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.