Labor Law Pointers

Volume I, No. 5
Wednesday, March 7, 2012

A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends

 

From the Editor:

Here is the latest edition of Labor Law Pointers, hot off the presses.  I said that I would try and start every edition with a joke and here is one that was submitted by a twisted reader. 
How many attorneys does it take to screw in a light bulb?
Give up yet, the answer is three, one to climb up the ladder with the bulb, one to shake the ladder until it shifts causing the first attorney to fall and sustain injury, and a third one to file the lawsuit and claim that changing a light bulb is a substantial alteration to the structure and thus a protected activity under 240(1), Joblon be damned.
Ok, that was a bad joke, but it was well intended.  Someone send me a better one for next month.  Once again we welcome new subscribers and remind everyone that they should feel free to send this newsletter to anyone they think may enjoy it or at least get some use from it.
We have a Court of Appeals case again this month, Dahar, where the Court addresses the issue of a factory worker cleaning a fabricated product when a ladder shifts and he falls, sustaining injury.  The question for the court is that as the product, a very large wall module, meets the definition of a structure as set out by the court, and the task he was undertaking was cleaning, should the activity be covered by 240(1).  The answer is below.
We have several interesting cases this month including one case where a plaintiff was injured when he stepped into a hole when pushed by a fellow employee during a heated disagreement. 
As always if you want to print or forward I recommend the attached word version, easier to print and send. 
We always welcome questions about the labor law, it seems that every month I am challenged by a new question regarding a predicament a construction worker somehow got him or herself into and someone someplace wants to know if it is a violation.  I always welcome those issues and the challenge of figuring it out.  Just a reminder that we are always available for training on whatever level you are interested in, just give us a call and we can set it up.
Hope you enjoy the issue and remember, with spring comes construction season.  If your client has an accident on site do not wait until the law suit is filed, get an attorney knowledgeable in labor law involved right away, it could make a big difference in the end.

David

David R. Adams
Hurwitz & Fine, P.C.

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8998
Fax:  716.855.0874
Email:  [email protected]
H&F Website:  www.hurwitzfine.com

 

Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8900.
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Labor Law Section 240(1)

by:David R. Adams
(716) 849-8998
[email protected]
                                                                                               

02/21/12          Dahar v Holland Ladder

Court of Appeals
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01322.htm

Plaintiff was injured when he fell from a ladder while cleaning a steel wall module manufactured by his employer for defendant Bechtel.  Plaintiff claimed that he was entitled to the protection afforded by Labor Law §240(1) as he was involved in cleaning, an activity specifically enumerated in the statute.  Moreover the plaintiff claimed that the wall module was a structure, being at least seven feet high.  The court found that argument to be “too simple” and held that the activity was not protected.

The court found that to include as a protected activity and type of “cleaning” of any “structure” would expand the labor law beyond current case law and what the Legislature intended.

While the court agrees with the plaintiff that the term “cleaning” is not limited to cleaning as a part of a construction, demolition of repair project, they draw the line short of where a factory worker is cleaning a manufactured product.  As the cleaning undertaken by the plaintiff was a portion of the manufacturing process, a necessary step in the manufacturing process, the activity was not covered. 

The court states what we already know to be true, that Labor Law §240(1) is “one of the most frequent sources of litigation in New York courts” and that it “imposes liability even on contractors and owners who had nothing to do with the plaintiff’s accident”.  This is a difficult truth for many of our clients and an explanation we have all had make. 

As the court ruled that the activity was not covered they did not address the question many were waiting to hear the answer to, that being the extent that a party needed to be involved in the “structure” to be held as a defendant under the labor law.  Bechtel, the purchaser of the wall module, had not taken ownership of the purported “structure” at the time of the plaintiff’s injury.  They had contracted for its fabrication and had an inspector and an expeditor on site at least weekly to check on progress and to conduct quality inspections.  Plaintiff claimed that this was sufficient to qualify them as an “owner or contractor” based on their involvement.  The court failed to reach that issue as they found that the activity was not covered.  All things considered it is a good thing they never got that far for to do so would have meant that the labor law was expanded to cover cleaning as a portion of the manufacturing process.  As the court stated, to expand the statute in that way would have “expanded the protections of Labor Law §240(1) even beyond manufacturing activities; the statute would encompass virtually every “cleaning” of any “structure” in the broadest sense of that term.  Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture — these and many others would become potential Labor Law § 240 (1) plaintiffs. We decline to extend the statute so far beyond the purposes it was designed to serve.

