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Legal Developments
1. Landowner Liability for Open and Obvious Conditions
By decision dated October 27, 2003, the Appellate Division, Second Department, in Cupo v. Karfunkel held that Second Department cases "which stand for the broad proposition that liability under a theory of common-law negligence will not attach when the allegedly dangerous condition is open and obvious should no longer be followed." Note however, that a court may still grant summary judgment to a landowner where the condition is open and obvious, and, as a matter of law, not inherently dangerous.
The NY Supreme Court in May 2006 (Justice Klein-Heitler) denied summary judgment based on an assumption of risk theory, in a case where plaintiff fell over a garden hose while riding his bicycle. In Eagle v. Chelsea Piers, the Court stated that while curbs and sewer grates are frequently encountered by NYC bicycle riders and could be ruled an inherent risk of bicycle riding in the city, it cannot be ruled, as a matter of law, that a garden hose is so common as to eliminate any duty of care on its placement on the part of the property owner.
2. Sole Legal Cause of Injury
Soto v. NYC Transit Authority involved a situation where the plaintiff was struck by a train and lost both of his legs. At the time of the accident plaintiff was on a catwalk and running between train stations. Proof also established that plaintiff and his friends had been out drinking before the accident and that the accident occurred late at night. Nonetheless, plaintiff claimed at trial that based his on usual speed on a tread mill, he was running at 7-8 mph, prior to the being struck. Plaintiff’s expert also claimed that based on plaintiff’s speed, had the motorman been operating the train properly and had he been properly trained, the train could have come to a stop before hitting plaintiff. A jury determined that plaintiff was 75% responsible for the accident but that the Transit Authority was 25% responsible.
A split decision in the Appellate Division Second Department affirmed the decision of the trial court and in a recent 4-3 decision, the Court of Appeals agreed. A sharply divided Court of Appeals concluded that Mr. Soto’s conduct was not a superseding cause to the accident as a matter of law and, therefore, it was not error for the matter to go to the jury.
Given the division on this case in both the Appellate Division and Court of Appeals it is doubtful that this case can be applied beyond its immediate facts.
Notably, in Robinson v. East Medical Center LP, the Court of Appeals went the other way, finding that plaintiff’s actions were the sole proximate cause of the accident and, therefore, barred any recovery by plaintiff.
Robinson, was a Labor Law case where the plaintiff, a plumber, needed an 8 foot ladder to complete his work. Rather than get this ladder which was readily accessible, plaintiff continued to use a 6 foot ladder which he fell from while standing on the top cap.
The Court of Appeals held that plaintiff’s actions were the sole cause of his injury and, therefore, plaintiff was not entitled to recovery.
3. Res Ispa
In Morejon v. Rais Contruction Co., plaintiff’s decedent was hit on the head when a roll of roofing paper fell from the roof at a construction site and hit the decedent on the head killing him. A wrongful death action was filed by the decedent’s estate and the Supreme Court awarded summary judgment to plaintiff based on the res ispa doctrine. The Second Department reversed holding that res ispa “may not be used as the basis for summary judgment in favor of a plaintiff on the issue of liability.” The Court of Appeals upheld the denial of summary judgment finding that there were open issues of fact. However, the Court of Appeals also stated that “there is no rule or policy absolutely foreclosing the possibility of granting summary judgment on res ispa loquitor grounds.”
4. Timing of Summary Judgment Motion
In an amendment of CPLR 3212 subdivision (a) that took effect January 1, 1997, outer limits were imposed as to the making of a motion for summary judgment. The consequence of missing those limits has given rise to inconsistent decisions, and a continuing controversy. The Court of Appeals now steps in with an effort to resolve the controversy in Brill v. City of New York (2004).
The decision has bad news for those who overstep the time borders. A late motion will not be excused merely because the merits of the motion are plain. The movant must show a satisfactory reason for the delay in the motion's making. That's what the statute means in the discretion it gives the court to excuse the delay for "good cause." Unless the delay is excused, the merits of the motion should not even be examined. And this is so, in the Court's view, even if the party moved against can show no prejudice in the fact of the delay.
