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,...
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...
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...
Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

By Lawrence N. Rogak. Brand Medical Supply v. Unitrin Advantage Ins. Co., 2020 NY Slip Op 50687 (App Term 2d Dept) Many kinds of lawsuits require, or at least employ, expert witnesses on a wide variety of topics, and indeed it seems that for every topic there is an expert somewhere who is willing to testify (and another one willing to refute them). One issue frequently encountered in using experts is the timing of the disclosure to the adverse party of the identity and substance of the expert’s opinion. Very often, courts hold that the expert witness disclosure required by CPLR 3101(d), if demanded by one’s adversary, must be made prior to filing the Note of Issue, with the penalty being preclusion (see, e.g., Kozlowski v. Oana, 102 AD3d 751 (2d Dept 2013 [defendant’s expert precluded in dental malpractice suit]). In the context of New York no-fault litigation, experts (usually employed only by defendants) are often precluded on the grounds of late disclosure as well. But now, the Appellate Term has carved out an exception to the timely disclosure rule where the expert is a peer review doctor upon whose opinion the claim was denied and whose report was annexed to an earlier summary judgment motion. At the trial, defendant’s only defense was the medical necessity of the services at issue (as is often the case in New York no-fault suits). Defense counsel called its expert witness, the peer review doctor, to the stand, and plaintiff’s counsel objected on the grounds that a formal response to its demand for expert witness disclosure had never been served. The trial judge...
Marc Pillinger Joins Esteemed Panelists on The SIP

Marc Pillinger Joins Esteemed Panelists on The SIP

Marc Pillinger, executive partner at Pillinger Miller Tarallo, LLP has been a practicing attorney for over 35 years. He is a noteworthy and prominent attorney in the areas of Construction, Labor Law and environmental and toxic torts and is listed in Who’s Who in Environmental Law and Kipling’s Who’s Who. Marc is a lecturer for the New York State Bar Association, N.Y.S. Academy of Trial Lawyers, Environmental Committee of CLM, numerous insurance carriers and brokers and the Insurance Society of Philadelphia. Marc participated as part of an esteemed panel on “The SIP” (Serious Insurance Podcast) for an in-depth discussion on topics affecting the construction and real estate risk industry during COVID-19. Marc’s input towards the legal environment surrounding this pandemic is captured in this interview. Other panelists include: Carolyn Farino (Head of Insurance, Americas Lendlease), Leslie Curry (Executive VP, Alliant) and Naresh Dade (VP, Marsh). The SIP is hosted by Zach Howell and strives to bring together diverse perspectives that exist amongst industry leaders across various brokerages, insurance carriers and risk management departments in Real Estate and Construction. The shows format is to discuss complex risk topics in a conversational way for both young industry and non-industry professionals in a way which can be easily comprehended. You can follow The SIP on LinkedIn here https://www.linkedin.com/company/thesip/   Watch the...