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Further, the statements made by the faculty during this program do not constitute legal advice. 

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New York State Bar Association 

Lawyer Assistance Program

Q. What is LAP? A. The Lawyer Assistance Program is a program of the New York State Bar Association established to help attorneys, judges, and law

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Q. What services does LAP provide?A. Services are free and include:

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Judiciary Law Section 499 Lawyer Assistance Committees Chapter 327 of the Laws of 1993

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personal problems. Also there is evidence that appropriate treatment and support is effective in most cases of mental health problems. For example, a combination of medication and therapy effectively treats depression in 85% of the cases.

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Personal problems such as alcoholism, substance abuse, depression and stress affect one’s ability to practice law. Take time to review the following questions and consider whether you or a colleague would benefit from the available Lawyer Assistance Program services. If you answer “yes” to any of these questions, you may need help.

1. Are my associates, clients or family saying that my behavior has changed or that Idon’t seem myself?

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Labor Law Claims, Coverage and Litigation

AGENDA

8:30 a.m. – 9:00 a.m. Registration

9:00 a.m. – 9:10 a.m. Welcome and Introductions

9:10 a.m. – 10:00 a.m. The Accident & Investigation

10:00 a.m. – 10:50 a.m. Labor Law Updates

10:50 a.m. – 11:05 a.m. Refreshment Break

11:05 a.m. – 11:55 a.m. Issues Between Defendants, Third-Parties and The Insurers

11:55 a.m. – 1:00 p.m. Lunch (on your own)

1:00 p.m. – 1:50 p.m. Insurance Coverage: Additional, Horizontal, Vertical or Some Other Way

1:50 p.m. – 2:40 p.m. Trial Practice Demonstration: Opening Arguments from Plaintiff and Defendant's Perspective

2:40 p.m. – 2:50 p.m. Refreshment Break

2:50 p.m. – 3:40 p.m. Trial Practice Demonstration: Cross-Examination of Vocational Rehabilitation Expert

3:40 p.m. – 4:30 p.m. Trial Practice Demonstration: Closing Arguments from Plaintiff and Defendant's Perspective

4:30 p.m. Adjournment

Program Faculty

Program Chair

Joanna M. Roberto, Partner, Goldberg Segalla, LLP, Garden City

Program Faculty

Syracuse Session

Chair: Kenneth M. Alweis, Partner, Goldberg Segalla, LLP, Syracuse

Lauren M. Miller, Esq., Cramer, Smith & Miller, P.C., Jamesville

James E. Reid, Senior and Managing Shareholder, Greene & Reid, PLLC,

Syracuse

Lisa M. Robinson, Partner, Goldberg Segalla, LLP, Syracuse

Michael Rubin, Partner, Goldberg Segalla, LLP, Buffalo

Robert J. Smith, Partner, Costello, Cooney & Fearon, PLLC, Syracuse

Kevin Van Duser, Partner, Sugarman Law Firm LLP, Syracuse

Long Island Session

Chair: Michael T. Colavecchio, Partner, Lewis Johs Avallone Aviles, LLP,

Islandia

Brian Brown, Partner, Zaremba Brownell & Brown, PLLC, New York

Thomas J. Dargan, Partner, Lewis Johs Avallone Aviles, LLP, Islandia

Elizabeth A. Fitzpatrick, General Counsel, Island Companies, Calverton

I. Paul Howansky, Partner, Harrington, Ocko & Monk, LLP, White Plains

Stuart J. Manzione, Partner, Furey, Furey, Leverage, Mangione, Williams &

Darlington, P.C., Hempstead

Robert Seigal, Member, Carroll, McNulty & Kull LLC, New York

Theodore W. Ucinski, Partner, Goldberg Segalla, LLP, Garden City

Matthew J. Zullo, Partner, Rappaport, Glass, Levin & Zullo, LLP, Islandia

Albany Session

Chair: Matthew J. Kelly, Partner, Roemer Wallens Gold & Mineaux LLP,

Albany

Honorable Elizabeth Garry, Appellate Division, Third Department, Norwich

Carolyn B. George, Partner, Friedman, Hirschen & Miller, LLP, Albany

Eileen M. Haynes, Principal, Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens

Falls

William T. Little, Partner, The Law Office of Teresi & Little PLLC, Albany

Jeffrey N. Miller, Partner, Friedman, Hirschen & Miller, LLP, Albany

Christopher Patrie, Director of Human Resources, Janitronics, Inc., Albany

Connie L. Standhart, President & Vocational Consultant, Peak Solutions

Vocational Services, LLC, Middleburgh

Buffalo Session

Chair: Kevin T. Merriman, Partner, Ward, Greenberg, Heller & Reidy LLP,

Rochester

Peter F. Brady, Senior Counsel, Faraci Lange, Buffalo

Paul J. Callahan, Partner, Brown & Kelly, LLP, Buffalo

Samuel J. Capizzi, Partner, Collins & Collins Attorneys, LLC, Buffalo

Thomas Cunningham, Founding Partner, Rupp Baase Pfalzgraf Cunningham

LLC, Buffalo

Jennifer A. Ehman, Associate, Hurwitz & Fine, P.C., Buffalo

Melissa A. Foti, Partner,Kenney Shelton Liptak Nowak LLP, Buffalo

Dennis P. Glascott, Partner, Goldberg Segalla, LLP, Buffalo

Julia M. Hilliker, Partner, Hodgson Russ LLP, Buffalo

David M. Knapp, Associate, Ward Greenberg Heller & Reidy LLP, Rochester

Richard P. Weisbeck, Jr., Partner, Lipsitz Green Scime Cambria LLP, Buffalo

New York City Session

Chair: William G. Kelly, Partner, Goldberg Segalla, LLP, White Plains

Vito Cannavo, Partner, Sullivan Papain Block McGrath & Cannavo P.C., New

York

Julian Ehrlich, Senior Vice President, Claims, AON Construction Services

Group, Jericho

Brendan T. Fitzpatrick, Partner, Goldberg Segalla, LLP, Garden City

Kristin V. Gallagher, Member, Carroll McNulty & Kull, New York

John Gilleland, PhD, Vice President, Decision Quest, New York

Brian W. McElhenny, Partner, Goldberg Segalla, LLP, Garden City

Joseph M. Schwed, CSP, FMA, RPA, Vice President, Construction Safety,

Related Companies, New York

Labor Law Claims, Coverage & Litigation

7.0 MCLE Credits:

4.0 Professional Practice; 3.0 Skills

Table of Contents

THE ACCIDENT & INVESTIGATION ................................................................................ 001 LABOR LAW UPDATES ....................................................................................................... 029 ISSUES BETWEEN DEFENDANTS, THIRD-PARTIES AND THE INSURERS .......... 085 INSURANCE COVERAGE: ADDITIONAL, HORIZONTAL, VERTICAL OR SOME OTHER WAY........................................................................................................................... 167 TRIAL PRACTICE DEMONSTRATION: OPENING ARGUMENTS FROM PLAINTIFF AND DEFENDANT'S PERSPECTIVE ........................................................... 197 TRIAL PRACTICE DEMONSTRATION: CROSS-EXAMINATION OF VOCATIONAL REHABILITATION EXPERT .................................................................... 231 TRIAL PRACTICE DEMONSTRATION: CLOSING ARGUMENTS FROM PLAINTIFF AND DEFENDANT'S PERSPECTIVE ........................................................... 431 SCAFFOLD TAG AND OSHA REGULATIONS & SCAFFOLDING PHOTOS ............... 463 ARBITRATION AND MEDIATION OF LABOR LAW CASES ........................................ 489 FACULTY BIOGRAPHIES .................................................................................................... 507

TThhee AAcccciiddeenntt aanndd IInnvveessttiiggaattiioonn

1

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Labor Law Claims, Coverage and Litigations

The Accident & the Investigation:

A. INVESTIGATION AFTER AN ACCIDENT

1. Introduction

Accidents are an anticipated part of construction projects. Often times, the immediate aftermath of the

accident is the most crucial juncture in gathering evidence that will help defend and/or limit your client’s

potential exposure in litigation. Most times, counsel will not be retained until months, if not years later.

If you have contractor or property owner clients, it is important to stress the need to establish post-

accident investigation procedures. To the extent, you are retained independently immediately after the

accident, it is imperative that you make the most of this time.

1. Investigation Steps

Time is of the essence and efficiency is the key, in a post-accident environment. The following steps

should be followed:

a. Determine scope of investigation needed.

Acquire as much information as possible and determine what is needed to conduct a proper investigation

and establish a game plan, including ascertaining all potential witnesses to be interviewed. To the extent

physical evidence needs to be preserved, make appropriate arrangements beforehand such that the

appropriate chain of custody can be established. If an expert is needed, ensure that they are retained at

the outset so that they can perform a site inspection and render all measurements, take photographs, etc.

b. Secure the accident for investigation.

If feasible, instruct Client to secure the area for the investigation. This can be accomplished by roping

off the area or advising all employees to steer clear from the accident location. Importantly, instruct

workers to not re-configure, remove or add anything from the accident location before an investigation

is conducted. To the extent anything is removed, it should be memorialized and only be done if there is

a safety issue requiring its removal.

c. Visiting the Scene

i. Injured Worker

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To the extent, the injured worker remains on the scene or is made available to speak at a later date,

obtain an written statement from the injured worker. An investigator should be retained so that they

attorney is not claimed to have affected the statement and to avoid the need for the attorney to be a

witness, which would disqualify the attorney later on.

If possible, photographs of the injured worker should be obtained to document the extent of physical

injuries. It can assist in confirming injuries or disputing same, if there is no injury to a body part but the

worker thereafter claims that the main impact was to that part of the body, for example.

ii. Identify the accident location

Often times, the accident location will be crucial to defending against Plaintiff’s claim. Plaintiff may

contradict the location within his medical records, C2 report, post accident reports and/or deposition

testimony. The identity of the accident location may serve as a means of refuting how the accident

occurred, if Plaintiff was carrying activities within the scope of his work, if the accident arose from your

client’s activities and identify potential trades that may owe defense and indemnification to your client.

Take photographs and/or video footage of the accident location. Thoroughness will be key as you will

unlikely know what evidence will be crucial until the later stages of litigation.

iii. Identify and interview witnesses

Confirm who witnessed the incident. All trades and their employees on the job site should be identified

as even employees who did not witness the accident may possess relevant information. Obtain the

witnesses name, address, and phone numbers and have investigators obtain statements as soon as

possible, particularly since memories fade. Early interviews will also prevent workers from speaking

amongst themselves and influencing their version of the events.

iv. Photographs/Video footage of accident

A contractor and/or owner maybe subject to spoliation, as detailed below, if they fail to secure and

preserve any photographs and video capturing the accident. As such, upon arrival, survey to see what

video cameras are located on the job site and in the vicinity of the accident location. Have the client

secure and preserve all video footage on a DVD or flash drive. Most surveillance systems automatically

write over existing footage after 2 weeks to 30 days. If your client does not control the footage, serve a

notice to preserve on whoever is in control of the cameras. Secure all video footage and/or photographs

taken by workers on the jobs site. In doing so, identify the individual/entity from whom the footage is

obtained. How the footage was taken and if any changes have been made to the footage.

b. Memorialize the accident scene

Memorialize the accident location with photographs and video footage. Utilize workers on site to

identify the location and if relevant/feasible have witnesses to the accident point to where the accident

occurred. Make sure to photograph accident location for the tools, equipment and materials in the

vicinity. Take photographs from multiple angles. If known, focus on the injured worker’s view point.

4

If the accident involves a particular product or piece of equipment, document it by identifying its general

outlook after the accident. Capture the name, manufacturer, serial number and unique features. To the

extent it can be compared to a duplicate product on the site, capture them side by side to show how that

they differ.

v. Secure Records

Secure all written records in possession for the project. If the project is large scale, focus on the work

undertaken in the area at issue. Secure all contracts, all daily logs, site safety records, tool box meeting

records and safety related meetings. These records may serve as the blue prints for what was undertaken

and by whom and may also identify who bears potential negligence.

2. Avoid Spoliation

Traditionally, spoliation has been defined as the "intentional destruction, mutilation, alteration, or

concealment of evidence, [usually] a document" (Black's Law Dictionary 1409 [7th ed 1999]). However,

the courts construe it more broadly, including actions ranging from intentional acts to negligent failure

to maintain evidence.

