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COURT SHOULD HAVE INQUIRED OF JURORS WHETHER THEIR CONCERNS ABOUT NOT BEING PAID BY THEIR EMPLOYERS DURING JURY DUTY WOULD AFFECT THEIR ABILITY TO RENDER AN IMPARTIAL VERDICT, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the trial judge should have conducted further inquiry when three jurors stated that they could not continue deliberating because they were not being paid by their employers for the days they were on jury duty:

The court should have granted the defense request for inquiries into whether the financial pressure the jurors were experiencing had any bearing on their ability to deliberate fairly. In People v Hines (191 AD2d 274 [1st Dept 1993], lv denied 81 NY2d 1074 [1993]), this Court held that although “financial hardship is generally not a sufficient reason to warrant discharge when the trial is near completion,” the trial court “should have ascertained whether the juror’s financial difficulties would have affected his ability to deliberate impartially” (id. at 276). Similarly, in People v Cook (52 AD3d 255, 256 [1st Dept 2008], lv denied 11 NY3d 735 [2008]), we observed that “a juror’s personal or financial inconvenience alone would be insufficient to establish the requisite manifest necessity” for a mistrial, but we went on to state that the fact that “the juror was unable to declare her continued ability to deliberate fairly” weighed in favor of a mistrial.

Here, the jury’s note raised the possibility that one or more of the jurors referred to was unqualified, and the fact that they did not specifically volunteer, in their colloquies with the court, that financial pressures might compromise their impartiality did not obviate the necessity of an inquiry. People v Alexander, 2019 NY Slip Op 07715, First Dept 10-29-19

 

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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S WORK CONSTITUTED ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 241 (6); ACTION AGAINST OUT-OF-POSSESSION LANDLORD PROPERLY DISMISSED, NO SUPERVISORY CONTROL OF THE WORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for summary judgment should not have been granted in this Labor Law 241 (6) action. But action against the out-of–possession landlord was properly dismissed because the landlord did not exercise and supervisory control over the work:

Plaintiff alleges that he was injured while installing a refrigeration condenser unit at premises owned by Boss and leased by Antillana. We find that the motion court improperly granted Antillana’s motion for summary judgment dismissing the Labor Law § 241(6) claim. Plaintiff was engaged in an activity within the purview of Labor Law § 241(6). Plaintiff worked at the subject premises during the build-out installing three refrigeration system condensers, which weighed about 3000 pounds and had to be moved with a forklift. Three weeks after the store was opened, plaintiff was asked to install an additional condenser which weighed about 200 pounds. The president of Antillana acknowledged that there had been a renovation project underway at the premises before plaintiff’s accident.

We find that there is an issue of fact whether the subsequent installation of the condenser constituted an “alteration” of the premises, which falls within the ambit of “construction” work under Labor Law § 241(6) … .

We also find triable issues of material fact as to whether Antillana violated 12 NYCRR 23-1.25(d), (e)(1), (e)(3), and (f), relied upon by plaintiff to support his Labor Law § 241(6) claim. Rodriguez v Antillana & Metro Supermarket Corp., 2019 NY Slip Op 07714, First Dept 10-29-19

 

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SPECIAL NEEDS STUDENT’S STATUTORY ACTIONS AGAINST THE NYC DEPARTMENT OF EDUCATION’S OFFICE OF PUPIL TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED; THE AUTISTIC SIX-YEAR-OLD STUDENT WAS TRANSPORTED TO SCHOOL ON A FULL-SIZED BUS, GENERATING NINE INCIDENT REPORTS IN A SIX-WEEK PERIOD, INSTEAD OF THE MINI-BUS REQUIRED BY THE INDIVIDUALIZED EDUCATION PROGRAM (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, over and extensive dissenting opinion, determined that a special needs student’s statutory actions against NYC’s Office of Pupil Transportation should not have been dismissed. The opinions are too detailed and comprehensive to fairly summarize:

[Plaintiff student, I.M., who was six at the time, is] a nonverbal diapered child with autism spectrum disorder, moderate to severe intellectual disability, and attention deficit disorder. His 2005-06 Individualized Educational Program (IEP) stated, in bold faced type, that he required a “mini-bus” to transport him to and from school … . However, due to a computer coding error he was placed on a full-sized school bus operated by defendant the Pioneer Transportation Corporation (Pioneer) from September 8, 2005 through October 19, 2005. During this period, Pioneer filed nine incident reports with I.M.’s school in connection with these trips. I.M.’s family also repeatedly complained to I.M.’s school and to the New York City Department of Education’s Office of Pupil Transportation (OPT). The problem was not rectified until October 20, 2005, when I.M. was placed on a minibus in accordance with his IEP.

