Second Department Dismisses Labor Law §§ 240(1) and 241(6) Claims of Wallpapering Plaintiffs

In Simon v. Granite Bldg. 2, LLC, the plaintiff and his decedent wife arrived at a newly constructed office building to hang wallpaper.  When they were unable to enter the front of the building, the decedent drove the van they were in through a fence into an as yet uncompleted parking structure adjacent to the building.  Once on the second floor of the parking structure, the decedent attempted to stop the van but it slid on ice, broke through a cable guard rail and fell 32 feet.  The plaintiff was able to exit the van before it fell, but the decedent fell to her death.

In dismissing the plaintiff's Labor Law §§ 240(1) and 241(6) claims, the Second Department found that wallpapering is not an enumerated activity under the Labor Law and that the work to be performed was not part of the larger construction construction project.  While the Court acknowledged that it should not "isolate the moment of injury," it concluded that, "under the circumstances presented, the accident occurred before the plaintiff and his decedent had begun any work that conceivably could have been covered under these sections of the Labor Law" (citing Beehner v. Eckerd Corp.).

Second Department Holds That Condo "Alteration Agreement" Is Not Subject to GOL

In Guryev v. Tomchinsky, the condominium defendants sought indemnification from the owner of an individual condominium unit pursuant to an "Alteration Agreement" that was entered into between the parties for renovation work in the unit.  The Second Department found that the indemnification provision was triggered based upon the allegations of a worker who was injured while performing the subject renovation work, and that the condominium defendants had demonstrated that they were free from negligence.  The Court held that the indemnification provision, even if broadly worded, was nevertheless enforceable because: (1) General Obligations Law 5-322.1, which applies to agreements collateral to a lease, was inapplicable to the condominium unit; (2) the clause did not require the unit owner to indemnify the defendants for their own negligence and (3) since the condominium defendants demonstrated that they were free from fault, the agreement, "as applied, does not run afoul of the proscriptions of General Obligations Law 5-322.1."

We previously blogged about certain issues in the Guryev case after an earlier Court of Appeals' decision and when the Court of Appeals granted leave in the matter.

First Department Holds That Successful Party On Motion Is Not Entitled To Renewal

In Fernandez v. Moskowitz, the defendants were denied summary judgment and appealed. The First Department reversed, finding that plaintiff failed to establish his alleged injury. More specifically, the Court found that plaintiff's experts had failed to refute the normal results of the MRIs relied on by defendants' experts or explain plaintiff's early normal development.

Thereafter, plaintiff moved to renew on the basis that the First Department's finding was a "new fact" as considered in CPLR 2221(e)(2), and that he should be allowed to renew the summary judgment motion to proffer the results of a new diagnostic test and expert's affidavit that he argued would have persuaded the First Department to affirm the denial of summary judgment to the defendants (CPLR 2221[e][2]).

In rejecting the plaintiff's argument, the First Department found that, because the motion court had denied defendants' summary judgment motion, plaintiff as the prevailing party was never entitled to seek renewal of that motion (see e.g. Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [where the successful party obtained the full relief sought, it has no ground for appeal [or renewal], even if that party disagrees with the particular findings, rationale or the opinion supporting the order below in its favor]). The Court further observed that, because judgment dismissing the complaint had been entered, plaintiff's recourse was to seek to vacate the Court's decision and judgment based on the existence of the new diagnostic test and expert's affidavit (CPLR 5015[a][2]).

First Department Holds Chiropractic Departure Subject to Three-Year, Not Two-Year-Six-Month, Statute of Limitations

In Perez v. Fitzgerald, the First Department held that an action was timely commenced against a chiropractor because the three-year statute of limitations applied to his treatment of the plaintiff.  Whether the shortened medical malpractice statute of limitations applied was an issue the trial court delayed until post-verdict briefing.  A jury then found that the chiropractor departed by failing to refer the plaintiff to a second MRI.  On post-verdict briefing, the trial court dismissed the plaintiff's complaint.  

The First Department has now reversed the trial court, holding that the defendant chiropractor was not entitled to the shortened 2.5-year statute of limitations under CPLR 214-a.  The First Department first rejected the view that the chiropractor's treatment was "medical" within the meaning of CPLR 214-a.  Then, the First Department concluded that the work was not prescribed by a medical doctor and therefore was not "an integral part of the process of rendering medical treatment to a patient or substantially related to any medical treatment provided by a physician."  In the First Department's view, the defendant could not meet the standard set forth in Bleiler v Bodnar (65 N.Y.2d 65 [1985]), and thus would be held to the longer three-year statute of limitations.

