New York Civil Law

Recent Appellate Division, First Department Case Discusses Proximate Cause Analysis

Ask any attorney about proximate causation, and their knee-jerk reaction will be to cite Palsgraf v. Long Isl. R.R. Co.  The issue of proximate cause can sometimes be elusive, and I have seen it misapplied in decisions, motions, and briefs.

The Appellate Division, First Department's reasoning in Baptiste v. New York City Transit Auth. hits the mark on the proximate cause issue.  In Baptiste, the plaintiff safely exited a bus that had gotten stuck in snow.  After waiting some 20 minutes for another bus, the plaintiff slipped and injured herself when she attempted to get on the second bus.  The plaintiff claimed two things: (1) that the New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority  was negligent in not equipping the bus with snow chains, and (2) the City did not provide the plaintiff a safe place to board the bus.

Among other things, the First Department determined that even if the defendants were negligent by not providing snow chains on the tires, that negligence was not a substantial cause of the plaintiff's accident.  The Court observed:  "Plaintiff had disembarked from the first bus at least 20 minutes prior to her fall. She was not struck by a bus that did not have snow tires or chains * * *, nor did her injuries result from the bus becoming involved in an accident due to a failure to have snow tires installed on the bus."

One More Case Concerning Sole Proximate Cause Regarding Labor Law sec. 240(1)

As New York Civil Law has discussed in prior posts (see most recently here), the New York Court of Appeals has no problem dismissing an injured plaintiff's action within the context of a Labor Law sec. 240(1) claim where he or she is the proximate cause of his or her injuries .  How has the Court's sole proximate cause analysis impacted the Appellate Division Departments?

This recent appeal in the Appellate Division, Third Department provides some insight.  In Canino v. Electronic Techs. Co., the injured worker fell off an A-frame ladder while installing some security equipment at the defendant owner's facility.  The general contractor and facility owner demonstrated that the ladder provided to the plaintiff was open and locked after the accident, and that the ladder had rubber footings on it.  Thus, the defendants argued that the plaintiff was the sole proximate cause of his injuries.

The plaintiff argued that a scaffold rather than the ladder was proper protection for this particular worksite.  Although the Third Department denied the plaintiff's summary judgment motion pursuant to sec. 240(1), the plaintiff escaped summary dismissal against it by arguing that the ladder was not an adequate safety device given the space constraints of the worksite.

The Third Department concluded that issues of fact existed as to whether the plaintiff was afforded proper protection regarding his use of the A-frame ladder.  I wouldn't say that this conclusion is a complete victory for the sole proximate cause analysis, but I do think that the Appellate Division Departments are starting to develop a distinct body of case law concerning the analysis.

New York Court of Appeals Addresses Open Issues Concerning Alcoholic Beverage Control Law and General Business Law

My former Court of Appeals' colleague alerted me to this interesting appeal that is now before the New York Court of Appeals.  Northeast Wine Dev., LLC v. Service-Universal Distrib., 23 A.D.3d 890 (3d Dep't 2005), concerns a retail wine and liquor store's action against a wholesale distributor of wine and liquor. The plaintiff/store alleged that the distributor refused to sell the plaintiff/store certain brands of wine and liquor at prices listed in the distributor's mandatory filings with the state liquor authority. The Alcoholic Beverage Control Law mandates, among other things, that a wholesaler file with the state liquor authority schedules of the bottle and case prices charged to retailers.

Among other things, the Appellate Division, Third Department upheld the trial court's interpretation of a bulletin from the predecessor of the state liquor authority concerning whether a wholesaler is allowed to restrict its individual sales to retailers in accordance with what they regard to be the retailers' needs and to allocate specially-packaged products where the supply is limited. The Third Department concluded that the trial court reasonably viewed the agency's bulletin as allowing the distributor to restrict their individual sales.