Plaintiff … appeals from Supreme Court’s dismissal of his claims under section 504(a) of the Rehabilitation Act of 1973 … (the RA), Title II of the Americans with Disabilities Act of 1990 (the ADA), section 296(2)(a) of the New York State Executive Law, and section 8-107 of the Administrative Code of the City of New York (the State and City HRLs). Supreme Court dismissed these statutory claims on the basis that “[t]here is no evidence that the infant was purposefully discriminated against as a result of his disability when he was placed on the full-sized bus.” … It let stand plaintiff’s common-law negligence and gross negligence claims. The only issue on appeal is whether Supreme Court properly dismissed plaintiff’s statutory discrimination claims.

We … reverse … and reinstate these statutory discrimination claims against the Board of Education of the City of New York, its employees Lorraine Sesti and Joanne Richburg, and OPT (collectively DOE) … . We affirm Supreme Court’s dismissal of the statutory claims against Pioneer but on different grounds. Viewing the evidence, much of which is uncontested, … issues of fact exist as to whether DOE violated the discrimination statutes by acting with bad faith, gross misjudgment, or deliberate indifference to [plaintiff’s] rights to be transported by minibus, thereby depriving him of a FAPE [free appropriate public education]. A reasonable jury could conclude that a simple bureaucratic mistake was compounded by inaction into a violation of the RA, the ADA and the State and City HRLs. I.M. v City of New York, 2019 NY Slip Op 07756, First Dept 10-29-19

 

JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE WERE ADEQUATE, ARGUMENTS TO THE CONTRARY WERE NOT PRESERVED (FIRST DEPT).

The First Department determined the jury was properly instructed on the justification defense and any argument that the court’s instructions and the jury sheet did not comply with Velez (requiring the instruction that acquittal on the top count based upon the justification defense requires that deliberations on the lesser counts stop) was not preserved:

Defendant also asked the court, pursuant to People v Velez (131 AD3d 129 [1st Dept 2015]) and its progeny, to charge that, if the jury acquitted him of the higher count of attempted first degree assault based on justification, then it should not continue with deliberations on the lower count of second-degree assault.

The court charged the jury on the defense of justification to prevent a burglary, but declined to give a justification charge based on defense of a person. The court also told the jury that if they find defendant not guilty of either count in the indictment by reason of justification, they must also find defendant not guilty of the other count as well “because justification is a complete defense to both counts of the indictment.” Finally, the court instructed the jury on the elements of each crime, with the third element of both being “that the defendant was not justified.” During deliberations, the jury asked the court for reinstruction on the elements of the charged crimes. In a supplemental charge, the trial court reread the elements of each offense, with both including the element “that the defendant was not justified.” The jury returned a verdict finding defendant not guilty of attempted assault in the first degree, but guilty of assault in the second degree.

On appeal, defendant contends that the court’s initial and supplemental charges did not comply with Velez, and that the verdict sheet erroneously omitted the issue of justification. These claims are unpreserved. During a colloquy on the Velez issue, the court showed defense counsel a copy of its proposed charge, and defense counsel expressly agreed that it “satisfies Velez.” Further, defense counsel made no objection to the charge as given. As to the supplemental charge, defense counsel never asked the court to repeat its Velez instruction, and did not object to its absence after the charge was given. Likewise, defendant made no objections to the verdict sheet. Under the circumstances, we decline to exercise our interest of justice jurisdiction to review these unpreserved claims. People v Davis, 2019 NY Slip Op 07754, First Dept 10-29-19

 

