr Co., 42 NY2d 153 [1977]). 

A question has been raised, however, what happens to a broadly worded indemnity provision pursuant to GOL 5-321 if the party who is obligated to procure the insurance, typically the tenant in the landlord-tenant context, fails to do so?  

The Third Department seems to indicate that the indemnification provision will be void and unenforceable under those circumstances.  In Reutzel v. Hunter Yes, Inc., the Third Department stated the general "Hogeland" principal, but indicated that the "Hogeland" analysis "presupposes... that the required insurance actually is procured."  In the case before the Court, the record was not clear whether such insurance had actually been procured.  Under those circumstances, the Court declined to grant summary judgment to either party, suggesting that if such insurance was not procured then the "Hogeland" exception would not apply, and the landlord could not be indemnified for its own negligence.   

Tuesday, January 5, 2016

First Department Finds That Classification of Coverage Endorsement Is Part of Coverage Grant Under Insurance Policy -- Not A Policy Exclusion That Would Otherwise Require Timely Disclaimer

In Black Bull Contr. v. Indian Harbor Ins. Co., Indian Harbor issued a policy of commercial general liability insurance to Black Bull under which Indian Harbor agreed to pay all sums the insured was legally obligated to pay as the result of damages "to which this insurance applies."  Pursuant to Endorsement #003, the insurance applied "only to operations that are classified or shown on the Declarations."  According to the Declarations, Black Bull was insured for four classifications: (1) Carpentry; (2) DryWall Installation; (3) subcontracted work in connection with construction, reconstruction, repair or erection of buildings; and (4) subcontracted work uninsured/underinsured.  

Black Bull was hired to perform work on a building and one of its employees was injured while using a jackhammer to demolish a chimney.  The worker commenced an action against the owner of the building, who in turn commenced an action against Black Bull.  Black Bull tendered to Indian Harbor both Black Bull's defense to the owner's action and the owner's defense to the worker's action. Indian Harbor issued two disclaimers, 79 and 85 days after being notified of the loss, on the basis that the worker was not injured while performing work within any of the four classifications enumerated in the Declarations page.

In a declaratory judgment action against Indian Harbor, the Supreme Court granted Indian Harbor's pre-answer motion to dismiss, which was affirmed by the First Department.  The First Department found that the Indian Harbor disclaimers were untimely as a matter of law, but, significantly, the Court also found that Indian Harbor was not obligated to timely disclaim coverage to Black Bull. The Court indicated that Indian Harbor's disclaimers were based on a lack of coverage in the first instance, not a policy exclusion that would have otherwise required a timely disclaimer.  More specifically, the policy's classification limitations defined the activities that were included within the scope of coverage, i.e. the activities "to which this insurance applies."

The First Department further found that the demolition work engaged in by Black Bull's worker was not an activity that could be included within the four policy classifications.  The work clearly was not carpentry or drywall and the Court found that the remaining classifications for subcontracted work applied to work subcontracted by Black Bull to others, not work that was subcontracted to Black Bull.  Any other interpretation, the Court found, would be "untenable as a matter of law, because it would render meaningless and without effect the two previous classification limitations by extending Black bull's coverage to all of its contracting operations, whether or not they constitute carpentry or wall installation."  Therefore, the Court declared that Indian Harbor had no duty to defend or indemnify either Black Bull or the underlying owner for the worker's claims.

Monday, January 4, 2016

Fourth Department Denies Partial Summary Judgment to Plaintiff Pursuant to Labor Law § 241(6)

In Quiros v. Five Star Improvements, Inc., the plaintiff roofer was struck in the eye by a ricocheting nail.  He commenced an action, in part, pursuant to Labor Law § 241(6) as predicated on an alleged violation of Industrial Code 12 NYCRR 23-1.8(a) pertaining to eye protection.  The Fourth Department reversed the trial court and denied plaintiff's motion for summary judgment, finding questions of fact as to whether plaintiff was provided with eye protection, and if so whether he was comparatively at fault for failing to wear such eye protection.  The Fourth Department also found that, even if plaintiff had established a violation of the Industrial Code this did not establish negligence as a matter of law.

Fourth Department Applies Labor Law § 240(1) Where Worker Does Not Fall From Ladder

In Fladd v. Installed Bldg. Prods., LLC, the Fourth Department found that Labor Law § 240(1) applied where plaintiff was standing on an allegedly "wobbly" A-frame ladder and was injured when he was struck by a garage door, causing the ladder to become even more "wobbly."  The plaintiff never fell from the ladder, but injured his back as he attempted to steady himself.  The Fourth Department did, however, deny the plaintiff's motion for summary judgment finding numerous discrepancies in the Record as to whether the accident happened in the manner alleged by plaintiff and whether the ground on which the ladder was placed was appropriate, according to defendant's expert, for the work.