Second Department Denies Summary Judgment to Plaintiff On His Labor Law § 241(6) Claim Where Issues of Fact Remain as to Plaintiff's Comparative Fault

In Cardenas v. 111-127 Cabrini Apartments Corp., the plaintiff was injured while painting when he fell from a ladder that had a defective supporting bracket that could become unlocked without warning. He commenced an action against the defendant alleging, in part, violations of Labor Law §§240(1) and 241(6). On the plaintiff's motion for partial summary judgment on liability, the lower court granted the plaintiff summary judgment pursuant to both Labor Law §§240(1) and 241(6). On appeal, the Second Department modified only insofar as the Court denied the plaintiff summary judgment on his section 241(6) claim - the Court affirmed summary judgment on the section 240(1) claim. The Court found that, although the Industrial Code provision relied on by the plaintiff had been violated, issues of fact nevertheless remained as to the plaintiff's comparative negligence. (see our recent blog post regarding comparative negligence and its affect on summary judgment here) 

First Department Finds Sole Proximate Cause In Labor Law Action Where Plaintiff Chose the Method of Securing Equipment That Fell and Contributed to His Injury

In Guido v. DASNY, plaintiff parked his truck on top of debris outside of a construction site where his employer was performing work, causing his truck to "tilt." As he was loading his employer's ladders into the truck, they slid causing him to fall to the ground. In dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims, the First Department found that the "tilt" was de minimis, and thus not an elevation-related hazard. The Court further found that the Industrial Code provision relied on by plaintiff, 12 NYCRR §23-1.7(e), regarding clearing debris did not apply because the area where he was injured was not a passageway or working area. And, plaintiff was nonetheless the sole proximate cause of his accident. Plaintiff chose the method for securing the ladders to the truck. After securing one ladder with a bungee cord, plaintiff chose to remove the bungee cord in order to secure a second ladder. The Court found that plaintiff could have instead used one of the several bungee cords that were available in order to separately secure the second ladder.   

First Department Allows Evidence of Post-Accident Repairs to be used to Establish Identity of Alleged Injury Producing Equipment

In Perkins v. NYCTA, the First Department affirmed the lower court's direction to the defendant to produce evidence of post-accident repairs in order to establish that a wheelchair ramp to be inspected was the same ramp on which plaintiff was allegedly injured. As an alternative, the defendant could provide an affidavit attesting to the fact that the wheelchair ramp to be inspected was the same ramp on the bus at the time of the accident.

First Department Seemingly Finds That Whether Ambiguity Exists in an Insurance Contract Depends on the Facts of the Case Rather Than the Terms of the Insuring Agreement

We had previously reported that in Dean v. Tower Ins. Co., the Court of Appeals had affirmed the First Department on a finding that the term "reside" in an insurance policy issued by Tower Insurance was ambiguous. This issue has appeared again in Tower Ins. Co. v. Zaroom, where the First Department has now found that the term "reside" is unambiguous. The Court specifically indicated that "under the circumstances of this action, as opposed to the circumstances in Dean v. Tower Ins. Co. of N.Y. (19 NY3d 704 [2012]), 'reside' is not ambiguous."

In Dean, the property owner was renovating the insured-property when a fire occurred. Although he did not reside in the house undergoing renovations at the time of the fire, he had spent a considerable amount of time at the house during the renovation, ate at the house and slept there on several occasions. By contrast, in Tower v. Zaroom, the Zarooms admitted that they did not reside at the insured-property. Clearly, therefore, where there was a question of fact in Dean as to whether the owner could be deemed to have "resided" at the insured-property at the time of the fire, there was no question of fact that the Zarooms did not reside at the insured-property.

The difficulty here is that, if the term "reside" was ambiguous in Dean, then it must likewise still be ambiguous in Tower v. Zaroom. The definition of the term has not changed, just the facts applied to the definition. Therefore, the effect of Dean and Tower v. Zaroom is that, unlike most other situations where ambiguity in an insurance contract is determined as a matter of law, whether the term "reside" will be found to be ambiguous is dependent on the factual circumstances of each individual case. 

Recent Second Department Decisions Highlight A Common Theme When Deciding Liability For "Defective Means and Methods" or "Defective Conditions" Under Labor Law § 200

In determining liability under Labor Law § 200, there are two principles that underscore most Labor Law § 200 cases (1) where liability can be imposed based on "defective means and methods" of the work and (2) where liability can be imposed based on a "defective condition" on the property. Both of these principles require either control over the work or control over the condition. Two recent decisions from the Second Department illustrate these principles.

In Zupan v. Irwin Contracting, Inc., the plaintiff was carrying a 30-foot long, 200-pound steel rafter on his shoulders and was injured when he attempted to place the rafter on the ground. He commenced an action against the general contractor and construction manager asserting claims, in part, under Labor Law § 200 and common-law negligence. Thereafter, the general contractor and construction manager separately moved for summary judgment. The Supreme Court granted the motions and the plaintiff appealed.

On appeal, the Second Department reversed summary judgment in favor of the general contractor finding that the general contractor had failed to eliminate material issues of fact, but the Court affirmed as to the construction manager. The Court found that this was a case involving defective means and methods and the general contractor had supervised the plaintiff and given him his daily work assignments.  In addition, the plaintiff alleged that the general contractor had given plaintiff specific instructions as to how to move the rafter and when plaintiff complained he was told "just do it."  Therefore, the plaintiff's testimony raised a question of fact as to whether the general contractor could be held liable under section 200 of the Labor Law.

In Kane v. Peter M. Moore Construction, Co., the plaintiff was working on a home renovation when he slipped and fell on a dropcloth placed on a staircase allegedly by the employees of another contractor. The Supreme Court denied both the homeowner's and contractor's motions to dismiss the plaintiff's section 200 claim. On appeal, the Second Department reversed as to the homeowner upon a finding that constructive notice could not be established, but affirmed as to the contractor upon finding that the contractor had failed to establish that it did not create the condition on which the plaintiff had fallen. 

Second Department Finds That Worker's Fall From Open Tailgate of Moving Pickup Truck, and His Subsequently Being Struck by A Falling Object, Does Not Trigger Liability Under Labor Law § 240(1)

In Eddy v. John Hummel Custom Bldrs., Inc., the plaintiff had loaded heavy construction material into the back of a pickup truck in order to transport the materials at a construction site. One such item was a cast iron grate weighing approximately 100 pounds. The plaintiff and a co-worker placed the grate on the open tailgate of the truck. The materials were not secured with ropes, bungee cords, ratchets, or other similar devices and the bed of the truck was not equipped with a seat or platform for someone to sit on.

The plaintiff’s co-worker, DiSunno advised the plaintiff to sit in the front passenger seat because DiSunno did not think it was safe for the plaintiff to ride in the back of the truck. The plaintiff decided instead to sit on top of the grate that was lying on the open tailgate. In this position, the plaintiff's feet hung over the edge of the tailgate. As DiSunno began to drive the truck, the plaintiff fell and the grate toppled off the tailgate, striking the plaintiff causing his injuries.

The plaintiff commenced this action against the general contractor and owners of the site, alleging, in part, violations of Labor Law §§ 200, 240(1), and 241(6). The general contractor moved for summary judgment and the plaintiff cross-moved for summary judgment on the issue of liability pursuant to Labor Law § 240(1). The Supreme Court denied the general contractor's motion and granted the plaintiff's cross motion. The court reasoned that although the statute did not typically apply to injuries caused by materials that fall from a minuscule height during the loading or unloading process, the statute applied in this case because the falling grate required securing for the purposes of the work and posed a foreseeable risk of falling from the truck due to an elevation differential.

In reversing the lower court and granting the general contractor’s motion to dismiss the plaintiff’s section 240(1) claim, the Court observed that the Court of Appeals and the Second Department have repeatedly held that “because the distance between the back of a pickup or flatbed truck and the ground is so small, the risk of a worker falling off the back of a pickup or flatbed truck is, as a matter of law, is not an extraordinary elevation-related risk protected by Labor Law § 240(1), but rather, one of the usual and ordinary dangers of a construction site.” In two such cases, including Dilluvio v City of New York (95 NY2d 928 [2000]) the plaintiff had injured himself as a result of falling from a truck that was moving, and the courts held that “the danger to the plaintiff was referable to the movement of the truck and not height.” 

The Second Department further observed that it had previously held that because the distance between the back of a flatbed truck and the ground is so small, workers injured by objects being unloaded from a flatbed truck while standing on the ground next to the truck are likewise not entitled to recover pursuant to Labor Law § 240(1).

