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.

New York Court of Appeals Will Address Appellate Division Department Split on Negligent Security Measures - Pt. 3

Negligent security premises liability appeals are pending at the New York Court of Appeals. As discussed in my two prior posts here and here, the Appellate Division, Second Department case – Scurry v New York City Hous. Auth. – challenged one line of caselaw in the First Department on targeted attacks of tenants on a landlord’s property.

Notably, the Second Department called out the First Department on their intervening act proximate cause analysis – i.e., the perpetrator’s targeted attack on a tenant is extraordinary and unforeseeable, breaking the causal connection between the landlord’s breach of the duty to take minimal security precautions to protect its tenants and the tenant’s injuries.

The First Department clapped back at the Second Department in Estate of Murphy, v New York City Hous. Auth., rejecting the Scurry Court’s implication that the First Department’s jurisprudence holds that the fact that a victim was targeted obviates the need for any inquiry into the security measures in place at the subject premises. The First Department stated, in response to the Scurry Court,

“Indeed, we are aware of no case in the First Department that suggests that a landowner would avoid liability even if minimal precautions would have actually prevented a determined assailant from gaining access. In reality, however, that is hardly ever the case.”

In Estate of Murphy, the plaintiff’s daughter was the victim of a dispute between two gangs. Without getting too deep into the facts, I will note that the daughter and her friends were fleeing members of an opposing gang. The daughter and her friends entered the side door of the apartment building where she lived and ran to the fourth floor. The side door was not intended for entry into the building. There was evidence that the door's lock was frequently broken and tenants used it to enter the building. The perpetrators entered the same unlocked side door and, after a brief confrontation on the fourth floor, the perpetrators shot and killed the daughter.

The plaintiff commenced a civil lawsuit against the perpetrators and the owner of the apartment building. She alleged that the defendant New York City Housing Authority was negligent in failing to have properly functioning locks at the premises, failing to properly monitor surveillance equipment, and failing to provide adequate security. NYCHA moved for summary judgment, relying on the evidence submitted by the People of the State of New York at the criminal trial of one of the perpetrators. The People elicited the testimony of several of the people who had been involved in the fighting. The People argued to the jury that the perpetrators killed the daughter/victim in an act of vengeance.

The First Department affirmed the trial court’s grant of summary judgment to NYCHA based on the evidence showing that the perpetrators were intent on gaining access to the building. The Court relied on evidence demonstrating that the perpetrators focus on gaining entry to the building, no matter what the consequences were – e.g., text messages indicating the perpetrators were bent on revenge and the fact that they entered the building in plain site of several people and surveillance cameras, without attempting to shield their faces.

Notably, the First Department relied on an inference as part of its reasoning on the intervening cause analysis. The Court stated, “[C]onsidering that at least one other person, by all appearances oblivious to the brouhaha between the two groups, entered the building at the same time, it does not take a leap of the imagination to surmise that [the perpetrators] would have gained access to the building by following another person in or forcing such a person to let them in.” Based on the foregoing reasoning, the Court concluded that all the factors negated the unlocked side door as a proximate cause of the harm to the plaintiff’s daughter. Further, the Court concluded that the perpetrators “murderous intent” was the only proximate cause of the daughter’s death.

All of these tort concepts are well settled. Thus, the Court of Appeals’ decision on the Scurry and Estate of Murphy appeals might not pronounce a new rule on this line of a negligent security analysis. New York Civil Law will report on the appeals when the Court hands down its decision in Scurry.

Photo Credit: PointsofNoReturn

New York Appellate Division, Third Judicial Department Addresses Level of Specificity Necessary for a Disclaimer of Coverage for Bodily Injury Arising Out of an Accident - Pt. 1

The Appellate Division, Third Department recently addressed in Bahnuk v Countryway Ins. Co. the level of specificity necessary when an insurer seeks to disclaim coverage for bodily injury arising out of an accident. The Court held that the insurer must provide written notice of the disclaimer to both its insured and the injured party, and the notice must indicate with "a high degree of specificity...the ground or grounds on which the disclaimer is predicated."

The Bahnuk case concerns a personal-injury case where an emergency medical technician filed a lawsuit against the property owner after sustaining injuries at the property. The technician also sent a copy of the complaint to the insurance company (the defendant) that provided homeowner's insurance for the property.

The insurance company disclaimed coverage. By way of a detailed, six-page letter to the property owner, the defendant insurer advised that it was disclaiming coverage and refered to the policy exclusions upon which it was relying. That is, the defendant insurer explained that the property did not meet the definitions of "residence premises" or "insured location" as set forth in the policy, and further stated that the circumstances also fell within the exclusion pertaining to incidents arising out of a business on the premises. In that letter, the defendant insurer provided additional information as to why these exclusions applied under the circumstances.

The defendant insurer wrote separately with the injured plaintiff, stating in one sentence that there was no coverage available for his claim because the property did not constitute an "insured location" as defined by the policy. After the the plaintiff's attorney disputed the defendant insurer's position, the defendant insurer followed up with a second letter indicating only that coverage was excluded "based upon the circumstances of the loss and the policy language." The Third Department noted that the term "insured location" "carries eight distinct definitions" under the applicable policy.