Where it is found that a litigant destroys evidence, courts "possess broad discretion to provide

proportionate relief to the party deprived of the lost evidence”. Ortega v. City of New York, 9 N.Y.3d

69, 76, 876 N.E.2d 1189 (2007); Denoyelles v Gallagher, 40 A.D.3d 1027, 1027, 834 N.Y.S.2d 868 (2d

Dept 2007). Remedies for the spoliation of evidence include (1) dismissing the action or any part

thereof; (2) deeming resolved for the purposes of the action any issues as to which the destroyed

evidence is relevant; (3) precluding proof favorable to the spoliation on the issues, claims, or defenses to

which the destroyed evidence is relevant; or (4) employing an adverse-inference instruction. Id.; see

also CPLR 3126; Kirkland v New York City Hous. Auth., 236 AD2d 170, 173, 666 N.Y.S.2d 609 (1st

Dep’t 1997) ("spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes

of crucial items of evidence ... We have found dismissal to be a viable remedy for loss of a 'key piece of

evidence' that thereby precludes inspection [internal citations omitted]”

The duty to preserve evidence begins as soon as you should know that the evidence may be relevant to

anticipated litigation. See Tommy Hilfiger, USA v Commonwealth Trucking, 300 A.D.2d 58, 751

N.Y.S.2d 446 (1st Dept 2002). "Once a party reasonably anticipates litigation, it must suspend its

routine document retention/destruction policy and put in place a 'litigation hold' to ensure the

preservation of relevant documents," and "the duty to preserve extends to those employees likely to have

relevant information — the 'key players' in the case." Zubulake v UBS Warburg LLC, 220 FRD 212,

218 (SDNY 2003). The "utter failure to establish any form of litigation hold at the outset of litigation is

grossly negligent”. Heng Chan v Triple 8 Palace, Inc., 2005 WL 1925579, 2005 US Dist LEXIS 16520,

*19 (SD NY 2005; see Pension Comm. Of the Univ. of Montreal Pension Plan v Banc of Am. Sec., LLC.,

685 F.Supp.2d 456, 473 [S.D.N.Y.2010).

For example, in Hiney v City Ctr. of Music & Drama, Inc., 2014 N.Y. Misc. LEXIS 4547 , 2014 NY

Slip Op 32693(U) (N.Y. Sup. Ct. Oct. 9, 2014), plaintiff was injured after falling on the premises. The

evidence showed that the video cameras at the subject location may have recorded the plaintiff's fall.

However, the tapes were not saved, as is the defendant's normal business practice. After the fall,

ambulance personnel came to the scene and took plaintiff out on a stretcher, and security personnel for

defendant filled out an incident report. Under these circumstances, the Court finds that the defendant

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was under a duty to preserve the videotapes. Plaintiff may rely on evidence other than defendant's

surveillance video to prove that defendant was negligent, therefore, the Court finds that the appropriate

sanction is an adverse inference charge.

In Gogos v Modell's Sporting Goods, Inc., 87 A.D.3d 248, 926 N.Y.S.2d 53 (1st Dep't 2011), plaintiff

fell at the store due to slippery conditions. During a deposition, the store's manager testified that the

surveillance videotape for the accident date was put in a safe in the store. However, the vice president of

the store's subsidiary later submitted an affidavit stating that the store no longer retained the tapes and

that no tapes were created that depicted this area of the store or plaintiff's accident. The appellate court

found that the trial court's order directing that an adverse inference charge be given against the store was

proper pursuant to CPLR 3126.

In Conderman v. Rochester Gas & Elec. Corp., 180 Misc. 2d 8, 687 N.Y.S.2d 213 (N.Y. Sup. Ct. 1998),

defendants failed to preserve the poles, the most critical and crucial evidence which would have been

dispositive of the case; accordingly, plaintiff was allowed to rely on the doctrine of res ipsa loquitur and

defendants were precluded from offering evidence to rebut the presumption that the accident was caused

by a superseding, intervening and unforeseeable cause.

As demonstrated by these cases, a proper investigation that preserves relevant evidence can avoid issues

with spoliation that could avoid negative consequences for your defense and your client.

3. Application of the investigation

a. Recalcitrant Worker

Liability under the Labor Law may be avoided if a defendant proves that the injured plaintiff was a

"recalcitrant worker." A recalcitrant worker is one who refuses to obey immediate specific instructions

to use an actually available safety device or to avoid using a particular unsafe device. A recalcitrant

worker defense requires proof that a plaintiff disobeyed an "immediate specific instructions to use an

actually available safety device provided by the employer or to avoid using a particular unsafe device".

Walls v Turner Constr. Co., 10 A.D.3d 261, 781 N.Y.S.2d 13 (2004); Ortiz v. 164 Atlantic Avenue,

LLC, 77 A.D.3d 807, 909 N.Y.S.2d 745 (2nd Dept. 2010). The defense is not established by merely

showing that the worker failed to comply with an employer's instruction to avoid using unsafe

equipment or engaging in unsafe practices or to use a particular safety device, or by the mere presence

of safety devices on the work site. Hagins v. State of New York, 81 N.Y.2d 921, 922-923, 613 N.E.2d

557(1993). Success on a recalcitrant worker defense required a showing that the safety device in

question was both available and in place at the immediate worksite of the injured employee who

deliberately refused to use it. Sanango v 200 E. 16th St. Hous. Corp., 290 A.D.2d 228, 228, 736

N.Y.S.2d 321 (2002).

In Jastrzebski v. North Shore Sch. Dist., 223 A.D.2d 677, 637 N.Y.S.2d 439 (2d Dep't 1996), plaintiff

was on a ladder attempting to affix plywood to a wall when his immediate supervisor ran over to him

and told him to get down off the ladder. After the plaintiff had climbed down from the ladder, his

supervisor told him that using the ladder was "no good" and then, pointing to the scaffold which was in

place at the site, directed the plaintiff to use the scaffold. Although the plaintiff indicated his assent to

the directive, he re-climbed the ladder and fell as soon as the supervisor turned his back.

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In Harrington v. State, 277 A.D.2d 856, 715 N.Y.S.2d 807 (3d Dept. 2000), plaintiff was when he chose

to descend from a pier by sliding down a containment tarp which ripped; evidence indicated that a safety

device was available to claimant in his immediate work area that could have been utilized by him as a

safe and appropriate means to descend from the pier.

b. Sole proximate cause

Even when a worker is not “recalcitrant” the appellate court has held that there can be no liability under

Labor Law when there is no violation and the worker’s actions are the "sole proximate cause" of the

accident. Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 803 N.E.2d 757, 771

N.Y.S.2d 484 (N.Y. 2003).

In Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 823 N.E.2d 439 (2004), plaintiff was

required him to go up and down wall-like structures known as “forms.” A mechanical “man lift” was

sometimes available for this purpose, but when it was unavailable employees were expected to climb

and to descend by using safety lines affixed to the forms. Employees wore safety harnesses, equipped

with lanyards that could be attached to a hook on the safety line. Plaintiff attended frequent safety talks

that included instruction in the use of safety lines. In addition, several weeks before the accident,

plaintiff's supervisor corrected him for failing to follow safety protocols. Nonetheless, on the day of the

accident, plaintiff was working inside the upper part of a form and climbing to his work post without

any fall protection. Plaintiff chose not to use a safety line and instead used a “position hook,” which was

not meant for climbing. He fell while climbing from a height and was injured. The Court of Appeals

deemed Plaintiff’s actions as the proximate cause of the accident and his deliberate refusal to follow

safety protocols as recalcitrant behavior. As such Plaintiff’s Labor Law 240(1) claim was dismissed.

In Robinson v. East Med. Ctr., 6 N.Y.3d 550, 847 N.E.2d 1162 (2006), the Court of Appeals held that

the negligent actions of the plaintiff in choosing to use a six-foot stepladder that he knew was too short

to install pipe hanger system on overhead structural beams, then standing on the ladder’s top cap in

order to reach the work, were deemed the sole proximate cause of his injuries. The Court highlighted

the fact that plaintiff knew that he needed an eight-foot ladder to perform the work and knew where such

ladders were located at the job site, but chose a six-foot ladder without looking for an eight-foot ladder.

In Montgomery v. Fed. Express Corp., 307 A.D.2d 865, 763 N.Y.S.2d 600 (1st Dep't 2003), the plaintiff

and another worker were assigned a task to be performed in an elevator “motor room,” which was

located four feet above the roof. Arriving on the roof, they discovered that the stairs from the roof to the

motor room had been removed. Ladders were available at the job site, albeit not in the immediate

vicinity. Rather than fetch a ladder, the workers climbed to the motor room by standing on an overturned

bucket. The plaintiff exited the motor room by jumping to the roof, and injured his knee when he landed.

The Court concluded that “since ladders were readily available, plaintiff's normal and logical response

should have been to go get one. Plaintiff's choice to use a bucket to get up, and then to jump down, was

the sole cause of his injury, and he is therefore not entitled to recover under Labor Law § 240(1).”

b. OSHA

OSHA may be called to the scene to investigate. OSHA must be made aware within 8 hours following

the death or hospitalization.

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B. DEALING WITH OSHA AND DETERMINING HOW TO MITIGATE PENALTIES

I. What is OSHA?

The Occupational Safety and Health Administration (OSHA) is a Federal agency designed to protect the

safety and health of American workers. It was created to set and enforce safety standards and provide

training, outreach, education and assistance to employers. In New York, the federal OSHA offices cover

all private sector workplaces, federal agencies, the United States Postal Service, maritime employers,

military facilities, and Indian sovereignty workplaces. A New York State Plan office covers all public

sector workplaces in the state, including all state, county, town, and village governments, as well as

public authorities such as school districts and paid and volunteer fire departments. OSHA’s goal is to

encourage employers and employees to reduce workplace hazards and to implement new or improve

existing safety and health programs.

Who is an Employer under the Act?

An employer is by the Occupational Safety and Health Act of 1970 as “any person engaged in a business

affecting commerce who has employees, but does not include the United States or any State or political

subdivision of a State.” Religious groups are also subject to the Act to the extent they employ workers

for secular purposes.

What are OSHA’s duties under the Act?

OSHA is responsible for promulgating legally enforceable standards, which may require certain

conditions be maintained or the adoption or use of one or more practices, means, methods or processes

reasonably necessary and appropriate to protect an employer’s workers.

What are an Employer’s duties under the Act?

Employers are responsible for familiarizing themselves with all standards applicable to their

establishment, and ensuring that their employees have and use personal protective equipment when

required for safety.

What are an Employer’s rights under the Act?

Under the Act, Employers have certain rights, including:

Be advised by the OSHA compliance officer of the reason for an inspection.

Have an opening and closing conference with the OSHA compliance officer.

Accompany the OSHA compliance officer on the inspection.

File a Notice of Contest with the OSHA Area Director within 15 working days of receipt of a

Notice of Citation and proposed penalty.

Apply to OSHA for a temporary variance from a standard if you are unable to comply because of

the unavailability of materials, equipment, or personnel needed to make necessary changes

within the required time.

8

Apply to OSHA for a permanent variance if you can furnish proof that your facilities or methods

provide employee protection at least as effective as that required by the standard.

Be assured of the confidentiality of any trade secrets observed during an inspection.

What are an Employee’s duties under the Act?

Employees are responsible for complying with all rules and regulations applicable to their own actions

and conduct as promulgated by OSHA.

II. OSHA Violations

How are violations found?

OSHA inspectors can enter and inspect construction sites at any time. OSHA agents can inspect

machines, apparatus, and equipment and may question employees. Additionally, accidents resulting in

the death of an employee or in the hospitalization of three or more employees must be reported to the

nearest OSHA office within 8 hours of the occurrence.

What to do if a citation is received

You have only 15 working days from the date the citation is received to either pay the proposed penalty

or to settle or contest the citation. For uncontested violations, notification must be given to the OSHA

area director by letter (known as an Abatement Certification), signed by a member of management, that

the appropriate corrective action has been taken within the time set forth in the citation, and the

proposed penalty must be paid.

