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Contract Between Employer and Contractor Did Not Create a Duty Owed to Employee/Instrument of Harm Doctrine Not Applicable

Plaintiff was standing on a barrel performing work for his employer.  In reaching for a tool he grabbed onto some bricks on a column.  The bricks came loose and plaintiff lost his balance and fell.  Plaintiff sued the parties responsible for installing the bricks six years before (pursuant to a contract with the employer).  In affirming summary judgment to the defendants, the Fourth Department wrote:

Here, defendants established as a matter of law that they did not owe any duty to plaintiff, and plaintiff failed to raise a triable issue of fact. Although defendants had contractual obligations with respect to the construction of the project for plaintiff’s employer, as a general rule “a contractual obligation, standing alone, will . . . not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract …. There is an exception to that general rule, however, “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” …, thereby “creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk” …. Contrary to plaintiff’s contention, the instrument of harm doctrine does not apply to the facts of this case, and thus there was no duty of care running from defendants to plaintiff based on that doctrine ….  Spaulding v Loomis Masonry, Inc. et al, CA 12-01395, 32, 4th Dept, 4-26-13

 

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Summary Judgment In Favor of Plaintiff-Company in Trespass Action Against Protesters Affirmed

The Fourth Department affirmed the grant of summary judgment to plaintiff-company in its trespass action against People United for Sustainable Housing (PUSH).  PUSH had staged “demonstrations concerning plaintiff’s use of funding it received to assist low-income customers with heating costs and increasing the energy efficiency of their homes.”  The Court determined the allegations of trespass were subject to the heightened standard of proof under the Civil Rights Law and further determined the heightened standard had been met:

According to [PUSH], this action constituted an impermissible Strategic Lawsuit Against Public Participation (SLAPP action) in violation of Civil Rights Law § 76-a (1), because it hindered defendants’ efforts to challenge the use by plaintiff of the funding in question … . * * *

We … reject plaintiff’s contention that the allegations in the trespass claims against PUSH do not constitute allegations within the meaning of a SLAPP action, inasmuch as they are indeed materially related to PUSH’s challenge to plaintiff’s application to renew its CIP permit. Thus, plaintiff’s action against PUSH was subject to “a heightened standard of proof” to avoid dismissal … . * * *

“The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission . . . , or a refusal to leave after permission has been granted but thereafter withdrawn” … . It is well established that trespassing is not a protected First Amendment activity … . National Fuel Gas Distribution Corporation v PUSH Buffalo, et al, 318, CA—12-01219, 4th Dept. 3-22-13

 

Scaffold, Safety Railing and Cross Braces Are Safety Devices

In affirming the denial of summary judgment to the plaintiff in a Labor Law 240 (1) action based upon plaintiff’s fall from a scaffold, the Fourth Department noted that a scaffold, safety railing and cross braces are safety devices:

We agree with defendants … that the scaffold itself and the safety railing and cross braces on it constitute safety devices, and that the evidence submitted by plaintiff raises an issue of fact whether the safety devices provided by defendants afforded him proper protection, or whether additional devices were necessary … .

Justice Whalen dissented, arguing that, under the circumstances of plaintiff’s work on the scaffold, the safety railing and cross railings were not adequate safety devices. Kuntz v WNYG Housing Development Fund Company, Inc., et al, 1382, CA 12-00986, 4th Dept. 3-22-13

 

Ice and Snow Accumulation of Floor of Building Constituted Negligence as a Matter of Law 

The Fourth Department determined a worker was entitled to summary judgment under Labor Law 241 (6) based on a slip and fall on ice and snow.  The ice and snow had accumulated on the floor of a building where the worker was framing interior walls:

Plaintiff alleged that defendants were liable for his injury pursuant to Labor Law § 241 (6) based on their alleged violation of 12 NYCRR 23-1.7 (d), which concerns slipping hazards arising from, inter alia, ice and snow. It is undisputed that there were in fact accumulations of ice and snow and that [defendant construction company] was made aware of that fact. Defendants presented no evidence in opposition to demonstrate that the floor was reasonably and adequately safe despite the violation (see § 241 [6]), and thus the court properly determined as a matter of law that defendants were negligent. Thompson v 1241 PVR, LLC, et al, 270, CA 12-01485, 4th Dept. 3-22-13

 

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Falling Off X-Ray Table Raised Question of Fact

The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays:

Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff[’s decedent] was not injured thereby’ ” … . With respect to decedent’s fall from the X ray table, defendant failed to present competent proof that it did not deviate from the applicable standard of care when the technician left the room to develop the X rays that had just been taken, with decedent still on the table.  Welsh, et al, v St Elizabeth Medical Center, 332, CA 12-01576, 4th Dept. 3-22-12

