Court of Appeals Reiterates That Insurance Law Applies Only For Bodily Injury Claims Under Policies Issued In New York

In KeySpan Gas EastCorp. v. Munich Reinsurance America, Inc., the plaintiff owned and operated manufactured gas plants (MGP) and brought suit against the defendant-insurer claiming that the insurance company had a duty to indemnify and defend environmental damages claims at two of the plaintiff’s MGP sites.  The defendant issued excess liability insurance policies to the plaintiff and required prompt notice of a potential indemnity claim.  Before any regulatory agencies had commenced a lawsuit or formal investigation, the plaintiff contacted the defendant about environmental concerns at the two MGP sites.  The defendant-insurer replied in two parts: first, it reserved all rights and coverage defenses, including that of late notice, and second, the defendant requested additional information about the MGPs.  Shortly thereafter, the plaintiff sent supplemental disclosures to the defendant, to which the defendant never responded.  The plaintiff commenced this suit after the DEC conducted a formal investigation.  The defendant asserted the affirmative defense of late notice warranting denial of coverage. 

The Supreme Court found that the defendant had no duty to indemnify or defend the claim on one of the properties, but held that an issue of fact existed regarding the reasonableness of the delay for the second property.  On appeal, the First Department held that the plaintiff failed to give timely notice under its insurance policy; yet, did not grant summary judgment because an issue of fact existed as to whether the defendant waived its right to disclaim coverage based on late notice.  While the First Department did not specifically cite to Insurance Law 3420(d)(2), it used its language to find that the defendant-insurer breached its duty.  The First Department essentially recited 3420(d)(2) in stating that the defendant had an “obligation” to disclaim coverage based on late notice “as soon as reasonably possible after first learning of the … grounds for disclaimer.”  The Court of Appeals found this to be in error, holding that where the underlying claim does not arise out of an accident involving bodily injury or death, 3420(d)(2) is inapplicable.  The Court clarified that 3420(d)(2) applies only in insurance cases involving bodily injury or death claims arising out of a New York accident and brought under a New York liability policy and that any Appellate Division case holding that 3420(d)(2) applies to claims not based on bodily injuries or death was wrongly decided and should not be followed.   As a result, the case was reversed and remanded.  The Appellate Division is to consider the defendant’s delay in giving notice of disclaimer under common-law waiver and estoppel principles

Second Department Holds That Single-Family Homeowner, Who Provided Plaintiff's Equipment, Not Liable Under Labor Law

In DiMaggio v. Cataletto, the plaintiff's ladder slipped and fell while he was power washing the roof of a single family residence owned by the defendant.  The defendant established that the "homeowner's exemption" to Labor Law 240(1) applied, as she did not supervise or control the plaintiff's work.  The Court noted that the defendant did not lose the exemption simply because she provided the plaintiff with the ladder, bleach and a hose.  Likewise, the plaintiff's section 200 claim was dismissed on the basis that the defendant did not supervise or control the plaintiff's work, and did not create or have knowledge of any alleged condition that caused his injuries.

First Department Finds That Notice of Fire Was Not Sufficient To Apprise Insurer That Bodily Injury Claim Was Being Made

In Hermitage Ins. Co. v. Evans floor Specialist, Inc., two Evans' employees were injured in a fire on June 27, 2008, while they were engaged in refinishing the floor of an apartment in the Bronx.  Evans promptly provided notice to its insurer, Hermitage that a fire had occurred, but in a box on the notice of occurrence form regarding the name and address of injured persons or property damage, Evans stated "unknown, sedwick ave bronx."  A year after the incident, the two employees commenced an action against Evans. Hermitage received notice of the bodily injury claim on July 2, 2009.  After conducting an investigation, Hermitage disclaimed coverage on the basis of an "employee exclusion" in its policy and commenced an action against Evans and the injured employees for a declaration that it had no duty to defend or indemnify Evans against the employees' claim.  

