Case by Case: Winds of Change? Second Department Adopts Tougher View of Safe Place To Work

Case by Case: Winds of Change? Second Department Adopts Tougher View of Safe Place To Work

In November 2017, at Pillinger Miller Tarallo, LLP (“PMT”), we predicted that the Court of Appeals under Judge Janet DiFiore would begin to interpret the Labor Law more favorably for the construction industry and insurance industry. This would signal to the rest of the New York courts that Labor Law matters should be decided in a more even-handed fashion. A recent case from the Second Department demonstrates that this may indeed be occurring. In Ochoa-Hoenes v. Finkelstein, 173 A.D.2d 1080 (2d Dep’t, May 2019), the plaintiff was injured at a construction site which involved the erection of a modular home owned by the homeowners Finkelstein. The modular home components were manufactured by Signature Builders, Inc., and the defendant Vesta Development Group, an authorized representative of Signature Builders, Inc., was hired by the Finkelsteins to perform construction management services for the project. At the time of the accident, the plaintiff was employed by an electrical contractor hired by the Finkelsteins. The accident happened while the plaintiff was preparing for the installation of lights in the home’s basement. After noticing that a stack of plywood sheets that had been placed against the basement wall was resting on the electrical wires, the plaintiff attempted to move the stack himself, which caused it to tip over and strike his right ankle and foot. Plaintiff sued alleging common-law negligence against the defendants based upon their alleged failure to maintain the premises and to provide him with a safe place to work, which is the same standard as is codified in Labor Law §200. Notably, there were no Labor Law allegations pled against the defendants....
Case by Case: Court of Appeals Rules That Foreign Risk Retention Groups Are Not Subject To Insurance Law

Case by Case: Court of Appeals Rules That Foreign Risk Retention Groups Are Not Subject To Insurance Law

Requiring A Disclaimer As Soon As Reasonably Possible One of the linchpins of insurance coverage in New York is Insurance Law §3420(d)(2) which requires that a disclaimer be made as soon as reasonably possible.  This requirement applies to all insurance companies which are issuing or delivering liability policies in the State of New York, but does this apply to Risk Retention Groups who are not domiciled in New York, but are doing business in New York?  A recent Court of Appeals case clarified what is required by non-domiciliary Risk Retention Groups. By way of background, in 1988, the legislature amended Article 59 of the Insurance Law to provide for the formation and operation in New York of Risk Retention Groups.  A Risk Retention Group (“RRG”) is an issuer of insurance owned and operated by insureds who work in the same industry and are exposed to similar liability risks.  When the legislature authorized RRGs, it provided that non-domiciliary RRGs doing business in New York shall comply with the unfair claims of settlement practices provisions as set forth in §2601 of the Insurance Law.  Insurance Law §2601 lists acts by insurers which, if committed without just cause and performed with such frequency as to indicate a general business practice, shall constitute unfair settlement practices.  This included failing to promptly disclose insurance coverage pursuant to Insurance Law §3420(d). Insurance Law §3420(d) contains two paragraphs:  The first requires insurers to respond to requests for information by insureds or injured individuals, and mandates that insurers inform the requesting party within statutory deadlines whether the insured has a particular policy, the coverage limits of that...
Ice Storm in Progress

Ice Storm in Progress

Appellate Division Affirms Lower Court’s Grant of Summary JudgmentOn Basis of Plaintiff’s Own Testimony That There Was an Ice Storm in Progress Sometimes with summary judgment motions as with everything else, persistence is the key. Unfortunately, lower courts don’t always make the correct decision and sometimes, it is necessary to make a motion to re-argue when the Court makes the wrong decision. A recent case in which Pillinger Miller Tarallo, LLP won a summary judgment for the building owner we represented, is a good example of this and how a plaintiff’s own testimony can be used to defeat her case. In Perez v. The Pinnacle Group, plaintiff, who was a tenant in the building in the Bronx, went to the lobby where she was waiting for her son who was going to drive her to a church event on January 18, 2015, which would turn out to be one of the worst ice storms in the region’s history. While she was in the lobby, the plaintiff noticed that precipitation was falling. However, she was not aware that ice was falling. When the plaintiff’s son failed to appear, she decided to drive herself. The plaintiff exited the building and went to the parking lot where her vehicle was parked. As she reached the end of the sidewalk, she saw a ramp which led from a sidewalk to the street level and into the parking lot. The plaintiff took a step off the sidewalk onto the ramp with her right foot when she slipped. Prior to falling, the plaintiff looked down and saw small balls of ice. The plaintiff laid on...

A GOOD WIN

First Department Unanimously Affirmed Trial Court Decision Granting PMT’s Summary Judgment PMT was defending the plaintiff’s employer.  The Plaintiff fell 20 feet off a catwalk.  The way the indemnification clause was written, if there was a finding of even 1% negligence against the employer, the employer would have been required to indemnify the building owner. Since it was unanimously affirmed,  there was no option to go to the Court of Appeals. The Court held no negligence by the plaintiff’s...
New York Courts to Begin Presumptive Mediation for Civil Cases (ADR)

New York Courts to Begin Presumptive Mediation for Civil Cases (ADR)

By the end of this year, New York State Courts are set to have a system in place requiring civil litigation to attempt to be resolved through presumptive mediation, rather than in open court. This future transition to presumptive mediation will significantly impact how civil cases are litigated in New York State. In an effort to make court proceedings more efficient and cost-effective, New York State Courts are implementing new protocols to alleviate backlogs throughout the judiciary system. For years the New York judicial system has attempted to implement alternatives to in-court litigation with little success. New York courts are following New Jersey and Connecticut’s approaches to creating alternatives to in-court litigation for civil cases – presumptive mediation. New York State’s proposed system mimics that of New Jersey, which has been utilizing an automatic presumptive mediation program for more than a decade. Following the implementation of court-sponsored ADR in New Jersey, fewer than two percent of cases had a jury trial. Statistics from the New Jersey Administrative Office of the Courts show that a third of cases referred to mediation are resolved within the first session and 10 percent of cases settle within 90 days of the termination of mediation. Within the coming months, New York administrators will be working in tandem with the state’s administrative and trial courts to expand the number and scope of the court-sponsored ADR programs. In doing so, the Office of Court Administration plans to issue uniform rules for the program as the courts take advantage of the existing resources in place. The statewide program is expected to begin its rollout in September 2019....