New York Civil Law

Justice Balter Says You're Not Fooling Anyone

The recent case of Brzozowy v. Elrac, Inc. is a good example of creative lawyering.  The case involved a bifurcated trial on liability and damages.  It appears that the plaintiff failed to move to set aside the verdict within the 15-day limitation set forth in CPLR 4405.  The plaintiff attempted to avoid the time-bar by moving for reargument and renewal pursuant to CPLR 2221, attempting to gain a longer time limitation.  However, Justice Balter of Supreme Court, Kings County identified what the plaintiff had done but considered the motions for reargument and renewal in any event.

This case provides a nice warning to litigants about the 15-day time limit, and also warns of the dangers of blurring the lines between reargument and renewal motions.

Upcoming Appellate Advocacy Seminar - REMINDER

This is a reminder about this excellent upcoming seminar on appellate advocacy.  The DRI Appellate Advocacy Seminar includes, among other notable presenters, Kenneth Starr, Judge Edith Brown Clement, and Judge David Ebel.  The seminar is March 9-10 in Phoenix, Arizona.  I have attached a brochure here  for your information (Download 06Appellate1.pdf ).

Please contact me directly if you have any questions.

One of the First New York Decisions Applying the Safe, Accountable, Flexible Efficient Transportation Equity Act

Justice Agate of Supreme Court, Queens County in Infante v. U-Haul Co. of Fla. is one of the first (to my knowlege) to apply the Safe, Accountable, Flexible Efficient Transportation Equity Act to preclude an assertion of liability against a lessor of an automobile.   The application is in dictum because the defendant lessor demonstrated through sufficient evidence that it did not own the subject automobile.

Appellate Division, Third Department Hold's Construction Manager's Insistence that Subcontractor Perform Jon According to Schedule Insufficient to Demonstrate Statutory Agency under Labor Law

Some say I'm a bit obsessed with the New York Court of Appeals' decision in Walls v. Turner Construction Co.;  however, the decision can have quite an impact under certain circumstances.

That's why the Appellate Division, Third Department's recent decision in Adair v. BBL Construction Servs. caught my eye.  In Adair, the plaintiff commenced an action pursuant to Labor Law sec. 241(6) against the construction manager and a subcontractor that provided the cement truck  and equipment at a certain worksite.  He was injured why attempting to clean a pipeline that was being used to pour the cement. 

The Third Department upheld Supreme Court's grant of summary judgment to the construction manager, holding that the construction manager had no contract with either the plaintiff's employer or the subcontractor and did not control or supervise the concrete pour.  Notably, the Court was not persuaded that the construction manager's insistence that the pour take place on the day of the accident, despite a mix-up with the original supplier raised a triable issue regarding the construction manager's direction and control.  The Court observed that this evidence went along with the construction manager's administrative duties.

Appellate Division, Third Department Hold's Construction Manager's Insistence that Subcontractor Perform Jon According to Schedule Insufficient to Demonstrate Statutory Agency under Labor Law

Some say I'm a bit obsessed with the New York Court of Appeals' decision in Walls v. Turner Construction Co.;  however, the decision can have quite an impact under certain circumstances.

That's why the Appellate Division, Third Department's recent decision in Adair v. BBL Construction Servs. caught my eye.  In Adair, the plaintiff commenced an action pursuant to Labor Law sec. 241(6) against the construction manager and a subcontractor that provided the cement truck  and equipment at a certain worksite.  He was injured why attempting to clean a pipeline that was being used to pour the cement. 

The Third Department upheld Supreme Court's grant of summary judgment to the construction manager, holding that the construction manager had no contract with either the plaintiff's employer or the subcontractor and did not control or supervise the concrete pour.  Notably, the Court was not persuaded that the construction manager's insistence that the pour take place on the day of the accident, despite a mix-up with the original supplier raised a triable issue regarding the construction manager's direction and control.  The Court observed that this evidence went along with the construction manager's administrative duties.