The First Department upheld Hermitage's disclaimer on the basis that the notice of occurrence was not sufficient to apprise Hermitage that a claim for bodily injury was being made.  In so holding, the First Department found that Hermitage did not owe an absolute duty to investigate whether anyone was injured in the fire, stating that its earlier decision in GPH Partners, LLC v. American Home Assur. Co. (87 AD3d 843 [1st Dept. 2011]), was "inapposite." Instead, the Court reiterated that "[t]he rule is applied where the claim form provides the insurer with enough information about the nature of the claim to prompt an investigation to determine whether there are grounds to claim an exclusion."    

Leave Granted to Determine Whether Catheter Was a Foreign Object or Fixation Device

The Court of Appeals has granted leave to appeal in Walton v. Strong Memorial Hospital, a case involving the applicability of the foreign object exception to the medical malpractice statute of limitations.  The plaintiff, now 25, discovered that part of a polyvinyl catheter remained in his heart after heart surgery he had when he was three years old. That polyvinyl catheter had been used to monitor atrial pressure during and after the heart surgery. Three days following that surgery, however, doctors performed a second procedure to remove the polyvinyl catheter.  A portion of the catheter broke off and was not retrieved. 

It is undisputed that the plaintiff’s action was beyond the two year, six month statute of limitations for medical malpractice actions generally, and beyond the 10-year cap for tolling an infant’s malpractice claim. Thus, the plaintiff’s action would be timely only if it satisfied the foreign objects exception to the statute of limitations. Under the foreign objects exception, the plaintiff may commence an action “within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.” Notably, the tolling provision applies only to foreign objects and not to fixation devices or other listed exclusions.

The Appellate Division, Fourth Department, concluded that the polyvinyl catheter was a “fixation device” because it was “intentionally placed inside plaintiff’s body to monitor atrial pressure for a few days after the surgery.”

Leave Granted in Labor Law 240(1) Billboard Fall Claim

The Court of Appeals just granted leave to appeal in Saint v. Syracuse Supply Co., where the plaintiff was injured in a fall on an elevated billboard (he fell from one level of the billboard to a catwalk, but not completely off of the billboard). The Fourth Department dismissed the plaintiff's Labor Law § 240(1) claim, concluding that he was in the process of applying a new advertisement to the face of a billboard, and that his work was essentially cosmetic, which would not constitute a Labor Law protected activity. The plaintiff unsuccessfully asked the Fourth Department to grant leave, but the Court of Appeals has now agreed to hear the matter.

The plaintiff argued to the Court of Appeals that his job entailed changing the “structure” of the billboard by adding metal and wood extensions to the board as part of a project to attach a new vinyl advertisement. He further argued that, in light of the fact that his work constituted an “alteration” of the billboard, the Fourth Department decision appeared to impermissibly apply a ‘per se’ exclusion of billboard changing from the Labor Law. The defendant responded that the Fourth Department correctly applied the Court of Appeals’ prior precedent in Munoz v. DJZ Realty, LLC., in which the Court of Appeals concluded that pressing a pre-glued sheet to a billboard face, even to cover a billboard that was that was 12 feet by 24 feet in size, did not constitute a Labor Law protected activity. Here, the defendant alleged that application of the billboard face included the so-called “extension,” and that there was no “alteration” of the structure itself.

The New York State Trial Lawyers Association has already obtained status as amicus on the appeal.

Security Guard's Acts Found to Be Outside The Scope of His Employment

In Ali v. State of New York, the claimant was standing in the waiting area of the New York State Workers' Compensation Board when he overheard a nearby security guard talking on a cell phone.  The security guard apparently learned of his grandmother's death and in reaction to the news he punched a wooden bench, causing it to strike and injure the claimant for which the claimant sued the State.  After trial, the Court of Claims granted the State's application to dismiss the claim and on appeal by the claimant the Second Department affirmed.  The Court found that the security guard was acting solely for personal motives unrelated to the State's business, and therefore the State could not be held vicariously liable for the security guard's actions.  The Court further found that the claimant failed to demonstrate that the guard's conduct was reasonably foreseeable to the State.   

