From the Editor:
Well we have reached a milestone this month.  I am not talking about the re-election of President Obama but rather that we have entered our second year of providing all of you faithful readers with our monthly newsletter, Labor Law Pointers.  I received a call from a new reader who told me that he shared my labor law “fetish”.  Never thought of it in quite that light but the compulsion to read every new labor law case as soon as it comes out just may qualify as a “fetish”.
We have some really good cases for you this month.  Some which live up to my new favorite saying “Ladders and Scaffolds and Falls, Oh My”; makes me want to sing along.

There is a case by the fourth which address the situation where the law changes after decision is rendered on a Summary Judgment motion.  This emphasizes the need to keep current on case law to know when that option may be available to you.
We have a case outlining the necessary elements to establish that a lessee is an owner under the statute and a new case on what constitutes an alteration.
Made some new friends in Syracuse this week, welcome to the Labor Law Pointers family.  As always we are available to offer a seminar, as in depth as you may want, to help train your team to handle these cases in every aspect from recognition of a labor law case to shifting the risk via contractual and/or common law indemnification and additional insured claims.  We are available at your convenience.  We continue to gladly answer any questions thrown our way, and can often provide an answer quickly and without even opening a file.  Have something complex, that is what we love the most.  The mental exercise and challenge of working out a defense or shifting the risk is what we call fun.  Ok, maybe it is a “fetish”.
That is it for this month, enjoy and feel free to call or email at any time and please pass our newsletter on to anyone you think may either enjoy it or find it useful.  Thanks for subscribing.
David

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

424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone:  716.849.8916
Fax:  716.855.0874
Cell:  716-553-6901
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.

Labor Law Section 240(1)
                                                                                    by:    David R. Adams
                                                                                             (716) 849-8916
                                                                                             [email protected]

10/2/12            Mendoza v Velastate Corp.
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06545.htm
           
Plaintiff was injured while engaged in his duties as an employee of third-party defendant Thrift Land, which operates a warehouse on property leased from defendant/third-party plaintiff Velastate Corp.  Plaintiff moved for summary judgment as to liability on his claim under Labor Law § 240(1).  Velastate Corp. moved for summary judgment dismissing the complaint on the ground that it was an alter ego of Plaintiff’s employer, Thrift Land, and as such, is immune from being sued by Plaintiff under Workers’ Compensation Law § 11.  Supreme Court denied Plaintiff’s motion, and granted Velastate Corp.’s cross-motion.  Plaintiff appealed.
            The Appellate Division held the cross-motion should have been denied because in this action, Velastate Corp. is asserting a third-party claim for indemnity and contribution as to Thrift Land.  According to the Court, the pendency of a claim asserted in litigation by one corporation against the other suggests, on its face, that the entities have at least some adverse interests and, in the absence of any explanation, it is impossible to conclude as a matter of law that Velastate Corp. and Thrift Land, however they may be related, “function as one company” and “share a common purpose” to such an extent that they should be considered alter egos.     
            With respect to Plaintiff’s summary judgment motion, the Court held the record raises issues of fact regarding whether Plaintiff was the sole proximate cause of his injuries because the affidavits and depositions in the record provide conflicting accounts of whether Plaintiff freely chose the equipment he was using for his work when he was injured, using equipment with his manager’s knowledge and tacit approval, or was directed to use the equipment by his manager.  Consequently, the Appellate Division affirmed the denial of Plaintiff’s motion.

PRACTICE POINT:  First, if you are claiming that you are entitled to the protections afforded to an employer under §11 of the comp law do not file a Third Party action against them.  You can file that suit later, after the motion has been heard, but doing so prior to the motion certainly gives the plaintiff’s attorney ammunition to argue that the two entities have adverse interests and thus, the defendant, Third Party plaintiff, is not entitled to §11 protection of the exclusive relief of comp.
Second, make sure that you obtain every possible version of how the accident happened.  Here the defendant obtained versions of the happening of the accident which were inconsistent and at least one of those versions of the accident took it out of §240(1).   Here the question was did the plaintiff chose the equipment he was using freely, was it with the knowledge and approval of was he directed to use that equipment.  The defense of an action is seldom hampered by too much information, but occasionally a valid defense can be missed simply by not obtaining all available information.