Practice Point -  Though this may seem obvious, check the activity the plaintiff was engaged in at the time of the accident causing injury to make certain that it is a covered activity.  Where the activity is a part of an overall operation, such as manufacturing or fabricating, the argument should be made that the activity is not covered.

 

02/28/12          Kittelstad v. Losco Group, Inc.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01503.htm
The issue addressed by the court in this decision was whether defendants were statutory agents of the property owner under 240(1).  Jacobs Facilities, Inc. (“Jacobs”), one of the defendants, argue that it did not qualify as a statutory agent because its agreement with the property owner did not contain an explicit agency provision.  In finding a question of fact on this issue, and reversing the trial court’s grant of summary judgment, the court held that while there was no agency provision, Jacob’s contractual obligations with respect to oversight of the work were comprehensive.  It was required to monitor the individual performance of each trade contractor, coordinate work between the trades, and resolve disputes.  Further, Jacob’s superintendent conceded that he had the authority to address unsafe conditions, to stop work if there was an imminent dangerous situation and otherwise report such a condition to the trade foreman. 
Another defendant, Clean Air Quality Services Inc. (“Clean Air’), likewise asserted that it was not an agent of the property owner.  However, in again finding a question of fact, the court noted that under its contract with plaintiff’s employer it retained the authority to stop work if it was engaging in unsafe practices, to make changes, additions or omissions in the employer’s work, and to demand that the employer defective work.  This evidence was sufficient to demonstrate that it had authority over plaintiff’s employer. 
Practice Point Remember that this case addresses the burden for a Summary Judgment motion, where the burden is on the moving party to submit sufficient evidence to prove that they are not a statutory agent of the owner, but at trial the burden shifts to the plaintiff to prove that they are the statutory agent to prove liability.

03/01/12          Coaxum v. Metcon Construction, Inc.
Appellate Division, First Department

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01547.htm

Plaintiff was injured in the course of a dispute with another worker.  The other worker pushed plaintiff, who stepped back into an open hole and fell.  In affirming the denial of defendant’s motion for summary judgment on 240(1), the court held that questions of fact existed concerning the hole plaintiff allegedly fell into.  Specifically, there was conflicting evidence concerning its size and whether its depth was sufficient to render it a gravity-related hazard within the meaning of Labor Law 240(1).
Practice Point This case was too much fun not to have in this month.  The court (citing Williams v 520 Madison http://www.courts.state.ny.us/reporter/3dseries/2007/2007_02652.htm) does not find the actions of a co-employee pushing the plaintiff during a disagreement to that plaintiff steps back into a hole to be of an extraordinary nature allowing it to be considered a superseding cause of the accident.  

02/23/12          Santiago v. Rusciano & Son, Inc.
Appellate Division, First Department

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01360.htm

Plaintiff was injured while boarding up windows to make the subject premises uninhabitable and to protect it from vandalism in anticipation of demolition.  While performing this task, the ladder he was standing on allegedly slipped out from under him.  The issue was whether plaintiff was “altering” the premises within the meaning of that term in Labor Law 240(1).  The court concluded that he was engaged in activities designed to prepare and secure the premises’ windows for demolition, thereby making a significant physical change to the configuration or composition of the building. 
Practice PointThe issue of “alteration” is a hot topic in the courts right now as they struggle with Joblon and the definition of what constitutes "making a significant physical change to the configuration or composition of the building".  The current status would lead us to think that it is the installation or addition of something on the building which makes the physical change significant.  Watch for Zolfaghari coming soon from the fourth.

