Court Refuses to Extend Holding in Runner

Since the Court of Appeals decided Runner v. New York Stock Exchange in June 2009, plaintiffs have been seeking to expand the application of the extraordinary protections of Labor Law § 240(1) to facts and circumstances which involve any injury arising from the forces of gravity.      

New York Labor Law § 240(1) provides in pertinent part as follows:

Scaffolding and other devices for use of employees.

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.  McKinney's Labor Law § 240

In addition to falls from a height, Labor Law § 240(1) protects workers who are injured from certain types of falling objects. The types of falling object cases include objects being hoisted or lowered, as well as objects which need to be secured. Narducci v Manhasset Bay Associates, 96 NY2d 259 (2001); Ross v Curtis-Palmer Hydro-Elec. Co. 81 NY2d 494, 505, 601 NYS2d 49, 618 NE2d 82. However, the extraordinary protections are not unlimited and should be strictly construed because they are in derogation with common-law. Accordingly, not every falling object invokes § 240, but only those which were sufficiently elevated.

In DeGabriel v. Strong Place Realty, LLC, et al. 2010 NY Slip Op 20380 (Supreme, Kings County, 2010), (Saitta, J.), plaintiff allegedly sustained bodily injury when a steel I-beam fell on his leg. Plaintiff and his co-workers were allegedly moving wood beams by sliding them across steel I-beams which were staked on the floor. The aforesstated process caused one of the I-beams to become dislodged and fall onto plaintiff’s leg.  DeGabriel sought to invoke 240 in reliance upon the ratio deciendi of the Court of Appeals in the regard that the purported relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object.

Justice Wayne Saitta of the Supreme Court, Kings County, rejected plaintiff's argument, dismissed the § 240(1) cause of action and denied plaintiff’s motions for renewal and reargument. Judge Saitta held that the object which injured the plaintiff was not being lowered or hoisted, nor was it being moved at the time of the accident. It was a stationary object, allegedly in a stack, on the floor. Since the beam was not being hoisted or lowered, it comes within the line of cases governing when failure to secure an object which later falls constitutes a violation of §240(1). This turns on whether the beam was sufficiently elevated in relation to plaintiff that it constituted a hazard and therefore should have been secured. This Court held in its original decision that since the beam was not located above the plaintiff it was not sufficiently elevated that the failure to secure it violated §240(1). Citing, Schreiner v.Cremose Cheese Corp., supra, 202 AD2d 657, 609 NYS2d 322 (2nd Dept 1994); Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004, 876 NYS2d 480 (2nd Dept 2009); Cruz v Neil Hospitality, LLC, 50 AD3d 619, 855 NYS2d 219 (2nd Dept 2008).



Attorney Registration Fee Increase

I haven't abandoned this blog, but I had to take a sabbatical because of an intensely busy work schedule over the last several months.  At this point I don't have enough time to devote to a review of recent court decisions that I believe to be of interest, but I wanted to share a development that all attorneys must address.  Toward that end, take note that section 468-a(4) of the Judiciary Law was amended to increase the Attorney Biennial Registration Fee to $375.00 as of September 1, 2010.  The New York State Office of Court Administration will implement the amended law to apply to all attorney registrations due on or after the aforestated date.  

The Nation's Best Law Schools

The official U.S. News 2011 Law School rankings were released today following a leaked list last Tuesday. Yale remains the best law school in the nation.  Follow the link for the official list.

High Level of "Pissivity" Leads to Arrest

The District of Columbia Court of Appeals today issued an order affirming a lower court decision in which Steven Tulin, a Walter Reed Hospital psychologist, was awarded $450,000 in damages for, amongst other things, false arrest.  According to the appellate court, which issued a 26 page opinion, what began as a minor motor vehicle collision quickly escalated into a situation where a Tulin was improperly arrested.

The case originates from an Oct. 22, 2004 incident in which Metropolitan Police Department Detective Barbara Rauf was involved in a rear-end collision with the vehicle operated by Tulin while driving her son to school.  According to opinion, the collision occurred after “some less than friendly looks and gestures by both drivers.” 

