Wednesday, December 18, 2013

First Department Finds That Falling Material That Is About To Be Secured Is A Labor Law Violation

In this labor law action, plaintiff Matthews was injured when a metal grate fell on him during his work in an elevator shaft within a building owned by the defendant. The defendant hired Paravini McGovern LLC as the construction manager on the site and subcontracted to plaintiff’s employer to install the elevators and to GC Ironworks (GCI) to install the iron-grate platforms in the elevator shaft. 

The Supreme Court denied the plaintiff partial summary judgment on his Labor Law section 240(1) claim and granted defendants’ motion for summary judgment dismissing the Labor Law section 200 and common-law negligence claims against Pavarini. The Appellate Division, First Department unanimously reversed, granting partial summary judgment to the plaintiff on the Labor Law section 240(1) claim. Despite the fact that GCI was setting up the grates in preparation to weld them, and the grate that injured the plaintiff fell because it had not yet been welded in place, the First Department held that “the grate was part of the work of the construction project in which plaintiff was engaged and was required to be secured “for the purposes of the undertaking.” In fact, the plaintiffs did not need to even show that the falling object, in this case the grate, was in the process of being hoisted or secured in order to prevail under 240(1). Furthermore, the First Department determined the Labor Law section 200 and common law negligence claims were improperly disposed on summary judgment when evidence suggested that Pavarini exercised control over both GCI as well as plaintiff’s employer’s work because they were working in the same elevator shaft in which the alleged unsafe condition arose.

Second Department Declares Police Car Is An "Automobile"

Matter of State Farm Mut. Auto. Ins. Co. v. Fitzgerald:

The issue in this case was whether a police vehicle qualified as a “motor vehicle” in an uninsured motorist endorsement. Officer Fitzgerald was a passenger in a police car when he was injured in a two-car accident. The driver of the other car was underinsured. Fitzgerald sought to recover from his fellow officer’s insurance policy. State Farm, the insurer of that policy, contended the police vehicle was not a “motor vehicle” for purposes of the uninsured/underinsured motorist endorsement. The Supreme Court agreed with State Farm, finding that Officer Fitzgerald should be denied coverage as police vehicles were specifically excluded under the definition of “vehicle” in Vehicle and Traffic Law (VTL) section 388(2). In so holding, the Supreme Court relied on State Farm v. Amato, where the Court of Appeals decided New York City had no statutory obligation to insure police vehicles.

The Second Department reversed, finding that the appropriate definition of “motor vehicle” is located in VTL section 125, as it is a more general provision that defines terms for the entire VTL. The police vehicle here fell within this definition as it is a “vehicle operated or driven upon a public highway which is propelled by any power other than muscular power” and as it is not specifically excluded. The Court distinguished the Amato case relied on by the Supreme Court by explaining that Amato dealt primarily with the City’s obligation to provide insurance coverage to police officers, while this deals with whether a police officer has coverage under a private insurance plan of the driver. As the legislature has continuously recognized the importance of innocent victims of accidents receiving just compensation, it would go against public policy to decide otherwise.

Friday, December 6, 2013

Federal Rules Eliminate a Required Section in Appellate Briefs

As of December 1, 2013, the Federal Rules of Appellate Procedure ("FRAP") no longer require separate sections in an appellate brief for the "Statement of the Case" and the "Statement of Facts."  Going forward, FRAP Rule 28 now requires only a single section "setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."  This combined section is to be labeled as the "Statement of the Case."

Wednesday, December 4, 2013

Missing Witness Charge Allowed Where Defense Does Not Call Witness

In Devito v. Feliciano, the Court of Appeals has clarified what is considered cumulative testimony when deciding to give a missing witness charge. The Court of Appeals held that testimony is cumulative "only when it is cumulative of testimony or other evidence favoring the party controlling the witness." Thus, the Court rejected the trial court's reasoning that testimony would be "cumulative of the opposing witness's testimony."  The Court then granted a new trial because it was unable to conclude that the error was harmless.

Monday, December 2, 2013

Third Department Affirms $2 Million Erb's Palsy Award

In Skelly-Hand v. Lizardi, the Third Department affirmed a $2 million award for pain and suffering for an Erb’s palsy injury. In affirming the order, the Third Department criticized the lack of details in the cases the defendants cited, noting “Many of the decisions involving brachial plexus birth injuries upon which defendant relies in arguing for a reduction of the award are unhelpful as they fail to indicate the severity of the underlying injury.”  The court also pointed out that some of the cases the defendant cited “describe the injury as mild,” whereas the court described the injury in this case as "severe.'" 

Particularizing the injury, the Court stated that the child, age 16 at the time of trial: (1) has severely limited use of her arms and shoulders; (2) cannot perform tasks requiring the use of her two hands without extreme difficulty; (3) underwent extensive and often painful or uncomfortable medical treatments; (4) had five surgeries; (5) required lengthy periods of wearing braces, splints or casts on her injured arm; (6) wore a back brace to treat scoliosis syringomyelia, a condition causally related to her brachial plexus injury; (7) suffered social adjustment and self-confidence issues due to her injuries; (8) has diminished strength, balance and coordination; and (9) needs assistance with basic activities of daily living such as bathing, grooming, and dressing.