For contested citations, an informal conference with a local OSHA area office can be requested wherein

additional information concerning each cited violation can be obtained. At the conference a settlement

offer, usually a decreased penalty, may be offered. If a settlement is not reached, a Notice of Contest

can be mailed to the U.S. Department of Labor Area Office indicated on the citation. The running of the

15-day period is not interrupted by the scheduling of an informal conference; as such, any requested

conference should be scheduled as early as possible so that a Notice of Contest can be filed afterwards,

if necessary. Citations not contested within 15 working days become a final order and are not

subject to review by any court or agency.

Following a client’s receipt of an OSHA citation, an investigation into the alleged violation should be

made. Simply because a citation is issued alleging that a violation has been committed does not make it

fact. The citation must be reviewed to verify that the alleged violation was of a standard that does, in

fact, apply to the client’s workplace. Read the cited standards carefully, check for exemptions and

research its applicability.

What are the Proposed Penalties?

Other Than Serious Violations – a violation that has a direct relationship to job safety and health, but

probably would not cause death or serious physical harm. A discretionary penalty of up to $7,000 for

each violation. A penalty for an “other than serious” violation may be adjusted downward by as much

9

as 95% based on the Employer’s good faith efforts to comply with the Act, their history of previous

violations, and the size of the business. Where the adjusted penalty amounts to less than $100, no

monetary penalty is imposed.

Serious Violation – a violation where there is substantial probability that death or serious physical harm

could result and the employer knew or should have known of the hazard. A mandatory penalty of up to

$7,000 for each violation is proposed. The penalty for a serious violation may also be adjusted

downward based on the Employer’s good faith efforts, history of previous violations, the gravity of the

alleged violation and the size of the business.

Willful Violation – a violation that the employer knowingly commits or commits with plain

indifference to the law. Minimum penalty of $5,000 per violation with penalties up to $70,000 possible

for each violation. A proposed penalty for a willful violation may be adjusted downward depending on

the size of the business and its history of previous violations. If the Willful Violation results in the death

of an employee, the offense is punishable by a court-imposed fine or by imprisonment of up to 6-

months, or both. A fine of up to $250,000 for an individual or $500,000 for a corporation may be

imposed for a criminal conviction.

Repeated Violation – a violation of any standard, regulation, rule or order where, upon re-inspection, a

substantially similar violation is found. Fines up to $70,000 for each violation. The original Citation

must be final – a Citation under contest may not serve as the basis for a subsequent repeated citation.

Failure to Abate Prior Violation – an Employer’s failure to abate a prior violation may bring a civil

penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.

De Minimis Violation – violations of standards which have no direct or immediate relationship to

safety or health. When found, de minimis conditions are documented in the same way as any other

violation but are not included on the citation.

III. OSHA’s Burden

The Atlantic Battery Test

Under the so-called Atlantic Battery Test, in order to support a citation, OSHA must prove, by a

preponderance of the evidence, (1) the applicability of the standard to the hazard; (2) the employer’s

non-compliance with the standard; (3) employee access (or exposure) to the hazard or violative

condition; and (4) the employer knew, or with the exercise of reasonable diligence, could have known of

the violative conditions. Secretary v. Atlantic Battery Co. (1994). Note: Under this test, OSHA must be

able to establish that the employee was actually exposed to a hazard. A violation cannot be proven by

speculation that an employee might theoretically be exposed to a hazard.

Recent case law

In Compass Environmental, Inc. v. Occupational Safety and Health Commission; Department of Labor

(Dec. 19, 2011) the U.S. Court of Appeals for the Tenth Circuit effectively reduced OSHA’s burden of

proof, declaring that OSHA need not establish the elements of the long-established four-part Atlantic

10

Battery test to prove a violation, but instead, must only prove that a “reasonably prudent employer”

would have anticipated the hazard at issue and done more to prevent it. According to the court, OSHA

need only allege and prove that the specific employer’s actions were “imprudent” and the citation will

be upheld. For example, in Secretary v. Flintlock Construction Services LLC (May 20, 2016) the

Occupational Safety and Health Review Committee upheld $249,920 in penalties concerning a New

York contractor’s willful and serious violations of OSHA’s scaffold standard, finding that the contractor

had knowledge of the hazards and the authority to have its employees correct safety hazards.

IV. Defenses

Failure to prove exposure

An OSHA citation based on speculation or theory concerning an employees exposure to a hazard cannot

be upheld. OSHA must be able to introduce evidence that it was “reasonably predictable” that the

employee would be exposed to the hazard.

Unpreventable employee misconduct

In general, an Employer cannot be held responsible for the violation of an OSHA standard that results

from an act by an employee (including subcontractors) for which the Employer (including General

Contractors) has no knowledge and which was contrary to the Employer’s instructions. In order to

establish this defense, it must be shown that: (1) the violation was exclusively caused by or resulted

from an employee’s action; (2) it was an isolated and unanticipated occurrence; (3) it was of a short

duration; (4) it was not participated in, observed by, or performed with the knowledge of supervisory

personnel and was not foreseen by the Employer in the exercise of reasonable diligence; and (5) the

employee’s action was in contravention of well-established policy which was used to instruct employees

in safe work practices and which was enforced by disciplinary action when necessary. Putting it into

practice, employers should establish and put in place a written company-wide safety plan covering all

aspects of the contractor’s operations.

Impossibility of Compliance Defense

This defense is based on the argument that compliance with the standard was made impossible because

of the nature of the work being performed. In order to use this defense, you must be able to prove that

compliance with the standard was functionally impossible or would preclude performance of required

work and alternative means of employee protection was either unavailable or in use.

VI. Settlement – Things to Consider

Before accepting a settlement, consider the lasting implications to your client’s company. A settlement

could result in a Repeat or Willful citation which brings much higher penalties in the future if OSHA

discovers the same violation within a 5-year period.

A settlement could also result in disqualification from private or government contracts and potentially

have an effect on any personal injury or wrongful death lawsuits resulting from an injury to an

employee.

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Additional information can be found at www.osha.gov.

Before accepting OSHA’s pro forma settlement papers, consider adding a provision that your client’s

settlement of the violation does not constitute an admission of liability since payment of the fines will

then not be admissible in future litigations. When an employer has agreed to pay OSHA violations

pursuant to a settlement agreement wherein it is agreed that the settlement of the fines is not an

admission of liability, that OSHA’s allegations of a violation or the employer’s payment of said fines is

not admissible. See, Kollmer v. Slater Elec., Inc., 122 A.D.2d 117, 120, 504 N.Y.S.2d 690 (2nd

Dept.,

1986); see also, Seaman v. A.B. Chance Co., 197 A.D.2d 612, 613-614, 602 N.Y.S.2d 693 (2nd

Dept.,

1993). OSHA’s pro forma papers usually has this provision at paragraph 7 of their terms:

“By entering into this agreement, the employer does not admit that it violated the cited

standards for any litigation or purpose other than a subsequent proceeding under the

Occupational Safety and Health Act.”

It should also be noted that alleged violations of OSHA regulations is not a basis for liability under

Labor Law 241(6); it must be an alleged violation of the NYS Industrial Code. Schiulaz v. Arnell

Construction Corp., 261 A.D.2d 247, 690 N.Y.S.2d 226 (1st Dept., 1999).

C. Placing Insurance Carriers on Notice

I. Service of Tender Demands to All Carriers

As shown below, there is a distinction between policies issued before or after 2009 (no prejudice rule

before 2009) in terms of a carrier’s ability to disclaim for late notice. However, it is prudent practice to

place all applicable insurance carriers on notice of your client’s claim that it will be seeking coverage.

This includes not only placing your client’s insurers (primary and excess) on notice, but also placing on

notice all carriers from which you may seek additional insured status and/or contractual indemnity.

If you represent the owner or general contractor, confirm whether the contracts of the subcontractors call

for additional insured coverage on a “primary and non-contributory” basis, and if so, ensure to note

same in your tender demands.

Separate and apart from ensuring timely notice to carriers, it is also imperative to quickly serve tender

demands, as that will be the date from which you may seek reimbursement of attorney fees and the date

from which you may seek prejudgment interest to begin accruing (which in New York is 9%).

If the tender is accepted, but not for the full limits of the policy, then it would be prudent to not allow the

subcontractor’s carrier to assume the defense of your client, as there may be a potential conflict of

interest if your client needs to seek contractual indemnity over and above the limits of insurance

provided. Further, if the claim potentially exceeds to full limits of the subcontractor’s policies, even if

the full limits are provided, the same rule should apply and it would be wise to ensure that separate

counsel is assigned for your client and the contractual indemnity claim is enforced for all amounts over

and above the policy limits. For amounts within the policy limits, the anti-subrogation rule will prohibit

one party from asserting a cross-claim from the other when they are both insured for that risk under the

same policy.

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II. Requirements for Notice to Insurance Carriers for Policies Issued Pre 2009

Virtually every insurance policy has a provision requiring that the insurer be given notice of the loss or

occurrence and of suit as well. In occurrence based liability policies, the notice requirement is expressed

as a condition precedent and generally requires the insured to provide immediate notice. An occurrence

based policy will require notice as soon as practicable of the occurrence, of the claim and of the suit.

Even if the policy does not include a specific notice provision, the courts will read one into the policy.

Wabco Trade Co. v. Great American Ins. Co., 1983 U.S. Dist. LEXIS 13334 (S.D.N.Y. Sept. 28, 1983)

It is a well-established principle under New York law that when an insurance policy requires that “notice

of an occurrence” be given to the insurer “as soon as practicable,” that such notice must be given to the

carrier within a reasonable period of time. It is also a well-established principle that “[an] insured’s

failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which,

as a matter of law, vitiates the contract.” In practice, this means that an insurance policy is to be

construed as written, and an insured has an obligation to report claims as they become aware of them.

For decades, the law in New York had been that timely notice of occurrence or suit was a condition

precedent to an insured’s right to coverage. As such, New York courts long recognized that an insured’s

failure to provide prompt notice of a triggering event (i.e., occurrence, suit, claim, etc.) operated as a

forfeiture of the insured’s right to coverage, regardless of whether the insurer was

prejudiced. See, Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 800 N.Y.S.2d 521(N.Y. 2005).

New York Insurance Law § 3420(a)(4), has long protected insureds, injured persons and other claimants

by imposing a “reasonably possible” standard on insureds – i.e., every liability policy had to provide

that failure to give any notice required by the policy within the time prescribed therein would not

invalidate any claim if it could be shown not to have been reasonably possible to have given notice

within the prescribed time, and that notice was given as soon as reasonably possible.

Insurance Law § 3420(a)(4) provided that an insurer against injury to person or property may disclaim

coverage for the insured’s late notice of claim (i.e., when a claim is not made within the time period

prescribed by the policy) unless the insured could show that it was not “reasonably possible to give such

notice within the prescribed time and that notice was given as soon as was reasonably possible.” Under

this law, an insurer did not need to show prejudice. An insured’s failure to comply with the notice

provisions of the policy was sufficient to disclaim coverage.

Insurance Law § 3420(a)(2) provided that no claimant could commence or maintain an action against an

insured’s insurance carrier until a judgment against the insured remained unsatisfied for at least 30 days

after the claimant served the insured or the insured’s attorney with notice of entry of a judgment against

the insured. This meant that a claimant, usually a plaintiff in a personal injury or property damage case,

could not seek a declaratory judgment against the insurance carrier of the insured, usually the defendant

in the personal injury or property damage case, unless and until the claimant obtained a judgment

against the defendant. Furthermore, unless the claimant was awarded summary judgment in the

underlying action, the claimant would have to undergo a potentially lengthy and costly trial against the

13

defendant to obtain the judgment, only to be faced with the fact that either the defendant is insolvent or

the defendant’s insurance carrier has disclaimed coverage, or both.

III. Requirements for Notice Provisions to Carriers for Policies Issued after January 2009

In January 2009, New York enacted Insurance Law § 3420(a)(5), abrogating the state’s longstanding

“no-prejudice” rule for insurance policies issued after January 17, 2009. Ponok Realty Corp. v. United

Nat’l Specialty Ins. Co., 893 N.Y.S.2d 125, 127 (2d Dep’t 2010).

Insurance Law § 3420(a)(5) established additional protections that complemented the existing

requirements. It requires every liability policy issued or delivered in New York to contain a provision

stating that the failure to give notice as prescribed by the policy will not invalidate a claim made by the

insured, an injured person, or any other claimant, unless the late notice has prejudiced the insurer,

except as provided under Insurance Law § 3420(a)(4). In other words, the claim may not be denied if:

1) it had not been reasonably possible to give notice within the prescribed time, and notice is given as

soon as reasonably possible, even if the insurer has been prejudiced; or 2) the insurer has not been

prejudiced, even if the claim was not made as soon as reasonably possible.