After the collision, the drivers had a “hostile interaction” in which both drivers were “extremely angry.” Rauf admitted in trial testimony that she was cursing and using profanity because her “level of pissitivity” was fairly high.  Rauf made two telephone calls to the police operator, requesting assistance for an officer in trouble.  When Officer Leticia McKoy, Sergeant Johnnie Lee McLean and Sergeant Jackson arrived at the location Rauf reported that Tulin had been aggressively stopping and starting his car and that it was his driving that caused the accident.

After interviewing Rauf, McKoy permitted her to leave.  As Rauf departed, she said to McKoy, “That’s an automatic lock-up, isn’t it?” Tulin was then handcuffed and arrested.  By way of a footnote, the appellate court states that Rauf’s husband was a captain in the same police command district where McKoy was assigned.

Tulin was held for 14 hours and charged with reckless driving.  Tulin was later found not guilty and thereafter prosecuted a civil suit against Rauf and McKoy for false arrest, malicious prosecution, and intentional infliction of emotional distress.  He also sued the District for negligent supervision.  At trial a jury dismissed the causes of action against McKoy.  However, the jury found Rauf was liable for intentional infliction of emotional distress and that the District liable for negligently supervising McKoy. The jury awarded Tulin $450,000.

On appeal, the assistant attorney general for the District of Columbia, argued that the jury issued an inconsistent verdict by ruling in McKoy’s favor on all of the allegations leveled against her yet still holding the District liable for negligent supervision.

To the contrary, the appellate court held that the arrest was improper for a number of reasons, including the fact that reckless driving is not an arrestable offense if it isn’t witnessed by an officer, and because neither McLean nor Jackson asked Rauf how fast she was going or how far her car was from Tulin’s car prior to the accident.  During cross examination of McLean, Tulin’s attorney was able to show that Sergeant McLean and Sergeant Jackson authorized Mr. Tulin’s warrantless arrest, which could be lawful only because Detective Rauf, the driver who had run into the car in front of her, was a police officer and was present when the accident occurred.

The attorney for the District also argued that Rauf shouldn’t be held liable for intentional infliction of emotional distress because she did not arrest Tulin and therefore didn’t inflict the emotional distress.  That argument was rejected by the appellate court which found that Rauf’s behavior, including the use of “foul and profane” language in front of her 9-year-old son, could be determined by a reasonable jury to have been intended to cause emotional distress.

Accordingly, the appeals court affirmed the Superior Court opinion in full.

MANDATORY ELECTRONIC FILING IN NY COUNTY

Pursuant to Chapter 416 of the Laws of 2009, mandatory electronic filing will be instituted in the Supreme Court, New York County, in certain commercial cases (“mandatory commercial cases”). The target date for commencement of this program is May 24, 2010.  A Uniform Rule is being drafted that will set forth the procedures for mandatory e-filing.  Although that Rule will control, the following are the key aspects of mandatory e-filing that the Court at present expects to implement. 

Any mandatory commercial case commenced on or after May 24 and any previously-commenced such case in which a Request for Judicial Intervention (“RJI”) is filed on or after that date must be electronically filed through the New York State Courts Electronic Filing System (“NYSCEF”), as must subsequent filings therein.  Mandatory e-filing also applies to Commercial Division cases commenced since June 15, 2008 in which no party has declined to consent to e-filing.  Mandatory commercial cases consist of commercial matters of the types set forth in Uniform Rule 202.70 (b) (excluding those listed in 202.70 (c)), irrespective of whether the cases have been or will be designated as Commercial Division actions, provided that the amount in controversy is over $100,000 (exclusive of interest, costs, disbursements, counsel fees, and punitive damages). However, in two categories of mandatory commercial cases there is no monetary threshold: corporate and other business dissolution proceedings and commercial arbitration matters (see Uniform Rule 202.70 (b) (11) and (12)).

The Court's flyer on the electronic filing can be found here.  Follow the New York County Web site for further information as the transition to mandatory electronic filing is made.  

