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.”