First Department Reduces Conscious Pain and Suffering

In Santana v. De Jesus, the Appellate Division, First Department reviewed the excessiveness of a pain and suffering award for the plaintiff's decedent, who was struck by a bus while walking along a public street.  The jury awarded $750,000 in past pain and suffering, including pre-impact terror.  The First Department found the award was excessive and reduced it to $375,000.

Big Soda Ban Headed to Court of Appeals

In July we posted the Appellate Division, First Department's decision upholding the order to strike down the New York City ban on sugary drinks over 16 ounces.  Today, the Court of Appeals granted the City's motion for leave to appeal.

 

Court of Appeals Defines What Constitutes "Routine" Cleaning, Which Is Not A Labor Law Protected Activity

In Soto v. J. Crew, the Court of Appeals defined the meaning of routine cleaning within the meaning of Labor Law § 240(1).  In this action, the plaintiff fell off a ladder while dusting a six-foot shelf and was injured.  The trial court initially dismissed claims under section 240(1), holding that the statute did not cover the plaintiff’s work as a commercial cleaner employed to take routine care of a J. Crew store.  On appeal, the Appellate Division, First Department affirmed (see prior blog post).  The First Department’s decision was based on a recently decided Court of Appeals case, Dehar v. Holland Ldr. & Mfg. Co., but the court later granted leave to appeal to the Court of Appeals.  At the Court of Appeals, the parties argued whether the plaintiff’s dusting was a Labor Law protected activity.  

This is the first Court of Appeals decision setting out a test to determine whether a “cleaning” activity is either merely routine, which is not protected, or a covered activity under Labor Law § 240(1).  The Court enunciated four factors to guide the lower courts in making a determination as to routine cleaning activities.  Those factors are: whether the work engaged in by the injured worker 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.

DISCLOSURE: The above is an MLN case.  Anthony DeStefano, Esq., a partner at Mauro Lilling Naparty LLP and regular contributor to this blog represented the Defendant-Respondent in the above matter.

Excessive Judicial Involvement in Trials Results In Two Vacated Jury Verdicts

The Appellate Division, Second Department vacated two medical malpractice jury verdicts in decisions released October 2, 2013.

In Porcelli v. Northern Westchester Hospital Center, the Second Department vacated a defense verdict and granted the plaintiff a new trial against a doctor and, vicariously, against a hospital.  The Court held that the plaintiff was entitled to a new trial because of repeated conflicts between the judge and plaintiff’s attorney, often in front of the jury.  This conduct included telling the plaintiff's attorney to "tone down the histrionics" and mentioning that if the plaintiff's attorney deposed an expert before trial, he would be "like a leech on a horse."  The Second Department did note, however, that plaintiff's counsel "may have been overly aggressive, and at times even antagonized the trial justice."  The Second Department nevertheless ordered the new trial while upholding a directed verdict in the defendant hospital's favor on claims it was liable for negligence directly as opposed to just vicariously.

In Nunez v. New York City Health & Hospitals Corp., the Second Department set aside a plaintiff’s verdict and granted a new trial because of the excessive intervention of a Queens County judge.  Notably, this is not the first time the judge in Nunez has been reversed on this issue, and the Second Department mentioned some examples of the prejudicial conduct.  The conduct included conveying an impression of "incredulity" at defense expert opinions as well as otherwise excessively intruding into the examination of the witnesses.  The Second Department also pointed out errors in precluding a defense witness as cumulative and in giving a Noseworthy charge, which reduces a plaintiff's burden due to an inability to testify due to memory loss.

Also of note, there was a dissent in Nunez that argued to uphold the jury verdict, but reduce damages.  The infant plaintiff in Nunez suffers from cerebral palsy and related injuries.  The dissent would have reduced a past pain and suffering award from $1.5 million to $750,000.  The dissent would also have reduced the future pain and suffering award from $8.7 million to $1.5 million.  The dissent also took issue with the award for medical equipment and supplies, arguing for a reduction from $3,571.50 per year for 64 years at a growth rate of 3.5% to $1,217.03 per year for 64 years at a growth rate of 2.5%.  Finally, the dissent would also have reduced the growth rate for home health care and lost earnings from 3.5% to 3.0%.  Regarding the reduction of these growth rates, the dissent pointed to trial evidence and the plaintiff’s statement in his brief that he would not oppose such reductions. 

Reargument Granted in Insurance Coverage Case K2 Inv. Group, LLC

The Court of Appeals has granted reargument in the recently decided insurance coverage case K2 Investment Group, LLC v. American Guarantee & Liability Co.  In June, the Court of Appeals concluded that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on policy exclusions to escape its duty to indemnify the insured for a judgment against him.” 
  

The Court does not give reasons for granting reargument but one commentator noted that the motion for reargument in K2 asked the Court to take another look at K2 and the Court’s prior decision in Servidone Construction Corp. v. Security Insurance Co. of Hartford.  Servidone, like K2, involved an insurer that breached its duty to defend, a subsequent demand to indemnify, and an argument that a claim was not within a policy's coverage.

Second Department Holds That New Jersey Law Applies To Insurance Policy For Purposes of Determining Validity of Late Notice Disclaimer

In Jimenez v. Monadock Constr., Inc., the Second Department applied New Jersey law to determine that an insurer was obligated to prove that it was prejudiced by its insured’s late notice.  The policy was issued to the insured, Bedroc Contracting, LLC in New Jersey through a New Jersey broker prior to January 17, 2009, the date on which the New York Insurance Law was amended to require insurers to prove prejudice when relying upon late notice as the basis for a disclaimer.  As such, the insurer argued that New York law applied because the underlying accident had occurred in New York and that the insurer was not obligated to prove that it was prejudiced by Bedroc’s late notice.  The Second Department held to the contrary.  The Court indicated that the “center of gravity” or “grouping of contacts” analysis would ordinarily be applied liability insurance contracts to hold that the policy is governed by the law of the jurisdiction “with the most significant relationship to the transaction... which the parties understood was to be the principal location of the insured risk”.  Where, however, the risk is spread across multiple states, the insured’s domicile is deemed to be the proxy for the principal location of the insured risk.  Here, the insurer understood that Bedroc was insured over multiple states and therefore Bedroc’s domicile, New Jersey, was deemed to be the proxy location and New Jersey law applied to the insurer’s late notice disclaimer.

Second Department Finds Questions of Fact In Labor Law Action Involving Falling Concrete Form

In Ross v. DD 11th Ave., LLC, the Second Department found that questions of fact existed as to whether the defendants had violated Labor Law 240(1), where a worker was injured by a falling concrete form.  The form was apparently adjacent to a form that plaintiff was removing.  The Court found that whether the form required securing for purposes of plaintiff’s work was a triable issue.  The Court rejected the defendants’ argument that securing the adjacent form would have been contrary to the objectives of plaintiff’s work, i.e. to remove the concrete forms.  Curiously, in support of its decision the Court cited Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259 (2001).  In Narducci, the plaintiff was injured by a falling window that was adjacent to the window that he was removing.  Unlike the Second Department here, the Court of Appeals found in Narducci that the adjacent object did not need securing for the purposes of the plaintiff’s work and dismissed the plaintiff’s section 240(1) claim.