This November the New York State Court of Appeals held that vicarious liability under New York State Labor Law §241(6) may not be based on a violation of Part 12 of the Industrial Code. In Nostrom v. A.W. Chesterton Company (2010), the plaintiff contracted mesothelioma after allegedly being exposed to asbestos after a lifetime working as a boilermaker. The plaintiff commenced action against more than 60 defendants and alleged a violation of New York State Labor Law §241(6). Since the moving defendants did not direct or control the plaintiff's work, they could only be liable if Labor Law §241(6) applied. Section 241(6) requires owners and contractors to comply with the Commissioner of Labor's rules regarding code regulations which contain a specific command. The 241(6) claim was premised solely on violations of Part 12 of the Industrial Code which addresses air contamination. In ruling that Part 12 violations could not form the basis of a Labor Law §241(6) action, the Court of Appeals compared Part 12 with Part 23 of the Industrial Code. Part 23 of the Industrial Code expressly states that it applies to "owners, contractors and their agents obligated by the Labor Law to provide such persons with safe working conditions and safe places to work." Part 12 does not specify that its rules apply to owners, contractors and agents. According to the Court of Appeals, the absence of such language suggests that Part 12 was not created to form the basis of a Labor Law §241(6) claim. The Court of Appeals held that there is only one limited circumstance when the plaintiff may bring a 241(6) claim based on a violation of a Part 12 rule. That is when the injury occurs in an "unventilated confined area" thereby triggering the §23-1.7(g) pass through provision which specifically references the provisions of Part 12 regarding air contaminants. Due to the Court's ruling, the Court of Appeals affirmed the Appellate Division decision which dismissed the plaintiff's §241(6) claim.

The plaintiff in Betz v. Town of Mount Morris, (4th Dept., November 12, 2010), commenced an action against the Town of Mount Morris after she suffered a head-on collision on a road owned and maintained by the municipality. In her complaint, the plaintiff alleged the Town was negligent in failing to design the road in a manner safe for public travel and in failing to post adequate signage and warnings. One of the municipality's arguments in support of its motion for summary judgment was that it did not receive prior written notice of any defect in the design of the road or its traffic control signs. The Appellate Division held that Town Law §65-a, which requires towns receive prior written notices of defects, did not apply to plaintiff's claims against the Town concerning the design of the road and the failure to post adequate signage and warnings.

The plaintiff in Lorenti v. Stickle Construction Company, (4th Dept. November 12, 2010), commenced an action for injuries he sustained while installing siding on a home under construction. Plaintiff moved for partial summary judgment on liability under Labor Law §240(1) and met his burden by establishing that the absence of a safety device was the proximate cause of his injuries. The defendant failed to establish that the plaintiff's actions were the sole proximate cause of his injuries. Specifically, the Fourth Department held that the defendant did not present any evidence to support such a contention. All that was put forth in opposition to the plaintiff's summary judgment motion was an allegation by the defendant that the plaintiff "should have utilized a ladder as a safety device." However, no evidence was put forth regarding that allegation and the Fourth Department granted the plaintiff's motion.

In McCormick v. 257 West Genesee LLC, (4th Dept., November 12, 2010), the plaintiff suffered injuries after he fell at a construction site. The plaintiff's complaint alleged that the owner violated §200 of the Labor Law which is a codification of the common law duty to maintain a safe construction site. In support of its motion for summary judgment, the defendant established that this particular owner exercised no supervisory control over the operation. At most, the owner monitored and oversaw the timing and quality of the work being performed which is insufficient to raise an issue of fact with respect to the supervision or control aspects of New York State Labor Law §200.

In Pfaffenbach v. Nemeck, (4th Dept., November 12, 2010), the plaintiff commenced a Labor Law action against the defendant after he fell from a ladder while installing plywood in the defendant's home. The Fourth Department overturned the lower court's ruling and dismissed the plaintiff's complaint. The Fourth Department held that since the homeowner "neither directed nor controlled the plaintiff's work," it was entitled to the homeowner exemption under Labor Law §240. That section exempts owners of one and two family dwellings who do not direct or control the plaintiff's work from the requirements under Labor Law §240.

In McCann v. Harleysville Insurance, (4th Dept., November 12, 2010), the plaintiff commenced action against Harleysville Insurance for supplementary underinsured motorist coverage following a motor vehicle accident. During discovery, Harleysville made a motion to compel the plaintiff to produce certain photographs and an authorization for the plaintiff's Facebook account. The plaintiff cross-moved for a protective order. The Fourth Department affirmed the lower court's denial of Harleysville's motion to compel and held that such a request would amount to a "fishing expedition" of plaintiff's Facebook account. However, the Fourth Department did hold that the lower court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff's Facebook account at a future date. Implied in the Court's decision is that such discovery may be relevant upon a showing of particular relevancy.

In Herdendorf v. GEICO, (4th Dept., October 8, 2010), the policyholder, plaintiff's father, contended that he made a specific request for supplementary underinsured motorists (SUM) coverage in an umbrella policy to the insurer's salesperson. In support of its motion for summary judgment, the insurer established that the type of coverage was not even offered by the company in New York State and that even if it had been requested the customer would have specifically been told it was not available. The plaintiff was able to defeat summary judgment by producing an affidavit from the policyholder that alleged a specific request was made when he spoke with the salesperson. Based on this one affidavit, a triable issue of fact was raised whether the defendants breached their duty to the policyholder by failing to obtain the requested coverage.

Prepared by Kevin E. Loftus