Cautionary Note Against Filling Holes In The Plaintiff's Case

In Bolton v. Ejioleh Express, the jury returned a verdict in favor of the plaintiff.  On post-trial motion, the trial court set aside the verdict finding that it was not supported by legally sufficient evidence.  The Second Department, however, reversed reinstating the verdict. 

The Court held, "Any defect in the plaintiff's case was cured by the evidence presented on the defendants' direct case. Contrary to the defendants' contention, in determining whether the plaintiff's initial burden has been established, the Supreme Court is obliged to consider all of the evidence, including the proof adduced by the defendants which cures any defects in the plaintiff's case."

Useful Practice Tips : Helpful Summary Judgment Reminders

In Martinez v. Hunts Point Coop. Mkt., Inc., the First Department offers the following, helpful summary judgment reminders: (1) when moving for summary judgment the defendant is not required to prove a negative issue as to which he does not bear the burden of proof - for example, a defendant is not required to prove lack of notice where the plaintiff has not pointed to any evidence of notice; (2) hearsay cannot be the sole basis for denying summary judgment (citing DiGiantomasso v. City of New York, 55 AD3d 502, 503 [2008]); and (3) with respect to constructive notice, the mere observation of a condition is not enough, as the particular defect must have been visible and apparent (citing Hayes v. Riverbend Hous. Co., Inc., 40 AD3d 500 [2007]).

Recommendation To DOT Is Not Sufficient To Impose Liability For Injury

In Davies v. Peter Ferentini, plaintiff was injured when his car struck a guard rail that had been opened to allow an access road for the construction of a Home Depot store. Upon opening the guard rail, Type II End Assemblies were installed. The plaintiff argued that his car would not have flipped over and landed on its roof if Type I End Assemblies had been installed. Plaintiff had alleged that the Home Depot and its engineer had recommended the installation of the allegedly defective Type II End Assemblies, but the DOT had the final say as to installation. As to Home Depot, the Court found that its engineer, not Home Depot itself, had made the recommendation. As to the engineer, the Court held that "applying the Espinal factors, the actions of [engineer], in providing construction drawings calling for the installation of the Type II End Assemblies pursuant to the DOT's directives, review, inspection and approval, do not rise to the requisite standard of creating a dangerous condition so as to be deemed to have launched a force or instrument of harm (see Church v. Callanan Indus., 99 NY2d 104 [2002])."

Sanction For Destruction of Electronic Evidence

In 3824N & Jacob Ahroner v. Israel Discount Bank of New York, the defendant was ordered by the trial court to preserve defendant Bastante's hard drive. One day before plaintiff's forensic expert was supposed to review the hard drive, plaintiff was informed that the drive had been erased. As a spoliation sanction against defendant the trial court granted plaintiff: (i) an adverse inference charge at trial; (ii) costs to reimburse plaintiff for the amount paid to the forensic expert; and (iii) attorneys' fees. On appeal, the First Department affirmed. To establish that a spoliation sanction for the destruction of electronic evidence is warranted, it must be shown that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with "a culpable state of mind," and (3) the destroyed evidence was "relevant" to the moving party's claim or defense. "A 'culpable state of mind,' for purposes of a spoliation inference, includes ordinary negligence" (citing Zubulake v. UBS Warburg, LLC, 220 FRD 212, 220 [SDNY 2003]).

Clarification of Procedural Issues Regarding Reargument Motions

In Rostant v. Swersky, the First Department held that the plaintiff was not precluded from moving for reargument simply because the order deciding the motion she sought to reargue had not yet been entered. The First Department found that the trial court retained its power to reconsider and vacate its prior decision before issuing the order. The First Department also held that CPLR 2221 does not require that the original motion papers be submitted on reargument, and that whether such papers must be submitted is left to the sound discretion of the trial court. NOTE: Check your local rules when making a motion to reargue as it is this writer's experience that some Judges require the original motion papers to be submitted with the reargument motion.

Court Of Appeals Renders Significant Decision On Conditional Orders Of Preclusion

In Gibbs v. St. Barnabas, after repeated failures to comply with discovery requests and deadlines, the plaintiff failed to satisfy a court order directing him to supply a supplemental bill of particulars within 30 days.  The court then afforded plaintiff a final opportunity to comply by conditionally granting the defendant's motion to preclude, giving plaintiff 45 days to serve the supplemental bill.  The plaintiff failed to comply leading the defendant to move to enforce the conditional order of preclusion. The court did not order preclusion, but directed the plaintiff to pay $500 for his delay.  

The Appellate Division, with one Justice dissenting, affirmed. The majority concluded that the trial court did not abuse its discretion in declining to enforce the conditional preclusion order. The dissenter would have enforced the order and granted the defendant summary judgment, reasoning that the trial court erred in relieving plaintiff of his default without requiring him to demonstrate a reasonable excuse and a meritorious claim.  

The Court of Appeals reversed holding that to obtain relief from a conditional order of preclusion, "the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense.  In cases involving a medical malpractice cause of action, 'expert medical opinion evidence is required to demonstrate merit' under the second requirement" (citations omitted).  In the Gibbs case, however, the plaintiff failed to provide an affidavit from a medical expert establishing the merits of his claim, requiring enforcement of the preclusion order.    

The Court of Appeals also held that a defendant does not have to prove that the failure to provide discovery was willful.  Where the Court enters a conditional order of preclusion, "'the court relieves itself of the unrewarding inquiry into whether a party's resistance was wilful'" (Siegel, NY Prac § 367, at 608 [4th ed]).

Recent Pain and Suffering Award for Unnecessary Mastectomy

In Williams v. New York City Health and Hospitals, citing Motichka v. Cody (279 AD2d 310) and King v. Jordan (265 AD2d 619), the First Department affirmed past and future pain and suffering awards of $600,000 and $400,000, respectively, as reduced by the trial court from $3.5 million and $3 million, respectively, to plaintiff who underwent an unnecessary mastectomy. In dissent, Justice Catterson observed that the 32-year-old single plaintiff suffered profound emotional and psychological damage from the loss of her healthy breast and the severe disfigurement of her upper and lower torso. Therefore, the awards, as reduced, were too low and should have been reduced to $1 million and $1.5 million respectively.

The dissenting opinion is particularly worthy of reading, as Justice Catterson provides a lengthy analysis of the cases relied upon by the majority. Justice Catterson further explains that the loss of a breast in a young, single woman cannot be compared to the older, married plaintiffs in those cases; hence, the Judge's opinion that the larger award should be for future pain and suffering. Finally, Justice Catterson observed that Motichka/King and the present case can also be distinguished on the basis that the plaintiffs in those cases had argued that their breast cancer required less invasive treatment, whereas the plaintiff in the present case was cancer-free and required no further treatment.

Two Cases Involving Falls From Permanent Staircases and Labor Law 240 Liability

In Ramirez v. Shoats, the plaintiff fell from an unfinished, permanent staircase. On motion by defendant building owner for summary judgment, the trial court found that questions of fact existed as to whether the staircase was the sole means of access for plaintiff to descend from his worksite, and thus a safety device within the meaning of the Labor Law. On appeal, the majority of the Panel agreed. In a two-Judge dissent, however, it was observed that alternative means of access were located at every floor of the worksite. As such, plaintiff used the stairway not as a safety device, but merely as a passageway. The dissent observed that, in such instance, all four Appellate Departments have consistently held that a permanent staircase is not a safety device within the meaning of the statute.

