Second Department Considers Wrongful Death Claims Brought By Siblings And Nephew

In Johnson v. Richmond University Medical Center, the plaintiffs brought a medical malpractice and wrongful death action to recover for their decedent's death from surgical complications. The plaintiffs were the decedent's three living siblings and nephew, who was the son of a predeceased brother. Under the wrongful death claims, the plaintiffs sought to recover funeral expenses and other pecuniary losses. Notably, the Second Department dismissed the claim for funeral expenses because the plaintiffs had been reimbursed for those costs by a family friend, and thus the plaintiffs had no pecuniary losses on that claim.  

With respect to the remaining wrongful death claims, the Second Department held that the defendant failed to meet its burden to dismiss claims by the decedent’s adult sisters. The court noted that the decedent often took care of one sister’s house and regularly gave her money, and babysat the other sister's children. The Second Department did modify to dismiss the wrongful death claims by the decedent's brother and nephew because the defendants showed there was no pecuniary loss and plaintiffs failed to raise an issue of fact on that ground.

Second Department Holds That Leaving A Medical Practice Does Not Prevent Application Of The Continuous Treatment Doctrine

In Ozimek v. Staten Island Physicians Practice, P.C., the plaintiff brought a medical malpractice action against Dr. Kulkarni and Staten Island Physicians Practice alleging a failure to diagnose breast cancer.  Dr. Kulkarni, however, had left the medical group more than two-and-a-half years prior to the plaintiff's commencement of her action.  Prior to leaving the group he studied a mammogram and wrote a letter to the plaintiff asking her to return for a follow-up. The letter asked the plaintiff to come back because a finding from the mammogram called for additional examination. The plaintiff returned and was seen by other radiologists. After that visit, the plaintiff returned for additional examinations, mammograms, and an ultrasound. Based on those tests, medical group physicians told the plaintiff that cysts and lymph nodes appeared benign.  The plaintiff, however, later was diagnosed with breast cancer.

The Appellate Division, Second Department, held that the plaintiffs raised a triable issue of fact as to whether plaintiff was undergoing a continuous course of treatment with the medical group. The Second Department also held that leaving the medical group did not prevent the application of the continuous treatment doctrine to Dr. Kulkarni. The Court held that treatment by other physicians in the group may be imputed to Dr. Kulkarni.

Second Department Allows Issues In Third-Party Action Versus Insurer To Be Tried With Personal Injury Main Action

In Chiarello v. Rio, the plaintiff was allegedly injured while operating an ATV owned by the defendants third-party plaintiffs and operated on their property.  The property was insured by third-party defendant, Encompass Insurance Company of America.  Although the accident occurred in 2007, notice of the accident was not given by the property owners until after they were served with a summons and complaint in 2010.  At that time, Encompass disclaimed on late notice grounds.  

Because the Encompass policy pre-dated the 2009 amendment to Insurance Law § 3420, Encompass was not required to demonstrate that it had been prejudiced by the owners' failure to give timely notice of the occurrence.  The Second Department found, however, that the Supreme Court correctly determined that questions of fact existed as to whether the delay in giving notice to Encompass was "reasonable" under the circumstances.  More specifically, the property owners averred that the plaintiff had taken the ATV without permission, used it in an area off the property and that after the accident the plaintiff seemed more concerned about his own liability for property damage and trespassing and never suggested that he was considering an action.  Stated simply, the owners argued that they had a "good faith belief" that they would not be liable for the accident.

The Second Department also affirmed the denial of Encompass' motion to sever the third-party action.  Although the Court recognized that there was a potential for prejudice to have an issue of insurance coverage raised in the context of a personal injury action (Christensen v. Weeks), the Court nevertheless held that the prejudice was outweighed by the potential for inconsistent verdicts.  Here, the issue of whether the accident occurred on the Rios' property was common to both actions. Therefore, the Court held that any prejudice to Encompass could allegedly be "mitigated" with curative instruction.      

Third Department Finds Question of Fact As to Whether Work Was "Alteration" Or "Simply, Routine Activity" Within The Meaning of The Labor Law

In Gunderman v. Sure Connect Cable Installation, Inc., the plaintiff was upgrading a customer's cable service for Time Warner Entertainment when he was struck by a steel cable and fell from his ladder sustaining serious head injuries.  After finding that the telephone pole on which the plaintiff was working was a "structure" within the meaning of the Labor Law, the Third Department turned its analysis to whether the upgrade of cable service being performed by plaintiff was an "alteration," which requires a "significant physical change to the configuration or composition of [a] building or structure,"  or a "simple, routine activity."  While alteration is a Labor Law protected activity, routine tasks are not.  Here, the Court found that upgrading the service required, among other things, replacing a "drop line" with a new cable that was capable of transmitting more data, performing certain indoor wire work and configuring the customer's computer. The details of this work, however, including "the actual manner in which the service upgrade was to be accomplished," were lacking in the Record.  As such, the Third Department reversed the dismissal of the plaintiffs' Labor Law § 240(1) claim, finding that "Absent a more detailed description of the tasks required to complete the requested upgrade," the Court was unable to determine if the plaintiff's work constituted an alteration within the meaning of the Labor Law.

It is also notable that the Third Department affirmed the dismissal of a contractual counterclaim against the plaintiff, who was a subcontractor, finding that the hold harmless provision in his subcontract agreement did not constitute an express waiver by him of his Labor Law § 240(1) claim.

Lastly, with respect to Time Warner's contractual indemnity claim against its contractor, Sure Connect, the Court found that Time Warner's "limited oversight" of the upgrade work was the type of "general supervisory control" that was insufficient to impose liability against Time Warner for active negligence.  As such, Time Warner was entitled to contractual indemnification from Sure Connect.

Labor Law § 240(1) Does Not Apply Where Gravity Acted On An Object Not Involved In Plaintiff's Work

In Garcia v. DPA Wallace Ave. I, LLC, the plaintiff was injured while dismantling elevator components when the "selector tape," a thin strip of metal broke and "snapped" upwards.  Tension was being kept on the tape by a counterweight located in an overhead room. The First Department affirmed dismissal of plaintiff's Labor Law § 240(1) claim, finding that the weight was not an object that required hoisting or a load that required securing for the purposes of the work being performed by plaintiff.  The Court observed that the Labor Law applies only when gravitational force acts upon the very object being hoisted or secured as part of the injured plaintiff's work. 

"Long Standing Insurer" Ordered By First Department to Provide Primary Defense to Bodily Injury Claims

In Travelers Cas. & Sur. Co. v. Alfa Laval Inc., underlying asbestos bodily injury claims were made against the insured defendant.  The insured moved for summary judgment and a declaration that Travelers, as well as another of its insurers, OneBeacon American Insurance Company, were obligated to defend the insured against these bodily injury claims. The trial court granted the motion, declaring that each insurer owed a complete defense obligation. On appeal, the First Department modified as to OneBeacon, finding that it was "premature" to order OneBeacon to share in the defense at this time.  The Court, however, expressly left open the possibility that "OneBeacon may eventually be required to contribute to both defense costs and indemnification on a pro rata basis."  In so holding, the Court observed that Travelers and OneBeacon could not, together, provide a viable defense for the insured.  As such, the Court declared that Travelers, as the "long standing insurer" owed the primary defense obligation but that it may later obtain contribution from other, applicable insurers.  

