New York Civil Law

New York Court of Appeals Hears Oral Arguments on Labor Law sec. 241 (6) Issue Concerning 23-1.7 (e) (2) (Integral to the Work Defense)

The New York Court of Appeals will hear oral arguments tomorrow (webcast here), October 15, 2024, on a Labor Law § 241 (6) issue. More specifically, the Court will address the interpretation of New York Industrial Code provision 23-1.7 (e) (2).

The Court recently addressed an "integral to the work" doctrine within the context of New York Industrial Code provision 23-1.7 (d) in Bazdaric v Almah Partners LLC.

The pending appeal in Ruisech v Structure Tone Inc. concerns a construction site accident where the plaintiff, employed by A-Val (a subcontractor), slipped on pebbles while installing a glass divider. The key focus of the appeal involved claims under Labor Law § 241(6), based on Industrial Code § 23-1.7(d) and (e) (2).

The court dismissed the Labor Law § 241(6) claim against defendants Park (property owner), CBRE (tenant), and Structure Tone (general contractor), and Tishman-Speyer (property manager) determining, among other things, that the pebbles on the floor were "debris integral to the work" being performed rather than a "foreign substance" causing slippery conditions. The Appellate Division concluded that the "integral to the work" doctrine was applied here, and the doctrine excluded debris from constituting a hazardous condition if it was directly related to ongoing construction activities. This ruling reinforced prior case law (e.g., Krzyzanowski v City of New York) that debris arising from the work itself does not trigger liability under § 23-1.7 (e)(2).

In support of his motion for leave to appeal to the Court of Appeals, the plaintiffs stated, "[W]hile the trial court held that issues of fact were present, the Appellate Division decided as a matter of law that the debris on which the Plaintiff slipped was 'an integral part of the construction," despite that the accumulations of 'debris' is one of the hazards from which the code expressly seeks to protect workers." The Plaintiffs argued that the Appellate Division's holding is inconsistent with the reasoning underlying the "integral part of the construction" exception because it extends the exception so far beyond the Court's decision in O'Sullivan v IDI Const. Co. that it subsumes the regulations entirely (See attorney affirmation here: Download RuisechvStructureTone-app-Ruisech-mot).

The parties' briefs to the Court of Appeals are provided below:

Appellants' Brief:  Download Ruisech v. Structure Tone_App_Ruisech_Brf 

Respondent's Brief (CBRE): Download RuisechvStructureTone-res-CBRE-opp

Responent's Brief (Structure Tone): Download RuisechvStructureTone-res-StructureTone-opp

Respondent's Brief (Tishman-Speyer): Download RuisechvStructureTone-res-TishmanSpeyer-opp

Respondent's Brief (A-Val): Download AvalRuisechvStuctureTone-res-Aval-brf

Reply Brief: Download RuisechvStructure_App_Ruisech_replybrf

Insurance Bad Faith Claims - New York Child Victims Act - Recent Appellate Division, First Department Decision

Insurance coverage attorneys take note! The Appellate Division, First Department in The Rockefeller Univ. v Aetna Cas. & Sur. Co. recently discussed claims of breach of the implied covenant of good faith and fair dealing and a violation of the General Business Law sec. 349 within the context of a motion to dismiss the complaint. The First Department affirmed the Supreme Court’s denial of the insurer defendants’ motion to dismiss the following two causes of action:  

• Breach of Good Faith and Fair Dealing: The plaintiff alleged that the insurers acted in bad faith by frustrating the purpose of their insurance policies, particularly to claims stemming from the 2019 Child Victims Act. The insurer’s actions included failing to resolve claims, withholding decades-old policies, delaying coverage decisions, and refusing to pay settlements. The court found these allegations distinct from the breach of contract claims because the damages for the breach of good faith could extend beyond the policy limits, potentially including financial strain caused by the plaintiff’s need to self-fund over $700 million in settlements and costs.

• Violation of General Business Law § 349 (a): The plaintiff also alleged that the insurers engaged in deceptive practices by adopting a “wait-and-see” strategy that harmed the plaintiff, policyholders, sexual abuse survivors, and the insurers’ investors. The court found that this cause of action was valid because the plaintiff sufficiently alleged consumer harm beyond a private dispute, noting that the insurance policies were standard forms provided to multiple consumers.

