New York Appellate Law Blog

“Cleaning” Under Labor Law § 240(1) Is Narrower Than Its Literal Definition Would Indicate

2012-02-21T15:57:00.001-05:00

In Dahar v. Holland Ladder & Mfg. Co. (2012 NY Slip Op 01322), the Court of Appeals rejected the argument that the obvious “cleaning” of a “structure” during the manufacture of a product was protected under Labor Law § 240(1). More specifically, the Court rejected the argument that section 240(1) protects every activity that might fit within the literal meaning of the word “cleaning” as “too simple” and noted that such an argument would lead to an expansion of liability that was not supported by the Court’s precedent and not intended by the Legislature.

To provide further context, the Court noted that plaintiff’s formulation, which it rejected, would mean that “Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture – these and many others would become potential Labor Law § 240(1) plaintiffs.” In reviewing the present facts, the Court declined to extend the statute “so far beyond the purposes it was designed to serve.”

The Court also noted that the statute’s “central concern is the dangers that beset workers in the construction industry” even while adding that the Court previously refused to limit the statute to tasks that were part of construction, demolition, or repair projects. The Court cautioned, however, that all except one of its “cleaning” cases involved window cleaning, and even then not all window cleaning were within the statutory term, citing its cases on domestic window cleaners.

New York Law Journal Covers Fourth Department Case Precluding "Maternal Forces of Labor" Defense

2012-02-08T09:53:00.003-05:00

Today, the New York Law Journal covers the Fourth Department's recent decision in Muhammad v. Fitzpatrick, holding for the first time that a common defense in brachial plexus injury cases, "maternal forces of labor," was properly precluded because the defendant failed to prove that the theory passed the Frye test. Below is an excerpt from the Law Journal's article:

"In what may be a national first, an appellate panel in Rochester has rejected as scientifically invalid a standard defense in obstetrical medical malpractice cases.

The Appellate Division, Fourth Department, in Muhammad v. Fitzpatrick, 11-01764, upheld Erie County Acting Supreme Court Justice Timothy J. Walker's preclusion of evidence that a newborn's injuries were caused in the birthing process and not by the actions of the doctor or hospital.

Justice Walker [] held that the 'maternal forces of labor' theory advanced by the defense was based on a 'small number of articles written by a few authors, each of whom based their conclusions in part on the writings of other members of that small group.' He said the theory did not satisfy the New York-adopted federal standard for admissibility—Frye v. United States, 293 F. 1013 (DC 1923)—or the foundation rule set by the state Court of Appeals in Parker v. Mobile Oil Corp., 7 NY3d 434 (2006). The Fourth Department unanimously affirmed."

Court of Appeals Grants Leave in "Loss of Chance" Case

2012-01-30T18:03:00.000-05:00

On January 10th, the Court of Appeals granted leave to appeal in Wild v. Catholic Health System. At issue is the proper jury charge in a "loss of chance" case. The case also addresses whether the court must order a new trial where multiple theories of liability have been presented to the jury, and there is an error as to one of those theories, but only a general verdict was requested.

In this case, the plaintiff alleged two categories of negligence. First, the plaintiff claimed that the defendant, Dr. Martin, was negligent during an intubation procedure causing a perforated esophagus. Second, the plaintiff claimed that Dr. Martin failed to chart or to follow-up on the perforation, thereby delaying the diagnosis and depriving the decedent of some possibility that the perforation could be repaired and a feeding tube avoided. The lower court instructed the jury using the loss of chance instruction in PJI 2:150. The Fourth Department held that while that instruction was correct for the first category of claims (referred to as omission theories), it was error to have charged the jury with that instruction for the second category of negligence claims (referred to as commission theories). For those theories the proper charge is the standard negligence charge found in PJI 2:70.

The Fourth Department, however, went on to find that the charge was harmless error. The Court held that while generally reversal is required when a general verdict has been used, and there is an error affecting one of the many theories of liability, in this case reversal was not warranted because the defendant did not object to the general verdict.

If the Court of Appeals takes the case on full briefing, oral argument would not be anticipated until later this year.

First and Second Departments Now In Accordance That Plaintiff Is Not Entitled To Summary Judgment If Questions Of Fact Exist As To His Negligence

2012-01-19T13:42:00.003-05:00

In Calcano v. Rodriguez, the First Department held that the plaintiff was not entitled to summary judgment against defendant on liability because issues of fact existed as to the plaintiff's own negligence. The significance of this holding is that it marks the first time that the First Department has reached such a determination. Moreover, the First and Second Departments are now consistent with one another on this issue.