Thus, for policies “issued or delivered” in New York on or after January 17, 2009, a disclaimer of

coverage based on late notice will only be upheld when the insurer has been prejudiced. New York

courts, however, continue to apply the “no prejudice” rule to policies issued or delivered prior to this

date. See, Charter Oak Fire Ins. Co. v. Fleet Bldg. Maint., Inc., 707 F. Supp. 2d 329, (E.D.N.Y.

2009); Rockland Exposition, Inc. v. Great Am. Assur. Co., 2010 U.S. Dist. LEXIS 103267 (S.D.N.Y.

Sept. 29, 2010). Notably, the language of the statute seems to exclude claims-made policies from this

new prejudice requirement by allowing insurers to require notice with respect to a claims-made policy

“during the policy period, any renewal thereof, or any extended reporting period.”

In practice, an insured’s failure to give timely notice will not invalidate a claim unless the late notice has

prejudiced the insurer’s ability to investigate or defend that claim. If notice is provided to the insurer

within two years of the time prescribed by the policy, then the burden falls upon the insurer to show that

it has been prejudiced. After two years, the burden would fall upon the insured or the claimant seeking

the benefits of the policy. However, irrespective of this two-year time frame, if notice is not provided

until after the insured has settled the claim against himself or after his liability has been determined, then

the insurer will enjoy an irrefutable presumption of prejudice.

Regarding the time period in which a claimant is permitted to commence a declaratory judgment action

against the insurer, the new law provides that if an insurer disclaims coverage based on late notice with

respect to a personal injury or wrongful death claim, then a claimant need not wait until the lapse of 30

days after a judgment against the insured has gone unsatisfied. Rather, the claimant may commence and

maintain an action directly against the insurer on the issue of late notice unless the insured or the insurer

commence their own declaratory judgment action within 60 days after the disclaimer. If the insured or

insurer commence the declaratory judgment action, then they must include the claimant as a party to the

action.

IV. Insurance Carriers must respond to Claims as soon as Reasonable

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An insurer’s late disclaimer will estop it from denying coverage on the grounds of late notice. See QBE

Ins. Corp. v. Adjo Contracting Corp., No. 601695/2009, 2011 WL 3505475, at *12 (N.Y. Sup. Ct. April

5, 2011) (citing First Fin. Ins. Co. v. Jetco Contracting Corp., 1 NY3d 64, 67 (N.Y. 2003)) (holding that

insurer’s unexcused delay of 48 days in giving notice of denial based on late notice of insured precluded

an effective disclaimer of coverage because such delay was unreasonable as a matter of law); Hunter

Roberts Const. Group, LLC v. Arch Ins. Co., 75 A.D.3d 404 (N.Y. App. Div. 1st Dep’t 2010)).

As one court explained, “[s]uch a reason for disclaimer would have been apparent upon examination of

[insureds’] tenders,” thereby making any delay in denying the claim an unreasonable delay as a matter

of law. Hunter Roberts Const. Group, LLC, 75 A.D.3d at 409. Thus, for example, in Hunter Roberts

Construction Group, LLC v. Arch Insurance Company, even though the insured had notified the insurer

of its claims 10 months after learning of it and potentially not “as soon as practicable” as required by the

policy, the insurers’ failure to issue a denial until 4 months after receiving notice estopped the insurer

from denying the claim on the grounds of late notice. Id.

Similarly, an insurer forever waives the defense of late notice by not asserting late notice in its initial

denial of coverage letter. See QBE Ins. Corp., No. 601695/2009, 2011 WL 3505475, at *12.

Robert Seigal

Carroll McNulty & Kull LLC

(d) (646) 625-3971

rseigal@cmk.com

With special thanks to Hilary Simon, Elizabeth Streelman and Nitin Sain for their contributions.

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16

11/18/2016

THE ACCIDENT & INVESTIGATION

WHAT IS AN ACCIDENT?

An Accident Is A Breakdown In The

Safety Management System…

Something Happened That We Did Not

Want To Happen

But really we need to shift our thought process…

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11/18/2016

OSHA POSITION

WHAT ARE THE CAUSES OF SAFETY INCIDENTS?

• Unsafe Behaviors (Acts) 85-96%

• Unsafe Conditions 4-15%

• Acts of Mother Nature 2%

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11/18/2016

INCIDENT PREVENTION

Why Do

We Want

To Eliminate

Incidents?

WHY DO WE WANT TO ELIMINATE INCIDENTS?

Legal Cost

Public Relations

Human

Relations

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11/18/2016

• Incidents• Lost Time Away from Work

• Recordable Injury

• First Aid Cases

• Near Misses• Unsafe Acts/Conditions

• Unreported Minor Accident

• Potential Injury

• Culture

• Work Environment

• Attitudes

• Complacency

• Poor Communication

• Lack of Training

INCIDENTS & NEAR MISSES

Inadequate Workplace Standards

No Plans/Procedures

Lack of Training

Lack Of Accountability

Lack of Enforcement

Poor Working Conditions

Other reasons?

WHY DO INCIDENTS HAPPEN?

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11/18/2016

IT HAPPENS!

You have just been notified that an INCIDENT has occurred…

NOW WHAT?

WHAT HAPPENED? • Who responded?

• What is the condition of the worker?

• Is the Scene Safe?

• Get as much information about incident

• Isolate the area

• Was equipment being used?

• Are there any cameras in place?

• What was weather conditions

• Are there any witnesses/co-workers?

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11/18/2016

REGULATORY RESPONSE • OSHA

• NYC DOI

• NYC DOB

• FDNY

• NYPD

• OEM

• DEP

• OCME

WORKER CONDITION • How is the patient?

• Extent of injuries?

• Where did they go?

• Compassion All Around

• Special Services Needed

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11/18/2016

SCENE SAFETY • NO FURTHER INCIDENTS CAN OCCUR!

• Ensure the incident location is safe!

• Personal Safety Is Number 1!

• Be prepared for the response

• Wear all the required PPE

• Ensure You Have the Training

• Maintain Your Credibility!

INFORMATION GATHERING Get the facts!

• Did the worker fall?

• What height did they fall from?

• Were they on a ladder/scaffold?

• Did they fall from a ladder/scaffold?

• Did they fall on stairs?

• Were they using a tool?

• Were they using a tool on a ladder?

• Did they trip on a hose?

• Did they fall into a hole?

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11/18/2016

ISOLATE THE AREA • Scene Safety

• Preserve the scene

• OSHA

• DOB

• DOI

• FDNY

• NYPD

• Broker

• Insurer

• Investigator

EQUIPMENT • What was involved with the incident?

Ladder?

Scaffold?

Power Tool?

Hand Tool?

Safety Device?

• What type of PPE were they wearing?

• Did they strike their head?

• All equipment/PPE should be placed inevidence

• Establish a Chain of Custody

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11/18/2016

VIDEO DOCUMENTATION • Was Incident captured on Security Cameras?

• Does the site use EarthCam?

• Ensure all photos are obtained

Incident Photos – 360 degrees

Photos taken by co-workers/safety/etc.

Construction Progress Photos

• Weather conditions at time of incident

WITNESSES • Identify everyone who was in the area

• Talk to everyone who was in the area

• Conduct in depth interviews by priority

• Ask witness a lot of questions

• What is the GOAL?

DETERMINE WHAT HAPPENED

WHAT WENT WRONG

ULTIMATELY…HOW TO PREVENT A RECURRENCE

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11/18/2016

RECORD COLLECTION • Site Worker Orientation

• Worker Certifications

• Safety Training

• Job Hazard Analysis

• Safety Committee Meeting Minutes

• Foreman Safety Meetings

• Daily Safety Briefings

• Toolbox Talk Training

• Daily Construction Reports

• Incident Investigation Report

EXPERTS • Accident Reconstruction

Animation

Mock Up Recreation

• Metallurgist

• Manufacturer

• Product Liability

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11/18/2016

PRESERVATION • Time is of the essence

• Lock everything down

• Gather all the information NOW

• Speak to everyone within 1-2 days

• Speak to the injured worker, if possible

NOW WHAT? • Retain all documentation in file for 3 years

• Wait…the clock is ticking…

• Possible Outcomes

Return to Workforce – WC $

Return to Workforce – WC/GL $$ - $$$

Return to Workforce But Not Same Job – WC/GL $$$ - $$$$

No Return to Workforce – WC/SSD/GL $$$$$$$$$$$$

Loss Prevention is Critical! Prevent the Incident BEFORE it Happens!

27

28

LLaabboorr LLaaww UUppddaatteess

29

30

11/16/2016

Labor Law Updates

A review and update on recent Supreme Court, Appellate Division and Court of Appeals decisions relating to §240, §241(6) and §200 with an eye on developing issues

Labor Law Claims, Coverage and Litigation

Thursday, December 15, 2016

New York Labor Law – The “safe place to work” statutes

• Section 240(1) The Scaffolding / “Gravity” law

• Section 241(6) The Code provisions

• Section 200 The common law codified

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Labor Law Section 240(1) Scaffold / Gravity law

WHO: 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, . . .

• construction managers may be exempt

• If construction is for purely commercial purpose, homeowner may lose the exemption

WHEN: in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure

WHAT:

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.”

PURPOSE: 240(1)

To protect workers by placing the “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor”, instead of on workers, who ‘are scarcely in a

position to protect themselves from accident’”

“[T]his statute is one for the protection of workmen from injury, and undoubtedly is to be construed as liberally as may be for the

accomplishment of the purpose for which it was thus framed”

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11/16/2016

APPLICATION: Labor Law Section240(1)

• 240(1) is often referred to as imposing “strict lability”

• Plaintiff Must Show: a statutory violation, causation, & injuries

plaintiff does not have to prove fault or negligence

“Liability under Labor Law § 240(1) arises when

a worker's injuries are ‘the direct consequence of a failure to provide adequate

protection against a risk arising from a physically significant elevation

differential’”

“To establish entitlement to recovery under the statute, a plaintiff must demonstrate

that “a failure to provide the required protection at a construction site [ ]

proximately caused the injury and that ‘the injury sustained is the type of

elevation-related hazard to which the statute applies'”

Establishing a section 240(1) claim

1) Plaintiff must demonstrate he or she was engaged in the [1]“erection, demolition, repairing, altering, painting, cleaning or pointing of a [2] building or structure”

A building/structure: “any production or piece of work artificially built up composed of parts joined together in some definite manner”

240(1) does not apply to routine maintenance and cleaning

“Preparatory” work may be protected if done in furtherance of protected work

2) Causation by the absence or inadequacy of a 240(1) safety device

A PHYSICAL device has been deemed required (see Miranda v Northstar Building Corp., 79 AD3d 42 [3rd Dept. 2010])

3) Qualifying injury or damages

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Section 240(1) Claim: Qualifying Injury or damages

“The kind of accident triggering section 240(1) coverage is one that will sustain the allegation that an adequate ‘scaffold, hoist, stay, ladder or other protective device’ would have ‘shield[ed] the

injured worker from harm directly flowing from the application of the force of gravity to an object or person’”

• What danger is a worker protected against? Elevation-relatedhazards (gravity)

• The two types of qualifying accidents under 240(1): Falling Workers

Falling Objects

Falling Workers:

• Trip and fall accidents do not qualify

Injury due to sliding -- such as down a roof --, without hitting the ground, may be

enough. The issue is not “whether the worker actually hit the ground,” rather the issue

is whether the worker was injured as a result of an “elevation-related” risk

that arose from the absence or inadequacy of a safety device enumerated in

the statute

The protections of 240(1) “do not encompass any and all perils that may be

connected in some tangential way with the effects of gravity.” Moreover,

“where an injury results from a separate hazard wholly unrelated to the risk

which brought about the need for the safety device in the first instance, no

section 240(1) liability exists”

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Falling Objects:

• 1: A worker, engaged in work qualifying under 240(1), is injured by a falling object

• 2: accident must be elevation-related

• 3: cause of the object’s fall was absence or inadequacy of an enumerated safety device

240(1), regarding falling objects, “applies where the falling of an object is related to a ‘significant risk inherent in the relative elevation at which materials or loads must be positioned or secured[,]” thus, in order to qualify, the object must fall [1]

while being hoisted or secured, and [2] the fall must be due to the absence or inadequacy of a safety device as enumerated

under 240(1)

Runner – when the injury is not due to the fall of a worker or object

• A worker was injured while acting as a counter-weight on a makeshift pulley afterbeing dragged into the pulley mechanism after a heavy object on the other side of apulley rapidly descended a set of stairs. Thus, the injury was due to neither the fallof the worker nor a falling object striking the worker.

