Routine Cleaning Is Not A Labor Law Protected Activity

Recently, the First Department acknowledged a significant shift in the Labor Law involving a determination as to precisely what persons are covered under the statute when the work involves the cleaning of a structure. In Soto v. J. Crew Inc., the First Department affirmed the dismissal of an action under Labor Law § 240(1), holding that an employee of a general daily maintenance services provider (read: commercial janitor) was engaged in routine maintenance, which does not constitute a Labor Law protected activity, when he fell from a ladder while dusting a shelf. Relying on the Court of Appeal’s recent decision in Dahar v. Holland Ladder & Mfg. Co. (18 N.Y.3d 521 [2012]) (see our blog entry of February 21, 2012), the Appellate Division also stated that “cleaning” should not be as broadly interpreted as plaintiff had argued.

Justice Catterson issued a concurrence in which he stated that he was “constrained” to dismiss the action under Dahar, but opined that the Dahar decision cannot be reconciled with and appears to be “a significant sea change in section 240(1) jurisprudence that overrules [implicitly] the analysis of Broggy v. Rockefeller Group, Inc. (8 N.Y.3d 675 [2007]).” Justice Catterson further argued that the Dahar Court departed from the “dispositive” inquiry under Runner v. New York Stock Exchange, Inc. (13 N.Y.3d 599 [2009]), i.e. whether the activity at issue was covered under the statute and whether the harm caused to the plaintiff flowed directly from the application of the force of gravity. In closing, Justice Catterson argued that Dahar had instead changed the focus of the analysis to one “based solely on the locus of the activity and the nature of the object being cleaned.”

DISCLOSURE: Anthony DeStefano, Esq., a partner at Mauro Lilling Naparty LLP and regular contributor to this blog, represented the Defendant-Respondent in the above matter.



First Department Finds Labor Law Section 240(1) Violated In Fall From Permanently Affixed Ladder

In Stallone v. Plaza Constr. Corp., the First Department ruled that the plaintiff should have summary judgment on liability under Labor Law 240(1) where he fell 13 feet from a 14-foot fixed ladder.  Plaintiff alleged that he fell when his foot slipped on one of the ladder’s metal rungs.  The Court concluded that defendants failed to take "statutorily mandated safety measures" because the ladder by itself was an insufficient device to protect the descending plaintiff from the application of the force of gravity.  The decision is silent as to whether plaintiff's fall may have been caused by narrow rungs, a wobbly ladder, slippery surfaces or anything that might make the ladder itself unsuitable for descending, as in the cases cited by the Court in its decision (Crimi v Neves Assocs., 306 AD2d 152 [2003] [very narrow rungs]; Priestly v Montefiore Medical Ctr./Einstein Med. Ctr., 10 AD3d 493 [2004] [wobbly ladder]).

First Department Calls For Court Of Appeals Review Of Comparative Negligence Issue

In Maniscalco v. New York City Transit Authority, the First Department revisited an issue we reported on in January, adding an express call “for resolution by the Court of Appeals.”  Earlier this year in Calcano v. Rodriguez (91 A.D.3d 468 [2012]), the First Department joined the Second Department in holding that plaintiffs are not entitled to summary judgment on liability when issues of fact exist as to their own negligence. In doing so, the panel expressly disapproved of a 2010 First Department decision in Tselebis v. Ryder Truck Rental, Inc. (72 A.D.3d 198 [2010]).  Now, in Maniscalco, the Court has confirmed its Calcano decision and again rejected Tselebis.  In dissent, Judge Degrasse argued that the Court should not have felt constrained by the Court of Appeals' decision in Thoma v. Ronai (82 N.Y.2d 736 [1993]) because this case raises an argument that was not addressed in Thoma, namely the effect of CPLR 1411.  

Court Holds That Questions During Deposition Were Sufficient To Give Notice Of Theory Of Liability

In Valenti v. Camins, the First Department held that a defendant on summary judgment must oppose even a vague, undefined theory of liability in a bill of particulars so long as the theory was clarified or amplified by plaintiff’s deposition questions.  In this medical malpractice action arising out of the plaintiff’s spinal surgery, the bill of particulars alleged only “improper placement of orthopedic hardware.”  In response to defendants' motion for summary judgment, the plaintiff attached an affirmation alleging that defendants improperly placed a screw at C7 and not C6.  On reply, defendants submitted an affidavit from a radiologist opposing that view.

