Monthly Archives: December 2012

Condo’s are not Owners under Labor Law (NY)

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As CGL insurers are well aware, New York’s Labor Law, originally designed to protect construction workers from unsafe practices, often ensnares small property owners with its strict liability conditions.  Labor Law § 241(6) imposes a nondelegable duty upon “owners,” “contractors” and their “agent” involved in construction, excavation, or demolition work to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor.

Recently, the New York Court of Appeals ruled that condominiums generally cannot be found liable under New York Labor Law § 241(6). In Guryev v. Tomchinsky, the plaintiff suffered an eye injury while working in the defendants’ condominium unit. Guryev sued the condominium under Labor Law, arguing that the condominium was an “owner” of the unit because it owned the land underneath the building. In addition, the condominium entered into an alteration agreement with the Tomchinskys in which the condominium retained many important rights and control over how the work would be performed and contractor choice.  Plaintiff further argued that co-operatives are deemed to be “owners” and condominiums should also be deemed owners for public policy reasons.

The Court of Appeals, over the dissent of its Chief Judge, ruled in favor of the condominium because the condominium, unlike a co-op, did not hold title to the actual unit in which the injury occurred. Therefore, the condominium could not be an “owner” under Labor Law § 241(6). In addition, the alteration agreement with the Tomachinskys simply reflected the condominium’s interest in making sure that the renovations would protect the building and other units and did not grant the condominium the prerogative to ensure that the contractor was using adequate safety precautions.

Thanks to Mendel Simon for his contribution to this post.  If you have any questions, please write to .

NJ Appellate Division Clarifies When Insurers May Reject Arbitration Awards in UM Cases

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New Jersey auto policies generally contain a clause that decisions rendered in uninsured motorist arbitrations will be binding on the insurer, unless they exceed a certain amount.   New Jersey’s Appellate Division has now clarified, in a published opinion, under what circumstances an insurer may reject an arbitration award.  In Badiali v. N.J. Manufacturers Ins. Group, New Jersey Manufacturers Insurance Group (NJM) rejected an arbitration award in favor of plaintiff in the amount of $29,148.62.  Under the specific language of NJM’s UM policy, it was permitted to reject an arbitration award that was more than $15,000.  However, because another insurer was also providing coverage for the claim, NJM was only obligated to pay half of the total award.  Both the trial court and the Appellate Division in the underlying matter (Badiali I) held that NJM was bound by the award and was therefore precluded from requesting a trial de novo in the matter because its share was within the $15,000 limits.

After a long appellate process, the Appellate Division issued this opinion in order to clarify “dueling unpublished opinions” and formally held that in both UIM and UM cases, if the amount an insurer is obligated to pay on an arbitration award is less than what is specified in the policy’s language, the insurer has no grounds to reject the arbitration award.  Whether or not the total award exceeds the limits is irrelevant, as is any liability finds.  If the amount that the insurer is actually required to pay is within the stated amount, then the arbitration award is binding.

Thanks to Christina Emerson for her contribution to this post.

 

No FSMA Regulations? Then Sue.

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The long awaited Food Safety Modernization Act Regulations have still yet to arrive.  In an attempt to force the FDA’s hand, a lawsuit has been filed.  The lawsuit, filed by a consumer watchdog group, is attempting to force the FDA to issue the long awaited regulations and otherwise enforce the FSMA.  At first blush, the lawsuit seems unlikely to succeed (because of a whole range of legal problems, e.g. standing and sovereign immunity), but perhaps it might finally spur the FDA to act.

Continue to stay tuned.

For more information about this post, please contact Bob Cosgrove at .

Just in Time for Winter, a Pennsylvania Court Applies the Hills and Ridges Doctrine.

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In Koeppel v. PNC Bank, et al., a Pennsylvania, Monroe County, trial court  was confronted with the applicability of the hills and ridges doctrine. In Koeppel, the plaintiff, Karen Koeppel, filed a lawsuit against PNC Bank and Bell Snow Removal LLC. Plaintiff alleged she slipped on ice on PNC Bank’s parking lot. The defendants moved for summary judgment on the basis of the hills and ridges doctrine.

The court initially stated that the hills and ridges doctrine protects an owner of land from liability for generally slippery conditions as long as the owner has not permitted ice and snow to unreasonably accumulate on the property. Further, the court noted that accumulation must be the result of an entirely natural occurrence for the doctrine to apply.

Here, there was no dispute that at the time of the plaintiff’s fall there were generalized icy conditions. The plaintiff, however, contended that the doctrine did not apply because the accumulation, that was the cause of her fall, was not natural. She argued the accumulation was actually the result of the defendants’ snow removal efforts. The court determined that since the plaintiff failed to put forth any evidence to show that the defendants’ snow removal efforts led to the slippery condition that caused her fall, the hills and ridges doctrine would apply. Thus, the defendants’ summary judgment motion was granted and the plaintiff’s complaint was dismissed.

 

 

When Does Art Really Lose Its Value?

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We, here, at WCM are often asked to tackle the appropriate legal measurement of a work of fine art’s loss in value.   Often times, when we get involved, one side or the other has declared the work a “total loss” requiring full market or scheduled value repayment.  But, perhaps, that is the wrong way of looking at things since even damaged art can have value.  This interesting article profiles the Salvage Art Institute, an organization that takes the position that even damaged art has value.  The question is — can that value be measured in terms a court will accept?

For more information about this post, please contact Bob Cosgrove at .