Previously, in Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198[2010]), the First Department had specifically held that a plaintiff could be awarded summary judgment on liability despite the existence of questions of fact as to his negligence.

In Roman v A1 Limousine, Inc. (76 AD3d 552, 552-553 [2010]), the Second Department declined to follow Tselebis, noting that it was inconsistent with the decision of the Court of Appeals in Thoma v Ronai (82 NY2d 736, 737 [1993]).

As such, a majority of the First Department stated in Calcano: "Needless to say, it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals. Accordingly, like the Second Department, we respectfully decline to follow Tselebis."

First Department Reverses "DiGuglielmo rule" Regarding Timeliness of Late Notice Disclaimers

2012-01-19T11:45:00.001-05:00

In George Campbell Painting v. National Union Fire Ins. Co. Of Pittsburgh, PA, the First Department overruled its prior decision in DiGuglielmo v. Travelers Prop. Cas. (6 A.D.3d 344, 346 [2004]), in which it had held that notwithstanding the statutory language of Insurance Law § 3420, "[a]n insurer is not required to disclaim on timeliness grounds before conducting a prompt, reasonable investigation into other possible grounds for disclaimer" (6 AD3d at 346) (hereinafter, the DiGuglielmo rule). According to the Court, “we decline to follow, and expressly overrule, the DiGuglielmo rule, because we find it to be inconsistent with the text of § 3420(d) and with the decisions of the Court of Appeals interpreting that statute.”

In George Campbell Painting, an excess carrier learned that the insured waited approximately 16 months before giving notice of claim. Rather than disclaim right away, it investigated other grounds such as whether the insured was a covered additional insured and then filed its disclaimer on late notice four months later. The Court held that Insurance Law § 3420(d) requires an insurer to disclaim when it “has sufficient knowledge of facts entitling it to disclaim.” Accordingly, an insurer may no longer delay disclaimer, during a “prompt, reasonable investigation” into grounds other than late notice of claim, as was the case in DiGuglielmo and George Campbell Painting.

As a caution to all insurers, therefore, it is best to disclaim coverage on late notice grounds while reserving the right to disclaim on other grounds should the need arise after a prompt and reasonable investigation, and then, if necessary, issue a follow-up disclaimer on such other grounds at a later time.

Timing of Request for Collateral Source Hearing

2012-01-17T12:11:00.000-05:00

In Turuseta v. Wyassup-Laurel Glen Corp., while the defendants' motion to set aside the verdict was pending, the plaintiff entered judgment without providing the defendants with notice that she going to do so. Almost three months after the court denied the defendants' motion set aside the verdict, the defendants moved for a collateral source hearing. The plaintiff opposed arguing that the defendants' motion was untimely since a judgment had already been entered and the defendant had thirty days within which to file its post-trial motion. The trial court granted the defendants' motion rejecting the plaintiff's contention that the motion was untimely.

Last week, the Second Department affirmed holding that CPLR 4545 does not set a time limit for a request for a collateral source hearing and the time limit imposed by CPLR 4404 for motions to set aside the verdict does not apply. An application for a collateral source hearing can be made at any time before the entry of judgment. Moreover, "since '[i]t appears that [the plaintiff's] efforts to enter a judgment may have been undertaken, at least in part, to circumvent potential collateral source setoffs,'" the Court held that the trial court properly exercised its discretion in granting the defendants' motion for a collateral source hearing.

In a related appeal, the Second Department also reduced the jury's awards of $576,867 for the plaintiff's past pain and suffering and $2,219,229 for 28.2 years of future pain and suffering to $400,000 for past pain and suffering and $750,000 for future pain and suffering. The plaintiff suffered a fractured coccyx, a herniated disc at L4-L5 and depression. She also claimed she could no longer work as a result of her injuries.

Top Ten Personal Injury Awards Approved by the Appellate Divisions in 2011

2012-01-12T11:44:00.001-05:00

John Hochfelder, who writes the New York Injury Cases Blog, has compiled the top 10 personal injury awards approved by the Appellate Divisions in 2011. Click here to see his post.