In the present case, therefore, the Second Department rejected the plaintiff’s contention that the elevation differential between the bed of the pickup and the ground could not be de minimis given the weight of the grate (citing Runner v New York Stock Exch., Inc., 13 NY3d at 602, 605 [involving a reel of wire that weighed "some 800 pounds"]) because even if the plaintiff had been injured while unloading the 100-pound grate his argument would be undercut by the Court of Appeals decision in Rodriguez v Margaret Tietz Ctr. for Nursing Care (84 NY2d 841), where the Court of Appeals held that the plaintiff was exposed to the usual and ordinary dangers of a construction site, rather than a special elevation risk contemplated by Labor Law § 240(1), in placing a 120-pound beam onto the ground from seven inches above his head with the assistance of three other coworkers.

The Second Department further rejected plaintiff’s argument on the basis that plaintiff was not engaged in the task of unloading the truck at the time of the accident. The Court observed that the grate had only fallen onto the plaintiff because the plaintiff had fallen off the truck as a result of the movement of the truck. Therefore, the task that the plaintiff was engaged in at the time of the accident was the task of riding in a pickup truck, which, as indicated, does not present an elevation-related risk.

The Second Department also found that, even if Labor Law § 240(1) applied, plaintiff would not be entitled to recovery because, under the circumstances of this case, any failure on the part of the general contractor to provide the plaintiff with protection from riding in the back of the pickup truck was not a proximate cause of the accident. The Court found that the plaintiff’s refusal to heed the advice of DiSunno and sit in the front passenger seat, coupled with the plaintiff’s decision to sit on top of the grate that was lying on the truck's open tailgate, with his feet dangling over the edge of the tailgate, were “so unforeseeable as to break the causal nexus between the alleged failure of [the general contractor] to comply with Labor Law § 240(1) and the plaintiff's injuries, and the plaintiff's decision to sit in this position was, as a matter of law, the sole proximate cause of his injuries."  As such, the Court also dismissed plaintiff's section 241(6) claim.

Court of Appeals Reverses First Department On Issue of Whether Plaintiff Was Sole Proximate Cause of His Fall From Scaffold and Grants Plaintiff Summary Judgment

We had previously reported that the First Department had found questions of fact regarding sole proximate cause in a Labor Law § 240(1) action in Batista v. Manhattanville College. Subsequently, the First Department granted leave to appeal to the Court of Appeals.  On appeal, the High Court reversed and granted summary judgment in favor of plaintiff. See our original entry below for the facts of the case.

In Batista v. Manhattanville College, the plaintiff was injured in a fall from a scaffold that he was constructing. Plaintiff had been instructed to use only pine planks for the flooring and to check the planks for knots. He fell two stories from the scaffold when an alleged spruce plank that he was standing on broke.

On motions for summary judgment the trial court granted plaintiff partial summary judgment on liability pursuant to Labor Law § 240(1), finding that the scaffold failed to provide plaintiff with proper protection. On appeal, the First Department reversed and denied the motion. The Court found that whether plaintiff disregarded instructions to use only pine planks and whether more pine planks were readily available to him were questions of fact. The Court also found that whether plaintiff was responsible for checking the planks for knots was also a question of fact.    

Court of Appeals Modifies First Department Decision re: Labor Law § 240(1) and Electric Shock

**** Update: The Court of Appeals has modified to deny plaintiff's motion for summary judgment, and remitted the matter to the First Department for consideration of additional issues. http://www.nycourts.gov/reporter/3dseries/2016/2016_07823.htm Original Blog Entry below. ****

In a concurring opinion in Nazario v. 222 Broadway, LLC, the First Department adheres to its precedent that a worker who falls from a ladder after sustaining an electric shock is prima facie entitled to judgment on liability pursuant to Labor Law § 240(1).  Here, the worker fell along with the ladder after receiving the shock. The majority found that because the ladder was unsecured, allowing both the worker and the ladder to fall, the plaintiff had established his entitlement to judgment on liability under the statute.  The majority rejected the defendants' contention that the ladder was defect-free, and therefore the plaintiff was obligated to prove that the defendants had failed to provide him with an appropriate safety device.

Justice Tom concurred, but felt constrained to do so by the Court's prior precedent.  Notably, however, Justice Tom disagreed with the majority that it is enough for a plaintiff to show that he was injured falling from a defect-free ladder after receiving an electric shock.  Instead, Justice Tom noted that it is the plaintiff's burden to prove both the absence of an adequate safety device and proximate cause. Here, falling from a defect-fee ladder would ordinarily raise a question of fact as to the sufficiency of the safety device, even when the falling worker received an electric shock.  He noted that the Court's prior holdings had "created a special class of decisions which, contrary to the foundational Court of Appeals holdings in this area, remove a plaintiff's quintessential burden to establish causation under the Labor Law."

Finally, Justice Tom stated that the decisions of the First Department in this regard were contrary not only to the Court of Appeals, but also to the other three Departments of the Appellate Division, which have all found that questions of fact existed as to the adequacy of the safety device where the injured worker fell after receiving an electric shock (see Grogan v Norlite Corp., 282 A.D.2d 781 [3d Dept 2001]; Donovan v CNY Consol. Contrs., 278 A.D.2d 881 [4th Dept 2000]; Gange v Tilles Inv. Co., 220 A.D.2d 556, 558 [2d Dept 1995]).    

First Department Judges Continue Internal Disagreement Over Whether Plaintiff Must Prove Freedom From Comparative Fault to Establish Entitlement to Summary Judgment

Rodriguez v. City of New York, demonstrates once again that the First Department lacks unanimity as to whether a plaintiff can obtain summary judgment where questions of fact remain as to the plaintiff's comparative fault. As the majority writes: "we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department." Most of the Justices in the First Department are in accord with the Second Department's stance on this issue, i.e. that a plaintiff must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability.  The Fourth Department would allow partial summary judgment on the issue of a defendant's negligence even if an open question exists regarding the plaintiff's comparative fault (see Simoneit v Mark Cerrone, Inc., 122 AD3d 1246 [4th Dept 2014]).    

The majority explains that the difference between awarding partial summary judgment and denying the plaintiff's motion in its entirety is that, if the motion were granted then the issue of contributory negligence would have to be considered during the damages portion of the case, whereas if the motion were denied then the issue must be considered during the liability phase of the trial.

The First Department's stance on this issue is traced back to Thoma v Ronai (189 AD2d 635 [1st Dept 1993], affd 82 NY2d 736 [1993]), in which the plaintiff's motion was denied because she had failed to demonstrate that she was free from comparative negligence as a matter of law.  The Court of Appeals affirmed the First Department's decision, finding that the "'plaintiff did not satisfy her burden of demonstrating the absence of any material issue of fact' on the question of her freedom from comparative negligence and therefore did not meet her burden on proof on the motion (82 NY2d at 737)."

As stated by the majority in Rodriguez: "The clear direction of Thoma is that a plaintiff may not be awarded partial summary judgment on the issue of a defendant's negligence if the defendant has raised an issue of fact as to the plaintiff's comparative negligence."

The rationale in support of the denial of summary judgment on this issue was best explained in Maniscalco v New York City Tra. Auth. (95 AD3d 510 [1st Dept 2012]), where the Court stated that "the causal role of each party's conduct should not be determined in isolation" (id. at 513).  Quoting from Professor Alexander the majority observed:

"Conceptually, any amount of negligence by a defendant could trigger his or her liability, and CPLR 3212(e)allows for the entry of partial summary judgment as to any part of a cause of action. But few, if any, litigation efficiencies are achieved by the entry of partial summary judgment in this context because the defendant would still be entitled, at trial to present an all-out case on the plaintiff's culpable conduct. Furthermore, it is possible that a jury might find plaintiff's culpability to be the sole proximate cause of the accident if the issues of the defendant's liability and the plaintiff's comparative fault are seen, in the words of the dissent in Johnson v New York City Tra. Auth., 88 AD3d 321, 332 [1st Dept 2011] 'as an integrated whole.'" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B C1412) (emphasis added).

To hold otherwise, the majority colloquially stated, "defendant [would be] essentially entering the batter's box with two strikes already called."

The majority also observed that the Pattern Jury Instructions, PJI 2:36 et seq., provides that, in a comparative negligence case, the jury must be given instructions as to the defendant's liability and the plaintiff's liability at the same time (see 1A NY PJI3d 2:36 at 273 et seq.[2016]), which permits the jury to consider the actions of both parties as a whole in making their determination.

Addressing the dissenting opinion, the majority stated that the dissent had taken "the curious position" that summary judgment should nevertheless be granted as a matter of law where "plaintiff met his prima facie burden of establishing defendant's negligence as a proximate cause of the injury, and defendant failed to raise triable issues of fact with respect to its own negligence, but successfully raised triable issues of fact as to comparative negligence on the part of plaintiff." The majority noted, however, that such a determination would be contrary to the PJI, Professor Alexander's commentaries, and the First Department's holding in Maniscalco (95 AD3d 510) that "the causal role of each party's conduct should not be determined in isolation" (id. at 513). The majority further observed, as noted by Professor Alexander, the dissents position ignores the fact that "'a jury might find plaintiff's culpability to be the sole proximate cause of the accident' where the issues are tried as a whole. By finding, as a matter of law, that a defendant is at fault, the court denies the jury the opportunity to determine the issue of proximate cause."