The two open issues are:

1. Whether the New York State Liquor Authority's purported interpretation of certain provisions of the Alcoholic Beverage Control Law (the "ABC" Law) in Bulletin #85 supercedes the controlling and unambiguous statutory prohibitions and requirements in the ABC Law sec. 101-b, which governs the purchase and sale of wine and liquor across the state.

2. Whether a business may assert a claim pursuant to General Business Law secs. 349 and 350.

Just Busy, Not Lazy

Posts to this weblog for the past month have been few and far between.  The explanation for the infrequency of posting is that I am presenting at a New York State Bar Association seminar on construction defects and insurance coverage on May 19, 2006 (here is the brochure if you are interested: Download Commercial_Lines_Brochure1.pdf).

The preparation for this presentation is taking up a lot of my time outside of the office.  I hope to resume more frequent posting in a few weeks.  For now, I'll be posting sporadically during the next few weeks when I uncover important cases.

Thank you for your patience and readership.

Newest Edition of CaseWatch - Insurance Law Summaries with Legislative Updates

The newest edition of CaseWatch is out.   Here is the most recent edition: Download CaseWatchVol2_No19.DOC.  Also, I am keeping archived copies of older editions below my blogroll.

To receive the benefit of having CaseWatch delivered to your email inbox on the day it is published, feel free to contact CaseWatch's editor, Kevin Merriman.

Relatively New Blawg on Legal Writing

I've been meaning to write this post for quite awhile.  Ray Ward of Minor Wisdom has somehow found the time to write this excellent blawg on legal writing -- the (new) legal writer.  Ray is an excellent writer and editor, and he culls really interesting material on a topic one might think, at first blush, is a dry topic.  the (new) legal writer is anything but dry. 

Ray is the editor of "Certworthy," the Defense Research Institute's electronic publication for the Appellate Advocacy committee.  He has posted past issues at this blawg.

New York Court of Appeals Will Hear Arguments On Special Relationship Exception to Municipality Liability

The Appellate Division, First Department recently granted a motion for leave to appeal to the New York Court of Appeals in Laratro v. City of New York.  In Laratro, the plaintiff Richard Laratro suffered a stroke at work and his coworker/friend called 911 and told the police communication technician about Laratro's symptoms. The plaintiffs alleged that the coworker/friend relied upon the assurances that an ambulance would be sent "as soon as possible," and decided to wait rather than transport Laratro herself to the hospital. An ambulance arrived over an hour after the coworker/friend called 911.

Laratro concerns the application of the "special relationship" exception to the general rule that, as a matter of policy, municipalities will not be held liable for negligence in performing governmental functions.  The elements of the "special relationship" required for a municipality to be held liable for its negligent failure in the performance of services are: (1) an assumption by the municipality, through promises or actions of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.   This appeal concerns the applicability of the third and forth elements.

The First Department did not rule out that a friend could satisfy the "direct contact" element of the special relationship analysis. It observed: "In the face of the allegations, we cannot categorically state, as a matter of law, that [the coworker/friend's] relationship with Laratro was not close enough to qualify her contact with emergency services on his behalf as direct contact by plaintiff. The First Department also determined that an issue of fact existed on whether the coworker/friend, acting in Laratro's interest and on his behalf, was lulled into a sense of security that the paramedics would be there shortly to help, instead of taking affirmative steps herself to get him help.

Justice Marlow dissented, observing that any expansion of the narrow "special relationship" exception should be left to the Court of Appeals or the Legislature. He warned that the Majority's decision significantly increased liability exposure to municipalities that will ensue from enlarging the class of persons who may claim a "special relationship" with a municipality.

The Court of Appeals will soon determine whether the class of persons may include, under certain circumstances, a close friend or coworker.  New York Civil Law will keep you apprised of the case.

New York Civil Law Featured in Albany Business Review

New York Civil Law and I are featured in the most recent issue of "The Albany Business Review" (see article here).  Eric Durr from the Review wrote an accurate piece about why I started blogging.  As an added bonus, the article also prominently features Warren Redlich of Redlich Law and, among other weblogs, Albany Lawyer.

