New York Civil Law

Appellate Division, First Department Applies Salazar versus Novalex Contracting Corp. in Recent Labor Law sec. 240 (1) Case

Labor Law § 240 (1), New York's Scaffold Law, certainly has a broad reach. A recent New York Appellate Division, First Department case—Marte v Tishman Constr. Corp.—provides one example of the limits of the statute.

Before discussing Marte, a short discussion of    Salazar v Novalex Contracting Corp. is necessary. Salazar stands for the proposition that a court will not find a Labor Law § 240 (1) violation when the use of a safety device would have been impractical and contrary to the very work at hand. The plaintiff's work in Salazar was to pour and spread concrete on a basement floor. The outer sections on the floor had a trench system with holes. The plaintiff's accident happened when he was "pulling" the concrete and walking backwards, ultimately stepping into one of the holes in the trench and injuring himself. The plaintiff argued that there should have been some type of protective device covering the trench to prevent workers from stepping into holes.

The New York Court of Appeals cut to the heart of the issue, stating that it was not going to quibble about whether there was actually a device to cover the trench system and, if so, whether the device would come within the term "other devices" stated in the statute. Instead, the Court focused on whether such a device would frustrate the task at hand. The plaintiff was tasked with spreading concrete across the entire basement floor, including the trenches. The Court stated, "[I]t would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete." Stating that there should be a common-sense approach to the realities of the workplace at issue, the Court concluded that Labor Law § 240 (1) did not apply.

That brings us to Marte. The plaintiff in Marte was laying rebar and somehow fell four feet below the rebar deck he was standing on while working. In support of his section 240 (1) claim, the plaintiff argued that there should have been plywood or wooden plank on top of the rebar deck to protect him from falling through it. Noting that there was testimony that concrete was going to be poured over the rebar following the work in which he was engaged, the First Department concluded that the motion court properly denied the motions of all parties on the Section 240 (1)  claim. The First Department cited Salazar for its conclusion, indicating the realities of the plaintiff's work made it impractical to place plywood and wooden planks on the rebar deck.  

My law partner at Gerber Ciano Kelly Brady LLP, Brendan Fitzpatrick, wrote the appellate brief and argued the appeal. 

The New York Court of Appeals Decides Recent Appeal About Labor Law § 240 (New York's Scaffold Law) and Repairing A Commercial Vehicle

The pendulum is an apt metaphor to analyze developments in the caselaw. New York's Scaffold Law—Labor Law § 240 (1), in particular—has the pendulum swinging back-and-forth more frequently than New York courts' interpretation of other statutes.

The New York Court of Appeals recently addressed an appeal concerning the repair of a commercial vehicle and whether the plaintiff's injuries were proximately caused by a violation of Labor Law § 240 (1). In Stoneham v Barsuk, the plaintiff was severely injured while lying underneath a commercial trailer to repair its air brake system. The plaintiff used a front loader with a bucket attachment to lift the trailer approximately five-and-a-half feet off the ground. At some point during the repair, the front loader rolled backward and the trailer fell on the plaintiff.

Does Labor Law § 240 (1) apply to the accident in Stoneham?

In the early 2000s, the Court of Appeals narrowed the reach of the Scaffold Law, especially in the realm of the sole proximate cause defense (Blake v Neighborhood Services of New York City, Inc.). Later in the decade, the pendulum swung toward a more liberal view of the Scaffold Law in Runner v New York Stock Exchange Inc. Has the pendulum swung back to a narrower view of the statute?

The Court's majority in Stoneham concluded that the "plaintiff was engaged in ordinary vehicle repair, which is not a protected activity under Labor Law § 240 (1)." Notably, the Court's majority stated that it was "[e]mploying a holistic view of the statute" in deciding whether the plaintiff was engaged in an activity that came within the extraordinary protections of New York's Scaffold Law. The majority stated that applying Labor Law § 240 (1) to "ordinary vehicle repair" would extend the statute far beyond the purposes the statute was designed to serve.