In Vasquez v. Urbahn Assoc. Inc., the plaintiff similarly fell from a permanent staircase. In Vasquez, however, the building was being demolished at the time of the accident. The majority of the Panel reversed summary judgment in favor of plaintiff on his Labor Law 240 claim, finding that whether the collapse of the stairs was foreseeable was a question of fact for the jury to determine. The two-Judge dissent refused to require the "foreseeability" element, with Judge Acosta, who had concurred in the Court's earlier opinion in Jones v. 414 Equities LLC (57 AD3d 65 [1st Dept. 2008]), now stating "I... believe that a better approach would be to not read into the statute a forseeability requirement, lest we encourage contractors, as here, to take a head-in-the-sand approach to their statutory obligations."

Notably, finality does not exist in either case. As such, appeal to the Court of Appeals at this time can only be had by permission. Of course, we will keep everyone posted as to whether leave is granted in either case.

Injury To Dominant Hand And Wrist

In Nutley v. New York City Transit Authority, the plaintiff suffered an injury to his dominant hand and wrist which required surgery. Despite the surgery, the plaintiff continued to experience pain, numbness, tingling, loss of strength, and loss of motion in his wrist and hand. The Second Department affirmed the jury's award of $300,000 for past pain and suffering and $200,000 for future pain and suffering. 

New Second Circuit Filing Rules

Effective December 15, 2010, the Second Circuit has shortened the time for briefing.  Appellant's can now request up to 91 days from the ready date to file their Brief and respondents (or appellees)  will have up to 91 days to file their brief.  The Notice is here.   

The Court has also created an expedited briefing schedule for appeals from district court orders that dismiss a complaint for (a) lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1); (b) failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6); or (c) filing a frivolous complaint, or for any other ground specified in 28 U.S.C. §1915(e)(2).

"If the order appealed from cites at least one of these grounds for dismissal, the parties must so identify the case by checking the appropriate box on revised Form C. The Clerk notifies the parties when an appeal is placed on the [Expedited Appeals Calendar] and sets the briefing schedule for all parties as follows: 35 days from the date of the Clerk’s notification for the appellant’s brief, 35 days from the date after the filing of the last appellant’s brief for the appellee, and 14 days from the filing of the last appellee’s brief for the reply."  The Notice is here. 

"Injury In Fact" Test Applied to Mold Exposure

In Downey v. 10 Realty Co., LLC, the plaintiff was exposed to mold during a period of time that defendant's, Greater New York Mutual's, policy was in effect. Plaintiff's injuries, however, did not manifest until after the policy had expired. In holding that GNYM had no duty to defend or indemnify its insured for plaintiff's injuries, the Court applied the "injury in fact" test and held that the insured was obligated to prove that "actual damage or injury" had occurred during the policy period.

Authorizing A Method Of Work Does Not Constitute Control Over The Work

In Delaney v. City of New York, plaintiff was working on a bridge owned by the City. He was struck by a pick-up truck operated by a co-employee when he entered a lane of travel on the roadway that had been closed to allow the work to be performed. The Court held that the accident arose out of his employer's means and methods, and that, simply because the City authorized lane closeures it could not be found to have exercised supervision and control over plaintiff's work within the meaning of Labor Law sect. 200. The Court also held that sect. 200 liability cannot be based upon alleged OSHA violations, as the City was not plaintiff's employer and OSHA applies only to employee/employer relationships.

Default For Attorney's Failure to Appear At PC Vacated

In Goodwin v. New York City Housing Authority, the plaintiffs' action was dismissed for their attorney's failure to appear at a preliminary conference. The First Department vacated the default, finding that the showing of merit necessary to vacate a default under 22 NYCRR 202.27 for failure to appear at a court conference "is less than what is necessary for opposing a motion for summary judgment." Therefore, given the availablity of pictures of the accident location, coupled with plaintiff's inability to remember the accident because of the injuries he sustained, plaintiffs' action should not have been dismisssed.

The Court further found that law office failure was a reasonable excuse for the default.

Lastly, the Court felt compelled to comment, somewhat scathingly: "This court is all too familiar with this case, having reversed Supreme Court's wrongful dismissal of the complaint once before... The lawsuit stemming from this eight-year-old accident accident has now survived two mistaken dismissals. No discovery has taken place. It is time for discovery to commence and finish expeditiously so that plaintiffs' claims may be addressed on their merits."

Obligation to Continue Defending Client Ceases When Insurer's Duty to Pay Defense Costs Has Ended

In Ruiz v. Frog Co., LLC, the First Department held that defense counsel cannot be compelled to continue defending its client when the client's insurer is no longer obligated to pay counsel's fees; "[counsel] should not be compelled to continue representation without compensation."

Recent Labor Law Decisions By The Court Of Appeals

On October 21st, we posted about the Court of Appeals decision in Gasques v. City of New York, a Labor Law case.  In Gasques, the plaintiff’s hand was crushed when it became wedged between part of an ascending “spider scaffold” and a leg of the Kosciuszko Bridge. The Court of Appeals held that the plaintiff could not recover under § 240(1) for injuries from the ascending scaffold pinning and crushing his hand because “the injury was not the direct consequence of the application of the force of gravity to an object or person.”

The Court, however, would subsequently find in Strangio v. Sevenson Envtl. Servs., Inc., that a question of fact existed as to whether defendants provided proper protection under Labor Law § 240(1) in a case involving the “unchecked descent” of a scaffold. Although the plaintiff was not injured by falling from the scaffold or by the fall of the scaffold itself, he was struck in the face with the handle of the scaffold’s hand-operated hoisting mechanism. Arguably, the fall of the malfunctioning scaffold caused or contributed to plaintiff’s injury and thus was directly related to the application of the force of gravity to the scaffold.

A distinction to be made between the two cases is that the scaffold in Strangio did not function as intended, causing an “unchecked descent.” By contrast, the scaffold in Gasques functioned as intended and the effects of gravity were not implicated. 

Notably, in Gasques the plaintiff had also asserted a Labor Law § 241(6) claim based on a violation of 12 NYCRR 23-1.5 (c)(1), which requires that equipment be in “good repair and in safe working condition.” According to the Court, this rule cannot serve as a predicate because it does not constitute a “specific, positive command” or said differently, the plaintiff’s proposed predicate rule did not “set forth a specific standard of conduct.”

The Court of Appeals then subsequently held in Nostrom v. A.W. Chesterton Co., that claims of vicarious liability under Labor Law § 241(6) may not be predicated on any of the regulations contained in part 12 of the Industrial Code, unless they are expressly incorporated into part 23 of the Industrial Code.