The dissenters quoted from the concurring opinion in Capuano v Tishman Constr. Corp. (98 AD3d 848 [1st Dept 2012] [Acosta, J., concurring]), "I would hold that a plaintiff does not have th[e] burden [of disproving the affirmative defense of comparative negligence]. Once a prima facie showing [of defendant's negligence] is made, the burden shifts to the defendant to raise issues of fact, such as by submitting evidence in support of an affirmative defense" (id. at 852). Thus, "where a defendant fails to raise issues of fact as to his or her own negligence, but succeeds in raising issues of fact as to the plaintiff's comparative negligence, partial summary judgment on liability with respect to defendant's negligence is warranted, because the defendant will be liable to the extent his or her misconduct proximately caused the injury" which would allow for an argument during a subsequent trial on liability and damages that plaintiff was comparatively at fault. Therefore, the dissent would have granted plaintiff's motion finding defendant negligent as a matter of law and remanded the matter for a determination of liability attributable to each party.

The dissent disagreed with the majority's holding that by observing that comparative fault is an affirmative defense and a plaintiff should not be obligated to disprove that defense in order to obtain partial summary judgment on liability.  According to the dissent, plaintiff's only burden is to show that defendants was negligent.  The dissent further indicated that Thoma v Ronai did not require a different analysis because "the Court of Appeals said nothing about whether a plaintiff's prima facie burden includes disproving the affirmative defense of comparative fault." As such, the dissent indicated that the majority's reliance on Thoma was "unfounded."

The dissent further indicated that plaintiff could be granted summary judgment to the extent of finding defendant negligent as a matter of law, and allowing the jury to apportion fault. To that end, the dissent recommended that the matter be remanded "first for a trial on liability, during which the jury would consider the conduct of both parties and apportion fault accordingly. A trial on damages would follow, during which the jury would determine the total amount of damages (to be reduced in proportion to the apportionment of fault)." The jury would be instructed that "it cannot completely absolve the defendant of liability or find plaintiff 100% liable."  The dissent qualified its recommendation in this regard by observing that it would only be available in a case where it has already been established, as a matter of law, that the plaintiff could not have been the sole proximate cause of his accident.

First Department Finds Distinct and Independent Questions of Fact Regarding Adequacy of Safety Device and Recalcitrance/Sole Proximate Cause of Worker In Labor Law § 240(1) Case

In Albino v. 221-223 W. 82 Owners Corp., the plaintiff was injured in a fall from a roof while attempting to step into a scaffold that was located on the side of the building. Plaintiff had planned to use the scaffold to descend from the roof. As relevant here, the accident was unwitnessed and plaintiff gave differing accounts as to why he fell. Immediately after the accident he told his foreman that he fell because his foot slipped as he stepped onto the scaffold. Plaintiff testified at his deposition, however, that a wire attached to the scaffold snapped, causing the scaffold to swing away from the building, which resulted in plaintiff's fall.

In addition, although plaintiff testified that he could not use the harness he had in his possession because there were no safety lines, the foreman testified that he had worked with plaintiff earlier in the day and they had both had worn attached harnesses. The foreman also contradicted plaintiff's testimony that plaintiff would have been fired if he waited until safety lines were installed. the foreman indicated that he instructed all of his employees, including plaintiff, to wear safety equipment and that when he left plaintiff in charge he never instructed plaintiff to work without wearing an attached safety harness.

The First Department affirmed the denial of plaintiff's motion for partial summary judgment on liability pursuant to Labor Law § 240(1), finding that questions of fact existed both as to whether plaintiff was the sole proximate cause of his accident and whether the scaffold was an adequate safety device. 

Notably, the Court specifically found that these two questions were distinct and independent. More specifically, "a factfinder could rationally determine, based on the foreman's testimony concerning plaintiff's original account of the accident, that plaintiff fell simply because he misplaced his foot when stepping onto the scaffold, without the scaffold moving or otherwise malfunctioning or failing. It would follow from such a finding — even assuming that the harness issue is determined in plaintiff's favor — that his injuries were not proximately caused by any violation of section 240(1)." Simply stated, if the jury were to find that the scaffold was adequate, then the lack of a safety line would not have been a violation of the statute. 

This Summer's Notable Decisions Regarding Pre-judgment Interest, Appellate Procedure and Other Issues

The Appellate Courts release fewer decisions and with less frequency during the summer months. Below are a few of this Summer's notable decisions. 

Second Department Concludes That Pre-Judgment Interest Is Not Triggered By a Stipulation of Liability

In Mahoney v. Brockbank, the defendant stipulated to liability in exchange for plaintiff’s stipulation to discontinue a cause of action against defendant for punitive damages. Approximately 2 ½ years later, a trial on damages was held, resulting in an award in favor of plaintiff on damages.  Both sides submitted proposed judgments. The plaintiff’s proposed judgment included pre-judgment interest calculated from the date of the stipulation. The defendant’s proposed judgment included interest from the date of the jury verdict on damages. The trial court signed the defendant’s judgment and the plaintiff appealed.

The Second Department observed that CPLR 5002 governs pre-judgment interest “from the date the verdict was rendered or the report or decision was made.” The Court further observed that there are extensive cases regarding what constitutes a verdict, report or decision including decisions on motions for summary judgment, to enter default judgment and to strike defendant’s answer; decisions on unopposed applications for a directed verdict on liability; binding arbitrators’ awards; confirmation of a referee’s report; and the decision of an Appellate Court reversing the denial of a plaintiff’s motion for summary judgment on liability. The Second Department noted that each of these was an adjudication by a jury, court or arbitrator.

By contrast, in the present case, the stipulation was not an adjudication of liability – it was an agreement between the parties. Had the Legislature intended to include stipulations in CPLR 5002 it could have done so. Therefore, finding that it was significant that the Legislature had omitted stipulations from CPLR 5002, the Second Department concluded that the stipulation did not trigger an obligation to pay pre-judgment interest, and instead pre-judgment interest was properly calculated from the date of the jury verdict on damages.

Second Department Holds that Denial of Untimely Appeal Is Not an Adjudication on the Merits

In Mosby v Parilla, the Second Department points to a noteworthy distinction between an appeal that is dismissed because of a failure to timely perfect and an appeal that is dismissed because it was not timely taken. Here, the jury found for plaintiff in a medical malpractice suit. The defendant then moved, pursuant to CPLR 4404(a), to have the verdict set aside. While the 4404(a) motion was still pending, plaintiff caused judgment to be entered and defendant appealed. The Second Department subsequently dismissed defendant’s appeal as untimely, but the lower court granted defendant’s earlier CPLR 4404(a) motion and the verdict was set aside as a matter of law.

Plaintiff appealed, stating that the Second Department’s dismissal of defendant’s untimely appeal precluded the Supreme Court from subsequently granting defendant’s 4404(a) motion. In holding for defendant, the Second Department noted that the “dismissal of an appeal as untimely does not constitute an adjudication on the merits” (unlike the dismissal of an appeal for a failure to perfect) and therefore the CPLR 4404(a) motion survived the collateral estoppel arguments raised by plaintiff.

Second Department Holds that Contractor Did Not Exacerbate Dangerous Condition

In Barone v Nickerson, plaintiff was injured when he tripped and fell while ascending stairs, which defendant was hired by the property owners to repair. Defendant was a third party whose contractual obligations were to the property owners, not the plaintiff. Plaintiff brought an action against defendant and the trial court granted defendant’s motion for summary judgment.

On appeal, plaintiff claimed that defendant fell within one of the three Espinal exceptions, which may give rise to tort liability under contractual obligations of third parties: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, [or] (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d 136 (2002)). Specifically, plaintiff alleged that defendant had violated the first factor by exacerbating the dangerous condition. Defendant was then required to make a prima facie showing negating only the applicability of the exception “expressly pleaded” by the plaintiff. In holding for defendant, the Second Department held that defendant had met his burden by showing that he did not leave the steps or handrail in a condition more dangerous than he had found it.

First Department Grants Partial Summary Judgment of Non-culpability for Innocent Driver

Oluwatayo v Dulinayan involved a motor vehicle accident, where plaintiff was rear-ended by defendant driver who was also rear-ended by another co-defendant driver. Plaintiff sought summary judgment on liability against both drivers. The lower court denied the motion, as plaintiff failed to meet his burden of eliminating triable issues of fact.

