New York Civil Law

Fourth Department's Traveling Roadshow - "Have Gavel, Will Travel"

This article in the Rochester Democrat and Chronicle discusses the Fourth Department's "Have Gavel, Will Travel" program.

Second Department Labor Law Decision Rejects Plaintiff's Argument that 240(1) Applied to Stepping into Hole

Miller v. Weeden

In this case, the Second Department affirmed the Supreme Court order granting summary judgment in favor of the general contractor and dismissing the plaintiff's causes of action based on common-law negligence and violation of Labor Law sections 200 and 240(1). The plaintiff was an employee of a subcontractor who was cleaning furnace ducts. He allegedly sustained injuries when he stepped into a septic pump hole in the defendant owner's basement while inspecting the heat ducts.

The Court held Supreme Court properly dismissed the plaintiff's common-law negligence and section 200 causes of action because the general contractor established (1) it exercised no supervision and control over the plaintiff's work; and (2) had no notice of the septic pump hole into which the plaintiff fell.

On the section 240(1) claim, the Court agreed that the statute did not apply because the worksite was at ground level, and that the plaintiff was not working on a ladder or at an elevated job site. In denying the section 240(1) claim, the Court cited Wells v. British Am. Dev. Corp., 2 A.D.2d 1141 (3d Dep't 2003) (holding that [t]he fact that levels or floors may exist below the work surface does not, by itself, compel the conclusion that the work surface is an elevated one under section 240(1) ).

Search Terms:

Labor Law 200; supervision, control, notice
Labor Law 240(1); ground level

Labor Law sec. 200

Section 200 of the Labor Law

As noted in the preceding post, most of the searches that lead to this blawg are on the Labor Law. Therefore, I have provided the text for the applicable section of Labor Law section 200. This statute codifies the common-law duty that a worker must be provided with a reasonably safe worksite

Section 200 provides:

General duty to protect the health and safety of employees;
enforcement.

1. All places to which this chapter applies shall be so
constructed, equipped, arranged, operated and conducted as to provide
reasonable and adequate protection to the lives, health and safety of
all persons employed therein or lawfully frequenting such places. All
machinery, equipment, and devices in such places shall be so placed,
operated, guarded, and lighted as to provide reasonable and adequate
protection to all such persons. The board may make rules to carry into
effect the provisions of this section.

Labor Law sec. 240(1) - New York's Scaffold Law

Section 240(1) of the Labor Law

The most frequent searches that lead to this blawg deal with the Labor Law. Therefore, I am including the text of the statute for your easy reference.

Scaffolding and other devices for use of employees.

1. All contractors and owners and their agents, except owners of one and
two-family dwellings who contract for but do not direct or control the
work, in the erection, demolition, repairing, altering, painting,
cleaning or pointing of a building or structure shall furnish or erect,
or cause to be furnished or erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, and other devices which shall be so constructed,
placed and operated as to give proper protection to a person so
employed.
No liability pursuant to this subdivision for the failure to provide
protection to a person so employed shall be imposed on professional
engineers as provided for in article one hundred forty-five of the
education law, architects as provided for in article one hundred
forty-seven of such law or landscape architects as provided for in
article one hundred forty-eight of such law who do not direct or control
the work for activities other than planning and design. This exception
shall not diminish or extinguish any liability of professional engineers
or architects or landscape architects arising under the common law or
any other provision of law.

Case Summary - Second Department Holds that No-Fault Insurer of Rental Vehicle is the Primary Source of No-Fault Benefits

Matter of Avis Rent-A-Car Sys. v. GE Auto & Home Assur.

In this case, the driver was in an accident while operating an automobile that the non-driver rented from Avis Rent-A-Car Sys., Inc. The non-driver had an insurance policy from GE Auto and Home Assurance. Avis submitted claims for contribution from GE -- the non-driver's insurer -- to compulsory arbitration after Avis had paid the no-fault benefits to the driver and non-driver. The claims were denied.

Avis commenced a proceeding to vacate the arbitration awards. The Appellate Division, Second Department affirmed Supreme Court's denial of Avis' petition to vacate the arbitration awards. The Court set forth the following rule: "As between a no-fault insurer of a rental vehicle and a no-fault insurer of a nondriver renter, the no-fault insurer of the rental vehicle is the primary source of no-fault benefits."

Search Terms:
No-Fault Insurance
Renter: No-Fault Insurance

Insurance Services Offices Writes A New Additional Insured Endorsement

This excellent article in the International Risk Management Institute discusses the new "additional insured" endorsement for commercial general liability coverage.

Court of Appeals Accepts Certified Question on Attorneys' Fees

U.S. Underwriters v. City Club Hotel

The Court of Appeals recently accepted these certified questions from the Second Circuit of Court of Appeals:

1. Whether, in a case in which an insurance company has brought a declaratory judgment action to determine that it does not have obligations under the policy but has defended in the underlying suit, a defendant prevailing in the declaratory judgment action should be awarded attorneys' fees expended in defending against that action? 2. Whether, in the special circumstances of this case, attorneys' fees should be awarded to one or more of the defendants?

These questions reexamine the Court of Appeals' holding in Mighty Midgets, Inc. v Centennial Ins. Co., 47 NY2d 12 (1979) (great case name, great decision). Mighty Midgets held that a party which institutes a declaratory judgment action to determine its rights may not recover attorneys' fees for commencing that action and settling the insured's rights.

Choose Your Own Overused Pun - Barking New York Lawyer Fined

For some reason, this story in Newsday about a lawyer who barked at a witness during a deposition received a lot of attention. Yes, it's extraordinary behavior; however, is it that unusual to be picked up by 23 other newspapers (see Google search). Am I losing my sense of humor by thinking that this is another story that hurts the numerous ethical lawyers of New York and around the country?

Anyway, I heard too many horrible puns about this story, i.e., ruff justice or every dog has his day.

First Department Reiterates that a Person Can Be a Resident of More than One Household for Insurance Coverage Purposes

Matter of Allstate Ins. Co. v. Rapp

The First Department in this recent decision reiterated that a person can be a resident of more than one household. In this case, the insured's infant grandson was struck by an uninsured vehicle while he was riding his bicycle. The petitioner insurer petitioned to stay arbitration, and Supreme Court granted that petition. The insurer argued that the respondent infant was not a resident of the insured's household. The First Department reversed.

The respondent infant lived with his maternal grandfather for a good portion of the year, splitting his living arrangement between his grandparents and his mother. The insured, the respondent's grandfather, submitted an affidavit stating that at the time of the accident and for six years prior thereto the infant respondent lived with him and his wife and was listed, along with his siblings, on the apartment lease.

The First Department held that a resident, as defined for insurance coverage purposes, is one who lives in the household with a certain degree of permanency and intention to remain. The Court rejected the insurer's argument that the disposition turned on a question of credibility, holding that the disposition rested on a point of law -- a respondent could, for insurance purposes, be a resident of more than one household.

One Sentence in Third Department's Recent Decision on SUM Coverage Builds on Law

This case is important for two reasons:

1. The Third Department recognized that where the insured in an underlying tort claim seeks a large sum for damages -- i.e., $1 million -- that fact alone may establish the serious nature of the insured's injury in a declaratory judgment action between an insured and insurer (the insured usually commences a dj action to determine that notice of intent to file a supplementary underinsurance motorist claim was timely).

2. I wrote the brief and argued the appeal! Although the odds were against me (see this prior post), I believe justice prevailed.