“[T]he single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising

from a physically significant elevation differential.”

“[T]he applicability of the statute in a falling object case such as [Runner] does not . . . depend upon whether the object has hit the worker. . . . rather whether the harm flows directly from the application of the force of gravity to the object.”

Runner v New York Stock Exchange, Inc., 13 NY3d 599 [2009]

35

A “physically sufficient elevation differential”?

It is not enough that a plaintiff's injury flowed directly from the application of the force of gravity to an object or person, even where a device specified by the statute might have prevented

the accident.

There is no “bright-line test or automatic minimum/maximum”

The falling scaffold trio:

In Christiansen v Bonacio Constr., Inc., 129 AD3d 1156, 1158 (2015), where the cross-bar component of a scaffold caused plaintiff’s injury, and that cross-bar was only two feet above plaintiff’s height, there was not a significant elevation differential to apply the protections of 240(1).

“In order to determine whether a height differential is physically significant, we must consider ‘the weight of the object and the amount of force it was capable of

generating, even over the course of a relatively short descent’”

Thereafter in Hebbard v United Health Services, 135 AD3d 1150 (3rd Dept 2016), the 240(1) cause was similarly dismissed when an employee engaged in moving stacked scaffolds was injured when "they toppled onto him". (Notably, in both of these cases, the 241 cause was upheld)

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11/16/2016

The falling scaffold trio, continued:

In the most recent case, Wright v Ellsworth Partners, LLC., --- N.Y.S.3d ----, 2016 WL

6106466 [3rd Dept 2016], involving stacked pallets falling onto a plaintiff, however, the

Court held that there were insufficient facts to make a finding based upon the record – no

indication of the height or weight of the scaffolds, or of plaintiff's height, or the manner in

which he was struck.

“‘the single decisive question is whether plaintiff's injuries were the direct

consequence of [defendants'] failure to provide adequate protection against a risk

arising from a physically significant elevation differential’”

“[W]here the injured worker and the falling object are located on the same level,

liability under Labor Law § 240(1) is precluded as a matter of law where there is no

height differential between the falling object and the worker”

240(1) Defenses: The Recalcitrant Worker

• A defendant may assert this defense where a worker violates, refuses or failsto adhere to safety instructions he or she was given.

• Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35 [2004]

Plaintiff was injured while working on the Triborough Bridge. He had been instructed weeks prior to his accident to use a man lift or an affixed safety line and harness when climbing. Plaintiff was injured when he fell, and had not used either the man lift or the safety harness as instructed.

“where an employer had made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor law § 240(1) for injuries cause solely by his violation of those

instructions, even though the instructions were given several weeks before the accident occurred.”

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240(1) Defenses: The Sole Proximate Cause

• Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 [2003]

plaintiff was injured when he fell from a ladder after he failed to properly secure the extension ladder such that it began to close once he climbed it.

COA unanimously affirmed lower courts judgment in favor of the defendant.

“The terms [of 240(1)] may have given rise to the mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party. That is not the law, and we have

never held or suggested otherwise.”

“Even where a worker is not ‘recalcitrant,’ we have held that there can be no liability under section 240(1) when there is no violation and the worker’s actions (here, his negligence) are the ‘sole proximate cause’ of the accident. Extending the statute to impose liability in such a case would be

inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed.”

Recalcitrant Worker as the Sole Proximate Cause?

• The connection between Cahill and Blake a recalcitrant worker who is injuredafter disregarding safety instructions, must also be the sole proximate cause of herinjury, i.e., but for the worker’s failure to adhere to safety instructions, he or shewould not have been injured.

• In Blake it was noted that “[e]ven when a worker is not ‘recalcitrant’ ... therecan be no liability under section 240(1) when there is no violation and theworker's actions (here, his negligence) are the ‘sole proximate cause’ of theaccident”

• Controlling question: Whether a jury could find that plaintiff’s own conduct, ratherthan a violation of § 240(1), was the sole proximate cause of his accident.

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11/16/2016

Recalcitrant Worker as the Sole Proximate Cause?

• By way of contrast: Barreto v. Metropolitan Transp. Authority, 25NY3d 426 [2015]

Plaintiff was instructed how to safely cover and uncover a manhole. He failed to do so and was injured after falling into the manhole. The lighting was insufficient for the worker to see that the manhole was uncovered when he fell into it.

Although plaintiff was a recalcitrant worker, he could recover under § 240(1) because a jury could conclude he was not the sole proximate cause of his injuries because the lack of lighting.

Some final thoughts on this subset:

• There are certainly limits – a failure to provide devices should not beconstrued as a worker's choice not to use them. Nor does the provision ofone device, i.e, a lanyard, necessarily excuse another faulty device, i.e, anon-functional gate on a bucket lift.

• As with all Labor Law claims, these inquiries are highly fact specific.

• Also: Must be an employee, i.e, a worker hired to perform the task – anowner is NOT protected by this statute.

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11/16/2016

240(1) Recent Updates: Qualifying Tasks

240(1) applies to the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”

Saint v Syracuse Supply Co., 25 NY3d 117 [April 2015]

Merely aesthetic changes vs. physical alterations which constitute construction.

While working on a billboard, plaintiff fell after he was hit in the chest by the vinyl advertisement he was trying to affix to the billboard structure.

To affix the advertisement, the billboard structure required non-permanent physical changes, namely the addition of plywood and vinyl, in order to secure the new advertisement in place.

240(1) does not "impose or even mention a requirement that an alteration be of a permanent nature"

240(1) Recent Updates: The Safety Device

Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658 [Feb 2014]

Plaintiff was relocating a “pencil box” (an electrical wiring access panel) that was located in-between two pieces of pipe. The pipes were affixed to the structure by a "compression coupling." After removing the pencil box, the pipe that had been located above the pencil box came out of the compression coupling and fell on and injured plaintiff. Plaintiff argued that a different type of coupling would have prevented the pipe from falling.

The Court of Appeals ruled that the coupling was not a safety device within the meaning of § 240:

“[t]the only function of the coupling was to keep the conduit together as part of the conduit/pencil box assembly. . . It cannot be said that the coupling was meant to function as a safety device in the same manner as those devices enumerated in section 240(1).”

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11/16/2016

Fabrizi’s Update:

FIRST: Does the device constitute a safety device covered under 240(1)?

SECOND: Was the device meant to act as a safety device, or was it intended for some purpose other than to "function as a safety device in the same manner as those devices enumerated in section 240(1)[?]"

• Note: The dissent highlights the changed approach where, prior to Fabrizi, "thesingle decisive question is whether plaintiff's injuries were the direct consequence ofa failure to provide adequate protection against a risk arising from a physicallysignificant elevation differential”

240(1) Recent Updates: The Safety Device, continued

240(1) Recent Updates: Causation Nicometi clarifies Nieves and Melber

Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 (April 2015)

• Plaintiff was wearing stilts while installing insulation in the ceiling of a building, and was

injured when he slipped on ice and fell. The stilts had not failed in any way (did not

break, bend or were otherwise faulty).

In Nieves, the Court of Appeals held that “where an injury results from a separate

hazard wholly unrelated to the risk which brought about the need for the safety

device in the first instance, no section 240(1) liability exists”

In Melber, where a worker using stilts fell after he tripped on electrical conduit on the floor,

the Court of Appeals held that although the electrical wiring was a “hazard in the

workplace against which employees should be protected,” such wiring is not a

“special” elevation-related hazard contemplated by § 240(1)

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11/16/2016

Nicometi clarifies Nieves and Melber:

Causation requires showing that the resulting injury was the kind foreseeable, and

the safety device would have and was meant to prevent that kind of injury.

“[T]he relevant and proper inquiry is whether the hazard plaintiff encountered

on the stilts was a separate hazard wholly unrelated to the hazard which

brought about [the] need [for a safety device] in the first instance”

Liability arises “only where the plaintiff's injuries are the “direct consequence”

of an elevation-related risk[,] not a separate and ordinary tripping or slipping

hazard.”

Section 241(6) – Construction, Excavation, & Demolition Work

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,

when constructing or demolishing buildings or doing any excavating in

connection therewith, shall comply with the following requirements:

• (6) All areas in which construction, excavation or demolition work is being

performed shall be so constructed, shored, equipped, guarded, arranged,

operated and conducted as to provide reasonable and adequate protection

and safety to the persons employed therein or lawfully frequenting such places.

• The commissioner may make rules to carry into effect the provisions of this

subdivision, and the owners and contractors and their agents for such work . . . shall

comply therewith.

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11/16/2016

To prevail under 241(6), a plaintiff must demonstrate:

• “the existence of an injury sustained in an area where“construction, excavation or demolition work is being performed”, In determining what constitutes “construction, excavation or demolition work”,

the code which is argued to have been violated, thus triggering 241(6) protections, must be consulted

• “the violation of a regulation setting forth a specific standard ofconduct applicable to the working conditions which existed at thetime of the injury” and

• that the violation was the proximate cause of the injury

A Successful Section 214(6) Claim:

Elements include: “the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the

injury and that the violation was the proximate cause of the injury”

“plaintiff ‘must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation

constituted causally related negligence’”

“[T]he absolute liability imposed upon owners and general contractors . . . does not apply to prime contractors having no authority to supervise or control the work

being performed at the time of the injury”

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11/16/2016

The worker must “identify the specific rule or regulation promulgated by the Commissioner of Labor that the contractor or owner allegedly violated.

The rule or regulation alleged to have been violated must be a “specific” and “positive command” rather than a mere reiteration of a common-law standard of

care that would do little more than incorporate ‘the ordinary tort duty of care into the Commissioner's regulations’”

“[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace”

The interpretation of regulations made pursuant to application of Section 241 should not run counter to or undermine the legislative intent to ensure worker

safety

Section 200 General duty to protect the health and safety of employees; enforcement

• (1) All places . . . shall be so constructed, equipped, arranged, operated andconducted as to provide reasonable and adequate protection to the lives,health and safety of all persons employed therein or lawfully frequentingsuch places.

• All machinery, equipment, and devices in such places shall be so placed,operated, guarded, and lighted as to provide reasonable and adequateprotection to all such persons.

• The board may make rules to carry into effect the provisions of this section.

Codification of the common law duty: requires showing of supervisory control and actual or constructive knowledge of the unsafe manner of the performance of the work

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LABOR LAW UPDATES

A review and update on recent Supreme Court, Appellate Division and Court of Appeals decisions

relating to §240, §241(6) and §200 with an eye on developing issues

Labor Law Claims, Coverage and Litigation Thursday, December 15, 2016

HON. ELIZABETH A. GARRY New York State Supreme Court Appellate Division, Third Department

TAYLOR CIOBANU Assistant Law Clerk

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New York Labor Law – The “safe place to work” statutes

• Section 240(1) The Scaffolding / “Gravity” law• Section 241(6) The Code provisions• Section 200 The common law codified

Labor Law Section 240(1) Scaffold / Gravity law

WHO: 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, . . .

- recent case re owner liability (see Peck v Szwarcberg, 122 AD3d 1216 [3rd Dept 2015]);

- construction managers may be exempt, see Larkin v Sano-Rubin Construction Co., Inc, 124 AD3d 1162 (3rd Dept 2015);

- If construction is for purely commercial purpose, homeowner may lose the exemption (see Truppia v Busciglia, 74 AD3d 1624 [3rd Dept 2010], and VanHoesen v Dolen, 94 AD3d 1264 [3rd Dept 2012]).

WHEN: in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure

- Any building or structure - Defined as: “any production or piece of work artificially built up composed

of parts joined together in some definite manner” (Lewis-Moors v Contel of NY, 78 NY2d 942 [1991]; also Lombardi v Stout, 80 NY2d 290 [1992]).

WHAT: - 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.”

PURPOSE: 240(1)

To protect workers by placing the “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” (1969 NY Legis Ann, at 407), instead of on workers, who ‘are scarcely in a position to protect themselves from accident’” (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 520 [1985] (citations omitted)).