Summary Judgment Motions and Supplemental Materials

2012-01-04T10:14:00.001-05:00

In Ostrov v. Rozbruch, the First Department held that it was error for a trial court to permit the plaintiff to submit supplemental materials on a motion for summary judgment. The trial court had authorized the supplemental papers after concluding that the defendant doctor had met his burden on summary judgment, but that the plaintiff’s papers only contained a limited discussion of a possibly unplead, new theory of liability. Both parties then submitted several supplemental affirmations, including affirmations clarifying previous statements as well as affirmations by new doctors in different specialties discussing the new theory of liability. The trial court then denied the defendant's motion relying on one of the supplemental affirmations submitted by the plaintiff, as well as a medical article first mentioned by the plaintiff at a second oral argument.

In reversing the trial court, the First Department rejected a broad reading of its precedents that had previously approved of the use of supplemental affirmations where there was no prejudice and an opportunity to respond. Instead, the First Department held that the CPLR time limitations on summary judgment motion practice are the rule and that supplemental submissions should be sparingly used to clarify limited issues already discussed "and should not be utilized as a matter of course to correct deficiencies in a party’s moving or answering papers.” Since the plaintiff's original opposition papers failed to meet her burden of raising a question of fact, the Court held that the plaintiff should not have been permitted to file supplemental materials to cure the defects in her papers.

Lead Paint and Medical Malpractice

2011-12-28T14:29:00.004-05:00

In Burnett v. Jeffers, the Second Department held that there was sufficient evidence to hold a medical center liable for lead poisoning injuries due, not to post-injury care, but to a pre-injury failure to advise of and provide guidance about lead poisoning. The Second Department affirmed the jury's finding that accepted medical practice would have been “to perform lead poisoning risk assessments and provide lead poisoning anticipatory guidance” during pediatric visits. The Court also affirmed the jury's apportionment against the Hospital of 60% for one child and 40% for the other child.

Court of Appeals Finds That Fall From Dumpster Raises Question of Fact Re: Labor Law Liability

2011-12-21T11:33:00.009-05:00

In Ortiz v. Varsity Holdings, 2011 NY Slip Op 09161, the Court of Appeals held that questions of fact existed as to whether a safety device under Labor Law § 240 would have prevented a plaintiff’s fall from a six-foot tall dumpster. The plaintiff alleged that he had either one or both feet on the dumpster’s eight-inch ledge in order to rearrange and add debris to the dumpster. Due to procedural inferences favoring the plaintiff, the Court distinguished Toefer v. Long Is. R.R., 4 NY3d 399 (2005), where there was no elevation-related risk from a “four-to-five-foot descent from a flatbed trailer.”

As to the existence of an elevation-related risk, the Court added that the parties failed to demonstrate that plaintiff’s position on the dumpster either was or was not “necessary to the task.” Consequently, plaintiff’s assertion that he was “required to stand on or near the ledge” was sufficient in “context . . . and without contradictory evidence” to prevent summary judgment. Significantly, however, the Court added that the assertion alone could not be the basis for granting summary judgment to the plaintiff.

Taken collectively with the Court of Appeals’ other recent Labor Law § 240 decisions, this decision reflects a continued shift by the Court of Appeals toward finding that issues such as “adequacy of a safety device”, “availability of a safety device” and "necessity of performing the work in the manner in which it was performed” are questions of fact for the jury.

Second Department Issues Two Recent Decisions Applying Frye

2011-12-04T23:34:00.001-05:00

Two panels of the Second Department recently issued decisions concerning Frye and the admissibility of expert testimony on medical causation. In Ratner v. McNeil-PPC., Inc., at issue was the plaintiff's claim that there was a causal connection between the plaintiff's ingestion of Tylenol and her subsequent development of liver cirrhosis. According to the plaintiff's experts, by extrapolating data from several observational studies, there is a causal connection between long-term use of acetaminophen in Tylenol and liver cirrhosis. The Court, however, disagreed and upheld the trial court's order to preclude. According to the Court, the plaintiff did not produce any clinical or epidemiological data or peer reviewed studies showing that there is a causal link between the therapeutic use of acetaminophen and liver cirrhosis. As such, the plaintiff was required to provide some of other generally accepted method of establishing causation, but failed to do. Instead the plaintiff relied on a few case studies and case studies are not generally accepted methods of proving causation. Furthermore, the case studies the plaintiff relied upon failed to conclude that acetaminophen caused liver cirrhosis. Thus, given the abundance of clinical studies over the last fifty years which concluded that the theraputic levels of acetaminophen in Tylenol were safe, the Court concluded that there was "too great an analytical gap" to allow such opinion testimony.