First Department Holds Plaintiff's Use of A-frame Ladder In Closed Position Not Sole Proximate Cause

In Fernandez v. 213 E. 63rd St. LLC, the First Department affirmed partial summary judgment on liability in favor of plaintiff pursuant to Labor Law 240(1), where plaintiff testified that the A-frame ladder he was using "kicked out," causing him to fall.  The Court further found that, even if the defendants had presented sufficient evidence to create a question of fact as to whether the plaintiff was using the ladder in a closed position, such evidence was not sufficient to defeat the plaintiff's motion.  More specifically, the Court found that the defendants had failed to demonstrate that the plaintiff was instructed to not use the ladder in that manner (which is generally only relevant to a "recalcitrant worker" defense).  

Court of Appeals Finds Questions of Fact Exist As to Possible "Special Relationship" Between Insurance Broker and Its Client

In Voss v. Netherlands Ins. Co., the plaintiff sued her insurance broker alleging they negligently secured inadequate levels of coverage for her businesses.

Plaintiff Voss met with defendant CHI, who calculated $75,000 per incident would be sufficient coverage for her businesses, and that the amount would be reassessed and checked each year in the event it became necessary to increase the coverage.  In 2006, plaintiff purchased a new building for her businesses that contained more space that would house two additional ventures.  Defendant renewed the $75,000 policy, even though it included more businesses and more square footage.  Roof leaks occurred in 2007 that put a stop to business operations and required contract work.  A month later the roof failed, causing extensive water damage and all of the businesses to temporarily shut down.  While these incidents were treated separately, payments were delayed and never fully paid.  Meanwhile in also in 2007, CHI proposed reducing the plaintiff's insurance from $75,000 to $30,000.  Plaintiff questioned this and the CHI representative agreed to “take a look at it.”  However, the plaintiff did not follow up and the $30,000 coverage made it into the final plan.  The roof then failed a third time in 2008, causing further damage and interruption of plaintiff’s businesses. 

CHI moved for summary judgment, which was granted by the Supreme Court, who agreed that no special relationship existed, that if such a relationship existed then any breach was not a proximate cause of the plaintiffs injuries and that a negligence claim against CHI failed because plaintiff admitted that she was aware of what policies she had throughout the process.  The Appellate Division affirmed, although disagreeing with the Supreme Court on the special relationship issue.

The Court of Appeals granted leave and reversed.  The Court explained that looking at the facts in the light most favorable to the nonmoving party, the plaintiff,  there was a significant triable issue of fact in regards to the special relationship between the parties.  This was because “there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent.”  Since the plaintiff relied on the insurance broker’s assurances that the coverage was enough and that it would be continually reviewed to determine if it was still adequate, it is possible a special relationship, although not yet proven, could be proven at trial.  

As for the other grounds that the Appellate Division found satisfactory for dismissal, the Court of Appeals found it “wholly irrelevant whether plaintiffs were aware of the limits that were actually procured” and stated that issues like proximate cause and foreseeability “should generally be resolved by the fact finder.”  As such, summary judgment was denied.

Judge Smith dissented, agreeing with the majority that the issue was about special relationships, but finding that no such relationship existed.  He found that despite the fact that the plaintiff solicited advice when she moved her business and renewed her coverage, plaintiff never actually received advice from the defendant.  Judge Smith emphasized that while the defendant did not have great client service, this was not a reason to classify the plaintiffs interaction with them as a special relationship.  Furthermore, he discussed policy reasons against blaming insurance agents, including the fact that brokers earn very "modest" commissions and should not be made to be "back-up insurers" for their clients' losses.

Insurer Rebuffed In Its Attempt to Latch Subrogation Claim Onto Plaintiff's Tort Action

In Peterson v. New York State Elec. & Gas Corp., the plaintiffs were injured when their home exploded due to a natural gas leak that also destroyed a neighboring mechanic's shop, Pete's Garage. Erie Insurance Company, the insurer for Pete's Garage, paid its insured approximately $50,000 for damages sustained in the explosion.  The plaintiffs sued NYSEG, but Erie failed to intervene in the action or to commence its own action against NYSEG. Instead, Erie moved to sever its subrogation claim from the plaintiffs' personal injury claim.  