The complaint and amended complaint are attached here Download 20241002 - Summons and Complaint w Notice of Electronic Filing and here  Download 654425_2019.

Trivial Defect & New York Premises Liability - Appellate Division, Second Department Hands Down Recent Decision on Trivial Defect Defense

Justice Mark Dillon's opinions are the gold standard for New York's common law on torts. He authored a recent decision for the Appellate Division, Second Department, addressing the trivial defect defense within the context of premises liability.

In Snyder v AFCO Avports Management, LLC, the defendants sought summary judgment on the grounds that the sidewalk defect where the plaintiff tripped was trivial as a matter of law and not actionable. They relied on photographs, deposition testimony, and an affidavit from a human factors expert, but did not provide objective measurements of the elevation differential between the sidewalk slabs. The trial court granted the motion, holding that the defect was trivial and the plaintiffs failed to raise a triable issue of fact.

On appeal, the plaintiffs argued that the defendants failed to meet their prima facie burden because they did not submit objective measurements of the defect. The Appellate Division addressed three questions:

1. Whether a defendant must present objective measurements of a defect’s dimensions to establish triviality.
2. How courts should analyze photographic evidence in determining whether a defect is trivial.
3. Whether a human factors expert's opinion is conclusory and inadmissible if it lacks objective measurements.

The court held that objective measurements are not strictly required for a defendant to establish prima facie that a defect is trivial. However, the burden remains high when no objective measurement is provided, and the photographic evidence must be sufficiently clear to allow the court to infer that the defect is trivial. In this case, the photographs and other evidence failed to conclusively demonstrate that the defect was insignificant, and the court found that the expert's opinion was inadmissible as it lacked objective data or reasonable inferences from the evidence.

The court reversed the trial court’s decision and denied the defendants' motion for summary judgment, concluding that the defect was not clearly trivial as a matter of law. This ruling reaffirms that defendants must present comprehensive and conclusive evidence when relying on the trivial defect doctrine, especially in the absence of objective measurements.

The New York Court of Appeals' decision in Hutchinson v Sheridan Hill House Corp. provides a good background for the trivial defect defense.

New York Courts, The Affordable Care Act, and CPLR 4545

The New York Appellate Division recently addressed whether health insurance available under the Affordable Care Act could offset the costs of an award for future medical expenses in personal injury lawsuits. In Liciaga v New York City Tr. Auth., the Court concluded that the defendant should have the opportunity to raise the issue at a collateral source hearing, potentially allowing the defendants to reduce future medical expenses awards. An offset in a catastrophic injury case can be a game changer. In Liciaga, a reduction of $3.75 million was on the line.

The plaintiff in Liciaga sustained severe injuries that required significant future medical care,  and a Kings County jury awarded $40 million for the plaintiff’s future medical expenses. Post-verdict, the defendant argued that since the ACA guarantees access to health insurance for individuals with preexisting conditions, the plaintiff could secure a policy to reduce his future medical costs substantially.

The Appellate Division agreed with the defendant’s argument. The Court concluded that the defendant showed that this insurance would reduce future medical costs by millions, satisfying the CPLR 4545 standard that offsets should be applied when reasonably certain collateral sources could cover future costs. The Court held as such even though the plaintiff did not have the coverage. Stating that the plaintiff had a duty to mitigate damages, the Court concluded that the duty included obtaining insurance to offset medical costs when such coverage was reasonably available.

To be clear, the Court did not conclude that the defendant was entitled to the offset. Because the trial court had denied the defendant’s request to hold a collateral source hearing, the Appellate Division remitted the matter to the trial court to hold a hearing on the issue of future medical expenses and a determination as to any collateral source offsets to which the defendant may be entitled.

The Liciaga decision is important for post-judgment litigation and can reduce a future medical expense award by several thousands or millions of dollars.

New York Appellate Division Reminds Practitioners About Time Limit to Challenge A Referee's Order

In a recent decision, the Appellate Division, First Department upheld the motion court's sua sponte finding that the defendants' challenge to the discovery referee's letter order was time-barred. Under CPLR § 3104 (d), the time period for an application to review a referee's order is within five days after the order is made.