Justice Stevens Announces Retirement

Thirty-four years after taking his position on the Supreme Court, Justice Stevens, who turns 90 years of age on April 20, has announced his retirement today.  The text of Justice Stevens' letter to the president follows below.

My dear Mr. President:


Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice, under the provisions of 28 D.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year. Most respectfully yours,

John Paul Stevens

Justice Stevens was appointed by President Nixon to the United States Court of Appeals for the Seventh Circuit in 1970.  When Justice William O. (Wild Bill) Douglas retired a year after suffering a debilitating stroke in 1974, Attorney General Edward Levi proposed Stevens' appointment to the Court.  President Ford acted on Levi's advice and the Senate confirmed Stevens' appointment without controversy.  Justice Stevens took his position on the bench on December 19, 1975.   

As a justice, Stevens avoided simple conservative or liberal characterizations.  However, Justice Stevens most often was in accordance with the court's liberal bloc in those cases involving abortion, criminal law, civil rights and church-state relations.  As the Court moved more toward the right during the Reagan and Bush presidencies, Stevens appeared more liberal relative to the composition of the Court.  After Chief Justice Roberts and Justice Samuel Alito took the bench, Stevens was more frequently among the four liberal justices in dissent. 

Justice Stevens' retirement will not change the court's conservative-liberal split, where the president is expected to name a liberal-leaning replacement.  Toward that end, the leading candidates at present are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, and Diane Wood, 59.

After Born Children Statute Not Extended to "After Known" Children

COURT RULES NON-MARITAL CHILDREN ARE NOT ENTITLED TO ANY RIGHTS UNDER AFTER-BORN LAW

In a January 25, 2010 entry in the New York Trusts and Estate Litigation blog, Farrell Fritz partner, Eric Penzer, Esq., reports on Matter of Gilmore, 1/19/2010 NYLJ 21 (col 1), a case in which I drafted opposition as the ward of an infant, to a motion by putative distributees to the decedent's estate.  The purported non-marital children sought a determination of their status and a distributiuon as "after known" or "after ackonwledged" children pursuant to a novel theory involving an expansion of the "after born" statute codified in EPTL 5-3.2.

The movants, Andrea and Malverick Hofler, alleged that after the decedent executed his will on June 24, 1996, he underwent DNA tests in 2005 and 2006 which revealed to him for the first time that he was their biological father.  Although the Hoflers were in fact born long before the execution of decedent's will, they claimed that non-marital children, only known or acknowledged by their father after execution of his will, should be accorded the same presumption of inadvertent disinheritance as an after-born child and extended the same rights.

In concluding that the movants did not have any rights pursuant to the after born statute, the Court stated that the statute itself speaks clearly of a "child born after the execution of a last will" (EPTL 5-3.2 [a]).  Nonetheless, the putative distributees argued that the meaning should have be extended to a non-marital child who is known or acknowledged by a decedent only after execution of his will.  To the contrary, the Court held that it is not at liberty to conjecture about, add to or subtract from words having a definite and plain meaning.  The Court stated in no uncertain terms that if it were to engraft exceptions where none exist it would constitute a trespasses by a court upon the legislative domain (City of Buffalo v. Lawley, 6 AD2d 66 [4th Dept 1958]; McKinney's Cons. Laws of NY Book 1, Statutes, §76).  When, as here, a statute is free from ambiguity and its sweep unburdened by qualification or exception, a court must apply the language as it is written (Zaldin v. Concord Hotel, 48 NY2d 107 [1979]; 2 A Sutherland, Statutory Construction [7th ed.] §46:1).

The 2007 amendment to EPTL 5-3.2 specifically restricts a non-marital child's entitlement to "a non-marital child, born after the execution of a last will."  Accordingly, the Court held that it may not ignore a statute's language in an effort to derive or construct a legislative intent that could easily have been articulated by the Legislature when it drafted the [amendment].  "'The court will not exceed its authority by reading the [claimant's] language into the statute‘" (New York State Crime Victims Bd. v. T.J.M. Productions Inc., 176 Misc 2d 777, 785 [Sup Ct, New York County 1998]; affd 265 AD2d 38 [1st Dept 2000]; see also 97 NY Jur 2d, Statutes, §104).  Accordingly, the Court concluded that the Hoflers were not entitled to any rights under the after-born statute (EPTL 5-3.2).