In affirming the denial of the motion, the Third Department found that Erie had two options: (1) commence its own action against NYSEG or (2) move to intervene in an action between Pete's Garage and NYSEG. Here, however, the action was between the Petersons, not Pete's Garage, and NYSEG. Moreover, the plaintiffs' complaint failed to include any allegations regarding the damages to Pete's Garage and it was not until 5 years after service of the complaint that the plaintiffs amended their bill of particulars to mention the sums paid by Erie for the Pete's Garage claim.  The Court found that the amendment was ineffective to assert Erie's subrogation claim, in that an amendment to a bill of particulars cannot be used to allege a new theory of liability not originally asserted in the complaint.      

Fall From "Bobcat" An Elevation-Related Risk, But Questions Exist As to Whether Worker Was Engaged In A Protected Activity

In Penaranda v. 4933 Realty, LLC, the plaintiff was helping to clear plywood from a nearby construction project.  He was positioned on a "bobcat" as a counterweight to the plywood on the forks of the bobcat.  He was injured when the rear wheels of the bobcat suddenly lifted, throwing him to the ground.  The First Department reinstated the plaintiff's Labor Law 240(1) claim, finding that his fall from the bobcat was the result of an elevation related risk.  The Court declined to grant judgment in plaintiff's favor, however, finding that a question of fact existed as to whether the plaintiff's work was "necessary and incidental" to or "an integral part" of the construction work.  

Worker Injured After Working Hours Was Not Entitled to Labor Law's Protections

In Feinberg v. Sanz, the plaintiff's decedent was employed as a helper on a building restoration project. After work hours, he apparently fell from a roof. Police and the managing agent noticed empty beer bottles on the roof when they arrived and an autopsy found the decedent’s BAC at .20.  Apparently, the overwhelming majority of testimony indicated that the site had been shut down for several hours. The only evidence to the contrary was hearsay from the decedent’s widow. The Appellate Division affirmed the dismissal of plaintiff's Labor Law 240 and 241(6) claims because the decedent was not engaging in a Labor Law activity by being on the site after it had been shut down for the night.  As to section 200, the Appellate Division held that the decedent was the sole-proximate cause of his accident, not because he was intoxicated, but because the absence of a safety device could not have been a proximate cause of the accident since the accident happened after work hours.  

The holding as to plaintiff's section 200 claim raises the question, had the accident occurred during work hours, would the decedent's intoxication nevertheless have been the sole proximate cause of his accident?  

Questions of Fact as to Whether Injured Worker "Unreasonably Chose" to Use a Particular Ladder

In Morato-Rodriguez v. Riva Constr. Group, Inc., the plaintiff testified that he used the only ladder available on the floor, which was located near his foreman's toolbox.  As he was standing on the ladder it wobbled and he fell, causing him injury.  The foreman attested that he instructed plaintiff not to use that particular ladder, that there were two "sturdy" ladders available on the floor and that he told plaintiff to sweep the floor until a safe ladder was available.  On these facts, the First Department reversed partial summary judgment on liability in favor of the plaintiff pursuant to Labor Law 240(1) and denied the plaintiff's motion, finding that questions of fact existed as to whether the plaintiff "unreasonably chose" not to use a different ladder, thereby causing his injury. 

Insurer Retained Equitable Defense to Rescission of Another Insurer's Policy Despite Insured's Default

In Colony Ins. Co. v. Danica Group, LLC, Colony commenced an action against Danica to rescind Colony's policy based upon material misrepresentations made by Danica during the application process.  Danica defaulted in appearing and Zurich Insurance, a defendant-intervenor, moved to renew Danica's motion to vacate the default.  The Supreme Court upheld the default and Zurich appealed.