02/23/12          Naughton v. City of New York
Appellate Division, First Department

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01378.htm
In this decision, the court reiterated that Labor Law 240(1) applies to more than just liability for failing to provide a ladder to prevent falls.  In addition to falling worker cases, it applies where a plaintiff is struck by a falling object that was improperly hoisted or inadequately secured. 
Here, plaintiff was injured while standing on top of a bundle located on a flatbed truck.  The record established that the bundle was being lifted by a crane.  After it began its ascent, one of the tag lines “got slack,” this caused the load to swing towards plaintiff.  In the courts opinion, plaintiff showed that the hoist provided was inadequate to shield him from harm and, in response; the defendants provided nothing in opposition.  Additionally the plaintiff was not provided with a ladder, which he had requested, to get down from the bundle atop the flatbed truck from which he fell.    Thus, summary judgment should have been granted on the 240(1) claim both for the lack of a ladder and for the fall from a height.
Practice PointThis case is not, as it may seem, a departure from the rule that the bed of a flatbed trailer is not an elevated work surface for the purposes of 240(1).  In this case the court found, as it consistently has, that the plaintiff was not simply atop the flatbed truck, but rather was on top of the load, some 15 feet off the ground, and thus subject to the type of gravity related hazard the labor law was enacted to protect workers from.  Do not forget however that a fall from the bed of the truck would not qualify as a 240(1) event.

02/16/12          Coleman v. Crumb Rubber
Appellate Division, Third Department

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01174.htm

Plaintiff was a welder working on a building renovation and was injured when he stepped into a hole in the floor near a belt guard where the floor had not been completed.  Plaintiff was aware of the opening in the floor and had previously covered the opening with a pallet.  The trial court dismissed plaintiff’s 240(1) case and the third department upheld that decision.  It was the size of the opening or hole that was the basis of the court’s decision. As the opening was not of such a size as to allow the plaintiff to actually fall but only for his leg to enter the opening and as such none of the safety devices enumerated in 240(1) would have prevented the accident.  Plaintiff did not actually fall but had his leg go into the opening up to the groin.  The fact that plaintiff was working at that one level at the time of his injury and thus not exposed to the special elevation hazards envisioned by Labor Law §240(1) appears to have been the crux of the court’s decision.

Practice Point- Always review the manner in which the accident occurred to make sure it was gravity related, a definition subject to change as we have seen over the past few months.  Also make a demand during discovery of the plaintiff as to the safety device it is claimed was not utilized to prevent the accident to determine if the injury was caused by the lack of an enumerated safety device. 

 

 

Labor Law Section 241(6)

by:    Jennifer A. Ehman
(716) 849-8964
[email protected]

03/01/12          Coaxum v. Metcon Construction, Inc.

Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01547.htm

Plaintiff was injured in the course of a dispute with another worker.  The other worker pushed plaintiff, who stepped back into an open hole and fell.  Initially, the court determined that the coworker’s act in pushing plaintiff was not an independent intervening act that was a superseding cause of the accident, thereby, relieving defendants from liability. 

The court then determined that there was a question of fact as to whether the hole, specifically the depth, was a falling hazard as defined by 12 NYCRR 23-1.7(b)(1). 

02/23/12          Lavigne v. Glens Falls Cement Co., Inc.

Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01403.htm

Plaintiff was employed to perform electrical work at a cement plant.  After a faulty high voltage cable led to a power failure at the plant, plaintiff assisted in pulling the cable out of the conduit.  While assisting with this work, the cable snapped striking plaintiff.

Initially, the court considered whether Plaintiff was engaged in construction or demolition work at the time he was injured.  In finding that he was not, the court held that plaintiff’s work did not affect the structural integrity of the building or structure or an integral part of the construction of a building or structure.  Further, the work was unrelated to any broader renovation or construction project.  Instead, it was limited to removing and replacing damaged cable.  Thus, it dismissed the Labor Law 241(6) claim. 

02/23/12          Naughton v. City of New York

Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01378.htm

Plaintiff was injured while standing on top of a bundle located on a flatbed truck.  While a crane was removing the bundle from the truck, it struck plaintiff causing him to fall to the ground.  With regard to 241(6), the Appellate Division reversed a finding of the trial court dismissing this claim which was premised on a violation of 12 NYCRR 23-6.1(h).  Initially, the court disagreed with other courts who found this provision not sufficiently specific to establish a 241(6) violation.  The court then held that a jury should determine whether this was a load which had a tendency to swing or turn freely during hoisting that should have been controlled by a tag line. 

