Reed v. NEA Residential, Inc. (4th Dept., July 2009) involved a Labor Law action arising out of the construction of a single-family residence. The owners of the property had contracted with defendant NEA Residential, Inc. to be the project coordinator for the construction project, however the plaintiff's employer, a drywall contractor, had contracted directly with the homeowner. NEA moved for summary judgment on plaintiff's Labor Law claim under §241(6). Judge Kloch (Supreme Court, Niagara County) found a question of fact on the issue and denied the motion for summary judgment. Surprisingly and unfortunately from a defense point of view, the Fourth Department, finding a triable question of fact as to whether NEA was invested with the power to enforce safety standards and hire subcontractors, affirmed the order. This is troubling as the project coordinator was not a general contractor and did not contract with the plaintiff's employer, yet was kept in the case.

Similarly, in Mergenhagen v. Dish Network Service, LLC (4th Dept., July 2009), the plaintiff was injured in a fall from a residential roof while installing a satellite dish. The plaintiff's employer was a subcontractor of Dish Network. The plaintiff moved for summary judgment under Labor Law §240(1) which was granted by Judge Sedita. The Fourth Department affirmed, holding that the defendant Dish Network was a general contractor within the meaning of that statute. The Court held that defendant Dish Network had the power to enforce safety standards and to use responsible subcontractors, and that their right to exercise such control was sufficient to impose absolute liability whether or not they in fact exercised such control. Clearly, any expansion of Labor Law §240(1) is troubling from a defendant's perspective.

In a decision difficult to square with those discussed above, the Fourth Department dismissed all claims of a Labor Law case against three defendants in McNabb v. Oot Bros., (4th Dept., July 2009). Plaintiff McNabb was injured while walking on stilts after he tripped over an electrical cord. The incident occurred during the construction of a house being built by defendants Mr. and Mrs. Place. The Places contracted with defendants Oot Bros., Inc. and Build Your Own Home, LLC for consulting services in connection with design and construction of the house. The plaintiff brought suit alleging violations of Labor Law §§ 200, 241(6) and 240(1) as well as common law negligence. The Fourth Department found that neither Oot nor Build Your Own Home served as general contractors or agents of the owners and were thus entitled to summary judgment. The Places were not subject to Labor Law liability as owners because of the exception for one- and two- family homes. The Court held, however, that the Places acted as their own general contractors. Nevertheless, the Fourth Department also found that the Places were entitled to summary judgment because "the Places established that they did not control or direct the manner in which the plaintiff or his employer performed the installation work in the house . . . even though the Places were present at the construction site from time to time and hired subcontractors to perform certain work." Here, it seems actual direction and control, not the authority to direct and control, is the standard. Again, this decision is difficult to square with others decided just a week prior.

In Rigby v. The Brisky Family Limited Partnership, (4th Dept., July 2009), the plaintiff commenced a Labor Law action including Labor Law §240(1) claims for injuries sustained while he was positioned on top of a pallet 16 feet above the ground. The plaintiff was guiding a truss into place as it was being lifted by a forklift. The plaintiff injured his groin while attempting to lift the truss. The Fourth Department found that this was not a case which could give rise to Labor Law §240(1) liability. The Court explained that the plaintiff was not injured in such a way that a safety device would have prevented his injury.

In the landmark case, Espinal v. Melville Snow Contractors, (98 N.Y.2d 136), a snowplow contractor was found not to have a duty to a plaintiff injured in an area where the snowplow contractor had previously plowed. This general rule was narrowed somewhat by the Fourth Department in Meyers- Kraft v. Keem (4th Dept., July 2009). Under facts rather similar to Espinal, the defendant in Meyers-Kraft was a snowplow contract who had no contractual relationship with the plaintiff. As such, the Court agreed that this was a case subject to the three exceptions to the general rule that a party to a contract is not liable in tort to third persons as spelled out in Espinal. However, in Meyers-Kraft, there was testimony of a chiropractor with an office near the accident scene that snow was spread out across the sidewalk where the plaintiff purportedly fell. The Fourth Department felt there was a question of fact as to whether the snowplow contractor, in plowing the parking lot, had knocked some snow onto the sidewalk area. This was sufficient to create a question a fact as to whether the defendant snowplow contractor had "launched the force or instrument of harm" for a potential tort liability.

Another troubling development for the defense came in Gitchell v. Corby, (4th Dept., July 2009). There, the infant plaintiff was injured when struck by a vehicle driven by defendant Corby. Corby was a member of Race Services, Inc., a volunteer organization that agreed to provide services at defendant Watkins Glen Race Track's facility. While at a training seminar on Watkins Glen premises, Corby struck the infant plaintiff with his vehicle. Despite the fact that Corby was a volunteer of another organization and driving his own vehicle, the Fourth Department found a question of fact as to whether Corby was an employee of Watkins Glen for purposes of respondeat superior liability.

In the Matter of Carmen I. Falzone and New York Central Mutual Fire Insurance Company, (4th Dept., July 2009), involved a claim for SUM benefits brought to arbitration. Previously, there had been an arbitration with regard to no-fault benefits. The former arbitration had found the claimant's injuries to be related to the subject motor vehicle accident. The SUM arbitrator found that the plaintiff's injuries were not related to the subject motor vehicle accident and declined to make an award. The claimant brought an Article 75 proceeding seeking to vacate the SUM decision, arguing that the no-fault arbitration, with the same carrier, had a res judicata effect. Judge Burns agreed with the claimant and New York Central Mutual appealed. In a 3-2 decision, the Fourth Department agreed with New York Central and reinstated the SUM decision. As the dissenting justices point out in the published opinion, this is a considerable departure from prior case law. In the past, no-fault arbitration decisions have been found to have a res judicata effect in subsequent proceedings so long as the same parties are involved. It is likely that the claimant will appeal to the New York State Court of Appeals.

In Perry v. Town of Geneva, (4th Dept., July 2009), the plaintiff, Clyde Perry, was injured after his ATV struck some logs that had been left on the property by defendant's employees. The plaintiff there repeatedly failed to provide a response to defendant's demand for a bill of particulars. The defendant moved to preclude plaintiffs from giving testimony as to any matters which would have been disclosed in the bill of particulars. The motion was granted and the case was effectively over for the plaintiff. On appeal however, the Fourth Department found that preclusion was too drastic a remedy and instead issued a 15-day conditional order and charged the plaintiff $1,500.00 as sanction.

Prepared by Scott R. Orndoff