On appeal, the First Department, although agreeing with the lower court that there were triable issues of fact relating to the proportional fault of each defendant driver, held that the plaintiff was entitled to partial summary judgment under CPLR §3212(g) (“Limitation of issues of fact for trial”). In reviewing a series of cases involving innocent plaintiff passengers, the court stated the fact that the plaintiff driver here was rear-ended, while stopped was analogous to other cases where passenger plaintiffs were “entitled to a determination that [plaintiff] had no culpable conduct on the issue of liability irrespective of the unresolved issue of a defendant driver's negligence.” Unlike the innocent passenger cases, however, plaintiff here failed to establish the proportionality of fault of each defendant driver. Plaintiff was granted partial summary judgment “to the extent of finding no culpable conduct by plaintiff on the issue of liability.”

This Summer's Notable Labor Law Decisions

During the summer months the Appellate Courts release fewer decisions and release those decisions less frequently.  Below are two notable Labor Law decisions issued this summer. A third case regarding who is an "owner" under the Labor Law will follow in a separate blog entry. 

First Department Looks at Labor Law §240 Claim Where Plaintiff was Injured on Hilltop

In Ankers v Horizon Group, plaintiff was injured on a condominium construction site when a motorized wheelbarrow, which he was standing on, inadvertently rolled down a hill and caused plaintiff to tumble about fifteen feet. Among other claims, plaintiff brought a Labor Law §240(1) claim against defendant. The trial court granted plaintiff’s motion for summary judgment on the §240 claim and defendant appealed.

Under a Labor Law §240 claim contractors, owners, and their agents are responsible to furnish or erect devices to give proper protection from “gravity related” risks. The issue here was whether the wheelbarrow rolling down the hill was such a risk or an ordinary danger of the work site. The First Department held that because this determination was a genuine issue of fact, summary judgement on the §240(1) claim was improper and reversed the lower court’s decision.

Second Department Finds That Safety Consultant Is Not a Proper Labor Law Defendant

In Marquez v. L&M Dev. Partners, Inc., plaintiff was injured at a construction site when he fell through a plywood covered hole. Pro Safety Services (PSS) had been retained by the owner to provide “loss control and safety consulting services.” PSS solely acted in a consulting capacity and did not have any actual authority to control plaintiff’s work or the condition on which plaintiff was allegedly injured. As such, the Second Department granted summary judgment to PSS dismissing plaintiff’s complaint, finding that PSS was not a “statutory agent” of the owner and therefore not a proper labor law defendant for purposes of Labor Law §§240(1) and 241(6), and PSS’s lack of control over the work and the site conditions also entitled PSS to dismissal of plaintiff’s Labor Law §200 and common law negligence claims.

Court of Appeals States That the Appellate Division Does Not Need to Expressly Compare Damages Awards When Reviewing For Excessiveness or Inadequacy Under CPLR 5501(c)

For some time it has been argued that CPLR 5501(c), which mandates that the Appellate Division review awards for damages to determine if they deviate materially from reasonable compensation, requires the Appellate Division to provide a meaningful comparison of cases that involve awards for similar injuries in order to determine if the awards at present are excessive or inadequate.

In Matter of New York City Asbestos Litigation, the Court of Appeals stated that there is no such requirement. More specifically, the Court stated that "we reject TLC's contention that the Appellate Division applied the wrong legal standard in assessing whether Supreme Court's reduced damages award deviated materially from reasonable compensation. Neither CPLR 5501 (c) nor CPLR 5522 requires the Appellate Division to expressly compare the damages award in the judgment appealed from with damages awards in other cases in its written decision." Therefore, according to the Court of Appeals, it would be enough for the Appellate Division to simply state that it has considered the arguments regarding excessiveness or inadequacy and finds that the awards for damages do not deviate materially from reasonable compensation without providing either a rationale or comparable cases to support its decision.

Second Department Holds that “Graves Amendment” Defense Not Sufficient to Succeed on a CPLR 3211(a)(1) and (7) Motion to Dismiss

In Argelo v Hanif, plaintiff passengers were injured when defendant hit their car while driving a rented U-Haul truck. The plaintiffs then brought a negligence claim against the drivers of both vehicles and U-Haul as owner of the truck. U-Haul moved pursuant to CPLR 3211(a)(1) and (7) to have the claims dismissed relying on 49 USC § 30106(a) (“Graves Amendment”), which relieves a motor vehicle owner from liability if the owner is (1) engaged in the trade or business of renting motor vehicles, and (2) engaged in no negligence or criminal wrongdoing. U-Haul relied on the affidavit of its investigator who opined that he believed that the accident had been staged. U-Haul’s motion to dismiss was denied and they appealed to the Second Department.

On appeal, although U-Haul could show pursuant to CPLR 3211(a)(1), regarding documentary evidence, that they were engaged in the business of renting motor vehicles, the court held that the affidavit of U-Haul's investigator could not be considered in support of this portion of U-Haul's motion because it was not "documentary evidence" within the meaning of the statute.

With respect to CPLR 3211(a)(7), U-Haul failed to establish that no “significant dispute exists” as to whether U-Haul was negligent. The only evidence which U-Haul presented was the affidavit of its investigator related to insurance fraud and that the accident was staged.  This evidence, however, did not support the fact that U-Haul was not negligent in the maintenance of the vehicle. Therefore, accepting as true the allegations in the plaintiffs' complaint, which the the Second Department was compelled to do, the Court affirmed the lower court’s decision to deny U-Haul’s motion to dismiss. 

Second Department Affirms Jury Verdict Despite Admittance of Improper Hearsay Evidence

In Parris v New Work City Transit Auth., plaintiff was injured when he came into contact with a bus owned by defendant. The plaintiff claimed that he had no memory of the accident.  During trial, hearsay evidence (a NYCTA accident report) was admitted stating that the driver of the bus saw plaintiff drinking from a bottle before the accident occurred. The jury rendered a verdict for defendants, finding that although defendants were negligent, such negligence was not a substantial factor in causing the accident. The plaintiff moved to set aside the jury's verdict and his motion was denied. As such, the plaintiff appealed to the Second Department.

First, the plaintiff contented that the lower court erred in not holding a unified trial on issues of liability and damages based on the fact that plaintiff could not recall how the accident happened. The Second Department affirmed the lower court’s decision to deny plaintiff’s motion in limine stating that “[c]ourts are encouraged to bifurcate issues of liability and damages in personal injury trials.”  A unified trial is only appropriate when “the nature of the injuries has an important bearing on the issue of liability.”  The court held that plaintiff failed to show such a relationship existed.

Next, the Second Department agreed with plaintiff that it was error to admit hearsay evidence, which did not qualify under any exception to the hearsay rule. The error, however, did not “constitute prejudice or reversible error” and the Court found that the trial result would have been the same even if the statement had been excluded. Plaintiff’s other contentions, including an argument that the jury should have held him to a lesser standard of proof because of his alleged amnesia, were unfounded. The Court found that plaintiff could recall the events leading up to the accident, but not the accident itself and that he failed to submit medical proof that his amnesia was caused by the defendants. Therefore, the Court affirmed the jury's verdict in favor of the defendants.

First Department Excludes Routine Household Cleaning from Labor Law §240 Claims

In Morales v Avalon Bay Communities Inc., the plaintiff was injured when she fell from a three foot step ladder while cleaning the interior of a kitchen in an apartment complex.  At the time of her fall, construction of the complex was nearing completion and approximately 90% of the units within the building were occupied. The plaintiff nevertheless brought suit against the owners of the building alleging violations of "the Scaffold Law," Labor Law §§240(1) and 241(6). The lower court granted the defendant’s motion for summary judgment dismissing the complaint and the plaintiff appealed.

On appeal, the First Department considered whether plaintiff was engaged in “cleaning” within the meaning of Labor Law §240(1). The court considered the factors set out in Soto v J. Crew Inc., (21 NY3d 562, 568 [2013]) (holding that “activity cannot be characterized as ‘cleaning’ under the statute, if the task: (1) is routine, in the sense that it is 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; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project”).  After review, the court concluded that plaintiff was not engaged in §240 “cleaning” and the §240(1) claim was properly dismissed.

In dismissing the §241(6) claim the First Department likewise agreed with the trial court that “plaintiff was not engaged in duties connected to the inherently hazardous work of construction, excavation, or demolition.”

First Department Determines That Elevators Are Falling Objects Under Labor Law § 240

In McCrea v Arnlie Realty Co., the First Department held that an injured elevator repairman was entitled to recovery under Labor Law § 240 as an elevator is considered a “falling object” within the meaning of the Labor Law. Although an elevator is not technically “hoisted or secured at the time of the accident,” it requires securing when suspended during repair work and therefore falls under the statute’s purview.  Therefore, the defendant was held strictly liable for injuries sustained from the falling elevator.

The Court further found that plaintiff was not the sole proximate cause of the accident. Although an adequate safety device was made available, a kill switch, plaintiff was never informed of the safeguard. Therefore, since plaintiff was unaware of the availability of the safety device, he could not be found to be the sole proximate cause of the accident.