02/21/12          White v. Village of Port Chester

Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01456.htm

This decision considers whether a brick is “debris.”  Plaintiff was at defendants’ jobsite delivering steel.  When he got to the site, he parked his truck alongside a sidewalk where freshly poured concrete was covered with a plastic sheet.  As Plaintiff stepped on the edge of the plastic sheet, he tripped and fell.  After he fell, he pulled the sheet back and observed a brick.  He also spotted another one four feet away. 

For plaintiff’s labor law 241(6) claim, he asserted that defendants violated 12 NYCRR 23-1.7(e)(2), which provides, in relevant part, “[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris…insofar as may be consistent with the work being performed.”  The court found a question of fact on the issue of whether the brick constituted debris.  It noted that the speculative testimony regarding the brick’s purpose was insufficient to establish, as a matter of law, that it was not debris.  Moreover, the court noted that there was some conflicting testimony from defense witnesses that bricks were not appropriate to hold the sheet in place; rather, two-by-fours should have been used. 

02/16/12          Coleman v. Crumb Rubber Mfrs.

Appellate Division, Third Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01174.htm

In a case that can be compared with Coaxum, the court considered the applicability of 12 NYCRR 23-1.7(b)(1).  Initially, it explained that this provision does not apply to every gap or opening.  Case law has established that an opening must be of “significant depth and size” to fall within the regulation’s protections.  While no specific minimum size has been established, some courts have considered whether the hole was large enough for a person to fall.  Here, the court rejected this test and asserted that it is not necessary that an injured worker actually fall all the way through such an opening to sustain a claim since an opening 14 to 16 inches wide had been found to be sufficiently large. 

Here, the court found a question of fact as to the applicability of this provision.  Specifically, it referenced the fact that defendants failed to supply the depth of this particular hole.  The manager’s opinion as to the potential for a person’s body to fall through the hole along with the photographs was not sufficient to establish that the hole was not hazardous. 

02/14/12          Hossain v. Kurzynowski

Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01212.htm

The most interesting aspect of this decision is its discussion of the homeowners’ exemption.  Plaintiff was injured when an unsecured ladder slipped from beneath him while he was performing work.  At the time of the accident, he was repairing windows on a residential property.  While the property was a three-family dwelling, defendants argued that the homeowner’s exemption for owners of one or two-family dwellings still applied.   Specifically, defendants argued that they resided in one of the apartments while another family member resided in another apartment; thus, there were only two families residing in the building.  The court rejected this argument asserting that defendants failed to demonstrate that the building was actually a two-family residence.  While two of the apartment residents may have been related, there apartments did not constitute one living space.  They each had their own entrances and separate living area.  Thus, defendants were not entitled to the exemption. 

The court then found a question of fact as to the applicability of 12 NYCRR 23-1.21(b)(3)(iv).  It noted that plaintiff testified that the rubber feet on the ladder he had been provided to perform his work had been worn away, which was sufficient to defeat defendants’ motion. 

02/10/12          Hecker v. State of New York          

Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01050.htm

This is a split three-two decision out of the Fourth Department.  This is a case we will continue to monitor as it has an automatic path to the Court of Appeals.  Plaintiff was assigned the task of replacing defective components in a bridge’s lift mechanism 30 feet below the ground.  At the time the accident, plaintiff was shoveling snow from the diamond plate decking at the corner of the bridge to access the pit door (which he would then climb through to reach the mechanism) when he slipped and fell.  The issue of this appeal was the applicability of 12 NYCRR 23-1.7(d), which provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.  Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.”

The initial issue was whether the trial court was correct in dismissing plaintiff’s 241(6) claim because removing the snow was an integral part of his work and thus could not be the basis of a 241(6) violation.  The Fourth Department disagreed.  It held that even if snow removal fell within the scope of plaintiff’s responsibilities, such would only be relevant in determining comparative fault, and would not require summary judgment in defendant’s favor.