Court of Appeals Issues New Filing Rules

The Court of Appeals has reduced the number of paper copies of records, appendices and briefs for normal coursed appeals and certified question reviews from 25 to 20 copies.  All parties will also be required to file on disk digital versions of each paper filing. Appeals to be considered under section 500.11 of the Rules will be subject to a similar digital filing requirement. The new requirements regarding submission in digital format will apply to all appeals for which the preliminary appeal statement is filed on or after December 8th.  Here is a link to the Amended Rules.

Court Of Appeals Leaves Some Uncertainty With Informed Consent Decision

In Orphan v. Pilnik, the plaintiff brought a lack of informed consent claim alleging that she was not informed that a procedure to remove a suspicious mass from her breast would have left a 6.5 cm scar.  A three-two decision in the First Department presented two issues to the Court of Appeals: (1) whether the plaintiff is required to present expert testimony on the issue of whether a reasonable person in the plaintiff’s position, fully informed, would have elected not to undergo the procedure or treatment; and (2) whether a plaintiff’s subjective statement that she would have sought a second opinion was sufficient to raise an issue of fact for the jury to assess whether a reasonable person, fully informed, would have gone through with the procedure.  Ultimately the Court of Appeals did not directly address either issue. 

To establish a claim for lack of informed consent, a plaintiff must demonstrate that (1) the defendant failed to disclose the risks, benefits and alternatives that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff's position, fully informed, would have elected not to undergo the treatment. The Court seemingly addressing the first question presented stated "Expert testimony is required to prove the insufficiency of the information disclosed to the plaintiff" and made no reference to whether expert testimony is required as to the second element of an informed consent claim.  On that claim the Court held that “the evidence offered by the plaintiff did not establish that a fully informed reasonable person would have declined the procedure.  Indeed, plaintiff herself alleged only that, if fully informed, she would have sought second opinion.”  Taking the decision as a whole, therefore, it appears the Court of Appeals indirectly held that expert testimony was not required, but that the plaintiff must definitively testify that he/she would not have undergone the procedure if fully informed of the risks in order to survive a motion for summary judgment.     

Second Department Denies Summary Judgment On Principle Of Ostensible Or Apparent Agency

In Alvarado v. Beth Israel Medical Center, the plaintiff underwent a procedure to remove gallstones at Beth Israel Medical Center on September 14, 1999.  Dr. Lo, an employee of hospital, performed the procedure.  On September 17, 1999, the plaintiff underwent a second procedure at the hospital which was performed by Dr. Seth Cohen, an independent contractor who had been dismissed from the action on statute of limitations grounds. A third procedure was performed by Dr. Lo on the same day, following the procedure performed by Dr. Cohen.

The plaintiff and her husband commenced this action against, among others, Dr. Lo and the hospital, alleging, among other things, that the defendants had committed malpractice by perforating the plaintiff's intestine during the September 14, 1999, procedure, and failing to timely diagnose and treat this perforation. In November 2008 the defendants moved for summary judgment dismissing the complaint, presenting evidence that the perforation of the plaintiff's intestine did not occur during the September 14, 1999, procedure, but occurred during the September 17, 1999, procedure performed by Dr. Cohen. The plaintiffs cross-moved for leave to amend their bill of particulars to add new theories of malpractice, including an allegation that the defendants committed malpractice by failing to remove the entire gallbladder on September 14, 1999, which created an increased risk of a bile duct leak, creating the necessity for the first September 17, 1999, surgery, and an allegation that Dr. Lo performed an unnecessary and/or improper subsequent surgery on September 17, 1999.  

The trial court denied the hospital's motion and granted the plaintiffs' cross-motion.  The Second Department affirmed.  The Court held that leave to amend should be freely given and the plaintiffs presented a question of fact as to whether Dr. Lo caused plaintiff's injuries.  The Court also held that even though Dr. Cohen was an independent contractor for whom hospital's generally are not liable, the plaintiff had raised a question of fact as to whether the hospital could be vicariously liable under a theory of ostensible or apparent agency.    

As the Second Department explained in Sampson v. Contillo, "'[i]n order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill.' Thus, '[t]here are two elements to such a claim of apparent or ostensible agency.'  'To establish the 'holding out' element, the misleading words or conduct must be attributable to the principal.' 'To establish the 'reliance' element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal' 'In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf.' 'In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all 'attendant circumstances . . . to determine whether the patient could properly have believed that the physician was provided by the hospital' " (internal citations omitted).

Second Department Reaffirms Limit On Wrongful LIfe Claims

In Kubik v. Erhart, the plaintiffs alleged that the defendants committed medical malpractice in failing to properly diagnose their child's condition in utero resulting in their failure to terminate the pregnancy.  The Second Department reaffirmed their prior holding in Mickens v. LaSala, that damages are limited for wrongful life claims to the parents' personal pecuniary loss and that expenses covered by other sources, such as private insurance or public programs, are not recoverable.  The plaintiffs, however, raised a triable issue of fact as to whether the child's extraordinary special needs caused them to incur extraordinary expenses, such as increased utility bills, and the cost of special equipment, which were not reimbursed by other sources.  

Second Department Reduces Pain And Suffering Award In Wrongful Death Case

In Dowd v. New York City Transit Authority, the defendant's bus struck the plaintiff's decedent, who was on the sidewalk.  The rear wheels of the bus ran over the decedent, and the bus then moved forward and ran over the decedent a second time.  The decedent was still conscious and complaining of pain when paramedics arrived on the scene and transported her to the hospital.  Eighteen minutes after the accident, the decedent went into cardiac arrest. She was revived and her vital signs returned; but she subsequently went into cardiac arrest a second time, and was pronounced dead an hour and a half after the accident.  The Appellate Division reduced the jury's $1.75 million pain and suffering award to $1.2 million.  

Recent Pain and Suffering Award for PTSD and Hand Injury

In Figueroa v. City of New York, the then 13 year-old plaintiff was arrested by police during an investigatory stop. The arresting officer pointed his gun at the plaintiff, smacked him, hit him with the gun and stomped on him. The plaintiff alleged PTSD with nightmares, flashbacks, anxiety, fear of police and anger. The plaintiff also alleged a right hand injury with diminished ability to use the hand. The jury awarded plaintiff $2,500,000 for 14 years of past pain and suffering. The First Department reduced the award to $1,250,000.

Ministerial Task of Obtaining Consent does not Transfer Duty to Hospital

In Sela v. Katz, the plaintiff underwent arthroscopic surgery on her knee at a Good Samaritan Hospital facility.  The surgery was performed by the plaintiff's private physician, Dr. Katz.  The plaintiff brought a medical malpractice action against Dr. Katz and Good Samaritan Hospital claiming that he developed RSD as a result of excessive pressure applied during the surgery.  The Supreme Court granted Good Samaritan's motion for summary judgment and the Second Department affirmed.  The Court held that a hospital employee's ministerial task of obtaining consent does not transfer the physician's duty to obtain a patient's informed consent to the Hospital.  Furthermore, Good Samaritan was shielded from liability because it did not employ Dr. Katz; Dr. Katz's orders were not clearly contraindicated; and the Hospital's staff did not depart from good and accepted standards of practice.     