5. Municipal Liability for Lead Paint Exposure
In its 1978 Florence decision, the Court of Appeals said that before municipal liability can attach for the alleged breach of a municipal duty, "the duty breached must be more than a duty owing to the general public." The Court has also observed that it has "time and again" required that a damaged plaintiff "point the finger of responsibility at a defendant owing...a specific duty to him," as it held in its 1984 Johnson decision. Dismissing the damages claims of infants made against a county and a city for the alleged negligence of their lead-paint abatement personnel in failing to fully detect and prevent the lead poisoning, the Court returns to the "special relationship" test, finds none, and dismisses the claims against the municipalities. Pelaez v. Seide,...N.Y.3d...,...N.Y.S.2d... (March 25, 2004).
The decision addresses only the claims against the municipal units. The liabilities of the landlords and their agents were not before the Court.
6. Notice of Claim
Where the plaintiff wanted the municipality, a village, to remove subsurface roots from trees it planted, because the roots were damaging the plaintiff's sidewalk, that is a claim in equity, holds the court in Bulzoni v. Inc'd Village of Westbury, N.Y. Law Journal, Sept. 4, 2003, p.22, col.5 (Sup.Ct., Nassau County; Franco, J.), and when brought to enjoin a continuing wrong it does not invoke the notice of claim requirements of the General Municipal Law.
In Scantelbury v. New York City Health & Hospital Corporation, 4 N.Y.2d 606 (2005), instead of serving the Notice of Claim on New York City Health & Hospital Corporation, plaintiff served the New York City Comptroller, believing they were one and the same. Since they are not, the Court of Appeals held that the failure to serve the New York City Health & Hospital Corporation with the Notification of Claim required the dismissal of plaintiff’s lawsuit.
In LFH Gallery v. City of New York (Sup. Ct N.Y. County February 1, 2006), the plaintiff made phone calls to NYC's 311 Citizens Service Center line reporting flooding in their art gallery due to defective sewer drains. The court held that theses calls provided “actual knowledge of the essential fact” of the plaintiff’s claim. Therefore, the court ruled in favor of plaintiff’s petition to file a late Notice of Claim, since the City of New York had actual knowledge of the claim and therefore could not claim prejudice due to the filing of a late notice of claim.
7. Settlements
A stipulation of settlement arose out of an action by a bank, on promissory notes. Defendant defaulted on the stipulation and the bank let 10 years pass before seeking to enter it as a judgment. The bank took the precaution, however, of having the action kept alive all the while by making its discontinuance "expressly conditioned on full payment of the debt."
The question thus boiled down to how long there is to enter a stipulation of settlement in a pending action. The holding of the court appears to be that there is no time limit. Marine Midland Bank v. Worldwide Industrial Corp., 307 A.D.2d 221, 763 N.Y.S.2d 27 (1st Dep't, 2003).
In Bonnette v. Long Island College Hospital, the Court of Appeals held that one party who enters into a settlement agreement with another party can withdraw from same so long as the agreement, even if it is undisputed, was not reduced to a writing and/or was not made in open court. The Court stated that "[t]o allow enforcement of unrecorded oral settlements would invite an endless stream of collateral litigation..." Moreover, the Court held that any writing confirming a settlement must contain "all the material terms" of the settlement. Thus a letter by plaintiff’s attorney to defendant’s merely indicating that the case is settled without specifying the specific terms of the settlement would not suffice.
8. Labor Law
In Blake v. Neighborhood Housing Services, the Court of Appeals found that if under the strict liability provisions of Labor Law Sec. 240 (1), plaintiff cannot prove that a defect or lack of safety device in the ladder was a proximate cause of plaintiff's accident, then plaintiff cannot recover. The Court further stated that a fall from an elevation, in and of itself, does "not give rise to the extraordinary protections of Labor Law Sec. 240 (1)." Indeed, the Court found that where a worker's own conduct is the sole proximate cause of the accident, imposing strict liability under Labor Law sec. 240 (1) would be inconsistent with the statute's goals.