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INSURER’S ACCIDENT INVESTIGATION REPORT IS PRIVILEGED AND NOT DISCOVERABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that an insurer’s accident investigation report is privileged and not discoverable:

Documents in an insurer’s claim file, including an accident investigation report, that were prepared for litigation against its insured are immune from disclosure (see CPLR 3101[d][2] … ). Although documents in a first-party insurance action prepared in an insurer’s ordinary course of business in investigating whether to accept or reject coverage are discoverable (see CPLR 3101[g] … ), there is no indication that such documents are being protected here. In the absence of any demonstration of hardship by plaintiff, the insurer’s accident investigation report remains privileged … . Dabo v One Hudson Yards Owner, LLC, 2019 NY Slip Op 07751, First Dept 10-29-19

 

ALTHOUGH THE FREE-STANDING BRACE FRAME WAS AT THE SAME LEVEL AS PLAINTIFF AT THE TIME IT FELL OVER, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined that, although the brace frame and plaintiff were at the same level, the injury caused by the free-standing brace frame tipping over was covered by Labor Law 240 (1):

The brace frames … , which stood at least 12 feet tall and weighed approximately 1,500 pounds, were not connected to the excavator bucket or any other device either to hold them upright once the connector pins were removed or to lower them slowly to the ground. When plaintiff removed the last connector pin, the brace frame fell and struck him.

Contrary to defendants’ contention, this evidence establishes prima facie that the activity in which plaintiff was engaged is covered under Labor Law § 240(1). Although plaintiff and the brace frame were at the same level at the time of the accident, the work plaintiff was doing posed a substantial gravity-related risk, because the falling of the brace frame away from the formwork panel would have generated a significant amount of force … .

An engineer employed by defendant Peri Formwork Systems, Inc., the manufacturer of the formwork structure, testified that if a formwork structure was disassembled on the ground, then the brace frames had to be secured by a crane before removing them, and if the formwork structure was standing upright, then each individual component had to be secured by a crane. He said that an unsecured brace frame freestanding in the air would pose a hazard to any worker standing nearby. Encarnacion v 3361 Third Ave. Hous. Dev. Fund Corp., 2019 NY Slip Op 07746, First Dept 10-29-19

 

SCAFFOLD TIPPED PINNING PLAINTIFF’S HAND AGAINST A WALL; SPECULATIVE EVIDENCE DID NOT RAISE A QUESTION OF FACT ABOUT PLAINTIFF’S ACTIONS BEING THE SOLE PROXIMATE CAUSE; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. A scaffold tipped and pinned his hand against a wall, and plaintiff’s actions did not constitute the sole proximate cause of the injuries:

Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. Regardless of whether plaintiff’s hand was struck by the beam of the scaffold or the counterweights placed on the scaffold, this matter falls within the purview of Labor Law § 240(1). Plaintiff’s injuries were the direct result of the application of the force of gravity to the scaffold and the counterweights, and, although the scaffold and counterweights fell a short distance after the scaffold tipped, the elevation differential was not de minimis, as their combined weight of over 2,400 pounds was capable of generating a great amount of force during the short descent … .

The scaffold was a load that required securing for the purpose of plaintiff’s undertaking … . Contrary to defendants’ contention, the counterweights were not a safety device provided to secure the equipment being tied to the bracket, but were to balance a scaffold that would later be suspended from it.

Furthermore, the record establishes, as a matter of law, that plaintiff was not the sole proximate cause of his injuries. Plaintiff and his coworker both testified that there was slack in the tieback at the time of the accident. Their foreman’s testimony that the scaffold tipped over due to overtightening of the tieback by plaintiff is speculative, as he did not witness the accident. The reports and expert affidavit submitted by defendants concluding that the accident was caused by overtightening are also speculative. In any event, even accepting the defense’s proof, it is still insufficient to raise an issue of fact as to sole proximate causation, since the record established that the scaffold tipped over in part due to being inadequately secured, raising only comparative negligence by plaintiff … . Ortega v Trinity Hudson Holding LLC, 2019 NY Slip Op 07743, First Dept 10-29-19

 