Second Department Dismisses Negligent Spoliation Cause of Action

In Hillman v. Sinha, the plaintiff's wife advised the defendant in 2007 that she was unhappy with her husband's care and that her husband would no longer be a patient.  The plaintiff's medical records were subsequently destroyed when the defendant converted the original medical records to electronic format.  In 2008, the plaintiff commenced a medical malpractice action against the defendant and also asserted a separate cause of action for negligent spoliation of evidence.  The defendant then moved to dismiss the cause of action for negligent spoliation. The Supreme Court denied the motion, but the Appellate Division reversed.  The Court, extending the Court of Appeals' holding in Oretga v. City of New York (9 N.Y.3d 69, 73), found that permitting such an action would require resort to "hypothetical theories or speculative assumptions about the nature of the harm incurred or the extent of plaintiff's damages."  The court, also relying on Ortega, held that existing remedies were sufficient to deter such conduct.      

Recent "Pain and Suffering" Awards

In Colon v. New York Eye Surgery Associates, P.C., the plaintiff was injured in a trip and fall over a "grassy verge" that constituted a dangerous condition. Plaintiff's expert testified that plaintiff had "some components" of Reflex Sympathetic Dystrophy that "more likely than not" were causally related to the accident. The First Department affirmed the trial judge's decision to allow this seemingly speculative testimony and further affirmed awards of $300,000 for past pain and suffering and $650,000 for future pain and suffering as reduced by the trial judge from $750,000 and $1,500,000, respectively.

In Diouf v. NYCTA, the 55-year-old plaintiff fell on subway stairs and fractured both wrists. The left wrist fracture was a comminuted intra-articular fracture of the distal radius and ulnar styloid, which required two surgical procedures -- (1) internal reduction and (2) removal of the metal hardware. The plaintiff was left with decreased ranges of motion, tenderness and reduced grip strength, as well as traumatic arthritis. The jury's award of $800,000 for future pain and suffering was affirmed on appeal.

Two "Easy" Labor Law Cases

Lightning struck twice recently in the First Department when the Court was given two relatively easy Labor Law questions to decide.

In Solano v. City of New York, the Court held that a plywood plank that was deliberately dropped from a window does not constitute a "falling object" within the meaning of Labor Law 240(1).

In Rajkumar v. Budd Contracting Corporation, the Court held that plaintiff's interior decorating work was not construction, demolition or excavation work within the meaning of Labor Law 241(6). Although this issue was raised for the first time on appeal, the Court exercised its discretion to reach the unpreserved issue as it could have been decided as a matter of law below.

Conditional, Partial Contractual Indemnification

In Hughey v. RHM-88, LLC, the landowner, One United Nations Plaza Condominium (UNPC) and managing agent, Cushman & Wakefield (CW) were both granted conditional orders of partial contractual indemnification. Despite the fact that questions existed as to whether UNPC had constructive notice of the alleged condition which caused the plaintiff's injuries, UNPC was awarded indemnity from CW to the extent that UNPC was not itself negligent and for amounts not otherwise covered by insurance. Both UNPC and CW were awarded indemnity from the cleaning contractor, Pritchard despite the fact that UNPC and/or CW could be found negligent. Since the Pritchard cleaning agreement contained the requisite savings language, "to the fullest extent permitted by law," the Court held that UNPC and/or CW could be indemnified from Pritchard "to the extent they are not responsible for the injured plaintiff's accident."

A Construction Claim Trifecta - Issues of Labor Law 240(1), Grave Injury and Contractual Indemnity

In Miranda v. Norstar Building Corp., the Third Department was confronted with a case involving a trifecta of typical issues involved in construction site accident litigation -- Labor Law 240(1), "grave injury" and contractual indemnification.

The plaintiff in Miranda was catastrophically injured in a 30-foot fall from a rooftop. The plaintiff was not provided with traditional safety devices, in that there were no harnesses, lanyards, tie-offs, etc. Plaintiff was provided, however, with a "safety monitor" -- a co-worker whose job it was to watch the employees as they performed their work and warn them when they were too close to the edge of the roof. In holding that a "safety monitor" is not a "safety device" within the meaning of Labor Law 240(1), the Third Department found that the statutory enumerated devices, such as a scaffold, provide "physical support" to protect workers from elevation related risks. By contrast, the "safety monitor" provided no such physical support. Therefore, the Court deemed it consistent with the legislative intent of 240(1) to hold that plaintiff was not provided with a safety device within the meaning of the Labor Law.

Notably, the Court rejected the defendants' argument that, because a "safety monitor" was acceptable under OSHA guidelines and the only appropriate fall protection under the circumstances, they had not violated Labor Law 240(1). In essence, the Court held that the OSHA guidelines in this respect were inconsistent with the Labor Law. Interestingly, however, the Court could have opted to find that a "safety monitor" was a sufficient "device" within the meaning of the Labor Law, but still found that the defendants had violated the Labor Law because the monitor in the present case failed to meet the OSHA requirements. OSHA required that the monitor "shall not have other responsibilities which could take the monitor's attention from the monitoring function." Here, the monitor testified that he thought that he could perform additional tasks while performing the monitoring function and he was cleaning a seam on the roof when the accident occurred. The fact that the Court took the "extra step," so to speak, gives the impression that this issue was ripe for decision. Which, of course, leads me to wonder whether the Court of Appeals will be getting this issue sometime soon?

The "grave inujry" aspect of this case pertained to whether plaintiff was "employable" despite his traumatic brain injury. Given conflicting expert affidavits on this issue, the Court found that a question of fact existed to deny summary judgment. The Court also found that the guardianship Order in place, plaintiff's eligibility for Social Security and the fact that he was deemed permanently and totally disabled by the Workers' Compensation Board was not determinative of this issue, holding that such determinations are not dispositive (see Way v. Grantling, 289 AD2d 790 [3rd Dept. 2001]).

On the contractual indemnity issue, the Court found that the parties' agreement was not violative of the General Obligations Law in that the proposed indemnitee, NBC, was not seeking to be indemnified for its own negligence. Citing to Brooks v. Judlau (11 NY3d 204 [2008]), the Court specifically noted that the provision at issue was a "partial indemnification agreement." The Court went on to find, however, that a question of fact existed as to whether NBC was negligent with respect to the happening of plaintiff's accident. As such, it was premature to hold that NBC was entitled to conditional contractual indemnification. I wonder if NBC had argued that it should be entitled to conditional, partial contractual indemnification?

Court Of Appeals Renders Decisions On Labor Law And Proving Lost Earnings With Reasonable Certainty

Gasques v. State of New York

In this Labor Law action, the Court of Appeals affirmed the dismissal of claims brought under §§ 240(1) & 241(6).  The plaintiff’s hand was crushed when it became wedged between part of an ascending “spider scaffold” and a leg of the Kosciuszko Bridge. The Court of Appeals held that the plaintiff could not recover under § 240(1) for injuries from the ascending scaffold pinning and crushing his hand because “the injury was not the direct consequence of the application of the force of gravity to an object or person.” The Court also held that the plaintiff failed to assert a satisfactory predicate rule or regulation to a claim under 241(6). The plaintiff had asserted a violation of 12 NYCRR 23-1.5 (c)(1), which requires that equipment be in “good repair and in safe working condition.”   According to the Court, this rule cannot serve as a predicate because it does not constitute a “specific, positive command” or said differently, the plaintiff’s proposed predicate rule did not “set forth a specific standard of conduct.”