Court of Appeals Grants Leave to Decide Excess Insurer's Obligation to Pay Interest

On December 11, 2012, the Court of Appeals granted leave in Ragins v. Hospitals Ins. Co., Inc.  In Ragins, the plaintiff was insured under a $1,000,000 professional liability insurance policy issued by Group Counsel Mutual Insurance Company and an Excess Professional Liability Insurance Policy issued by Hospitals Insurance Company, Inc. and HANYS Insurance Company, Inc. (HIC).  In an underlying action, a jury rendered a verdict against the plaintiff in the amount of $1,100,000 and judgment was entered.  Group Counsel paid its $1,000,000 policy limit, but because it was in liquidation at the time, it did not pay any pre- or post-judgment interest.  For its part, HIC paid $100,000.  The trial court in the underlying action then entered an amended judgment against the plaintiff for the balance of the judgment, which represented costs and accumulated interest.  HIC then paid its share of pre-judgment interest in direct relation to that portion of the underlying judgment that it was obligated to pay under its excess policy.  The plaintiff was left responsible for the remainder of the amended judgment.  As such, the plaintiff sued HIC for breach of the excess policy, arguing that HIC was responsible to indemnify plaintiff for the entire amended judgment amount.  On pre-answer motion to dismiss pursuant to CPLR 3211(a)(1) and (5), the trial court denied HIC's motion.  On appeal, the Second Department reversed, finding that HIC had conclusively established that it was only responsible for pre-judgment interest in relation to that portion of the underlying judgment that it was obligated to pay and that HIC had no obligation to pay post-judgment interest or costs. 

Court of Appeals Holds That Condominium Is Not An "Owner" Within The Meaning Of The Labor Law

In Guryev v. Tomchinsky, the Court of Appeals held that a condominium and its related entities were not “owners” or “agents of owners” under Labor Law § 241(6).  By way of brief background, the plaintiff allegedly was injured when renovating an apartment purchased by the Tomchinsky defendants in the condominium building.  The Tomchinsky defendants renovated the apartment before moving in and obtained approval to do so from the condominium’s board of managers as required by the condominium’s by-laws.

Labor Law § 241 (6) provides that “owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work,” shall provide reasonable and adequate protection and safety for workers and shall comply with the Industrial Code. At issue was whether the condominium defendants are “owners” or “agents of owners” of the Tomchinskys’ apartment because they own the land beneath the building.

In rejecting plaintiff’s argument, the Court of Appeals held that the apartment where the injury occurred was owned in fee by the Tomchinsky defendants.  As such, the apartment was to be treated as separate property from the land beneath the condominium building.  Stated simply, because the ownership interests between the unit and the land were distinct, the analysis as to whether the condominium defendants could be deemed owners or owner’s agents within the meaning of the Labor Law could have ended there.  The Court continued, however, to distinguish the present case from its prior decision in Gordon v. Eastern Ry. Supply (82 NY2d 555 [1993]).

In Gordon, the Court had found that a lessor-lessee relationship between the landowner and the party contracting for the work had created a sufficient nexus between the property and the work being performed to impose liability under the Labor Law.  The Gordon Court indicated that such work was the “direct result” of the landowner’s actions thereby subjecting the landowner to Labor Law liability despite the fact that it did not directly contract for the work.  Here, however, because the unit was owned in fee by the Tomchinsky defendants, no such relationship existed between the condominium defendants and the plaintiff’s work.  Thus, the Court held that even accepting the plaintiff’s argument that the condominium defendants were nevertheless “owners,” since “ownership is a ‘necessary condition’ although ‘not a sufficient one’ for a non-contracting party’s liability” under the Labor Law, because a sufficient nexus between the land and the work was absent here, the condominium defendants could not be held liable under the Labor Law.

The Court also rejected the plaintiff’s argument that an Alteration Agreement between the Tomchinsky defendants and the condominium shows that the condominium was a statutory owner.  Although that Agreement gave the condominium veto power over contractors and the ability to limit the hours of work, the Court held that the Agreement did not change the fact that the Tomchinskys owned the apartment.  Since the Agreement did not confer upon the condominium defendants the ability to control the work and “insist that proper safety practices [be] followed,” the condominium defendants could not be subjected to Labor Law liability.  Critically, the majority found that the individual unit owner, here Tomchinsky, had assumed all responsibility to ensure that safe workplace practices were followed.  Therefore, as noted in FN7 of the decision, the majority observed that “it is quite a leap of logic to conclude that the Board assumed” Tomchinsky's responsibilities under the Agreement merely because the Board had approved Tomchinsky’s alteration plan.

Finally, the majority and the two-Judge dissent commented on the distinction between condominiums and cooperative apartments.  While the plaintiff and dissent argued that the Labor Law should be applied to apartments under both ownership schemes, the majority determined that condominiums are different forms of property ownership in that each individual unit is separately owned, whereas the cooperative owns the building to which the individual residents merely hold stock in the overall cooperative corporation.  The two cannot simply be interchanged.  The dissent, however, would have reinstated the section 241(6) claims on the reasoning that the condominium retained a proprietary interest in each unit like a cooperative apartment.  In that way, Judge Lippman argued, the condominium “reserved to itself in the unit alteration process” the role of “an owner - or at the very least that of the owners’ agent” and so should be a statutorily responsible party.  He concluded with a call to the Legislature to amend the statute “if the statutory scheme is not to be rendered utterly arbitrary in its application and largely inefficacious in meeting its vaunted objectives.”

Third Department Finds Question of Fact As To Whether Entity Is A "Contractor" Within the Meaning of the Labor Law

In Landon v. Duane Austin and Austin Contracting, Inc., Austin Contracting, Inc. (ACI) had moved for summary judgment and dismissal of plaintiff's Labor Law claims on the basis that ACI was not a "contractor" or "agent" within the meaning of the Labor Law. The trial court granted ACI's motion, but on appeal the Third Department reversed.  The Appellate Court found that questions of fact existed as to whether ACI was such a "contractor."  More specifically, the Court found that ACI may have employed the plaintiff on the day of the accident, had provided his equipment and tools and that the materials being installed by plaintiff at the time of the accident were supplied by ACI.  Moreover, all of the remaining workers on site that day were ACI employees.  As such, a question of fact existed as to whether ACI had authority to enforce applicable safety standards and to supervise and control plaintiff's work.