On appeal, the First Department affirmed the default, but stated that Zurich nevertheless retained a "potential equitable defense against [Colony's] action to rescind the insurance policies based on [Danica's] misrepresentations, which defense can be raised, along with other equitable defenses against rescission, in the proceedings that are continuing before the motion court."     

Second Department Finds Question of Fact As to Sole Proximate Cause Where Plaintiff Chose Ladder

In Cioffi v. Target Corp., the plaintiff was working from a scissor lift in a stock room when he completed his work for the day.  After removing the scissor lift from the stock room, he realized that he had left his tool belt at the elevated work site.  Instead of moving the scissor lift back to the location, or obtaining a ladder supplied to him by his employer that was located in a nearby storage container, the plaintiff elected to use a ladder available inside the stock room.  He was injured when the ladder "kicked out" or buckled underneath him and he fell.

The Second Department reversed summary judgment in favor of the defendants, finding that it could not be demonstrated, as a matter of law, that the plaintiff was negligent in choosing to use the ladder available inside the stock room.  The Court further found that it had not been demonstrated that the plaintiff was recalcitrant, in that the defendants failed to establish that the plaintiff had been instructed to use only his employer's ladders.  The Court declined to grant summary judgment to the plaintiff, however, finding that a question of fact existed as to whether his decision to use the ladder was the sole proximate cause of his accident.   

Second Department Dismisses Labor Law §§ 240(1) and 241(6) Claims of Wallpapering Plaintiffs

In Simon v. Granite Bldg. 2, LLC, the plaintiff and his decedent wife arrived at a newly constructed office building to hang wallpaper.  When they were unable to enter the front of the building, the decedent drove the van they were in through a fence into an as yet uncompleted parking structure adjacent to the building.  Once on the second floor of the parking structure, the decedent attempted to stop the van but it slid on ice, broke through a cable guard rail and fell 32 feet.  The plaintiff was able to exit the van before it fell, but the decedent fell to her death.

In dismissing the plaintiff's Labor Law §§ 240(1) and 241(6) claims, the Second Department found that wallpapering is not an enumerated activity under the Labor Law and that the work to be performed was not part of the larger construction construction project.  While the Court acknowledged that it should not "isolate the moment of injury," it concluded that, "under the circumstances presented, the accident occurred before the plaintiff and his decedent had begun any work that conceivably could have been covered under these sections of the Labor Law" (citing Beehner v. Eckerd Corp.).

Second Department Holds That Condo "Alteration Agreement" Is Not Subject to GOL

In Guryev v. Tomchinsky, the condominium defendants sought indemnification from the owner of an individual condominium unit pursuant to an "Alteration Agreement" that was entered into between the parties for renovation work in the unit.  The Second Department found that the indemnification provision was triggered based upon the allegations of a worker who was injured while performing the subject renovation work, and that the condominium defendants had demonstrated that they were free from negligence.  The Court held that the indemnification provision, even if broadly worded, was nevertheless enforceable because: (1) General Obligations Law 5-322.1, which applies to agreements collateral to a lease, was inapplicable to the condominium unit; (2) the clause did not require the unit owner to indemnify the defendants for their own negligence and (3) since the condominium defendants demonstrated that they were free from fault, the agreement, "as applied, does not run afoul of the proscriptions of General Obligations Law 5-322.1."

We previously blogged about certain issues in the Guryev case after an earlier Court of Appeals' decision and when the Court of Appeals granted leave in the matter.

First Department Holds That Successful Party On Motion Is Not Entitled To Renewal

In Fernandez v. Moskowitz, the defendants were denied summary judgment and appealed. The First Department reversed, finding that plaintiff failed to establish his alleged injury. More specifically, the Court found that plaintiff's experts had failed to refute the normal results of the MRIs relied on by defendants' experts or explain plaintiff's early normal development.

Thereafter, plaintiff moved to renew on the basis that the First Department's finding was a "new fact" as considered in CPLR 2221(e)(2), and that he should be allowed to renew the summary judgment motion to proffer the results of a new diagnostic test and expert's affidavit that he argued would have persuaded the First Department to affirm the denial of summary judgment to the defendants (CPLR 2221[e][2]).