Shubbuck v. Conners

This car accident case concerns the sufficiency of proof of loss of future wages.  The plaintiff attempted to support his claim for a reduction in wages due to his injury by introducing W-2 forms and tax returns.  The Appellate Division held 3-2 that plaintiff’s own testimony was “legally sufficient to support a claim” for loss of future wages.  The Court of Appeals reversed holding that "W-2 forms and tax returns that plaintiff introduced demonstrated his yearly income post accident but they were not probative of a reduction in future wages as a result of the accident because they did not compare his pre and post accident income nor compare his post accident income with the income of similarly situated employees in plaintiff's company." According to dissenters at the Appellate Division, the plaintiff did give oral testimony concerning other employees and their rate of pay at the plaintiff’s company, but provided no documentation to support that claim.

Some Interesting Negligence Issues All Rolled Up Into One Case

The case of Petty v. Dumont, contains a discussion of a few uncommon issues involving negligence. (1) The First Department reiterated the well-established rule that an innocent passenger is entitled to summary judgment despite issues of comparative negligence between defendants. (2) A known roadway hazard is a concurrent cause of an accident that is not superseded by driver negligence (citing Humphrey v. State of New York, 60 NY2d 742 [1983]). (3) By making "special use" of the roadway after the City had erected barriers in front of its facility after 9-11, Con Edison could be held liable to the plaintiff. More specifically, because Con Ed (a) controlled the barriers, (b) made use of the lane created by the barriers as an entrace to its facility and (c) benefitted from the security that the barriers provided, the Court applied the "special use" exception to the general principle that an abutting landowner is not obligated to maintain a public roadway.

Separate Phases of Work, Distinct From Construction, Are Not Protected By The Labor Law

In Barnes v. City of New York, the First Department held that "plaintiff's work, which consisted of disconnecting power cables from the third rail to allow a signal construction project to proceed safely, was a separate phase of work, distinct from any construction and thus, not a covered activity under Labor Law 241(6)."

Beware The Dredded "Sports Liability Consultant"

In Lizardo v. Board of Education of the City of New York, the plaintiff was injured in a "rundown" during a kickball game. For those of you who are not familiar with the term, a "rundown" is when the runner is caught between two bases and either of the opposing team's players who are guarding those bases can tag the runner out. Not one to give up easily, apparently the student caught in the rundown decided to "take out" the player with the ball by crashing into him and knocking him down. Of course, the player with the ball was injured and sued the School.

In affirming summary judgment to the School, the First Department questioned whether plaintiff's "Sports Liability Consultant" could be treated as an objective expert. Irrespective of how the "expert" should be treated, however, the Court found that his opinion that the children should have been reminded of the rules of kickball, or that the children should have been more closely supervised were unacceptable. I'm sure the Court did not intend to be funny when it observed that "[u]nlike formal league play, elementary school gym classes need not comport exactly with the games' formal rules," or that the teacher had no reason "to think that the students needed to be reminded that the game of kickball, which they had been playing for years, does not include full contact or tackling." Nevertheless, one cannot help but chuckle at the thought of a kickball league containing such veteran elementary school players.

Reminder That A Party Cannot Contractually Exonerate Itself For Its Own Gross Negligence

In Abacus Federal Savings v. ADT Security Services, the First Department observed that provisions in contracts that exonerate a party from its own negligence are generally enforceable. At least one exception exists, however, in that, as a matter of public policy a party may not be exonerated from liability caused by its own grossly negligent conduct. Gross negligence in the sense of contractual limitation of liability must "smack of intentional wrongdoing." BUT, a waiver of subrogation provision does constitute a defense to all claims, including claims of gross negligence.

This Week At The Court Of Appeals

Busy week, and have not had the time to do a full write-up on the cases being argued this week at the Court of Appeals.  The full list is here.  We are particularly watching Orphan v. Pilnik, which is a medical malpractice case involving the level of proof needed to establish a claim for lack of informed consent. 

Also today's decisions from the Court of Appeals are here. 

This Week At The Court Of Appeals

Here is the complete list of the cases being argued in the Court of Appeals this week and a brief summary of the civil cases we are watching:

Tuesday, October 12, 2010

Kramer v. Phoneix Life Insurance Company: the Second Circuit certified the following question to the Court of Appeals: "Does New York Insurance Law Secs. 3205(b)(1) or (b)(2) prohibit an insured from procuring a policy on his own life and immediately transferring the policy to a person without an insurable interest in the insured's life, if the insured did not ever intend to provide insurance protection for a person with an insurable interest in the insured's life?"

Aquino v. Higgins: parents allowed their daughter to have a party at their house after a high school dance.  They later discovered that some of the kids brought in alcohol.  They put their son to bed and asked the other guests if they needed rides home, but they all declined.  The parents testified at depositions that none of the children appeared intoxicated.  They also testified that they were unaware their son later tried to drive Aquino and another guest home.  Their son lost control of the car crashing into a tree injuring Aquino.  At issue is whether the parents satisfied their duty to provide adequate supervision.  

Nostrom v. A.W. Chesterton Company: the plaintiff claimed that her husband was exposed to asbestos in airborne dust and his use of asbestos-containing products while working at power plants. The plaintiff claimed that the defendants were vicariously liable under Labor Law Sec. 241(6) based on the alleged violation of Industrial Code Secs. 12-1.4(b)(3) and (4) and Sec. 12-1.6(a), which relate to airborne contaminants.  The First Department declined to follow the Second and Fourth Departments, which permitted liability pursuant to Labor Law Sec. 241(6) under those Industrial Code regulations.  The First Department held that these regulations did not specifically relate to construction, demolition or excavation, were not sufficiently specific to support a Labor Law claim and asbestos fibers are not the type of airborne contaminants envisioned by the regulations.     

Wednesday, October 13, 2010

Giordano v. Market America, Inc.: this federal case claiming personal injuries and wrongful death from the dietary supplement ephedra, raises the following questions: 

"(1) Are the provisions of [section] 214-c(4) providing for an extension of the statute of limitations in certain circumstances limited to actions for injuries caused by the latent effects of exposure to a substance?

"(2) Can an injury that occurs within 24 to 48 hours of exposure to a substance be considered 'latent' for these purposes? 

"(3) What standards should be applied to determine whether a genuine issue of material fact exists for resolution by a trier of fact as to whether 'technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff's] injury' was 'discovered, identified or determined' for [section] 214-c(4) purposes?" 

Practice Reminders

1. Frenchman v. Westchester Medical Center provides an important practice reminder that the failure to raise an inconsistency prior to the jury being discharged renders the issue unpreserved for appellate review.  In Frenchman, the Second Department also affirmed awards of $1,000,000 for past pain and suffering, $150,000 for past loss of services, $450,000 for past wrongful death damages, and $110,000 for future wrongful death damages in a medical malpractice case.