The Preliminary Conference

Almost every action filed in state court becomes the subject of a preliminary conference, which is commonly known as a "PC."  The preliminary conference is governed by Uniform Trial Court Rule section 202.12.  That rule states, in pertinent part, that the matters to be considered at the preliminary conference include: a) where appropriate, simplification and limitation of factual and legal issues; b) establishment of a timetable for completion of disclosure consistent with the requirements of Differentiated Case Management (unless otherwise shortened or lengthened by the court); c) addition of other necessary parties; d) removal to a lower court where appropriate and e) other matters that the court may deem relevant such as a date for filing a Note of Issue, and a closure date for dispositive motions.  Finally, at that time the court will schedule a compliance conference at which time the parties are to return to court.

A preliminary conference can be scheduled by the court at any time sua sponte.  but it is most often scheduled at the request of a party upon the filing of such request along with a request for judicial intervention ("RJI"), in a case which has not previously been assigned to an IAS judge.  Pursuant to subdivision (b), the conference shall be scheduled not more than 45 days from the date the request for judicial intervention is filed, unless the court orders otherwise.

The initiation of motion practice concerning discovery in unassigned cases was the impetus for the writing of this entry.  The most frequent scenario invloves a plaintiff that fails to serve discovery and/or a bill of particulars in response to demands that accompany a defendant's answer.  In which case, the apparently uninformed defendant ultimately resorts to a motion to compel a response under CPLR 3124 and/or 3042(c).  The foregoing motion practice is an imprudent use of both the attorney's time and client's resources.  Pursuant to Trial Court Rule 202.8(f), the aforestated motion will be procedurally converted into a preliminary conference which, in accordacne with section 202.12, must be scheduled for a date no more than 45 days after the chosen motion return date.

Accordingly, where the motion is propounded instead of the service and fliling of a request for a PC and RJI, the attorneys for the moving defendant will have advanced plaintiff's cause by incurring the cost of the RJI, in addition to an unnecessary motion filing fee.       

Daylight saving time returns Sunday

Don't forget to advance the time on your clocks one hour before going to bed tonight. The idea behind daylight saving time is to save energy and lightbulb hours by allowing the sun to appear an hour later in the morning when most are asleep anyway.  As warmer weather is in the near future, daylight saving time benefits us by stretching daylight later into the evening.  You'll have more daylight at the end of your workday, but there are some statistics which suggest that the change is not without  serious negative effects.  

According to a letter to the editor of the New England Journal of Medicine, the change has health consequences demonstrated by the number of serious heart attacks increasing by as much as 10 percent during the first three workdays after the start of daylight saving time.  The effects of transitions were consistently more pronounced for people under 65 years of age than for those 65 years of age or older.  According to an  article in the Los Angeles Times, traffic accidents spike by as much as 11 percent on the first Monday after the clocks are sprung forward.  On Wall Street, economists say sleep-deprived traders often produce large negative returns on that following Monday, once estimated at $31 billion. 

The most plausible explanation for the findings is the adverse effect of sleep deprivation on cardiovascular health. According to the authors of the journal letter, their data suggests that vulnerable people might benefit from avoiding sudden changes in their biologic rhythms.  Ordinarily, Monday is the day of the week associated with the highest risk of acute myocardial infarction (heart attack), with the mental stress of starting a new workweek.  The further deprivation of sleep can be the cause of the increased activity seen.  Accordingly, doctors suggest taking it easy this weekend and making sure that you're well rested before the change officially occurs at 2 a.m. on Sunday, March 14.  

Irrespective, entirely to the dismay of law firm management everywhere, the greatest concern is not that attorneys will lose an hour of sleep this weekend - but a precious billable hour. 