Second Department Holds Defendant Liable Under Labor Law §240(1) Where Plaintiff Was Electrocuted and Fell From Scaffold

In Viera v WFJ Realty Corp., the plaintiff was injured from an electric shock and subsequent fall from a scaffold, which lacked railings. Plaintiff then commenced an action against defendants, asserting violations of Labor Law §§ 240 and 241. The Supreme Court denied plaintiff’s motion for summary judgment and plaintiff appealed to the Second Department. 

On appeal, the Court held that plaintiff was entitled to “judgment as a matter of law” under Labor Law § 240(1). The court noted that plaintiff was not provided with a safety device to prevent him from falling. As defendants failed to raise a triable issue of fact relative to proximate cause, summary judgment was granted in favor of plaintiff’s §240(1) claim.

First Department Affirms Finding That Plaintiff Was Not Engaged In A Labor Law § 240(1) Enumerated Activity

In Royce v. DIG EH Hotels, LLC, the plaintiff, a lighting engineer, fell from a ladder while replacing a "gel" that altered the color of light on a temporary lighting stand. Plaintiff's work involved delivering and assembling audiovisual and lighting equipment in a hotel ballroom.  Once the event for which the equipment was needed had concluded, plaintiff would then  be responsible to remove that equipment. It is notable that the fixture on which plaintiff was working was secured to the floor by sandbags.

Plaintiff commenced an action against the defendants asserting, in part, an alleged violation of Labor Law § 240(1). The Supreme Court granted the defendants' motion to dismiss that claim and plaintiff appealed. On appeal, the First Department affirmed.  The Court found that there was no evidence that any of plaintiff's work "altered" or caused a substantial physical change to the building, as required by the Labor Law. Therefore, plaintiff was not engaged in a Labor Law enumerated activity when he was injured and his section 240(1) claim against the defendants was properly dismissed.

Second Department Finds That Workers' Compensation Board Determination Could Not Be Used As Collateral Estoppel And Also Reinstates Jury's Award of Total Disability Despite Testimony From Plaintiff's Physicians That Plaintiff Was Employable

In separate decisions in Kowalsky v. County of Suffolk, the Second Department affirmed a judgment against the defendants in the principal sum of $5,387,591.36, which included $200,000 for past pain and suffering, $850,000 in future pain and suffering for 41 years and $4,038,000 in economic damages, and modified the partial granting of defendants' post trial motion regarding plaintiff's claims for economic damages, by reinstating the jury's awards.

Plaintiff was injured in an accident when he was struck by a vehicle owned by the County of Suffolk and Suffolk County Department of Parks, Recreation & Conservation.  At trial, the defendants moved to preclude plaintiff from offering evidence regarding surgery to his lumbar spine.  The defendants argued that plaintiff was collaterally estopped from offering such evidence on the basis that the Workers' Compensation Board had denied plaintiff's request for surgery on the basis of its examining physician who recommended that the plaintiff be evaluated by an independent spine surgeon or neurosurgeon before he rendered a determination as to whether the surgery was necessary.

The Supreme Court denied the motion and during trial plaintiff offered evidence that he underwent a laminectomy and spinal fusion surgery at L4-5. The plaintiff further offered evidence that he required a pain management regimen involving methadone and Flexeril. The side effects of these medications included sedation, cognitive impairment, and difficulty handling power tools. His physicians further testified that plaintiff could not return to his job as a Verizon technician and the side effects of his pain medication made it difficult for him to maintain any employment. 

By contrast, the defendants presented the testimony of a vocational expert who testified that there were jobs that the plaintiff could do with his disability, which would pay in the range of $30,000 to $40,000 per year. 

On the defendants' appeal from the judgment, the Second Department affirmed the denial the defendants' motion to preclude the plaintiff from submitting evidence regarding the surgery to his lumbar spine.  The Court observed that "[t]he quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal" (Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255, citing Jeffreys v Griffin, 1 NY3d 34, 39). Here, the defendants failed to establish an identity of issue. The Second Department also found that the defendants were properly precluded from introducing, at trial, the determination of the Workers' Compensation Board.

In the related decision on the separate appeals from the defendants' post-trial motion, the Second Department also found that the Supreme Court should not have reduced the jury's awards for economic damages. The Court found that the assumption by plaintiff's economist that plaintiff could no longer work in any capacity was supported by the testimony of the plaintiffs' physicians that the side effects of his pain medication limited his employment possibilities. The Court also found that although the defendants' vocational expert testified that there were jobs that the plaintiff could perform, this created an issue of fact for the jury to decide.

Recent Second Department Decision Reminds Us That the Granting of an In Limine Motion is Not Appealable, But Such Issues Can Be Raised on Appeal From A Subsequent Judgment

In Shanoff v. Golyan, on the eve of trial the Supreme Court granted the defendants' motions in limine to preclude plaintiff from offering certain evidence against the defendants regarding the post-operative care of plaintiff's decedent. Ultimately, the Supreme Court granted summary judgment to those defendants and plaintiff appealed the summary judgment order. Judgment was also entered in favor of the defendants and plaintiff appealed that as well. 

On appeal from the judgment, the Second Department considered the issues that were raised on the in limine motions. The Court specifically noted that plaintiff could not have appealed from the order granting the motions in limine because that order concerned evidentiary rulings which are not appealable, either as of right or by permission (see CPLR 5701). However, the issues raised in that order were properly brought up for review and were considered on the appeal from the judgment (see CPLR 5501[a][1]). On the merits, the Court then reversed the judgment, denied the motions and reinstated the plaintiff's complaint. 

First Department Grants Change of Venue Where Defendant Corporation Designated New York County As Its Principal Place of Business

In Crucen v. Pepsi-Cola Bottling Co. of NY, although the accident occurred in Westchester County where plaintiff resides, the plaintiff commenced his action in the Bronx. The defendant, a foreign corporation, had filed its application for authorization to do business in New York with a designation of New York County as its principal place of business. As such, the defendant sought to change venue to Westchester, but its motion was denied. On appeal, the First Department reversed and granted the motion. The Court found that, even if the defendant did not have an office in New York County, its designation of New York County in filings with the Secretary of State was controlling for venue purposes.   

Second Department Allows Amendment of Complaint to Add Spouse's Derivative Claim Despite Unexplained Delay in Seeking Amendment

In Garafola v. Wing Inc. Specialty Trades, the plaintiff was allegedly injured in an accident at a construction site. He commenced an action against the defendants and two years later sought to add a derivative claim on behalf of his wife. The Supreme Court denied plaintiff's motion, however, because he had failed to explain his two year delay in seeking amendment. On appeal, the Second Department reversed and granted the plaintiff's motion. Substituting its discretion for that of the trial court, the Appellate Division found that the defendants were not prejudiced by the amendment because the same theory of liability applied to both the plaintiff's claim and his spouse's derivative claim, and not much additional discovery was needed. Therefore, the Appellate Division held that mere lateness in seeking the amendment was not a basis to deny the plaintiff's motion.  

Second Department Affirms Finding of Question of Fact Regarding Enforceability of Release Signed by Plaintiff

In Pacheco v. 32-42 55th Street Realty, LLC, the plaintiff was allegedly injured in a fall from a scaffold at a construction site. He commenced an action against the defendants alleging violations of Labor Law §§ 200 and 240(1). The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on the basis that the action was barred by a general release. Plaintiff opposed the motion and cross-moved to preclude the defendants from asserting the general release as an affirmative defense. The Supreme Court denied both motions and the parties appealed.

On appeal, the Second Department affirmed the denial of the defendants' motion. The Court found that the defendants had submitted a general release executed by the plaintiff, which barred the action against them. The Court further found, however, that plaintiff's allegations were sufficient to support a possible finding that the defendants had procured the release through fraud or that the release was signed by plaintiff "under circumstances which indicate unfairness."  

The Second Department also affirmed the denial of plaintiff's cross motion. The Court found that the plaintiff had demonstrated that the release was unenforceable due to fraud in the procurement and on the ground that it was not fairly and knowingly made. The Court further found, however, that the defendants had submitted evidence controverting plaintiff's account of how the release came to be signed. These submissions raised a triable issue of fact as to whether the release was enforceable.

Court of Appeals Decides Issues of Allocation Over Multiple Policy Periods, Vertical Exhaustion and Antisubrogation

This week has been a busy week for the Court of Appeals regarding insurance coverage issues. The High Court decided two cases involving complex coverage claims. In the Matter of Viking Pump, the Court of Appeals clarified its position regarding allocation of coverage for asbestos exposure claims over multiple policy years involving multiple insurers, as well as whether "vertical exhaustion" is necessary to trigger next-level excess coverage -- finding that allocation is dependent upon the policy language and only "vertical exhaustion" is necessary to trigger excess coverage. In Millennium Holdings LLC v. The Glidden Company, the Court of Appeals again clarified a position, this time regarding the antisubrogation doctrine -- finding that antisubrogation does not apply when the subject parties were not both insured under the same policy.

