"Shanah Tovah" to all our friends who have just celebrated Rosh Hashanah and Yom Kippur.
In the spirit of the season, the Appellate Division Second Department issued a decision on September 12, 2012 (
McCoy v Kirsch 2012 NY Slip Op 06128) involving a question as to whether a chuppah, is a "structure" under the New York State Labor Law.
A chuppah is a canopy under which a Jewish couple stand during their wedding ceremony. It consists of a cloth or sheet, stretched or supported over four poles, or sometimes manually held up by attendants to the ceremony. A chuppah symbolizes the home that the couple will build together. A chuppah is still considered a basic requirement for a Jewish wedding.
Here the injured worker sought the protections of Labor Law § 240(1). The facts were described as follows:
"In the early morning of August 24, 2008, after the wedding celebration had ended, the plaintiff was disassembling the chupah, which was owned by Atlas. The chupah was a 10-foot-high device made of pipe, wood, and a fabric canopy at its top. The chupah's frame consisted of metal pipes that were 10 feet long and 3 inches wide, assembled to each other, and its vertical supports were attached to 4 steel plates on the floor. The plaintiff worked on disassembling the chupah from a six-foot high aluminum ladder supplied by his employer, on which two feet allegedly were missing. To perform the disassembly, the plaintiff was required to use a pipe wrench, a florist knife, wire cutters, and the ladder. A few minutes into disassembly, while a coworker was holding the ladder and the plaintiff was standing on the third rung from the top of the ladder, the ladder slipped and the plaintiff fell to the floor, sustaining injuries."
The Court was faced with a case on point from the First Department
Stanislawczyk v 2 E. 61st St. Corp., 1 AD3d 155 (2003), which held that a decorated wooden disk that had been suspended for use as a ceremonial canopy at a wedding, was not a "structure" under Labor Law § 240(1). Judge Dillon, writing for the unanimous panel, indicated, "We find that in this case and upon consideration of all relevant factors, the Supreme Court properly held that the chuppah at Abigail Kirsch was a "structure" within the intended scope of Labor Law § 240(1). In this action, the chuppah consisted of various interconnected pipes 10 feet long and 3 inches wide, secured to steel metal bases supporting an attached fabric canopy. A ladder plus various hand tools were required to assemble and disassemble the chuppah's constituent parts in a process that would take an experienced worker more than a few minutes to complete. The chuppah here is more akin to the things and devices which the courts of this state have recognized as structures than to the things and devices that have not been recognized as structures." However, just like the perfect Talmudic argument, the Court also ended saying, "This is not to say that every chuppah qualifies as a structure under Labor Law § 240(1)." FERSHTAY?
Read the decision here. _____________________________________
"Electronic Signatures" by Physicians on medical reports are specifically allowed by New York State Law. State Technology Law § 304(2) provides that "unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand" (see
Wen Zong Yu v Charles Schwab & Co., Inc., 34 Misc 3d 32, 937 N.Y.S.2d 527 [2011]; People v Johnson, 31 Misc 3d 145[A], 930 N.Y.S.2d 176, 2011 NY Slip Op 50933[U][2011]; Alpha Capital Anstalt v Qtrax, Inc., 26 Misc 3d 1234[A], 907 N.Y.S.2d 435, 2010 NY Slip Op 50366[U][2010]).
CPLR 2106, which provides for affirmations by attorneys, physicians, osteopaths and dentists does not specifically provide that an electronic signature may not be used and that the signature may only be affixed by hand. (See
Martin v Portexit Corp., 98 A.D.3d 63 First Department June 21, 2012)
Logic would dictate therefore the electronic signature of a physician would be accepted by all the Courts in New York. Logic you say; what about No-Fault litigation, does LOGIC creep in anywhere?
Vista Surgical Supplies, Inc. v Travelers Insurance Company 50 A.D.3d 778 Second Department (2008) put the kibosh on electronic signatures in PIP litigation, with the holding: "Contrary to the defendant's contention, the Appellate Term properly determined that the peer review reports submitted in opposition to the plaintiff's motion for summary judgment on the complaint were inadmissible since they contained computerized, affixed, or stamped facsimiles of the physician's signature. These reports failed to comply with CPLR 2106, since they were not subscribed and affirmed, but merely contained facsimiles of the physician's signature without any indication as to who placed them on the reports, nor are there any indicia that the facsimiles were properly authorized (citations omitted)."
