Third Department

Third Department Considers Whether Labor Law 240(1) Applies to Injuries Sustained During "Repairs"

In Kirk v Outokumpu Am. Brass, Inc., 2006 NY Slip Op 07647, the plaintiff was injured when he fell from a ladder while performing work during a routine shut down period.  The work consisted of disabling the production machinery in order to inspect the machinery and replace broken or worn out parts.

The Court noted that routine maintenance is not a protected activity that falls within the ambit of Labor Law s. 240(1) and concluded that the plaintiff's work in this case fell under that exception:

In our view, plaintiff's own description of the work as a "repair" as well as his reliance on invoices which labeled the job similarly failed to create a triable issue of fact concerning the nature of the work performed. In the absence of proof that the machine or object being worked upon was inoperable or not functioning properly...Supreme Court properly concluded that the work performed by plaintiff was in the nature of routine maintenance...Moreover, even if, as plaintiff contends, there was construction and repair work taking place elsewhere on the job site at the time of plaintiff's injury, there is no indication that plaintiff's work was integrated therewith and, thus, he may not rely upon work conducted by others in order to bring him within the statute's protections...(Internal citations and quotations omitted).

Unfortunately for this particular plaintiff, that determination resulted in the Court's affirmance of the trial court's  dismissal of both his Labor Law s. 240(1) and 241(6) claims.   And, his Labor Law s. 200 claim had been dismissed previously.

Another one bites the dust.

What Not to Say At Sentencing

I came across this Third Department case from December of 2005 while conducting research for a client of mine:  People v. Thomas, 2005 NYSlipOp 09579.  The defendant was charged with the felony of Aggravated Harassment of an Employee by an Inmate as a result of allegations that he threw a combination of urine and fecal matter at a corrections officer. 

He was found guilty after a jury trial and at sentencing stated:  "If I had to do it again, I would do it all over again. He is lucky that I couldn't get to his ass where I could shove a shank in his f**ing neck."

Talk about shooting yourself in the foot.   I've been wracking my brain, and can't come up with a more damaging statement to make at sentencing.  Ideas, anyone?

Not surprisingly, he was sentenced as a persistent felony offender to 25 years to life consecutive to the sentence that he was already serving.  And, he had the cajones to appeal, in part based upon the insufficiency of the evidence.  Quite a character, Mr. Thomas is, dontcha think?

UPDATED:  Eric from Indignant Indigent was kind enough to point out that I apparently  ripped this post off, title and all, from a post at his blog from January.  It was totally inadvertent, and presumably subconscious, since I do vaguely recall the post from his blog now that he's brought it to my attention.  My only excuse is that it was a 3d Dept. case, and he rarely addresses cases from other appellate departments, so it didn't occur to me that he might have covered it.  My humblest apologies are extended!

Notice of Claim Pitfalls

A recent Third Department case, Forrest v Berlin Cent. School Dist., 2006 NY Slip Op 04124, is a great example of the dangers of proceeding pro se and the pitfalls that can be encountered when faced with the very specific Notice of Claim requirements set forth in General Municipal Law s. 50-e.

In Forrest, the pro se plaintiff alleged that he'd been defamed by employees of the defendant on October 9, 2002.  He incorrectly filed a Notice of Claim regarding the incident by filing it with the County Clerk in February of 2003, and based upon an alleged misunderstanding of the law, did not serve it upon the defendant until  October 8, 2003, nearly one year after the accrual of the cause of action.

The plaintiff subsequently moved for leave to file a late notice of claim and for leave to file a summons and amended complaint, and the trial court denied his motion.

The Third Department set forth the factors to be considered in determining whether the trial court's decision was an abuse of discretion:

The determination of such a motion is discretionary and involves consideration of several factors including, as relevant here, whether defendant acquired actual knowledge of the facts essential to the claim within 90 days after its accrual, any reasonable excuse offered for delay in filing and prejudice to defendant due to the late notice.

The Court noted that the plaintiff's alleged ignorance of the law was no excuse and that the plaintiff had failed to offer an acceptable reason for the delay.  Accordingly, the Court concluded that the trial court did not abuse its discretion when it denied the motion and that the defendant had suffered prejudice as a result of the delay:

Although defendant was aware that its employees made a report that plaintiff potentially neglected his child, and that plaintiff disagreed with that report, defendant was not aware of the facts alleged by plaintiff to support his claim, namely that this report was false and made with malice, thereby defaming plaintiff and causing him emotional injuries. Without such awareness, defendant had no reason to conduct an investigation.  (Internal citations omitted).