The next issue was the actual applicability of the relevant provision.  The court found that it did not apply because although plaintiff had to shovel the sidewalk to reach the corner of the bridge where he would access the subterranean work site, plaintiff was not using the area in which he fell as a floor, passageway or walkway at the time he fell. 

The dissent disagreed.  It reasoned that, at the time of the accident, plaintiff was clearing snow off the pit door and the sidewalk.  Insomuch as the pit door was located on the sidewalk and was the only way to access the underground work site, it was being used as a passageway or walkway within the meaning of the provision at the time of the accident.    

 

 

Labor Law Section 200 and Common Law Negligence

by:    V. Christopher Potenza
(716) 849-8933
[email protected]

            The end of February typically means the end of winter.  The temperatures will rise and the snow will melt, revealing not only the green grass of our lawns, but also those green St. Patrick’s Day signs behind those frosty tavern windows.  But this year Old Man Winter never came, Lake Erie never froze, and the Ice Man did not cometh.  A strange, but delightful, departure indeed.   A further departure from the norm is a Labor Law 200 case actually worth discussing!  While this month’s decisions contain the typical offering of section 200 cases addressing whether the owner or GC either created or had notice of a dangerous condition or had the requisite supervision and control over the work being performed to correct or avoid the unsafe condition, there is one case in which the defendant had the audacity to challenge whether it had a duty to the injured worker when the worker was readily aware of the alleged condition.  Not surprisingly, the argument failed, but at least it makes for an interesting read. 

            As a brief recap, Labor Law § 200 codifies the obligation of owners and contractors to provide workers with a safe place to work.  There is a two-prong analysis to establish a claim for negligence/Labor Law § 200 as a plaintiff must:  (1) establish that those charged with liability either created the condition or had actual or constructive notice of the unsafe condition; or (2) establish that a defendant had supervision and control over the work being performed to correct or avoid the unsafe condition. 

2/16/2012        Coleman v. Crumb Rubber Mfrs.

Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01174.htm

For once, a case with a unique issue as the court addresses whether an open and obvious hazard negates a landowner’s duty under Labor Law § 200. 

Plaintiff, a welder, was allegedly was injured when he stepped off a ladder into an unprotected opening on an unfinished floor.  Plaintiff was aware of the opening as earlier in the day he had covered the opening with a pallet (which had since been removed).  The defendant owner argued that its general duty to provide plaintiff with a reasonably safe workplace did not extend to the hole in the floor because it was “readily observable” and plaintiff acknowledged that he was aware of its presence. 

The court held that even though an allegedly dangerous condition in the workplace is readily observable and well known to the worker prior to the accident, these circumstances merely negate any duty that owner owed to warn of potentially dangerous conditions; they do not, without more, obviate the duty to provide a reasonably safe workplace.  Thus, plaintiff's awareness of the hole in the floor raises triable issues of fact as to his comparative negligence, but does not relieve defendant of its duty to maintain the premises in a reasonably safe condition as a matter of law.  

2/09/2012      Harrington v. Fernet 
    
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00890.htm

The Second Department affirms the trial court ruling in which summary judgment for the defendant general contractor was denied.  While attaching sheathing to the walls of a home, the plaintiff discharged a nail from a framing gun into his right leg.   The allegation of a “hazardous condition” was the purported absence of backfill around the foundation at the home where the accident occurred.  While the GC submitted evidentiary proof that the area was properly filled, the plaintiff’s testimony that the area was not backfilled, but rather was a slippery 60 degree slope, was sufficient to create an issue of fact and deny summary judgment.

2/14/2012        Burton v. CW Equities, LLC

Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01116.htm

Plaintiff fell from a concrete walkway over a fifteen-foot-deep vaulted area below grade level that had no guards or rails.  The court denied summary judgment to defendant on Labor Law § 200 because whether CW Equities had the requisite notice of the dangerous condition is an issue of fact raised by its principal's testimony that he visited the site approximately every other day and the dangerous condition would have been apparent upon a visual inspection. 

