The homeowner's exemption under the Labor Law.

Practice point:  Owners of a one- or two-family dwelling used as a residence are exempt from liability under Labor Law §§ 240(1) and 241(6), unless they directed or controlled the work being performed. The so-called homeowner's exemption was enacted to protect owners of one- and two-family dwellings who are not in a position to realize, understand, and insure against the responsibilities of strict liability imposed by the statute.  There are two requirements for a defendant's invoking the exemption. First, the defendant must show that the work was conducted at a dwelling that is a residence for only one or two families, and, second, the defendant does not direct or control the work.

Case:  Abdou v. Rampaul, NY Slip Op 01169 (2d Dep't February 15, 2017)

Here is the decision.

Tomorrow's issue:  Notices of claim.

A supplier's liability under the Labor Law.

The Appellate Division affirmed the motion court dismissal of the complaint as against the defendant-supplier.  The supplier established that it was not an agent of the owner under Labor Law § 241(6), since it did not have the authority to direct, supervise, or control the injury-producing work.  Instead, it was merely the supplier of the allegedly defective mini-container, against whom liability under the Labor Law cannot be imposed.

Case:  Ahern v. NYU Langone Med. Ctr., NY Slip Op 01264 (1st Dep't February 16, 2016)

Here is the decision.

Tomorrow's issue:  The homeowner's exemption under the Labor Law.

Court holiday

Tomorrow's issue: A supplier's liability under the Labor Law.

Manhole covers and the prior written notice requirement.

The Appellate Division affirmed dismissal in this action seeking recovery for injuries allegedly sustained when the front wheel of the bicycle plaintiff was riding came into contact with gravel located around a large hole, near a manhole cover.  The Appellate Division found that plaintiff failed to establish that an exception to the prior written notice requirement of Administrative Code of the City of New York § 7-201(c)(2) is at issue. The City's ownership of a manhole cover, which allows the City to access the sewer system and water pipes in order to perform maintenance and repairs, does not provide the City with a special benefit from that property unrelated to the public use.  Accordingly, it does not fall within the "special use" exception to the requirement that the City have prior written notice of the defect.

Case:  Chambers v. City of New York, NY Slip Op 01120 (1st Dep't February 10, 2017)

Here is the decision.

Tuesday's issue:  A supplier's liability under the Labor Law.

Compiling the appellate record.

 Practice point:  It is the appellant's obligation of the to assemble a proper record on appeal, including all the relevant papers before the Supreme Court. An appeal that is based on an incomplete and improper record must be dismissed.

Case:  Deutsche Bank Natl. Trust Co. v. Hounnou, NY Slip Op 00958 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  Manhole covers and the prior written notice requirement.

A motion to strike an answer.

In an action to recover damages for personal injuries and wrongful death, the Appellate Division found that, in the absence of evidence that the defendant willfully and contumaciously failed to appear for deposition, the Supreme Court improvidently exercised its discretion in conditionally striking her answer.  Under the circumstances, the appropriate remedy was to preclude defendant from offering any testimony at trial unless she appeared for a deposition at least 30 days before the trial.

Case:  Brodsky v. Amber Ct. Assisted Living, LLC, NY Slip Op 00955 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  Compiling the appellate record.

Liability under Labor Law § 241(6).

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. In order to recover damages on a cause of action alleging a statutory violation, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards, and must demonstrate that the injuries were proximately caused by the violation of an Industrial Code provision that is applicable under the circumstances of the case. Contributory and comparative negligence are valid defenses to a Labor Law § 241(6) claim.

Practice point:  A party is not entitled to recovery under Labor Law § 241(6) based on a violation of 12 NYCRR 23-1.7(e) (1) where the object he or she tripped over was an integral part of the construction.

Case:  Aragona v. State of New York, NY Slip Op 00954 (2d Dep't February 8, 2017)

Here is the decision.

Tomorrow's issue:  A motion to strike an answer.

Court holiday.

Announcement of Candidacy for the Illinois Legislature March 1832

Fellow-Citizens: I presume you all know who I am. I am humble Abraham Lincoln. I have been solicited by many friends to become a candidate for the Legislature. My politics are short and sweet, like the old woman's dance. I am in favor of a national bank. I am in favor of the internal improvement system, and a high protective tariff. These are my sentiments and political principles. If elected, I shall be thankful; if not it will be all the same.

Note:  In a field of thirteen candidates, of whom the top four were elected, he finished eighth. In his home district of New Salem, of 300 votes cast, he received 277.

__________________________________________

Tomorrow's issue: Liability under Labor Law § 241(6).

Appealing a sua sponte order.

Practice point:  There is no right to appeal from a sua sponte order. Neither is there a right to appeal from a judgment based on a sua sponte order.

Case:  Livathinos v. Vaughan, NY Slip Op 00920 (1st Dep't February 7, 2017)

Here is the decision.

Tuesday's issue:   Liability under Labor Law § 241(6).

An expert's affidavit in a medical malpractice action.

The Appellate affirmed dismissal, finding that the motion court properly determined that defendants made a prima facie showing that plaintiff's decedent did not sustain an intraventricular hemorrhage as a result of a fall at the hospital. In opposition, plaintiff failed to raise a triable issue of fact, as her expert never addressed the assertion by defendants' expert that there was no radiological evidence of trauma.

Practice point:  Plaintiff's expert omitted facts regarding the rise in decedent's blood pressure just before her fall, thus failing to base his opinion on all relevant record evidence; this deficiency renders the opinion insufficient.  While plaintiff's expert posited that trauma to the front or lateral aspect of the head could cause the bleeding observed, the expert failed to adduce any evidence as to what, if any, portion of decedent's head was actually struck. Accordingly, the opinion is too speculative to raise an issue of fact. Moreover, plaintiff's expert's conclusion that the location of the bleed suggested head trauma was based on hindsight reasoning — that is, the expert used the injury itself as a basis to assume that certain conditions must have existed at the time of the injury. This reasoning is insufficient to defeat summary judgment.

Case:  Montilla v. St. Luke's-Roosevelt Hosp., NY Slip Op 00717 (1st Dep't February 2, 2017)

Here is the decision.

Tomorrow's issue:   Appealing a sua sponte order.

Liability for injuries arising from a defective sidewalk, and city-owned tree wells.

Practice point:  Effective September 14 2003, Administrative Code of the City of New York § 7-210 shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, absent certain exceptions. A tree well does not fall within the applicable Administrative Code definition of "sidewalk" and, thus, section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells.

Case:  Antonyuk v. Brightwater Towers Condo Homeowners' Assn., Inc., NY Slip Op 00619 (2d Dep't February 1, 2017)

Here is the decision.

Tomorrow's issue:  An expert's affidavit in a medical malpractice action.