In the absence of a defense provided by the defendant insurer, the property owner defended the property owner's lawsuit with her own attorney (rather than one provided by the insurer). During the course of the litigation between the plaintiff (injured party) and the property owner, the parties agreed that the property owner would sign a confession of judgment for $100,000 — the limit of the property owner's policy with the defendant insurer — in exchange for the plaintiff's agreement not to execute the judgment against the property owner but, instead, to pursue a claim against the defendant insurer under Insurance Law § 3420 (a) (2).

The plaintiff commenced the action against the defendant insurer, seeking satisfaction of the $100,000 judgment. Following discovery, the parties each moved for summary judgment, and Supreme Court denied both motions. In so doing, the court held that the plaintiff had demonstrated, as a matter of law, that the defendant insurer failed to provide him with adequate notice of the bases for the disclaimer of coverage, such that the defendant was precluded from relying on those policy exclusions.

The Appellate Division concluded that Supreme Court properly determned that the defendant insurer's notice of disclaimer to the plaintiff was insufficient. Quoting Ability Transmission, Inc. v. John's Transmission, Inc., the Appellate Division stated that when an insurer seeks to disclaim coverage for bodily injury arising out of an accident, it must provide written notice of the disclaimer to both its insured and the injured party, and the notice must indicate with " 'a high degree of specificity . . . the ground or grounds on which the disclaimer is predicated.' " The Ability Court quoted the well-settled Court of Appeals opinion General Acc. Ins. Grp. v. Cirucci, which is a cornerstone case regarding disclaimer letters for bodily injury arising out of an accident. Quoting Cirucci, the Appellate Division in Bahnuk Court wrote, "Absent such specific notice, a claimant might have difficulty assessing whether the insurer will be able to disclaim successfully[, and this] uncertainty could prejudice the claimant's ability to ultimately obtain recovery." 

As far as disclaimer letters go, the Bahnuk opinion does not offer any surprises. The holding is one more reminder to injured parties, insureds, and insurers to consider whether the language of the disclaimer letter has a level of specificity that exposes the insurer to a challenged disclaimer. If not, the insurer loses those disclaimer grounds in an insurance coverage lawsuit.

In a second part to this post, I will discuss the procedural/strategic thinking the plaintiff and the property owner took to protect themselves. 

Image credit to Nick Youngson.

Breaking News - Justice Whelan of New York Supreme Court, Suffolk County Grants New York Senator Palumbo's Motion for a Declaration Concerning New York Court of Appeals Nominees

New York Supreme Court Justice Thomas F. Whelan handed down his decision today granting Plaintiff New York Senator  Anthony  H. Palumbo's motion for a declaration concerning requiring a full floor vote by the Senate on a judicial appointment to the New York Court of Appeals (Decision and Order Download). The Court ordered and declared that pursuant to Article VI sec. 2 (e) of the New York State Constitution, the plaintiff Hon. Anthony H. Palumbo is entitled to a full floor vote before the Senate on a gubernatorial nominee for the Court of Appeals. The Court denied the defendants' motion to dismiss the complaint and rejected their mootness argument, discussing that the same issue will arise with the upcoming nomination process for the Chief Judge vacancy.

Notably, the Court declared unconstitutional the Senate procedure of having the Senate Standing Committee on the Judiciary first vote whether to advance the appointee before the full Senate floor.

A more detailed analysis will follow.

Update on New York State Senate's Vote on Justice Hector LaSalle's Nomination to the New York Court of Appeals

Last week was a busy one for the New York State Senate and New York Court of Appeals (see here and here). New York Senator Rob Rolison wrote this letter about the Senate vote on Governor Kathy Hochul's nomination of Justice Hector LaSalle for the chief judge position of the Court. The Times Union published this article about the history of the nomination process. Commentators expect Supreme Court, Suffolk County Justice  Whelan to hand down a decision today on Senator Anthony Palumbo's declaratory judgment action against the Senator. New York Civil Law will provide an update if and when Justice Whelan hands down a decision later today.

Update (12:46 p.m.) - Here is the Commission on Judicial Nomination's recent posting for the Chief Judge Vacancy. Applications are due no later than March 7, 2023.

Clerk of New York Court of Appeals Contacts Counsel for the Commission of Judicial Nomination Regarding Vacancy of New York Chief Judge Position

Today, New York Court of Appeals Clerk Lisa Le Cours wrote ) the Counsel for the Commission on Judicial Nomination indicating that (1) the Governor's office notified the Court that the New York Senate rejected Governor Kathy Hochul's nomination, and (2) the office of Chief Judge remains vacant. Notably, the Commission recommended six other potential nominees for the chief judge position. (see letter below

Question: Because the Commission deemed six potential nominees in addition to Justice LaSalle qualified for the position, does the Commission now recommend one new potential nominee and include the six other potential nominees from the first go around of the selection process? If the Commission recommends an entirely new slate of potential nominees, how does that square with its original recommendation of the other six potential nominees? h/t to Nick Reisman

 

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.