The courts in NY have grappled with wage claims by undocumented immigrants ever since the US Supreme Court touched on the subject in 2003 in Hoffman Plastic Compounds v. NLRB. New York’s highest court addressed the subject in 2006 in Balbuena v. IDR Realty. In the Balbuena case, an undocumented immigrant obtained employment without proffering any fraudulent documents — he simply applied for a job and was hired. The court held that “in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, [federal law] does not bar the maintenance of a claim for lost wages by an undocumented alien.” Thus, the court ruled that the plaintiffs in Balbuena were entitled to pursue a lost wage claim for injuries caused by the defendants’ violation of Labor Law 240 and 241.

Now comes Amoah v. Mallah Management, decided yesterday by an intermediate appellate court in Albany. Mr. Amoah arrived in the US legally with a seven-month visa that did not allow him to work. He obtained a job using a friend’s name, social security number, and driver license. That is, in the words of the Balbuena decision, he “tendered false work authorization documents to obtain employment.” Many months later (and long after his visa had expired), Amoah was injured on the job. He applied for workers comp benefits under his assumed identity. He had the support of his friend (who had loaned Amoah his identity) because his friend, who we will call “The Dealmaker,” agreed to the scheme as long as Amoah shared half of the workers comp award and two-thirds of any recovery in a lawsuit. Mr. Amoah found these terms too harsh and revealed his true identity to the workers comp board. He then pressed on with his workers comp claim under his true identity.

The appellate court ruled that Amoah is entitled to workers comp benefits even though he used false documentation to get his job and even though he used the same false documentation in applying for benefits. The court’s rationale was that to deny benfits to Amoah would encourage employers to hire illegal aliens in the hope that they (the employers) would then be able to escape comp claims by these same illegal aliens.

In the movie, Field of Dreams, players made their way onto a baseball diamond by walking out of a cornfield.

In Ruffino v. New York City Transit Authority and Sterling Mets, L.P., plaintiff tripped and fell over an uneven piece of wood while walking on a boardwalk that spanned over a Long Island Railroad train station and fed into a New York City Transit Authority number 7 subway station, on her way to Shea Stadium, now the former home of the New York Mets. Sterling Mets, L.P., moved to dismiss plaintiff’s complaint, pursuant CPLR §3211(a) (1) and (7), since it did not own, occupy, control or make special use of the boardwalk. In denying Sterling’s motion, the trial court essentially found a triable issue as to special use since it determined that the defendant failed to establish that it did not have a duty to maintain the boardwalk in a safe condition even if it did not own, occupy or control the boardwalk.

After restating the standard by which CPLR §3211(a) (1) and (7) motions are to be decided, the Appellate Division, Second Department, found that Sterling’s evidence in support of its motion established that the subject boardwalk is a public thoroughfare. Agreeing with the defendant’s rationale, the Court determined that the mere use of boardwalk by Sterling’s customers is not a special benefit, giving rise to a special use.

Thus, while they may come if you build it, be sure they do so using public thoroughfares.

http://www.nycourts.gov/reporter/3dseries/2008/2008_08114.htm

Reuters reports that The Federal Deposit Insurance Corp.’s powers could be expanded if Congress decides to shift insurance companies from state regulation to federal regulation. States currently regulate insurance companies. However, according to FDIC Chairman Sheila Bair, the FDIC could start providing guarantees for insurance companies, much like it already guarantees the deposits of most U.S. banks, if the insurance industry comes under federal regulation.

United States Supreme Court Justice Antonin Scalia made famous the Latin term, “ipse dixit,” when he derisively quipped that a statement is not necessarily true just because uttered by an expert. Employing similar logic, the Appellate Division, First Department recently overturned a jury verdict against the City of New York, which concluded that it negligently designed two swinging doors in a NYC high school. Plaintiff’s expert testfied that the doors were poorly designed and in violation of applicable industry standards without any reference to written building codes or industry standards in effect when the building was constructed. Instead, the expert relied on his general experience and one written publication issued after the building was constructed.

Jury verdicted overturned and case dismissed.

http://www.nycourts.gov/reporter/3dseries/2008/2008_07951.htm

A New York Appellate Court recently allowed an insurer to rescind its policy, ab initio, because the written underwriting guidelines supported the carrier’s claims that the same policy would not have been written if the insured had accurately described its loss history.

