New York Civil Law

Happy Halloween! Ray Parker, Jr. Is Afraid of Ghosts - An Analysis

Ray Erskine Parker, Jr. isn’t telling the truth. The evidence demonstrates that Mr. Parker, Jr. is, indeed, afraid of ghosts. An analysis of the theme of “Ghostbusters” demonstrates the point.

In the theme, Mr. Parker, Jr. spends approximately 4 minutes and 4 seconds trying to convince us that he is not afraid of ghosts. I’m sorry to burst your bubble, but that’s ridiculous for several reasons.

First, Mr. Parker, Jr.’s grammar reveals a lot. He proclaims throughout the song, “I ain’t afraid of no ghost!” Grammar 101 tells us that his proclamation is a double negative and actually means that he is afraid of ghosts. It doesn’t end there, however.

Mr. Parker, Jr. also states over 10 times during the song that he “ain’t afraid of no ghost!” He is in denial. Have you ever heard the Shakespeare quote, “The lady protests too much, methinks“? You’re fixated, Mr. Parker, Jr. If you’re not afraid of a ghost, say it once with emphasis and move on.

Then there’s the false machismo that Mr. Parker, Jr. displays, singing, “Bustin’ makes me feel good.” This man is overcompensating for his fear of ghosts. There is no evidence that he knows what “bustin'” is or, even if he does, that he’s engaged in “bustin’,” ever. I, for one, have seen no evidence of it.

Finally, there is the anxiety-induced deafness that Mr. Parker, Jr. displays at the end of the song. How many times do we have to tell him to call Ghostbusters in response to his fright-filled inquisition? In fact, he begs us to say “Ghostbusters” louder. What’s that about? Indeed, the best evidence of his fear is when he states, “I can’t hear you . . . .” before the song fades out. I have listened to those rejoinders, Mr. Parker, Jr., and it’s loud and clear that the chorus thinks you should call Ghostbusters.

Oh, Mr. Parker, Jr., you magnificent bastard. I read your book! You, Sir, are afraid of ghosts.

 

 

Recent New York Appellate Division Fourth Department Decision on Labor Law sec. 240 (1) - Work Is Covered By Statute When It Is Ancillary to the Larger Construction Project

Nuance is closely associated with New York's Scaffold Law. The Appellate Division, Fourth Department has a line of cases regarding applying Labor Law § 240 (1) to landscaping work in preparation and as part of a larger project. Ells v City of Niagara adds one more holding to the line of caselaw.

In Ells, the plaintiff and his coworkers removed trees to prepare the site for constructing a pedestrian bridge. The plaintiff was assisting in operating a woodchipper when the accident occurred. The plaintiff sustained injuries when a tree that a coworker was cutting down fell and struck him. The plaintiff's employer was the general contractor on the defendant's roadway rehabilitation project.

The Fourth Department concluded that the plaintiff produced evidence establishing that he was engaged in an activity within the protection of Labor Law § 240 (1) when the accident happened. Quoting Krencik v Oakgrove, the Fourth Department stated that the uncontradicted evidence showed that the "'tree removal work [he was engaged in] at the time of the accident was ancillary to the larger construction project . . . that was ongoing at the time of the accident.'" The Fourth Department also stated that the plaintiff met his burden on the motion by submitting an uncontroverted expert affidavit opining that the use of a safety device to control the descent of felled trees was necessary and consistent with the objective of the work being performed at the time of the accident.

The defendant's opposition to the motion prompted the Fourth Department's nuanced analysis. The Fourth Department concluded that the defendant failed to raise a triable issue of fact, "including with respect to whether the tree removal work '[fell] into a separate phase easily distinguishable from other parts of the larger construction project . . .'" Citing Prats v Port Auth. of N.Y. & N.J., the Fourth Department stated that the defendant "conceded that the work was necessary to prepare the site so that construction on the overall project could go forward . . . ."

Would the result have been different if the plaintiff had worked during a separate, discrete preparation stage before construction started? The Fourth Department's citation to Prats indicates the result would have been different. How does the Fourth Department's line of cases square with the New York Court of Appeals' decision Martinez v City of New York? Martinez narrowed the line of caselaw that held owners or general contractors liable when a construction worker was injured while performing almost any activity deemed an "integral and necessary" part of a construction project. Is the Fourth Department's line of caselaw just an "integral and necessary" analysis in disguise? Perhaps Ells or another Fourth Department decision will percolate to the Court of Appeals, and we'll find out.

 Hat tip to my partner Brendan Fitzpatrick for bringing Ells to my attention.

New York Medical Malpractice - Pre-Verdict Settlement of Approximate $35 Million

A recent medical malpractice lawsuit—Pastor v Anthony Policastro, M.D., et al.—settled at trial, pre-verdict for over $35 million. Plaintiff Aiden Zemon, a 15-year-old who was struck by a car in 2020, sustained severe injuries, including brain damage, due to alleged medical malpractice at Westchester Medical Center. After the accident, doctors cauterized his spleen but failed to address fractures in his frontal sinuses, leaving his brain vulnerable to infections, including MRSA. These infections caused permanent brain damage, resulting in Aiden’s need for 24-hour care. Now 19, he has poor vision, is unable to move without assistance, and is confined to his room, relying on others for basic needs.