 

10/3/12            Mendez v Jackson Development Group, Ltd., et al.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06586.htm
           
Plaintiff allegedly was injured while he and a co-worker were installing plate glass window panes in a building under construction.  According to Plaintiff, while he was standing on a ladder, and while co-worker was standing on the ground, they jointly lifted a glass window pane to install it in a window frame.  The glass window pane split in half and the pieces struck Plaintiff, causing injuries. 
            Plaintiff commenced this action to recover damages for personal injuries, alleging, among others, violation of Labor Law § 240(1).  The Supreme Court denied the defendants’ motion for summary judgment dismissing the amended complaint and granted Plaintiff’s cross-motion on the issue of liability regarding the § 240(1) cause of action.  Defendants appealed.
            The Appellate Division stated that “not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1).”  To recover damages for violation of the statute, “plaintiff must show more than simply that an object fell causing injury to a worker.”  Plaintiff must demonstrate that, “at the time the object fell, it was being hoisted or secured or required securing for the purposes of the undertaking.”  Further, Plaintiff must also prove that “the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute.”
            In this case, defendants submitted evidence showing “the absence of a casual nexus between the worker’s injury and a lack of failure of a device prescribed by § 240(1).  In opposition, Plaintiff’s failed to raise a triable issue of fact.  Thus, the Appellate Division held that defendants established, prima facie, their entitled to judgment as a matter of law dismissing Plaintiff’s § 240(1) cause of action.
           
PRACTICE POINT:  The courts have held over the past several years that an object which falls need not be in the process of being hoisted at the time of the fall to qualify but only that the object required to be secured for the job at hand and that the object fell because there was no (or an inadequate) safety devise in use at the time.  In this case what the court did was to hold that when a window pane is being installed that there is not a safety device enumerated in §240(1) which could protect the worker from injury should the pane break as it did here.  The court held that here was no “causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240(1).  Thus, it is good practice to review the devices enumerated and see if any of them could have prevented injury in the accident which is the basis of the lawsuit. 

10/5/12            Palmer v County of Erie
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06673.htm
           
The Fourth Department held that Supreme Court erred in determining that Plaintiff’s motions were unnecessary to the extent they sought leave to renew because Supreme Court had previously granted those parts of the motions of the County and another defendant for summary judgment dismissing the Labor Law § 240(1) claims against the County, and Plaintiffs neither opposed those parts of the motion nor took an appeal from the orders granting them.  Accordingly, the dismissal of those claims became the law of the case.
            However, the Court held that Plaintiffs met their burden of establishing their entitlement to leave to renew their opposition to the prior motions under CPLR 2221(e) (2) based on a “change in the law that would change the prior determination.”  The Court further held that, upon renewal, Plaintiffs established that summary judgment dismissing his § 240(1) claim was not appropriate based on the change in the law but that Plaintiffs failed to establish their entitlement to partial summary judgment on liability regarding those claims.  Therefore, Supreme Court erred in granting those parts of Plaintiffs motions seeking that relief because the Fourth Department held there are issues of fact with respect to the occurrence of the accident that precludes partial summary judgment on liability under § 240(1).  
            The decision is confusing enough that I called plaintiff’s attorney Alan Voos for an explanation.  Plaintiff is working in a basement doing demolition when the ceiling, not being demolished, falls on plaintiff causing injury.  Trial court dismisses 240(1) claim on a Summary Judgment motion by defendant.  The comes Runner  and Wilinski.  Now it is no longer necessary for the object to fall a distance to cause the injury.  Plaintiff’s attorney who did not appeal the original decision but when Runner  and Wilinski came out they say grpounds to get the 240(1) case back from the dead.  Filed motion to renew which was granted and Summary Judgment on 240(1) was also granted.  Then appealed by defendant and the fourth said yes the activity qualified for 240(1) but that here were questions of fact regarding if any enumerated safety device could have prevented the injury so back to trial court for trial on liability. 

PRACTICE POINT:  Never stop reading the cases, ever.  But for the fact that Alan reads the new labor law cases he might not have known about the change in the law and not have made the motion to renew based on a change in the law.  Also fortunate that the 241(6) claim was still active so the case was not completely gone and they were able to make the motion.

