New York Civil Law

New York State Senate Rejects Governor Kathy Hochul's Nomination of Justice Hector LaSalle for Chief Judge Position of the New York State Court of Appeals

Earlier today, seemingly out-of-nowhere, the New York State Senate moved Governor Kathy Hochul's nomination of Justice Hector LaSalle to a full vote. The Senate rejected the Governor's nominee, with 39 senators voting against Justice LaSalle and 20 voting in his favor. Perhaps the looming hearing of an Order to Show Cause (Download signed OTSC) in a declaratory judgment action scheduled for this upcoming Friday in a lawsuit Senator Anthony Palumbo commenced against the New York State Senate provoked the vote. (see supporting affirmation of OTSC Download Affirmation)

Notably, the attorney for Senator Palumbo has commented to the press that the vote does not render the declaratory judgment action moot. (see Bloomberg Law)

How did we get here? Justice LaSalle has been a public servant for, at least, 20 years, and heads one of the busiest appellate courts in the entire country -- i.e., the Appellate Division, Second Department. The chief judge position of the New York Court of Appeals supervises the seven-judge Court of Appeals panel and has a sizable administrative role as the chair of the Administrative Board of the Courts. Justice LaSalle's experience and demeanor appeared to be a natural fit for the chief judge position. A majority of senators thought otherwise. Is it a defeat for Governor Hochul, the question many commentators are claiming or a defeat for New Yorkers?

I have aggregated some relevant news articles here: New York Times; New York Magazine; The Hill; Politico; New York Post; New York Daily News; and The Wall Street Journal. Here is a statement from Chairman of Committee of Judiciary, Senator Hoylman-Sigal.

New York's Justice for Injured Workers Act - New York Workers' Compensation Law

New York Governor Kathy Hochul signed a bill at the end of 2022 that impacts workers’ compensation and personal-injury lawsuits in New York. “The Justice for Injured Workers Act” adds a new section of New York’s Workers Compensation Law that bars a court or other forum from granting preclusive or collateral estoppel effect to decisions by the Workers’ Compensation Board in any other action or proceeding. The Act will impact construction-site/Labor Law personal-injury lawsuits.

Consider a litigant who claims he was injured at a construction site as an employee of a concrete subcontractor. The litigant claims he fell from a height because he was not provided with appropriate safety devices. The subcontractor has no record of the litigant’s employment or his presence at the jobsite, and has no record or report of the claimed accident. The Workers’ Compensation Board determines in the litigant’s workers’ compensation claim that he was not the subcontractor’s employee and was not present at the jobsite.

Prior to the Act, the owner, general contractor, or employer could argue in the litigant’s personal-injury action (separate from the workers’ compensation claim) that the Board’s findings precluded the litigant from arguing he was the subcontractor’s employee and was injured at the jobsite. The Act now bars a court from granting preclusive effect to the Board’s decisions except on a determination of whether there was an employer/employee relationship.

The Act cuts both ways for the plaintiffs’ and defense bar. The Act’s stated intent was to protect workers and the “no fault” nature of workers’ compensation claims, thereby favoring plaintiffs in personal-injury actions. The Act’s justification notes the “lightning-fast administrative hearings before a Worker’s Compensation Law Judge” were designed to provide quick and consistent benefits for injured workers. It also notes that the hearings “sacrifice[d]” basic procedures and evidentiary rules of  trials “to swiftly decide the claims.” Thus, the Act seeks to protect workers from having less-formal, quick administrative determinations impinge on a workers personal-injury action. As opposed to workers’ compensation claims, personal-injury actions abide by rules of evidence and allow for discovery to flesh out the issues.

The glass is half full for the defense bar, however. The Act now prevents alleged injured workers from arguing in their personal-injury lawsuits that the Board’s determination on whether the work-related accident happened or how it happened precludes the defense from proffering evidence to demonstrate otherwise. The Act’s unintended effect benefits the defense bar in the construction litigation realm, where there are frequent fraudulent claims of unwitnessed, gravity-related accidents. The plaintiffs’ bar can no longer argue that the Board’s findings on the foregoing issues are final.

