Monday, April 30, 2012

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.      

Wednesday, April 18, 2012

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.

Tuesday, April 17, 2012

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.

Monday, April 9, 2012

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."