Appellate Division, First Department Recent Case Recognizes Post-Sale Duty to Warn in Products Action

In New York, the post-sale duty to warn about a product is a narrow one.  The Court of Appeals recognized in Cover v. Cohen that a manufacturer might have a post-sale duty to warn about dangers of its products through advancements in state of the art or where the manufacturer has been made aware of accidents concerning the product in which the manufacturer should warn the users of the dangers of using the product.  There is not a lot of case law imposing such a duty, and even less throughout the nation imposing a post-sale duty to recall a product that was not defective when it was manufactured but has been found to be defective through advancement in state of the art.

The recent Appellate Division, First Department decision in Vincenty v. Cincinnati Inc. recognized the possibility that the manufacturer of a press machine had a post-sale duty to warn about the machine operation, which permitted continuous operation even after the motor was turned off, and allowed the upper "ram" portion to move down even if the foot pedal was accidentally struck.  The machine was manufactured in 1967 and was state of the art at that time.  The plaintiff lost three-and-a-half fingers while operating the machine and commenced a strict products liability action against the manufacturer. 

Recognizing the product safety manager's admission of longtime general knowledge in the industry that accidents occasionally happened when an operator's foot accidentally hit the pedal in these circumstances, the Court held that an issue of fact existed on the manufacturer's post-sale duty to warn.  This case provides a further building block to strengthen post-sale duty to warn case law in New York.

Kings County, Supreme Court Case Provides Nice Primer Regarding Time Limits for Stay of Arbitration

The recent decision in Supreme Court, Kings County in Matter of Liberty Mut. v. Cooper offers nothing earth-shattering.  However, Justice  Hinds-Radix explains the procedural nuances of interposing a Demand for Arbitration(CPLR 7503[c]) and the time limitations for moving to stay the arbitration .   The case stems from  an automobile accident the respondent had with an uninsured motor vehicle.

Scaffold Law, As We Know, Protects Against A Lack of Common Sense

The decision in Barraco v. First Lenox Terrace Assoc.  demonstrates two points.  The first is that Labor Law sec. 240(1), as we know, protects workers from using a lack of common sense.  The worker in this case injured himself when he fell from an unsupported corrugated metal overhang on  a pedestrian bridge.  The Appellate Division, First Department held that the property owners could still be liable under section 240(1) even though the sidewalk bridge subcontractor and engineering consultant may have had an understanding that the bridge was meant only to protect pedestrians and workers on the ground level from falling debris, and was not to be used as a work platform.  The First Department relied on the admissions of the owners' property manager, who stated he knew from the outset that the bridge would be used by workers to access scaffolds.

This case also demonstrates the wide-reaching application of Walls v. Turner Contr. Co.  In this case, the First Department concluded that an issue of fact existed as to whether the engineering consultant can be held liable under sec. 240(1) as the owners' statutory agent.  The First Department noted that the documentary evidence did not make clear whether the engineering consultant lacked supervisory control over the general contractor's workers and that worker safety was the general contractor's responsibility.  The First Department distinguished the facts in this case from those Hutchinson v. City of New York (see post here).

Upcoming Seminar on Appellate Advocacy

I am not just blogging about this upcoming seminar because I am on the committee; the Defense Research Institute's Appellate Advocacy seminars are some of the best seminars I have attended, legal or non-legal.  The presenters are of the highest caliber in the appellate advocacy and legal writing arena, and the content of the seminar is incredibly interesting.

This year's seminar is no exception.  The DRI Appellate Advocacy Seminar includes, among other notable presenters, Kenneth Starr, Judge Edith Brown Clement, and Judge David Ebel.  The seminar is March 9-10 in Phoenix, Arizona.  I have attached a brochure here  for your information (Download 06Appellate1.pdf ).

Please contact me directly if you have any questions.

Right Out of Law School Casebook -- Golfer Refused Prize for Hole-in-One

Okay, get your law school contract textbook out.  This article from WNBC.com discusses a suit a golfer commenced after getting a hole-in-one during a charity event at this golf course.  Signs on the hole said that a hole-in-one would win a golfer an automobile. But the sponsors of the tournament, will not give the golfer the automobile because their insurance company said the signs should have been posted at a different hole: the par-3, 205-yard sixth.