First Department Holds That Insurance Procurement Requirement Was Breached By Purchase of Policy With Self-Insured Retention

In Spector v. Cushman & Wakefield, Inc., OneSource Facility Services, Inc. was contractually obligated to procure insurance with limits of $1,000,000 per occurrence naming Citibank as additional insured.  OneSource procured a policy with per occurrence limits of $1,500,000 with a $500,000 self-insured retention.  Although it was not prohibited by the OneSource/Citibank agreement from procuring a policy with a self-insured retention, OneSource was obligated to notify Citibank of this fact by certificate of insurance, which it failed to do.  As such, the First Department affirmed a finding that OneSource had breached its contract with  Citibank.  In so holding, the Court cited to its earlier decision in Federated Retail Holdings v. Weatherly 39th St. LLC, in which the Court recognized that to hold otherwise would permit a "tenant [to] simply choose to buy a policy with such a high self-insured retention (and concomitantly low premium) as to render insubstantial or even illusory the benefits of the insurance coverage for which landlord bargained."

  

Court of Appeals Watch: Guryev v. Tomchinsky

Update: New post discussing the Court of Appeals' opinion in this matter

Guryev v. Tomchinsky - In this action the plaintiff alleges that during the course of a condominium renovation a nail from a nail gun ricocheted and struck him in the eye.  The plaintiff was employed by a contractor hired by the unit apartment owners, the Tomchinsky defendants.  The Tomchinsky defendants had obtained approval for the renovation from the Condominium in the form of an alteration agreement that included a right to reject the choice of contractor as well as a right to inspect the work and limit work hours.  The plaintiff brought this Labor Law action, including a section 241(6) claim against various defendants, including the Condominium, its Board of Managers, and the managing agent, the Trump Corporation. 

The trial court denied the Condominium-related defendants’ motion to dismiss these Labor Law claims, finding the existence of questions of fact.  The Appellate Division, Second Department, reversed and granted summary judgment, holding that that they were not owners or agents within the meaning of the Labor Law.  The Appellate Division concluded that the Condominium-related defendants did not function as an owner because they lacked the interest of an owner, they did not hire contractors, supervise or control the work, and had no authority with respect to proper safety practices. 

The Court of Appeals granted Guryev leave to appeal.  At issue will be plaintiff’s argument that the Condominium-related defendants are “owners” or “agents of owners” against which a section 241(6) claim could be brought.  Plaintiff will argue that the Condominium Law designates the Condominium as landowner and that the Appellate Division’s decision would exempt condominiums from responsibility and thus thwart the purpose of the Labor Law. Oral argument will be this Wednesday, November 14, 2012.  The Court streams oral arguments online.  To watch them live, you can visit the New York Court of Appeals website on Wednesday after 12:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

No Reelection for Three Appellate Division Justices

Unofficial results from New York State elections show that three justices of the Appellate Division have not been reelected.  Among the justices who lost their respective elections are two from the Third Department and one from the First Department.

• Associate Justices Bernard Malone Jr. and E. Michael Kavanagh were defeated by challengers on the Democratic ticket
• Associate Justice James M. Catterson has the eighth-highest vote total out of six available spots and was approximately 11,000 votes shy of being re-elected.

Further coverage of the election results can be found at the New York Law Journal.

Judge Theodore Jones (1944 - 2012)

As reported by the New York Law Journal, Judge Theodore Jones, Jr. of the New York Court of Appeals died late Monday evening or Tuesday morning of an apparent heart attack.  Judge Jones was an associate judge of the Court since his 2007 confirmation and previously served for almost 20 years as an elected supreme court justice.  His untimely death now leaves Governor Cuomo with two judicial selections to make for the Court of Appeals with the impending retirement of Judge Ciparick at the end of the year.

New York Court Deadlines and Time Limitations Suspended "Until Further Notice" by Executive Order

Preliminarily, the authors at the New York Appellate Law Blog would like to share their deep concern, thoughts, and prayers for those affected by Hurricane Sandy.

This storm has been an unprecedented disaster for the Northeast.  In addition to the tremendous damage to property and loss of life, Hurricane Sandy also affected the court system.  New York State and Governor Cuomo have responded to some of the difficulties relating to the court system by issuing Executive Order 52.

Executive Order 52 calls for the suspension of specified time limitations in various civil and criminal matters.  This suspension includes statutes of limitations concluding on or after October 26, 2012.  It includes a suspension of the time limitation to appeal matters as well.  Notably, these suspensions are "until further notice."  The executive order can be found by clicking this link to the Governor's website.

Court of Appeals Finds That Policy Language For "Residence Premises" Is Ambiguous

On September 9, we wrote in advance of oral arguments in the Court of Appeals for the matter of Dean v. Tower Insurance Co. of New York, an insurance coverage action in which the controversy involved the loss of alleged “residence premises” where such premises were defined for the insured as “where you reside.”  In the decision released October 25, the Court of Appeals concluded that the word “reside” was undefined in the policy, making “residence premises” ambiguous under the facts here.  The Court thus affirmed the denial of summary judgment to Tower in a 4-3 decision.

The Deans’ home insurance policy at issue was to become effective at the time they closed on their house.  But, the Deans could not move in as they discovered extensive termite damage.  As a result, the Deans continued to live at their old home while they performed substantial repairs over the next 12 months.  This included performing repairs at the new home at least five days a week after work and often eating meals and staying late into the night or early morning, but not sleeping over.  The house was then destroyed by fire approximately one year after the closing, when the renovations were substantially complete.

The majority of the Court of Appeals quoted language from earlier Appellate Division cases which indicate that residency requires “something more than temporary or physical presence and requires at least some degree of permanence and intention to remain.”  Through this lens, the majority found that issues of fact remained as to whether the Deans satisfied the insurance policy’s “residence premises” language.  The majority further noted that the ambiguity makes it arguable whether the “reasonable expectations of an average insured” would be that mere “occupancy” of the premises was sufficient to satisfy the policy requirements, and that Mr. Dean's presence in the home for working purposes could be considered such an "occupancy."  

In dissent, three Judges argued that the term “reside” should simply be given its plain definition or plain meaning and would grant summary judgment for Tower.  The dissent argued that the Deans failed to “reside” at their new home because they continued to live at their old home while they performed the repairs.  Consequently, although they may have shown “recurrent presence for the purpose of renovation,” the dissent argued that the Deans did not show “the necessary ‘degree of permanence’ to establish a residence.”

Court of Appeals Finds Amended Exclusion In Insurance Policy No Longer Ambiguous

In Bentoria Holdings, Inc. v. Travelers Indemnity Co., an insurance coverage action to determine whether the insurer properly denied coverage for building damage that was caused by excavation on the lot next to the insured building, Travelers based its denial on an exclusion for “Earth Movement” contained in its policy.   Notably, a nearly identical earth movement clause was reviewed in the 2009 Court of Appeals' decision Pioneer Tower Owners Assn. v.State Farm Fire & Cas. Co. and there the Court denied summary judgment to the insurer.  In Pioneer, the Court concluded that the clause “did not unambiguously remove” human excavation from coverage.  Here, however, the Court of Appeals was satisfied that human excavation was excluded from policy coverage and granted Travelers’ motion for summary judgment.