In Lugo v. New York City Health & Hosp. Corp., the issue was whether the plaintiff's expert could opine that the infant plaintiff's brain injuries were caused by an episode of severe neonatal hypoglycemia lasting 81 minutes. The Court held that the trial court applied the Frye test too narrowly in excluding the evidence and reversed allowing the plaintiff's experts to opine on the issue. According to the Court, the defendant's expert conceded that it is generally accepted that hypoglycemia can cause brain damage, that the scientific community does not recognize any level or duration of hypoglycemia considered safe and incapable of causing brain damage, and that individual susceptibility to toxic states varies among newborns. Furthermore, the plaintiff produced studies showing that glucose levels lower than the plaintiff's for several hours duration may increase the risk for brain injury. Thus, when combining these studies with the defendant's concession, the Court concluded that the plaintiff's theory of causation was based on more than theoretical speculation and could be presented to a jury.

First Department Holds That, Regardless of Whether A Judicial Admission is Deemed Formal or Informal, Coverage Cannot Be Created Where None Existed

2011-12-01T17:43:00.003-05:00

In GJF Constr., Inc. v. Sirius Am. Ins. Co., 2011 NY Slip Op 08630 [2011], the First Department held that correspondence between attorneys that “admitted” GJF was an additional insured will not create coverage that otherwise did not exist. In response to plaintiff’s letter asking for confirmation of coverage for GJF or a deposition date for an underwriter, defense counsel responded that GJF was a covered insured. In reality, however, GJF was not “on file” with the insurer as required by the additional insured endorsement to the policy. Despite the “judicial admission” of coverage, GJF could not benefit from counsel’s error. Interestingly, the court issued a brief opinion affirming the decision below, but also two concurring opinions, making the decision unanimous as to the outcome but 2-2 on a question of law.

In dueling concurring opinions, the justices disagreed about whether the letter from defense counsel constituted a “formal” judicial admission like a statement in a stipulation or an “informal” judicial admission like a statement in an affidavit. Also, in one concurring opinion, justices argued that notifying an insurer 51 days after first notice of the incident underlying the claim was inexcusable as a matter of law.

Court of Appeals Holds Sect. 240(1) Does Not Apply When the Allegedly Necessary Safety Device Would Defeat the Objective of the Work to be Performed

2011-11-23T10:36:00.001-05:00

In Salazar v. Novalex Contracting Corp., 2011 NY Slip Op 08446, a majority of the Court of Appeals dismissed this Labor Law action where the plaintiff was injured stepping into a trench that was “between 3 and 4 feet deep.” The plaintiff stepped backwards or fell into the trench while raking wet concrete to fill and level the floor, including filling the trench at issue. The trench was partially filled with concrete when the plaintiff was injured.

In this 4-3 decision, the majority concluded that under a “common sense approach,” it would be “contrary to the objectives of the work plan” for an owner or general contractor to cover or barricade trenches where the job was to spread concrete and fill them. The claim under Labor Law § 241(6) was rejected on substantially similar grounds. Since filling the trench was an “integral part of the job,” a building code provision about installing safety railing or fastening covers at hazardous openings should not apply.

By contrast, the dissent would have denied summary judgment on both claims. The dissent argued this was “precisely” the type of case to which 240(1) would apply and that there was no reason why the building code about hazardous openings should not apply. With respect to both of the majority’s conclusions, the dissent claimed that questions of fact exist because the record was not clear about whether the trench was “purposely being filled at the time,” or that “seepage [into the trench] was intentional.” The dissent reasoned that even if the court were to assume that the trench was being purposely filled, the case should go to a jury after testimony by “experts on construction techniques,” to decide whether the plaintiff could be protected while also filling the trench.

Fourth Department Reduces $33 Million Pain and Suffering Award

2011-11-22T11:19:00.000-05:00

In Barnhard v. Cybex Intl., Inc., the plaintiff, a 24-year old female physical therapy assistant, suffered a fractured vertebra when a exercise machine tipped over and fell on top of her. As a result she is quadriplegic and requires around the clock care. At trial she argued that her injuries "left her unable to experience the joys of parenthood and grow the massage-therapy business she was in the process of founding at the time of the accident" (2010 WL 5760848). The jury awarded the plaintiff $33 million for total pain and suffering, $28,563,128 for future medical expenses, $151,690 for past lost earnings, $1,797,612 for future lost earnings, and $792,435 for "future care of potential children." The parties also stipulated to $1,689,439 for past medical expenses.

