Recent decisions

In Patrick McGarry, Sr., et al., Plaintiffs-Respondents-Appellants, v. CVP 1 LLC, et al., 2008 N.Y. Slip Op. 08022 (1st Dep't October 23, 2008), the Appellate Division, First Department held that a worker who was injured when the first block on an unsecured cinder block staircase, leading from a platform supporting a material hoist to the concrete slab floor of the work site three feet below, skidded from under his foot, was properly granted partial summary judgment under Labor Law 240, even though the worker fell fell only a short distance.

The court specifically held that the staircase was the functional equivalent of a ladder, because it was being used as access to different levels of the work site, including the floor where the injured plaintiff's safety equipment was stored, and that a fall down a temporary staircase is the type of elevation-related risk the statute was intended to cover, regardless of the distance the worker falls.

In Greaves v. Obayashi Corp., 2008 N.Y. Slip Op. 07970 (1 Dep't October 21, 2008) the Appellate Division, First Department held that a worker who was injured when a wall he was working on from a scaffold collapsed, causing concrete blocks fell against the scaffold, knocking it over and causing plaintiff to fall to the ground, where blocks fell on top of him, causing injury, was entitled to partial summary judgment, since the portion of the wall where plaintiff was working was neither braced nor secured.

The court specifically held that the accident clearly fell within the scope of Labor Law 240, as the evidence showed the plaintiff was struck by falling objects that could have been, but were not, adequately secured by one of the devices enumerated in the statute.

Court of Appeals expands holding in Itri Brick case

On October 21, 2008 the Court of Appeals ruled in Brooks v. Judlau Contracting, Inc., --- N.E.2d ----, 2008 WL 4620804, 2008 N.Y. Slip Op. 07947 (2008) that Section 5-322.1 of the General Obligations Law allows a general contractor-who has been found to be partially at fault-to enforce an indemnification provision against its subcontractor for that portion of damages attributable to the negligence of the subcontractor, so long as the indemnification provision does not purport to indemnify the general contractor for its own negligence.

In reaching this decision, the Court noted that:

"This appeal asks us to determine the question left open in Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co. (89 N.Y.2d 786 [1997] ) as to whether section 5-322.1 of the General Obligations Law allows a general contractor-who has been found to be partially at fault-to enforce an indemnification provision against its subcontractor for that portion of damages attributable to the negligence of the subcontractor.
...
Unlike the indemnification provisions voided in Itri Brick, enforcement of the indemnification provision currently before us will not result in Judlau being indemnified for its own acts of negligence; rather, it is being indemnified only for those acts attributable to the subcontractor, Thunderbird. The indemnification provision of the agreement provides that

“[t]he Contractor shall not be liable for any loss or casualty incurred or caused by or to the Subcontractor. The Subcontractor shall maintain full and complete insurance on its work until final acceptance of the General Contract. The Subcontractor assumes all risk of loss for all of its work regardless of whether the Subcontractor had previously been paid for it. The Contractor is not responsible to provide any protective service for the Subcontractor's benefit. The Subcontractor shall, to the fullest extent permitted by law, hold the Contractor and the Owner, their agents, employees and representatives harmless from any and all liability, costs, damages, attorneys' fee, and expenses from any claims or causes of action of whatever nature arising from the Subcontractor's work, including all claims relating to its subcontractors, suppliers or employees, or by reason of any claim or dispute of any person or entity for damages from any cause directly or indirectly relating to any action or failure to act by the Subcontractor, its representatives, employees, subcontractors, or suppliers. The Subcontractor acknowledges that specific consideration has been received by it for this Indemnification....”

Contrary to Thunderbird's assertion, this provision does not violate General Obligations Law § 5-322.1 as it does not require Thunderbird to indemnify Judlau for its own negligence. The provision is clear, obligating Thunderbird to indemnify Judlau only when it is shown that damages were caused by Thunderbird's own negligence.
...
Thunderbird asserts that the language “to the fullest extent permitted by law” broadens the subcontractor's liability to require full contractual indemnification, which includes indemnification for Judlau's negligence and is thus rendered void by General Obligations Law § 5-322.1. We disagree. That language contemplates partial indemnification and is intended to limit Thunderbird's contractual indemnity obligation solely to Thunderbird's own negligence.