The difference between the policies at issue in Bentoria and Pioneer was an additional sentence in the Bentoria policy that specifically excluded earth movement “whether naturally occurring or due to man made or other artificial causes” (emphasis added).  The Court of Appeals held that the latter part of the additional sentence eliminated the ambiguity argument that was available in Pioneer.  Consequently, the Bentoria policy could not “reasonably be read to cover the damage on which plaintiff’s claim is based.” 

Court of Appeals Broadly Interprets “Necessarily Affects” Requirement Applicable to Prior Nonfinal Orders and Judgments

In Strauss, Inc. v. East 149th Realty Corp., the Appellate Division declined to review, on an appeal from a final judgment, an earlier order dismissing appellant’s counterclaims and third-party claims.  The Court of Appeals, however, granted leave and reversed, holding that, contrary to the Appellate Division’s determination, the order dismissing appellant’s counterclaims and third-party claim does “necessarily affect” the final judgment within the meaning of CPLR 5501(a)(1).

 

By way of background, CPLR 5501(a)(1) provides that “[a]n appeal from a final judgment brings up for review ... any non-final judgment or order which necessarily affects the final judgment.”  For purposes of CPLR 5501(a)(1), “a final order is one that disposes of all causes of action between the parties in an action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters” (Town of Coeymans v. Malphrus, 252 A.D.2d 874, 875 [3d Dept. 1998]).  Further, an order has been said to “necessarily affect” a final judgment if its reversal would overturn the judgment (Siegel, NY Prac § 530, at 940 [5th ed]).  Applying this test, the Appellate Division found in Strauss, that the order dismissing the counterclaims and third-party claim did not “necessarily affect” the judgment because, if the order were reversed, it would not require a reversal or modification of the final judgment.  Rather, it would mean only that the counterclaims and third-party claim would be reinstated and appellant would be permitted to pursue those claims.

 

But the Court of Appeals disagreed, holding that the Appellate Division erred in ruling that the order dismissing the counterclaims and third-party claim did not necessarily affect the final judgment, explaining that, “this Court has not applied a definition of ‘necessarily affects’ as narrow as that employed by the Appellate Division in this case.  To satisfy ‘necessarily affects’ in this context, it is not required, as the Appellate Division held, for the reinstatement of the ... counterclaim upon a reversal or modification to overturn completely the judgment.”  Instead, the Court of Appeals held that because the order dismissing the counterclaims and third-party claim “necessarily removed that legal issue from the case (i.e., there was no further opportunity during the litigation to raise the question decided by the prior non-final order), that order necessarily affected the final judgment.”

 

On its face, this holding may leave some scratching their heads wondering why does it matter that the order dismissing the counterclaims and third-party claim “necessarily removed that legal issue from the case” in determining whether the order “necessarily affects” the final judgment.  To the contrary, intuitively an order that removes completely a “legal issue from the case” would be a “final” order, which would not be brought up for review by the judgment.  An answer can be found in Burke v. Crosson (85 N.Y.2d 10 [1995]).  There, the Court of Appeals held that “an order or judgment that disposes of some but not all of the substantive and monetary disputes between the same parties is, in most cases, nonfinal.  Thus, a nonfinal order or judgment results when a court decides one or more but not all causes of action in the complaint against a particular defendant or where the court disposes of a counterclaim or affirmative defense but leaves other causes of action between the same parties for resolution in further judicial proceedings” (id. at 16). 

Court of Appeals Watch: Dupree v Giugliano

Dupree v. Giugliano - In this action claiming medical malpractice, the plaintiff seeks to recover for a consensual sexual relationship with her family practitioner physician that allegedly led to her divorce, emotional injuries, and loss of marital financial support.  Principally at issue will be whether the sexual relationship constitutes medical malpractice.

The Appellate Division, Second Department, concluded it did in its 3-1 decision.  The majority noted that the physician gave advice concerning plaintiff’s panic attacks, prescribed an antidepressant for depression, recommended plaintiff see a psychiatrist or psychologist, and discussed “mental health issues” at least partially related to problems with her marriage, which was characterized as “talk therapy.”   In the Court's opinion, these actions constituted mental health services subjecting the physician to the standards of a mental health provider.  Under those standards, a sexual relationship with the patient would be a departure from the standard of care.

In dissent, Justice Skelos argued that a physician’s conduct can be medical malpractice only when it is “medical treatment or bears a substantial relationship to the rendition of medical treatment.” According to Judge Skelos, here, the physician's actions did not constitute medical treatment.  In particular he pointed to the plaintiff’s admission that the relationship was “not ‘part of the treatment’” and reasoned that the consensual relationship would be intentional conduct extraneous to treatment and should not be considered medical malpractice.

Oral argument will be this Wednesday, October 17, 2012. The Court streams oral arguments live online.  To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:30 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the screen.

Appellate Division News

As reported in today's Law Journal, Governor Cuomo has named Justice Randall Eng as the new Presiding Justice of the Appellate Division, Second Department. The governor also announced the appointments of Justices Judith Gische, Darcel Clark, and Paul Feinman for the First Department; Justice Sylvia Hinds-Radix for the Second Department; and Justices Joseph Valentino and Gerald Whalen for the Fourth Department.

Second Department Re-Affirms the Principle That Whether An Object Is A "Structure" Within the Meaning of the Labor Law Requires A Fact-Specific Inquiry

In McCoy v. Kirsch, the plaintiff was injured in a fall from a ladder while dismantling a "chupah," a canopy under which brides and grooms stand during weddings conducted in the Jewish religious tradition.  After noting that the Court of Appeals indicated long ago that "the word 'structure' in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Caddy v Interborough R.T. Co., 195 NY 415, 420), the McCoy Court cited various cases in which the Labor Law was applied to "several diverse items" found to be such structures and other various cases in which the object at issue was found to not be a structure.  The Court indicated, therefore, that: "[w]hether an item is or is not a 'structure' is fact-specific and must be determined on a case-by-case basis. In determining each case, courts may consider a number of relevant factors. These factors should include, but are not necessarily limited to, the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor should be deemed controlling."

In McCoy, the Court affirmed summary judgment in the plaintiff's favor, finding that this particular chupah, which was constructed of interconnected pipes, wood and fabric, all of which were secured to steel metal bases and required a ladder and hand tools to dismantle, was a structure within the meaning of the Labor Law, but the Court further indicated that another less durable, merely decorative chupah or other object, might not be considered such a structure.   

First Department Speaks on Labor Law § 240(1): Couplings Are Statutory Safety Devices. And, Foreseeability of the Need For A Device May Be the Dispositive Inquiry.