In a final twist of the knife, the Court noted that, in any event, the claim itself was "patently meritless" and that permitting him to serve a late notice of claim would have been "an exercise in futility."

Ouch.  It was a bad day for Mr. Forrest--a bad day, indeed.

Third Department Considers Labor Law s. 240(1)'s Applicability to Falling Utility Pole

In a decision decided today, Zirkel v. Frontier Communications of Am., Inc., 2006 NY Slip Op 03947, the Third Department considered the plaintiff's claim that the the defendants were strictly liable for his injuries that occurred while he was at work and in the process of removing old utility poles, when one fell and hit him on the head.

The plaintiff alleged that since the utility pole was caused to fall due to the effects of gravity, summary judgment in his favor was appropriate.  The Court disagreed and stated that:

While plaintiff's job assignment that day indeed envisioned that the subject pole would ultimately be removed from the ground by a hydraulic powered winch attached to a derrick truck, it fell before the winch had even been attached to the pole. In this regard, it is axiomatic that Labor Law § 240 is not intended to cover all dangers tangentially related to gravity. Therefore, in order for a worker struck by a falling object to recover under Labor Law § 240, he or she must be able to show that it fell while being hoisted or secured. Here, the utility pole which struck plaintiff was not being hoisted or secured at the time it fell; therefore, Supreme Court appropriately granted defendants summary judgment on this claim. (Internal citations and quotations omitted.)

Third Department Holds "Proof of Claim" Is Not a Necessary Prerequisite to Pursuing SUM Claim

In Matter of Nationwide Mut. Ins. Co. v. Mackley, the insurer disclaimed its insureds' SUM claim on the grounds that the insureds had failed to provide a "proof of claim" pursuant to the terms of the insurance contract. 

The underlying automobile accident occurred on June 8, 2003 and the insureds' attorney sent the insurer a letter dated July 1, 2003 in which he notified the insurer of the no-fault claim and of a "potential uninsured/ underinsured motorist claim."   The insureds' attorney sent another letter dated July 15, 2003 and enclosed a police report which indicated that no other coverage existed for any other policy in the household or from the vehicle involved in the accident.

In January 2004, the insureds' attorney notified the insured that a SUM claim would be pursued, and the insurer then sent a letter enclosing a "proof of claim" form, which was not returned until April 14, 2004.  In the meantime, the insureds' attorney sent medical records to the insurer in February 2004, and the insurer disclaimed coverage on March 29, 2004 due to the insureds' failure to provide the "proof of claim" form.

The Court noted that:

The Court of Appeals has recently held that "where an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage" (Rekemeyer v State Farm Mut. Auto Ins. Co., 4 NY3d 468, 476 [2005]; see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496-497 [2002]; cf. Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339-340 [2005]). The rationale in Rekemeyer applies here...

The Court concluded that since the insurer had failed to establish prejudice as a result of the insureds' failure to provide the "proof of claim" in a timely manner, that it should not be allowed to disclaim coverage.

It would seem that the lesson to be learned is that form over function isn't always the rule. 

Third Department Rejects Challenge to Contraception Law

On January 12, 2005, the New York Appellate Division Third Department upheld a law requiring that employers who provide prescription drug coverage include coverage for contraceptives (hat tip:  Religion Clause).  In Catholic Charities of Diocese of Albany v. Serio, a number of employers that were religious organizations, but did not meet the narrowly defined statutory exemption for "religious employers" challenged the Women's Health and Wellness Act (WHWA), a comprehensive statutory initiative intended to improve group health insurance benefits for women's preventative health care.

The Court considered the religious organizations' arguments that the statute violated their state and constitutional rights by providing an exemption only for religious employers that focused on ecclesiastical as opposed to secular activities.  The Court concluded that:

while we recognize the burdens imposed upon plaintiffs' sincerely held religious beliefs by the WHWA's contraceptive coverage mandate, and the dilemma in which plaintiffs find themselves, our analysis leads us to the conclusion that the challenged provisions of the WHWA are not unconstitutional.

The New York Law Journal discusses the case more fully in this article.