Fast forward to September 5, 2012 and the decision of the Appellate Term, Second Department in
Alpha Medical Supplies as assignee of Roberto Bueno v. Geico, (2012 NY Slip Op 51765U) citing a string of Appellate Term decisions inapposite to Vista Surgical Supplies, states, "Plaintiff asserts that the peer review reports contained electronic stamped facsimiles of the peer reviewers' signatures and, as a result, the reports are inadmissible. However, the record indicates that the signatures were placed on the reports by the doctors who had performed the peer reviews or at their direction (citations omitted)."
LOGIC indeed; what a comeback !
Read the decision here. ________________________________
The Appellate Division, First Department decision of
Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198, 895 N.Y.S.2d 389 [2010]), marked a new trend regarding plaintiffs' motions for summary judgment on the issue of liability. If a plaintiff moved for summary judgment on the issue of liability and demonstrated that the defendant's conduct was a "substantial factor", regardless of the plaintiff's conduct, the plaintiff would be entitled to a "judgment" that the defendant was negligent in the matter. Obviously a nightmare for defendants with a 9% interest penalty running from the date of the decision.
Calcano v Rodriguez, 91 A.D.3d 468 followed from the same First Department on January 12, 2012, with an about face holding,
"Needless to say, it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals. Accordingly, like the Second Department, we respectfully decline to follow Tselebis."
How was Tselebis possible in light of the Court of Appeals holding in
Thoma v Ronai (82 NY2d 736, 621 N.E.2d 690, 602 N.Y.S.2d 323 [1993], aff 189 AD2d 635, 592 N.Y.S.2d 333 [1993]) that, even where the record establishes the defendant's negligence, the plaintiff is not entitled to summary judgment as to liability where a question of comparative fault must be resolved at trial.
Looks like Tselebis is not gone for good based on a September decision out of the same First Department.
Philip Capuano, a worker with Carpenter's Union, Local 7, was installing sheetrock at Yeshiva University on February 26, 2007. He slipped on a pipe wrench and injured his back. Mr. Capuano and his wife commenced an action alleging violations of Labor Law §§ 200, 240(1) and 241(6). Defendants' violation of § 241(6) was predicated on their violation of Industrial Code 12 NYCRR § 23-1.7(e)(2) (protection from tripping and other hazards) and § 23-1.30 (illumination). Defendants' answer contained general denials and affirmative defenses, including Capuano's own culpable conduct.
The plaintiff's motion for summary judgment on the Labor Law 241(6) allegation was granted by the lower court. On appeal in
Capuano v Tishman Constr. Corp., (2012 NY Slip Op 6109), decided by the First Department on September 11, 2012, defendants contended that there was a material issue of fact as to whether the alleged violations of the regulations existed for a sufficient period of time to be discovered and remedied. Defendants also questioned Capuano's testimony regarding the lighting in the room, the nature and extent of his injuries, and whether the injuries occurred as a result of this accident, noting that plaintiff did not report the accident until the next day, and did not seek treatment for his pain until over two months later. The Defendants argued that Capuano's claim that there was insufficient light in the room was not credible inasmuch as Capuano testified that he was able to take out his tool box, unload 10 abuse boards, and lean them against the wall. Defendants also contended that Capuano's testimony regarding the lighting in the area was inconsistent since Capuano testified that two days prior to the accident there was no problem with lighting in the area, with sufficient natural light coming through the window to light up the entire area.
Judge Acosta's concurring opinion is a "
must read". Judge Acosta addressed the issue, "whether a plaintiff has the burden to disprove an affirmative defense in order to make a prima facie showing of entitlement to summary judgment." He specifically holds, "... that a plaintiff does not have that burden. Once a prima facie showing is made, the burden shifts to the defendant to raise issues of fact, such as by submitting evidence in support of an affirmative defense." What happened to Calcano v Rodriguez? Did we not just hear in January 2012 that Tselebis was overruled?
Let's hope Capuano takes a trip to Albany, otherwise we are faced with a situation we can call Tselebis II, and that is trouble for the defense bar with a capital "T".
Read the opinion here.
At one point during every lawyers career is a nightmare of a deposition. Your adversary is driving you and your client up the wall. You cannot believe that this person passed the High School Regents, let alone the bar exam. You have met the moist obnoxious lawyer in New York and he or she is lecturing you, a thirty year veteran, on what can and cannot be asked of your client. 
Telematics sounds like a new scrabble word that would invoke a challenge. What is Telematics?