Plaintiff's Employer Functioned as "One Company" With Defendant

In Carty v. East 175th Street Housing Dev. Fund Corp., the First Department found that the plaintiff's employer functioned as one company with defendant for purposes of barring plaintiff's claims under Workers' Compensation Law 11. More specifically, the Court reached its conclusion upon finding that the two entitites shared the same president and director of finance, financial management, administrative headquarters and insurance policy, as well as functioning with a common purpose. Moreover, although the building was owned by the defendant, the plaintiff's employer paid all of the building's operating expenses and had employees to operate the facility.

Panel Discusses Jury Charge In A Labor Law 240(1) Case

In Ramirez v. Willow Ridge Country Club, Inc., the plaintiff was in the process of demolishing a second-story deck attached to the defendant's building when he allegedly fell off the deck through a space where the railing had been removed. By contrast, his foreman testified that plaintiff was straddling between an A-frame ladder and an extension ladder affixed to the building when a gutter he was removing broke free, causing plaintiff to lose his balance and fall. The foreman further testified that he specifically admonished the plaintiff to stop.

The jury returned a verdict finding that the defendant had violated Labor Law 240(1), but that the violation was not a substantial factor in causing the accident. In affirming the jury's verdict, the First Department observed that the jury was instructed that it should find for defendants if the jury concluded that plaintiff's actions were the only substantial factor in bringing about the accident. As such, the jury specifically had not been instructed on the recalcitrant worker defense. The Court held that the verdict was consistent with the charge and "pereceive[d] no ground upon which [the] verdict should be disturbed."

For those who are curious as to what the PJI has to say with respect to the "recalcitrant worker defense," the proposed charge is found at PJI 2:217.2, and suggests that the jury be charged the following:

If, however, you decide that plaintiff in this case was a “recalcitrant worker,” then you must find for the defendants. Recalcitrant means that the worker deliberately and unreasonably failed or refused to use an available and adequate safety device. “Deliberately” means intentionally. It does not mean negligently or carelessly. In order to establish that the plaintiff was a recalcitrant worker, the defendant has the burden of proving (1) that [specifiy device such as safety harnesses/vests and tie lines] were provided to the plaintiff and were adequate and safe (2) plaintiff knew both that the safety harness and tie lines were available and that he was expected to use them (3) he chose for no good reason not do to so and (4) had he not made that choice he would not have been injured.

If the foregoing conditions are met, then you will have determined that plaintiff was the sole proximate cause of his accident, and you need proceed no further.

New York Loosens Attorney Admission Rules For In-House Counsel

The Court of Appeals has amended its rules for the Admission of Attorneys adding Part 522 relating to the registration of in-house counsel in New York. The amendment, effective April 20, 2011, permits attorneys in good standing in certain other U.S. jurisdictions to act as in-house counsel for a New York organization without satisfying traditional admission requirements.  For complete details click here.     

New York Establishes Medical Indemnity Fund (also referred to preenactment as the Neurologically Impaired Infant Fund or NIIF)

On Thursday, March 31st, the New York State Legislature passed its first on-time budget in five years. Significantly, for medical malpractice practitioners, the budget included the creation of the Medical Indemnity Fund. The Fund was established to pay for future medical costs in birth-related neurological injury lawsuits. In those cases, all future medical expenses will be paid through the Fund, not by the defendant or its insurer. We are still working our way through analyzing the new legislation, but some of the important early highlights to note:

(1) The law will apply to all birth-related neurological injury lawsuits where no judgment has been entered and no settlement agreement has been entered into by the parties before April 1, 2011.

(2) The costs covered by the Fund include "future medical, hospital, surgical, nursing, dental, rehabilitation, custodial, durable medical equipment, home modifications, assistive technology, vehicle modifications, prescription and non-prescription medications, and other health care costs actually incurred for services rendered to and supplies utilized by qualified plaintiffs."

