The New York Court of Appeals recently held in Walls v. Turner Construction that a construction manager can constitute an "agent" under Labor Law sec. 240(1) where the manager had the ability to control the activity which brought about the injury (see prior post). In arriving at this conclusion, the Court looked at facts demonstrating that the construction manager was under a contractual obligation to monitor the subcontractor's work and to protect its employees. Since the facts of this appeal are so important, I felt it necessary to go behind the actual decision and see what the parties argued. I have provided copies of the parties' briefs to the Court of Appeals below. I will provide selected documents in the Record on Appeal in a subsequent post.
Plaintiff's Appellate Brief Pt. I (Download SCAN_35300896_000.pdf); Pt. II (Download SCAN_35300897_000.pdf); Pt. III (Download SCAN_35300898_000.pdf); Defendant's Appellate/Respondent's Brief Pt. I (Download SCAN_35300900_000.pdf); Pt. II (Download SCAN_35300899_000.pdf); and Plaintiff's Reply Brief (Download SCAN_35300901_000.pdf).
Yesterday, July 6, 2005, the Court of Appeals released another Labor Law decision in Carlo Albanese v. The City of New York (http://www.courts.state.ny.us/reporter/3dseries/2005/2005_05748.htm)
Plaintiff Carlos Albanese, a carpenter, was at work on a scaffold suspended from a Cross Bronx Expressway ramp over the Bruckner Expressway in the City of New York when a tractor-trailer heading east on the Bruckner struck the bottom of the scaffold. Plaintiff was thrown into the air and fell back down onto the scaffold. As of the date of the accident, the Expressways were under construction as part of a two-year New York State-initiated project that included the comprehensive resurfacing and rehabilitation of the Cross Bronx-Bruckner Interchange, Cross Bronx Expressway, Throgs Neck Expressway-Hutchinson River Parkway resurfacing, and joint restoration and replacement of the Throgs Neck Expressway Bridge over the Cross Bronx Expressway.
The trial court, denying the City's motion for summary judgment, held that there were issues of fact as to whether or not the City of New York was an "owner" under the Labor Law. The Appellate Division reversed, holding that, as a matter of law, the City was an owner within the meaning of the Labor Law; two dissenting Justices agreed with trial court that the issue was (at the least) one of fact. The Appellate Division granted leave to appeal to the Court of Appeals on the certified question, and the Court of Appeals reversed the Appellate Division, holding that the City was not an owner for purposes of the alleged Labor Law violations.
The Court distingushed its holding in Nowlin v City of New York, 81 N.Y.2d 81 (1993), holding that:
Two related, significant facts distinguish this case from Nowlin, where we sustained a damages award against the City for an automobile accident on an arterial highway, the Henry Hudson Parkway. In Nowlin, years before the accident, the State had completed construction and transferred jurisdiction to the City. Here, state construction was ongoing at the time of plaintiff's injury. In Nowlin, moreover, where negligent placement of warning signs allegedly created a traffic hazard that caused plaintiff's injury, it was the City that had actually planned and placed the signage on the Parkway. Here, the City exercised no comparable function with respect to the scaffolding that was part of the State's rehabilitation of the Cross Bronx Expressway-Bruckner Interchange. The State was in charge of the project, and the City had no say as to which contractor or consultants were hired. The City did not perform any of the work. The City's role was largely confined to its regulatory responsibilities arising out of its work permits. That limited involvement cannot subject the City to absolute liability under the Labor Law for an injury allegedly resulting from the height of a scaffold placed by State contractors.
Nelson Timken
Posted by: Nelson Timken | July 07, 2005 at 12:55 PM
Yesterday, July 6, 2005, the Court of Appeals released another Labor Law decision in Carlo Albanese v. The City of New York (http://www.courts.state.ny.us/reporter/3dseries/2005/2005_05748.htm)
Plaintiff Carlos Albanese, a carpenter, was at work on a scaffold suspended from a Cross Bronx Expressway ramp over the Bruckner Expressway in the City of New York when a tractor-trailer heading east on the Bruckner struck the bottom of the scaffold. Plaintiff was thrown into the air and fell back down onto the scaffold. As of the date of the accident, the Expressways were under construction as part of a two-year New York State-initiated project that included the comprehensive resurfacing and rehabilitation of the Cross Bronx-Bruckner Interchange, Cross Bronx Expressway, Throgs Neck Expressway-Hutchinson River Parkway resurfacing, and joint restoration and replacement of the Throgs Neck Expressway Bridge over the Cross Bronx Expressway.
The trial court, denying the City's motion for summary judgment, held that there were issues of fact as to whether or not the City of New York was an "owner" under the Labor Law. The Appellate Division reversed, holding that, as a matter of law, the City was an owner within the meaning of the Labor Law; two dissenting Justices agreed with trial court that the issue was (at the least) one of fact. The Appellate Division granted leave to appeal to the Court of Appeals on the certified question, and the Court of Appeals reversed the Appellate Division, holding that the City was not an owner for purposes of the alleged Labor Law violations.
The Court distingushed its holding in Nowlin v City of New York, 81 N.Y.2d 81 (1993), holding that:
Two related, significant facts distinguish this case from Nowlin, where we sustained a damages award against the City for an automobile accident on an arterial highway, the Henry Hudson Parkway. In Nowlin, years before the accident, the State had completed construction and transferred jurisdiction to the City. Here, state construction was ongoing at the time of plaintiff's injury. In Nowlin, moreover, where negligent placement of warning signs allegedly created a traffic hazard that caused plaintiff's injury, it was the City that had actually planned and placed the signage on the Parkway. Here, the City exercised no comparable function with respect to the scaffolding that was part of the State's rehabilitation of the Cross Bronx Expressway-Bruckner Interchange. The State was in charge of the project, and the City had no say as to which contractor or consultants were hired. The City did not perform any of the work. The City's role was largely confined to its regulatory responsibilities arising out of its work permits. That limited involvement cannot subject the City to absolute liability under the Labor Law for an injury allegedly resulting from the height of a scaffold placed by State contractors.
Nelson Timken
Posted by: Nelson Timken | July 07, 2005 at 12:57 PM