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.