 

 

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Housing for Actors and Theater Staff Deemed Tax-Exempt

The Fourth Department determined that the petitioner had demonstrated its property, which was used to house actors and staff for seasonal theaters and generated no income, met the criteria for tax-exempt property under Real Property Tax Law 420-a:

According to [the] director, the housing of actors and staff together promotes countless hours of volunteer work in the form of “running lines together, discussing creative ideas, working on wardrobes, [and] creating sets,” all of which further the purposes and mission of petitioner. That director also averred that the properties are not open to the public and create no income for petitioner. …. [W]e note that housing used to further an exempt purpose has been found tax exempt in numerous other contexts… .  Matter of Merry-Go-Round Playhouse, Inc. v Assessor of City of Auburn, et al, 268, CA 12-01797, 4th Dept. 3-22-13

 

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Statute of Limitations to Reopen Tax Foreclosure Default Judgment Applies In Face of the Claim that Respondent Was Never Notified of the Proceeding

The Fourth Department determined the one month statute of limitations for a motion to reopen a default judgment of tax foreclosure applied even where the respondent asserts he or she was not notified of the proceeding:

We agree with petitioner, however, that respondent’s motion was untimely. “A motion to reopen a default judgment of tax foreclosure ‘may not be brought later than one month after entry of the judgment’ ” … . Here, the judgment of foreclosure was entered on March 31, 2010, and respondent did not move to vacate it until September 12, 2011, nearly 18 months after it was entered. Contrary to respondent’s contention, the statute of limitations set forth in RPTL 1131 applies even where, as here, the property owner asserts that he or she was not notified of the foreclosure proceeding … .  Matter of Foreclosure of Tax Liens …, 353. 12-01666, 4th Dept. 3-22-13

 

Charges Based On Information Learned by the Improper Opening of Inmate’s Mail Required Annulment of the Determination

The Fourth Department annulled a determination finding petitioner had violated inmate rules which was based entirely on the contents of the inmate’s mail (opened and read by prison authorities).  The Fourth Department wrote:

Pursuant to 7 NYCRR 720.4 (f) (2), the prison superintendent must request documentation from the person seeking authority to open incoming mail so as “to determine that there are sufficient grounds for reading the mail, that the reasons for reading the mail are related to the legitimate interests of safety, security, and order, and that the reading is no more extensive than is necessary to further th[o]se interests.” Here, the evidence presented at the hearing did not establish that the superintendent complied with the above mandate before authorizing the opening of petitioner’s mail. Because evidence that was admitted at the hearing was seized in contravention of respondent’s rules and regulations, the Hearing Officer’s determination based on that evidence “must be annulled and all references thereto expunged from petitioner’s file”… . Matter of Singletary v Fischer, 167, TP 12-01564, 4th Dept. 3-22-13

 

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Disorderly Conduct as a Family Offense Needn’t Occur in a Public Place

The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public:

Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior. We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ”  Matter of McLaughlin v McLaughlin, 330, CAF 12-01556, 4th Dept. 3-22-13

 

 

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Choice of Forum; Choice of Law

The Fourth Department determined a choice of forum clause must be enforced and noted the difference between choice of forum and choice of law:

Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1). According to the “Standard Terms and Conditions” of the agreement …, “[a]ny litigation arising in any way from this Agreement shall be brought in the Courts of Common Pleas of Pennsylvania having jurisdiction.”  That forum selection clause is “ ‘prima facie valid and enforceable unless it is shown by the challenging party to be[, inter alia,] unreasonable, unjust, [or] in contravention of public policy’ ” … 

Contrary to plaintiff’s contention, the enforcement of the forum selection clause does not contravene New York public policy … .

The “Standard Terms and Conditions” also provide that “[t]he laws of the Commonwealth of Pennsylvania shall govern the validity of this Agreement, its interpretation and performance,” and plaintiff contends that the enforcement of the “limitation of legal liability” provision of the agreement pursuant to Pennsylvania law violates General Obligations Law §§ 5-322.1 and 5-324 and would thus contravene New York public policy. That contention, however, concerns choice of law, not choice of forum, and it may properly be raised before a court in the forum chosen by the parties in Pennsylvania … .“[O]bjections to a choice of law clause are not a warrant for failure to enforce a choice of forum clause” … .  Erie Insurance Company of New York, … v AE Design, Inc., 337, CA 12-01549, 4th Dept. 3-22-13

 

 

 

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