In the Matter of Viking Pump, the Court of Appeals was asked to consider whether "all sums" or "pro rata" allocation applied to excess insurance policies that followed form over primary policies with a "non-cumulation" provision or a "non-cumulation and prior insurance" provision, i.e. "anti-stacking" provisions. The provisions at issue provided that "[if] the same occurrence gives rise to personal injury... which occurs partly before and partly within any annual period of this policy, the each occurrence limit and the applicable aggregate limit or limits of this policy shall be reduced by the amount of each payment made by [the insurer] with respect to such occurrence" and "if any loss covered hereunder is also covered in whole or in part under any other excess Policy issued to the [Insured] prior to the inception date hereof [,] the limit of liability hereon... shall be reduced by any amounts due to the [Insured] on account of such loss under such prior insurance." At issue were asbestos exposure claims spanning 13 years of insurance coverage.

The Court initially observed that "Courts across the country have grappled with so-called 'long-tail' claims - - such as those seeking to recover for personal injuries due to toxic exposure and property damage resulting from gradual or continuing environmental contaminations - - in the insurance context." The Court further observed that there are typically two methods for allocating such claims, the "all sums," i.e. joint-and-several approach or "pro rata" allocation. Under the "all sums" approach, the insured can collect its total liability, up to the policy limits, from any one policy in effect during the period that the damage occurred (Roman Catholic Diocese of Brooklyn v National Union Fire Ins. Co. of Pittsburgh, Pa., 21 NY3d at 154, quoting Consolidated Edison, 98 NY2d 208, 222 [2002]; see United States Fid. & Guar. Co. v American Re-Ins. Co., 20 NY3d 407, 426 [2013]). The burden would then shift to that insurer to seek contribution from the remaining insurers who insured the loss. Under the "pro rata" allocation method, the Court of Appeals indicated that "each insurance policy is allocated a 'pro rata' share of the total loss representing the portion of the loss that occurred during the policy period (see Roman Catholic Diocese of Brooklyn, 21 NY3d at 154; Consolidated Edison, 98 NY2d at 223). Generally, '[p]roration of liability among the insurers acknowledges the fact that there is uncertainty as to what actually transpired during any particular policy period' in claims alleging a gradual and continuing harm (Consolidated Edison, 98 NY2d at 224)."

Although the Court of Appeals had previously adopted pro rata allocation in Consolidated Edison, the Court stated that it never adopted a blanket rule that pro rata allocation was always the proper method. Instead, the Court observed in Consolidated Edison that the insurance contract at issue, when enforced as written, permitted such allocation.

Here, however, the Court found that the non-cumulation and prior insurance provisions were specifically "designed to prevent any attempt by policyholders to recover under a subsequent policy - - based on the broader definition of occurrence - - for a loss that had already been covered by the prior 'accident-based' policy." As such, the Court stated, "it would be inconsistent with the language of the non-cumulation clauses to use pro rata allocation here. Such policy provisions plainly contemplate that multiple successive insurance policies can indemnify the insured for the same loss or occurrence by acknowledging that a covered loss or occurrence may 'also [be] covered in whole or in part under any other excess [p]olicy issued to the [Insured] prior to the inception date' of the instant policy."

"By contrast, the very essence of pro rata allocation is that the insurance policy language limits indemnification to losses and occurrences during the policy period -- meaning that no two insurance policies, unless containing overlapping or concurrent policy periods, would indemnify the same loss or occurrence. Pro rata allocation is a legal fiction designed to treat continuous and indivisible injuries as distinct in each policy period as a result of the 'during the policy period' limitation, despite the fact that the injuries may not actually be capable of being confined to specific time periods. The noncumulation clause negates that premise by presupposing that two policies may be called upon to indemnify the insured for the same loss or occurrence."

With respect to "vertical exhaustion," the Court of Appeals examined the policies at issue and found that there was no language that required the horizontal exhaustion of all available primary insurance before any excess insurance could be obligated to contribute. Instead, each next-level excess insurer would be obligated to contribute once the specific policy underlying its coverage was exhausted. Therefore, under the circumstances, only "vertical exhaustion" was required.

In Millennium Holdings LLC v. The Glidden Company, after numerous mergers and buyouts, the parties, Millennium and ANP, ended up insured under different policies. After Millennium settled underlying lead paint litigation for $8.5 million, with $3 million in contribution from ANP, Millennium's insurers sought to subrogate Millennium's indemnification claim against ANP. The Supreme Court, as affirmed by the Appellate Division, held that the insurers' subrogation claim was barred by the antisubrogation doctrine. Although the lower courts recognized that Millennium and ANP were not insured under the same policies, they nevertheless found that, because the risk insured against was the same, antisubrogation applied.

In reversing the lower courts, the Court of Appeals clarified its earlier holding in Jefferson Ins. Co. v. Travelers Indem. Co. (92 NY2d 363, 373 [1998]).  In Jefferson, the Court found that antisubrogation applied despite the fact that the party against whom indemnity was sought was not expressly covered under the same policy as the party seeking indemnification. More specifically, indemnification was sought from the permissive user of a vehicle, where that user was not otherwise a named insured or additional insured under the policy. The Court of Appeals observed, however, that the permissive user qualified as an insured pursuant to the terms of the policy.

In sum, the Court stated: "The antisubrogation rule, therefore, requires a showing that the party the insurer is seeking to enforce its right of subrogation against is its insured, an additional insured, or a party who is intended to be covered by the insurance policy in some other way, such as the permissive user in Jefferson."  As such, the antisubrogation doctrine did not prohibit Millennium's insurers from pursuing Millennium's indemnity claim against ANP.

Second Department Affirms Finding of Question of Fact in Labor Law Action as to Whether Plaintiff Was Permitted to Work on Roof At the Time of His Accident and Awards Conditional Contractual Indemnification to Owner

In Jardin v. A Very Special Place, Inc., the plaintiff was employed by a sub-subcontractor when he fell from an unsecured ladder while attempting to reach the roof of a building undergoing renovation. The trial court denied plaintiff's motion for partial summary judgment on liability pursuant to labor Law § 240(1), finding questions of fact as to whether plaintiff was permitted to be on site at the time of the accident and whether anyone had instructed plaintiff to access the roof of the building. On appeal, the Second Department affirmed.

The Second Department also modified the order appealed to award the owner conditional summary judgment on its claim against the general contractor. The relevant indemnity provision indicated that the owner could be indemnified for the negligent acts of its general contractor, a subcontractor or anyone directly or indirectly employed by them. Since the owner demonstrated that it was free from fault with respect to the happening of the plaintiff's accident, it was entitled to summary judgment conditioned to the extent that the owner is ultimately held vicariously liable to the plaintiff, and limited to the extent that incident arose out of the negligence of either the general contractor, the subcontractor or the sub-subcontractor.   

Second Department Grants Renewal Based on Change In Testimony Between Witness's Affidavit and His Deposition

In Deleo v. Federal Express Corp., the plaintiffs were the driver and passenger in a vehicle struck in the rear by a Federal Express truck. The driver of the truck submitted an affidavit in opposition to the plaintiff-driver's motion for summary judgment, attesting to the fact that the plaintiff-driver had come to a sudden, unexpected and abrupt stop in front of the affiant's truck. The Supreme Court denied the plaintiff-driver's motion, finding a question of fact to be resolved at trial.

At his deposition, however, the truck driver testified that he saw a vehicle in front of the plaintiff's vehicle also come to an abrupt stop. As such, the plaintiff-driver moved for leave to renew his motion for summary judgment based on the truck driver's change in testimony. The Supreme Court denied the motion.  

On appeal, the Second Department reversed and granted the motion. The Court found that the driver's deposition testimony contained new facts that were not offered on the initial motion for summary judgment. The Court further found that the new facts were sufficient to establish the plaintiff-driver's entitlement to summary judgment as a matter of law on the issue of liability.   

Second Department Affirms Dismissal of Section 240(1) Claim, Finding Plaintiff Was Not Exposed to Elevation Related Hazard

In Vitale v. Astoria Energy II, LLC, the plaintiff was working as a surveyor on a construction site when he was instructed to verify the placement of anchor bolts across a rebar grid. The rebar grid was 5 feet high with square openings measuring at most 12 inches by 12 inches. The plaintiff stepped through one of the openings up to his groin and was allegedly injured.

On motions by the parties, the Supreme Court granted the defendants' cross motion to dismiss the plaintiff's Labor Law §240(1) claim. On appeal, the Second Department affirmed. The Court found that the openings in the grid were not large enough to have permitted plaintiff to fall through, and as such did not present an elevation-related hazard that required one of the statutory enumerated safety devices.  

