New York Civil Law

Recent New York Times' Article on Chief Judge Lippman's on New York's High Court (the New York Court of Appeals)

Last week, the New York Times featured this article on Chief Judge Lippman's impact on the New York Court of Appeals.  One of the main thrusts of the article is how the Court has had more contentious opinions in the last year than in prior years under former-Chief Judge Kaye.  Some recent decisions demonstrate the point: Affri v. Basch (Chief Judge Lippman dissents in Labor Law sec. 240(1) case) and Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany (Judge Pigott dissents regarding standing issue in SEQRA matter).

*Be sure to listen to the Multimedia piece with the writer [featured in the left panel of the article].

Rare Dissent In New York Court of Appeals' Dismissal of Appeal As of Right

We've all read the short entries from the New York Court of Appeals regarding appeals as of right and motions for leave to appeal.  They're enigmatic to most.  The conciseness often demonstrates that the Court jealously guards its jurisdiction.

Although not unheard of, there is rarely a dissent when the Court dismisses an appeal as of right.  It's even more unheard of to have a dissent criticize the Court's internal jurisdictional precedent.

Yesterday, Judge Smith dissented in Matter of Kachalsky v. Casace regarding the Court's dismissal of the appeal as of right pursuant to CPLR 5601(b)(1).  The petitioner was challenging Penal Law sec. 400.00(2)(f), which requires "proper cause" for the issuance of a license to carry a concealed pistol or revolver.

It appears that the Majority determined that the appeal was not "substantial," which is a Court interpretation of one of the requirements of an appeal as of right under CPLR 5601(b).  The word "substantial" can be amorphous.  I once overhead a legendary Court of Appeals' Deputy Clerk tell a pro se petitioner that a "substantial" constitutional question is like a tough stain on a shirt, not like the ordinary daily stains that we all get and rub out with some elbow grease.  

In Casace, Judge Smith took issue with the Court's application of the "substantiality" requirement in the past and in the present appeal, noting that the Court's treatment conferred discretion similar to whether the Court should grant a motion for leave to appeal.  Clearly, the New York Constitution and the CPLR does not want the Court to treat appeals as of right as if it were determining whether to grant or deny motions for leave to appeal.

Although enigmatic in its own right, Judge Smith's dissent offers a rare peak behind the curtain that is the New York Court of Appeals' internal jurisdiction.

New York Court of Appeals Revisits Sole Proximate Cause Defense

With the last few Labor Law decisions from the New York Court of Appeals (read post here and here) acting as a backdrop, I've heard defense attorneys complain that the Court has cut back the sole proximate cause defense in its recent decision Gallagher v. New York Post.  The decision in Gallagher seems less to do about the Court retracting from its prior decisions on this defense and more about the proof that was adduced on summary judgment (see prior post).  

The plaintiff in Gallagher was injured when he fell into an opening decking floor after the blade of a circular cut-off saw he was using became bound up in the decking that he was cutting.  At his deposition, the assistant project manager at the work site testified that "safety harnesses with shock-absorbing lanyards" and "retracting lanyards" were available for use.  He could not say whether any of those safety devices were in the area from which the plaintiff fell.  The assistant project manager also testified that, at the time of the accident, there was a "standing order," issued by the project manager to the project foremen, that the ironworkers should "have a harness on and be tied off".  He could not recall whether these instructions had been given to the ironworkers.

The plaintiff and his wife moved for partial summary judgment on his Labor Law sec. 240(1) claim, pointing to the affidavit of his co-worker who stated that "there were no safety lines, lifelines or stanchions in the work area, and [he and the plaintiff] were not provided with safety belts, harnesses or yo-yos in order to tie off."  The defendant owner relied on the assistant project manager's deposition testimony that safety devices were available for use at the project site; it also relied on the "standing order".

In further support of their motion, the plaintiff adduced an affidavit signed by the injured plaintiff's foreman.  The foreman would have been the person responsible for relaying safety instructions to the ironworkers.  The foreman stated that the injured plaintiff had not been provide with a safety harness or lifeline, nor were any stanchions or safety cables in the accident area at the time of the accident."

The Court granted the plaintiffs' partial summary judgment motion, holding that the owner's evidence did not raise a question of fact that the injured plaintiff knew of the availability of the safety devices and unreasonably chose not to use them.  The Court pointed out that there was no evidence that the injured plaintiff knew where to find the safety devices that the owner argued was available.  

The Court also pointed out that there was no evidence that the injured plaintiff was expected to use the safety devices.  The owner failed to proffer evidence demonstrating that the injured plaintiff had been told to use the safety devices.  Although the owner pointed to the "standing order," there was no evidence that anyone conveyed the order to the ironworkers.  The Court also relied on the foreman's affidavit to demonstrate the injured plaintiff had not been provided with the requisite safety devices.  The Court noted that the foreman's affidavit was consistent with the conclusion that the injured plaintiff was ignorant of the availability of safety devices or with his knowledge thereof.

The Court distinguished its prior holdings in Montgomery v. Federal Express Corp. and Robinson v. E. Med. Ctr. LP.  The Court noted that both cases stand for the same proposition: Liability under sec. 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing the accident.  The Court concluded that the Gallagher facts did not present such a case.

Gallagher defines the outer boundaries of the prior sole proximate cause cases; the decision appears less a chipping away of the sole proximate cause defense and more an explanation of what proof a defendant must proffer to apply the defense successfully.

New York Court of Appeals Will Hear Oral Arguments on Whether to Extend Primary Assumption of Risk

For its February Session, the New York Court of Appeals will hear oral arguments in Trupia v. Lake George Central School Dist.  The appeal concerns whether the Court should extend primary assumption of risk beyond the context of sporting and entertainment activities.

 The injured infant in Trupia attempted to slide down his school's bannister and fell on his head, fracturing his skull and sustaining a brain injury and retrograde amnesia.  The infant and his father commenced an action against the school.  After discovery and the filing of the note of issue, the defendant school moved to amend its answer to assert the affirmative defense of primary assumption of risk.  

Primary assumption of risk acts as a total bar to liability based on the defendant's alleged negligence.  Since the enactment of the comparative fault statute, primary assumption of risk has typically only applied in cases where the plaintiff was involved in a sporting or entertainment activity.

The Appellate Division, Third Department reversed the trial court's grant of the defendant's motion to amend its answer.  The Court concluded that the defense was devoid of merit because primary assumption of risk did not apply to the injured infant's activity.  The court rejected the defendant's argument that the Second Department and Fourth Department had extended primary assumption of risk beyond the sporting activity and entertainment activity context (Sy v. Kopet (the plaintiff injured while attempting to enter room through second floor window) and Lamandia-Cochi v. Tulloch (the plaintiff was injured while attempting to slide down wooden bannister).

The Court will resolve this conflict between the Appellate Division Departments and clarify the assumption of risk that frequently eludes attorneys.

New York Civil Law will keep you apprised of the developments on this appeal.