New York has now enacted amendments to the General Obligations Law which limit the subrogation rights of subject ERISA plans against tried and settled cases. The law is now in effect and is retroactive to all cases, settled or tried, on or after November 12, 2009. The new law eliminates the pre-emption of the General Obligations Law by the Federal ERISA statute, thus preventing health insurers from seeking reimbursements as to an alleged subrogation right for benefits paid to an injured party. The new law also removes uncertainty hanging over future settlements in personal injury, medical malpractice and wrongful death cases. Parties in these cases will no longer need to consider threatened litigation by health insurers seeking reimbursements for medical expenses paid to the injured party.

In Soto v. J. Crew, Inc. (2013), the Court of Appeals held that a retail store maintenance man falling from a ladder while dusting a clothing shelf was not protected under Labor Law §240(1). In its decision, the Court of Appeals in Soto sets forth four standards that, when present, take "cleaning" out of the realm of activities protected by Labor Law §240(1). The protections of the Labor Law are unavailable if the cleaning (1) is routine, occurring on "a daily, weekly or other relatively frequent" basis; (2) requires no "specialized equipment or expertise"; (3) involves only "insignificant" elevation risks "inherent in typical domestic or household cleaning"; and (4) does not relate "to any ongoing construction, renovation, painting, alteration or repair project".

In Glover v. Botsford (4th Dept., 2013), the plaintiff was injured when she allegedly slipped and fell on snow or ice on the sidewalk in front of a store owned by the defendant. The defendant moved for summary judgment contending that he had no duty to remove the snow and ice from the sidewalk because there was a storm in progress at the time of the accident. The Trial Court denied the motion, determining that there was an issue of fact as to whether the defendant improperly maintained the condition by removing the snow, but not salting or removing the ice. The Appellate Division reversed the Trial Court's denial, holding that the plaintiff failed to refute the defendant's contention that there was a storm in progress at the time of the accident. In so doing, the Appellate Division reasoned that the "Storm In Progress" doctrine is not limited to situations where blizzard conditions exist; it also applies in situations where there is some type of less severe, yet still inclement, winter weather.

Operators of non-commercial vehicles have been prohibited from using non-"hands-free" mobile telephones and portable electronic devices while operating motor vehicles for several years. Operators of commercial vehicles did not have the same prohibitions until recently. On October 28, 2013, amendments to the New York State Mobile Phone/Portable Electronic Device Law for Commercial Drivers (Vehicle and Traffic Law §1225-d) became effective. Pursuant to the amendments, a motor carrier must not allow or require its drivers to use mobile phones/portable electronic devices while driving. Further, a mobile phone used by an operator of a commercial vehicle is not a "hands-free mobile telephone" unless it can be dialed or answered by the operation of a single button. Commercial drivers are now prohibited from making a phone call or using a portable electronic device while the vehicle is temporarily stopped because of traffic, because of a traffic control device or because of other momentary delays. An operator of a commercial motor vehicle who holds a mobile telephone to, or in the immediate proximity of, his or her ear while the vehicle is temporarily stopped because of traffic is presumed to be engaged in a call. Lastly, an operator of a commercial vehicle who holds a portable electronic device while the vehicle is temporarily stopped because of traffic, because of a traffic control device or because of other momentary delay is presumed to be using the device.

Prepared by Michael M. Chelus