Recent Court of Appeals Decision – Labor Law: Maybe Things Aren’t Changing After All

Recent Court of Appeals Decision – Labor Law: Maybe Things Aren’t Changing After All

By Marc H. Pillinger. The Court of Appeals in the case of Bianca-Neto v. Boston Road II Housing Development Fund Corp., 34 N.Y.3d 1166, 121 N.Y.S.3d  753 (2020), in a 4/3 decision, has arguably used the concept of acquiescence to expand liability under Labor Law 240 or at least to narrow the scope of the recalcitrant worker defense. Plaintiff was standing on a scaffold frame when he unhooked himself and rather than leave using the stairs, or a hoist, climbed through a window cut-out in the building and fell.  The general contractor had previously issued standing orders not to enter the building through the window cut-outs, but there was no evidence that this Order was conveyed to the plaintiff.  There was testimony, however, that plaintiff and his co-workers had used this method in the past.  In reversing both the Supreme Court and Appellate Division, the Court of Appeals held that it was a question of fact as to whether the plaintiff knew he was expected to use “safety devices” which precluded summary judgment.  The Court pointed out that entering through the window cut-outs was “an apparent accepted practice of entering the building” to which the defendants had acquiesced, reasoning that this might have negated the normal and logical inclination to use the scaffold, stairs or hoist to descend, in which case plaintiff’s conduct would not have been the sole proximate cause of his injury nor would he have been a “recalcitrant worker.” It appears the Court used the concept of “acquiescence” to narrow the recalcitrant worker defense. The Appellate Division, First Department, in Kolakowski v. 10839 Associates, 2020 WL 3579548,...
The PMT Advantage – Six PMT Attorneys Acknowledged for a High Degree of Peer Recognition and Professional Achievement

The PMT Advantage – Six PMT Attorneys Acknowledged for a High Degree of Peer Recognition and Professional Achievement

What does it mean to have The PMT Advantage on your side? Outstanding lawyers. Period. Each PMT attorney selected to a Super Lawyers list has undergone a multi-phase selection process. Six PMT attorneys received this accolade for multiple years in a row. Being honored by Super Lawyers illustrates the dedication and commitment to achieving success for our clients. Only the top five percent of each state’s attorneys are selected. PMT provides our clients with swift, cost-effective resolution of cases. PMT has the experience and technology to successfully handle your legal concerns. PMT’s team approach brings together several highly skilled PMT attorneys within the firm to deliver a powerhouse defense for the client in each case. Our research team is second to none. We educate our clients through webinars and accredited courses. We strongly believe in diversity and offer several different languages for interacting with clients. All of our offices utilize high-end safety protocols and protecting the client is always at the forefront of our mission. At PMT you receive Marc Pillinger’s vast experience, Jeffrey Miller’s renowned negotiation skills, Neil Sambursky’s sought after products liability, defense and insurance coverage expertise, Craig Goldwasser’s success with a wide variety of complex and high exposure cases, Kimberly Carulli’s wide range of practice areas and Seth Frankel’s intense focus on civil litigation. All of the attorneys at PMT provide a singular vision…results, value and outstanding service. Marc H. Pillinger Executive PartnerSuper Lawyers2013 – 2020 Jeffrey T. Miller Executive PartnerSuper Lawyers2016 – 2020 Neil L. Sambursky Partner Super Lawyers2014 – 2020 Craig M. Goldwasser PartnerRising Stars2015 – 2020 Kimberly A. Carulli AssociateRising Stars2015 – 2020...
NY Governor Suspends Statute of Limitations