On appeal, the Fourth Department reduced the pain and suffering award to $12 million. The Court also vacated the jury's $792,435 award for "future care of potential children" as based entirely on speculation.

First Department Holds 4 to 5-foot Fall From Dock Platform Subjects Owner To Labor Law Sect. 240(1) Liability

2011-11-22T09:53:00.002-05:00

In Cassidy v. Highrise Hoisting and Scaffolding, Inc., the plaintiff fell 4 to 5-feet from a temporary loading dock at a building under construction. When not in use, a rail was in place across the loading dock. As a delivery was received, the rail would be removed. When the delivery was concluded, the rail would be replaced. Plaintiff leaned against the rail which came loose, causing him to fall. The First Department affirmed summary judgment to plaintiff, holding that his injuries were gravity-related and were the result of a failure of a safety device -the rail- which was intended to protect workers from falling.

Judge McKeon Issues First Decision Regarding the Medical Indemnity Fund

2011-11-17T11:36:00.004-05:00

As reported in today's Law Journal, Judge Douglas McKeon (Sup. Ct., Bronx County) has now issued the first decision relating to the newly enacted Medical Indemnity Fund. As we posted in April, the Medical Indemnity Fund was established to pay for future medical costs in medical malpractice cases involving alleged birth-related neurological injuries. In such cases, all future medical expenses will now be paid by the Fund, and not by the defendant or the defendant’s insurer.

In Mendez v. New York and Presbyterian Hospital, Judge McKeon discusses the new statute and how settlements should be approached. In this action the parties agreed to settle the case for $5.5 million with 50% allocated to non-Fund damages and 50% to Fund damages. Pursuant to Public Health Law Sec. 2999-j(14), the defendant must pay as a lump sum (1) the amount allocated to the non-Fund damages and (2) the attorney's fees on the portion allocated to the Fund. Attorney's fees are calculated on the total amount pursuant to Judiciary Law Sec. 474-a. Here that resulted in the defendant having to pay a total of $3,100,000 representing $2.75 million for non-Fund damages, plus $350,000 for the attorney’s fee on the non-Fund damages. The plaintiff receives $2,400,000, which represents $2.75 million for the non-Fund damages minus the attorney’s portion that award. The plaintiff's attorney's total fee is $700,000.

A few additional key points from the decision:

1. To be eligible for the Fund, the settlement must include a finding that the plaintiff is a qualified plaintiff, i.e has sustained a neurological injury as a result of medical malpractice.

2. Medical expenses paid from the Fund are not limited to the dollar value of the settlement.

3. "The creation of an obstetrical fund was an obvious vehicle by which to achieve the Governor’s dual objective of reducing both Medicaid costs and medical malpractice premiums while, on a human level, providing a lifetime of guaranteed care, geared to obstetrical mishap victims, as well as the comfort which comes to a parent by the knowledge that help will be provided to a handicapped child when mom and dad are gone” (p. 8).

4. According to Judge McKeon, the Fund obviates the need for a Supplemental Needs Trust (SNT). Without an SNT, the plaintiff can “settle an action for up-front cash, buy a house and receive a lifetime of care without encumbering the cash or the house, which is the legal consequence of an SNT” (pp. 8-9).

5. “As a general rule the existence of the Fund is not supposed to increase the amount of the settlement. In other words, an action settled pre-Fund for $4,000,000 should settle for $4,000,000 today” (pp. 10-11). One potential exception identified by Judge McKeon may be where there is limited coverage (p. 11). As Judge McKeon notes, however, this exception is “evolving.” In our opinion, therefore, decisions will have to be made on a case by case basis.

6. In obstetrical malpractice cases, historically, future medical care and treatment is by far the most costly element of damages, often substantially more than 50% of the total damages (pp. 12-13). While this precedent would justify a greater allocation of a settlement to Fund damages, Judge McKeon notes that certain practical realities must come into play (pp. 13-14). This is because the higher the amount that gets allocated to the Fund, the lower the amount of cash the plaintiff will receive. Thus, when settlements are smaller, consideration can be given to providing a larger cash portion to the plaintiff. Furthermore, according to Judge McKeon, where custodial care will not be necessary, that could be taken into consideration when determining the allocation (p. 15). Generally, however, an allocation of 50-50 is a good rule of thumb.