In Fabrizi v. 1095 Ave. of the Americas, L.L.C., a three opinion decision, a majority of the First Department found that questions of fact existed as to whether a "coupling" provided to the plaintiff to secure conduit was an adequate safety device under Labor Law § 240(1). The plaintiff, an electrician, was injured when a piece of conduit fell and struck his hand after it had separated from a "compression coupling." The plaintiff had specifically asked his supervisor for a "set screw coupling" to secure the pipe. Defendants argued that the compression coupling, along with an additional support system that had been provided, were sufficient for the work being performed. Four of the five Judges found that neither side had established their position as a matter of law, and therefore both plaintiff's and defendants' motions for summary judgment should have been denied.

In his dissenting opinion, Judge Tom argued that the defendants were entitled to summary judgment either because plaintiff was the sole proximate cause of his accident or because a "coupling" is not a statutory enumerated safety device. With respect to sole proximate cause, Judge Tom observed that plaintiff had removed two securing devices, without rational explanation, and left the conduit connected only to the compression coupling while he worked directly underneath the conduit. As to the coupling itself, Judge Tom found that it was not a statutory safety device, but rather a component part of the conduit system "whose purpose is to connect two sections of conduit" not to secure the conduit against falling.

In a third opinion, Judge Román felt constrained to address the concept of "foreseeability" in the context of Labor Law § 240(1). As the readers to this blog may recall, Judge Acosta had previously written an opinion in Ortega v. City of New York in which the Judge indicated that foreseeability applied only to Labor Law actions involving the collapse of a permanent structure. By contrast here, Judge Román argued that foreseeability applies to all Labor Law § 240(1) claims, especially claims involving falling objects. Of particular note is Judge Román’s observation that “foreseeability in the context of Labor Law § 240(1) jurisprudence, is a term we seldom see expressly mentioned in the relevant case law… Nevertheless, even when not specifically mentioned, in a great number of cases… foreseeability has been dispositive and has been necessarily implied.” Therefore, according to Judge Román, the relevant inquiry must address “whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute.”

Given the apparent split within the First Department on the issue of foreseeability as applied to Labor Law § 240(1), “coupled” with the fact that apparently anything can constitute a statutory enumerated safety device when placed in context with gravity related work, defendant’s counsel would be well advised to develop an argument that it was unforeseeable that plaintiff’s work would involve a gravity related risk, and therefore the defendant did not owe plaintiff a duty to provide a statutory safety device in the first instance.

Court of Appeals Watch: Dean v. Tower Insurance Co. of New York

Dean v. Tower Insurance Co. of New York will be argued at the Court of Appeals this Tuesday.
 

In this insurance coverage action, at issue was an insurance policy Tower issued in March 2005 with respect to a house purchased by the Deans.  The policy stated that it covered physical loss to the "residence premises," which it defined as "[t]he one family dwelling, other structures, and grounds . . . where you reside."

After closing on their new house, the Deans discovered termite damage that delayed their ability to move in because of needed extensive renovations.  During this time, the Deans continued to reside in their old house without informing Tower. In March 2006, the policy was renewed for a second year while renovations were ongoing. Ultimately, an unrelated fire destroyed the new house and the Deans filed a claim under their policy. Tower disclaimed coverage on two grounds (1) that the insured house was not a “residence premises” under the policy; and (2) that the Deans misrepresented that they occupied the insured house. The Deans commenced an action against Tower, seeking to compel Tower to insure their loss.

The Supreme Court granted Tower's motion for summary judgment dismissing the complaint, holding that the house was not a "residence premises" under the policy.  The Court found that, "[g]iving the words 'where you reside' their 'plain and ordinary meaning,' the policy covered a dwelling where the Deans lived for a permanent or extended period of time."  Here, since the Deans never resided in the new house, the Court found that the new house was not a "residence premises."

In modifying the Supreme Court's order to deny summary judgment to Tower, the Appellate Division found that "residence premises" was ambiguous under the facts of the case, particularly where the term "resides" was undefined by the policy, and that there was an issue of fact as to whether the plaintiff's misrepresented their intention to reside at the insured house.

The Appellate Division granted Tower leave to appeal to the Court of Appeals. Arguments will be this Tuesday, September 11, 2012. The session begins at 2:30 p.m. and this matter is listed fourth on the calendar.  Based on the requested oral argument times of earlier matters, this matter should be argued, beginning at approximately 3:50 p.m.

The Court streams oral arguments live online. To watch the oral arguments, you can visit the New York Court of Appeals website on Tuesday after 2:30 p.m. and click on the "Oral Arguments Webcast" link on the right-hand side of the screen. Alternatively, on Tuesday after 2:30 p.m. you may click here to open the windows media player stream directly.

First Department Holds That 4-12" Mis-Step Is Not An Elevation Related Risk, But Slippery Condition May Have Been Caused By Industrial Code Violation

In Cappabianca v. Skansa USA Building Inc., the First Department affirmed dismissal of Labor Law and common law claims except section 241(6) where the plaintiff fell on an unsteady pallet. The plaintiff was standing on a slatted pallet and was cutting bricks with a wet saw located on an adjacent pallet. The wet saw’s pan improperly leaked water and muck (from the bricks) onto the floor, which built up over days and weeks of use. When the plaintiff turned to stack a recently-cut brick, the pallet swiveled, causing the plaintiff to fall. The First Department held that section 240(1) did not apply because the plaintiff’s fall/misstep from the 4-12 inch pallet did not expose the plaintiff to the kind of elevation-related risks that trigger the scaffold law.

With two judges dissenting, the First Department affirmed dismissal of plaintiff’s claim under section 200 and the common law, noting that the water/muck condition was the result of the “manner and means of the work ” over which the defendants did not exercise supervisory control, and that the water/muck condition was not a dangerous condition of the premises. According to the majority, the water/muck condition was the result of the plaintiff’s employer’s negligence, and section 200 does not allow for vicarious liability against an owner or general contractor. By contrast, the dissent argued the section 200 and the common law claims should be reinstated because the water/muck could become a dangerous premises condition over time or the origin of the water might be the result of a separate dangerous premises condition that allowed rainwater to accumulate on floors.

The First Department reversed and reinstated the plaintiff’s claims under section 241(6), finding that there were triable issues under two industrial code provisions (1) prohibiting worker use of elevated working surfaces set in a slippery condition and requiring the removal or covering of water or foreign substances that may cause slippery footing and (2) requiring repairs or replacement of defective or unsafe “[power-operated] equipment.” The First Department rejected, however, plaintiff's claim under the section on hazardous openings, noting that it did not apply to the 3-6 inch openings between slats on the pallet. Similarly, a provision related to vehicular and pedestrian traffic was inapplicable to the slatted pallet on which plaintiff worked; a provision regarding wet footing did not apply because plaintiff testified that he wore rubber-soled work boots that adequately protected him; and a provision on tripping hazards did not apply where plaintiff did not trip on an accumulation of dirt or debris.