In Boles v. Dormer Giant, Inc., 2005 Slip Op. 01270 (February 2005), the Court of Appeals determined that a defendant in a Labor Law action can implead plaintiff’s employer for contribution and indemnification, even if plaintiff failed to sustain a “grave injury,” if plaintiff’s employer did not secure workers’ compensation for its injured employee.
In Cahill v. Triborough Bridge and Tunnel Auth. (Dec. 2004), the Court of Appeals found that the “recalcitrant worker defense” was a complete bar to a recovery by plaintiff under the Labor Law where plaintiff’s failure to use a safety device was the sole cause of the accident and, therefore, the fault for the accident belonged exclusively to plaintiff.
Notably plaintiff in Cahill claimed that the instructions on using safety devices had been given to him long before the alleged accident, suggesting that instructions closer in time were required in order for the “recalcitrant worker defense” to apply. However, the majority opinion explicitly disagreed stating that the plaintiff “was not less recalcitrant because there was a lapse of weeks between the instructions and his disobedience of them. The controlling question...is...whether a jury could have found his own conduct, rather than a violation of Labor Law Sec 240(1), was the sole proximate cause of his accident.”
In Toefer v. LIRR, 4 N.Y. 2d 399 (2005), the plaintiff was injured while unloading steel beams from a flatbed truck which was only four to five feet from the ground. Although the plaintiff was seriously injured to the point of becoming a paraplegic, the Court of Appeals upheld that the fall was not one which invokes the strict liability provisions of
§240 (1) of the New York State Labor Law.
In Rodrigues v NIS Building Contractors 5 N.Y.2d 427 (2005), the Court of Appeals ruled on the matter of a defendant’s ability to assert a claim for indemnification and contribution against both the contractor and employer of an injured worker. In this case, a contract which stated in it that the contractors’ employer agreed to hold the defendant harmless “to the fullest extent permitted by law” was sufficient to entitle the defendant to assert a claim for indemnification and contribution, despite that the contract did not specify the particular project to which the hold harmless agreement applied.
9. Animal Liability
Generally speaking New York holds that an owner of a domestic animal is strictly liable for the harm such animal causes if the owner “either knows or should have known of the animal’s vicious propensities.” Note that knowledge of vicious propensities does not necessarily mean that an animal has been involved in a prior attack, but can be shown by vicious proclivities, such as growling or bearing its teeth on prior occasions.
In Bard v. Jahnke, the Court of Appeals refused to depart from this precedent in a case where plaintiff had been attacked by a dairy bull. While plaintiff argued that the bull should have been restrained or that he (plaintiff) should have been told that the pen where he (plaintiff) had been working had such an animal, the Court of Appeals refused to give credence to the argument that such an animal was generally dangerous or vicious. The Court stated that, it has never held that a particular kind of animal or breed was dangerous, as a matter of law, and it was unwilling to establish such a precedent now.
10. Alien's entitlement to recovery of lost wages
In Balbuena v. IDR Realty, the Court of Appeals finally resolved the conflict between the First and Second Departments and ruled aliens who have no right to work in the United States but are nonetheless injured on the job can sue for lost wages based on their income earned in the United States under the New York Labor Law. Although two judges from the Court of Appeals sharply dissented, the majority found that New York laws entitling workers to lost wages are not in direct conflict with federal law and are, therefore, not pre-empted.
11. Standing to Sue on DJ Action
In Lang v. Hanover, Ins. Co. the Court of Appeals has recently ruled that a plaintiff who has a personal injury action has no standing to sue the defendant's insurer, who disclaimed coverage against defendant, in a declaratory judgment action.
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