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“[T]his statute is one for the protection of workmen from injury, and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed” (Quigley v Thatcher, 207 NY 66, 69 [1912]).

APPLICATION: Labor Law Section 240(1)

240(1) is often referred to as imposing “strict lability”

Plaintiff Must Show: a statutory violation, causation, & injuries plaintiff does not have to prove fault or negligence

“Liability under Labor Law § 240(1) arises when a worker's injuries are ‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’” (Scribner v State, 130 AD3d 1207, 1208 [3rd Dept 2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).

“To establish entitlement to recovery under the statute, a plaintiff must demonstrate that “a failure to provide the required protection at a construction site [ ] proximately caused the injury and that ‘the injury sustained is the type of elevation-related hazard to which the statute applies'” (William Wright v Ellsworth Partners, LLC., --- N.Y.S.3d ----, 2016 WL 6106466 [3rd Dept 2016]; quoting Oakes v Wal–Mart Real Estate Bus. Trust, 99 AD3d 31, 34 [2012], quoting Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; see Runner v New York Stock Exch., Inc., 13 NY3d 599, 603–604 [2009]; Ross v Curtis–Palmer Hydro–Elec. Co., 81 NY2d 494, 500–501 [1993]).

1. Plaintiff must demonstrate he or she was engaged in the [1] “erection,demolition, repairing, altering, painting, cleaning or pointing of a [2] building or structure”

NOTE: Routine maintenance and cleaning: • 240(1) does not apply to routine maintenance and cleaning. In determining

whether a task was a repair rather than routine maintenance, courts will considersuch factors as “whether the work in question was occasioned by an isolatedevent as opposed to a recurring condition. . . whether the object being replacedwas “a worn-out component” in something that was otherwise “operable”; andwhether the device or component that was being fixed or replaced was intendedto have a limited life span or to require periodic adjustment or replacement”(Soriano v St. Mary's Indian Orthodox Church of Rockland, Inc., 118 AD3d 524,527 [1st Dept 2014]) (internal citations omitted).

• “[D]elin[e]ating between routine maintenance and repairs is frequently a close,fact-driven issue . . . and [t]hat distinction depends upon whether the item beingworked on was inoperable or malfunctioning prior to the commencement of thework . . . , and whether the work involved the replacement of components

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damaged by normal wear and tear” (Cullen v AT&T, Inc., 140 A.D.3d 1588, 1593 [4th Dept 2016]) (internal quotations and citations omitted).

• Performing work ancillary to a project may be covered; a project may beconsidered as a whole (see Randall v Time Warner Cable, Inc., 81 AD3d 1149[3rd Dept 2011]).

NOTE: Preparatory work: • Suggestion that preparatory work necessary in order to begin qualifying

“construction” that is covered by the statute is also protected (Makaj v Metro.Trans. Auth., 18 AD3d 625 [2nd Dept 2005]).

• Where “a person is investigating a malfunction, . . . efforts in furtherance of thatinvestigation are protected activities under Labor Law § 240(1)” (Cullen v AT&T,Inc., 140 A.D.3d 1588, 1593 [4th Dept 2016] (Worker fell on his way back downan over 140 foot pole after he had climbed the pole to investigate a possiblerepair to the telephone pole)).

• It is necessary for the worker to already have been engaged to complete aprotected task under 240(1) in order for an injury resulting from necessarypreparatory work to receive protection. Thus, where a worker was injured by afalling tree branch in the course of cutting the tree as required prior to performingwork upon a fence (a qualifying “structure” under 240(1)), the worker was notprotected, because he had not yet been contracted to perform the work on thefence (Cicchetti v Tower Windsor Terrace, LLC, 128 A.D.3d 1262 [3rd Dept 2015];(NB: this case is cited as negative authority following Randall, above).

2. Causation by the absence or inadequacy of a 240(1) safety deviceA PHYSICAL device has been deemed required (see Miranda v Northstar Building Corp., 79 AD3d 42 [3rd Dept. 2010]).

3. Qualifying Injury or damages

“The kind of accident triggering section 240(1) coverage is one that will sustain the allegation that an adequate ‘scaffold, hoist, stay, ladder or other protective device’ would have ‘shield[ed] the injured worker from harm directly flowing from the application of the force of gravity to an object or person’ (Salazar v Novalex Contracting Corp., 18 NY3d 134, 139 [2011], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009] (internal citations removed)).

What danger is a worker protected against? Elevation-related hazards (gravity) - Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]

The two types of qualifying accidents under 240(1): - Falling Workers - Falling Objects

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A. Falling Workers: - Simple cases of trip and fall accidents do not qualify - Sliding, without hitting the ground, may be enough. Where a worker slid down a

roof, but did not fall off the roof, and was injured, the Court of Appeals held 240(1) applicable. The issue is not “whether the worker actually hit the ground,” rather the issue is whether the worker was injured as a result of an “elevation-related” risk that arose from the absence or inadequacy of a safety device enumerated in the statute (Striegel v Hillcrest Heights Dev. Corp., 100 NY2d 974 [2003]).

- Where plaintiff falls and is injured, but never touches the ground, the fact that the plaintiff's equipment “‘arrests his fall before he str[ikes] the ground’ does not establish that it afforded proper protection inasmuch as it nonetheless ‘proved inadequate to shield him from gravity-related injuries’” (Cullen v AT&T, Inc., 140 AD3d 1588, 1593 [4th Dept 2016]).

- Regarding tripping while alighting from a ladder cases, the Court of Appeals has noted that "[t]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity.“ Moreover, “where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240(1) liability exists” (Nieves v Five Boro Air Conditioning & Refrigeration Corp., 93 NY2d 914 [1999]) (citations and quotation marks omitted); see also Coleman v Crumb Rubber Manufacturers 92 AD3d 1129 [3rd Dept 2012]).

- The Court of Appeals has similarly found section 240(1) to be inapplicable to injuries related to alighting from a construction vehicle as “[a]s a matter of law, the risk of alighting from the construction vehicle [is] not an elevation-related risk which calls for any protective devices of the types listed” (Bond v York Hunter Construction, 95 NY2d 883 [2000]).

B. Falling Objects: - 1st: A worker, engaged in work qualifying under 240(1), is injured by a falling

object - 2nd: accident must be elevation-related

Where plaintiffs, in separate cases, were injured by falling objects located above them, the Court of Appeals held that 240(1), as applied to falling objects, “applies where the falling of an object is related to a ‘significant risk inherent in the relative elevation at which materials or loads must be positioned or secured[,]” thus, in order to qualify, the object must fall [1] while being hoisted or secured, and [2] the fall must be due to the absence or inadequacy of a safety device as enumerated under 240(1) (Narducci v Manhasset Bay Associates, 96 NY2d 259 [2001]).

- 3rd: cause of the object’s fall was absence or inadequacy of an enumerated safety device

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C. Runner – when the injury is not due to the fall of a worker or object The Second Circuit certified the following questions to the Court of Appeals:

“I. Where a worker who is serving as a counter-weight on a makeshift pulley is dragged into the pulley mechanism after a heavy object on the other side of a pulley rapidly descends a small set of stairs, causing an injury to plaintiff's hand, is the injury (a) an ‘elevation related injury,’ and (b) directly caused by the effects of gravity, such that section 240(1) of New York's Labor Law applies?"

“II. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liability exist under section 240(1) of New York's Labor Law?” (568 F.3d 383, 389 [2009]).

Response: “[T]he single decisive question is whether plaintiff's injuries were the direct

consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.”

“[T]he applicability of the statute in a falling object case such as [Runner] does not . . . depend upon whether the object has hit the worker. . . . rather whether the harm flows directly from the application of the force of gravity to the object.”

• Runner v New York Stock Exchange, Inc., 13 NY3d 599 [2009]

D. What does a “physically sufficient elevation differential” mean?

In Oakes v Wal-Mart Real Estate Business Trust, the Third Department held that plaintiff was not entitled to recovery under 240(1) after his legs were crushed in a construction accident when an unsecured bar joist being carried by a forklift fell two feet, struck a vertically positioned truss, which fell onto the plaintiff and crushed him into another truss. Although the truss weight resulted in a significant force being generated as it fell due to the force of gravity, there was no elevation differential given that the truss and plaintiff were located at the same level and they were roughly the same height. - “it is not enough that a plaintiff's injury flowed directly from the application of the

force of gravity to an object or person, even where a device specified by the statute might have prevented the accident. Absent an elevation differential, “[t]he protections of Labor Law § 240(1) are not implicated simply because the injury is caused by the effects of gravity upon an object[.] . . . the fact that severe injury was caused by the force of gravity working on an object or person was insufficient to prove the elevation-related risk or elevation differential necessary to invoke “the exceptional protection” of the statute (Oakes v Wal-Mart Real Estate Business Trust, 99 A.D.3d 31, 36 [3rd Dept 2012] (internal citations and quotations omitted); Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

The falling scaffold trio: In Christiansen v Bonacio Constr., Inc., where the cross-bar component of a

scaffold was the cause of plaintiff’s injury, and that cross-bar was only two feet above

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plaintiff’s height, there was not a significant elevation differential to apply the protections of 240(1). - “In order to determine whether a height differential is physically significant, we must

consider “the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent” (129 AD3d 1156, 1158 [2015]).

- Thereafter in Hebbard v United Health Services, 135 AD3d 1150 (3rd Dept 2016), the 240(1) cause was similarly dismissed when an employee engaged in moving the stacked scaffolds was injured when "they toppled onto him". (Notably, in both of these cases, the 241 cause was upheld)

- In the most recent case involving stacked pallets falling onto a plaintiff, however, the Court held that there were insufficient facts to make a finding based upon the record – no indication of the height or weight of the scaffolds, or of plaintiff's height, or themanner in which he was struck. “[L]iability under Labor Law § 240(1) is not precluded simply because the falling object and the injured worker are located on the same level. Rather, ‘the single decisive question is whether plaintiff's injuries were the direct consequence of [defendants'] failure to provide adequate protection against a risk arising from a physically significant elevation differential’” (Wright v Ellsworth Partners, LLC., --- N.Y.S.3d ----, 2016 WL 6106466 [3rd Dept 2016], quoting Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10, quoting Runner at 603).

“[W]here the injured worker and the falling object are located on the same level, liability under Labor Law § 240(1) is precluded as a matter of law where there is no height differential between the falling object and the worker” (Wright v Ellsworth Partners, LLC., supra).

There is no “bright-line test or automatic minimum/maximum[,]” de minimis falls involving falls “at or very near ground level are insufficient” whereas “otherwise qualifying falls of several feet have been determined to be sufficiently elevated so as to fit the within the intended protective scope[.]” Where a worker fell off of a wet boulder, at a height of 15 to 16 inches, while operating a jackhammer in order to break the boulder into pieces, that “middle ground” elevation was sufficient as his injury was gravity-related and “represented the type of ‘special hazard’ that arises when a work site is itself elevated” (Amo v Little Rapids Corp., 301 AD2d 698 [3rd Dept 2003]; review of cases set forth in Kropp v Town of Shandaken, 91 AD3d 1087 (3rd Dept 2012).

240(1) Defenses

A. The Recalcitrant Worker Defense

- A defendant may assert this defense where a worker violates, refuses or fails to adhere to safety instructions he or she was given.

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- Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35 [2004]

Plaintiff was a worker on the repair job of the Triborough Bridge. He hadbeen instructed weeks prior to his accident resulting in his injury to use aman lift or an affixed safety line and harness when climbing. Plaintiff wasinjured when he fell, and had not used either the man lift or the safetyharness as he had been instructed.

The issue? Was the instruction to use the safety devices too temporallyremoved to classify plaintiff as a recalcitrant worker, rather than a simplycareless/forgetful worker?

The Court of Appeals held that the recalcitrant worker defense could,though not necessarily does, apply to a worker who fails to adhere tosafety instructions, even where those instructions are given weeks beforethe subject accident occurs.

“We decide in this case that, where an employer had madeavailable adequate safety devices and an employee has beeninstructed to use them, the employee may not recover under Laborlaw § 240(1) for injuries cause solely by his violation of thoseinstructions, even though the instructions were given several weeksbefore the accident occurred.”

