New York Civil Law

HAPPY NEW YEAR!

I want to wish everyone a very happy New Year.  This past year has been full of new friends whom I met through writing "New York Civil Law."  Thank you for your continued insight and thought-provoking comments.  And to those who support "New York Civil Law" by merely reading this Weblog but not posting comments on it, your loyalty is just as important to me.   Thank you for your readership and continued support.

I wish everyone a prosperous New Year!  Here's a link to Times Square's EarthCam to observe New York City's long-held New Year's Eve tradition in the safety of your own home.

Note:  Posts will be sparse the first week of 2006 because I'll be traveling for motions and presentations.

How Does A Recent Appellate Division, Fourth Department Labor Law sec. 240(1) Decision Square with Toefer v. Long Island R.R.?

Nicole over at Sui Generis called my attention to a recent Labor Law sec. 240(1) decision by the Appellate Division, Fourth Department -- Worden v. Solvay Paperboard, LLC.  I am discussing the case for a slightly different point than Nicole did.

How does the Fourth Department's decision in Worden square with the Court of Appeals recent holding in Toefer v. Long Island R.R.?  In Worden, the plaintiff was injured when he fell four to five feet off a trailer bed during a construction project.  He was apparently standing on materials that were loaded on the trailer bed and was knocked off the bed on two occasion by the hook of an overhead crane.  Without citing Toefer, the Court stated: "[T]he work 'exposed the plaintiff to an elevation-related risk' because [the] plaintiff was working four to five feet above the trailer bed, and 'the absence of an appropriate safety device such as a ladder was a proximate cause of [the] plaintiff's injuries.' "  This conclusion is curious in light of the Court of Appeals' reasoning in Toefer.

As discussed in a prior post, both cases in Toefer concerned workers injuring themselves while working on truck beds.  In Toefer's companion case Marvin v. Korean Air, Inc., the plaintiff injured himself while he was descending off a four- to five-foot flatbed.  The Court of Appeals expressly stated the following in concluding that Labor Law sec. 240(1) did not apply:  "A four-to-five-foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law sec. 240(1)'s coverage."

Am I missing something?  Is the mere fact that the plaintiff in Worden was standing on materials placed on the trailer bed enough to come within the ambit of the Scaffold Law?

Should Court Apply the Court of Appeals' Decision in State Farm v. Mallela Retroactive? Judge Markey Doesn't Think So.

As most of you probably know, the New York Court of Appeals in State Farm Mut. Auto. Ins. Co. v. Mallela, earlier this year, determined that No-Fault insurers can withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned claims.  Notably, the Court did not expressly state whether this holding was to apply prospectively or retroactively; the issue was before the Court from a certified question from the United States Court of Appeals for the Second Circuit.

Judge Markey in Multiquest, P.L.L.C. v. Allstate Ins. Co. determined that the Court of Appeals did not intend for the Mallela decision to have retroactive effect.  He reasoned that the Court of Appeals likely knew the administrative difficulties it would create if the holding applied retroactively.  He also noted that applying the holding retroactively would raise property right issues.  The decision provides an excellent analysis of both sides of the issue.

Happy Holidays

I wish you all the best for the holidays.  New York Civil Law will return next Wednesday with new posts.

Enjoy and be safe!

New York Court of Appeals Grants Leave to Appeal in Disclaimer of Coverage Based on Self-Defense

As New York Civil Law posted several months ago, the Appellate Division, Third Department in Allstate Ins. Co. of Hartford v. Cook upheld an insurer's denial to defend and indemnify its insured in an underlying wrongful death action where the insured claimed he killed the decedent in self-defense (see post and accompanying briefs).  The New York Court of Appeals just recently granted leave to appeal to resolve this novel issue.

New York Civil Law will keep you apprised of developments with this case.

New York Court of Appeals Resolves Quick Premises Liability Issue Concerning Constructive Notice

The balance between providing reasonably safe conditions on property as a landowner and avoiding saddling a landowner with an unobtainable duty of care is exemplified in Solazzo v. New York City Trans. Auth.  -- the New York Court of Appeals' recent decision regarding constructive notice and recurring conditions.  In this case, the plaintiff injured himself when he slipped on a wet, slippery subway station floor during an ongoing storm.  The Court rejected the plaintiff's assertion that the property owners had constructive notice of the condition because there was a recurring condition of water accumulating in the same general area during inclement weather. 

The dissenting Justices at the Appellate Division, First Department appeared [see comments below] to embrace, at least in this case, the possibility that a general awareness of a recurring defective condition is sufficient to assess liability against the property owners in this case.

New York Court of Appeals Grants Leave on Jurisdiction Issue Concerning Successor Corporate Liability

Yesterday, the New York Court of Appeals granted leave to appeal in Semenetz v. Sherling & Walden, Inc. This case involves the issue whether a corporation that buys all of the predecessor corporation's assets, including goodwill, trade names and inventory is subject to New York jurisdiction based upon the "product line" exception to the traditional successor corporate liability rule.   As the Third Department stated in its decision,  "a corporation which acquires the assets of another is [generally] not liable for the torts of its predecessor," with four exceptions that the Third Department concluded were not applicable.

This case will, no doubt, have a great impact in the corporate world.  New York Civil Law will keep you abreast of developments as they arise.

Disclaimer:  The firm for which I work is involved in this appeal.

New Addition to New York Blogosphere

Nicole over at Sui Generis has created a relatively new blawg concerning civil and criminal issues for New Yorkers.  Sui Generis provides in-depth analysis of cases and news events.  The resources of on Sui Generis are incredibly helpful, so check it out!

Because Nicole's posts provide a nice complement to New York Civil Law, I will be frequently citing to her posts on cases that this Weblog has not covered but are, nevertheless, relevant.

Appellate Division, First Department's Recent Case Splits Hairs as to Alteration as Set Forth in Labor Law sec. 240(1)

The result in this case in light of the activity performed seems harsh.  In the Appellate Division, First Department's recent decision in Anderson v. Schwartz, the plaintiff injured himself after falling from a ladder.  He was removing a temporary sign that was attached the exterior of a one-story building.

Citing the New York Court of Appeals' recent decision in Munoz v. DJC Realty, LLC (see post on case), the First Department concluded that this type of activity did not constitute a covered activity under Labor Law sec. 240(1).  The Court reasoned that the plaintiff'sremoval of the sign did not change the structure in anyway and constituted more of a comestic change.

Is this the type of analysis the Legislature contemplated when it enacted New York's Scaffold Law?  What if the plaintiff was drilling the brick exterior to have the bolts attach this temporary sign to the building?  Would the result be different and wouldn't that constitute an alteration (see the Court of Appeal's definition of alteration in Joblon v. Solow)?  If so, doesn't it seem silly that a worker falls within the ambit of the Labor Law for attaching the sign to the building because it constitutes an "alteration," but would not be covered for removing the sign?  Would the Court of Appeals conclude that even drilling holes into the building is not a significant enough alteration? 

Justice Ellerin in her dissent concluded that the Court of Appeals' alteration threshold is a rather modest one.

New York Court of Appeals Grants Leave on Evidentiary Issue Within Medical Malpractice Context

The New York Court of Appeals recently granted leave to appeal in Hinlicky v. Dreyfuss, which concerns an evidentiary issue within a medical malpractice context.  The issue on appeal appears to be whether an algorithm and table, which the doctors used to assess whether the decedent needed a more entailed cardiac evaluation prior to performing surgery on the decedent, was admissible at trial.  Concomitant with that issue is whether a flowchart based on the algorithm formulated by the medical center was admissible.  The decedent died 25 days after having surgery done on her heart.