The Act certainly gives the plaintiffs’ bar a boon. A plaintiff can now argue that the Board’s determination on the existence of an employer/employee relationship precludes the Supreme Court from ruling on the same issue in the plaintiff’s personal-injury lawsuit. Considering the large number of fraudulent construction-site claims in New York, many of them are questionable on the employer/employee relationship issue. In that respect, the Act helps the plaintiffs’ bar.

The Act’s impact on personal-injury lawsuits is one more reason for the insured (owner, general contractor, and subcontractors), the general liability defense attorney, and the workers’ compensation defense attorney to work closely with each other at the early stages of the litigant’s claim. The defense can stem a fraudulent claim at its inception by proving to the Board that there was no employer/employee relationship between the litigant who is claiming injuries at a construction site and the general contractor or subcontractor. Considering the plaintiff-friendly protections under Labor Law §§ 240 (1) and 241 (6), disputing every meritorious issue counts.

The Act is effective immediately.

Photo credit: Arne Hoel / World Bank (license)

New York State Governor Kathy Hochul Vetoes "Grieving Families Act" - Proposed Amendment to New York's Wrongful-Death Statute

Gerber Ciano Kelly Brady LLC's Brendan Fitzpatrick reports on the recent development on the proposed "Grieving Families Act" in New York:

New York’s Governor Kathy Hochul vetoed the “Grieving Families Act” (Senate Bill S74A), which would have amended New York’s wrongful-death statute. According to the Governor’s veto, the proposed bill would have “substantially” changed the nature of wrongful death claims in New York by expanding (1) the persons entitled to seek damages, “distributees,” to “surviving close family members” as determined by a jury; and (2) the categories of recoverable damages because damages would no longer be limited to pecuniary loss and would include losses for grief, anguish, loss of love, society, protection, comfort, and consortium, loss of guidance and counsel. The bill would have also extended the statute of limitations for wrongful-death claims from two years after the decedent's death to three years and six months.

Governor Hochul stated in the veto that while the bill is “well-intentioned, [it] represents an extraordinary departure from New York’s wrongful death jurisprudence and may result in significant unintended consequences.” The Governor identified the “indefinite class of beneficiaries” and the “broad and perhaps overlapping, categories of damages” that would have caused confusion. Governor Hochul recognized the potential for confusion because the bill applied to pending cases, possibly resulting in “claimants and courts” being “forced to grapple with new competing claims asserted by ‘close family members’ as well as protracted discovery and increased litigation costs, potentially upending cases far along the judicial process.” The Governor acknowledged that the bill “would increase already-high insurance burdens on families and small businesses and strain already-distressed healthcare workers and institutions. The increased costs would be particularly challenging for struggling hospitals in underserved communities.”

The Governor noted that the bill passed “without a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the State’s complex health care system.”  While the Governor expressed support for the intent of the bill, she cautioned that there needed to be more investigation into the potential impact on the State.

We fully expect the New York Legislature to re-visit this statute. What remains to be seen is whether the Legislature will pass a version of the statute that includes some of the changes requested by the Governor to amend New York’s existing, 170-year-old, wrongful-death statute.  

Brendan is the chair of Gerber Ciano Kelly Brady LLP's Appellate Advocacy Practice Group.

Photo credit: KC Kratt

New York Appellate Division, First Judicial Department Grants Spoliation Sanctions for Destroyed Personal Journal

The plaintiff or defendant in your case destroyed a piece of evidence you deem essential to your case. You liken the spoliation to Arthur Andersen shredding documents for Enron and seek the ultimate sanction of dismissal of the case (plaintiff's spoliation) or striking the answer (defendant's spoliation). New York courts have a different idea, though.

In a recent New York Appellate Division, First Department appeal -- Clarke v Povella -- the spoliation was substantial. In Clarke, the plaintiff commenced a lawsuit against defendants concerning a motor-vehicle/pedestrian accident. The plaintiff alleged emotional and psychological injuries from the accident.