The Court likewise affirmed dismissal of the plaintiff's section 241(6) claim as predicated upon an alleged violation of Industrial Code 23-1.7 pertaining to "hazardous openings." Once again, the opening was not large enough for the plaintiff's entire body to completely fall through. As such, the Code did not apply under the circumstances.  

Second Department Affirms Finding of Liability Against City, Finding that City Owed Special Duty to Homeowners

In Stanciu v. Bilello, the plaintiff tripped over a sidewalk flag that was raised because of tree roots. The plaintiff sued the adjacent property owners and the owners, in turn, sued the City.  The owners argued that, before they could repair the sidewalk they were instructed by the City that the Department of Forestry needed to inspect the sidewalk around the tree and create a design plan. Although the owners allegedly made repeated attempts to schedule an inspection, no one from the City responded before the plaintiff was injured. 

A jury returned a verdict against the owners and the City in which the jury apportioned 35% of the fault to the owners and 65% to the City. The Second Department affirmed. The Court observed that, although Administrative Code 7-210 shifted liability for sidewalk defects from the City to the adjacent property owner, if the City owed a special duty to the owner the City could be held liable despite the fact that it owed no duty to the injured plaintiff. The existence of a duty to the adjacent property owner is premised upon a special relationship, which includes (1) the assumption by the City of an affirmative duty to act, (2) the failure of which could lead to harm (3) and there must be some form of contact between the City and the party (4) upon which the party justifiably relies.

Here, the Court found that the jury's determination that a special relationship existed between the City and the property owners was supported by legally sufficient evidence.     

Majority Panel in the First Department Affirms Awards for Conscious Pain and Suffering, Loss of Custodial Services and Loss of Guidance

In Oates v. NYCTA, the plaintiff's decedent was struck and killed by a City bus. Plaintiffs' uncontroverted expert testimony demonstrated that the decedent was conscious for 2 to 5 seconds after being hit by the bus. The jury awarded plaintiffs $300,000 for conscious pain and suffering, $150,00 for past loss of custodial services, $400,000 for 10 years of future custodial services and $100,000 for 5 years of future loss of guidance. On appeal, a majority panel of the First Department affirmed.  The dissent would have reversed on liability and dismissed the case against the defendants, finding no evidence of negligence on the part of the bus driver.  

Second Department Affirms Finding that Residential Owner of Two-Family Dwelling Was Entitled to Labor Law Exemption

In Sandals v. Shemtov, the plaintiff was injured in a fall from a ladder while painting a fire escape. He commenced an action against the defendant alleging, in part, a violation of Labor Law § 240(1). The premises on which the fire escape was located was classified as a "multiple dwelling." The evidence established, however, that there were only two separate living spaces. Therefore, the Second Department affirmed the finding that the premises qualified as a two-family dwelling for purposes of the homeowner exemption to Labor Law § 240(1). The Court also affirmed dismissal of the plaintiff's Labor Law § 200 claim, finding that the homeowner did not supervise or control the plaintiff's work.

First Department Finds that General Contractor May Be Held Liable in Negligence for Coordinating Work that Led to Defective Condition

In Gardner v. Tishman Construction, the plaintiff stepped into a hole that was covered with plastic. Tishman, the General Contractor, was responsible for coordinating the work, including supervising the covering of holes created by subcontractors. The First Department found that Tishman could be held liable in negligence for allowing the hole to be covered in plastic by one subcontractor before it could be safely covered with plywood by another subcontractor.  

Court of Appeals Finds That Sufficient Notice of Claim Was Provided to Insurer

In Spoleta Construction, LLC v. Aspen Insurance UK Limited, Spoleta had entered into a contract with Hub-Langie Paving, pursuant to which Hub-Langie was contractually obligated to defend and indemnify Spoleta and to procure Commercial General Liability insurance naming Spoleta as an additional insured for any claims of bodily injury. An employee of Hub-Langie was injured performing work under the contract. As such, Spoleta's insurer notified Hub-Langie that Spoleta would be seeking defense and indemnification from Hub-Langie and also requesting that Hub-Langie "place [its] insurance carrier on notice of this claim." This correspondence, along with a notice of occurrence claim form identifying the injured employee and describing his injury, was forwarded to Aspen. 

After the employee commenced an action against Spoleta, Aspen was again notified of the claim. Counsel for Spoleta specifically indicated that Spoleta was to be named an additional insured on Hub-Langie's policy and a certificate of insurance identifying Spoleta as an additional insured was included with the correspondence. Aspen denied coverage on the basis of late notice, arguing that Spoleta's first notice of claim was a claim for contractual defense and indemnification, not a claim for additional insured coverage.

Thereafter, Spoleta commenced a declaratory judgment action against Aspen.  In response, Aspen moved, pre-answer, to dismiss the declaratory complaint. The lower court granted the motion, but the Appellate Division reversed and reinstated Spoleta's complaint. The Appellate Division then granted leave to appeal to the Court of Appeals on the question of whether Spoleta's initial tender constituted proper notice of claim for additional insured coverage under the Aspen policy.

The Court of Appeals affirmed, finding that the Aspen policy requirements for notice had been met by the initial correspondence.  More specifically, Aspen was made aware of how, when and where the occurrence took place and the nature and location of the alleged injuries.  And, the letter did not specifically state the basis for which Spoleta was seeking defense and indemnification pursuant to its contract with Hub-Langie, i.e. Spoleta did not specifically identify either the contractual indemnity provision or the insurance procurement provision in the contract. Therefore, the Court of Appeals held that the Appellate Division had properly reinstated Spoleta's complaint.  

First Department Holds Labor Law 241(6) Violated Where Tool Used By Plaintiff Could Never Comply With Industrial Code Requirements

In Kelmendi v. Hudson Street, LLC, the plaintiff was using a hand-held reciprocating saw -- a saw with an 8-inch blade protruding from the front that operates by moving back and forth, rather than in a circular motion -- when the blade snapped and struck plaintiff in the neck. The defendants established that, by the very function and intended use of the reciprocating saw, it was impossible for any guards to be placed around the blade. Nevertheless, the saw qualified as a "portable power-driven, hand-operated saw" that required a guard above the base plate and a movable guard below the base plate, under Industrial Code § 23-1.12(c)(1).  As such, the First Department held that the Code had been violated.

The Court further noted, quoting from the lower court's decision, that to accept defendant's argument that the Code should not apply because it was impossible to have a guard on the blade as required by the Code "would be to ineffectualize the regulation because employers, owners and contractors would only use tools that would minimize their liability." 

In essence, the lower court and the First Department presumed that, if reciprocating saws were exempted from the Code then employers, owners and contractors would require workers to use these saws in place of table saws and circular saws, etc., regardless of how inefficient a reciprocating saw might be for the assigned task, simply to insulate themselves from potential liability.     

Second Department Finds Question of Fact Raised by Plaintiff as to Departure Sufficient, Where Defendants' Expert Failed to Address Proximate Cause

In Gallen v. County of Rockland, the defendants moved for summary judgment relying, in part, on an affidavit from their expert who attested that the defendant doctor did not depart from the standard of care in his suicide-assessment of plaintiff's decedent.  The defense expert did not address proximate cause. The Second Department therefore found that, in order to defeat the defendants' motion, the plaintiff's expert needed only to address the standard of care.  The Court further found that the plaintiff's expert raised a question of as to whether the doctor's failure to obtain the decedent's medical records and inadequate suicide assessment rendered the defendant's treatment decision "something less than a professional medical determination," which mandated the denial of defendants' motion.   

First Department Holds That Contractor Had No Duty to Warn City of Dangerous Condition Unrelated to Contractor's Work

In Trawally v. City of New York, Welsbach Electrical Corp. was under an obligation to maintain the City's traffic signals.  Power Optech was under an obligation to maintain the City's streetlights. Although Welsbach had apparently worked on a traffic signal attached to a "leaning streetlight," the First Department held that Welsbach did not owe a duty to warn either the City or Power Optech of the condition of the streetlight, "as it was unrelated to the work for which [Welsbach] had contracted."

First Department Upholds Excess Insurer's Late Notice Disclaimer

In Martin Assoc. Inc. v. Illinois National Ins. Co., Martin had disclosed information to his attorneys and insurance broker which suggested a reasonable possibility that Martin's excess insurance might be implicated in an underlying personal injury action. Martin failed, however, to provide this information to Illinois National, Martin's excess insurer. Illinois National disclaimed coverage 26 days after Martin finally provided notice.  The First Department found that the disclaimer was timely as a matter of law, and also that Martin could not rely on notice provided by his co-defendants in the underlying action because, at all times, Martin's interests were adverse to the co-defendants.

First Department Finds That Worker Was A Labor Law "Employee" Although His Employer Was Not Paid For Work

In Lopez v. La Fonda Boricua, Inc., the First Department found that the injured plaintiff was an "employee" within the meaning of Labor Law § 240(1) despite the fact that his employer had agreed to perform work at the defendant-restaurant gratuitously.

