http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08197.htm

Does Labor Law section 240, otherwise known as the scaffolding law, apply when a plaintiff falls through a permanent structure such as a roof? The issue was recently decided by a New York appellate court in Jones v. 414 Equities, LLC., where the court dismissed plaintiff’s section 240 claim and adopted a forseeability test. Using the forseeability test, courts will first determine whether there was any indication prior to the accident that the work surface would collapse or was in any way weakened. If there is no foreseeable risk of a floor collapse, then the plaintiff’s claims should be dismissed.

In Pakenham v. Westmere Realty, a New York appellate court recently addressed the difference between “repairs” and “routine maintenance” in the application of Labor Law §240. Pakenham, a service technician, responded to a call regarding a lack of heat at the Westmere Realty office after hours in the winter. While working, Pakenham fell from a ladder. The lower court found that the plaintiff’s work was “routine maintenance” and dismissed his labor law claim. The Appellate Division reversed and determined that the plaintiff’s work on a snow covered roof after normal business hours in the dark was a “repair,” and a protected activity under Labor Law §240.
http://decisions.courts.state.ny.us/ad3/Decisions/2009/504889.pdf

In Kopsachilis v 130 E. 18 Owners Corp., the plaintiff fell down an apartment building’s darkened fire staircase during the New York City blackout of August 14, 2003. The plaintiff subsequently brought suit, stating that the owner was negligent per se because the staircase was not continuously lit as required by Multiple Dwelling Law §37.

The Court of Appeals dismissed the plaintiff’s complaint because Multiple Dwelling Law §37 entitles a building owner to assert the defense that he had no “knowledge or consent” of an extinguished light. In dismissing the complaint, the Court of Appeals found that the owner had no liability under Multiple Dwelling Law §37, because he “obviously did not ‘consent’ to the blackout that darkened the staircase.”

In 2001 a Long Island surgeon donated one of his kidneys to his wife. The couple is now embroiled in a nasty divorce. The case has degenerated into a real pissing match, with the husband now demanding the return of his kidney. In the alternative, he will accept $1.5 million. The wife’s attorney, admirably keeping his focus on the precise legal issue at hand, responded that kidneys are not marital property.

In yet another ruling on the wage claim of an illegal immigrant who used a fake social security card to get hired, a New York appellate court has ruled in favor of the claimant. In Coque v. Wildflower Estates Developers, the plaintiff wrongly submitted a fake social security card to gain employment, but his wrong was offset by the employer’s wrong in failing to follow the law and verifying his bona fides. The plaintiff was injured at work in a gravity-related accident, which triggered liability under Labor Law section 240. The Second Department court ruled that “an employer should not be rewarded for its failure to comply with federal immigration law by being relieved of liability for its failure to provide a safe workplace.” Moreover, said the court, where an employer is complicit in the hiring of an illegal alien, allowing that employer to avoid paying a wage claim would only encourage further illegal hiring by the employer.

New York’s Labor Law section 200 is a statutory restatement of an owner’s common law duty to provide workers with a safe place to work. In Ortega v. Puccia, an appellate court explains that there are two avenues to liability (and thus two avenues of defense) when it comes to a section 200 claim. One category of case is where the worker is injured as a result of “dangerous or defective premises conditions” at the site. A second category of case is where the injury occurs as a result of “the manner in which the work is performed.”

In the Ortega case, the owner hired a contractor to do sheetrock work at his home. The contractor employed the plaintiff and provided the plaintiff with a scaffold. The plaintiff fell from the scaffold because the wheels did not lock and the scaffold moved. The court granted summary judgment to the owner because “the accident did not involve any dangerous or defective condition on the defendants’ premises. The accident instead involved the manner in which the plaintiff performed the work, which was not supervised by the [owner], and which was performed on equipment provided by the plaintiff’s employer, not by the [owner].”

As a practical matter, owners who might wiggle out of a section 200 claim are usually still stuck with liability under the broader sweep of Labor Law sections 240 and/or 241. In this case, however, the owner escaped section 240 and 241 liability based upon the exclusion in those statutes applicable to owners of one- and two-family homes who do not direct or control the work. Thus, in this case, the section 200 claim became the plaintiff’s last hope and the court’s analysis is helpful to defendants in mapping out a successful defense to such claims.

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

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

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