In Carlson v. Porter, et al, 53 A.D.3d 1129, 861 N.Y.S.2d 907 (4th Dept., 2008), the Appellate Division, Fourth Department, reversed the holding of the trial court in granting the post-trial motion of the defendant, DHL Worldwide Express. In this matter, DHL, represented by Chelus, Herdzik, Speyer & Monte, P.C., had a cartage agreement with the co-defendant, MVP, who was the employer of the defendant, William Porter.

During the trial, the defendant, Porter, testified that he was at home on his scheduled break. After receiving a call from his son (who was in a motor vehicle accident five miles away), Porter took the MVP - owned delivery van to the accident site to repair his son's vehicle. DHL, who was found liable at the trial court level under the theory of respondeat superior, moved to dismiss on the basis that Porter was acting outside the scope of his employment when he was involved in an automobile accident while driving to his son's vehicle.

Although these facts were not in dispute, the trial court denied DHL's motion for summary judgment. The Appellate Division, Fourth Department, reversed this finding and granted DHL's motion, thus dismissing the complaint as against DHL.

In Sanatass v. Consolidated Investing Company, Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67 (2008), the defendant, Consolidated Investing, owned a commercial building in Manhattan. The eleventh floor of this building was occupied by a tenant, C2 Media, LLC. In January, 2000, C2 Media hired JM Haley Corporation to install a commercial air conditioning unit on their floor. In this case, JM Haley was hired without notifying Consolidated Investing, as required by the lease.

The plaintiff, Christopher Sanatass, an employee of JM Haley, was injured when a material lift failed and dropped the air conditioning unit on top of him, causing him to sustain injuries. As a result, plaintiff and his wife commenced an action under New York Labor Laws §240(1) and §240(6) against Consolidated Investing and other parties.

The New York Court of Appeals decided that the act of installing a commercial air conditioning unit was an "alternation" such as it did not encompass "simple, routine activities such as maintenance and decorative modifications" which would not be covered under §240 (1).

More importantly, the Court of Appeals analyzed the issue of whether Consolidated Investing was an "owner" within the meaning of the Labor Law §240 (1) since it had no notice or control over the work. Consolidated Investing was not aware that the work was being performed. Additionally, Consolidated Investing's lease with C2 Media specifically forbade any "renovations, decorations, additions, installations, improvements and/or alterations of any kind" on the premises without the owner's consent.

Despite these facts, the Court of Appeals ruled that Labor Law §240(1) does not contain a lack of notice exception to owner liability, further stating that all that is required for "absolute or strict liability" is a violation of the statute that proximately results in injury. As a result, the Court of Appeals reversed the order of the Appellate Division and granted the plaintiff's motion for partial summary judgment.

In McGill v. United Parcel Service, Inc., 53 A.D.3d 1077, 861 N.Y.S.2d 887 (4th Dept., 2008), the plaintiff, Alberta McGill, allegedly tripped and fell over a package placed on her front porch by a United Parcel Service employee. In this case, the trial court granted the defendant's motion for summary judgment dismissing the complaint on the basis that the plaintiff, at her deposition, was not able to state what caused her to fall.

Despite the testimony of the plaintiff's daughter indicating that there was a footprint on the package, the trial court still viewed the cause of the accident as "pure speculation" noting that there was no evidence to establish that the footprint matched plaintiff's footprint.

As a result, the Appellate Division, Fourth Department, upheld the trial court's dismissal of the plaintiffs summons and complaint.

In Ganger v. Anthony Cimato, et al, 53 A.D.3d 1051, 862 N.Y.S.3d 678 (4th Dept., 2008), the plaintiff was injured performing roofing work on a home under construction when he fell through a skylight hole that had been covered over with roofing felt.

At the trial court level, the plaintiff moved for partial summary judgment under Labor Law §240(1) against the owners and contractors. Although the defendants contended in opposition to the motion that the conduct of the plaintiff was the sole proximate cause of his injuries, the trial court nevertheless felt that the plaintiff met his burden by establishing that the absence of the safety device was the proximate cause of his injuries.

The defendants contended that the plaintiff should have covered the skylight holes with scaffolding planks, but presented no evidence that they provided the planks to the plaintiff or instructed him to use them to cover the skylight holes. Furthermore, the defendants failed to establish that the plaintiff's "normal and logical response" should have been to retrieve the scaffolding planks. The defendants also failed to demonstrate that the plaintiffs' training, prior practice or common sense would have made him realize that he should have used the scaffolding planks to cover the skylight hole.

In dismissing the defendants' arguments in this regard, the Appellate Division, Fourth Department, upheld the trial court's granting of the plaintiff's motion for partial summary judgment under Labor Law §240 (1).

In Cook v. Consolidated Edison Company of New York, Inc., 51 A.D.3d 447, 859 N.Y.S.2d 117 (1st Dept., 2008), the plaintiff while walking in front of a restaurant, tripped and fell in a gap between two shunt boards that had been placed by Con Edison in front of the restaurant to cover temporary wires laid by Con Edison to restore electricity to the premises. The trial court found that there were questions of fact as to whether the placement of the shunt boards constituted a special use of the sidewalk by the tenant and owner for whom the work was being performed such as it would give rise to a duty upon the tenant and owner to maintain this "provisional sidewalk structure". The trial court also found that the owner had a statutory non-delegable duty to maintain the sidewalk under the Administrative Code of New York City.

The trial court further found that there were questions of fact as to whether the alleged gap between the shunt boards was so open and obvious as to relieve the owner and tenant of any duty to warn of the hazard.

Based upon these questions of fact, the trial court denied the motions of the owner and tenant of the restaurant for summary judgment. On appeal, the Appellate Division, First Department, upheld the trial court's decision in this regard.

Prepared by Michael J. Chmiel