First Department Holds That Replacement of Light Sockets Is "Routine Maintenance"

In Picaro v. New York Convention Center Development Corp., the plaintiff, a "house electrician" was injured "fixing" a light fixture.  He testified that he performed this task "twice weekly" and that most electricians would simply change the entire fixture when performing such work.  His supervisor attested to the fact that the high-voltage nature of the lights caused the sockets to deteriorate, which again required them to be replaced on a routine basis.  Based upon the foregoing, the First Department held that plaintiff's work clearly involved the replacement of worn-out components, which is not a Labor Law protected activity.

Second Department Strictly Construes Insurance Policy Language Regarding "Excess" Coverage

In Utica Mut. Ins. Co. v. Geico, the Second Department found that Utica was excess over Geico based upon the following comparison of the respective insurer's policy language.  The Utica policy indicated that it was "excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis."  By comparison, the Geico policy indicated merely that it was "excess over any insurance," without reference to contribution.  Citing State Farm Fire & Cas. Co. v LiMauro (65 NY2d 369, 375-376), the Second Department held that because the Utica policy had expressly negated contribution, whereas the Geico policy was silent in this regard, Utica was excess over Geico.

Court of Appeals Determines Impact Of Policy Rescission on Additional Insured Status

In Admiral Ins. Co. v. Joy Contracting, Inc., Admiral, Joy Contracting’s excess insurer, argued that coverage was not available to its proposed additional insureds because the policy it had issued to Joy Contracting should be rescinded, reformed or declared void based upon Joy’s misrepresentations during the application process.  Joy Contracting had held itself out to Admiral as merely being a drywall contractor, when Joy was, in fact, involved in the exterior construction of the condominium.  It was Joy Contracting that had rented a crane that ultimately collapsed, killing 7 people and injuring many others. 

Relying on its earlier decision in Lufthansa Cargo, AG v. New York Mar. & Gen. Ins. Co. (40 A.D.3d 444 [1^st Dept. 2007]) and of the Second Department in BMW Fin. Servs. v. Hassan (273 A.D.2d 428 [2^nd Dept. 2000], lv. denied 95 N.Y.2d 767 [2000]), the First Department held, however, that the innocent additional insureds were unaffected by Joy Contracting’s misrepresentation.  

The First Department granted leave to appeal to the Court of Appeals, and on appeal the Court of Appeals reversed the First Department and reinstated Admiral’s causes of action for rescission, reformation and a declaration voiding the Joy Contracting policy.

Initially, the Court of Appeals distinguished BMW Fin. Servs. and Lufthansa, AG on the basis that, in each of those cases the insurer was specifically made aware of the additional insured when it undertook to provide coverage. The Court of Appeals observed that “the named insureds’ misrepresentations did not deprive the insurer of knowledge of or the opportunity to evaluate the risks for which it was later asked to provide coverage.” In short, since both BMW and Lufthansa were named additional insureds, they were considered “separate parties” whose interests were known to the insurers, whereas, by contrast, in Admiral v. Joy, Admiral underwrote the risk as though Joy Contracting was a drywall contractor, “not the obviously much greater risk presented by exterior construction work with a tower crane at a height many stories above grade.”

The Court of Appeals also distinguished its prior decisions in Morgan v. Greater N.Y. Taxpayers Mut. Ins. Assn. (305 N.Y. 243 [1953]) and Greaves v. Public Ser. Mut. Ins. Co. (5 N.Y.2d 120 [1959]), upon which BMW Fin. Servs. and Lufthansa, AG were based. Unlike the matter before the Court, neither Morgan nor Greaves involved rescission of the named insured’s policy. As such, the Court of Appeals went a step farther and declined to support BMW Fin. Servs. and Lufthansa, AG to the extent that those decisions could be read to expand the holdings of Morgan and Greaves. Simply stated, the Court found that rescission of the policy to the named insured would leave nothing for which the additional insured could be considered “additional,” because “by definition [the additional insured] must exist in addition to something” (emphasis in original).

First Department Affirms Increased Pain and Suffering Award for Amputated Ring Finger, but As A Matter of Law Sets Aside Finding of Negligence Against Plaintiff

In Once v. Service Ctr. Of N.Y., the First Department affirmed additur for a partial ring-finger amputation and searched the record to grant plaintiff judgment on liability. The trial court ordered additur to $200,000 from a jury verdict of $60,000, increasing the awards for past pain and suffering from $50,000 to $75,000 and future pain and suffering from $10,000 to $150,000 over 27 years. Plaintiff had the distal portion of his ring finger amputated in a power-saw accident.

The jury had also apportioned 70% liability to the plaintiff, and the trial court reduced plaintiff’s apportioned liability to 15%. Yet, the First Department went further by searching the record, as plaintiff did not appeal from the judgment, to grant plaintiff judgment on liability. The Court stated that there “was no evidence that plaintiff misused the saw,” which had no guard in violation of the Industrial Code.

Corrections Officer Not Entitled To The Extraordinary Protections of Labor Law § 240(1)

In Bolster v. Eastern Bldg. & Restoration, Inc., the plaintiff was a corrections officer who was injured when workers dropped a doorframe on his shin and foot at a prison construction site.  The Third Department affirmed the dismissal of plaintiff's Labor Law § 240 & 241(6) claims.   The Court held, however, that the officer could proceed on claims under section 200 and common-law negligence.

As to Labor Law § 240, the Third Department noted that the section does not cover site security workers who do not participate in construction activities. Here, the Court found that the corrections officer did not participate in the construction work and was present to escort workers to and from the prison work site. Despite being present during the construction work, his job was simply to ensure that no contraband was smuggled into the prison and that the workers were safe from inmates. As a result, the Court concluded that the section 240 claims were properly dismissed because the officer was not a covered worker (a similar result recently reached by the First Department in Kutza v. Bovis Lend Lease LMB).

On the other hand, the corrections officer was a covered person under section 241(6) because he lawfully frequented the work site, but the officer failed to allege a violation of a relevant rule or regulation as a predicate to section 241(6) liability. The Third Department held that the plaintiff’s injuries were unrelated to the proffered regulations involving inspections or dropping steel from buildings. The Court concluded that this accident occurred simply because workers lowering a doorframe purposefully dropped it to their feet when it was at a waist-high level.

First Department Addresses The Scope Of The Duty Of A Primary Care Physician

In Burtman v. Brown, the First Department addressed whether the plaintiff’s primary care physician had a duty to supervise or override a course of treatment initiated by another physician actively treating the plaintiff.  More specifically, at issue was the care provided by a primary care physician in possession of a radiology report that was ordered by the plaintiff's obstetrical practice showing two abdominal masses.  The obstetrical group ordered the radiology report after discovering the masses during a pregnancy checkup.  The report declared that the masses were "consistent with benign lipoma" and the obstetrical group decided to take a wait-and-watch approach.  The plaintiff claimed that based on the radiology report in the primary care physician's possession, she should have discussed it with the plaintiff and sent her for a biopsy.  The plaintiff, however, did not have a biopsy until more than a year later.  According to the plaintiff, by then the biopsy results showed a potential malignancy requiring a wide radical excision.    