Second Department Affirms Dismissal of Section 240(1) Claim Upon Finding Plaintiff Misused the Ladder From Which He Fell

In Scofield v. Avante Contracting Corp., the plaintiff was performing HVAC work from a 6-foot A-frame ladder.  He reached an area where stacks of sheetrock prevented him from placing the ladder directly beneath his work.  As such, plaintiff climbed to the third rung and leaned over to reach 3 to 4 feet to his right.  As he was performing his work, the ladder toppled over and plaintiff fell and was injured.  The Second Department affirmed dismissal of plaintiff's Labor Law § 240(1) claim upon a finding that plaintiff had improperly positioned and misused the ladder, which was the sole proximate cause of his injuries.  

Second Department Affirms Granting of Mistrial Over Plaintiff's Repeated References to Lack of Medical Insurance

In Peters v. Wallis, the trial court granted a motion to set aside a jury verdict against the defendant as contrary to the weight of the evidence, declared a mistrial and directed a new trial on the issue of liability.  On appeal, the Second Department modified to deny the motion setting aside the jury verdict, but the Court affirmed the mistrial on the finding that plaintiff's repeated references to her lack of medical insurance at the time of the accident may have influenced the jury. 

Second Department Finds Question of Fact as to Whether Plaintiff Was "Permitted to Work" Within the Meaning of the Labor Law

In Aslam v. Neighborhood Partnership Hous. Dev. Fund, the plaintiff was injured in a fall from a scaffold.  The plaintiff testified that he had received permission from his employer to work on the building, but the defendants owner and general contractor argued that plaintiff was expressly prohibited from working on the building.  The Second Department found that defendants had raised a question of fact as to whether plaintiff was "permitted or suffered to work" on the building, a requirement for the Labor Law to apply.

Second Department Reverses and Orders A New Trial For Plaintiffs Despite Their Lack of Objection to Jury Charge

In Figueroa-Burgos v. Bieniewicz, the plaintiffs commenced an action against the defendant for lack of informed consent regarding the plaintiff's breast-reduction surgery.  The jury found in favor of the defendant and the plaintiffs appealed.  The jury was charged that the defendant had a duty to inform the plaintiff of alternatives to surgery and also that the defendant had a duty to inform the plaintiff of the risks of surgery.  The jury was asked to determine if the defendant departed from good and accepted medical practice by failing to provide appropriate information to the plaintiff and, if so, whether such departure was a proximate cause of the plaintiff's alleged injury.  The plaintiffs did not object to the jury charge or verdict sheet.

On appeal, the Second Department nevertheless considered the unpreserved objection that the jury was not properly charged with the standard for lack of informed consent.  The Court found that the jury was not properly instructed on the three elements of lack of informed consent: (1) that the defendant failed to disclose alternatives to surgery and failed to inform the patient of reasonably foreseeable risks that a reasonable practitioner would have disclosed under the circumstances; (2) that a reasonably prudent patient would not have undergone surgery if she had been fully informed; and (3) the lack of informed consent is a proximate cause of the injury.  Here, the jury was only asked to decide if two of the three elements existed, so the Second Department reversed the judgment and remanded the matter for a new trial on lack of informed consent.  

Can A Party Appeal on Behalf of Another Party? Second Department Reminds the Bar That the Answer Is: "NO"

In Barrett v. Dennis Lounsbury Builders, Inc., defendant Garvey attempted to appeal the dismissal of the plaintiff's Labor Law § 200 and common-law negligence claims asserted against defendant Dennis Lounsbury Builders, as well as the refusal of the lower court to search the record and grant Garvey summary judgment on his cross-claim against Lounsbury for common-law indemnification. The Second Department dismissed Garvey's appeal, holding that "[w]here the order does not affect the rights of an appealing party, that party is not aggrieved by the order and the appeal must be dismissed."  Likewise, a party is not aggrieved by an order that does not grant relief that was not requested.     

Majority of First Department Panel Finds That Study-Abroad Organizer Owed Duty to Care For Program Participant

In Katz v. United Synagogue of Conservative Judaism, the plaintiff was a participant in a study-abroad program in Israel operated by United Synagogue.  During her first semester abroad she allegedly injured her knee for which she was treated by a doctor.  During the second semester she performed volunteer work where she stayed with a host family.  Plaintiff's relatives lived an hour and a half away in Jerusalem, and plaintiff had a cell phone to contact her parents.  She allegedly re-injured her knee for which she again received treatment at a hospital.  She was told to rest and return in two weeks if the knee remained swollen.  A week later she was accompanied by a United Synagogue staff member to an orthopedist appointment where an MRI was prescribed.  Another week later she was again accompanied to her MRI appointment and the following week returned to the orthopedist, once again accompanied by United Synagogue.  She was prescribed physical therapy but did not seek treatment because she told United Synagogue to make arrangements for her.  When they failed to do so, she complained to the program director who was not responsive.  Finally, she complained to her parents.  Upon returning to the states she underwent surgery that she claims was exacerbated by her failure to obtain physical therapy in Israel.

The majority found that United Synagogue owed a duty to the plaintiff because it was in the best position to protect her from harm -- although the majority recognized that "plaintiff, an adult, with access to her parents in another country and family in Jerusalem, may not have been as helpless as she makes herself out to be."  The majority further found that this was not an ordinary study-abroad program because of portion of the program was not held at a university.  Lastly, the majority suggested that it was not extending the doctrine of in loco parentis, which does not apply at the college level, because the program had an internal policy of assisting with arrangements for medical care.

The dissent disagreed, finding that the majority was, in fact, applying the doctrine of in loco parentis, which has been affirmatively rejected by the Courts with respect to study-abroad programs.  The dissent noted that the plaintiff had the means to make arrangements for her medical treatment, and that any failure by defendant to do so amounted to a mere breach of contract, which would not create an independent tort duty. Finally, even assuming that defendant owed a duty to the plaintiff, the dissent would have dismissed the claim based on a lack of proximate cause. 

The majority consisted of Justices Acosta, Saxe and Moskowitz. The dissent was written by Justice Andrias, in which Justice Tom joined.  With a 3-2 split the defendant will have an automatic right of appeal to the Court of Appeals once finality has been achieved.  We will continue to monitor the case for a possible leave motion in advance of finality being obtained.          

First Department Finds That its Decision as to One Defendant Was Law of the Case as to the Remaining Defendants

In David v. Persaud, the plaintiff alleged that defendant Dr. Cerbone, an ER attending and defendant surgeon, Dr. Hutchinson, failed to diagnose and treat a post-operative infection at defendant St Barnabas Hospital which ultimately led to the death of her decedent.  On motions and cross-motions by all defendants for summary judgment, the trial court denied the motions and Dr. Cerbone appealed.  The First Department reversed and dismissed the claim against Dr. Cerbone, finding that "plaintiff's expert failed to causally relate the alleged four-day delay in diagnosis... to decedent's death."

Thereafter, Dr. Hutchinson and St Barnabas moved to renew their motions for summary judgment, which were granted and plaintiff appealed.  The First Department affirmed, finding that the lower court had properly relied on law of the case doctrine.  The First Department also found that renewal was the appropriate procedural course because its earlier decision dismissing the case against Dr. Cerbone constituted a change in the law. 

Third Department Appears to Indicate That "Hogeland" Indemnity Is Not Available Unless Insurance Is Actually Procured

The General Obligations Law at sections 5-321 and 5-322.1 prohibits a party to a contract or agreement from being indemnified for its own negligence.  Section 5-321 pertains to agreements related to the leasing of real property, and section 5-322.1 pertains to construction contracts.  Where a broadly worded indemnity provision purports to indemnify a party for its own negligence, it will be void or voidable upon a finding of active fault (the party may still be indemnified for its vicarious liability).

For years, however, the "Hogeland" exception has permitted an actively negligent landowner to be indemnified for its own negligence where sophisticated parties have negotiated the agreement at arms-length and have shifted the risk of loss to third-parties through mutually beneficial insurance (see Hogeland v. Sibley, Lindsay & Curr Co., 42 NY2d 153 [1977]). 

A question has been raised, however, what happens to a broadly worded indemnity provision pursuant to GOL 5-321 if the party who is obligated to procure the insurance, typically the tenant in the landlord-tenant context, fails to do so?  

The Third Department seems to indicate that the indemnification provision will be void and unenforceable under those circumstances.  In Reutzel v. Hunter Yes, Inc., the Third Department stated the general "Hogeland" principal, but indicated that the "Hogeland" analysis "presupposes... that the required insurance actually is procured."  In the case before the Court, the record was not clear whether such insurance had actually been procured.  Under those circumstances, the Court declined to grant summary judgment to either party, suggesting that if such insurance was not procured then the "Hogeland" exception would not apply, and the landlord could not be indemnified for its own negligence.