WCM Obtains Summary Judgment in New York County, NY Premises Liability Case

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New York, NY 

Counsel Cheryl Fuchs was awarded summary judgment in a New York County, NY premises liability case.  In the case of Maldonado v. 106th Street Houses, Inc., the plaintiff alleged that he tripped and fell over a hole that was located underneath a sidewalk bridge that our client, Everest Scaffolding, Inc., had erected.  We took an aggressive approach and moved for summary judgment pre-depositions.  In support of our motion, we submitted an affidavit from our investigator and our client indicating that the hole was at least three feet away from the nearest sidewalk bridge pole.  The affidavit further explained that the erection of the sidewalk bridge did not alter the sidewalk, and could not have created the alleged hole that caused plaintiff’s accident.  In opposition, both plaintiff and co-defendant argued that the motion was pre-mature, and that a deposition of our client might reveal that the erection of the sidewalk created the hole.

Taut Tape Injury Not Within the Ambit of Labor Law 240(1)

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In Garcia v. DPA Wallace Avenue I, LLC, et al., the First Department reaffirmed the lower court’s decision, awarding DPA Wallace summary judgment, and denying plaintiff’s cross motion for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241-a claims. Garcia, an elevator mechanic, was preparing to dismantle components of an elevator when the “selector tape,” a thin strip of metal, broke and “snapped” upwards, cutting his hand. Garcia creatively argued that the tension put on the tape was created by a gravitational force from a weight in the overhead room, which essentially acted as a counterweight to keep the tape taut.  The First Department rejected plaintiff’s argument, noting that the object upon which the force of gravity was applied — the weight in the overhead room — was not material being hoisted, nor was it a load requiring securing for plaintiff’s work. Thus, the snapping of the tape was not the result of the gravitational pull, necessary to put the case within the ambit of Labor Law 240(1). The First Department also upheld the dismissal of the Labor Law § 241(6) and Labor Law § 241-a claims since plaintiff was not subject to the overhead hazard of falling objects. While the courts have continually expanded the breadth of Labor Law 240(1), this case reinforces that plaintiffs must prove that their resultant injury stems from a true gravity-related hazard.

 

WCM Obtains Summary Judgment in Queens County, NY Labor Law Case

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New York, NY 

Counsel Cheryl Fuchs and associate Georgia Stagias were awarded summary judgment in a Queens County, Labor Law case.  In the case of Guaman v. Viewest Owners, LTD., the plaintiff alleged he was injured as he attempted to descend from a hanging scaffold onto a sidewalk bridge that our client, Everest Scaffolding, Inc., installed.  Plaintiff alleged that his accident was caused in part by the fact that a portion of the sidewalk bridge was approximately 4 feet or 5 feet away from the wall of the building.  We moved for summary judgment seeking to dismiss the Labor Law claims on the basis that Everest was not an “employer,” “owner” or “general contractor,” to which the Labor Law applied.  In addition, we argued that Everest did not supervise or control the plaintiff’s work.  The court agreed and dismissed the Labor Law claims as against Everest.  In addition, we moved to dismiss the common law negligence claims against Everest on the basis that the fact that the bridge was not built directly abutting the facade failed to present an issue of fact regarding Everest’s negligence because either OSHA, the New York City Building Code, nor the New York City Administrative Code require that sidewalk bridges be placed directly against the building’s facade.  The court also agreed with this argument and dismissed all common law negligence claims against our client.

Plain Meaning of Insurance Contract Prevails in New Jersey

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In the recent unreported decision of Chery v. New Jersey Indemnity Insurance Company, plaintiff Michelle Chery was injured in a hit-and-run motor vehicle accident, and sought compensation through an uninsured motorist claim against New Jersey Indemnity Insurance Company. Pursuant to the policy, plaintiff was entitled to $15,000 in UM coverage and was expressly contracted to be bound by an arbitration award unless it exceeded $15,000.

The parties proceeded to arbitration, where an award of $17,500 was awarded to the plaintiff. Defendant appealed and filed for a trial de novo. Plaintiff filed a complaint to confirm the arbitration award, and a motion for summary judgment. In her motion, plaintiff argued that, because the mandatory minimum liability limit specified by the Financial Responsibility Law of New Jersey, and the actual liability limit of defendant’s policy are the same ($15,000), the contract provision does not permit defendant to appeal the award or demand a trial de novo.

The Appellate Court disagreed with plaintiff’s argument, noting that the policy contained no provision, expressed or implied, that the plain language was inapplicable where the UM limit of the policy and the minimum for liability specified by the Financial Responsibility Law were the same. Since the language of the policy was unambiguous, defendant was legally entitled to reject the arbitration award and proceed to trial.

Thanks to Heather Aquino for her contribution to this post.

 

WCM Obtains Summary Judgment in Brooklyn, NY Premises Liability Case.

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New York, NY 

Counsel Cheryl Fuchs was awarded summary judgment in a Kings County, NY premises liability case.  In the case of Davis v. Linden Plaza, Preservation, LP, the plaintiff allegedly tripped and fell over “construction debris” in a parking lot on November 30, 2008.  We represented Everest Scaffolding, a contractor that erected a sidewalk bridge at the site in September 2008, and removed it in October 2008, a month prior to the plaintiff’s accident.  We took an aggressive approach, especially for Kings County, and moved for summary judgment pre-depositions.  In support of our motion, we submitted our client’s work records and an affidavit from our client confirming the dates of work and the fact that once Everest removed the bridge it took all of its materials with it.  Both plaintiff and the co-defendant property owner opposed our motion on the basis that it was premature without depositions.  They did not, however, present an affidavit or any other evidence that would indicate that the “construction debris” belonged to Everest.  As such, the court granted our motion and dismissed the case.