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CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined class certification under CPLR 901 for employees alleging defendant did not pay prevailing wages required by article I, § 17 of the New York Constitution and section 220 (3) of the Labor Law:

… [T]he court erred in determining that plaintiffs failed to establish the first and second CPLR 901 prerequisites, numerosity and commonality. Plaintiffs established the numerosity prerequisite by submitting evidence of approximately 350 class members at a minimum … . Plaintiffs established the commonality prerequisite because one common legal issue dominates the claims of all putative class members, i.e., whether similarly situated employees who worked on public projects were deprived of the prevailing wages to which they were entitled… . Contrary to defendant’s contention, the fact that the amount of damages will vary among the putative class members does not prevent this lawsuit from going forward as a class action … . Vandee v Suit-Kote Corp., 2018 NY Slip Op 04456, Fourth Dept 6-15-18

​CIVIL PROCEDURE (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/CPLR 901 (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/CLASS ACTION (CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/EMPLOYMENT LAW (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))/LABOR LAW (CLASS ACTIONS, CLASS ACTION CERTIFICATION FOR EMPLOYEES ALLEGING DEFENDANT’S FAILURE TO PAY THE PREVAILING WAGE SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT))

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this dog bite case should have been granted:

It is well established that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” … . “A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant[] liable for damages resulting from such an act” … . “In contrast, normal canine behavior’ such as barking and running around’ does not amount to vicious propensities” … .

The evidence establishes that, on the day of the incident, plaintiff sent a text message to a group of people that included defendant, as she had on previous occasions, to inform them that she would be at the dog park with her dog, who often played with Kane [defendant’s dog]. Immediately prior to the incident, plaintiff threw a ball for her dog, plaintiff’s dog retrieved the ball and, as he had frequently done in the past, Kane ran alongside plaintiff’s dog back toward plaintiff. Both dogs were running fast in plaintiff’s direction and, when it appeared that Kane was not going to veer off to the side, plaintiff turned away, whereupon Kane allegedly struck her leg. Despite evidence that Kane may have clumsily run around the dog park and similarly made contact with another visitor on a prior occasion, we conclude that, unlike situations in which a dog purposefully jumps onto or charges at a person … , “[Kane’s alleged] act of running into plaintiff in the course of . . . playfully [running alongside another dog at a dog park] merely consisted of normal canine behavior that does not amount to a vicious propensity” … . Long v Hess, 2018 NY Slip Op 04475, Fourth Dept 6-15-18

ANIMAL LAW (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DOG BITE (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this snow plow traffic accident case should not have been granted. The snow plow driver was backing up below the crest of a hill and plaintiff was unable to brake in time when he crested the hill. The Fourth Department held that there was a question of fact whether the snow plow driver acted in reckless disregard of the safety of others in violation of Vehicle and Traffic Law 1103:

Defendants failed to meet their initial burden of establishing that Marsh did not operate the snowplow with reckless disregard for the safety of others, and defendants thus were not entitled to summary judgment dismissing the complaint against them. Vehicle and Traffic Law § 1103 (b) “exempts from the rules of the road all vehicles actually engaged in work on a highway”… . However, the statute does not protect snowplow drivers “from the consequences of their reckless disregard for the safety of others” (§ 1103 [b]). The operator of a snowplow acts with such “reckless disregard” when he or she ” acts in conscious disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow’ ” … . The reckless disregard standard “requires a showing of more than a momentary judgment lapse” … .

Here, defendants’ submissions in support of the motion establish that Marsh had been a driver of the snowplow route for 15 years and was aware that an intersection where he could safely turn around was less than a quarter of a mile away. Despite that knowledge, Marsh drove the snowplow in reverse, in front of a hill that obscured his view of approaching traffic on a narrow, two-lane country road with a speed limit of 55 miles per hour, without first sounding his horn in warning. Marsh’s deposition testimony that he did not realize that he had collided with plaintiff’s vehicle until several seconds after the collision raises a question of fact whether he was utilizing his rear view mirrors while traveling in reverse. Chase v Marsh, 2018 NY Slip Op 04231, Fourth Dept 6-8-18

NEGLIGENCE (TRAFFIC ACCIDENTS, MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS,  QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE, MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SNOW PLOWS (TRAFFIC ACCIDENTS, MUNICIPAL LAW, QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT).