2. McConnell v. Santana highlights the absolute necessity that a party move for a judgment as a matter of law at the close of evidence to preserve a challenge to the sufficiency of the evidence on appeal.  The Second Depatment held, "[t]he defendants failed to preserve for appellate review their argument that they are entitled to judgment as a matter of law on the issue of negligence on the ground that the plaintiff failed to establish proximate cause. By failing to move pursuant to CPLR 4401 for judgment as a matter of law on the issue of negligence at the close of the evidence, the defendants implicitly conceded that the issue was for the trier of fact. Accordingly, the matter must be remitted to the Supreme Court, Richmond County, for a new trial solely on the issues of whether the plaintiff's decedent was at fault in the happening of the accident and whether such fault was a proximate cause of the accident."

3.  In Santana v. Vargas, the Second Department held that marking a case as "settled" is not the equivalent of having the case "marked off" or stricken from the calendar.  CPLR 3404, therefore, did not apply where the plaintiff sought to restore the action.  

"Exterior And Structural Elements" Includes Parking Lot

In Eccleston Hall v. Plaza, the owner of the parking lot where the plaintiff was injured, Euclid, sought contractual indemnification against the City pursuant to its lease with the City.  "The subject lease provided that Euclid was responsible for "all repairs . . . to the exterior and structural elements of the Demised Premises, including any required maintenance, repairs and replacement to the windows, structural plumbing, sidewalks (repairs only), roof, electrical, elevator, heating, ventilation and air-conditioning systems if necessary." The Second Department held that this provision "clearly and unambiguously included the parking lot, thus placing the obligation to repair the parking lot on Euclid." The Second Department, therefore, held that the Supreme Court properly denied Euclid's indemnification claim.  

Snyder v. Phelps

For Constitutional Law buffs, on Wednesday, the United States Supreme Court heard arguments in the case of Snyder v. Phelps. This is the case where the father of a deceased solider sued members of the Westboro Baptist Church for the emotional harm they caused by protesting at his son's funeral.  It is hard to think of a case in recent history that more directly tests the limits of free speech and the extent to which emotion can drive judicial decision-making.  For those interested, SCOTUSblog has a recap of the argument as well as transcripts of the arguments.     

Additional Insured -- Builder's Risk

In St. Paul v. FD Sprinkler, Inc., St. Paul commenced a subrogation action to recover from subcontractors, FD Sprinkler and Woodworks Construction, monies that St. Paul had paid for property damage claimed under a Builder's Risk policy issued to its insured, Chelsea 27th Street Apartments. The damage was allegedly caused to its insured's building by the subcontractors. The subcontractors argued in defense to the action that they too were insured under the St. Paul policy, and therefore the antisubrogation doctrine barred the action. The First Department found that the subcontractors were only insured under the St. Paul policy "as their interests may appear." This, the Court also found, was limited to tools, labor or material owned or furnished by the subcontractors. Of the over $700,000 in claimed damages paid by St. Paul, only $52,323 were attributable to Woodworkers' materials. Therefore, the Court held that $52,323 was the only amount to which the antisubrogation doctrine applied.

First Department Reaffirms Prior Holding That E-mails May Satisfy the Statute of Frauds

In Naldi v. Grunberg, the First Department reaffirmed its prior holdings that an e-mail will satisfy the statute of frauds so long as its contents and subscription meet all of the requirements of the governing statute. At issue in Naldi was plaintiff's claim to an alleged right of first refusal for the purchase of real property that was memorialized in an e-mail only. Although the particular e-mail at issue did not meet the statute of frauds' requirements, the Court engaged in a lengthy analysis to explain that an e-mail may nevertheless be used to satisfy the statute, noting that "e-mail is no longer a novelty" and that it is "omnipresent in both business and personal affairs."

The Court began its analysis with a summary of the Electronic Signatures in Global and National Commerce Act (E-SIGN). Congress enacted E-SIGN to govern transactions affecting interstate or foreign commerce in which an electronic signature or contract was used. According to E-SIGN, such contracts could not be denied legal effect or validity solely on the basis that an electronic signature or record was used in its formation.

After E-SIGN was enacted, the New York Legislature amended the Electronic Signatures and Records Act (ESRA). As part of ESRA's "Legislative intent" it was noted that the bill was intended to "complement" E-SIGN and permit the use of electronic signatures and records in the context of commercial transactions. As such, the First Department found that the Legislature had incorporated the substantive terms of E-SIGN into New York state law.

The Court concluded, therefore, that "E-SIGN's requirement that an electronically memorialized and subscribed contract be given the same legal effect as a contract memorialized and subscribed on paper is part of New York law," and thus an e-mail may satisfy the statute of frauds.

Court Of Appeals Watch

Leave to appeal to the Court of Appeals has been granted in the following cases:

In Lifson v. City of Syracuse, the plaintiff's wife died as a result of injuries suffered when she was hit by a vehicle at 4:00 p.m. on a Tuesday evening in late February. The driver of the car was found not liable and the City of Syracuse was found 15% liable, with the remaining liability on the decedent. The basis of the decedent’s liability was failure to yield the right of way at an unmarked cross walk, and the Fourth Department concluded that evidence at trial supported a finding that the decedent was outside the unmarked walkway.  

With regard to the driver of the car, the Court held that sun glare does not provide a defense to negligence as a matter of law.  The Court, however, found that the the trial court properly gave an “emergency” instruction because the driver testified he was blinded by sun glare immediately before hitting the plaintiff.  One justice dissented, arguing that sun glare was not “unforeseen,” but should be “anticipated as a routine occurrence at certain times of the day and in particular weather conditions.”

As to the City, a prior appeal concluded that the City had an ongoing duty to review its traffic plan as a result of a letter the City received seven years before the accident. The letter requested a traffic signal based on the danger to pedestrians at the relevant intersection.  On this appeal, the Court held that the trial court properly admitted evidence of its traffic plan.  The Court also held that the verdict was not inconsistent in its finding of no liability as to the driver but 15% liability as to the City.  

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In Cragg v. Allstate Indemnity, a young girl drowned in a pool at her grandparents’ house where she had lived with her mother. Her father, who was not an insured and did not live at the house, brought a wrongful death suit as administrator and sole distributee of his daughter’s estate.  The primary issue in this declaratory judgment action was whether the grandparents’ insurance policy with Allstate excludes coverage of the plaintiff’s claim.

The Fourth Department held "[t]here is no coverage for the simple reason that a homeowners' insurance policy is essentially designed to indemnify the policy holders against liability for injuries sustained by noninsureds. Here, neither decedent nor her mother would be entitled to indemnification from Allstate for the injuries and death of decedent.  The Court further noted that to require Allstate Indemnity to pay "would result in the receipt by the mother, an insured of the benefits of the policy in the form of the satisfaction of the money judgment." 

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In Bordeleau v. State of New York, the plaintiffs challenged appropriations of state funds to an agency and two public benefit corporations where the funds were to be distributed to private entities to “foster[] economic development.” The complaint is based on the New York Constitution’s prohibition on “the giving or loaning of state money to any private entity” and State Finance Law. The Third Department reversed, permitting the plaintiffs to proceed on this cause of action against the defendants, IBM, Advanced Micro Devices Inc., the State of New York, and West Genesee Hotel Associates.