 

10/5/12            Zolfaghari v Hughes Network Systems, LLC
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06697.htm
           
Plaintiff brought this action seeking damages for injuries he allegedly sustained when he fell of a ladder while trying to remove a satellite dish attached to the outside wall of a gas station.  With respect to his Labor Law § 240(1), Plaintiff contends he was engaged in the “alteration” of a building or structure within the meaning of that section.  Specifically, Plaintiff argued that his work involved the removal or “de-installation” of a satellite dish system. 
            The Fourth Department rejected Plaintiff’s argument because to obtain the protections afforded by Labor Law § 240(1), a worker must be engaged in “altering” a building or structure, i.e. “making a significant physical change to the configuration or composition of the building or structure.”  According to the Court, Plaintiff’s tasks involved no more than manually unplugging a cord, loosening a small number of bolts by hand and with a wrench, cutting a wire with a hand tool, and lifting the dish apparatus from a basket and face plate that remained attached to the building.  That work did not require Plaintiff to come in physical contact with the building itself, involved no power tools, no drilling of holes, and no feeding of wire through conduits.  Thus, the Fourth Department held that Plaintiff’s work did not require that a significant physical change be made to the gas station building. 

PRACTICE POINT:              The definition of what qualifies as an alteration stems from Joblon, a Court of Appeals case from 1998 which defines an alteration as “making a significant physical change to the configuration or composition of a building or structure.  This case holds that de-installing a satellite dish does not qualify.  The court did infer that had the action been the installation of the disc that it would qualify as they would have to drill holes in the structure to run the cables and it was this activity which was found to be an alteration in Joblon.

 

10/16/12          Fernandez v Stockbridge Homes, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06874.htm
           
After Supreme Court granted both Plaintiff and Defendant’s motions for reargument, it denied Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s Labor Law § 240(1) claim as against it, or in the alternative, indemnification by co-defendant Stratis Builders LLC and third-party defendant Sanita Construction Company.
            The Appellate Division held the Supreme Court correctly denied defendants’ motions for summary judgment dismissing the § 240(1) claim because there are questions of fact concerning how the accident occurred, and whether there we adequate safety devices provided to plaintiff that he elected not to use.  According to the Appellate Division, as defendant Stratis argues that despite being the general contractor, it exercised no supervision or control over plaintiff’s work, there is, at the very least, a question of fact regarding whether Stratis was authorized to exercise such supervision or control.  The broad language of the agreement between Stratis and the property owner authorized Stratis to supervise all work on the construction project at issue.   

PRACTICE POINT:  The critical elements of a sole proximate cause defense are again outlined here.  There needs to be 1) an appropriate safety device which is 2) available and 3) the plaintiff must have been instructed or understand that he was to use it.  Absent uncontested proof of the existence or lack of existence of these elements the court will find a question of fact.

 

10/17/12          Allan v DHL Exp. (USA), Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06904.htm
           
Plaintiff was allegedly injured while performing construction work in a building owned by defendant 500 Lincoln and leased to defendant DHL.  500 Lincoln hired Plaintiff’s employer, SPS, to perform structural repairs in the building.  Plaintiff testified at his deposition that he fell from the top of a scaffold, which was 7 or 8 feet high, and that he was not provided with a harness, a lanyard, or an anchorage point for a lanyard.  However, an SPS foreman and an SPS lead man testified at their depositions that Plaintiff fell while climbing down the side of the scaffold, instead of using a ladder that had been set up adjacent to the scaffold. 
            Plaintiff moved for summary judgment on the issue of liability for his § 240(1) claim against 500 Lincoln.  DHL moved for summary judgment dismissing the complaint against it and 500 Lincoln’s cross-claims for common-law and contractual indemnification, and on its cross-claim against 500 Lincoln for common-law indemnification.   Supreme Court granted Plaintiff’s motion and denied DHL’s motion. 
            With respect to Labor Law § 240(1), the term “owner” encompasses a “person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his or her benefit.”  An “owner” also includes a lessee who has “the right or authority to control the work site, even if the lessee did not hire the general contractor.”
            In support of its motion, DHL submitted the contract between 500 Lincoln and SPS, and deposition transcripts which collectively demonstrate that  neither DHL nor the engineering company, Paragon, which DHL hired to observe and monitor the work performed by SPS, directed, controlled or supervised SPS’s work or had the right or authority to do so.  Accordingly, DHL established prima facie entitlement to judgment as a matter of law dismissing Plaintiff’s § 240(1) claim as against it because it is not an owner within the meaning of the statute. 
            In opposition, Plaintiff argued that, through Paragon, DHL had the authority to control the work site as the record contains an email from Paragon to DHL stating that Paragon was “monitoring and providing direction (to the extent possible) of SPS spot repair activities.”   According to the Court, this email demonstrates only that Paragon had general authority to inspect SPS’s work and make recommendations about SPS’s work activities, and thus fails to raise a triable issue of fact as to whether DHL had authority to control the work site.
            The Appellate Division further held that the Supreme Court erred in granting Plaintiff’s motion regarding his § 240(1) as against 500 Lincoln.  Plaintiff established prima facie entitlement to judgment as a matter of law through his deposition testimony that he fell off the scaffold because a temporary ceiling collapsed, and he was not provided with an adequate protective device that would have prevented him from falling.  In opposition, 500 Lincoln raise a triable issue of fact as to whether Plaintiff was provided with an adequate safety device, including a harness that was secured by a lanyard with an appropriate anchor.  Further, the depositions raised a triable issue of fact as to whether Plaintiff’s own actions were the sole proximate cause of the accident because he improperly climbed down the scaffold rather than using an A-frame ladder secured to the scaffold that workers had been instructed to use to get on and off the scaffold, and in doing so, loosened a pole shored that secured the temporary ceiling, causing him to fall. 
           