The Fourth Department determined the trial court properly prohibited cross examination of the plaintiff about his criminal history and plaintiff’s expert properly relied upon hearsay statements by plaintiff’s treating physician:

… [W]hile a civil litigant is granted broad authority to use the criminal convictions of a witness to impeach the credibility of that witness, the nature and extent of cross-examination, including with respect to criminal convictions, remains firmly within the discretion of the trial court … . …

It is well settled that ” opinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is equally well settled, however, that an expert is permitted to offer opinion testimony based upon facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ “… . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ “… , and “provided that it does not constitute the sole or principal basis for the expert’s opinion” … . Tornatore v Cohen, 2018 NY Slip Op 04145, Fourth Dept 6-8-18

NEGLIGENCE (MEDICAL MALPRACTICE, EVIDENCE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/MEDICAL MALPRACTICE (EVIDENCE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/CRIMINAL HISTORY (EVIDENCE, MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))

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DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined that the defect which caused the claimant’s slip and fall was not trivial as a matter of law and there were questions of fact about the defendant’s constructive and actual notice of the defect. Claimant is incarcerated and the slip and fall occurred in a walkway at a correctional facility:​

In claimant’s deposition testimony, which defendant submitted in support of the motion, claimant testified that he was proceeding along a walkway from the housing area to the commissary. It had rained, and a large puddle of water had accumulated on the walkway. Claimant attempted to step over the flooded portion of the walkway, but his foot came down on a portion of the walkway that was cracked and damaged. The concrete shifted under his foot, causing him to lose his balance, and he fell. …​

We also agree with claimant that defendant failed to meet its burden of establishing that it lacked actual or constructive notice of the allegedly dangerous condition … . In support of the motion, defendant submitted the affidavit of a correction officer who had worked at the prison for the prior 27 years. The correction officer averred that he was familiar with the walkway and its condition before claimant fell, that the concrete was broken and uneven, and that water can gather there after it rains, but he did not consider the condition to be dangerous. Furthermore, the correction officer averred that he periodically walked the premises to look for anything in need of repair, and claimant testified at his deposition that the walkway was cracked prior to his arrival at the prison and that it flooded every time it rained. Bennett v State of New York, 2018 NY Slip Op 04212, Fourth Dept 6-8-18

NEGLIGENCE (SLIP AND FALL, DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SLIP AND FALL (DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRIVIAL DEFECT (SLIP AND FALL,  DEFECT WHICH CAUSED CLAIMANT TO SLIP AND FALL WAS NOT TRIVIAL AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT HAD ACTUAL AND CONSTRUCTIVE NOTICE OF THE DEFECT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))​

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT).

The Fourth Department determined plaintiffs’ summary judgment motion in this vehicle-pedestrian accident case should have been granted. Plaintiff demonstrated the driver’s (Gorman’s) negligence and was not required to show the absence of comparative negligence:

Plaintiffs commenced this action seeking damages for injuries sustained by Michael Edwards (plaintiff) when he was struck by an ambulance driven by defendant Francine M. Gorman. At the time of the collision, plaintiff, a parking attendant, was tasked with instructing vehicles traveling in a two-lane, one-way “pass-through” road of the entrance loop of Strong Memorial Hospital on how to reach an alternate entrance for a nearby parking garage. Plaintiff was standing in the center of the pass-through road between the two lanes of travel, and Gorman struck him as she was slowing down for a stop sign at the end of the pass-through road. …

… [P]laintiffs were required to establish only that Gorman was negligent and that her negligence was a proximate cause of the accident. We conclude that plaintiffs met that burden by providing photographs, video footage and Gorman’s deposition testimony in which she admitted that she executed a wide turn through multiple lanes of the pass-through road, which constitutes a violation of Vehicle and Traffic Law § 1128 (a) … . In opposition, defendants failed to raise a triable issue of fact … . Although defendants successfully raised triable issues of fact with respect to plaintiff’s negligence, that is of no moment in the context of plaintiffs’ appeal. “To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault” … . Edwards v Gorman, 2018 NY Slip Op 04129, Fourth Dept 6-8-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/TRAFFIC ACCIDENTS (PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN GRANTED, PLAINTIFFS NEED NOT SHOW THE ABSENCE OF COMPARATIVE NEGLIGENCE (FOURTH DEPT))

QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT).

The Fourth Department determined defendant did not demonstrate plaintiff assumed the risk that his harness would become detached causing him to fall from defendant’s climbing wall:

The climbing wall amusement attraction included a safety harness worn by the patron and a belay cable system that attached to the harness by use of a carabiner. There is no dispute that the carabiner detached from the safety harness worn by plaintiff, and that plaintiff fell approximately 18 feet to the ground below.

The doctrine of assumption of the risk operates “as a defense to tort recovery in cases involving certain types of athletic or recreational activities” … . A person who engages in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . However, “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced” … . Here, we conclude that the court properly denied that part of defendant’s motion based on assumption of the risk inasmuch as it failed to meet its initial burden of establishing that the risk of falling from the climbing wall is a risk inherent in the use and enjoyment thereof … . Stillman v Mobile Mtn., Inc., 2018 NY Slip Op 04149, Fourth Dept 6-8-18​

NEGLIGENCE (QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))/ASSUMPTION OF THE RISK (CLIMBING WALL, QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))/CLIMBING WALL (ASSUMPTION OF THE RISK, QUESTION OF FACT WHETHER PLAINTIFF ASSUMED THE RISK OF FALLING FROM A CLIMBING WALL (FOURTH DEPT))

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CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department. over a two-justice dissent, determined the city’s refusal to defend and indemnify a police officer who was sued civilly for striking a civilian was arbitrary and capricious:

We respectfully disagree with the view of our dissenting colleagues that a 30-second-long video recording of a portion of the incident, considered in conjunction with the indictment, provides a factual basis for respondent’s implicit determination that petitioner was not acting within the scope of his employment and duties as a police officer. First, it is well settled that “[a]n indictment is a mere accusation and raises no presumption of guilt” … . Thus, the filing of an indictment against petitioner does not provide a factual basis to support the denial of a defense to petitioner in the civil action. Second, the video recording captured only part of the encounter between petitioner and the complainant, and did not capture the beginning or the end of the encounter. As a result, the recorded images of petitioner striking the complainant in the area of his legs and feet with a baton are unaccompanied by contextual factual information that would be essential to support a determination that petitioner’s actions fell outside the scope of his employment and duties as a police officer. Notably, the brief video clip shows a loud and chaotic intersection with a heavy police presence, and petitioner appeared to be dressed in police uniform and wearing a jacket with the word “POLICE” printed in bold letters. Three of the officers in the video appeared to be carrying batons, like petitioner, and one other officer appeared to have been engaged in a physical struggle with a civilian on the sidewalk. That struggle appeared to continue into the roadway before the other officer and the civilian disengaged, at which point the camera panned over to a parking lot where petitioner was already engaged with the complainant.

Although it is well settled that an employee’s conduct does not fall within the scope of his or her employment where his or her actions are taken for wholly personal reasons not related to the employee’s job … , we conclude that the video recording does not establish that petitioner’s actions were taken for wholly personal reasons unrelated to his job as a police officer. Matter of Krug v City of Buffalo, 2018 NY Slip Op 04118, Fourth Dept 6-8-18

MUNICIPAL LAW (EMPLOYMENT LAW, POLICE OFFICERS, CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, POLICE OFFICERS, CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT))/POLICE OFFICERS ( CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT))

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LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined local laws concerning health benefits for retired town employees were invalid because they were not enacted by referendum:​

Plaintiffs correctly acknowledge that the modification clauses in the 2009 Law and the 2014 Law run afoul of Municipal Home Rule Law § 23 (2) (f) because those laws were not enacted by referendum. “[A] local law shall be subject to mandatory referendum if it . . . [a]bolishes, transfers or curtails any power of an elective officer” (id.). Therefore, a local legislative body lacks the power to enact legislation curtailing the voting powers of its own members; such legislation cannot be enacted except by referendum. Here, the modification clauses in the 2009 Law and the 2014 Law curtailed the voting powers of the elected members of the Town Board by requiring a supermajority vote to enact certain kinds of legislation. The 2009 Law and 2014 Law are thus invalid inasmuch as they were not enacted by referendum. …

Where, as here, a local law is subject to a mandatory referendum, the failure to enact it by referendum renders the entire law invalid … . Parker v Town of Alexandria, 2018 NY Slip Op 04126, Fourth Dept 6-8-18

MUNICIPAL LAW (LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/MUNICIPAL HOME RULE LAW (LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/LOCAL LAWS (MUNICIPAL LAW, (LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))/HEALTH BENEFITS (MUNICIPAL LAW, EMPLOYMENT LAW, LOCAL LAWS CONCERNING HEALTH BENEFITS FOR RETIRED TOWN EMPLOYEES WHICH WERE NOT ENACTED BY REFERENDUM ARE ENTIRELY INVALID (FOURTH DEPT))

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT OF THE OWNER OR GENERAL CONTRACTOR (FOURTH DEPT).

The Fourth Department determined defendant’s (Pumpcrete’s) motion for summary judgment on the Labor Law 241 (6) cause of action should have been granted, but a question of fact precluded summary judgment in favor of Pumpcrete on the common law negligence cause of action:

Plaintiff was injured while guiding a concrete pump hose that was attached to a truck owned and operated by defendant Pumpcrete Corporation (Pumpcrete). An obstruction formed in the pump hose, causing wet concrete to suddenly be ejected from the hose and knocking plaintiff off of the scaffolding upon which he was standing. At the time of the accident, plaintiff was working for the general contractor, which had hired Pumpcrete to supply the concrete pumping equipment. …

With respect to the Labor Law § 241 (6) cause of action … , we note that, “while under that statute owners and general contractors are generally absolutely liable for statutory violations . . . , other parties may be liable under th[at] statute[ ] only if they are acting as the agents of the owner or general contractor by virtue of the fact that they had been given the authority to supervise and control the work being performed at the time of the injury” … . Pumpcrete satisfied its initial burden of establishing as a matter of law that it was not an agent of the owner or general contractor by submitting deposition testimony from plaintiff and the Pumpcrete pump operator that Pumpcrete lacked authority to supervise or control plaintiff’s work, and plaintiff failed to raise a triable issue of fact in response … . Rohr v Dewald, 2018 NY Slip Op 04160, Fourth Dept 6-8-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT OF THE OWNER OR GENERAL CONTRACTOR (FOURTH DEPT))

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