Our holding that the phrase “to the fullest extent permitted by law” limits rather than expands a promisor's indemnification obligation is supported by the holdings of other courts that have likewise held that such phrases create a partial indemnification obligation on behalf of the subcontractor promisor. Recognizing that these precedents are not binding on us, and that there likewise are many decisions negating partial indemnification-we adopt the broader interpretation as the more sound. Indeed, there is no language within General Obligations Law § 5-322.1 that prevents partial indemnification provisions such as the one currently before us from being enforced in a case where it is shown that both a general contractor and its subcontractor are joint tortfeasors."

How this decision will be implemented will doubtless require more litigation to resolve. Specifically, left unanswered is the question of whether an owner or general contractor, whose liability is merely vicarious in nature, is now entitled to full indemnification. Looked at from another angle, in what factual scenarios is a general contractor or owner in a Labor Law situation actively negligent, as opposed to merely vicariously liable?

Newsburg Factory Workers Fired After Noting Unsafe Conditions

Concepts Packaging factory owner, Jeffrey Fanning, illegally fired 11 workers in retaliation for complaining about unsafe working conditions and signing a petition to unionize.

Fanning denies the allegations, saying he recently laid off 19 seasonal workers, as he does every year.

"We have a layoff every season; we're seasonal here," Fanning said. "Back-to-school promotions were over. The last people hired were the first people to be laid off. When back-to-school is over, that's it; it's quiet till Christmas."

However, this was not the case. The 11 employees that were fired had been employed at Concepts Packaging for some time.

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Appellate Division, Fourth Department distinguishes Montgomery v. Federal Express Corp.

In a decision that shows great sensitivity to the plight of construction workers, who are unable to protect themselves from elevation hazards often present in their work, as was recognized by the legislature in passing the Labor Law, the Appellate Division, Fourth Department has held that a worker, who fell from a roof, was entitled to partial summary judgment under Labor Law 240, despite the fact that safety devices that could have prevented his accident, which were not in use, were availiable to him elsewhere at the site, since he:

"lacked the authority to exercise independent judgment with respect to safety issues inasmuch he worked directly under the supervision of two forepersons, neither of whom required or even suggested that plaintiff install roof jacks before beginning to repair the roof."

See, Baker v. Essex Homes of Western New York, Inc., --- N.Y.S.2d ----, 2008 WL 4445450 (4 Dep't October 3, 2008).

This decision is important, because it carves out a gaping hole in Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 828 N.E.2d 592, 795 N.Y.S.2d 490 (2005), which held that a construction worker, who had climbed up to the top of an elevator motor room roof by using a bucket to stand on instead of a ladder, and who was injured when he jumped down from the top of the elevator motor room roof, was the sole proximate cause of the accident for failing to obtain and use a ladder, rather than the bucket.

Montgomery, supra, is usually easily distinguished; most plaintiffs do not voluntarily leave a place of safety and jump, but the holding that the plaintiff was negligent for not getting a ladder from elsewhere at the worksite had a chilling effect upon courts granting plaintiffs partial summary judgment on liability in many Labor Law 240 cases, for in many situations it is possible that by doing something else, or using another device, the plaintiff could have avoided the accident.

This is why Baker, supra is an important decision, which could be useful in placing the burden of providing, placing and operating the safety devices required by Labor Law 240 where it belongs; upon the owners and contractors the legislature intended to have the ultimate responsibility for construction safety, and help stop the trend in Labor Law 240 litigation of blaming the very workers the legislature was seeking to protect for the occurrence of every accident involving a violation of the Labor Law.

David H. Perecman Again Selected In Top 5% Of Personal Injury Lawyers In New York

A recent press release revealed that personal injury attorney David H. Perecman of New York has once again been voted by his nationwide colleagues to be among the "Super Lawyers" meaning he is considered in the top 5% of Personal Injury Lawyers. Super Lawyers magazine places Mr. Perecman in the top of the field when it comes to attorneys getting people what's best for themselves and their families.

Read the entire release at:
http://www.perecman.com/?pageId=378&rowId=16367

New York Court of Appeals rules that an owner is liable under Labor Law 240(1) although a tenant contracted for the work without the owner's knowledge

In Sanatass v. Consolidated Investing Company, Inc., 10 N.Y.3d 333, 887 N.E.2d 1125, 858 N.Y.S.2d 67 (April 24, 2008), the Court of Appeals of New York State held that even though the work that led to the plaintiff's injury was contracted for by a building tenant and the owner was unaware of the work, the property owner could still be held liable under Labor Law 240(1).

