In Koehler v. Bank of Bermuda LTD (June, 2009), the Court of Appeals, in answering a question certified by the Second Circuit, has made New York a viable enforcement venue when a judgment creditor can establish a New York presence for any entity that controls the property of a judgment debtor. In Koehler, the plaintiff had secured a $2,000,000.00 Federal judgment against the defendant from a Federal Court in Maryland. Neither party was a New Yorker and the only connection with New York was the Bank of Bermuda, which had a branch located in the State of New York. The debtor in Koehler had certificates of stock on deposit with Bank of Bermuda and the debtor pledged these certificates as collateral for an unrelated loan provided by Bank of Bermuda to the judgment debtor. This made Bank of Bermuda a garnishee, according to the Court of Appeals, thus allowing for the application of CPLR §5225(b) providing for a "turnover" order of the stock. Once properly obtained, the turnover order directed the garnishee to give the designated property (or its value in money) to the plaintiff or to the sheriff for sale and conversion into money in order to pay the plaintiff.

In Passante v. Agway Consumer Products, Inc. (May, 2009), the Court of Appeals was faced with the issue of whether the omission of a lock on a dock leveler at the request of the purchaser amounted to a design defect as a matter of law sufficient to impose strict liability against the manufacturer. The plaintiff was injured when he fell off a dock leveler, which was bridging the gap between a loading platform and a backed-up truck. The dock leveler was purchased without a locking device at the choice of the buyer for economic reasons. The lock would have prevented a hinged "lip" on the gate from shifting and thereby precipitating the incident. The majority of the Court held that whether the lock had to be incorporated into the device as a matter of basic design rather than just offered as an option was an issue of fact properly left for a jury.

In Scaparo v. Village of Ilion, et al. (4th Dept., July, 2009), the plaintiff commenced a Labor Law action seeking damages for injuries sustained by a Village employee who was injured in the course of an installation of a sewer lateral. At the time of the accident, the plaintiff was in a trench installing a sewer lateral when the trench collapsed. The property on which the lateral was being installed was owned by a county industrial development agency and not by the church which contracted for the work to be done. The Court held that the plaintiff's complaint was properly dismissed against the church as it was not an "owner" as contemplated by New York Labor Law §241(6). Since the church was not the property owner, it was immune to Labor Law liability for the accident even though it benefited by and contracted for the work.

In Terwilliger v. Max Co., LTD (4th Dept., July, 2009), the plaintiff was injured when he was struck by a nail discharged from a pneumatic nail gun. The plaintiff demanded various items through discovery including trade secrets relating to the design, manufacture, testing, and inspection processes of the manufacturer. The manufacturer refused to produce these materials and the plaintiff moved to compel production. The Court held that although these materials sought were indeed trade secrets, they were discoverable in the action as the plaintiff demonstrated that the items were indispensable to their case and were otherwise unavailable if not obtained from the defendant. The Court ordered the production of the documents, but directed a Confidentiality Agreement between the parties related to the discovery.

In Strnad v. Garvin, et al. (4th Dept., July, 2009), the plaintiffs commenced two actions seeking recovery for property damage as a result of a fire that occurred on property owned by defendant Garvin. The Trial Court denied the defendant's motion for summary judgment dismissing the complaint. The Appellate Division held that the defendant met his initial burden on the motion by establishing that his acts did not cause the fire, but that the fire was caused by a tenant's careless smoking. Although the plaintiff raised an issue of fact whether the smoke detectors in the building were inoperable at the time of the fire, the Appellate Division held that summary judgment was appropriate for the defendants as the plaintiff failed to raise an issue of fact as to whether the absence of operable smoke detectors was a substantial factor in causing the fire to spread and thus did damage to the property.

In Buckmann v. State of New York (4th Dept., July, 2009), the plaintiff commenced a Labor Law action seeking damages for injuries sustained when she fell from an elevated platform while repairing a non-functioning signal lamp at a lock on the Erie Canal. The Trial Court denied the plaintiff's motion for partial summary judgment with respect to Labor Law §240(1) cause of action, stating that the plaintiff was not engaged in "repair" work as contemplated by the Labor Law. The Appellate Division reversed the Trial Court on this issue, holding that the plaintiff was engaged in repair work and not routine maintenance work at the time of the accident. The plaintiff had established that the signal light was not functioning because of a broken lens and that type of lens typically did not require replacement as a result of normal wear and tear. Therefore, this work was deemed "repair" work, thus rendering Labor Law §240 (1) applicable.

Prepared by Michael M. Chelus