New York Civil Law

Insurers Beware - Recent No-Fault Decision Demonstrates the Importance of a Correct Denial of Claim Form

The District Court, Nassau County's recent decision in West Tremont Med. Diagnostics, P.C. demonstrates that No-Fault carriers need to be complete with their denial of claims forms.  The court entered judgment in favor of the plaintiff for reimbursement under the No-Fault regulations given that the defendant left out crucial information -- i.e., the name of the medical provider, the date of bill, and the date of the amount in dispute.  The court held that the defendant's omissions were fatal, rejecting the defendant's argument that the motion was premature because the plaintiff sent the defendant incomplete information in response to its demand for additional information.

When Is a Elevated Surface Not a Scaffold? Recent Appellate Division, Second Department Case on New York Labor Law

This recent, terse decision -- Caruana v. Lexington Vil. Condominums at Bay Shore -- in the Appellate Division, Second Department caught my eye on the Web on several sites.  In this case, the plaintiff injured himself when the balcony of condominium from which he was throwing debris into a dumpster below collapsed.  The Court held that this accident did not come withint the ambit of Labor Law sec. 240(1) because the balcony was a permanent appurtenance to the building and not a scaffold.

Notably, the Second Department cited several older similar cases for this proposition, two separate cases involving a fall from permanent staircases and another involving a fatal fall from a sun deck.

Thank you Larry Rogak for indirectly bringing my attention to the case.

New York Court of Appeals' Recent Decision on Premises Liability Offers Odd Nugget

New York Civil Law posted about an odd premises liability case out of the Appellate Division, First Department entitled Gilson v. Metropolitan Opera (see prior post).  The New York Court of Appeals in its recent decision agreed with the Majority at the First Department, concluding that the premises owner did not breach a duty to the plaintiff when it failed to accompany a attendee who attempted to return to his seat after the show had begun and the lights had dimmed. The attendee, who had Parkinson's disease and walked unsteadily, fell onto the plaintiff, causing her to fall and injure herself.

Although the decision gives another good overview of a duty of care analysis, the real nugget in this case is the reaffirmance of the proposition that it is not evidence of negligence where a landowner violates his or her internal policy, where that internal policy transcends reasonable care.  Here, the plaintiff unsuccessfully argued that the defendant acted negligently by failing to accompany the attendee to his seat given the policy to do so when the lights are dimmed.

Happy Thanksgiving -- Posts Resume Next Monday

I will be in the New York City area with my family as of tomorrow, so posts will resume when I return.

I wish you all a very Happy Thanksgiving!

Do You Need to Plead the Homeowner's Exemption to the Scaffold Law as An Affirmative Defense?

Isn't the homeowner's exemption to Labor Law sec. 240(1) an exemption to that statute?  Is there any case law to support that a defendant homeowner must plead the exemption as an affirmative defense to sec. 240(1) liability?

The Appellate Division, Third Department in Davidson v. Ambrozewicz recently stated in dicta that the exemption must be pleaded as one of the homeowner's affirmative defenses.  The case is within the context of a renewal motion.  Notably, the Third Department did not cite any authority for its assertion.

Here is one of the cornerstone cases on the homeowner's exemption -- Bartoo v. Buell -- for background

Appellate Division, First Department Recent Decision Broadens Scope of Stuatory Agent Under Labor Law sec. 200 and Common-Law Negligence

In Wray v. Morse Diesel Int'l Inc., the Appellate Division, First Department seems to have broadened what will qualify an entity as a statutory agent under Labor Law sec. 200 and common-law negligence.  Plaintiff commenced an action against a construction site's project manager for injuries he sustained within the scope of his employement when concrete debris fell on him from a ceiling at a construction site.  The project manager did not have direct supervisory control over the plaintiff but, instead, gave work instructions to the plaintiff's employer, which was the general contractor on the job.  The project manager also assumed responsibility for safety oversight and had authority to issue stop-work orders for violations of safety protocols.  The First Department concluded that using an intermediary to give the plaintiff his daily work assignments did not shield the project manager from falling within the ambit of a statutory agent for section 200 or common-law negligence purposes.  Justice Andrias' dissent offers a markedly different view of the facts.

The Court of Appeals' recent decision Walls v. Turner Construction Co. regarding statutory agency under the Labor Law is provided as background.

