Wednesday, May 30, 2012

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.

Thursday, May 17, 2012

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]).

Friday, May 11, 2012

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.