The First Department held that "[i]n this case" the motion court erred in finding that the primary care physician had an independent duty to assess the plaintiff's condition and order diagnostic testing such as a biopsy.  According to the Court, the question of a duty is a legal question for the court and is generally not an appropriate subject for expert opinion.  In that regard, the Court held that there is "no legal authority for the view that a primary care physician has an independent duty to assess the course of treatment set and monitored by another physician."  Thus, the defendant’s status as the plaintiff’s primary care physician is not dispositive as to whether a duty exists.  Instead, the question turns on whether the primary care physician undertook to advise the plaintiff about her condition and whether the plaintiff relied on that advice.  Since it was undisputed that the primary care physician was not involved in setting or monitoring the course of treatment for the plaintiff's abdominal masses, the Court held that there was no duty and granted summary judgment for the primary care physician.

In dissent, Judge Tom argued that primary care physicians, by their nature, should owe a duty with respect to the general health of their patients.  Thus, according to Judge Tom, where a physician has undertaken to provide primary medical care, there is a duty to advise the patient of those conditions known to the physician that pose a threat to the patient's health so that the patient may make an informed decision whether to seek further treatment. Furthermore, as the physician primarily responsible for the patient's care, there is an additional duty to take such appropriate medical action as might be necessary to diagnose and treat the condition, either personally or by way of referral to a qualified practitioner.  Judge Tom, therefore, would have affirmed finding that the primary care physician should have reviewed the radiology report with the plaintiff and sent her for a biopsy.    

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.

First Department Holds That "Forseeability" Is Required Under Labor Law 240(1) Only When The Collapse of A Permanent Structure Is Involved

In Ortega v. City of New York the plaintiff was injured when a temporary platform, "tremie rack," on which he was standing to pour concrete tipped over after it was struck by a rig. The trial court denied plaintiff summary judgment. The lower court found that questions of fact existed as to whether the accident was foreseeable and whether the platform was properly placed by the defendant.

In reversing the lower court and awarding plaintiff summary judgment, the First Department observed that "there is no requirement that plaintiff offer expert testimony on the foreseeability of the accident to prevail on a Labor Law 240(1) claim outside of the permanent structure context." The Court went on to state that foreseeability of injury can be gleaned from the very fact that the worker was engaged in one of the inherently dangerous activitivies governed by the Labor Law. The Court thus held: "We decline to extend the foreseeability requirement to anything other than permanent structures that are not safety devices by their nature."

Interestingly, although the device itself could be considered a "safety device" (see concurring opinion of Justice Sweeny), Justice Acosta specifically addressed the "foreseeability" issue in order to uphold the Court's responsibility to resolve "pure questions of law for the parties and the Bar." Justice Acosta noted that this was "particularly true in an area that is developing, such as grafting a negligence concept like foreseeability into a Labor Law 240(1) claim."

"Residence" Defined for Insurance Purposes

In Neary v. Tower Ins., the Second Department reiterated the standard for determining "residency" for purposes of a claim for insurance coverage as "something more than temporary or physical presence." Instead, "residency" requires "at least some degree of permanence and intention to remain."

Affordable Care Act: Day Three Oral Arguments

The transcript and audio from both of today's arguments is now available here (morning session) and here (afternoon session).   

Two Foot Fall Held to Be Labor Law § 240(1)

In Soltero v. City of New York, the First Department held that a plaintiff can recover under Labor Law § 240(1) for a fall from a two-foot ledge in a subway tunnel. The plaintiff was a member of a team engaged in replacing old train tracks when she fell from the hosed-down and slippery ledge. Defendants did not dispute the fall or that the task required the plaintiff to be at an elevation, but did argue unsuccessfully that there was a question of fact about whether the wall was less than two feet tall.

Labor Law § 240(1) Applied to Fall From Material Located On Flatbed Truck

In Phillip v. 525 E. 80th Street Condominium, the First Department held that a plaintiff was entitled to summary judgment under Labor Law § 240(1) where he fell while unloading scaffolding material from a flatbed truck. Plaintiff was standing on top of the scaffolding material and handing it to his coworkers approximately nine feet above a platform. As for safety devices, the plaintiff was provided a harness, but no place to secure it. The court also noted that the evidence supported that the way in which plaintiff worked was the only way to unload the materials.

Affordable Care Act Oral Argument Day 2

For the transcript and audio of today's argument click here. 

Landowner's Duty to Illuminate Known Conditions

In Taylor v. Lands End Realty Corp., the plaintiff was injured in a nightime fall from an unlit, third-floor landing. The plaintiff, after smoking a cigarette on the landing, tried to walk down the stairway in the dark. Unfortunately, an independent contractor had recently removed the stairs for repairs, and the plaintiff fell three stories to the ground.

The defendant’s motion for summary judgment was denied on the claim that it had a duty to light the exterior landing and stairs. The Third Department affirmed, observing that the Court of Appeals has held that a property owner may have a duty to illuminate property at night when it is aware of a condition that may be alleviated by illumination (see Peralta v Henriquez, 100 NY2d 139, 144 [2003]). As such, the Courts must "examine the particular circumstances of each case to determine whether such a duty exists, considering, among other things, '[t]he use to which [the] property is put, and the frequency of that use by others' (id. at 144)."

Here, summary judgment was properly denied due to scant evidence of the purpose of the landing and the frequency of use by others.

Oral Argument For Day One Is Now Available

Oral argument from today's session on the Affordable Care Act is now available.  To access click here. 

Supreme Court Arguments On The Affordable Care Act Start Monday

Beginning Monday, March 26th, the United States Supreme Court will hold six hours of oral argument, spread over three days — until March 28th — on the Affordable Care Act.  The Court has decided to release audio and written transcripts of the arguments.  According to the Court, “[t]he audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m.”  We will try to provide links to them here when they become available.

First Department Holds That For No-Fault Law To Apply Vehicle Must Cause Injury

In Cividanes v. City of New York, the plaintiff alleged that she was injured when she exited a city bus that failed to pull parallel to a curb.  As a consequence, she claimed that she stepped into a hole in the street and suffered minor injuries. The defendants moved for summary judgment arguing that the plaintiff did not suffer a serious injury under the No-Fault Law. While the First Department agreed that the plaintiff did not suffer a serious injury, it held that the No-Fault Law did not apply. According to the Court, the No-Fault Law only applies where a vehicle proximately causes the plaintiff’s injury.  Here, the First Department concluded that it was not the city bus that caused the injury, but a hole in the street that produced the injury. As a result, the No-Fault Law did not apply and the defendants were not entitled to summary judgment.  The Court further held that to the extent the Second Department's recent decision in Manuel v. New York City Tr. Auth. reached a different conclusion, they declined to follow it. 



