News & Blog

The First Department recently reviewed a caulker’s claim to relief pursuant to Labor Law 240(1), and in so doing reversed the lower court’s summary judgment in favor of the owner.

Late last fall, the Second Department properly reversed a lower court’s decision, and dismissed a teenage wrestler’s personal injury claims.

In a recent decision, dated February 13, 2014, the New York Court of Appeals affirmed the dismissal of a third-party complaint filed by a property owner against its contractor for common-law contribution and indemnification in connection with Labor Law claims brought by illegally employed workers hired by the contractor.  This case New York Hospital Medical Center of Queens v. Microtech Contracting Corp., --N.E.3d--, 22 N.Y.3d 501 (2014)  resolved a somewhat novel debate on whether Workers’ Compensation Law § 11 (“Section 11”) shielded a contractor from third-party claims when the contractor’s employees were not legally employed in the United States.

In the evolving law regarding production during discovery of a party’s social media submission, the Second Department recently weighed in on the issue. In a Westchester County medical malpractice action, the defendant had been rebutted in their efforts to obtain a videotape compilation of plaintiff that his brother had placed on YouTube.  This video purportedly depicted aspects of plaintiff’s pre-hospitalization lifestyle.

Plaintiffs sought damages for injuries plaintiff sustained while suing a triple chairlift at defendants’ facility.  Defendants moved for summary judgment dismissing the complaint, contending that plaintiff assumed the risk of injury when she “willingly engaged in the recreational activity of downhill skiing.”  The Fourth Dept. ruled that the Supreme Court erred in granting the motion with respect to the claim for negligent operation of the chirlift.

Several recent decisions addressed the issue of whether cleaning falls within the Ambit of Labor Law §240(1). 

The first decision is the Court of Appeals’ affirmation of the decision granting summary judgment to the defendant store.  Soto v. J. Crew Inc., 21 N.Y. 3d 562 (2014).  An employee of a commercial cleaning company, plaintiff fell from a four (4) foot ladder while dusting a six (6) high shelf.  The ladder was by all accounts in proper working order.  The court analyzed recent “cleaning” decisions, and reiterated its concern that the statute should not be barred to “encompass virtually every kind of cleaning task”.  While commercial window cleaning is an activity covered by the statute, the court rejected “plaintiff’s argument that the legislature intended to cover all cleaning that occurs in a commercial setting, no matter how mundane.”

One of the more confusing provisions of the CPLR is Rule 3102 (c) which provides that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Practitioners routinely express uncertainty as to what disclosure qualifies as “aid in bringing an action”.

Appellant Payless had a store lease with its landlord.  The lease specified that the demised premises were for ground floor space but that the sidewalk fell under the landlord’s “exclusive control and management.”  “This case is controlled by Rothstein v. 400 E. 54^th St. Co. 51 A.D.3d 431 (1^st Dep’t 2008), in which we held that the lessee of a condominium’s commercial unit had no duty to maintain stairs that were part of the common elements but not part of its leased premises.  Accordingly, Payless was not under any contractual, statutory or common-law duty to maintain VNO’s sidewalk.”

Mediations, arbitrations and other forms of alternative dispute resolution are becoming more widely used in various types of disputes.  The back log of cases in most Courts, particularly in major metropolitan areas, have resulted in longer waiting times for jury trials.  As anyone involved in litigation knows, a single case could take years to reach trial.

In Derouen v. Savor Park Owners, LLC (1^st Dept. 2013) (2013 NY Slip Op 05779) the Appellate Division First Department affirmed the denial of summary judgment as to the building owner, finding that there were issues of fact regarding how the accident occurred, and modified the lower court’s decision by denying Guardsman’s attempt to have Savoy’s claim for Common Law indemnification dismissed.