NYC Agrees to $657 Million Settlement For WTC Rescue Worker Suits

According to The New York Times, the Ground Zero injury settlement was announced yesterday by WTC Captive Insurance Company.  The Captive Insurance Company an entity created with a $1 billion federal grant that provides insurance coverage to the City of New York and its debris-removal contractors.  The Ground Zero injury settlment agreement in the sum of 657.5 million dollars is scheduled to be presented to Southern District Court Judge Alvin Hellerstein in Manhattan today for approval.  According to Associated Press reports, Judge Hellerstein has said that he favored a settlement, but planned to analyze it carefully to make certain that is fair. 

I believe that it goes without saying that the settlement must be fair and equitable before the Court issues an Order approving the terms.   

California Court Holds That Non-Party Witness Statements Are Not Privileged

Although this blog was primarily intended to discuss New York civil litigation, in this entry I'm discussing a California appellate decision because I find that it has a profound impact on discovery rules and could be persuasive authority for a further broading of pre-trial discovery in other jurisdictions.

In Coito v. Superior Court, 10 C.D.O.S. 2697, a divided California appellate court ruled on Thursday that non-party witness statements which are either recorded or documented in writing by attorneys or their representatives aren't privileged work product and, therefore, are subject to pre-trial discovery. 

In the lower court, Stanislaus County Superior Court Judge William Mayhew relied on a decision by the Third District appeallate court in Nacht & Lewis Architects Inc. v. Superior Court (McCormick), 47 Cal.App.4th 214, as authority to deny plaintiff's attorney's demand for the recorded statements of four juveniles who witnessed the drowning death of a 13-year-old boy in 2007.

Contrary to the holding in Nacht & Lewis, the majority in Thursday's ruling held that the "weight of authority" states that written and recorded statements taken by attorneys aren't work product, but rather "classic" evidentiary material.  "They can be admitted at trial as prior inconsistent statements, prior consistent statements or past recollections recorded," Justice Betty Dawson wrote in Coito.  "Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use."  Justcie Dawson referred to the decision in Nacht & Lewis as "cursory."  "It contains no analysis to support [its] language and fails entirely to acknowledge the long line of contrary precedent," Justice Dawson wrote.  "Neither does it consider nor weigh the purposes of the work-product privilege and the Civil Discovery Act."

In dissent, Justice Stephen Kane argued that he felt witness statements recorded by attorneys constitute "qualified" work product, which remains undiscoverable unless a court determines that denial of discovery unfairly prejudices the party seeking it.  However, Justice Kane wrote that, "a per se rule of absolute protection goes too far."  Accordingly, Justice Kane would have preferred to remand the case to give the trial court judge an opportunity to consider whether discovery was warranted under the qualified work-product privilege.  "Requiring such a showing strikes a fair balance between the competing statutory policies of protecting work product and allowing liberal discovery," Kane wrote.  Justice Kane noted that the California Supreme Court, the state's highest court, has not weighed in on the issue in this case and therefore urged it to do so.  "Clarifying the scope of the work-product privilege in this context," he wrote, "is important for legal practitioners and in propria persona litigants (those representing themselves in court without assistance of an attorney, at least "on the record."  Often abbreviatd to "in pro per").

The majority, concurring and dissenting opinions all require more analysis and discussion.  However, the general rule in New York is that non-party statements are materials prepared in anticipation of litigation and therefore not subject to disclosure.  See, DeGourney v. Mulzac, 287 A.D.2d 680, 732 N.Y.S.2d 97 (2d Dep't 2001); Volpicelli v. Westchester County, 102 A.D.2d 853, 476 N.Y.S.2d 623 (2d Dep't 1984); Bush v. E. H. Cottrell, Inc., 33 A.D.2d 983, 307 N.Y.S.2d 284 (4th Dep't 1970).  The apparent rationale has been that a party should not be required to disclose that which they obtained through the investment of their own time, effort and money.  Unless these non-party witnesses have become unavailable, there is no reason why the party seeking the statements can't contact the witnesses and perform their own investigation.  If the non-party witnesses evade or refuse to cooperate, a reasonable inference can be drawn that their testimony will not be favorable to that party.  Even in the instance of evasiveness or refusal, the non-party subpoeana remains as that party's device to obtain the testimony sought.  Moreover, the subpoena on notice is arguably more just and equitable given that the adverse party has an opportunity to cross-examine the witness.      

