Appellate Division News

As reported in today's Law Journal, Governor Cuomo has named Justice Randall Eng as the new Presiding Justice of the Appellate Division, Second Department. The governor also announced the appointments of Justices Judith Gische, Darcel Clark, and Paul Feinman for the First Department; Justice Sylvia Hinds-Radix for the Second Department; and Justices Joseph Valentino and Gerald Whalen for the Fourth Department.

Second Department Re-Affirms the Principle That Whether An Object Is A "Structure" Within the Meaning of the Labor Law Requires A Fact-Specific Inquiry

In McCoy v. Kirsch, the plaintiff was injured in a fall from a ladder while dismantling a "chupah," a canopy under which brides and grooms stand during weddings conducted in the Jewish religious tradition.  After noting that the Court of Appeals indicated long ago that "the word 'structure' in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Caddy v Interborough R.T. Co., 195 NY 415, 420), the McCoy Court cited various cases in which the Labor Law was applied to "several diverse items" found to be such structures and other various cases in which the object at issue was found to not be a structure.  The Court indicated, therefore, that: "[w]hether an item is or is not a 'structure' is fact-specific and must be determined on a case-by-case basis. In determining each case, courts may consider a number of relevant factors. These factors should include, but are not necessarily limited to, the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor should be deemed controlling."

In McCoy, the Court affirmed summary judgment in the plaintiff's favor, finding that this particular chupah, which was constructed of interconnected pipes, wood and fabric, all of which were secured to steel metal bases and required a ladder and hand tools to dismantle, was a structure within the meaning of the Labor Law, but the Court further indicated that another less durable, merely decorative chupah or other object, might not be considered such a structure.   

First Department Speaks on Labor Law § 240(1): Couplings Are Statutory Safety Devices. And, Foreseeability of the Need For A Device May Be the Dispositive Inquiry.

In Fabrizi v. 1095 Ave. of the Americas, L.L.C., a three opinion decision, a majority of the First Department found that questions of fact existed as to whether a "coupling" provided to the plaintiff to secure conduit was an adequate safety device under Labor Law § 240(1). The plaintiff, an electrician, was injured when a piece of conduit fell and struck his hand after it had separated from a "compression coupling." The plaintiff had specifically asked his supervisor for a "set screw coupling" to secure the pipe. Defendants argued that the compression coupling, along with an additional support system that had been provided, were sufficient for the work being performed. Four of the five Judges found that neither side had established their position as a matter of law, and therefore both plaintiff's and defendants' motions for summary judgment should have been denied.

In his dissenting opinion, Judge Tom argued that the defendants were entitled to summary judgment either because plaintiff was the sole proximate cause of his accident or because a "coupling" is not a statutory enumerated safety device. With respect to sole proximate cause, Judge Tom observed that plaintiff had removed two securing devices, without rational explanation, and left the conduit connected only to the compression coupling while he worked directly underneath the conduit. As to the coupling itself, Judge Tom found that it was not a statutory safety device, but rather a component part of the conduit system "whose purpose is to connect two sections of conduit" not to secure the conduit against falling.

In a third opinion, Judge Román felt constrained to address the concept of "foreseeability" in the context of Labor Law § 240(1). As the readers to this blog may recall, Judge Acosta had previously written an opinion in Ortega v. City of New York in which the Judge indicated that foreseeability applied only to Labor Law actions involving the collapse of a permanent structure. By contrast here, Judge Román argued that foreseeability applies to all Labor Law § 240(1) claims, especially claims involving falling objects. Of particular note is Judge Román’s observation that “foreseeability in the context of Labor Law § 240(1) jurisprudence, is a term we seldom see expressly mentioned in the relevant case law… Nevertheless, even when not specifically mentioned, in a great number of cases… foreseeability has been dispositive and has been necessarily implied.” Therefore, according to Judge Román, the relevant inquiry must address “whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute.”

Given the apparent split within the First Department on the issue of foreseeability as applied to Labor Law § 240(1), “coupled” with the fact that apparently anything can constitute a statutory enumerated safety device when placed in context with gravity related work, defendant’s counsel would be well advised to develop an argument that it was unforeseeable that plaintiff’s work would involve a gravity related risk, and therefore the defendant did not owe plaintiff a duty to provide a statutory safety device in the first instance.

Court of Appeals Watch: Dean v. Tower Insurance Co. of New York

Dean v. Tower Insurance Co. of New York will be argued at the Court of Appeals this Tuesday.
 

In this insurance coverage action, at issue was an insurance policy Tower issued in March 2005 with respect to a house purchased by the Deans.  The policy stated that it covered physical loss to the "residence premises," which it defined as "[t]he one family dwelling, other structures, and grounds . . . where you reside."

After closing on their new house, the Deans discovered termite damage that delayed their ability to move in because of needed extensive renovations.  During this time, the Deans continued to reside in their old house without informing Tower. In March 2006, the policy was renewed for a second year while renovations were ongoing. Ultimately, an unrelated fire destroyed the new house and the Deans filed a claim under their policy. Tower disclaimed coverage on two grounds (1) that the insured house was not a “residence premises” under the policy; and (2) that the Deans misrepresented that they occupied the insured house. The Deans commenced an action against Tower, seeking to compel Tower to insure their loss.