2/21/2012        White v Village of Port Chester

Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01456.htm

Plaintiff allegedly was injured while delivering steel to a work site when he fell on bricks wrapped in plastic covering freshly poured concrete.  Summary judgment on Labor Law § 200 was denied to the property owners as the court found that the owners failed to offer sufficient proof as to the last time they inspected the sidewalk or that the brick folded up inside the plastic sheet could not have been discovered upon a reasonable inspection. Similarly, summary judgment was denied to the contractor as it failed to establish, prima facie, that it lacked control over the sidewalk and, further, failed to establish, prima facie, that it neither created nor had actual or constructive notice of the alleged dangerous condition.

 

That’s it for Labor Law § 200 decisions this month.  Feel free to commiserate with me and other NY Labor Law colleagues at the Claims and Litigation Management Alliance (CLM) Annual Conference in San Diego March 28-30.

 

 

Indemnity Issues in Labor Law

by:    Steven E. Peiper
(716) 849-8995
[email protected]

02/23/12          Naughton v. City of New York

Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_01378.htm

Lots of good stuff in this lengthy decision from the First Department.  The facts of the surrounding incident are relatively straightforward, and set forth above.  Accordingly, we’ll get right into the indemnity issues.   

Petrocelli’s Common Law Indemnity Claim Against W&W

The Appellate Division affirmed the Trial Court’s dismissal of Petrocelli’s (GC) motion for common law indemnity against W&W Glass. While Petrocelli established that it, itself, was not negligent, its motion failed where it could not establish negligence on the part of W&W Glass. 

On the contrary, the Record established that W&W Glass was not negligent, and likewise did not direct, supervise or control plaintiff’s work.  Accordingly, there was no basis for a common law indemnity claim. 

Petrocelli’s Contractual Indemnity Claim Against W&W

Here, the Appellate Division reversed the Trial Court’s dismissal of Petrocelli’s contractual claim.  Essentially, W&W’s contract provided that it would indemnify Petrocelli for any loss occasioned out of work performed by W&W or a W&W subcontractor.  Where, as here, there was a question of the subcontractor’s negligence (Metal Sales), Petrocelli may have possessed a valid indemnity claim.

On the other hand, however, Petrocelli failed to establish, as a matter of law, that plaintiff’s employer (Metal Sales) was negligent.  Instead of actually proving negligence in its papers, Petrocelli argued that under res ipsa loquitur the Court had to find Metal Sales negligent.  The Court noted that, on the Record before it, Metal Sales’ negligence was not “inescapable” and accordingly Petrocelli failed to meet its burden.

Petrocelli’s Judicial Estoppel Claim

Petrocelli argued that W&W Glass was judicially estopped from denying Metal Sales’ negligence.  Petrocelli pointed to the fact that W&W Glass had submitted papers which stated, in effect, plaintiff was the sole proximate cause of his injuries.  As plaintiff’s negligence would become the negligence of Metal Sales (his employer), Petrocelli argued that W&W Glass had conceded Metal Sales’ negligence.  The Appellate Division quickly disposed of this claim by noting that judicial estoppel only applies to statements of fact.  Petrocelli’s arguments were based in law, and as such were not subject to the judicial estoppel rules.

Petrocelli’s Claim for Contractual Indemnification from Metal Sales

The Appellate Division affirmed the Trial Court’s denial of Petrocelli’s motion against Metal Sales on the basis that Petrocelli was not in privity of contract with Metal Sales.  Where there was (a) no privity, (b) no third-party beneficiary status, and (c) the terms of the Petrocelli/W&W Glass Contract were not explicitly incorporated into Metal Sales contract, the Appellate Division refused to create an indemnity obligation out of thin air. 

 

 

 

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Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York

Labor Law Pointers
Editor
David R. Adams

Associate Editor

V. Christopher Potenza

Associate Editor
Steven E. Peiper

Associate Editor

Jennifer A. Ehman
Labor Law Team
David R. Adams, Team Leader
[email protected]
Dan D. Kohane
[email protected]
Michael F. Perley
[email protected]
V. Christopher Potenza
[email protected]
Steven E. Peiper
[email protected]
Cassandra A. Kazukenus
[email protected]
Jennifer A. Ehman
[email protected]

Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8900
Fax:   716.855.0874
www.hurwitzfine.com

 

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