Landlord Not Entitled To Summary Judgment On "Ambiguous" Contractual Indemnity Provision

2011-10-27T11:04:00.001-04:00

In Lopez v. Guei Shun Shiau, the First Department affirmed a denial of summary judgment on the issue of contractual indemnity between the defendant as third-party plaintiff and the third-party defendant Sheba Ethiopian Restaurant, Inc. Defendant Guei Shun Shiau is an out of possession landlord in this negligence slip and fall on an uneven sidewalk. While Shiau argued that it was entitled to contractual indemnity, the court found that the contractual indemnity provision contained in the parties' lease agreement was “ambiguous” and the intention to indemnify was not "unmistakable." Therefore, summary judgment was not appropriate.

Missing Document Charge Appropriate Sanction For Operative Report That May Never Have Been Created

2011-10-27T11:03:00.001-04:00

In Krin v. Lenox Hill Hospital, the trial court granted a missing document charge in response to the plaintiff’s motion to strike on grounds of spoliation, and the First Department affirmed. In this medical malpractice action, the plaintiff complained that the defendants had failed to turn over a cosmetic operative report. The report at issue was allegedly dictated at some point, but it was not part of the file when records were disclosed. Considering the circumstances below and the conflict in the record as to whether such a document even existed, the First Department noted that a missing document charge was an appropriate sanction rather than striking defendant's answer.

First Department Splits Over Labor Law Liability Where Plaintiff Did Not Fall From a Height

2011-10-27T11:00:00.001-04:00

In Reavely v. Yonkers Raceway Programs, Inc., the plaintiff alleged that violations of the Labor Law caused him to cut his fingers with a circular saw. The plaintiff had been instructed to cut plywood for a hang wall near a trench; his footing slipped on waterproofing that had not yet safely hardened. Although the plaintiff did not fall from the wall, he claimed that his injury was caused when he acted to prevent himself from falling.

Over a two-judge dissent, the First Department affirmed summary judgment in favor of the plaintiff under Labor Law § 240(1). The majority concluded that plaintiff was entitled to a safety device under the Labor Law and that the failure to provide one was the proximate cause of plaintiff’s injuries. By contrast, the dissent argued that the injury would have occurred regardless of whether the accident happened near a trench and that the better view of the accident was that plaintiff had simply lost his balance on a slippery level surface. The dissent’s logic resulted in the further statement that plaintiff's claim under Labor Law § 241(6) should also be dismissed.

Lippman Court Further Expands Labor Law 240(1)

2011-10-25T15:12:00.002-04:00

Last year, we highlighted the First Department's decision in Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. In this case, the First Department held that the collapse of pipes standing on the floor, like the collapse of a wall, does not give rise to a Labor Law Sec. 240(1) claim. The Court reasoned that because the pipes and plaintiff "'were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability pursuant to Labor Law § 240.'"

Today, the Court of Appeals, in a 4-3 decision, modified, holding that there is no categorical exclusion to Labor Law Sec. 240(1) for injuries caused by falling objects that are at the same level as the plaintiff at the time of the accident. In doing so, the Court of Appeals eliminated an exception that had been well-recognized across the Departments and once again has expanded the reach of Labor Law 240(1).

Relying on Runner v. New York Stock Exch, Inc., the Court held that the issue is "whether the plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Applying that analysis the Court stated that there was a question of fact as to whether the plaintiff's injury was the direct consequence of the alleged failure to provide an adequate safety device. According to the Court, the plaintiff merely asserted, but did not demonstrate, that safety devices could have been used and the defendant asserted, but did not demonstrate, that no safety devices were needed.

The Court also held that the Appellate Division properly denied the defendants' motion for summary judgment on the plaintiff's Labor Law Sec. 241(6) claims, which were premised on 12 NYCRR 23-3.3(b)(3) and 12 NYCRR 23-3.3(c).

Court of Appeals Modifies Finding Questions of Fact in Labor Law 240(1) Case

2011-10-19T15:36:00.000-04:00

In Grove v. Cornell University, the plaintiff fell 30 feet from the basket of a motorized boom lift. Although the plaintiff was provided with a safety harness and lanyard, he failed to attach it to the basket before he fell. As a result, he fell through a malfunctioning gate on the basket that if properly working would have been self-closing.