The Supreme Court granted Tower's motion for summary judgment dismissing the complaint, holding that the house was not a "residence premises" under the policy.  The Court found that, "[g]iving the words 'where you reside' their 'plain and ordinary meaning,' the policy covered a dwelling where the Deans lived for a permanent or extended period of time."  Here, since the Deans never resided in the new house, the Court found that the new house was not a "residence premises."

In modifying the Supreme Court's order to deny summary judgment to Tower, the Appellate Division found that "residence premises" was ambiguous under the facts of the case, particularly where the term "resides" was undefined by the policy, and that there was an issue of fact as to whether the plaintiff's misrepresented their intention to reside at the insured house.

The Appellate Division granted Tower leave to appeal to the Court of Appeals. Arguments will be this Tuesday, September 11, 2012. The session begins at 2:30 p.m. and this matter is listed fourth on the calendar.  Based on the requested oral argument times of earlier matters, this matter should be argued, beginning at approximately 3:50 p.m.

The Court streams oral arguments live online. To watch the oral arguments, you can visit the New York Court of Appeals website on Tuesday after 2:30 p.m. and click on the "Oral Arguments Webcast" link on the right-hand side of the screen. Alternatively, on Tuesday after 2:30 p.m. you may click here to open the windows media player stream directly.

First Department Holds That 4-12" Mis-Step Is Not An Elevation Related Risk, But Slippery Condition May Have Been Caused By Industrial Code Violation

In Cappabianca v. Skansa USA Building Inc., the First Department affirmed dismissal of Labor Law and common law claims except section 241(6) where the plaintiff fell on an unsteady pallet. The plaintiff was standing on a slatted pallet and was cutting bricks with a wet saw located on an adjacent pallet. The wet saw’s pan improperly leaked water and muck (from the bricks) onto the floor, which built up over days and weeks of use. When the plaintiff turned to stack a recently-cut brick, the pallet swiveled, causing the plaintiff to fall. The First Department held that section 240(1) did not apply because the plaintiff’s fall/misstep from the 4-12 inch pallet did not expose the plaintiff to the kind of elevation-related risks that trigger the scaffold law.

With two judges dissenting, the First Department affirmed dismissal of plaintiff’s claim under section 200 and the common law, noting that the water/muck condition was the result of the “manner and means of the work ” over which the defendants did not exercise supervisory control, and that the water/muck condition was not a dangerous condition of the premises. According to the majority, the water/muck condition was the result of the plaintiff’s employer’s negligence, and section 200 does not allow for vicarious liability against an owner or general contractor. By contrast, the dissent argued the section 200 and the common law claims should be reinstated because the water/muck could become a dangerous premises condition over time or the origin of the water might be the result of a separate dangerous premises condition that allowed rainwater to accumulate on floors.

The First Department reversed and reinstated the plaintiff’s claims under section 241(6), finding that there were triable issues under two industrial code provisions (1) prohibiting worker use of elevated working surfaces set in a slippery condition and requiring the removal or covering of water or foreign substances that may cause slippery footing and (2) requiring repairs or replacement of defective or unsafe “[power-operated] equipment.” The First Department rejected, however, plaintiff's claim under the section on hazardous openings, noting that it did not apply to the 3-6 inch openings between slats on the pallet. Similarly, a provision related to vehicular and pedestrian traffic was inapplicable to the slatted pallet on which plaintiff worked; a provision regarding wet footing did not apply because plaintiff testified that he wore rubber-soled work boots that adequately protected him; and a provision on tripping hazards did not apply where plaintiff did not trip on an accumulation of dirt or debris.

First Department Holds That Replacement of Light Sockets Is "Routine Maintenance"

In Picaro v. New York Convention Center Development Corp., the plaintiff, a "house electrician" was injured "fixing" a light fixture.  He testified that he performed this task "twice weekly" and that most electricians would simply change the entire fixture when performing such work.  His supervisor attested to the fact that the high-voltage nature of the lights caused the sockets to deteriorate, which again required them to be replaced on a routine basis.  Based upon the foregoing, the First Department held that plaintiff's work clearly involved the replacement of worn-out components, which is not a Labor Law protected activity.

Second Department Strictly Construes Insurance Policy Language Regarding "Excess" Coverage

In Utica Mut. Ins. Co. v. Geico, the Second Department found that Utica was excess over Geico based upon the following comparison of the respective insurer's policy language.  The Utica policy indicated that it was "excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis."  By comparison, the Geico policy indicated merely that it was "excess over any insurance," without reference to contribution.  Citing State Farm Fire & Cas. Co. v LiMauro (65 NY2d 369, 375-376), the Second Department held that because the Utica policy had expressly negated contribution, whereas the Geico policy was silent in this regard, Utica was excess over Geico.