(3) The plaintiff's attorney's fee will be based upon the "entire sum awarded" by the jury or the court, or the full sum of the settlement. It "shall be paid in a lump sum by the defendants and their insurers pursuant to section four hundred seventy-four-a of the judiciary law; provided however that the portion of the attorney fee that is allocated to the non-fund elements of damages shall be deducted from the non-fund portion of the award in a proportional manner."

(4) Every settlement agreement for an alleged birth related neurological injury shall provide that in the event the administrator of the fund determines that the plaintiff or claimant is a qualified plaintiff, all payments for future medical expenses shall be paid in accordance with the fund provisions. When the settlement agreement does not have such a provision, "the court shall direct the modification of the agreement to include such term as a condition of court approval."

(5) Where the jury or court has made an award for future medical expenses, either party can make an application to the court "that the judgment reflect that, in lieu of that portion of the award that provides for payment of such expenses, and upon a determination by the fund administrator that the plaintiff is a qualified plaintiff, the future medical expenses of the plaintiff shall be paid out of the fund." The Court must grant such a request if the applicant makes a prima facie showing that the plaintiff qualifies for the Fund.

Initially, the most important aspect to note is that if you have a case involving an infant neurologically impaired at birth, which has not settled or reached a judgment as of April 1, 2011, your case appears to qualify for the Fund. That will result in significant cost savings for defendants and plaintiff's counsel will have to advise their clients of how the Fund will operate.

Beyond that, at this preliminary stage, we will hold-off on discussing any other specific implications of the new Fund. Of course, we welcome any insights or perspectives you would like to share. As we continue to analyze the statute and receive feedback, we will provide periodic updates on this blog.

Second Department Makes Rare Admission

In Stukas v. Streiter, the Second Department made a rare admission that its decisions related to a plaintiff's burden in opposition to a motion for summary judgment in medical malpractice cases "lacked a precise consistency."  In Stukas, the defendant moved for summary judgment, making a prima facie case that it did not depart from standard and accepted practices. In response the plaintiff attempted to raise a question of fact on that issue, but did not address the issue of causation.  At issue on appeal was whether the plaintiff was required to address causation, even though the defendant had not raised it in its motion.  The Appellate Division held that despite many of its own cases stating or implying to the contrary, a nonmoving party is not required to raise a triable issue of fact when the moving party has not addressed the issue.  

CPLR 2001 Can Only Bend So Far

In Goldenberg v. Westchester County Health Care Corporation, the plaintiff commenced a special proceeding to file a late notice of claim, attaching a copy of a proposed complaint.  After the Supreme Court granted the petition, the plaintiff served the hospital with a notice of claim as well as a summons and complaint.  The plaintiff, however, did not purchase an index number and failed to file a summons and complaint.  The Court of Appeals held that while CPLR 2001 was amended to allow trial courts to fix or overlook defects in the filing process, the amendments were not meant to excuse a complete failure to file within the applicable statute of limitations. Since the plaintiff never filed a summons and complaint, the Court held that the mistake could not be excused.  

Court Declines to Apply Assumption of Risk to Rollerblading on A Sidewalk

In Ashbourne v. City of New York, the plaintiff was injured while rollerblading on a public sidewalk. She commenced an action against the City and NYCHA. The trial court dismissed the plaintiff's complaint on the basis of the assumption of risk doctrine. On appeal, the First Department reversed and reinstated the complaint.

The First Deparment initially observed that, in Trupia v. Lake George CSD (14 NY3d 392 [2010]), the Court of Appeals declined to apply the assumption of risk doctrine by limiting the doctrine to protect only organizers and sponsors of athletic and recreational activities because of their "enormous social value". The First Department then observed that assumption of the risk doctrine was applied by the Court of Appeals to a golfing game in Anand v. Kapoor (2010 NY Slip Op 09380 [2010]) because "[a] person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation."

Applying the foregoing analsyis, the First Department held that the rollerblading engaged in by plaintiff on a public sidewalk was not part of an organized sporting event, but was merely a form of exercise no different than jogging. As such, plaintiff did not consent to the negligent maintenance of the sidewalk by the City.