In Wilinski v. 334 East 92nd Housing Development Fund Corp., et al. (Ct. of Appeals, October 25, 2011), a worker brought an action against a building owner and others seeking to recover for injuries allegedly sustained while engaged in demolition. Plaintiff was struck in the head by unsecured pipes that were left standing following the removal of floors and ceilings. The pipes were set in motion by debris from another wall undergoing demolition. The trial court granted summary judgment in favor of the worker on the issue of liability, stating the plaintiff suffered a gravity-related injury while demonstrating the absence of protection required by Labor Law § 240(1). The trial court denied defendants' cross-motion for summary judgment dismissing the complaint. The Appellate Division, First Department, modified the order. Summary judgment on behalf of the plaintiff was reversed and plaintiff's Labor Law § 240(1) claim was dismissed. The Appellate Division, First Department concluded that since both the pipes and plaintiff were at the same level at the time of the collapse the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability. Leave to appeal to the Court of Appeals was granted.

Upon review the Court of Appeals remanded the entire case for further proceedings. The Court held under Labor Law §240(1), a worker who sustains an injury caused by a falling object whose base stands at the same level as the worker is not categorically barred from Labor Law § 240(1) recovery. The Court noted that § 240(1) commonly referred to as the Scaffold Law imposes absolute liability on building owners and contractors who fail to provide reasonable and proper protection to workers from gravity related accidents that proximately cause injury to a worker. Here, it was held that the worker was not precluded from recovery under the Scaffold Law even though the worker and the pipes were on the same level. The four-inch diameter metal pipes stood approximately ten feet high, which then toppled over, due to gravity, striking the worker. This gravity related risk was determined by the Court of Appeals to be the type of hazard against which § 240(1) required adequate protection. On remand, the factual issue to be resolved was whether the worker's injuries were proximately caused by the lack of a safety device.

In Salazar v. Novae Contracting Corp., et al. (Court of Appeals, November 21, 2011), a worker filed an action against a property owner and others seeking to recover damages under New York's Scaffold Law, Labor Law § 240, requiring the erection of scaffolding and other devices to give proper protection in construction areas. The plaintiff was working in the basement of a building being renovated. The basement had a trench system for piping. The plaintiff and other workers were laying a concrete floor and were instructed to pour and spread concrete over the entire basement floor, including into the trenches. Prior to beginning work, the plaintiff looked for and located the trenches. While spreading the concrete with a rake, the plaintiff was walking backward across the floor. While looking forward rather than in his direction of motion, the plaintiff's right foot hit the bottom of the trench and his right leg folded beneath him, causing injury. Upon motion, the trial court dismissed the complaint and, upon appeal, the First Department reversed. The Court of Appeals granted leave to appeal.

The Court of Appeals held that "[t]he kind of accident triggering coverage under the Scaffold Law would require the erection of safe scaffolding or other devices which give proper protection and will sustain the allegation that an adequate scaffold, hoist, stay, ladder or other protective device would have shielded the injured worker from harm directly flowing from the application of the force of gravity to an object or person." Here, the property owner's failure to cover or barricade the trench did not expose the worker to an elevation-related risk because the worker was directed to pour and spread concrete over the entire basement floor including filling the trenches. The Court found it to be illogical to require placement of a protective cover over the trench when the goal of the work was to fill that trench with concrete.

In Lipson v. City of Syracuse, et al. (Court of Appeals, October 13, 2011), the executor of a deceased pedestrian's estate brought a negligence action against the City of Syracuse and the motorist whose vehicle struck and killed the pedestrian. Defendant Klink was the driver of an automobile that struck and killed a pedestrian while the pedestrian was crossing the street. Klink claimed the accident occurred when he was temporarily blinded by sun glare after making a left-hand turn. Klink had been stopped at a stop sign with a partially obstructed view of oncoming traffic due to parked cars. Klink was aware of the pedestrians crossing but had testified that he looked in that direction and the area was clear before making the turn. The trial court gave the jury an emergency doctrine instruction. Klink was found not negligent. The Appellate Division affirmed that the emergency instruction was properly given. Leave to appeal was granted by the Court of Appeals, which then held that sun glare which temporarily blinded the defendant when turning into setting sun was not a qualifying emergency that could support an instruction on the emergency doctrine. The Court held that it is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one's vision as the sun nears the horizon at sunset, particularly when an individual is heading west as in the case before it.

In Cadichon v. Facile (Court of Appeals, November 21, 2011), a medical malpractice action was brought stemming from injuries sustained by plaintiff during surgery in 2002. A discovery order by stipulation directed plaintiffs' counsel to file the note of issue on or before December 27, 2007. Together with the stipulated discovery order plaintiffs' counsel were also served by the trial court with a "Demand for Service and Filing of Note of Issue" which stated, "Your default in complying with this demand within the 90-day period will serve as a basis for the Court, on its own motion, to dismiss the action for unreasonably neglecting to proceed."

Unbeknownst to the parties the action was dismissed on December 31, 2007, by the county clerk's office when plaintiffs failed to file the note of issue on December 27th. The trial court then failed to inform any of the parties of the case's dismissal. Parties attempted to schedule depositions for the first few months of the new year. In March 2008, when one of the defendants moved to dismiss the action, their papers were returned by the clerk's office since the case had been dismissed. This was the first that the litigants knew of the dismissal.

The trial court denied plaintiffs' motion to vacate the dismissal and the Appellate Division affirmed in a 3-2 decision. Given two dissents at the Appellate Division, plaintiffs were entitled to appeal as of right to the Court of Appeals. The Court of Appeals reinstated the action. The Court held that there was no evidence in the record, such as an order, that the trial court made a motion or decision to dismiss the action. Rather it appeared that the dismissal was a ministerial act of the clerk. The Court of Appeals held that applicable rules of civil procedure do not sanction dismissal of an action in such a fashion. The trial court, with notice to the parties, should have made the decision concerning the fate of the case, not someone in the clerk's office.

In Tennant v. Tabor (4th Dept., Nov. 10, 2011), a motorist brought personal injury action against horse owners seeking damages for motorist's injuries sustained when his vehicle collided with a horse. The trial court denied horse owners' motion for summary judgment, but the Appellate Division reversed. The Appellate Division dismissed the action holding that regardless of provisions of the New York State Agriculture and Markets Law which arguably require that shelter be provided to a domestic animal, the violation of that statute would merely be evidence of negligence. Negligence is not the appropriate standard in the absence of evidence that the horse, a domestic animal, previously exhibited dangerous propensities i.e. in this case a propensity to interfere with traffic.

In Milosevic v. O'Donnell, et al. (1st Dept., November 29, 2011), an employee brought an action against their employer and the employer's CFO for alleged injuries sustained when the employee was struck by the CFO at an office party. The trial court granted employer's motion to dismiss the plaintiff's action against it for failure to state a claim, which was unanimously affirmed by the First Department upon appeal. The assault was not within the scope of the CFO's duties and there was no evidence that the assault was condoned, instigated or authorized by the employer. The plaintiff's co-worker was not alleged to have been acting within the scope of his employment when he attacked the plaintiff, nor was the alleged assault precipitated by a work-related issue. The plaintiff was unaware of any violent propensities of the co-worker when the co-worker was intoxicated or of the possibility of an assault.

Prepared by Christopher R. Poole