The defendant building owner had a provision in its lease that the owner had to consent to all renovations, decorations, additions, installations, improvements and all alterations to the premises.

The plaintiff's employer was hired by the tenant to install a commercial air conditioning unit without advising the property owner as required under the lease. Upon hoisting the 1,500 to 2,500 pound commercial air conditioning unit about seven feet off the ground, one of the manual material lifts failed, causing the unit to drop. The plaintiff sustained injuries when the unit nearly crushed him.

The property owner moved for summary judgment since it was unaware of the work and the lease provision was not followed regarding notice. The motion was granted by the Supreme Court, and affirmed by the Appellate Division, and the Court of Appeals reversed, holding:

"Here, like the defendants in Celestine, Gordon and Coleman, Consolidated seeks to avoid liability under Labor Law § 240(1) by contending that it is not an “owner” for the purposes underlying the statute. Relying on its lack of knowledge of plaintiff's work, undertaken at the behest of the tenant, Consolidated asks us to import a notice requirement into the Labor Law or, conversely, create a lack-of-notice exception to owner liability. But our precedents make clear that so long as a violation of the statute proximately results in injury, the owner's lack of notice or control over the work is not conclusive-this is precisely what is meant by absolute or strict liability in this context ( see Blake, 1 N.Y.3d at 289, 771 N.Y.S.2d 484, 803 N.E.2d 757). We have made perfectly plain that even the lack of “any ability” on the owner's part to ensure compliance with the statute is legally irrelevant ( see Coleman, 91 N.Y.2d at 823, 666 N.Y.S.2d 553, 689 N.E.2d 523). Hence, Consolidated may not escape strict liability as an owner based on its lack of notice or control over the work ordered by its tenant."

The Court of Appeals also held that the plaintiff's work drilling holes and affixing metal rods into the ceiling and installing air conditioning ducts as preparatory work and attempting to install a 1,500 to 2,500 pound air conditioning units using two portable material lifts is work that comfortably satisfies the alteration standard as a matter of law.

In a related decision, the Appellate Division, Fourth Department has ruled that the owner of real property is liable for an accident under Labor Law 240(1), despite the fact that they did not own the building situated on the property where the accident occurred. Duffield v. Will's Equipment Repair, --- N.Y.S.2d ----, 2008 WL 4445820 (4 Dep't October 3, 2008).

Accidents in Manhattanville Campus Construction Zone

An increase in traffic accidents has occurred since construction began on Colombia University's Manhattanville campus.

Eight accidents have taken place at the intersection of Broadway and 125th street in the last three weeks.

The accidents are blamed on the narrowing of Broadway to make way for a sewage pipe along 130th street. Both pedestrians and drivers have been injured thus far due to the construction.

Read the rest of the article here

New York Construction Accident Lawyer David Perecman recognized by his peers - selected among top 5% of lawyers in the country

New York Construction Accident Lawyer David Perecman has been recognized by four respected sources for individual attorney recognition: the New York Law Journal, SuperLawyers, Lawdragons, and The Best Lawyers in America®

The founding partner at the Perecman Firm, New York Construction accident lawyers, David H. Perecman has won numerous multi-million dollar verdicts and settlements in various New York construction accident cases, including construction accident injuries and hospital deaths and medical errors.

Mr. Perecman has been selected as one of the top 5% of lawyers in the country by SuperLawyers magazine. Over 800,000 lawyers nationwide are surveyed by SuperLawyers to evaluate the top attorneys.

Mr. Perecman serves as the Secretary of the New York State Trial Lawyer’s Association (NYSTLA) and as a Chair of the Labor Law Committee.

Americans with Disabilities Act Amendment Act

President Bush signed the Americans with Disabilities Act Amendment Act (ADAAA), a revision to the ADA of 1990.

The ADAAA, effective Jan 1, 2009, will expand the ADA to include disabled employees who can control their disabilities with medication or medical procedures.

This revision means that if an employee has diabetes, multiple sclerosis or epilepsy they will still be offered ADA protection.