The plaintiff also challenged legislative appropriations that “will be spent according to some future agreement between the Governor, Speaker of the Assembly and Majority Leader of the Senate.” The plaintiffs complain that this violates the New York Constitution’s limitations that appropriations “shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied.” The Third Department looked to Saxton v. Carey, 44 N.Y.2d 545 (1978), which held that “the degree of itemization and the extent of transfer allowable are matters which are to be determined by the Governor and the Legislature, not by judicial fiat.” In following Saxton, the Court affirmed dismissal of plaintiffs’ claims because they are non-justiciable.

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At issue in Greenberg, Trager & Herbst, LLC v. HSBC Bank, is whether HSBC Bank is liable to the plaintiff law firm when a check the firm deposited was later revealed to be counterfeit. The trial court dismissed the matter and the First Department affirmed. The plaintiff claimed that as a result of HSBC's misrepresentation that the check cleared, it wired the money to an offshore account, causing it to suffer damages when it could not recover the money.  

Plaintiff alternatively argued that HSBC should be allocated the loss equitably as a matter of estoppel. The First Department disagreed, finding that the plaintiff was in the best position to avoid the loss and that it failed to do research into its client, its debtor, and the recipient of the wire transfer. 

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In Town of Hempstead v. East Coast Resource Group, the Town of Hempstead seeks damages for the alleged breach of an insurance procurement provision.  At issue is whether the underlying accident arose out of the activities contemplated by the agreement.  The description of the case and issues involved have been limited here because this is an MGL case.      

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Court Of Appeals Invites Amicus Participation

The Court of Appeals has invited amicus participation in Matter of Afton C. (James C.) (73 A.D.3d 887 [2nd Dept. 2010]). Matter of Afton C. involves five related Family Court Article 10 proceedings. The petition alleged that the father was a "untreated level three sex offender," who after his release, had returned to the family home and that the mother, by allowing the father to return to the home, impaired their children's physical, mental, or emotional well-being or placed them in imminent danger of such impairment. The Appellate Division reversed the family court's order holding that the mere fact that a sex offender was allowed to return to the home was sufficient. The Appellate Division, therefore, denied the petitions and dismissed the proceedings. The issue in the Court of Appeals is whether the Appellate Division erred in dismissing the petitions.

Second Circuit Proposes New And Revised Local Rules

The Second Circuit has proposed a number of new and revised local rules for public comment.  Click here for a blacklined version.  The comment period ends October 27, 2010.

Another Example Of Med Mal Cases Getting Greater Scrutiny Before Trial

Granted the following case is in the context of a default by the plaintiff, but it does serve as an another example of an appellate court giving greater scrutiny to a plaintiff’s medical expert’s testimony then you might see post-trial.  In Siccoli v. Sasson, the plaintiffs failed to file a note of issue after an order directing them to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiffs failed to comply with that directive. The Second Department held that the order had the same effect as a valid 90-day notice pursuant to CPLR 3216, thus requiring the plaintiffs to provide a reasonable excuse for their default and demonstrate a potentially meritorious cause of action. The Court held that the plaintiffs’ medical expert’s affirmation was insufficient to demonstrate that the causes of action alleging medical malpractice and lack of informed consent were potentially meritorious because “the medical expert failed to establish that his opinions were grounded in facts appearing in the hospital or medical records.”

This next case does not break any new ground. We just thought it was an interesting story. In Singh v. North Shore Universty Hospital, “During jury deliberations in this wrongful death case, the parties entered into settlement discussions. Before the jury rendered a verdict, the parties entered into a stipulation of settlement on the record. The Supreme Court then discharged the jury. Apparently, when the exhibits available for the jury’s review were collected, it was discovered that the plaintiff’s attorney’s ‘typewritten summation notes,’ which were not in evidence, had been mixed in with the plaintiff’s decedent’s medical records, which were in evidence. Soon thereafter, the defendants moved to vacate the stipulation of settlement, and for a new trial.”

After concluding that the plaintiff’s attorney had intentionally included his notes with the medical records, the Court granted the defendants’ motion and vacated the settlement. The court also issued sanctions against the plaintiff’s attorney and directed that the matter be referred to the Grievance Committee. The Appellate Division, however, reversed finding, “The record does not establish that the defendants entered into the stipulation because they were aware that the plaintiff’s attorney’s typewritten summation notes had been made available to the jury.” If that conclusion is not entirely clear, you are not alone.

The Court also vacated and remanded the issue of sanctions for a hearing because the plaintiff’s attorney had not received prior notice that the Court was considering issuing sanctions.

Court of Appeals Watch

The Court of Appeals has granted leave to appeal in the following cases:

Wyckoff Heights Med. Ctr. v. Country-Wide Ins. Co.  - whether the hospital's submission of a completed hospital facility form (N.Y.S. Form N-F 5), within 45 days after services were rendered, was sufficient to satisfy the written notice requirement in 11 NYCRR 65-1.1.   

Gronski v. County of Monroe - whether owner of a recycling facility had a nondelgable duty for site safety and whether the owner did not exercise control because by agreement the plaintiff's employer was delegated all responsibility for maintenance and repair

New York Coalition for Quality Assurance v. MFY Legal Services - whether the plaintiff's proposed Guidelines for Visitor Access, which restricts or limits access to adult-care facilities, conflicts with state regulations controlling visitor access to such facilities    

Court of Appeals Names New Clerk

The Court of Appeals has announced that Andrew W. Klein will succeed Stuart Cohen as Clerk of the Court of Appeals when Mr. Cohen retires at the end of November.  For appellate practioners, Mr. Cohen's retirement comes on the heels of the retirement of Jim Pelzer and Sue Harkavy from the Appellate Division, Second Department.  All three have been mainstays of their courts and we wish them all the best in their retirement.    

Court of Appeals Grants Leave In Another Labor Law § 240(1) Case

On September 14th, the Court of Appeals granted leave to appeal in Avila v. Plaza Construction Corp.  In Avila, the plaintiff was standing on top of the rebar grid when he picked up a hose used in the pouring of concrete.  As he disconnected two sections of the hose, concrete inside of the section he was holding suddenly shifted, and one of the iron clamps recoiled and hit him in the head, causing him to lose his balance and fall down.  When the plaintiff fell, his body landed on the rebar, but his right leg fell approximately three feet down into one of the openings, and he fractured that leg.

The Second Department held that the defendants established their prima facie entitlement to judgment as a matter of law on the plaintiff's Labor Law § 240(1) claim because “the openings of the grid, which were clearly not of a dimension that would have permitted the plaintiff's body to fall through and land on the dirt floor below, did ‘not present an elevation-related hazard to which the protective devices enumerated’ [in Labor Law § 240(1)] are designed to apply. ’”  Since the plaintiff failed to raise a triable issue of fact, the Court reversed, thereby granting that branch of the defendants' motion for summary judgment on the Labor Law § 240(1) claim.  