In rejecting the plaintiff's argument, the First Department found that, because the motion court had denied defendants' summary judgment motion, plaintiff as the prevailing party was never entitled to seek renewal of that motion (see e.g. Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [where the successful party obtained the full relief sought, it has no ground for appeal [or renewal], even if that party disagrees with the particular findings, rationale or the opinion supporting the order below in its favor]). The Court further observed that, because judgment dismissing the complaint had been entered, plaintiff's recourse was to seek to vacate the Court's decision and judgment based on the existence of the new diagnostic test and expert's affidavit (CPLR 5015[a][2]).

First Department Holds Chiropractic Departure Subject to Three-Year, Not Two-Year-Six-Month, Statute of Limitations

In Perez v. Fitzgerald, the First Department held that an action was timely commenced against a chiropractor because the three-year statute of limitations applied to his treatment of the plaintiff.  Whether the shortened medical malpractice statute of limitations applied was an issue the trial court delayed until post-verdict briefing.  A jury then found that the chiropractor departed by failing to refer the plaintiff to a second MRI.  On post-verdict briefing, the trial court dismissed the plaintiff's complaint.  

The First Department has now reversed the trial court, holding that the defendant chiropractor was not entitled to the shortened 2.5-year statute of limitations under CPLR 214-a.  The First Department first rejected the view that the chiropractor's treatment was "medical" within the meaning of CPLR 214-a.  Then, the First Department concluded that the work was not prescribed by a medical doctor and therefore was not "an integral part of the process of rendering medical treatment to a patient or substantially related to any medical treatment provided by a physician."  In the First Department's view, the defendant could not meet the standard set forth in Bleiler v Bodnar (65 N.Y.2d 65 [1985]), and thus would be held to the longer three-year statute of limitations.

Careful Consideration Must Always Be Given to When A Cross Appeal May Be Necessary

In Agosto v. City of New Rochelle, the defendants moved to dismiss the plaintiffs' complaint on the basis that plaintiff had assumed the risk of injury by participating in a game of two-hand touch football.  The plaintiff moved to dismiss the affirmative defense of "assumption of risk".  The defendants' motion was denied and so was plaintiffs, but only defendants appealed.  The Second Department affirmed the denial of the defendants' motion, but declined to consider the plaintiffs' argument that their motion should have been granted.  The Court held: "The plaintiffs' contention that the Supreme Court improperly denied their motion to strike the affirmative defense of assumption of risk from the defendants' respective answers is not properly before this Court since the plaintiffs failed to appeal or cross appeal from the order (see Servais v Silk Nail Corp., 96 AD3d 546; Young v Abbott & Mills, Inc., 82 AD3d 1218; Matter of Coscette v Town of Wallkill, 18 AD3d 657)."

Second Department Reminds Practitioners Of The Infrequently Discussed Third Standard Under Which A Contractor Can Be Held Liable In Negligence

We often Blog about cases that fall into two categories for which an Owner or Contractor at a construction site can be held liable under section 200 of the Labor Law or common-law negligence.  If the accident arose out of the means and methods of the plaintiff's work, an Owner or Contractor can be held liable if it supervised the work.  If the accident arose out of a dangerous condition on the property, an Owner or Contractor can be held liable where it had notice of the dangerous condition and the authority to correct that condition.

In Van Nostrand v. Race & Rally Constr. Co., Inc., however, the Second Department reminds practitioners that an Owner or Contractor can also be held liable to the plaintiff in common-law negligence where the Owner or Contractor "created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries."  Here, the plaintiff was assisting in the delivery of air conditioning equipment from a truck when the equipment that was being hoisted by a crane became stuck under a side rail.  The crane operator instructed the plaintiff to place a pallet jack under the equipment while the operator kept tension with the crane.  The driver of the truck then used a pry bar to maneuver the side rail.  The plaintiff was injured when the the pallet and jack shifted toward him and knocked him off the truck.