B. The Sole Proximate Cause Defense

- § 240(1) requires owners and contractors to provide “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices” as is necessary to complete the work, AND, such safety devices “shall be so constructed, placed and operated as to give proper protection to a person so employed.”

- Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 [2003].

In Blake, the plaintiff was injured while working alone renovating a home.He was injured when he fell from a ladder, apparently because plaintiff didnot properly secure the extension ladder such that it began to close oncehe climbed it.

Holding: COA unanimously affirmed lower courts judgment in favor of thedefendant. “The terms [of 240(1)] may have given rise to the mistakenbelief that a fall from a scaffold or ladder, in and of itself, results in anaward of damages to the injured party. That is not the law, and we havenever held or suggested otherwise.”

“Even where a worker is not ‘recalcitrant,’ we have held that there can beno liability under section 240(1) when there is no violation and theworker’s actions (here, his negligence) are the ‘sole proximate cause’ ofthe accident. Extending the statute to impose liability in such a casewould be inconsistent with statutory goals since the accident was notcaused by the absence of (or defect in) any safety device, or in the waythe safety device was placed.”

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C. Recalcitrant Worker as the Sole Proximate Cause?

In drawing a connection between Cahill and Blake, the Court of Appeals has explained that a recalcitrant worker who is injured after disregarding safety instructions, must also be the sole proximate cause of her injury, i.e., but for the worker’s failure to adhere to safety instructions, he or she would not have been injured.

Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35 [2004]:

“The controlling question, however, is not whether plaintiff was “recalcitrant,” but whether a jury could have found that his own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident. We noted in Blake that “[e]ven when a worker is not ‘recalcitrant’ ... there can be no liability under section 240(1) when there is no violation and the worker's actions (here, his negligence) are the ‘sole proximate cause’ of the accident” . . . Here, a jury could have found that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured. Those factual findings would lead to the conclusion that defendant has no liability under Labor Law § 240(1)[.]”

By way of contrast, the Court of Appeals, in Barreto v. Metropolitan Transp. Authority, 25 NY3d 426 (2015), explained a further distinction in the connection between the "recalcitrant worker" and the "sole proximate cause" defenses.

• Plaintiff, a worker on a construction site, was instructed as to proper safety stepsto cover and uncover a manhole. He failed to do so and was injured after fallinginto the manhole. Interestingly, there was insufficient lighting for the worker to beable to see that the manhole was uncovered.

• Worker was a recalcitrant worker because he failed to adhere to safetyprocedures. However, the Court of Appeals reasoned that a jury could concludehe was not the sole proximate cause of his injuries because the lack of lighting.

• The plaintiff was allowed to recover under § 240(1).

D. Some final thoughts on this subset:

There are certainly limits – a failure to provide devices should not be construed as a worker's choice not to use them (see Johnson v Small Mall LLC, 79 AD3d 1240 [3rd Dept 2010]). Nor does the provision of one device, i.e, a lanyard, necessarily excuse another faulty device, i.e, a non-functional gate on a bucket lift, see Grove v Cornell University, 75 AD3d 718 [3rd Dept 2010], aff'd as modified 17 NY3d 875 [2011]).

As with all Labor Law claims, these inquiries are highly fact specific (see DeSheilds v Carey, 69 AD3d 1191 [3rd Dept 2010]).

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Also: Must be an employee, i.e, a worker hired to perform the task – an owner is NOT protected by this statute (see Hill v Country Club Acres, Inc., 134 AD3d 1267 [3rd Dept. 2015]).

240(1) Recent Updates: Qualifying Tasks

240(1) applies to the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."

Saint v Syracuse Supply Co., 25 NY3d 117 [April 2015] - Highlights the nuanced difference between merely aesthetic, "cosmetic" changes

(see Munoz v DJZ Realty, LLC, 5 NY3d 747 [2005]) and physical alterations which constitute construction.

- The most relevant facts are as follows. While engaged in work with a three-man crew on a billboard, plaintiff fell after a gust of wind caused him to be hit in the chest by the vinyl advertisement they were trying to fix to the structure.

- The key distinction in this case is that the task was not merely aesthetic, and instead required to addition of physical structures, albeit non-permanent structures. The billboard was not simply covered with a new vinyl advertisement (mere aesthetic), rather the billboard structure required physical changes, namely the addition of plywood and vinyl, in order to secure the new advertisement in place.

- Most important aspect of the ruling in Saint is that the Court of Appeals reasoned that 240(1) does not "impose or even mention a requirement that an alteration be of a permanent nature" (Saint v Syracuse Supply Co., 25 NY3d at 128).

The Appellate Divisions' application of Saint: - *Distinguished by: Royce v DIG EH Hotels, LLC, 139 AD3d 567 [1st Dept

2016] • Whereas Saint involved the physical, albeit temporary, alteration of the

billboard structure, in Royce the injured plaintiff was merely engaged inthe "set-up" and "positioning" of staging and lighting equipment in a hotelballroom such that the actual structure of the ballroom was not altered inany way.

- Cullen v AT&T, Inc., 140 AD3d 1588 [4th Dept 2016]

240(1) Recent Updates: The Safety Device

Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658 [Feb 2014] - Plaintiff is a subcontractor-electrician. His task was to relocate a “pencil box”

(this is a panel provides access to electrical wiring) that was located in between two pieces of conduit pipe; the two conduit pipes were located on either side of the pencil box (before it was removed) and were attached to the building's main structure by a "compression coupling." After having removed the pencil box, the

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metal conduit pipe that had been located above the pencil box fell on plaintiff and injured him. Thereafter, plaintiff sued the general contractor and building owner for violation of the Scaffold Act, § 240 (1) requiring that owners and contractors “furnish or erect … 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.” Both parties moved for summary judgment. Plaintiff argued that a better coupling, not the "compression" coupling used, would have prevented the box from falling.

- The trial court agreed and granted plaintiff summary judgment on liability. On appeal, the Appellate Division ruled that plaintiff failed to demonstrate, as a matter of law, that the coupling was the proximate cause of the accident.

- The Court of Appeals ruled that defendants (not plaintiffs) were entitled to summary judgment because the coupling was not a safety device within the meaning of § 240.

- The Court of Appeals held that in order for plaintiff to prevail in this 240(1) action, must establish [1] a hazard contemplated by the statute and [2] “the failure to use or the inadequacy of, a safety device of the kind enumerated therein.” (Narducci v Manhasset Bay Associates, 96 NY2d 259, 267 [2001]).

In its analysis, the court determined that “[t]the only function of thecoupling was to keep the conduit together as part of theconduit/pencil box assembly. The coupling had been installed a weekbefore the incident and had been serving its intended purpose until achange order was issued and plaintiff dismantled the conduit/pencil boxassembly…. It cannot be said that the coupling was meant to functionas a safety device in the same manner as those devices enumeratedin section 240(1).” Fabrizi v 1095 Ave. of Americas, L.L.C., 22 NY3d 658[2014]).

FIRST: Does the device constitute a safety device covered under 240(1)?

SECOND: Was the device meant to act as a safety device, or was itintended for some purpose other than to "function as a safety device in thesame manner as those devices enumerated in section 240(1)[?]"

- Note: The dissent highlights the Court of Appeals' change in approach to 240(1) application regarding safety devices: "the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential”

Fabrizi changes this -- Now it must be shown not only that the safetydevice used qualifies as such under 240(1), but also that the purpose ofthe device was to function as a safety device.

The Appellate Divisions' application of Fabrizi: - Pazmino v 41-50 78th Street Corp., 139 AD3d 1029 [2nd Dept 2016] - Sarata v Metropolitan Transp. Authority, 134 AD3d 1089 [2nd Dept 2015] - Guallpa v Leon D. DeMatteis Const. Corp., 121 AD3d 416 [1st Dept 2014] - Seales v Trident Structural Corp., 142 AD3d 1153 [2nd Dept 2016] - Christiansen v Bonacio Const., Inc., 129 AD3d 1156 [3rd Dept 2015] - Floyd v New York State Thruway Authority, 125 AD3d 1456 [4th Dept 2015]

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- Miles v Buffalo State Alumni Ass'n, Inc., 121 AD3d 1573 [4th Dept 2014] - Treile v Brooklyn Tillary, LLC, 120 AD3d 1335 [2nd Dept 2014] - Vatavuk v Genting New York, LLC, 142 AD3d 989 [2nd Dept 2016] - Zamora v 42 Carmine St. Associates, LLC, 131 AD3d 531 [2nd Dept 2015]

240(1) Recent Updates: Causation – Nicometi clarifies Nieves and Melber

Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 (April 2015) - Plaintiff wore stilts while installing insulation in the ceiling of a building, and was

injured when he slipped on ice. It was undisputed that neither Plaintiff nor the supervisor addressed the ice present on the floor. It was undisputed that the stilts had not failed in any way (did not break, bend or were otherwise faulty).

- Defendants argued that § 240(1) did not protect plaintiff because his injuries were caused by ice, not an elevation-related hazard.

In Nieves the Court of Appeals held that “where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240(1) liability exists” (Nieves v Five Boro Air Conditioning & Refrigeration Corp., 93 NY2d 914 [1999]) (citations and quotation marks omitted).

In Melber, where a worker using stilts fell when he tripped on electrical conduit on the floor of his work space, the Court of Appeals held that although the electrical wiring was a “hazard in the workplace against which employees should be protected,” such wiring is not a “special” elevation-related hazard contemplated by § 240(1) (Melber v 6333 Main St., 91 NY2d 759 [1998]).

In Nicometi, the Court of Appeals clarifies the holdings in Nieves and Melber: - Causation requires showing that the resulting injury was the kind foreseeable,

and the safety device would have and was meant to prevent that kind of injury.

- “[T]he relevant and proper inquiry is whether the hazard plaintiff encountered on the stilts was a separate hazard wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance”

- Liability arises “only where the plaintiff's injuries are the “direct consequence” of an elevation-related risk[,] not a separate and ordinary tripping or slipping hazard.”

- The Court reasoned it would be improper to conclude otherwise, as requiring a safety device to protect workers from everyday workplace hazards, not elevation-hazards, would be inconsistent with the purpose of the statute.

In applying these points to the facts in Nicometi, plaintiff slipped on ice, an “ordinary danger” unrelated to his task. Thus, although falling was a safety concern, and the stilts were a proper 240(1) safety device and were meant to prevent falls related

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to completion of plaintiff’s task, the stilts were not meant to prevent an injury caused by slipping on ice and the protections of 240(1) are inapplicable.

The Appellate Divisions' application of Nicometi: - Wormer v Watkins Glen Properties, LLC, 140 AD3d 1378 [3rd Dept 2016] - Christiansen v Bonacio Const., Inc., 129 AD3d 1156 [3rd Dept 2015] - Doto v Astoria Energy II, LLC, 129 AD3d 660 [2nd Dept 2015] - Cullen v AT&T, Inc., 140 AD3d 1588 [4th Dept 2016] - Almodovar v Port Authority of New York and New Jersey, 138 AD3d 571 [1st

Dept 2016] - Zamora v 42 Carmine St. Associates, LLC, 131 AD3d 531 [2nd Dept 2015] - Torres v City of New York, 127 AD3d 1163 [2nd Dept 2015]

Section 241(6) – Construction, Excavation, & Demolition Work

Section 241(6) – Construction, Excavation, & Demolition Work

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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

(6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.

The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

To prevail under 241(6), a plaintiff must demonstrate (see Scribner v State, 130 AD3d 1207 [3rd Dept 2015]):

- “the existence of an injury sustained in an area where “construction, excavation or demolition work is being performed”,

In determining what constitutes “construction, excavation or demolitionwork”, the code which is argued to have been violated, thus triggering241(6) protections, must be consulted (see e.g. Saint v Syracuse SupplyCo., 25 NY3d 117 [April 2015], (the Industrial Code was consulted todetermine whether plaintiff’s task constituted “construction” such that theprotections of 241(6) could be applied)).

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- “the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury” and

- that the violation was the proximate cause of the injury.”

“In order to establish a section 214(6) claim, plaintiff ‘must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence’” (Christiansen v Bonacio Const., Inc., 129 AD3d 1156, 1159 [3rd Dept 2015]).

The interpretation of regulations made pursuant to application of Section 241 should not run counter to or undermine the legislative intent to ensure worker safety provided for under Section 241(6) (See Morris v Pavarini Const., 22 NY3d 668 [2014]).

