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Plaintiff, Who Fell Through an Open Manhole, Entitled to Summary Judgment on Labor Law 240 (1) Cause of Action—Failure to Set Up Guard Rails Was a Proximate Cause–Liability Imposed Regardless of Plaintiff’s Own Negligence and Regardless of Whether the Owner, Contractor or Agent Supervised or Controlled the Work

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined plaintiff, who fell through an uncovered manhole, was entitled to partial summary judgment on his Labor Law 240 (1) claim based on testimony the manhole should have been surrounded by guard rails. The court also determined there was a question of fact whether the safety consultant, IMS, was liable as a “statutory agent” under Labor Law 240 (1). The court explained that the obligation to provide safety devices is a nondelegable duty which imposes liability regardless of whether owner, contractor or agent supervises or controls the work. Where 240 (1) is violated, the plaintiff's negligence is not a defense, unless plaintiff's negligence is the sole proximate cause of the injury:

Section 240 (1) provides, in relevant part:

“All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor [certain enumerated] [*4]and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

The statute imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work … . “Where an accident is caused by a violation of the statute, the plaintiff's own negligence will not furnish a defense”; however, “where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability” … . Thus, in order to recover under section 240 (1), the plaintiff must establish that the statute was violated and that such violation was a proximate cause of his injury … . Barreto v Metropolitan Tr. Auth., 2015 NY Slip Op 03875, CtApp 5-7-15

 

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“Mystery Shopper” Not an Employee

The Third Department determined claimant, a mystery shopper, was not an employee entitled to unemployment benefits because the employer, Confero, exercised minimal control over claimant’s work:

Here, claimant testified that, when a new mystery shopping event became available, he was notified via email by a scheduling company and then was able to view the assignment on Confero’s website. Claimant had the liberty of choosing what assignments, if any, he wanted to perform and, after he accepted an assignment, Confero did not even require that claimant perform the assignment himself. Rather, claimant had the discretion to send a substitute in his place so long as he provided notification to the scheduling company to ensure that the substitute was not overexposed at a given location. Although each assignment came with certain tasks that claimant had to perform, the manner in which he performed those tasks was fully within his discretion. Significantly, Confero did not require that claimant perform any minimum number of assignments, request that he seek permission for time off or set forth a particular work schedule. According to Confero’s president, claimant was free to work as little or as much as he wanted. For each assignment that he completed, claimant was paid a nonnegotiable fixed fee that was set by Confero’s client. Further evidencing a lack of control, Confero did not provide claimant with any training, supply him with any equipment or require him to attend any meetings, and it fully permitted him to work for competing companies, which he did regularly. Matter of Chan (Confero Consulting Assoc., Inc.–Commissioner of Labor), 2015 NY Slip Op 03890, 3rd Dept 5-7-15

 

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Suit Against Town by Representatives of Ambulance Personnel Killed in an Accident Prohibited by Volunteer Ambulance Workers’ Benefit Law/Question of Fact Whether Ambulance Driver Was Reckless (in Violation of Vehicle and Traffic Law 1104)

The Second Department determined the town was protected against a suit by representatives of ambulance personnel killed when the ambulance was involved in an accident.  Volunteer Ambulance Workers’ Benefit Law section 19 provides an exclusive remedy (much like the Workers’ Compensation Law) and thereby precluded the lawsuit against the town.  The Second Department also determined a question of fact had been raised about whether the ambulance driver was reckless.  Therefore suit against the driver was not precluded by Vehicle and Traffic Law 1104 which imposes a “reckless disregard” standard for causes of action against the drivers of emergency vehicles.  It is worth noting that the question of fact under the “reckless disregard” standard was found to exist in spite of a Department of Motor Vehicles hearing which determined the ambulance driver did not act recklessly.  Ryan v Town of Riverhead, 2014 NY Slip Op 03250, 2nd Dept 5-7-14

 