The Third Department split 3-2 with the majority concluding that the safety harness and lanyard was an adequate safety device and that the malfunctioning gate was merely the failure to provide an additional redundant safety device. The majority also concluded that the plaintiff was the sole proximate cause of his injuries. The dissent, however, maintained that the defendant failed to establish that the malfunctioning gate was not a proximate cause of the fall, and so neither party had shown entitlement to summary judgment.

On Tuesday, the Court of Appeals modified, holding without discussion, that issues of fact remain on whether there was an adequate safety device and whether the plaintiff was the sole proximate cause of his injuries.

Court of Appeals Watch

2011-10-11T18:00:00.003-04:00

Today, the First Department granted leave to appeal to the Court of Appeals in Angamarca v. New York City Partnership Hous. Dev. Fund, Inc., where a 3-2 majority of the First Department held that the trial court properly precluded the defendant from raising the issue of plaintiff’s immigration status with respect to damages for future medical expenses. Our full post from June 23rd regarding the case is here.

A More Divided Court

2011-10-11T11:31:00.003-04:00

This weekend the New York Times published an article showing that the frequency with which Chief Judge Lippman dissents is markedly higher than either of his two most recent predecessors. In fact, according to the article, Chief Judge Lippman's 15 dissents over this past term nearly matches that of the total number dissents authored by Chief Judge Kaye over her 16 years on the bench. That there has been an increased frequency in dissents under the Lippman Court, however, is not new. Judge Lippman himself has previously spoken about his philosophy at the Court of Appeals. In an article last year year he stated, "I am a result-oriented person . . . and the result I am looking for is not necessarily unanimity.” What this article adds is that according to recent research by Professor Vincent Bonventre, Judge Lippman's dissents reflect his "staunchly liberal" positions regarding the rights of criminal suspects and the injury claims of plaintiffs. It also depicts Judge Lippman as leading a 3-judge liberal minority intent on either making their policy positions known to the Legislature and the public, or influencing future decisions. For the full article click here.

Court of Appeals Dismisses Complaints From 1993 World Trade Center Bombing Victims

2011-09-22T10:36:00.002-04:00

Today, the Court of Appeals in Matter of World Trade Center Bombing Ltg. dismissed a lawsuit brought against the Port Authority for the 1993 World Trade Center Bombing. The Court held that in performing security for the general public the Port Authority was performing a governmental or proprietary function and that it properly exercised its discretion in its security decisions to entite it to the common-law defense of governmental immunity.

According to the 4-3 majority: "Our courts simply cannot ignore that this policy-based doctrine is intended to afford deference to the exercise of discretion by the officials of municipalities and governmental entities, especially with respect to security measures and the deployment of limited police resources. Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussion."

This case is also notable in that Chief Judge Lippman and Judge Smith did not take part. Justice Mercure from the Third Department and Judge Prudenti from the Second Department sat by deisgnation. Judge Mercure joined the majority and Judge Prudenti joined the dissent.

Panel Drops Jury Award by 99% in Medical Malpractice Case

2011-08-29T15:15:00.008-04:00

In Hugh v. Ofodile, the First Department cut by 99% a jury verdict to a plaintiff who claimed injuries following a thigh lift procedure. The medical malpractice action alleged a lack of informed consent and deviations from accepted practice. The plaintiff claimed injuries to her genital area, including scarring and a flattening of the labia majora. The jury awarded the plaintiff $60 million in pain and suffering damages [$10 million for past pain and suffering and $50 million for future pain and suffering]. Upon Post Trial Motion, the jury’s verdict was reduced to $4 million [$1 million for past pain and suffering and $3 million for future pain and suffering].

The Appellate Division sustained the liability findings, although noting that “the evidence of a departure was not overwhelming.” In reducing the pain and suffering award to a total of $600,000 [$300,000 each for past and future pain and suffering], the Appellate Division relied on the medical records which repeatedly described the plaintiff’s genitalia as “normal,” and the absence of expert testimony linking any alleged pain to the thigh lift surgery. In a partial dissent, Justices Richter and Catterson agreed with the reduction of the past pain and suffering award, but would have reduced to the future award to $1.3 million based on, among other things, the plaintiff’s long life expectancy.