Second Department Holds That Commencement Of Prior Action Did Not Bar Insanity Toll

In Montepiedra v. Hon, the plaintiff, Filomena Montepiedra, commenced a medical malpractice action, as guardian for Maria Montepiedra, for injuries Maria allegedly sustained as a result of the rupture of a brain aneurysm.  The action, however, was commenced outside of the two and half year statute of limitations for medical malpractice actions, prompting a motion for summary judgment from the defendants. 

While acknowledging that there was sufficient evidence to support the insanity toll to the statute of limitations (CPLR 208), the defendants argued that the toll was inapplicable because a prior action had been commenced in Maria's name. According to the defendants, the prior action demonstrated that Maria was not incapable of protecting her rights.  The trial court granted the defendants' motions, but the Second Department reversed. 

According to the Court "the toll provided in CPLR 208 was not terminated or unavailable due to the commencement of the prior action."  Since the defendants "conceded" that there was sufficient evidence to support the insanity toll, the Court concluded that the defendants failed to meet their burden and the motion should have been denied. 

Punitive Damages Claim Reinstated in Medical Malpractice Action

In Marsh v. Arnot Ogden Med. Ctr., the Third Department recently reinstated claims for punitive damages against a hospital, its nurse and an attending physician.  The plaintiff alleged that the physician failed to properly monitor the plaintiff's decedent after a medication error by the nurse.  More specifically, the plaintiff alleged that the nurse mistakenly injected the decedent with an insulin-reducing medication that had not been prescribed.  In doing so, the nurse allegedly ignored a relative's warning that the decedent was not diabetic and failed to confirm the identity of the patient.  After learning of the error, the physician ordered that the decedent's glucose be monitored every two hours and to call him at home.  After the second test, the physician allegedly said the staff could discontinue the monitoring until morning.  In the morning, however, the decedent's glucose dropped to 15 and he died shortly thereafter from an insulin overdose. 

The trial court granted the defendants' motions to dismiss and for partial summary judgment on the punitive damages claims, but the Third Department reversed and reinstated the claims.  The Court held that the nurse's motion should not have been granted because the nurse allegedly ignored the warning that the decedent was not diabetic.  According to the Court, this dispute of fact raises questions as to whether the nurse's conduct transcends mere carelessness as to be reckless indifference.  

As to the physician, the Court found that if the plaintiff could prove the defendant, despite the known risks, did not come to the hospital and ordered the staff to stop monitoring, it is possible that such conduct could be found grossly inappropriate.

Finally, with respect to the hospital, the Court held that at this stage the punitive damages claim could proceed because the hospital's medical records failed to note the medical error until four months after the decedent's death and they provided no explanation for the delay.  There was also evidence that the nurse had made a prior medication error with a different patient, which according to the Court may raise questions as to whether the hospital had appropriate safety precautions and training in place to identify medication errors.     

“Cleaning” Under Labor Law § 240(1) Is Narrower Than Its Literal Definition Would Indicate

In Dahar v. Holland Ladder & Mfg. Co. (2012 NY Slip Op 01322), the Court of Appeals rejected the argument that the obvious “cleaning” of a “structure” during the manufacture of a product was protected under Labor Law § 240(1). More specifically, the Court rejected the argument that section 240(1) protects every activity that might fit within the literal meaning of the word “cleaning” as “too simple” and noted that such an argument would lead to an expansion of liability that was not supported by the Court’s precedent and not intended by the Legislature.

To provide further context, the Court noted that plaintiff’s formulation, which it rejected, would mean that “Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture – these and many others would become potential Labor Law § 240(1) plaintiffs.” In reviewing the present facts, the Court declined to extend the statute “so far beyond the purposes it was designed to serve.”

The Court also noted that the statute’s “central concern is the dangers that beset workers in the construction industry” even while adding that the Court previously refused to limit the statute to tasks that were part of construction, demolition, or repair projects. The Court cautioned, however, that all except one of its “cleaning” cases involved window cleaning, and even then not all window cleaning were within the statutory term, citing its cases on domestic window cleaners.

New York Law Journal Covers Fourth Department Case Precluding "Maternal Forces of Labor" Defense

Today, the New York Law Journal covers the Fourth Department's recent decision in Muhammad v. Fitzpatrick, holding for the first time that a common defense in brachial plexus injury cases, "maternal forces of labor," was properly precluded because the defendant failed to prove that the theory passed the Frye test.  Below is an excerpt from the Law Journal's article:

"In what may be a national first, an appellate panel in Rochester has rejected as scientifically invalid a standard defense in obstetrical medical malpractice cases.

The Appellate Division, Fourth Department, in Muhammad v. Fitzpatrick, 11-01764, upheld Erie County Acting Supreme Court Justice Timothy J. Walker's preclusion of evidence that a newborn's injuries were caused in the birthing process and not by the actions of the doctor or hospital.

Justice Walker [] held that the 'maternal forces of labor' theory advanced by the defense was based on a 'small number of articles written by a few authors, each of whom based their conclusions in part on the writings of other members of that small group.' He said the theory did not satisfy the New York-adopted federal standard for admissibility—Frye v. United States, 293 F. 1013 (DC 1923)—or the foundation rule set by the state Court of Appeals in Parker v. Mobile Oil Corp., 7 NY3d 434 (2006). The Fourth Department unanimously affirmed."

Court of Appeals Grants Leave in "Loss of Chance" Case

On January 10th, the Court of Appeals granted leave to appeal in Wild v. Catholic Health System.  At issue is the proper jury charge in a "loss of chance" case.  The case also addresses whether the court must order a new trial where multiple theories of liability have been presented to the jury, and there is an error as to one of those theories, but only a general verdict was requested. 

In this case, the plaintiff alleged two categories of negligence.  First, the plaintiff claimed that the defendant, Dr. Martin, was negligent during an intubation procedure causing a perforated esophagus.  Second, the plaintiff claimed that Dr. Martin failed to chart or to follow-up on the perforation, thereby delaying the diagnosis and depriving the decedent of some possibility that the perforation could be repaired and a feeding tube avoided.  The lower court instructed the jury using the loss of chance instruction in PJI 2:150.  The Fourth Department held that while that instruction was correct for the first category of claims (referred to as omission theories), it was error to have charged the jury with that instruction for the second category of negligence claims (referred to as commission theories).  For those theories the proper charge is the standard negligence charge found in PJI 2:70.  

The Fourth Department, however, went on to find that the charge was harmless error.  The Court held that while generally reversal is required when a general verdict has been used, and there is an error affecting one of the many theories of liability, in this case reversal was not warranted because the defendant did not object to the general verdict.

If the Court of Appeals takes the case on full briefing, oral argument would not be anticipated until later this year.