In D’Avilar v. Cerebral Palsy Assn’s of N.Y. State, the plaintiff, a direct care aide to the severely disabled, was injured as the result of a crime. Plaintiff’s injury left her unable to lift more than 10 pounds with her right arm. When plaintiff informed defendant that she required a “reasonable accommodation” as a result of her injury, defendant responded that there could be no reasonable accommodation as lifting 10 pounds was an essential prerequisite of the job.

Plaintiff commenced an action under New York City Human Rights Law, claiming she had been discriminated against due to her disability. After discovery was completed, defendant moved for summary judgment based on plaintiff’s social security disability insurance application. In the application, plaintiff swore she was unable to perform the tasks of a direct care aide because among other things she was unable to lift 10 pounds and was unable to sit, stand or walk for extended periods. In plaintiff’s response to defendant’s motion to dismiss, she did not address the additional disabilities claimed in her application.

The Supreme Court held that plaintiff failed to raise a triable issue of fact regarding whether she could perform the essential functions of a direct care aide based on the additional disabilities listed in her social security disability insurance application, and her failure to propose any reasonable accommodations for the additional disabilities. The Appellate Division, Second Department affirmed the lower court’s finding.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04851.htm

In Garcia v. Edgewater Development Company, the plaintiff was injured while unloading drywall from a platform that had been raised to an open second story window. Plaintiff brought a lawsuit alleging a violation of Labor Law 240(1).

In its motion for summary judgment, defendant argued that the plaintiff was not subject to an elevation-related hazard for which the protective devices enumerated in Labor Law 240(1) are required. The Supreme Court, Queens County, denied the defendant’s motion.

On appeal, the Appellate Division for the Second Department reversed. The Appellate Division reasoned that since the plaintiff was able to grasp the top and bottom corners of the panel while standing on the floor in the building, the drywall was not elevated above the work site, but rather was at the same level as the plaintiff. The Court further stated that the plaintiff failed to raise a triable issue of fact as to whether the drywall fell from an elevated level, as required to bring the accident within the coverage of Labor Law 240(1).

Thanks to Robin Green for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03477.htm

The New Jersey Supreme Court has established a two part analysis that trial judges must follow to decide whether and for how long the two year statute of limitations in child sexual abuse cases can be tolled. The Court in R.T. v. Voytac, held that a trial court must first perform an objective test to determine when a reasonable person would have discovered the cause of his injuries. If that period is more than two years prior to the filing of the complaint, the court must then apply a subjective test to determine whether the statute should be tolled because of ” the plaintiff’s mental state, duress from the defendant, or any other equitable grounds”.

http://www.judiciary.state.nj.us/opinions/supreme/A-61-08%20RL%20v%20Kenneth%20Voytac.pdf

In Preferred Mutual Insurance Co. v. New York Fire-Shield, the Third Department analyzed the timeliness of notice provided by an insured. First, the court recognized that timely notice was still required under general liability and excess policies, and that notice made two years after the insured was aware of a possible claim would ordinarily be late. However, the court held that a reasonable belief in non-liability would excuse untimely notice, and it was for a jury to determine whether the insured’s belief was reasonable.

http://decisions.courts.state.ny.us/ad3/Decisions/2009/505847.pdf

In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff’s assumption of the risk and based on the theory that the plaintiff’s actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant’s service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries.

The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident.

Thanks to Maju Varghese for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm

In DEB Associates v. Greater New York Mutual Ins Co. , the New Jersey Appellate Division found that the additional costs of repair to bring the undamaged parts of plaintiff’s wind damaged building up to current construction code standards were covered under its insurance policy. The Court found that but for the wind damage ( a covered claim), plaintiff would not have been required to bring the wall-to-floor connections in the rest of the building up to current code standards. The policy in question excluded pre-existing code violations that the insured had failed to correct, but did not specifically exclude situations where a covered structure was grandfathered under the current code but lost that status because of the occurence. If the insurer intended to exclude coverage in such situatons, the Court held it could have specifically so provided.

http://www.judiciary.state.nj.us/opinions/a5308-07.pdf

A New Jersey appeals court has ruled that the 2006 amendmenys to the offer of judgment rule apply to cases pending at the time of the changes, absent exceptional circumstances. The decision in Kas Oriental Rugs, Inc v. Ellman, reverses a $218,000 fee award under the previous version of the rule, R. 4:58, since even though the offer was made before the amendment , the fee dispute did not occur until after the rule changes in 2006. The amendments allowed defenses to a fee allowance that were not available when the offer was made and rejected.

http://www.judiciary.state.nj.us/opinions/a2567-07.pdf

In Nakis v. Apple, defendant Apple Computer, Inc. hired plaintiff to determine the cause of a malfunctioning air conditioner. During plaintiff’s work, he fell from an A-Frame Ladder after he received an electrical shock. There was no apparent defect in the ladder. The Supreme Court, New York County, addressed two issues: 1) whether the work on the air-conditioning unit was “routine maintenance, which is not covered by Labor Law section 240, or “repair work,” which is covered by the statute; and 2) whether summary judgment is proper when there is no defect in the ladder, and plaintiff fell because of an electrical shock. The Court held that 240 applied because plaintiff was performing repair work to an inoperative air conditioner as opposed to replacing a component because of normal wear and tear. The Court further held that “the fact the plaintiff fell from a ladder because of an electrical shock does not preclude recovery under Labor Law.”

Thanks to Justin Rowe for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29220.htm

A recent appellate ruling in New Jersey has once again highlighted the principle that an insurance carrier may be bound by the actions of a broker or agent with underwriting authority. In Scottsdale Ins. Co. v. Woolsulate Corp., (App.Div. 2008), a liability carrier gave its broker underwriting authority with clear underwriting requirements, including a refusal to deal with asbestos risks. Nevertheless, the broker issued a policy on behalf of the carrier despite knowing (according to the court’s findings of fact) that the insured had been subject to asbestos-related claims in the past. The New Jersey Appellate Division ruled that the carrier was required to provide coverage for asbestos-related claims made against its insured.

http://lawlibrary.rutgers.edu/courts/appellate/a4815-06.opn.html

Thanks to Mendel Simon for his contribution.

In New Jersey, under the Charitable Immunity Act, a charitable organization is immune from negligence suits filed by “beneficiaries” of the organization’s works. Recently, in Smith v. Diocese of Camden, a mother delivering sweets to her second grader’s class argued that she was a “volunteer” for the parochial school and therefore not barred from filing suit when she sustained personal injury on school property.

The Appellate Division saw through this mother’s claim, noting that she would not have gone to the school but for the fact that her child was in the class. She was not a volunteer with specific duties that required her to be present at the school on the date in question, and had gone there simply to bring treats to her child’s class. As a parent of a child in the school when she entered the property, she was a “beneficiary of the works” of the school and, as such, the Appellate Division affirmed summary judgment in favor of the Diocese based upon the Charitable Immunity Act.

Thanks to Denise Ricci for her contribution.

http://lawlibrary.rutgers.edu/decisions/appellate/a5261-07.opn.html