What happens when you argue an appeal where there is a different attorney listed on the brief? In some appellate courts, you just alert one of the clerks of the substitution or change. However, I experienced something at the Appellate Division, First Department this past week.
If the attorney listed on the appellate brief will be different than the one who is going to appear at oral argument, send six labels with the new attorney's name clearly printed on it to the Clerks' office at least a week in advance. This will save any confusion when you arrive at oral argument; the Court will likely appreciate the advance notice.
The New York Court of Appeals in Worth Constr. Co. v. Admiral Ins. Inc. interpreted an additional insured endorsement of a commercial general liability insurance policy. The issue concerned the provision providing that the additional insured was insured only regarding liability arising out of the insured's (subcontractor's) work. In Worth, the injured worker fell on a stairway that the insured subcontractor had constructed. However, the general contractor ultimately conceded that the insured was not negligent as to the worker's accident. As such, the Court of Appeals held that the general contractor did not have coverage under the subcontractor's insurance policy as an additional insured because the injured worker's accident occurred at the situs of the subcontractor's work but was not due to any negligence on the subcontractor's part -- i.e., the liability did not arise out of the insured's work.
The Appellate Division, First Department recently addressed a gloss on Worth in Bovis Lend Lease LMB v. Garito Constr. Inc. In that case, the injured worker's accident occurred at the situs of the insured subcontractor's work. A jury found the general contractor and insured subcontractor negligence, but did not find that the subcontractor's work was the proximate cause of the accident.
The Majority held that the jury's finding that the insured subcontractor was not the proximate cause of the accident was analogous to the general contractor's concession in Worth that the insured subcontractor was not negligent. Therefore, the First Department held that the general contractor was not entitled to coverage as a general contractor. The Dissenting Justices disagreed and held that coverage should have been afforded to the general contractor.
Because two Justices dissented on the same issue of law, and the declaratory judgment action is final, the Court of Appeals will hear the appeal. New York Civil Law will keep you apprised of the results.
In the past few years, the New York Court of Appeals has developed a line of case law strengthening the sole proximate cause defense for Labor Law sec. 240(1). Two cases in particular -- Montgomery v. Federal Express Corp. and Robinson v. E. Med. Ctr. LP -- are strong cases for the proposition (very generally stated) that an injured worker can be held as the sole proximate cause of the accident where a enumerated safety device is present on the worksite, the worker knows of the safety device's presence on the worksite, the worker knows to use that safety device for the work, and the accident would not have occurred if the worker had used the safety device.
The Appellate Division, First Department's holding in Cherry v. Time Warner, Corp. now addresses the Court's sole proximate cause case law. In Cherry, the injured worker fell from a scaffold that only had two sides with guards. There were scaffolds with guards on all four sides at the worksites, but on different floors.
The Majority concluded that a triable issue of fact existed as to whether the plaintiff's actions were the sole proximate cause of the accident. Justice McGuire dissented, following the Court of Appeals' holdings.
Irrespective of what you think of the result, the Majority and Dissenting decisions provide an excellent analysis of the issue.
On September 10, 2009, the New York Court of Appeals will hear oral arguments in Salm v. Moses. The underlying Appellate Division, First Department doesn't have much to it. The appeal addresses whether the trial court properly limited the cross-examination the defendant's expert by precluding inquiry into the fact that he and the defendant were insureds and shareholders in the same dental malpractice insurance company. The Court of Appeals will likely address the standard that the First Department applied -- i.e., whether the trial court "achieved a fair balance between the plaintiff['s] right to attack the expert witness's credibility and the prejudicial effect of introducing the fact of [the defendant]'s insurance coverage".
Butler v. City of Gloversville provides another case in which an expert did not support his conclusion with a proper foundation. The New York Court of Appeals concluded that the defendant's expert did not support his conclusion that the plaintiff would have been injured even if other ground covering on the subject playground was present.