Careful Consideration Must Always Be Given to When A Cross Appeal May Be Necessary

In Agosto v. City of New Rochelle, the defendants moved to dismiss the plaintiffs' complaint on the basis that plaintiff had assumed the risk of injury by participating in a game of two-hand touch football.  The plaintiff moved to dismiss the affirmative defense of "assumption of risk".  The defendants' motion was denied and so was plaintiffs, but only defendants appealed.  The Second Department affirmed the denial of the defendants' motion, but declined to consider the plaintiffs' argument that their motion should have been granted.  The Court held: "The plaintiffs' contention that the Supreme Court improperly denied their motion to strike the affirmative defense of assumption of risk from the defendants' respective answers is not properly before this Court since the plaintiffs failed to appeal or cross appeal from the order (see Servais v Silk Nail Corp., 96 AD3d 546; Young v Abbott & Mills, Inc., 82 AD3d 1218; Matter of Coscette v Town of Wallkill, 18 AD3d 657)."

Second Department Reminds Practitioners Of The Infrequently Discussed Third Standard Under Which A Contractor Can Be Held Liable In Negligence

We often Blog about cases that fall into two categories for which an Owner or Contractor at a construction site can be held liable under section 200 of the Labor Law or common-law negligence.  If the accident arose out of the means and methods of the plaintiff's work, an Owner or Contractor can be held liable if it supervised the work.  If the accident arose out of a dangerous condition on the property, an Owner or Contractor can be held liable where it had notice of the dangerous condition and the authority to correct that condition.

In Van Nostrand v. Race & Rally Constr. Co., Inc., however, the Second Department reminds practitioners that an Owner or Contractor can also be held liable to the plaintiff in common-law negligence where the Owner or Contractor "created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries."  Here, the plaintiff was assisting in the delivery of air conditioning equipment from a truck when the equipment that was being hoisted by a crane became stuck under a side rail.  The crane operator instructed the plaintiff to place a pallet jack under the equipment while the operator kept tension with the crane.  The driver of the truck then used a pry bar to maneuver the side rail.  The plaintiff was injured when the the pallet and jack shifted toward him and knocked him off the truck.

The Second Department held that the plaintiff's section 200 claim should have been dismissed against the crane operator's employer, MCN because it did not supervise or control the plaintiff's work.  The Court nevertheless held that MCN's motion to dismiss the plaintiff's common-law negligence claim was properly denied.  The Court found that a contractor could be held liable where the work it performed created the condition that caused the plaintiff's injury, even in the absence of supervision or control over the plaintiff or his work area.  Here, the Court found that a question of fact existed as to whether the crane operator's actions created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries. 

Morris v. Pavarini Constr.: The Court of Appeals’ Final Decision

In Morris v. Pavarini Constr., it was alleged by plaintiff that he was injured by a “form” object within the meaning of Industrial Code 23-2.2[a], that had not been properly braced.  Although the object that fell was one panel of what would make up a two panel “form,” plaintiff argued that it nevertheless qualified as a “form” under the Code.  The Appellate Division initially dismissed the plaintiff’s case in 2006, with the reasoning that the Industrial Code did not apply since the form was “in the process of being created.”

Thereafter, plaintiff appealed to the Court of Appeals.  The Court declined to render an interpretation of the Code, as it believed that there was not sufficient information in the record to do so.  As such, the matter was remitted in order to develop a more appropriate record in regards to whether “the words of the regulation can sensibly be applied to anything but completed forms.”  After the Court’s decision, both sides presented expert witnesses and the trial court subsequently granted the defendant’s motion for summary judgment, dismissing the action. 

On appeal, the Appellate division reversed, and this time granted the plaintiff summary judgment in a 4-1 decision.  Their reasoning was based on the fact that “the expert testimony showed that the regulation could apply to forms as they were being constructed, and that a back form must be braced to maintain its position.”  Defendants appealed to the Court of Appeals, who then had a more complete record in which to render a decision in this case.

Defendants argued in the Court of Appeals that the expert testimony established that the requirement that forms “shall be properly braced or tied together to maintain position and shape” could not logically apply to one side of a form, as is present in this case, since there is no ostensible shape to be maintained.  However, the Court of Appeals agreed with the Appellate Division that the Industrial Code can, in fact, be applied “to a single form wall for purposes of ensuring worker safety and to maintain the form wall’s position and shape.”  This was due largely to the expert testimony, including when the plaintiffs engineer expert testified that a form wall needs to be braced and that “both walls did not need to be in place to install a brace.”  Furthermore, the Court of Appeals rejected the argument that since the Code mentioned the phrase “during the placing of concrete,” it could only refer to completed forms when concrete was being poured stating that such an interpretation “would result in diminished protections for workers during the assembly of forms” which would “run[s] counter to its text and undermine[s] the legislative intent to ensure worker safety.” As such, the Court of Appeals upheld the Appellate Division’s grant of summary judgment to the plaintiff. 

Judge Pigott dissented, explaining that plaintiff was struck with a form "wall," which is not, in fact, a "form" under the Industrial Code and further, that plaintiff "was not victim of a type of accident this section was designed to prevent."