The First Department held that the trial court should not have considered the radiologist's affirmation on reply because the defendants had notice of the argument and should have attached it earlier to meet its prima facie burden.  In holding that the parties were on notice of the plaintiff’s claim, the majority relied on various depositions where plaintiff’s attorney asked questions about documents that suggested a spinal screw might have been placed at C7 and not C6.  The dissent argued that the defendants could have believed that the claim was a non-issue because when the questions were posed, the witnesses testified that it was simply a scrivener's mistake and that the records should say C6.

Court of Appeals Hears Argument on Additional Insured Claims Regarding the E51st Street Crane Collapse

On April 25, 2012, the Court of Appeals heard Oral Argument in Admiral Insurance Company v. Joy Contractors, Inc., regarding a claim for additional insured coverage by New York Crane & Equipment Company pursuant to its lease agreement with Joy Contractors.  Joy Contractors operated the crane during the construction of a high-rise condominium at 303 East 51st Street in Manhattan.  The crane collapsed, killing seven people including six employees of Joy Contractors.  Joy was insured by Lincoln General Insurance Company for primary general liability and Admiral Insurance Company as excess to the Lincoln General policy.  The Lincoln General policy contained a standard, ISO form additional insured endorsement that covered additional insureds as required by contract with Joy, provided that Joy was performing work "for" or "on behalf of" the proposed additional insured, such as New York Crane.  The Appellate Division held that Joy was not performing any work for New York Crane, and therefore there was no additional insured coverage available under the Lincoln General and Admiral policies.

In addition, the Court of Appeals will also be reviewing the Appellate Division's holding that the Admiral policy issed to Joy Contracting would not be rendered void ab initio as to Joy's additional insureds, the owners and developers of the project as well as their construction manager, on the basis of Joy's misrepresentations during the application process regarding the nature of its work.      

Second Department Excuses Failure to Submit Signed Deposition Transcripts in Support of Summary Judgment Motion

In Schwelnus v. Urological Assocs. of L.I., P.C., the Supreme Court denied the defendants’ motion for summary judgment because the deposition transcripts they submitted in support of the motion were unsigned.  The defendants then moved to renew and submitted, among other things, properly executed transcripts and alleged that the failure to submit the transcripts in admissible form was a result of law office failure.  The Supreme Court denied the defendants’ motion, but the Second Department reversed.

In reversing, the Second Department held that “CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form.” Because the defendants corrected the inadequacy and provided a reasonable justification for that failure, the Court held that it was an improvident exercise of discretion to deny the defendants’ motion to renew. 

On renewal the Court then granted the defendants' motion for summary judgment holding that the continuous treatment doctrine only applies where there is a continuing course of treatment.  In the absence of some type of treatment, continuing efforts to arrive at a diagnosis or the failure to make a proper diagnosis alone does not constitute continuing treatment.

Res Judicata Issue in Med Mal Case Divides Fourth Department Panel

In James v. Wormuth, the defendant doctor lost a four-centimeter wire inside the plaintiff's thorax during surgery to remove a node from the plaintiff’s lung. After an unsuccessful twenty minute search for the wire, the defendant decided to leave it in after considering the amount of time the plaintiff had been under anesthesia, the potential harm of leaving the wire in and the potential harm from further incisions. Although the majority noted that the res ipsa doctrine is generally applicable where a foreign body is unintentionally left inside a patient, here, the plaintiff failed to establish that the wire fragment was unintentionally left inside her. Instead, according to the Court, the evidence established that the defendant intentionally left the wire inside based on a judgment that there was a lower risk of harm to the plaintiff by taking that course of action than by making a larger incision to remove the wire. The majority also held that the plaintiff had disavowed recovery on the theory that the loss of the wire itself was negligent.

The dissent disagreed, arguing that res ipsa should apply because the loss of the wire was unintentional and the result of the operation was unplanned and inadvertent. According to the dissent, "[e]ven though a medical decision was made to abandon the lost implement and close the incision before it was recovered, the loss of that foreign body at the surgical site speaks for itself and satisfies the element of res ipsa loquitur at issue in this appeal." The dissent also disagreed with the majority's conclusion that the plaintiff disavowed the theory that the loss of the wire itself was negligent. The dissent argued that in opposition to the defendant's motion the plaintiff sufficiently raised the theory by arguing that res ipsa should apply because a foreign body should not have been left inside her.