Through the plaintiff's deposition, the defendants learned that the plaintiff kept a private journal. At the deposition, the defendant requested production of the journal. The plaintiff's attorney apparently did not move for a protective order to quash the demand. The plaintiff allegedly claimed she lost the journal, giving vague reasons why she did not preserve the journal once the defendant requested production of it.

The First Department concluded that the defendant's demand for the journal was not beyond the scope of disclosure, disagreeing with the trial court. The First Department reasoned that the journal was discoverable material even though it contained private information, noting that the plaintiff put her emotional and psychological state at issue and the journal could shed light on those allegations.

Notably, the First Department cited to the New York Court of Appeals' decision in Forman v Henkin, which discussed discovery as it applied to social media and, in particular, Facebook. Citing Forman, the First Department noted that the defendants were not required to meet any special threshold burden to maintain the journal. The Court's point being that New York's discovery rules are broad and material will be subject to discovery where there is a showing that it is likely to lead to "material and necessary" information.

The First Department held that spoliation sanctions were warranted because the plaintiff had an obligation to preserve the journal once the defendants demanded it during the plaintiff's deposition; the Court stated that the plaintiff was grossly negligent in failing to preserve the journal. Nevertheless, the Court concluded that an adverse inference jury charge was more appropriate -- i.e., a charge that the contents of the journal likely would have been relevant to the plaintiff's emotional and psychological claims. Choosing to not impose the ultimate sanction, the Court reasoned that the defendants had access to information on her psychological health through authorizations to the plaintiff's psychological treatment. The Court also reasoned that the plaintiff testified about her psychological health at her deposition. 

The lesson in Clarke is an attorney should immediately move for a protective order when he or she deems a discovery request is beyond the scope of discovery. For a non-spoliating party, you can surely ask for the ultimate sanction but know that the court will make all efforts to fashion a remedy that punishes the spoliating party and still allows the case to be decided on the merits.

Photo Credit: Sh4rp_i

(40 years ago this week, Daryl Hall and John Oates were halted at No. 3 on the Billboard 100 for the pulsating pop hit, "Maneater.")

New York Commission on Judicial Nomination Names Seven Candidates for Chief Judge of New York Court of Appeals

The New York Commission on Judicial Nomination has named the following seven candidates for the position of Chief Judge of the New York Court of Appeals:

New York Court of Appeals Acting Chief Judge Anthony Cannataro;

Yale Law School Professor of Law Abbe Gluck; 

Presiding Justice of the Appellate Division, Second Judicial Department, Justice Hector D. LaSalle;

Associate Justice of the Appellate Division, First Judicial Department, Justice Jeffrey K. Oing;

Albany Law School President and Dean Alicia Ouellette; 

Deputy Chief Administrative Judge for Judicial Initiatives and Court of Claims Judge Edwina-Mendelson; and 

Attorney-In-Charge of Special Litigation and Law Reform at the Legal Aid Society, Corey Staughton.

All candidates are strong nominations, so my focus of Acting Chief Judge Anthony Cannataro is not meant to detract from the other nominees. Acting Chief Judge Cannataro would make an excellent chief judge for many reasons but his current position does not mean he is a lock for the permanent position. The brilliant jurist Richard Simons became Acting Chief Judge of the Court of Appeals in 1992 after the resignation of Chief Sol Wachtler. Judge Simons would have made an excellent chief judge but then-Governor Mario Cuomo made New York history by appointing Associate Judge Judith Kaye to the leading position on the Court.

Governor Kathy Hochul can make her appointment from the list no sooner than December 8th but no later than December 23rd.

Here is a New York Law Journal article discussing the nominees and quoting my brilliant former colleague, Professor Meredith Miller.

(40 years ago this week, one-hit wonder, Toni Basil, was climbing the charts at No. 3 with the hit "Mickey.")

Photo by Tracy Collins

New York Court of Appeals Will Address Appellate Division Department Split on Negligent Security Measures - Pt. 2

This is the second post on the negligent security appeal that the New York Court of Appeals will address next year. (Last week's post here.) As I discussed last week, the First and Second Departments have conflicting views on analyzing negligent security claims.