Judge Cannatoro disagreed, stating that the majority "ha[d] not provided any authority for its novel view that the legislature did not intend 'ordinary vehicle repair' to qualify as a protected activity." He noted that the Court looks to the specific safety devices enumerated in the statute "[t]o determine what type of hazards are protected" under Labor Law § 240 (1). Judge Cannataro concluded that there is a least a question of fact in Stoneham as to whether the protections of Labor Law § 240 (1) are available because the plaintiff sustained an injury from a "'significant elevation differential' which could have been avoided by the provision of appropriate safety equipment."

Although Judge Cannatoro was the lone dissenter in Stoneham, his analysis may gain traction in future cases.

Because there is no shortage of Scaffold Law cases reaching the New York Court of Appeals, we will soon learn whether the pendulum has swung back to a more narrow reading of Labor Law § 240 (1). One thing I'm sure of, practitioners will be using the phrase "employing a holistic view of the statute" in many motions and appeals going forward.

 

New York State Governor Hochul Vetoes New York Bill on Wrongful Death Statute - The Grieving Families Act

New York's Governor Kathy Hochul recently vetoed The Grieving Families Act of 2023  (Download NY Gov. veto message on 2023 wrongful death bill). Governor Hochul vetoed a similar bill in 2022. The Act aimed to allow families of wrongful death victims to receive compensation for emotional anguish. New York's wrongful death statute currently limits compensation in a wrongful death action to pecuniary losses -- i.e., damages calculated based on the monetary contributions that the deceased person would have made to their family had he or she lived. The 2023 Act also sought to extend the time to commence a wrongful death action and expand the scope of eligible family members who could recover in a wrongful death action.

The justification for the Act stemmed from the claimed shortcomings of New York's wrongful death statute, which denies families the ability to seek compensation for emotional suffering caused by the loss of a loved one. The justification section of the bill stated, "The current law, over 170 years old, only awards damages for pecuniary loss, disproportionately affecting children, seniors, women, and people of color who may have little or no income. The law's narrow and inhumane language values family members solely based on their financial contributions, disregarding the emotional support, love, companionship, advice, and guidance they provide."

Vetoing the bill, Governor Hochul emphasized that the Act had the potential of significant unintended consequences, that is, "increased insurance premiums for the vast majority of consumers, as well as risk the financial well-being of [New York's] health care facilities -- most notably, for public hospitals that serve disadvantaged communities."

Governor Hochul expressed her willingness in the veto memo to consider future legislation to amend the wrongful death statute. The third time's the charm, so expect the Legislature the pass another bill either this term or in the near future. 

 

 

New York Governor Hochul Vetoes Bill Concerning General Jurisdiction Over Foreign Corporations - Doing Business in New York State

New York Governor Hochul recently vetoed a bill that could have affected companies doing business in the state. The New York Legislature may revisit a similar bill in the future, so businesses should stay vigilant.

The bill focused on New York courts' jurisdiction over lawsuits involving foreign corporations, referring to the court's authority in the state to hear cases related to those companies.

Under the bill, a foreign corporation applying to do business in New York would imply consent to the jurisdiction of New York courts. New York law does not give a straightforward definition of the term, foreign corporation—i.e., “Every corporation that is not a domestic corporation is a foreign corporation.“ “A ‘domestic corporation’ is a corporation created by or under the laws of the state, or a corporation located in [New York] and created by or under the laws of the United States, or a corporation created by or pursuant to the laws in force in [New York before April 19, 1775].”

Governor Hochul's veto prevented potential costs and inconveniences for foreign corporations, as the bill would have subjected them to lawsuits in New York regardless of their connection to the state. Hochul explained the veto aimed to avoid uncertainty for businesses and prevent burdening the judicial system. (Download Veto Message) 

General jurisdiction is not the sole way a New York court can have authority over a foreign company. The court can also consider a foreign company's connections with New York when determining jurisdictional issues. For foreign companies facing a New York lawsuit, consulting with an attorney is advisable to discuss jurisdictional issues.