NY Governor Suspends Statute of Limitations

By John A. Risi. September 2020 – Update As New York State settles into its “new normal,” Governor Cuomo continues to issue executive orders addressing matters from school openings to procedures for public hearings.  His latest Executive Order (EO-260), dated September 4th, 2020, continues the tolling of the Statute of Limitations through October 4th, 2020, with a minor exception lifting the toll relative to the time to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. July 2020 – Update While all regions of New York State are in different phases of the re-opening process, as new COVID-19 cases largely remain at their lowest levels in New York State, Governor Andrew Cuomo continues to take a more cautious approach to re-opening, which can be seen in his most recent Executive Order.  The Order (202.48), continues to toll New York’s statute of limitations for the commencement of lawsuits and even the filing of Notices of Claim (a legal pre-requisite to commencing litigation against governmental entities and municipalities) through August 5, 2020. The governor had initially taken this step on March 20, 2020 and signed subsequent orders continuing the toll, including his most recent order of July 6, 2020. Included in the tolling are any specific time limits relating to notices (such as a Notice of Appeal) and motions. PMT will continue to follow important developments such as this most recent Executive Order and keep our valued partners abreast of all matters of significance to our shared business interests as we appreciate the recent...
New York Workers’ Compensation Board Clarifies: Workers Can Receive Compensation Benefits if They Get COVID-19 While Working

New York Workers’ Compensation Board Clarifies: Workers Can Receive Compensation Benefits if They Get COVID-19 While Working

By Thomas M. Bona and Anthony M. Napoli. The New York State Workers’ Compensation Board has issued guidance and clarified that a worker who contracts COVID-19 while working is entitled to Workers’ Compensation benefits. The Board noted that the claim would be reviewed by the employer’s Workers’ Compensation insurance carrier and if the insurance carrier accepts the claim, the COVID-19 claim would be covered and compensable. If the carrier disputes the claim, a judge at the Workers’ Compensation Board will decide whether the claim should be paid. The judge would listen to the testimony of the worker and testimony of the medical provider to decide whether the worker was exposed to COVID-19, the extent of the exposure and whether the exposure to COVID-19 was prevalent in the work environment. The Board noted that most workers will never be able to point to the moment or method of exposure to COVID-19, but workers can demonstrate the significantly elevated risk in their workplace by demonstrating the nature and extent of their work in an environment or where exposure to COVID-19 was prevalent. The Board advised that the issue of causality regarding Workers’ Compensation claims resulting from COVID-19 is of a great importance. Accurate documentation regarding the patient’s work exposure is critical for workers to obtain appropriate benefits. Additionally, the provider’s opinion regarding the likelihood of work-related disease transmission should be included in the medical narrative. If the provider believes that the worker in their medical judgment, is likely to have contracted COVID-19 through a work exposure, it should be reported as such. The Board advised that a medical report from an...
PMT Delivers a Win: Double Shot – PMT Strategy Obtains Early Win and Saves Defense Costs

PMT Delivers a Win: Double Shot – PMT Strategy Obtains Early Win and Saves Defense Costs

By Neil T. Veilleux and Thomas M. Bona. Court: Supreme Court of the State of New York, Bronx County Judge: Hon. Lucindo Suarez Case Type: Construction Caption:Frank DiFrank v. Henegan Construction Co., et al. Index No.: 25556/2018 Decision Date: August 10, 2020 Decision: Summary Judgment Summary Judgment motions are designed to allow courts to narrow down the parties to a suit so that marginal or uninvolved parties can be dismissed and freed from the seemingly endless lifespan and costs of a lawsuit. It is difficult to win motions for summary judgment under the best of circumstances, in part because many judges refuse to dismiss wrongly-named parties under the guise that perhaps some scintilla of evidence will be uncovered in discovery. The sad truth is that judges leave these parties in so that they will have to pay their way out of lawsuits by financially contributing to a settlement. The aggressive defense that PMT prides itself on looks for opportunities to get our clients out of cases early which saves defense costs. And we are delighted when a judge takes our lead and grants our motion for summary judgment. In DiFrank v. Henegan Construction Co., LLC, the plaintiff was injured when he slipped and fell on a hose/wire on a construction site. Plaintiff asserted claims under Labor Law Sections 200; 240(1); 241(6) and common law negligence. We moved for summary judgment dismissing the case before depositions were even held since we were not present and had no connection to plaintiff’s injury-producing work. We submitted our contract and an affidavit from an executive vice president that demonstrated that we did not start work...