The majority opinion in Scurry v New York City Hous. Auth. explains the Second Department's view on how the First Department analyzes negligent security cases when an attack is “targeted” rather than “random.” In Scurry, a former fiancé killed the decedent in the apartment building where she lived. The decedent lived on the sixth floor of the apartment building. The fiancé allegedly entered the apartment building through the street-level front door of the apartment building. The front door's lock had a history of inoperability during the three months preceding the fatal attack. The defendant New York City Housing Authority owned and maintained the apartment building.

In support of its motion for summary judgment, the NYCHA argued, among other issues, that the fiancé's targeted, premeditated attack of the decedent broke the causal nexus between any of its negligence in failing to maintain an operable lock on the building's door. The NYCHA drew a distinction between a random attack and the targeted attack like the one that happened to decedent. The reasoning of the targeted attack argument is that any reasonable security measures would likely not have deterred an attacker's actions in a premeditated, targeted attack. The reasoning invokes the intervening cause logic, breaking the chain between any negligence of the property owner and the resulting attack.

Writing for the majority, Justice Dillon provides an excellent overview of negligent security caselaw in New York, highlighting cornerstone Court of Appeals' decisions and analyzing the First and Second Departments' cases throughout the years. He identifies a "problem" with the First Department's analysis of negligent security cases by basing a conclusion on whether an attack is targeted or random: "The problem with basing a conclusion as to liability on the distinction between 'targeted' and 'random' attacks is that the binary dichotomy between those two categories of crime, by mechanically focusing on the perpetrator's intent, fails to account for the myriad of facts that may be present in a given case." 

Again, the context of the Scurry appeal is on summary judgment motion, so Justice Dillon's analysis focuses on the evidentiary proof a property owner needs to proffer to meet its initial burden on the motion. Justice Dillon concludes that the NYCHA failed to meet its initial burden. On behalf of the majority, Justice Dillon concludes that the NYCHA provided no evidence that its alleged negligently maintained street-level, front door played no concurrent role in enabling the attacker's criminal conduct at the specific date, time, and place of his crime, however premeditated that criminal conduct might have been. Notably, Justice Dillon points out the importance of the fundamental tort concept that there can be more than one proximate cause of an occurrence or injury. 

Justice Dillon sets forth a clear rule concerning negligent security claims within the context of a motion for summary judgment: "The test in determining summary judgment motions involving negligent door security should therefore not focus on whether the crime committed within the building was 'targeted' or 'random,' but whether or not, and to what extent, an alleged negligently maintained building entrance was a concurrent contributory factor in the happening of the criminal occurrence." Justice Dillon also reminds practitioners of the burden-shifting analysis when parties move for summary judgment.

Next week, we will discuss the First Department's response to the Scurry decision.

Photo Credit: Bill Badzo

 

New York Court of Appeals Will Address Appellate Division Department Split on Negligent Security Measures

A Brooklyn Heights resident looks out her window and sees apartment buildings across the water in Battery Park City in Manhattan. Even though, the buildings are a few miles apart, the common-law for the property owners of each of those buildings is not the same concerning liability for negligent security measures.

Some time during the new year, the New York Court of Appeals will address the conflict between the First and Second Appellate Division Departments on the common-law duty to take minimal precautions to take minimal precautions to protect tenants from foreseeable harm. The following issue is squarely presented in the Appellate Division, Second Department case Scurry v New York City Hous. Auth.: Whether a “targeted” attack by a perpetrator against a victim on premises, as distinguished from a “random” attack on premises, is, by definition, an independent intervening cause that insulates a property owner from liability for negligent security measures, as a matter of law. This post is Part 1 of a three-part post.

Justice Dillon of the New York Appellate Division, Second Department is a legal powerhouse. In Scurry v New York City Hous. Auth., Justice Dillon writes a well-reasoned opinion on whether a property owner can prevail on summary judgment when the plaintiff is alleging he or she failed to take reasonable security measures.

In Scurry, Justice Dillon identifies a line of case from the Appellate Division, First Department holding that targeted attacks break the proximate causal link between the reasonableness of security measures by the property owner and the targeted crime itself. In Scurry, the Second Department draws a line in the sand, holding that “depending on the circumstances, the issue of proximate causality may present a triable issue of fact.”