The Second Department held that the plaintiff's section 200 claim should have been dismissed against the crane operator's employer, MCN because it did not supervise or control the plaintiff's work.  The Court nevertheless held that MCN's motion to dismiss the plaintiff's common-law negligence claim was properly denied.  The Court found that a contractor could be held liable where the work it performed created the condition that caused the plaintiff's injury, even in the absence of supervision or control over the plaintiff or his work area.  Here, the Court found that a question of fact existed as to whether the crane operator's actions created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries. 

Morris v. Pavarini Constr.: The Court of Appeals’ Final Decision

In Morris v. Pavarini Constr., it was alleged by plaintiff that he was injured by a “form” object within the meaning of Industrial Code 23-2.2[a], that had not been properly braced.  Although the object that fell was one panel of what would make up a two panel “form,” plaintiff argued that it nevertheless qualified as a “form” under the Code.  The Appellate Division initially dismissed the plaintiff’s case in 2006, with the reasoning that the Industrial Code did not apply since the form was “in the process of being created.”

Thereafter, plaintiff appealed to the Court of Appeals.  The Court declined to render an interpretation of the Code, as it believed that there was not sufficient information in the record to do so.  As such, the matter was remitted in order to develop a more appropriate record in regards to whether “the words of the regulation can sensibly be applied to anything but completed forms.”  After the Court’s decision, both sides presented expert witnesses and the trial court subsequently granted the defendant’s motion for summary judgment, dismissing the action. 

On appeal, the Appellate division reversed, and this time granted the plaintiff summary judgment in a 4-1 decision.  Their reasoning was based on the fact that “the expert testimony showed that the regulation could apply to forms as they were being constructed, and that a back form must be braced to maintain its position.”  Defendants appealed to the Court of Appeals, who then had a more complete record in which to render a decision in this case.

Defendants argued in the Court of Appeals that the expert testimony established that the requirement that forms “shall be properly braced or tied together to maintain position and shape” could not logically apply to one side of a form, as is present in this case, since there is no ostensible shape to be maintained.  However, the Court of Appeals agreed with the Appellate Division that the Industrial Code can, in fact, be applied “to a single form wall for purposes of ensuring worker safety and to maintain the form wall’s position and shape.”  This was due largely to the expert testimony, including when the plaintiffs engineer expert testified that a form wall needs to be braced and that “both walls did not need to be in place to install a brace.”  Furthermore, the Court of Appeals rejected the argument that since the Code mentioned the phrase “during the placing of concrete,” it could only refer to completed forms when concrete was being poured stating that such an interpretation “would result in diminished protections for workers during the assembly of forms” which would “run[s] counter to its text and undermine[s] the legislative intent to ensure worker safety.” As such, the Court of Appeals upheld the Appellate Division’s grant of summary judgment to the plaintiff. 

Judge Pigott dissented, explaining that plaintiff was struck with a form "wall," which is not, in fact, a "form" under the Industrial Code and further, that plaintiff "was not victim of a type of accident this section was designed to prevent."

Court of Appeals Holds That A Coupling Is Not A Labor Law Safety Device

In Fabrizi v. 1095Ave/ of the Arms LLC, plaintiff was injured when a conduit pipe fell on his hand.  Plaintiff was an electrician relocating a “pencil box”, which provided access to telecommunication wires on each floor.  While moving a metal support that required him to drill holes in the wall and leaving the top conduit dangling from compression coupling, the top conduit fell, striking the plaintiff.  Plaintiff was granted partial summary judgment, reasoning that as the conduit was attached to the ceiling, it was not properly secured to protect plaintiff.

On appeal, the Appellate division modified the order to deny plaintiff summary judgment, as the plaintiff failed to illustrate that the lack of a protective device was the cause of the incident.  On appeal to the Court of Appeals, the High Court determined that the Appellate Division should have granted summary judgment to the defendants, “because they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device.”  This was because the compression coupling kept the “pencil box” together but was not designed for safety.  The Court of Appeals did not address the issue of foreseeability, which was a main topic of the Appellate Division’s decision.