This now marks the fifth Labor Law § 240(1) case that has been granted leave to appeal to the Court of Appeals since the beginning of July.  The other four cases are Salazar v. Novalex Contr. Corp.; Strangio v. Sevenson Environmental Services, Inc.; Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp.; and Ortiz v. Varsity Holdings.  Furthermore, the First Department has issued three recent 3-2 decisions on Labor Law § 240(1) (Ramirez v. Shoats; Makarius v. Port Authority of New York and New Jersey; Lombardo v. Park Tower Mgt. Ltd).

Its probably safe to say that maybe its time to take a step back and consider whether the current splitting hairs approach to deciding these cases is the best approach.  Should whether Labor Law § 240(1) applies really come down to whether the plaintiff fell from 18 inches or four feet?  While its good that many of these issues are coming to a head, and hopefully will be resolved, if Runner is any indication, the next pronouncement by the Court of Appeals might just add more fuel to the fire.

Why Can't We All Just Get Along -- More Dissents In AD1

In Ramirez v. Shoats, the plaintiff was injured leaving his construction site for a coffee break when corrugated decking on the stairs he was using, which had just been installed, gave way causing him to fall. A majority of the First Department found that a question of fact existed as to whether the permanent staircase was plaintiff's sole means of egress from the worksite. According to the majority, if the stairs were the sole means of egress, then they must be considered a safety device within the meaning of Labor Law 240(1).

In a two-judge dissent, Justice McGuire observed that the Court's prior holding in Ryan v. Morse Diesel, Inc. (98 AD2d 615 [1st Dept. 1983]), that a permanent staircase is not a safety device within the meaning of Labor Law 240(1), is consistent with decisions from the other three Appellate Departments. Justice McGuire further indicated that plaintiff was not using the staircase in place of a scaffold or other safety device, but was instead using the stairs as a passageway, which does not fall within the ambit of 240(1).

In yet another opinion with a dissent, Sweeney v. Riverbay Corporation, the plaintiff tripped and fell over a garden hose that had been stretched across a sidewalk for at least one-half hour. In reversing summary judgment to the defendant, the majority found that the hose constituted a tripping hazard and that a question of fact existed as to whether 30 minutes was sufficient to permit the defendant to discover the hose and remedy the condition.

In dissent, Justice Catterson stated his opinion that 30 minutes was not sufficient time for the defendant to have had constructive notice of an alleged condition on its 300-acre property.

This Week at the Court of Appeals

At the beginning of each week that the Court of Appeals hears oral arguments, we will do our best to preview for you the civil cases we are following that will be argued that week.  Full summaries of all cases can be found on the Court of Appeals website.  Here is the complete list for this week and a brief summary of the cases we are watching:

Tuesday, September 14, 2010

Geraci v. Probst - whether the original publisher of a libelous letter could be responsible for its subsequent publication in Newsday

Flemming v. Barnwell Nursing Home and Health Facilities, Inc. - whether a member of a class action who successfully raises objections to a settlement reached on behalf of the class can recover attorney's fees for bringing the objections

Kirschner v. KPMG LLP - the Second Circuit certified the following question to the Court, "would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation...?"  New York Civil Law has a further description of the case and issues involved.  

Wednesday, September 15, 2010

Gasques v. State of New York - accident occurred when Gasques's paint hose caught on something and his hand was crushed between the motor control and bridge as he reached for the motor and his partner continued to raise his end of the scaffold. The majority held that while the accident was tangentially related to effects of gravity, the accident was not caused by the limited type of elevation-related hazards encompassed by the statute. The dissent argued that the scaffold did not protect the plaintiff from the distinctly separate elevation hazard created by the need to untangle hose lines while suspended on a tilting platform.

Thursday, September 16, 2010

Cusumano v. City of New York - plaintiff claimed that he slipped on debris at the top of the stairs and was unable to grab the handrail to stop his fall because it was too close to the wall.  At issue is whether Administrative Code Secs. 27-127 and 27-128 (duty to maintain building in a safe condition) provide a sufficient basis to support the plaintiff's claim that the handrails did not provide proper finger clearance.

Labor Law Issues Divide First Department Bench

In Makarius v. Port Authority of New York and New Jersey, a majority in the First Department dismissed plaintiff's Labor Law 240(1) claim (Roman, Andrias and McGuire), while a different majority found that issues of fact existed with respect to plaintiff's Labor Law 200 claim (Roman, Moskowitz and Freedman). On the issue of 240(1), plaintiff was injured while standing on the ground when a transformer attached to the wall slightly above his head fell, striking him in the head. The majority found that 1) there was no appreciable height differential between plaintiff and the object to trigger the extraordinary protections of the Labor Law and 2) plaintiff's injury did not result from the absence of a safety device.

The decision of the Court of Appeals in Runner v NYSE (13 NY3d 566 [2009]) reared its head once again in the dissent by Justice Moskowitz (see blog of 8/31/10). According to Justice Moskowitz, since the injury here was gravity related it "fit squarely within the Runner criteria". Justice Moskowitz criticized the concurring opinion of Justice McGuire, stating that his interpretation of the statute was too narrow. Quoting Runner, Justice Moskowitz observed that "The breadth of the statute's [240(1)] protection has, however, been construed to be less wide than its text would indicate". Justice Moskowitz instead took an expansive view of the statute to find that the anchor bolts which secured the transformer to the wall were "safety devices" within the meaning of the Labor Law. Therefore, the failure of those devices, coupled with the effects of gravity on the transformer, triggered 240(1) liability.

Court of Appeals Watch for September 2, 2010

Court of Appeals decisions for September 2, 2010 are here.

The Court of Appeals has granted leave to appeal in the following cases:

Cragg v. Allstate Indem. Corp. - at issue is whether “an insurer is required to defend or indemnify its insureds for the wrongful death of an insured person.”  Plaintiff's decedent sustained fatal injuries when she drowned in a swimming pool located at the residence of her grandparents, where she resided with her mother. "The plaintiff's decedent and defendants were insured under a homeowners' insurance policy issued by Allstate to defendant grandparents. Allstate disclaimed coverage for defendants under the policy pursuant to the provision excluding coverage for 'bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person.'"  The Fourth Department held that the policy excludes coverage for bodily injury to an insured person.  For an additional discussion of the Fourth Department's decision you can take a look at Roy Mura's blog posting on Coverage Counsel in May.   

Doomes v. Best Transit - whether manufacturer of a bus could be liable for the failure to equip the passenger seats with seat belts.

Roddy v. Nederlander Producing Co. of Am., Inc. - on a prior appeal, Roddy v. Nederlander Producing Co. of Am., Inc. (44 AD3d 556 [2007] [Roddy I]), the First Department granted conditional summary judgment to the owner of a theater on its contractual indemnification claim against Abhann, the plaintiff's employer, finding that the owner established its prima facie case "by demonstrating, through deposition testimony and other evidence, that the fogger machines and floor that caused plaintiff's injury were under the exclusive control of Abhann, and that Abhann had directed every aspect of the work through which plaintiff was injured.”  At issue was whether that prior decision constituted “law of the case” as to the plaintiff who had an opportunity to participate as a respondent on the prior appeal and where the issue on appeal went to the merits.  The First Department held that it was and affirmed an order dismissing the complaint against the owner.