Labor Law

Wednesday, January 6, 2016

Appellate Division, 2d Department Roundup: November 18, 2015 Edition

In this edition of the Roundup, employees at a local psychiatric hospital are attacked by a patient, and a dialysis patient falls off the scale during a weigh-in, as well as several motor vehicle accidents. The most exciting element was that the City was found to have constructive notice of expansion joists that were not flush with the pavement on the bike path of the Manhattan Bridge, allowing plaintiff's practitioners to sidestep at least one aspect of the prior written consent law. More, after the jump . . . 

Read more . . .

Wednesday, December 2, 2015

2d Judicial Department, Appellate Division Roundup: November 12, 2015 Edition

In this edition of the Roundup, we have an interesting round of construction accident and motor vehicle cases, most of which shows the powerful extent of timely summary judgment motions to clear the air of issues. In a construction accident case, summary judgment removed most of the height-related issues but kept the key failure of the case. But in a few slip-and-fall on ice cases, the Court was relunctant to introduce habit evidence or find that the City had time to correct the icy crosswalk. More, after the jump . . . 

Read more . . .

Wednesday, October 21, 2015

1st Judicial Department, Appellate Division Roundup: October 15, 2015 Edition

A short update, but unusual as it includes a split regarding a Labor Law motion. Check it out below:

Pedro Quinones v. Olmstead Properties, Inc.

 In this SPLIT opinion Labor Law 240(1) case, we will first address the facts, then the Court's findings and then the dissent's:

While painting over graffiti on a billboard, plaintiff lost his balance and fell. The billboard had a row of concrete blocks in front of it to prevent it from tipping over, and the plaintiff was standing on three of them to reach up to the top. He was loosening one of the straps that held the image to the frame so he could paint underneath it. He had been provided a cherry picker, a safety harness and landyard, and two ladders.

The Court found that the defendant had properly made a showing, by means of an expert, that the defendant had provided via testimony of an executive of the defendant's corporation that he had seen a worker using a cherry picker to change the billboard, and via expert submission that the plaintiff could have used the billboard's frameworks to tie off the landyard of the safety harness.

The dissent, however, found that the defendant executive's testimony didn't rise to the level of raising an issue of fact, as the testimony did not establish that the cherry picker that the executive had seen or the work that had been done using said cherry picker was the same as the plaintiff's situation. Furthermore, the dissent found as a matter of law that the expert's statements were conclusory as although the expert identified spots where the landyard could be tied off, the expert failed to include physical properties of those spots necessary to support plaintiff's weight if he fell and the steps he used to identify those spots. Therefore, the dissent found that the evidence adduced would not reach to the level of rebutting plaintiff's proof.

Robert McCullough v. One Bryant Park, et al.

This labor law and common-law negligence case involved a construction worker who was passing from an exterior roof to an interior room. He stepped into an uncovered "drain hole" and fell to the floor. The Court reversed the granting of summary judgment in favor of One Bryant against the plaintiff on two grounds. First, the doorway was considered a passageway for the purpose of proving a Labor Law 241(6) violation of 12 NYCRR 23-1.7(e)(1). Second, just because the defendants lacked supervisory control over plaintiff's work, they could not be dismissed from common-law negligence claims because the injuries arose from the condition of the workplace, rather than the method used in performing the work, and they failed to make a prima facie case showing that they lacked constructive notice of the uncovered drain hole.

Eduardo Velasquez v. MTA Bus Company

In this case, the plaintiff, on his bicycle, was struck when the defendant bus driver changed lanes. Even though the plaintiff was in the middle lane of traffic, and the bus driver was trying to switch to the left lane of traffic to pass the bicycle, by the defendant driver's own admissions it made a prima facie case of negligence and the plaintiff won on summary judgment.