Justice Dillon’s analysis is a fine lesson in foreseeability and proximate cause. Landlords are subject to a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including harm from the foreseeable criminal conduct of third persons. For example, a persistent broken front door lock in a high-crime neighborhood might expose the landlord to liability.

Justice Dillon explains the First Department’s different analyses for criminal acts that are intentionally “targeted” against a particular victim as opposed to criminal acts that are “opportunistic” against random victims. Justice Dillon states, “Where the criminal act is targeted, the First Department deems the causal nexus between the plaintiff’s injury and the landowner’s duty of care to be severed as a matter of law . . . .” He explains, “by contrast, where the criminal act is perpetrated in a random manner, the First Department deems the causal nexus between the plaintiff’s injury and the landowner’s duty of care as potentially raising a triable issue of fact on a summary judgment motion. Notably, Justice Dillon explains the First Department’s rationale in distinguishing between the two types of attacks: In actions involving premeditated attacks upon known victims, it is unlikely than any reasonable security measures would have deterred the criminal attack.

Justice Dillon notes that the Second Department does not draw such a distinction.

In the next part of this three-part post, I will discuss the unfortunate facts in Scurry and the Second Department’s analysis.

Photo Credit: Daniel Foster

Wrecks, Lies, and Videotape - Two Recent New York Appellate Division Cases Consider Video Record Evidence on Summary Judgment Motions

What do Buggles, George Orwell, Pappas v New York City Tr. Auth. , and Zhong v Matranga have in common? They all recognize the impact of the medium of video.

As technology has advanced in the last ten years, so has the ubiquity of video recordings in our daily lives. Videos aren’t just for Youtube, Tik Tok, and Instagram posting. The medium has found its way into summary judgment motions, too. The decisions in Zhong and Pappas are two recent examples of the power of video recordings.

The facts in Pappas show that, without a video recording, the case would have been a garden-variety motor-vehicle accident with conflicting testimony. The personal-injury action stemmed from a rear-end collision in which the defendant bus driver rear-ended the vehicle the plaintiff George Pappas was driving. George’s wife Donna was a passenger in the car. Both plaintiffs separately testified that they had been stopped for 5 to 10 seconds when the bus struck them from the rear without warning. George testified that he had stopped the vehicle because the traffic light was red.

The bus driver told a different story. He testified at his deposition that the accident occurred because the plaintiffs’ vehicle moved into the bus’s lane in front of the bus. Without warning, the plaintiffs abruptly stopped in front of the bus even though a green light was is in their favor.

The defendants (the bus driver and the owner of the bus) moved for summary judgment to dismiss the negligence action based on the emergency doctrine. Considering the conflicting testimony, the Second Department noted that, without more, triable of issues existed on how the accident happened and who was at fault. The Second Department further noted, however, that the bus surveillance video, which the defendants submitted in support of their motion, eliminated any triable issues of fact. The Court noted that the video recording supported the bus driver’s version of how the accident happened, concluding that the bus operator was confronted with an emergency not of his own making and was left with “virtually no opportunity to avoid a collision . . . .” Accordingly, the Court affirmed Supreme Court’s grant of summary judgment dismissing the complaint.

The video recording in Zhong had an equally damaging result on a motion for summary judgment. The case concerned a bicycle/pedestrian accident. The defendant in Zhong was riding his bicycle in New York City. The collision with the plaintiff pedestrian happened as the defendant was riding his bicycle with the right-of-way through an intersection. He traveled in the marked bicycle lane at a speed of approximately 14 miles per hour, well within the posted speed limit and within the average cruising speed for bicycle traffic proceeding through the intersection.

The accident happened when the plaintiff suddenly entered the marked bicycle lane against a red light for pedestrian traffic and within a few feet of the defendant. The defendant testified at his deposition that when the plaintiff took two steps into the bicycle lane, he (1) “immediately braked and yelled ‘watch out’”; collided with her in the middle of the bicycle lane approximately two seconds later; (3) didn’t have time to stop, change lanes or go around the plaintiff; and (4) jammed on the brakes and yelled at the plaintiff.