Insurers that discover the insured made an incomplete or inaccurate disclosure in applying for coverage should certainly consider filing for recision. But in order to prevail at the motion practice stage, extrinsic evidence beyond the underwriters’ testimony is often the difference maker.

http://www.courts.state.ny.us/ad4/court/Decisions/2008/06-06-08/PDF/0574.pdf

In Stringer v. Musacchia, the plaintiff, a hunting enthusiast, volunteered to build a shed on the defendant’s land in exchange for a chance to hunt for turkey with the defendant, a prominent cable television bow hunter. While building this shed, the plaintiff was injured after he fell 8 to 10 feet from a ladder. He sued the defendant citing a violation of Labor Law §240(1). In dismissing the plaintiff’s claim, the NY Court of Appeals ruled that the plaintiff lacked the requisite status as an employee to pursue such a claim because the plaintiff was not paid for his work; was not obligated to finish the shed; and was not personally directed by the defendant on how to do the job.

http://www.nycourts.gov/ctapps/decisions/oct08/158opn08.pdf

In Brooks v. Judlau Contracting, Inc., plaintiff ironworker employed by third-party defendant Thunderbird Constructors, Inc., fell 18 feet due to a safety cable improperly installed by Judlau, the general contractor. With no grave injury sustained by plaintiff, both the trial court and appellate court dismissed Judlau’s third-party complaint for contractual indemnification as it was deemed unenforceable due to Judlau’s active negligence.

The Court of Appeals reversed this decision. Answering the question left open in Itri Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 89 NY2d 786, 658 N.Y.S.2d 903 (1997), the Court of Appeals found that §5-322.1 of the General Obligations Law allows for partial indemnification so long as the indemnification provision does not purport to indemnify a party for its own negligence.

http://www.nycourts.gov/ctapps/decisions/oct08/147opn08.pdf

We’ve come a long way since the Declaration of Independence was signed on engrossed parchment in 1776. Banks, computer software manufacturers, and online merchants, just to name a few, require us to affirm our consent to their terms and conditions through our “clicks” on their websites. Has the law caught up with this new technology?

In Stephenson v. Lawyers Athletic League, a 6’8″ former Division I college basketball player was assaulted by another player. There was trash talking during the game that culminated in plaintiff getting punched in the face while waiting to take a foul shot, sustaining a fractured jaw. Plaintiff sued the Lawyers Athletic League, the league organizer, and The Food Bank, which sponsored the team on which the assaulter played. The two key issues were whether the plaintiff expressly assumed the risk of injury and waived any claims of negligence against the League and whether his online signature of the waiver/release was valid under New York law.

The motion court held that the language of the online waiver included claims relating to the negligence of the League as well as the “actions, inactions or negligence of others…” Therefore, the court ruled that by voluntarily participating in the game and executing the waiver/release, plaintiff assumed the risk of injury including an assault by a fellow participant. An interesting sub issue was whether plaintiff could signify his consent by hitting the “submit” button on the the electronic waiver form. Citing New York’s State Technology Law, the court found plaintiff’s action to be the functional equivalent of an electronic signature and enforced the terms of the form.

Victory to the League and that’s no trash talk.

http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008OCT/3001128702006002SCIV.pdf

The defense afforded to employers by the exclusivity provision of the Workers’ Compensation Law may also extend to suits brought against an entity that is found to be the alter ego of the corporation that employs the plaintiff. In Cappella v. Suresky at Hatfield Lane, LLC, the plaintiff was employed by R.I. Suresky & Son, Inc., a car dealership. The plaintiff claimed that he was injured when he fell in the dealership lot. Since he could not bring suit against his employer, the plaintiff sued Suresky at Hatfield Lane, the owner of the lot. Suresky at Hatfield Lane argued that it was an alter ego of the plaintiff’s employer and submitted proof that the plaintiff’s employer exercised managerial and financial control over it. The court ruled that this proof sufficiently established a prima facie defense under the Workers’ Compensation Law.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07603.htm

In Altinma v. East 72nd Garage Corp et al, plaintiff’s decedent sustained fatal injuries when he was allegedly pinned beneath a single-person vertical transportation device called a man-lift while working at Somerset Garage in Manhattan. Plaintiff brought this action against East 72nd, the garage license holder, Ace Overhead Garage Door Inc, the entity that repaired the man-lift on an as-needed basis and Charles Calderone Associates Inc, the entity that performed annual inspections of the man-lift. Multiple third-party actions were commenced, including an action in strict products liability against Humphrey Man-Lift Corp, the man-lift manufacturer. All of the original parties and Humphrey moved for summary judgment. The trial court granted East 72nd summary judgment as against plaintiff, but denied summary judgment as to cross-claims. Humphrey was also awarded summary judgment and all of the original parties appealed.

The Appellate Division, Second Department reversed the trial court’s decision and granted summary judgment to Ace and Calderone and affirmed the trial court’s decision as to East 72nd and Humphrey. Unpersuaded by plaintiff’s arguments that Ace and Calderone may have in the performance of their duties failed to properly inspect or warn so to “launch a force or instrument of harm,” the Appellate Court found as a matter of law they did not owe a duty to the non-contracting plaintiff. For East 72nd, the trial court correctly found the decedent to be a special employee and dismissed the action pursuant Workers’ Compensation Law §11. However, since the decedent suffered a grave injury, co-defendants’ cross-claims for indemnification and/or contribution remained viable. Lastly, since there was no triable issue of fact as to whether Humphrey marketed the man-lift that was not reasonably safe or that the alleged defective design of the man-lift was a substantial factor in causing plaintiff’s injury, the decision to grant Humphrey summary judgment was affirmed.

http://www.nycourts.gov/reporter/3dseries/2008/2008_07202.htm