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Admission of Child Abuse Made by Defendant to Psychiatrist Protected by Physician-Patient Privilege—Even Though the Admission Can Be Disclosed in Child Protective Proceedings, the Privilege Applies in a Criminal Trial

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that an admission of child sexual abuse made to the defendant's psychiatrist was privileged.  The psychiatrist should not have been allowed to testify about the admission at defendant's trial.  The error was not harmless. The Court made it clear that the relaxed evidentiary standards in child protective proceedings where physicians are required to report abuse, do not extend to the context of a criminal trial where the defendant's liberty is at stake:

The Legislature has determined that the protection of children is of paramount importance, so much so that it has either limited or abrogated the privilege through statutory enactments.

The People erroneously assert that these exceptions place offenders on notice that the physician-patient privilege does not apply to statements or admissions triggering a duty to disclose. But it is one thing to allow the introduction of statements or admissions in child protection proceedings, whose aim is the protection of children, and quite another to allow the introduction of those same statements, through a defendant's psychiatrist, at a criminal proceeding, where the People seek to punish the defendant and potentially deprive him of his liberty. Evidentiary standards are necessarily lower in the former proceedings than in the latter because the interests involved are different. Thus, the relaxed evidentiary standards in child protection proceedings lend no credence to the People's argument that defendant should have known that any admission of abuse he made to his psychiatrist would not be kept confidential. People v Rivera, 2015 NY Slip Op 03764, CtApp 5-7-15

 

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UInstructor at a Not-for-Profit Theater Company Was an Employee, Not an Independent Contractor

The Third Department determined a playwrighting instructor at  a not-for-profit theater company, Primary Stages Company, was an employee entitled to unemployment insurance benefits:

We note that, for purposes of our review, we consider instructors and teachers to be professionals … . Accordingly, in deciding if such individuals are employees, the pertinent inquiry is “whether the purported employer retains control of important aspects of the services performed” … .

Here, Primary Stages utilized an informal process in retaining claimant, as it was familiar with her through her affiliation with a writers’ group and simply inquired if she was interested in teaching writing classes. Claimant responded in the affirmative and entered into a written agreement with Primary Stages under which she was paid a flat fee of $1,900 per class. Primary Stages furnished the classroom and also provided a teaching assistant. Although claimant retained the discretion to set the course curriculum, claimant and Primary Stages worked together to establish the class schedule that Primary Stages then distributed to prospective students. Primary Stages was responsible for providing all school facilities and a teaching assistant, finding students to fill the classes and collecting their tuition. The school cancelled classes if there was low enrollment, in which case the instructor would not be paid. If claimant could not teach a class, she needed to notify Primary Stages and, if she or other instructors were unable to complete a course assignment, Primary Stages would find a replacement whose selection was often based upon the recommendation of the instructor. Furthermore, Primary Stages circulated an evaluation form to students for feedback on the instructor at the end of the course and, if the evaluation was unsatisfactory, it would not rehire that instructor. Matter of Wilner (Primary Stages Co. Inc.–Commissioner of Labor), 2015 NY Slip Op 03902, 3rd Dept 5-7-15

 

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Late Notice of Claim Can Be Allowed Even in Absence of Reasonable Excuse Where Defendants Had Actual Notice

The Second Department explained the criteria for determining whether to allow a late notice of claim, noting that the lack of a reasonable excuse does not necessarily require denial of the application where there is actual notice and an absence of prejudice:

The determination of an application for leave to serve and file a late notice of claim is left to the sound discretion of the court … . Among the factors to be considered by a court in determining whether leave to serve a late notice of claim should be granted are whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense … . Neither the presence nor absence of any one factor is determinative … . The absence of a reasonable excuse is not necessarily fatal … . However, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance … .

Here, the City defendants had actual notice of the essential facts constituting the claim well within the 90-day period for serving a notice of claim. Bakioglu v Tornabene, 2014 NY Slip Op 03219, 2nd Dept 5-7-14

 

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Revocation of Empire-Zone-Business Certifications Upheld in 9 of 11 Instances

The Third Department, in a full-fledged opinion by Justice Lynch, considered the Empire Zone Designation Board’s revocation of petitioners’ certifications as empire zone businesses. The Department of Economic Development (DED) was directed, in 2009, to conduct a review of all certified businesses to determine whether decertification was warranted on one of two grounds: “First, DED could decertify a business enterprise if it was a “shirt-changer,” that is, if the enterprise was certified prior to August 1, 2002, and it “caused individuals to transfer from existing employment with another business enterprise with similar ownership . . . to similar employment with [the enterprise] or if the enterprise acquired, purchased, leased, or had transferred to it real property previously owned by an entity with similar ownership, regardless of form of incorporation or ownership” (General Municipal § 959 [a] [v] [5]; see 5 NYCRR 11.9…). Second, DED could decertify a business enterprise if it failed to meet the 1:1 benefit-cost test … . The latter test required decertification where it was determined that the enterprise “has submitted at least three years of business annual reports [and it] has failed to provide economic returns to the [s]tate in the form of total remuneration to its employees (i.e., wages and benefits) and investments in its facility that add to a greater value than the tax benefits the business enterprise used and had refunded to it” … . Applying the standard criteria for review of administrative determinations, the Third Department upheld all but two of the 11 decertifications, but also determined retroactive decertifications were improper. Matter of Lyell Mt. Read Bus. Ctr. LLC v Empire Zone Designation Bd., 2015 NY Slip Op 03906, 3rd Dept 5-7-15

 

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Motion to Disqualify an Attorney Who Had Previously Represented Both Parties and Related Businesses Should Have Been Granted

The Second Department determined a motion to disqualify an attorney who had represented both parties in related matters should have been granted:

Here, prior to the commencement of this action, the defendant’s attorney had provided legal advice to both the appellant, Barbara Gordon, and the defendant in their capacity as business partners and members of several limited liability companies. There was a substantial relationship between the involvement of the defendants’ attorney in the formation of those limited liability companies, and his involvement as general counsel to those limited liability companies in connection with the instant action for an accounting. In his capacity as general counsel, the defendant’s attorney was in a position to receive relevant confidences regarding several of those limited liability companies, in which the plaintiff’s interests are now adverse to the defendant’s interests. Thus, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant’s motion to disqualify the defendants’ attorney… . Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 2014 NY Slip Op 03232, 2nd Dept 5-7-14

 

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Doctrine of Judicial Estoppel Precluded Plaintiff from Taking a Position Contrary to the Position Plaintiff Took In Two Prior Successful Actions

The Third Department determined the position taken by plaintiff in prior successful actions, i.e., that defendant was the owner of certain lots, precluded plaintiff, under the doctrine of judicial estoppel, from taking the position defendant was not the owner of those lots in the instant proceeding:

Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, “if a party assumes a position in one legal proceeding and prevails in maintaining that position, that party will not be permitted to assume a contrary position in another proceeding simply because the party’s interests have changed” … . “The doctrine rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise” …. . Green Harbour Homeowners Assn., Inc. v Ermiger, 2015 NY Slip Op 03899, 3rd Dept 5-7-15

 

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Relation-Back Doctrine (Allowing Service of an Otherwise Time-Barred Amended Complaint) Explained

The Second Department determined the relation-back doctrine was properly applied to a second amended complaint which otherwise would have been time-barred. The court noted that the mistake in naming the correct party need not be excusable:

A party seeking the benefit of the relation-back doctrine must establish that (1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship, can be charged with notice of the institution of the action and will not be prejudiced in maintaining his or her defense on the merits by virtue of the delayed assertion of those claims against him or her, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been timely commenced against the new party … . The mistake need not be excusable for the relation-back doctrine to apply … . Castagna v Almaghrabi, 2014 NY Slip Op 03223, 2nd Dept 5-7-14

 

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