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DEFENDANT HAD A RIGHT TO BE PRESENT WHEN THE PROSECUTOR SUCCESSFULLY ARGUED ADDITIONAL MOLINEUX EVIDENCE SHOULD BE ADMITTED AT TRIAL, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defendant’s absence from the judge’s ruling on whether Molineux evidence was admissible violated his right to be present at material stages of the trial. Although defendant was present when the Molineux arguments were made, the prosecutor made further arguments at the time of the ruling, which led to additional Molineux evidence being presented at trial:

… [T]he trial court conducted an initial Ventimiglia hearing with defendant present to address the prosecution’s Molineux application, which sought to admit evidence of defendant’s alleged prior assault on his then-girlfriend. After the parties made their arguments, the trial court postponed the issuance of its ruling. On the date the trial court intended to issue its ruling, it noted that defendant had not yet been produced, and defense counsel stated that he would prefer if the court issued its ruling with defendant present. The court stated that defendant’s presence was not required since it was merely issuing a legal ruling and began ruling on the application. The People then sought to include new factual details of the prior assault not mentioned at the earlier proceeding where defendant was present (i.e. that defendant choked his then-girlfriend to the point that she almost lost consciousness). The trial court advised the prosecutor to leave out any testimony regarding these new details since these facts were not included in the original application. However, the prosecutor stressed that these new facts were “critical” for the jury to understand why the victim feared defendant, and the trial court allowed the prosecutor to elicit testimony from the witness.

Defendant should have been afforded the opportunity to be present given that the prosecutor’s introduction of these new facts, in effect, expanded the original Molineux application and involved factual matters of which defendant may have had peculiar knowledge. Defendant was in the best position to either deny the new factual details, point out errors in the prosecutor’s account of the details, or provide defense counsel with details that would have been useful in advancing his position … . People v Calderon, 2019 NY Slip Op 07707, First Dept 10-24-19

 

UNLOADING A HEAVY AIR CONDITIONING COIL FROM A TRUCK IS AN ACTIVITY COVERED BY LABOR LAW 240 (1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that unloading a heavy coil from and truck was an activity covered by Labor Law 240 (1):

Plaintiff was injured when an air conditioning system coil that weighed at least 300 pounds and was being transported secured to two dollies fell on his leg as he and three coworkers unloaded it from a truck. After plaintiff and his coworkers had brought the coil to ground level on the truck’s lift gate and were attempting to move it off the lift gate, a wheel of a dolly became caught in a gap on the lift gate, and the coil tipped over.

In view of the weight of the coil and the amount of force it was able to generate, even in falling a relatively short distance, plaintiff’s injury resulted from a failure to provide protection required by Labor Law § 240(1) against a risk arising from a significant elevation differential … . Moving the coil safely required either hoisting equipment or a device designed to secure the coil against tipping or falling over … . Ali v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 07544, First Dept 10-22-19

 

INSTALLING WINDOW SHADES IS NOT ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 240 (1) AND WAS NOT PART OF THE GENERAL CONTRACTOR’S RESPONSIBILITIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment  on the Labor Law 240 (1), 241 (6) and 200 causes of action should have been dismissed. Plaintiff’s work was not “altering” within the meaning of Labor Law 240 (1) and was not part of the general contractor’s (Greenlight’s) contract with the apartment owners (the Dixons):

Because plaintiff Martin Topoli’s work installing window shades at the time of the accident does not constitute “altering” within the meaning of Labor Law § 240(1), that claim is dismissed …. The Labor Law § 241(6) claim is also dismissed, since plaintiff’s work is separate and distinct from the larger construction project … . Third-party defendants and apartment owners, Rebecca Dixon and Adam Dixon, modified the contract with general contractor Greenlight Construction Management Corp. to remove the provision and installation of window treatments from the scope of its work. The Dixons directly contracted with plaintiff’s employer for the installation of the window shades after the construction work was completed and they had moved in to the apartment. Greenlight’s return to the work site after the completion of construction, done to accommodate the Dixons’ new desire for larger window valances, was limited in nature and separate from plaintiff’s work. Topoli v 77 Bleecker St. Corp., 2019 NY Slip Op 07537, First Dept 10-22-19

 

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