The Supremes Rule on "Principal Place of Business"

In Hertz Corporation v. Melinda Friend, (08-1107) plaintiffs brought a class action suit against Hertz in California state court seeking damages for alleged violated of California wage and hour laws by Hertz.  Hertz moved to remove the case to federal district predicated upon purported diversity jurisdiction because the company headquarters is located in New Jersey.  Therefore, Hertz wanted the trial moved to federal court based upon plaintiffs and defendants being residents of different states.  To the contrary, plaintiffs argued that there was no diversity jurisdiction because Hertz' principal place of business was California, not Florida.  The federal district court agreed and remanded the case to state court.

On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed the federal district court.  The appellate court held that the district court correctly applied the "place of operations test" to determine Hertz' principal place of business.  Accordingly, there was no diversity jurisdiction and the district court had no subject matter jurisdiction to hear the case.

In a unanimous decision dated February 23, 2010, the Court concluded that the phrase "principal place of business" refers to the place where the corporation's high level officers direct, control and coordinate the corporation's activities," Justice Stephen Breyer wrote. "Lower federal courts have often metaphorically called that place the corporation's 'nerve center.' We believe that the 'nerve center' will typically be found at a corporation's headquarters."

Under 28 U.S.C. § 1332(c)(1), a corporation is a citizen of its state of incorporation and the state “where it has its principal place of business.”  Accordingly, the case hinges on the interpretation of the language “principal place of business.”  The Supreme Court’s ruling could broadly affect the way multistate corporations conduct their business and the specific recourse available to plaintiffs seeking to litigate state law claims against them.

Court of Appeals Oral Argument

February 10, 2010

If you're snowed in today and tomorrow, visit the Court of Appeals Web site for live simulcasts of oral arguments. 

LegalTech Trade Shows

On February 1st through the 3rd, a LegalTech trade show will be held at the Hilton New York Hotel, 1335 Avenue of the Americas, New York City, NY 10019.  LegalTech promotes the show as "the largest and most important legal technology event of the year."  The show is one of two such events, the other being held in Los Angeles. 

LegalTech promises to provide an in-depth look at what the technological world offers to make life in the legal professional more efficient and lucrative.  According to ALM media company, in addition to learning about the newest advances in law firm technology, by attendting a LegalTech event one can earn CLE credits as well as network with industry leaders.  Unfortunaely, the attorney time spent at the event is not "billable."   

Harm to Plaintiff Caused By Gravity Upon Object Invokes Labor Law 240(1)

In response to certified questions from the U.S. Court of Appeals for the Second Circuit, the New York Court of Appeals, held in Runner v. New York Stock Exchange, Inc., No. 197, that § 240 of the New York Labor (the so-called “Scaffolding Law”) applies where a worker’s injuries were caused directly from “the application of the force of gravity to an object.” The facts of Runner are relatively simple and did not invlove plaintiff falling from an elevated work surface nor did it invlove him being struck by hoisted materials.  Rather, plaintiff, an electrician, and his co-workers, were endeavoring to lower an 800 pound reel of wire down a set of four steps in the course of the work.  To prevent the reel from rolling freely down the flight and causing damage, the workers were instructed to tie one end of a ten-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. The loose end of the rope was then held by plaintiff and two co-workers while two other co-workers began to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar. The expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel's descent and plaintiff was drawn horizontally into the bar, seriously injuring his hands.  Expert testimony was proffered at trial that a pulley or hoist should have been used to move the reel safely down the stairs and that the jerry-rigged device actually employed had not been adequate to that task. 

The jury, having been instructed that liability pursuant to Labor Law § 240 (1) could not be assigned unless plaintiff’s injuries had been attributable to a gravity-related risk, and having found that no such risk had been implicated, returned a verdict for defendants. A motion by plaintiff to set side the verdict ensued. In granting the motion and directing judgment for the plaintiff upon his Labor Law § 240 claim, the District Court found, as a matter of law, that the movement of the reel down the stairs presented a gravity-related risk; that an adequate safety device had not been used to manage the risk; and that that failure had been a substantial factor in causing plaintiff’s injury.