PRACTICE POINT:            Who qualifies as an “owner” has been the topic of many labor law cases and this case summarizes that issue clearly.  Where a lessee does not supervise, direct or control the work of the plaintiff, nor has the authority to do so, they are not considered to be an owner under the statute.  Retaining general authority to inspect the work or to make recommendations does not rise to the level of “authority to control the work site”.  As to the sole proximate cause defense the plaintiff claimed that a ceiling collapsed causing him to fall.  This is prima facie evidence of a labor law violation.  However, in response the defendant put forth evidence that the plaintiff failed to use an available and appropriate safety device he was told to use and thus the court found a question of fact.

 

10/24/12          Canas v Harbour at Blue Point Home Owners Ass’n, Inc., et al.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07082.htm
           
During the course of his employment with JAM Painting, Inc., Plaintiff allegedly was injured when an unsecured ladder upon which he was standing slipped from beneath him, and caused him to fall while he was painting the exterior of a condo building.  Plaintiff’s employer had been retained by defendant Harbour at Blue Point Home Owners Ass’n, the home owners association of the condo, which retained defendant Camco Services of New York, Inc. as the property manager for the condo complex.  Following the accident, Plaintiff commenced this action alleging, among others, violation of Labor Law § 240(1).  Plaintiff moved for summary judgment and now appeals from the order that denied his motion.         
            The Appellate Division stated that “although a fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1), liability will be imposed when the evidence shows that the subject ladder was inadequately secured and that the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries.”  Here, Plaintiff established his entitlement to judgment as a matter of law on the issue of liability by showing that although he was provided with a ladder, as required by the statute, the ladder was not secured so as to prevent it and him from falling.  Further, the Court noted there was no assistance provided in holding the ladder while Plaintiff painted.
            The burden then shifted to defendants to “present some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his injuries.”  The Court held defendants failed to raise a triable issue of fact as to whether plaintiff’s conduct was the sole proximate cause of the accident because Plaintiff was only provided with an unsecured ladder and no safety devices and accordingly, cannot be held solely at fault for his injuries.               

PRACTICE POINT:            Where, as here, a plaintiff falls from an unsecured ladder and no assistance to hold the ladder if the ladder “shifts” causing the plaintiff to fall it will be a violation of the labor law and Summary Judgment will be awarded to the plaintiff.  Sole proximate cause will not be found if the statute is violated.

 

 

 

Labor Law Section 241(6)

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

10/17/12          Allan v. DHL Express (USA), Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06904.htm