The defendant moved for summary judgment, proffering an expert affidavit in which the expert opined on he numerous reasons why the defendant was not negligent. In opposition, the plaintiff also proffered an expert affidavit in which the expert opined that even if the defendant was traveling under the speed limit, he was still negligent because the defendant bicyclist was traveling much faster than the three other bicyclists riding near him. Without a video, this would have been one of those battle-of-the-experts situations where the non-movant raised triable issues of fact to defeat a summary judgment motion.

The parties had proffered a copy of a video of the intersection that captured the incident. The video was the deciding factor in the case. The First Department concluded, “There is only one version of the accident: the one shown in the video, described in [the] defendant’s testimony, and corroborated by [the] plaintiff.” Granting the defendant’s summary judgment motion, the Court reasoned that the video showed that the plaintiff (1) did not look in the direction of the defendant, (2) could not state the distance between her and then defendant when she stepped off the curb, (3) did not remember being struck by the bicycle, and (4) only remembered someone yelling “watch out” while “very, very close” to her right ear. The First Department noted that the plaintiff’s testimony synced with the defendant’s testimony that the plaintiff darted out onto the bicycle’s path when he was within a few feet from her.

The First Department concluded that the plaintiff failed to raise an issue of fact, noting there was no evidence that the defendant operated his bicycle at an excessive rate of speed, in a negligent manner, or without due care to avoid colliding with any pedestrian.

For plaintiffs and defendants alike, the Pappas and Zhong decisions are reminders remind to request all available, relevant video recordings in their respective discovery demands. Early investigation of an accident will help attorneys unearth recordings of the relevant accident or incident. As the Pappas and Zhong decisions demonstrate, a video recording can mean the difference between a dismissal and going to trial with conflicting fact and expert witness testimony.

Thank you to my partner Brendan Fitzpatrick for bringing these cases to my attention.

(40 years ago this week, the Australian band Men at Work was fighting its way up the Billboard 100 charts with the No. 12 song, "Who Can It Be Now?" Cue the obligatory but awesome saxophone solo)

Appellate Division, Second Judicial Department Historic All African-American Bench

On Friday, September 9, 2022, the Appellate Division, Second Judicial Department, arguments on appeal will be heard for the first time by an all African-American bench in the Court’s historic courtroom at 45 Monroe Place, Brooklyn, New York.

Justice Presiding Associated Justice Valerie Brathwaite Nelson

Associate Justice Cheryl E. Chambers

Associate Justice Paul Wooten

Associate Justice William G. Ford

The arguments will be live-streamed and all who wish to view this historic event can access it through the Court’s website starting at the 10 A.M. calendar call.

(40 years ago this week a young, rebellious rocker going by the name John Cougar was climbing the Hot 100 with his anthemic song, "Jack and Diane" -- No. 4 with a bullet)

#nycivillaw

Photo by Joseph

Appellate Division, Fourth Department Recently Addresses Impact of Coworker's Actions under Labor Law sec. 240 (1) Claim

Can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct. The Fourth Department recently addressed this issue in Thomas v North Country Family Health Ctr., Inc.

NY Court of Appeals’ caselaw tells us that a worker is the sole proximate cause of an accident where “plaintiff had adequate safety devices available; that he [or she] knew both that they were available and that he [or she] was expected to use them; that he [or she] chose for no good reason not to do so; and that had he [or she] not made that choice he [or she] would not have been injured” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]).

Some cases present straightforward facts, making a determination of sole proximate “easier” than other cases. For example, the Court of Appeals held in Montgomery v Federal Express Corp. (4 NY3d 805 [2005]), that the plaintiff, who used an overturned bucket to access an elevator motor room, was the sole proximate cause of his accident. The Court stated that ladders were available at the job site but not in the immediate vicinity where the plaintiff and his coworker were working. The Court stated, “Rather than fetch a ladder, however, the workers climbed to the motor room on an overturned bucket . . . [and] the plaintiff exited the motor room by jumping to the roof.” Citing a cornerstone Section 240 (1) case, Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]), the Court noted that “since ladders were readily available, [the] plaintiff’s normal and logical response should have been to go get one.”

