New Second Circuit Filing Rules

Effective December 15, 2010, the Second Circuit has shortened the time for briefing.  Appellant's can now request up to 91 days from the ready date to file their Brief and respondents (or appellees)  will have up to 91 days to file their brief.  The Notice is here.   

The Court has also created an expedited briefing schedule for appeals from district court orders that dismiss a complaint for (a) lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1); (b) failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6); or (c) filing a frivolous complaint, or for any other ground specified in 28 U.S.C. §1915(e)(2).

"If the order appealed from cites at least one of these grounds for dismissal, the parties must so identify the case by checking the appropriate box on revised Form C. The Clerk notifies the parties when an appeal is placed on the [Expedited Appeals Calendar] and sets the briefing schedule for all parties as follows: 35 days from the date of the Clerk’s notification for the appellant’s brief, 35 days from the date after the filing of the last appellant’s brief for the appellee, and 14 days from the filing of the last appellee’s brief for the reply."  The Notice is here. 

"Injury In Fact" Test Applied to Mold Exposure

In Downey v. 10 Realty Co., LLC, the plaintiff was exposed to mold during a period of time that defendant's, Greater New York Mutual's, policy was in effect. Plaintiff's injuries, however, did not manifest until after the policy had expired. In holding that GNYM had no duty to defend or indemnify its insured for plaintiff's injuries, the Court applied the "injury in fact" test and held that the insured was obligated to prove that "actual damage or injury" had occurred during the policy period.

Authorizing A Method Of Work Does Not Constitute Control Over The Work

In Delaney v. City of New York, plaintiff was working on a bridge owned by the City. He was struck by a pick-up truck operated by a co-employee when he entered a lane of travel on the roadway that had been closed to allow the work to be performed. The Court held that the accident arose out of his employer's means and methods, and that, simply because the City authorized lane closeures it could not be found to have exercised supervision and control over plaintiff's work within the meaning of Labor Law sect. 200. The Court also held that sect. 200 liability cannot be based upon alleged OSHA violations, as the City was not plaintiff's employer and OSHA applies only to employee/employer relationships.

Default For Attorney's Failure to Appear At PC Vacated

In Goodwin v. New York City Housing Authority, the plaintiffs' action was dismissed for their attorney's failure to appear at a preliminary conference. The First Department vacated the default, finding that the showing of merit necessary to vacate a default under 22 NYCRR 202.27 for failure to appear at a court conference "is less than what is necessary for opposing a motion for summary judgment." Therefore, given the availablity of pictures of the accident location, coupled with plaintiff's inability to remember the accident because of the injuries he sustained, plaintiffs' action should not have been dismisssed.

The Court further found that law office failure was a reasonable excuse for the default.

Lastly, the Court felt compelled to comment, somewhat scathingly: "This court is all too familiar with this case, having reversed Supreme Court's wrongful dismissal of the complaint once before... The lawsuit stemming from this eight-year-old accident accident has now survived two mistaken dismissals. No discovery has taken place. It is time for discovery to commence and finish expeditiously so that plaintiffs' claims may be addressed on their merits."

Obligation to Continue Defending Client Ceases When Insurer's Duty to Pay Defense Costs Has Ended

In Ruiz v. Frog Co., LLC, the First Department held that defense counsel cannot be compelled to continue defending its client when the client's insurer is no longer obligated to pay counsel's fees; "[counsel] should not be compelled to continue representation without compensation."

Recent Labor Law Decisions By The Court Of Appeals

On October 21st, we posted about the Court of Appeals decision in Gasques v. City of New York, a Labor Law case.  In Gasques, the plaintiff’s hand was crushed when it became wedged between part of an ascending “spider scaffold” and a leg of the Kosciuszko Bridge. The Court of Appeals held that the plaintiff could not recover under § 240(1) for injuries from the ascending scaffold pinning and crushing his hand because “the injury was not the direct consequence of the application of the force of gravity to an object or person.”

The Court, however, would subsequently find in Strangio v. Sevenson Envtl. Servs., Inc., that a question of fact existed as to whether defendants provided proper protection under Labor Law § 240(1) in a case involving the “unchecked descent” of a scaffold. Although the plaintiff was not injured by falling from the scaffold or by the fall of the scaffold itself, he was struck in the face with the handle of the scaffold’s hand-operated hoisting mechanism. Arguably, the fall of the malfunctioning scaffold caused or contributed to plaintiff’s injury and thus was directly related to the application of the force of gravity to the scaffold.

A distinction to be made between the two cases is that the scaffold in Strangio did not function as intended, causing an “unchecked descent.” By contrast, the scaffold in Gasques functioned as intended and the effects of gravity were not implicated. 

Notably, in Gasques the plaintiff had also asserted a Labor Law § 241(6) claim based on a violation of 12 NYCRR 23-1.5 (c)(1), which requires that equipment be in “good repair and in safe working condition.” According to the Court, this rule cannot serve as a predicate because it does not constitute a “specific, positive command” or said differently, the plaintiff’s proposed predicate rule did not “set forth a specific standard of conduct.”

The Court of Appeals then subsequently held in Nostrom v. A.W. Chesterton Co., that claims of vicarious liability under Labor Law § 241(6) may not be predicated on any of the regulations contained in part 12 of the Industrial Code, unless they are expressly incorporated into part 23 of the Industrial Code.

Court of Appeals Issues New Filing Rules

The Court of Appeals has reduced the number of paper copies of records, appendices and briefs for normal coursed appeals and certified question reviews from 25 to 20 copies.  All parties will also be required to file on disk digital versions of each paper filing. Appeals to be considered under section 500.11 of the Rules will be subject to a similar digital filing requirement. The new requirements regarding submission in digital format will apply to all appeals for which the preliminary appeal statement is filed on or after December 8th.  Here is a link to the Amended Rules.