Plaintiff alleged that he fell from the top of a scaffold, which was approximately seven or eight feet high, and that he was not provided with a harness, a lanyard, or an anchorage point for a lanyard.  Defendants disputed this claim asserting that plaintiff fell while climbing down the side of the scaffold, instead of using a ladder that had been set up adjacent to the scaffold.
Ultimately, the Court affirmed the dismissal of plaintiff’s 241(6) claim.  It addressed each alleged violation separately.  In the Court’s opinion, subdivision (a)(2) of 12 NYCRR 23–1.7 [which requires barricades, fencing or the equivalent in areas exposed to falling material or objects that employees are not required to work or pass] was not applicable because it does not apply to areas where employees are “required to work.” 
Further, 12 NYCRR 23–1.7(b)(1) was not applicable, “as that regulation applies to safety devices for hazardous openings, and not to an elevated hazard.”  Subdivision (h) of 12 NYCRR 23–5.1, which requires that “[e]very scaffold shall be erected and removed under the supervision of a designated person,” had no application under the facts of this case, since the scaffold was not being erected or removed at the time of plaintiff’s accident.  Lastly, 12 NYCRR 23–5.1(f) lacked the specificity required to support a cause of action alleging violations of Labor Law § 241(6).

 

10/16/12          Fernandez v. Stockbridge Homes, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06874.htm

This decision provides very few facts concerning the underlying events.  With respect to Labor Law 241(6), plaintiff alleged a violation of §23-1.16, which sets standards for “[s]afety belts, harnesses, tail lines and lifelines.”  The Court dismissed this cause of action holding that there was no evidence that plaintiff was provided with any of these safety devices. 

Take Away:  The more interesting question which David touched on is whether plaintiff should have been provided these devices. 

 

Labor Law Section 200 and Common Law Negligence

                                                                                    by:    V. Christopher Potenza
                                                                                             (716) 849-8933
                                                                                             [email protected]
Trick or Treat… well not really.  Like the old lady who hands out pennies on Halloween, the appellate courts were quite stingy with Labor Law § 200 decisions this month.  Neither decision is terribly unique, but they reaffirm the basic principles applicable to 200 cases. 
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. 

10/17/2012      Allan v. DHL Exp. (USA), Inc., 2012 N.Y. Slip Op. 06904
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06904.htm

The plaintiff was injured when he allegedly fell from a scaffold while performing structural repairs to a building.  The consistent testimony was that it was plaintiff’s employer, and not any of the defendants, who directed and controlled plaintiff’s work.  
The Second department held that where, as here, a plaintiff's claim arises out of alleged defects or dangers in the methods or materials of the work, the plaintiff must show that the defendant had the authority to supervise or control the performance of the work in order to prevail on a Labor Law § 200 cause of action.  A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed.  The right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence. 
Defendant established its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law § 200 and common-law negligence insofar as asserted against it through deposition testimony which demonstrated that it did not have the authority to supervise or control the manner in which plaintiff performed his work, and plaintiff failed to raise an issue of fact. 

 

10/3/2012        Mendez v. Jackson Development Group, Ltd., 2012 N.Y. Slip Op. 06586
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06586.htm

The plaintiff allegedly was injured while he and a coworker were installing plate glass window panes in a building under construction. According to the plaintiff, while he was standing on a ladder, and while his coworker was standing on the ground, they jointly lifted a glass window pane in order to install it in a window frame. The glass window pane split in half and the pieces struck the plaintiff, causing injuries.
In regards to the Labor Law 200 claim, the defendants argued that they did not direct or control the plaintiff's work. However, where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition.  The court concluded that the defendant’s submissions failed to eliminate all triable issues of fact as to whether they had control over the work site and whether they had actual or constructive notice of a dangerous condition. 
Since the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, that branch of their motion which was for summary judgment dismissing the causes of action to recover damages for common-law negligence and a violation of Labor Law § 200 insofar as asserted against them was properly denied, regardless of the sufficiency of the opposing papers
That’s it for October.  Bills or Jets... Does it even matter anymore?   

 

Indemnity Issues in Labor Law

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

10/24/12          Jian-Guo Yu v Greenway Mews Realty, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_07194.htm

Plaintiff appears to have been employed by UAD Group, and was injured in the course of his job duties.  Little Rest, who was named as a main-party defendant in plaintiff’s suit, commenced a third-party against UAD Groups seeking contractual indemnity.  UAD opposed Little Rest’s indemnity claims on the basis that plaintiff, its own employee, was arguably negligent, and as such Little Rest was not entitled to contractual indemnification. 
In affirming the trial court’s decision to grant Little Rest’s motion, the Appellate Division aptly noted that negligence of the plaintiff was irrelevant here, where, the contract in question plainly provided that UAD would indemnify Little Rest for damages caused by the negligence of Little Rest’s employees. 
UAD also argued that the indemnity claim was premature because Little Rest never actually paid the loss.  Wrong, said the Court.  In the interest of judicial economy, courts are instructed to “afford the indemnitee the earliest possible determination as to the extent to which it may expect to be reimbursed.” 