The Court of Appeals Will Hear Oral Arguments on an Interesting Conflicts-of-Law Issue

The Appellate Division, Second Department in Welsbach Elec. Corp. v. MasTec N. Am. Inc., 23 A.D.3d 639 (2d Dep't 2005), recently granted MasTec's motion for leave to appeal to the Court of Appeals regarding a contract and conflicts-of-law question. The open issue involves the applicability of a "pay-if-paid" provision in a subcontract that is controlled by Florida law. A "pay-if-paid" or "pay-when-paid" provision generally involves a contract provision in which the general contractor's obligation to pay the subcontractor is contingent on and subject to the general contractor's receipt of payment from the owner of the project.

Welsbach

involved a subcontract controlled by Florida law between the plaintiff and defendant, and that subcontract had a provision making the defendant's payment contingent and subject to its receipt of payment regarding the primary contract with nonparty Telergy Metro LLC. In sharp contrast to the Appellate Division, First Department's recent decision in Hugh O'Kane Elec. Co., LLC v. MasTec N. Am. Inc., 19 A.D.3d 126 (1st 2005) on an extremely similar issue, the Second Department held that under New York's contract conflicts-of-law rules it could not enforce the foreign contract containing the pay-if-paid provision because it violated a public policy of New York. Because the Second Department failed to expressly state whether the enforcement would violate a "fundamental" public policy of this State, the correct standard under this State's conflict-of-law rules, the Court of Appeals will likely address that exact issue and resolve the conflict between the Appellate Division Departments.

If you're scratching your head saying to yourself, "Hey Matt, this is some arcane stuff, and doesn't the General Obligations law take care of forum choice issues in this type of contract," I ask you to read the Second Department's decision carefully.  The omission of the word fundamental makes this issue, in my mind, a very important conflicts-of-law issue.

Disclaimer: As a point of full disclosure, I worked on the motion for this appeal and will be working on the brief and will not provide any further comment until the appeal is resolved.

Another Case that Should Have Gone to a Jury? -- New York Court of Appeals Affirms Dismissal in Failure to Warn Case

Should this matter have gone to a jury on the failure to warn claim against the manufacturer of a device to control the temperature of a water heater?  The New York Court of Appeals today affirmed the Appellate Division, Second Department's dismissal of the failure to warn claim against the manufacturer in Cleary v. Reliance Fuel Assocs. 

It is important to read the underlying decision from the Second Department to get the factual posture.  A child was scalded with hot water from a tap in a sink in her grandmother's home.  The water in the water heater exceeded the set temperature because a device called an aquastat, manufactured by Honeywell, was inserted inside a sleeve, known as a well, which protruded into the tank of water.  The well was too large for the aquastat; it should have been inserted into a a 2-1/2 inch well but instead was inserted into a 4-inch well. The plaintiff claimed that Honeywell's instructions failed to warn that too big of a sleeve could ultimately cause excessively hot water. 

Even though the instructions stated that the aquastat should fit snug into the sleeve, the instructions also provided a maximum measurement range of 4 inches.  This material fact is one that would seem to defeat Honeywell's prima facie showing of its entitlement to judgment as a matter law.

A Tip on Practice at Appellate Division, First Department

I overheard this warning in the Clerks' Office of the Appellate Division, First Department this morning: Attorneys should not be faxing submissions to the Court.  Although most of you probably already know this, the First Department does not appear alone in this admonition.  I err on the side of caution and fax submissions only when a Judge or Justices directs me to do so.

Odd Twist on New York Court of Appeals Holding in Sheppard-Mobley

In Warnock v. Duello, the plaintiff mother is seeking injuries for, among other things, the birth and subsequent death of her son.  The plaintiff entered the defendant hospital to give birth to her premature son.  The child was born alive but only lived 2 hours after the birth.  Supreme Court, Lawrence County framed the issue as follows: "May a woman recover for her emotional injuries where the baby is injured in utero, is born alive, but dies shortly after birth?"

Although I agree with the Court that it was constrained by the New York Court of Appeals' holding in Sheppard-Mobley v. King, the result smacks of being arbitrary given the determination concerning whether the mother could recover emotional damages here hinged on the mere fact that her son lived for two hours after the birth.  The facts in this case appear closer to Broadnax v. Gonzalez, in which the Court held that a mother can recover damages for emotional injuries where she gives birth to a stillborn child.