What happens when a coworker denies the plaintiff use of an available safety device and, rather than speak to the foreman, the plaintiff takes it upon himself or herself to perform his work without the safety device?

In Thomas, the plaintiff and his coworker were working as a team, hanging sheetrock at a height on a building the defendants owned and operated. On the morning of the accident, the plaintiff stood on the ground and cut pieces of sheetrock while his coworker used a provided scissor lift to raise the cut sheetrock from ground level. The coworker then accessed the elevated portions of a 20-foot wall where he would fasten the sheetrock in place.

The coworker had a different idea for the afternoon work. He asked the plaintiff to climb a ladder and hand him a piece of sheetrock, all for the sake of convenience. The coworker told the plaintiff using a ladder would be faster, likely because the coworker did not want to keep reposition the scissor lift. Based on his years of experience, the plaintiff knew that using the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. Rather than insisting that his coworker follow the proper method,or addressing the issue with his supervisor, the plaintiff attempted to use an A-frame ladder to carry with one hand an approximately 90-pound piece of sheetrock up the ladder. The ladder tipped over and the plaintiff was injured in the resulting fall.

Does the sole proximate cause defense apply?

The Majority concluded a triable issues of fact existed on whether the defendants violated Labor Law sec. 240 (1) or whether the plaintiff was the sole proximate cause of the accident. The Majority focused on whether the plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Noting that the accident concerned “unique circumstances,” the Majority concluded that, in light of the coworker’s alleged conduct, “the evidence is not conclusive about whether plaintiff chose to use the ladder over an ‘available’ scissor lift for ‘no good reason.’” The Majority reasoned that the “intransigence” of the coworker who refused the plaintiff’s request to reposition the scissor lift was a proximate cause of the accident. Thus, the Majority concluded that “when [the] plaintiff’s conduct is viewed along with the coworker’s conduct, it cannot be said as a matter of law that [the] plaintiff was the sole proximate cause of the accident."

Justice Peradotto disagreed, stating that the Majority “strain[ed] Labor Law sec. 240 (1) beyond what the legislature intended to accomplish and improperly penalizes owners and contractors for complying with the law.” Justice Peradotto cited the plaintiff’s deposition testimony; he was emphatic in his testimony that using a ladder for the work was an inappropriate method for performing the task. Justice Peradotto concluded that the “plaintiff cannot, as a matter of law, evade an adverse finding of sole proximate cause on summary judgment by attributing his conduct to the coworker.” Justice Peradotto stated that the plaintiff’s “‘normal and logical response’” to his coworker’s unsafe request was to ask the coworker again to reposition the scissor lift and wait for him to do. Perhaps a more effective response would have been for the plaintiff to raise the issue with his supervisor; Justice Peradotto mentions this option, too.

Justice Peradotto rejected the Majority’s proximate cause analysis stating, “The majority's reference to the coworker's conduct as a proximate cause of the accident is thus incorrect not only on the facts but also on the law inasmuch as the majority's sole proximate cause analysis improperly substitutes the supposed negligence of the nonparty coworker for a statutory violation by defendants.”  

The case is notable for several reasons. First, decisions in which Justice Peradotto’s dissents have found their way to the Court of Appeals on several occasions. Second, the Majority decision adds a gloss to the sole proximate cause defense – i.e., can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct? The Majority answered in the affirmative, narrowing its holding by stating the matter concerned “unique circumstances”.

Because the Majority denied the defendants’ cross-motion in part and reinstated the Labor Law sec. 240 (1) claim, the order is non-final. Thus, at this point, the defendants’ only avenue to the Court of Appeals is to move at the Fourth Department to grant leave to appeal to the Court of Appeals. The Fourth Department, like the other three Departments, is careful to grant leave to appeal sparingly. For now, though, lawyers for injured workers can make a good-faith argument that the Thomas applies outside of the Fourth Department because the other three Departments have not ruled on this precise issue.

(40 years ago this week, the out-of-leftfield hit "Abracadabra" by The Steve Miller Band reached No. 1 on the Billboard Hot 100)

Photo by Theen Moy