Mark Walker v. Robert C. Whitney, III

In this threshold motion, the plaintiff's case was dismissed at the Supreme Court and affirmed by the Appellate Division. The defendant submitted reports of an orthopedist and neurologist who found full range of motion, and a radiologist which found degenerative diseases and no evidence of causally related injury. In opposition, the plaintiff failed to properly submit admissible evidence. The unaffirmed MRI findings, which would not be admissible anyways, failed to explain how mild hypertrophic changes of the AC joint could be explained by traumatic injury rather than degeneration. The medical records reviewed by defendant's experts in preparation for their exams were also properly held out. The only admissible evidence was a review by plaintiff's orthopedic surgeon shortly after his arthroscopy, which failed to provide measurements of the decreased range of motion in the left shoulder, and did not provide evidentiary support for a statement that plaintiff's shoulder condition was related to the accident, or address the defendants' experts that any shoulder injury was not due to ongoing pathology and degenerative changes.


Thursday, October 1, 2015

1st Judicial Department, Appellate Division Roundup: September 29, 2015 Edition

The 1st Department is issuing a significant number of decisions against, but most of them on September 29, 2015 dealt with criminal appeals. However, there were a few cases involving personal injuries:

Golubowski v. City of New York, et al. and 150 Williams Street Associates, L.P. et al.

The plaintiff, a plumber, was dismantling pipes in a building owned by the defendant, 150 Williams Street. He was on a ladder, and a leaky overhead sprinkler system was dripping water down on top of him. The ladder became wet and slippery, and he slipped and fell and sustained personal injuries. The plaintiff won his summary judgment motion, because the defendants provided him the ladder, and the scaffold that the defendants already provided was in use by plaintiff's co-worker and unavailable for the particular project.

In re Jacobs v. New York State Division of Human Rights

On July 17, 2013, the New York State Division of Human Rights found that Mr. Jacobs had engaged in housing discrimination based on age and discrimination, and had caused mental pain and suffering and punitive damages to the woman that was discriminated against. In all, Jacobs had to pay $75,000.00 in damages, $20,000.00 to the woman he discriminated against. Furthermore, it was confirmed that compensatory damages for mental pain, suffering, and anguish in a housing discrimination case was proper.

PRACTICE TIP: Kenneh v. Jey Livery Service

This case arose out of a discovery dispute in a personal injury action. Jeh Livery Service had filed a motion demanding that plaintiff provide HIPAA-compliant authorizations for production of medical records relating to the plaintiff's pre-existing diabetic condition. The plaintiff, however, never put his diabetic condition at issue by arguing anxiety or other symptoms following the accident. The plaintiff only alleged injuries to his right knee, shoulders, and spine. Therefore, the 1st Department found that the discovery relating to the diabetic condition was improper and affirmed the denial of the defendant's motion.

Tuesday, September 15, 2015

1st Department Alert: $100k too low for permanent hand injury

In the recent case of Kutz v. Bovis, decided by the 1st Department Appellate Division on September 8, 2015, a jury in Manhattan, also known as New York County, had awarded $100,000 to a tile finisher who had tripped and fallen over construction debris at a building site. He had received nerve damage to his left hand, including symptoms consistent with reflex sympathetic dystrophy and significant limitation of the use of his left hand due to permanent contracture of the fingers.

The Court found that:

A) The jury should have awarded the plaintiff something for loss of consortium. The plaintiff's behavior changed after the injury and it had impacted his relationship with his significant other. The 1st Department awarded the plaintiff's significant other $50,000.00 for loss of consortium.

B) Based on other decisions regarding serious injuries to the hand and associated depression, the award of $100,000.00 was too low. The 1st Department increased it to $400,000.00.

In short, because the plaintiff's trial attorneys took the time and effort to appeal the jury verdict to the 1st Department, the plaintiff's award was increased from $100,000 to $450,000. While this is only one case, and prior results do not guarantee similar outcomes, you and your clients should be sure to consult with the best trial lawyers that they can to ensure to maximize recovery.

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