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,...
Unprecedented Business Disruptions Caused by the COVID-19 Crisis

Unprecedented Business Disruptions Caused by the COVID-19 Crisis

By Daniel O. Dietchweiler  and Marc H. Pillinger. Unprecedented business disruptions caused by the COVID-19 crisis have shuttered many non-essential businesses including retail stores, restaurants, office buildings, and other commercial premises. These are extraordinary times and the government has heightened protections relating to transmission of the virus during this pandemic by taking extraordinary measures. As the impact of the COVID-19 pandemic continues to evolve, businesses should carefully consider the issues that are likely to play a significant role in the short and long term which may be the subject of disputes and litigation to come. Early retention of counsel to assess these issues may help to reduce litigation risk. The COVID-19 crisis has undermined stock markets, dropped bond markets to historically low yields, and threatens to undermine the world economy in ways not seen since the Great Depression. It is fair to foresee our society undergoing devastating economic dislocation both in the commercial sector and to consumers. As a result, some state and local governments have imposed emergency measures intended to separate people in an effort to mitigate transmission of the virus. Many businesses in the “non-essential” service sector have shifted from office based business operations to remote home based work environments. Though this creates a safer environment for our society to work through this crisis, it nevertheless will result in contractions throughout the economy generally. Thus, businesses may face threats to their very existence and in such times, this crisis may lead struggling businesses to make first party claims for business interruption under their existing policies. Business interruption coverage is added to a commercial property policy when an...

Marc Pillinger to speak at the Bronx County Bar Association – February 11, 2020

BRONX COUNTY BAR ASSOCIATION Lunch-time CLE Program   INDEMNIFICATION: Contractual and Common Law, Risk Transfer is key This Course is Appropriate for Experienced & Newly Admitted Attorney Faculty: Marc H. Pillinger, Esq.Pillinger Miller Tarallo, LLP Check In: 12:45 P.M. Location: Bronx Supreme Court Building851 Grand Concourse, Bronx, New York 10451 *Cost $10.00 Bronx Bar Members – $15.00 Non- Members Date: Tuesday, February 11, 2020 Time: 1:00 P.M. – 2:00 P.M. Room: 819 Credits 1 – Professional Practice Requirement   Refreshments to be Provided by BANK OZK Peter T. Ridge, Esq.President Donna L. Cook, Esq.ChairpersonCivil Lunchtime CLE Program *Financial Hardship Policy: “Any person who submits an affirmation demonstrating financial hardship will be permitted to attend this CLE course without...
Changes in Kings County As To Jury Selection and New Mandatory Alternative Dispute Resolution

Changes in Kings County As To Jury Selection and New Mandatory Alternative Dispute Resolution

By Marc H. Pillinger. New trial procedures will be going into effect on January 1, 2020, in Kings County.  When you select a jury after January 1, 2020, when you finish picking, you will immediately report for assignment and be sent out for trial on that day.  Under the new system, “cases will be assigned to a trial judge immediately upon selection of the jury.”  There will no longer be a pick and pass system for Supreme Court, Kings County.  So, hypothetically, if thirty cases are sent out to pick, Administrative Judge Knipel assures the Bar that he will have rooms to pick in the jury selection area.  Judge Knipel also stated that there should not be any “serious problem in terms of a backlog.”  This change was objected to by both the plaintiffs’ and the defendants’ bar. Furthermore, going forward, the “pick date” will be two weeks before Standards & Goals is reached instead of the current three. This change will require earlier planning for witnesses and experts.  It appears that Affidavits of Engagement will not be honored. Kings County has also started a new mandatory Alternative Dispute Resolution (ADR) Plan.  This new procedure is to expedite the early resolution of civil litigation.  In the new system, according to Judge Knipel, approximately 45 to 60 cases will be randomly selected for ADR on a daily basis.  Many of these cases will be chosen for ADR 45 days after a Preliminary Conference is held.  This will result in ADR being held, in most cases, prior to depositions being conducted. This new program went into effect on November 12, 2019. ...
Case by Case: Court of Appeals: Out-of-Possession Landlord

Case by Case: Court of Appeals: Out-of-Possession Landlord

By Wendy Eson and Marc H. Pillinger. In a recent decision, He v. Troon Mgmt., Inc., 2019 WL 5429374 (N.Y. Oct. 24, 2019), the Court of Appeals [reversed the First Department and] held that an out-of-possession landlord is liable for a violation of NYC Administrative Code Section 7-210 – failure to maintain the sidewalk and keep it clear of snow and ice. The Court found that “while an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance imposed under section 7-210”. The Court noted that the landlord can still seek indemnification from its tenant, if the tenant has agreed to maintain the property in the landlord’s absence. This case emphasizes the importance of having a lease with contractual indemnification language and insurance requirements between the Landlord and Tenant.  In addition, the Landlord must make sure that the tenant has appropriate insurance in place, because we are now dealing with a non-delegable duty for a Landowner under Section 7-210. Should you have any questions, please call our office at (914) 703-6300 or contact: Marc H. Pillinger, Executive Partner mpillinger@pmtlawfirm.com Jeffrey T. Miller, Executive Partner jmiller@pmtlawfirm.com Thomas M. Bona, Partner tbona@pmtlawfirm.com...