New York Court of Appeals' Recent Decision on Notice of Claim

As Nicole over at Sui Generis provided a good analysis of the New York Court of Appeals' decision in Williams v.  Nassau County Med. Ctr., I won't go through the details of the case (see Sui Generis post on Williams here).  The case concerns that part of General Municipal Law sec. 50-e that gives courts the discretion to accept a late filing of a notice of claim -- i.e., 90 days beyond the claim arises.  The Court affirmed the Appellate Division's reversal, as a matter of law and discretion, of the trial court's determination granting leave to serve a late notice.

Beyond the important substantive aspects of the case, Williams provides a good example of the Appellate Division's discretionary powers.  The Appellate Division is a branch of New York's Supreme Court.  Thus, unlike the Court of Appeals, the Appellate Division has the power to review powers as a matter of discretion.  This review power, as in Williams, allows the Appellate Division to go beyond the typical review of a trial court's provident use or abuse of discretion.  As in this case, the Appellate Division disagreed with the trial court's decision as a matter of discretion and, thus, reversed the trial court's determination.   The Appellate Division did not need to find an abuse of discretion to reverse the decision.

Thank you to Nicole for the keen issue spotting.

Recent Appellate Division, Fourth Department Decision Applies Martinez v. City of New York

In Labor Law sec. 240(1) litigation, a certain analysis exists where the injured worker will not enjoy the protections of the statute where (1) the worker was engaged in an unprotected activity and protective activities were not yet underway; or (2) a bright line demarcated when the protected activity was completed and the worker injured himself or herself during an unprotected activity.  The analysis is more detailed the that set out above, but the New York Court of Appeals' decisions in Martinez v. City of New York and Beehner v. Eckerd Corp. basically set forth that rule.

The Court's decision in Prats v. Port Auth. of N.Y. & N.J. throws a wrench into the analysis, concluding that courts will not isolate the time of injury.  Therefore, where a worker is injured while performing an unprotected injury, he or she might still enjoy the protections of sec. 240(1) if he or she can demonstrate that the unprotected injury was an integral part of a larger project in which he or she engaged in protected activity.

Enter the Appellate Division, Fourth Department's recent decision in Schroeder v. Kalenek Painting & Paperhanging, Inc.  The plaintiff in Schroeder was hanging wallpaper in an apartment, which was going through a renovation project that included painting certain doors, replacing the kitchen counter and floor, installing several new appliances, recarpeting the entire apartment and replacing the wallpaper in the bathroom.  The plaintiff was responsible only for wallpapering.

As relevant to to the analysis discussed above, the Majority held that any of the remainder of the work was immaterial.  The Majority expressly rejected the plaintiff's argument that her wallpaper hanging was an integral part of the larger  renovation project, holding the reasoning in Martinez applied.

Justices Gorski and Green disagreed, stating:

We also disagree with the majority that the decision in Martinez v City of New York (93 NY2d 322) requires dismissal of the claim pursuant to Labor Law § 240 (1). The injured plaintiff in Martinez was performing an investigatory inspection task that "was to terminate prior to the actual commencement of ... asbestos removal work" (id. at 326 [emphasis added]). The Court of Appeals wrote in Martinez that "the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" (id.). That, in our view, is the precise context of the work being performed by plaintiff herein (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881-883). Plaintiff established that the wallpaper project was part of a larger repair and remodeling project and that the wallpapering assignment itself entailed the scraping and repair of the walls for the purpose of preparing them for wallpapering. We thus reach the inescapable conclusion that the activities in which plaintiff was engaged on the day of her accident fall within the ambit of Labor Law § 240 (1) as work involving repair or alteration and that the work being performed both in the bathroom and throughout the apartment was not merely cosmetic maintenance.

Although I agree with the Majority, I find it quite curious that neither the Majority, nor the Dissenting Justices cited or discussed Beehner.