Peiper’s Point – “When you got nuthin’, you got nuthin’ to lose.”  UAD, it appears to this commentator, was dead on arrival.  We are surprised that this matter necessitated an appeal.

 

10/17/12          Allan v. DHL Express (USA), Inc.
Appellate Division, Second Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06904.htm

By way of recap from above, plaintiff was injured when he fell from a scaffold.  At the time of the incident, plaintiff was working at a building that was owned by 500 Lincoln; said building was also being leased by DHL.  As noted above, DHL sought dismissal of plaintiff’s Labor Law 200/negligence claims.  The trial court granted that motion (which was affirmed on appeal) on the basis that DHL had no negligence with respect to this loss.
Where it was determined, as a matter of law, that DHL was not negligent, it followed that DHL did not owe common law indemnity to 500 Lincoln.  By the same token, because DHL could not establish negligence on the part of 500 Lincoln, its own motion for common law indemnity was also failed.

 

10/16/12          Fernandez v. Stockbridge Homes, LLC
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06874.htm

Plaintiff commenced a Labor Law action against defendant Stockbridge pursuant to Sections 200(1), 240(1), and 241(6), respectively.  Stockbridge eventually moved for summary judgment against plaintiff, and, in the alternative, sought an award of contractual indemnification against co-defendant Stratis and third-party defendant Sanita.  Sanita opposed Stockbridge’s indemnity motion on the basis that the contractual provision in question did not apply to facts of this loss.
In affirming the trial court’s denial of Stockbridge’s motion, the Appellate Division noted that the plain language of the contract provided Stockbridge with an indemnity right only where the loss or damage was due to the “negligent acts or omissions” of either Sanita or Stratis.  Where Stockbridge did not establish negligence against Sanita or Stratis, its motion failed accordingly.

Peiper’s Point - It appears to me that Sanita was the plaintiff’s employer, and yet the fact that plaintiff had some contributory fault was not imputed to his employer.  Hmmmmm….

 

10/11/12          Nieves-Hoque v 680 Broadway
Appellate Division, First Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06852.htm
Plaintiff’s decedent commenced the instant action against 680 Broadway.  When that action was dismissed on summary judgment, 680 Broadway then sought to recover its attorneys’ fees from the decedent’s employer.  Although there was no damages payable to plaintiff, surely 680 Broadway would have incurred costs in defending.
The trial court granted 680 Broadway’s motion for summary judgment, and the First Department overturned on appeal.  In support of its ruling, the Court noted that as plaintiff could not establish liability, there was no basis for any indemnity award.

Peiper’s Point – We love this decision.  If there is no viable liability claim, and the only alleged claim is 680 Broadway’s own negligence, how can there by a common law indemnity claim per the Court of Appeals decision in McCarthy.  As noted by the Appellate Division, there cannot be one.  This reminds us to pay attention to the actual theories of the plaintiff, and whether they trigger any inherent duties of potential third-party defendants.

                                                                                   
10/5/12            Zolfaghari v Hughes Network Systems, LLC
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2012/2012_06697.htm

As with most of the cases, our fearless editor took the laboring oar on this one.  It is worth noting, however, that defendant Exxon’s attempts to get indemnity under a contract to which it was never a party were soundly rejected by the Court.  By way of recap, this involved a situation where Exxon had contracted for services from Hughes.  Hughes, in turn, subcontracted those responsibilities to Atlanta.
Essentially, Exxon argued that its connection and contract with third-party Hughes somehow created an indemnity claim against a second third-party Atlanta.  The theory being that because the Hughes/Atlanta contract provided indemnity rights to the Hughes and its customers (of which Exxon was one), Atlanta agreed to provide Exxon with indemnity too. 
Despite the obvious privity issues, Exxon further ignored explicit language in the Hughes/Atlanta contract which expressly prohibited third-party beneficiaries.  Where, as here, Exxon’s only claim was that it was a third-party beneficiary, the Fourth Department wasted little time in dismissing Exxon’s attempts. 

                                                                                   

 

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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.
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Suite 1300 Liberty Building
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Phone:  716.849.8900
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