Chief Judge Lippman dissented, urging that plaintiff established an entitlement to summary judgment since “his gravity-related injury was proximately caused by the defendants’ failure to provide an adequate safety device.”  He went further and emphasized that a tool capable of stabilizing the conduit pipe “would be precisely the sort of device contemplated by section 240(1).”  In addition, the dissent rejected the notion that plaintiff caused the accident as it occurred after he dismantled the “pencil box” since this was “standard procedure in the trade.”  However, the majority asserted that “section 240(1) does not automatically apply simply because an object fell and injured a worker.”

First Department Finds That LL 240(1) Applies Where Falling Object Struck Another Object Being Carried By Plaintiff, Resulting In Plaintiff's Injury

In Humphrey v. Park View Fifth Ave. Assoc. LLC, the plaintiff was carrying an 18-foot long stringer on his shoulder when a beam fell from above him and struck the stringer. The contact between the two objects caused plaintiff to fall to the ground and be injured. The Court found that, regardless of how high the beam was above plaintiff when it fell, the height differential was not de minimis, given the amount of force the aluminum beam was able to generate during its descent.  

First Department Finds Contractor Had No Notice or Authority to Control Dangerous Condition That Caused Plaintiff's Injury

In Stier v. One Bryant Park LLC, the plaintiff tripped over a piece of unsecured masonite outside of an elevator.  In dismissing the plaintiff's section 200 and common law negligence claims against the Contractor, Tishman, the Court observed that Tishman's awareness that the masonite needed "sprucing up" was insufficient to demonstrate that Tishman had actual notice that the masonite was not secured.  In addition, Tishman did not have the authority to correct the unsafe condition, in that the area where the accident occurred had been turned over to another contractor. 

Appellate Practice and Preservation Tips

Second Department Dismisses Appeal on Appendix Method
In Aguiar-Consolo v. City of New York, the Second Department dismissed an appeal from the denial of a CPLR 4404(a) motion to set aside a jury verdict, in that the appeal was perfected on the Appendix method and the appellants failed to include the full trial transcript.  As such, the Court found that the Appendix was inadequate to enable the Court to render an informed decision on the merits.

Second Department Finds Defendant Waived Right to a Mistrial
In Sweet v. Rios, the trial judge invited either of the parties to move for a mistrial to "clear up" certain matters, the defendant declined.  The Second Department therefore found on appeal that the defendants had waived the potential remedy of a mistrial, and could not argue on appeal that a mistrial should have been declared.

Second Department Finds Triable Issues Under Labor Law § 240(1) Where Plaintiff Fell From a Ladder

In Singh v.City of New York, the Second Department found that the mere fact that the injured plaintiff fell from a ladder did not, in and of itself, establish that proper protection was not provided.  Instead, triable issues of fact remained as to whether the ladder was inadequately secured and whether the injured plaintiff's actions were the sole proximate cause of the accident.

Courts Continue to Apply Labor Law "Cleaning" Factors Test

In Collymore v. 1895 WWA, LLC, the Second Department found that the defendant had failed to establish its prima facie entitlement to summary judgment and dismissal of the plaintiff's Labor Law 240(1) claim. The plaintiff was vacuuming an HVAC duct in his employment with Cunningham Duct Cleaning Company when he fell from a ladder. The defendant argued that the plaintiff was not engaged in "cleaning" within the meaning of the Labor Law. Applying the factors enunciated by the Court of Appeals in Soto v. J. Crew, the Second Department found that the defendant had failed to establish that the task was "routine, in the sense that it [was] the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises."

Governor Cuomo Appoints Four Appellate Judges

New York Governor Andrew Cuomo has appointed four justices to fill vacancies at the Appellate Division.  Justice Barbara R. Kapnick has been appointed to the First Department.  Justices Colleen Duffy, Hector D. LaSalle, and Joseph J. Maltese have been appointed to the Second Department.

These appointments take effect immediately.  With these appointments, two vacancies remain on the Second Department bench and two remain on the First Department bench.