On appeal, the Court rejected defendant's argument that section 240 was inapplicable and instead held that the injury was the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential.  Accordingly, the case represents the Court’s expansion of coverage under the Scaffolding Law and most certainly will be the source of much debate as plaintiffs will endeavor to further invoke the extraordinary protections of 240.

CPLR 2221 "Cheat Sheet"

The Smart Rules Blog has a brief "Motion to Reargue Cheat Sheet" that I want to share.  Find the blog here.  

NYPD Drug Testing Methodology and Testing Triggers Within Police Commissioner's Disciplinary Authority

In furtherance of it's zero tolerance policy for the use of illegal drugs by uniformed members of the service, the New York City Police Department Patrol Guide Procedures (PGPs), effective January 1, 2000, directed the testing of either urine or hair samples.  Specifically, PGP No. 205-30 specified testing either the urine or hair of members reasonably suspected of illegal drug use; and PGP No. 205-35, which allowed members subject to unsubstantiated allegations of illegal drug use to request voluntary testing, provided for testing of either hair or urine samples.  In addition, all probationary NYPD officers (PPOs) received an end-of-probation medical examination, which included drug testing of hair samples.  RIAH was the methodology used for hair testing. 

Patrol Guide Procedure No. 205-29 addressed random drug testing, whereby an automated database was used to select uniformed members who were directed to appear at a specified time and date for testing.  While this PGP did not identify urine analysis as the testing methodology, it incorporated a number of steps specific to urine testing.  Three other PGPs similarly did not actually identify the method of drug testing, but referred only to the collection of urine samples: PGP No. 205-32 (covering members applying for and assigned to the Organized Crime Control Bureau); PGP Nos. 205-31 and 205-33 (covering members applying for assignment to designated specialized units); and PGP No. 205-34 (covering members applying for discretionary promotions).

Several unions, including the Patrolmen’s Benevolent Association, had argued that expanding the use of hair strands for such testing was subject to collective bargaining.  It was a position that union leaders had expressed in similar disputes concerning the department’s move to add steroids to the list of substances that MOS are tested for and to administer sobriety tests to those who discharge their firearm, either on or off duty.  The dispute over the applicability of collective bargaining was taken up to the Court of Appeals in The Matter of The City of New York, et al., v. The Patrolmen's Benevolent Association of the City of New York and The Sergeants' Benevolent Association of the City of New York, et al.

In an eighteen page opinion dated December 18, 2009, the Court unanimously held that the method of drug testing and the triggers for such testing are excluded from collective bargaining as a matter of policy.  The Court explained its rationale in that the detection and deterrence of wrongdoing within the NYPD -- particularly crimes, such as illegal drug use -- is a crucial component of the Police Commissioner's responsibility to maintain discipline within the force.  Both the Board and the unions conceded that the Commissioner may unilaterally institute drug testing of uniformed officers. They would, however, check his discretion to select the investigatory measures that he deems most effective to discover and deter illegal drug use by requiring collective bargaining over testing methodology and testing triggers. In the Court's view, however, these subjects are inextricably intertwined with the Commissioner's authority to conduct drug testing in the first place.  

Nonetheless, the Court emphasized that they are not holding that that every step that the Commissioner takes or every decision that he makes to implement drug testing is excluded from bargaining.  To the contrary, the full extent or the limits of the Commissioner's unilateral disciplinary authority in the context of drug testing were simply not presented on the record before the Court. 

Judges' Part Rules

The New York Law Journal staff compiles and maintains a comprehensive listing of the Rules for the Judges in both State and Federal Courts. Counties included are New York, Bronx, Kings, Queens, Richmond, Suffolk, Nassau, Westchester, Dutchess, Orange, Putnam and Rockland.  In addition, the rules for both Southern and Eastern District Judges as well as the Second Circuit Court of Appeals are provided.  According to the Law Journal, the Judges' Part Rules online resource is updated daily to provide the most current information available.  A link to the site is provided on the left side bar under the caption "Resources."  A free registration is required prior to aceess.