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).