The case settled for $35.6 million, the highest pre-verdict malpractice settlement in New York's history. This settlement was reached after several offers were rejected, with the final amount agreed upon during the trial. Claims against individual healthcare providers were dismissed. Despite his condition, Aiden remains a central figure in his family's life.

Read the New York Law Journal here.

Read the amended bill of particulars setting forth the alleged injuries here: 

( Download Arlene Pastor Amended Bill of Particulars).

 

New York Court of Appeals Hears Oral Arguments on Labor Law sec. 241 (6) Issue Concerning 23-1.7 (e) (2) (Integral to the Work Defense)

The New York Court of Appeals will hear oral arguments tomorrow (webcast here), October 15, 2024, on a Labor Law § 241 (6) issue. More specifically, the Court will address the interpretation of New York Industrial Code provision 23-1.7 (e) (2).

The Court recently addressed an "integral to the work" doctrine within the context of New York Industrial Code provision 23-1.7 (d) in Bazdaric v Almah Partners LLC.

The pending appeal in Ruisech v Structure Tone Inc. concerns a construction site accident where the plaintiff, employed by A-Val (a subcontractor), slipped on pebbles while installing a glass divider. The key focus of the appeal involved claims under Labor Law § 241(6), based on Industrial Code § 23-1.7(d) and (e) (2).

The court dismissed the Labor Law § 241(6) claim against defendants Park (property owner), CBRE (tenant), and Structure Tone (general contractor), and Tishman-Speyer (property manager) determining, among other things, that the pebbles on the floor were "debris integral to the work" being performed rather than a "foreign substance" causing slippery conditions. The Appellate Division concluded that the "integral to the work" doctrine was applied here, and the doctrine excluded debris from constituting a hazardous condition if it was directly related to ongoing construction activities. This ruling reinforced prior case law (e.g., Krzyzanowski v City of New York) that debris arising from the work itself does not trigger liability under § 23-1.7 (e)(2).

In support of his motion for leave to appeal to the Court of Appeals, the plaintiffs stated, "[W]hile the trial court held that issues of fact were present, the Appellate Division decided as a matter of law that the debris on which the Plaintiff slipped was 'an integral part of the construction," despite that the accumulations of 'debris' is one of the hazards from which the code expressly seeks to protect workers." The Plaintiffs argued that the Appellate Division's holding is inconsistent with the reasoning underlying the "integral part of the construction" exception because it extends the exception so far beyond the Court's decision in O'Sullivan v IDI Const. Co. that it subsumes the regulations entirely (See attorney affirmation here: Download RuisechvStructureTone-app-Ruisech-mot).

The parties' briefs to the Court of Appeals are provided below:

Appellants' Brief:  Download Ruisech v. Structure Tone_App_Ruisech_Brf 

Respondent's Brief (CBRE): Download RuisechvStructureTone-res-CBRE-opp

Responent's Brief (Structure Tone): Download RuisechvStructureTone-res-StructureTone-opp

Respondent's Brief (Tishman-Speyer): Download RuisechvStructureTone-res-TishmanSpeyer-opp

Respondent's Brief (A-Val): Download AvalRuisechvStuctureTone-res-Aval-brf

Reply Brief: Download RuisechvStructure_App_Ruisech_replybrf

Insurance Bad Faith Claims - New York Child Victims Act - Recent Appellate Division, First Department Decision

Insurance coverage attorneys take note! The Appellate Division, First Department in The Rockefeller Univ. v Aetna Cas. & Sur. Co. recently discussed claims of breach of the implied covenant of good faith and fair dealing and a violation of the General Business Law sec. 349 within the context of a motion to dismiss the complaint. The First Department affirmed the Supreme Court’s denial of the insurer defendants’ motion to dismiss the following two causes of action:  

• Breach of Good Faith and Fair Dealing: The plaintiff alleged that the insurers acted in bad faith by frustrating the purpose of their insurance policies, particularly to claims stemming from the 2019 Child Victims Act. The insurer’s actions included failing to resolve claims, withholding decades-old policies, delaying coverage decisions, and refusing to pay settlements. The court found these allegations distinct from the breach of contract claims because the damages for the breach of good faith could extend beyond the policy limits, potentially including financial strain caused by the plaintiff’s need to self-fund over $700 million in settlements and costs.

• Violation of General Business Law § 349 (a): The plaintiff also alleged that the insurers engaged in deceptive practices by adopting a “wait-and-see” strategy that harmed the plaintiff, policyholders, sexual abuse survivors, and the insurers’ investors. The court found that this cause of action was valid because the plaintiff sufficiently alleged consumer harm beyond a private dispute, noting that the insurance policies were standard forms provided to multiple consumers.

The complaint and amended complaint are attached here Download 20241002 - Summons and Complaint w Notice of Electronic Filing and here  Download 654425_2019.