Here are some of this week's decisions of interest:
Court of Appeals
Gallagher v. New York Post - In this Labor Law 240 case, the issue as framed by the Appellate Division was whether a standing order that safety devices were available on site was sufficient to raise a question of fact to defeat a motion for summary judgment. The Court of Appeals, however, took a different approach instead focusing more on the fact the there was no evidence that the order was ever conveyed to the plaintiff. In doing so the Court further expounded on the meaning of Robinson and Montgomery, stating "Both cases stand for the same proposition. Liability under § 240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident."
Notably, the "chose not to do so" language has frequently been used to argue that a worker must, in essence, be "recalcitrant" before the sole proximate cause defense can be applied. Meaning, the worker must make a conscious decision not to use a safety device, rather than merely ignoring an earlier instruction at a tool box meeting that safety devices should be used. Gallagher undercuts that argument in future cases.
First Department
Bovis Lend Lease LMB Inc v. Garito Contracting, Inc. - motion for leave to appeal to the Court of Appeals granted. Matthew Lerner had a nice discussion about the case on his blog.
Acevado v. The Piano Building, LLC - motion for leave to appeal to the Court of Appeals granted. At issue is whether an apartment covered by the Loft Law may revert to rent stabilization after the landlord purchased the prior occupant's rights under Multiple Dwelling Law (MDL) § 286(12) in a pre-1974 building containing six or more residential units.
Dessasore v. New York City Housing Authority - reversing the jury's liability verdict on the basis that it was inconsistent even though the inconsistency was not raised until after the jury was discharged. Two justices dissented.
Legon v. Petaks - Two justices disssented on whether a metal stand that held wire shopping baskets for a store display was an inherently dangerous condition and an open and obvious danger as a matter of law.
Notably, the "chose not to do so" language has frequently been used to argue that a worker must, in essence, be "recalcitrant" before the sole proximate cause defense can be applied. Meaning, the worker must make a conscious decision not to use a safety device, rather than merely ignoring an earlier instruction at a tool box meeting that safety devices should be used. Gallagher undercuts that argument in future cases.
First Department
Bovis Lend Lease LMB Inc v. Garito Contracting, Inc. - motion for leave to appeal to the Court of Appeals granted. Matthew Lerner had a nice discussion about the case on his blog.
Acevado v. The Piano Building, LLC - motion for leave to appeal to the Court of Appeals granted. At issue is whether an apartment covered by the Loft Law may revert to rent stabilization after the landlord purchased the prior occupant's rights under Multiple Dwelling Law (MDL) § 286(12) in a pre-1974 building containing six or more residential units.
Dessasore v. New York City Housing Authority - reversing the jury's liability verdict on the basis that it was inconsistent even though the inconsistency was not raised until after the jury was discharged. Two justices dissented.
Legon v. Petaks - Two justices disssented on whether a metal stand that held wire shopping baskets for a store display was an inherently dangerous condition and an open and obvious danger as a matter of law.
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