“[T]he absolute liability imposed upon owners and general contractors pursuant to Labor Law ... § 241(6) does not apply to prime contractors having no authority to supervise or control the work being performed at the time of the injury” (Trombley v DLC Elec., LLC, 134 AD3d 1343, 1343 [3rd Dept 2015]; see Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]).

A successful 241(6) cause of action “require[s] the worker to identify the specific rule or regulation promulgated by the Commissioner of Labor that the contractor or owner allegedly violated (see Ross v Curtis–Palmer Hydro–Elec. Co., 81 NY2d 494, 501–502 [1993]; see also Labor Law § 241[6]). The rule or regulation alleged to have been violated must be a “specific” and “positive command” rather than a mere reiteration of a common-law standard of care that would do little more than incorporate ‘the ordinary tort duty of care into the Commissioner's regulations’” (Gammons v City of New York, 24 NY3d 562, 576 [2014] (internal citation omitted).

Where the underlying regulations alleged to have been violated are deemed inapplicable, the 241(6) claim must be dismissed (Card v Cornell University, 117 AD3d 1225, 1228 [3rd Dept 2014]).

“Elements of a viable Labor Law § 241(6) cause of action include “the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury and that the violation was the proximate cause of the injury” (Scribner v State of New York, 130 AD3d 1207 [2015] [internal quotation marks and citation omitted]; see Copp v City of Elmira, 31 AD3d 899, 899 [2006]).

Therefore, “[t]he Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” (Hebbard v United Health Services Hospitals, Inc., 135 AD3d 1150, 1151 [3rd Dept 2016]; St. Louis v Town of N. Elba, 16 NY3d 411, 416 [2011] [internal citation omitted]).

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Section 200 General duty to protect the health and safety of employees; enforcement

(1) All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

Codification of the common law duty: requires showing of supervisory control and actual or constructive knowledge of the unsafe manner of the performance of the work (see Card v Cornell University, 117 AD3d 1225 (3rd Dept 2015); Larosae v American Pumping Inc., 73 AD3d 1270 [3rd Dept 2010]).

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60

Labor Law, Claims, Coverage and Litigation

Labor Law Updates with an Eye on Developing Issues

New York State Bar Association

December 16, 2016

Julian D. Ehrlich, Esq.

SVP Claims

Aon Construction Services Group

I) Labor Law § 200 – Safe Place to Work

a. Authority to Supervise Work

i. Means and methods – Rohan v. Tuner Const. Co., 2016 NY Slip Op. 06177

(1st Dept. 2016) (issues of fact as to whether general contractor instructed

plaintiff); Gardner v. Tishman Constr. Corp., 138 A.D.3d 415 (1st Dept.

2016)(issues of fact as to general contractors coordination of trades in

covering hole); Lam v. Sky Realty, Inc., 37 N.Y.S.2d 627 (2d Dept. 2016)(owner

defendants’ summary judgment motion denied where issues of fact remained

as to roles and who provided the plaintiff with the handheld electric saw

which had a blade come loose);

b. Notice of Condition

i. Owner’s summary judgment denied: Korostynskyy v. 416 Kings Highway, LLC,

136 A.D.3 758 (2d Dept. 2016); Kolari v. Whitestone Constr. Corp., 138 A.D.3d

1070 (2d Dept. 2016);

ii. Owner’s summary judgment granted: Maddox v. Tishman Constr. Corp., 138

A.D3d 646 (1st Dept. 2016);

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iii. General contractors summary judgment denied: Rohan v. Turner Constr. Co.,

2016 Slip Op 06177 (1st Dept. 2016)(plaintiff testified general contractor

directed him to use a pile of wood plants to span a gap between a loading

dock and delivery truck trailer);

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II) Labor Law § 241 (6)

a. Construction, Demolition & Excavation

i. Maintenance not protected by § 241(6) - Bautista v. 165 West End Ave.

Assoc., 137 A.D.3d 714 (1st

Dept. 2016) (§241(6) dismissed, replacing window

balances in co-op is not protected activity);

b. Industrial Code – Sawicki v. AGA 15th St., LLC, 2016 NY Slip Op 06785 (1st Dept.

2016)(defendants motion to dismiss denied where issues of fact existed as to

whether Code applied to Bobcat running over worker’s foot); Rohan v. Tuner

Const. Co., 2016 NY Slip Op. 06177 (1st Dept. 2016) (issues of fact as to whether

planks constituted a ramp under the Code and § 241(6)); Hernandez v. Seadyck

Realty Co., LLC, 137 A.D.3d 656 (1st

Dept. 2016)(Grinder is not a saw under Code,

summary judgment granted to defendant);

c. Integral Part - § 23-1.7(e)(2) “Working areas. The parts of floors,

platforms and similar areas where persons work or pass shall be kept

free from accumulations of dirt and debris and from scattered tools

insofar as may be consistent with the work being performed.” - Lois v.

Flintlock Construction Services LLC, 137 A.D.3d 446 (1st

Dept. 2016)(integral part

defense rejected where the worker slipped or tripped and fell on a plastic tarp

and loose broken concrete on the floor); Singh v. 1221 Ave. Holdings, LLC, 127

A.D.3d 607 (1st Dept. 2015)(§ 241(6) claim dismissed where plaintiff fell on a

screw raised 1 inch above floor tile which was an integral part of the work);

d. Comparative Negligence - Bundo v. 10-12 Cooper Square, Inc., 140 A.D.3d

535 (1st

Dept. 2016) (summary judgment granted to plaintiff under § 241(6)

where debris flew into his eye while grinding stone where and he had asked for

goggles but was told to start working w/o eye protection);

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III) Labor Law § 240

a. Protected Workers

Royce v. DIG EH Hotels, LLC, 139 A.D.3d 567 (1st Dept. 2016)(§ 240 dismissed

where plaintiff was a lighting engineer moving AV, staging and lighting

equipment into a hotel ball room for an event not considered by the court to be

an alteration); Domaszowec v. Residential Mg. Group LLC, 135 A.D.3d 572 (1st

Dept. 2016)(§ 240 granted where commercial window washer fell to death);

Lopez v. La Fonda Boricua, Inc., 136 A.D.3d 588 (1st Dept. 2016)(§ 240 dismissed

where worker was volunteer not so employed); McCrae v. Arnlie Realty Co. LLC,

140 A.D.3d 427 (1st Dept. 2016)(§ 240 granted where elevator repairman

working on elevator’s safety shoes was struck by the falling cab unrelated to

normal wear and tear); Osborn v. 56 Leonard LLC, 138 A.D.3d 624 (1st Dept.

2016)(all Labor Law claims dismissed where worker was injured in New Jersey

even though work was preparation for Manhattan project and parties were New

York domiciles); Aslam v. Neighborhood Partnership Hous. Dv. Fund Co., Inc., 135

A.D.3d 790 (2d Dept. 2016)(plaintiff’s motion denied where there were issues as

to whether plaintiff had permission to be on site on the date of accident); Jardin

v. A Very Special Place, Inc., 138 A.D.3d 927 (2d Dept. 2016)(plaintiff’s motion

denied where there were issues as to whether plaintiff had permission to be on

site on the date of accident);

b. Owners, Contractors & Agents

Villanueva v. 80-81 & First Assoc., 141 A.D.3d 433 (1st Dept. 2016) (§ 240

dismissed as to prime contractor with no authority to supervise or control

claimants’ work was not a statutory agent); Jerdoneck v. 41 W. 72 LLC, 36 A.D.3d

17 (1st Dept. 2016) (§ 240 proper as to condominium board but not former

sponsor where worker was injured while on a scaffold in the boiler room); Costa

v. State of New York, 141 A.D.3d 43 (1st Dept. 2016)(State of New York subject to

§ 240 liability as owner for loss on Pier 40 in Hudson River Park despite authority

and management by the Hudson River Park Trust); Paulino v. 580 8th Ave. Realty

Co., 138 A.D.3d 631 (1st Dept. 2016)(§ 240 dismissed as to prime contractor with

owner which had no authority to supervise or control plaintiff’s work); Balzano v.

BTM Dev. Partners, LLC, 137 A.D.3d 691 (1st Dept. 2016)(summary judgment

premature for general contractor where issues of fact existed as to whether it

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Owners, Contractors & Agents (Cont.)

retained authority to control and supervise phase of work involving plaintiff’s

work); Marquez v. L & M Dev. Partners, Inc., 141 A.D.3d 694 (2d Dept. 2016)(§

240 dismissed as to safety consultant with solely advisory not supervisory

duties); Sanchez v. Metro Bldrs. Corp., 136 A.D.3d 783 (2d Dept. 2016)(§ 240

proper as to entity that undertook general contractor duties of supervising and

coordinating, hiring and paying trade contractors);

c. Homeowner exception

Pareja v. Davis, 138 A.D.3d 615 (1st Dept. 2016)(exception applied where

homeowner was living in the UK during construction thus, had no authority to

direct means or methods of work); Chorzepa v. Brzyska, 2016 NY Slip Op 06997

(2d Dept. 2016)(defendants motion denied where issues of fact existed as to

whether vacant house was being renovated for residential purposes under

exception); Del Carmen Diaz v. Bocheciamp, 140 A.D.3d 408 (2d Dept. 2016)

(exception applied where three families, two unrelated lived in building);

d. Protected Activity

Gopie v. Mutual of Am Life Ins. Co., 37 N.Y.S.3d 122 (1st Dept. 2016)(where

plaintiff and defendants summary judgment motions were denied where issues

of fact presented as to whether work was repair or maintenance); Kolenovic v.

56th Realty, LLC, 139 A.D.3d 588 (1st Dept. 2016)(§ 240 summary judgment

motion by defendant denied where plaintiff fell from a ladder while fixing a roof

leak was repair not maintenance); Royce v. DIG EH Hotels, LLC, 139 A.D.3d 567

(1st Dept. 2016)(§ 240 dismissed where plaintiff was a lighting engineer moving

AV, staging and lighting equipment into a hotel ball room for an event not

considered by the court to be an alteration); Lannon v. 356 w. 44th St. Rest., Inc.,

136 A.D.3 528 (1st Dept. 2016)(§ 240 dismissed where plaintiff fell from a ladder

installing flag holders onto a building façade); Morales v. Avalon Bay

Communities, Inc., 140 A.D.3d 533 (1st Dept. 2016)(§ 240 dismissed where

plaintiff fell from a step ladder while doing a “final cleaning” before new

apartments were turned over to tenants); McCrea v. Arnlie Realty Co., LLC, 140

A.D.3d 427 (1st Dept. 2016) (§ 240 proper where elevator “fell” on worker

repairing elevator shoes unrelated to normal wear and tear, elevator was “not

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being hoisted or secured but required securing” during the work); Lannon v. 356

W. 44th St. Rest., Inc., 136 A.D.3d 528 (1st Dept. 2016)(§ 240 dismissed where

plaintiff fell while drilling screws into building façade to install flag holders which

did not constitute alteration); Domaszowec v. Residential Mgt. Group, LLC, 135

A.D.3d 572 (1st Dept. 2016)(§ 240 proper where window washer fell 13 stories to

death activity was commercial rather than routine household washing);

e. Statutory Duty to “furnish” fall protection

i. § 240 granted to plaintiff: Myiow v. City of New York, 2016 NY Slip Op.

06461 (1st Dept. 2016) (claimant fell 13-14 feet from a flatbed truck while

preparing steel beams to be unloaded by a crane, supporting wooden skid

dunnage broke and there was nowhere to tie safety harness, dissent argues

no proof any device was appropriate or could have prevented the accident);

Cronin v. New York City Transit Auth., 2016 NY Slip Op 06445 (1st Dept.

2016)(plaintiff used straight ladder without rubber feet because A-frame

ladder in van did not fit in workspace); Brown v. 44 St. Dev., LLC, 137 A.D.3d

703 (1st Dept. 2016)(claimant fell 12 inch x 12 inch 12 inch deep opening in

rebar latticework which the Court found to be an elevation related hazard);

Grant v. Solomon R. Guggenheim Museum, 139 A.D.3d 583 (1st Dept. 2016) (claimant was struck by a 1,500 pound crate of glass which fell while he was

offloading it from a flatbed truck which the court held required securing);

Cortes v. Jing Jen Hang, 2016 NY Slip Op 06800 (2d Dept. 2016) (claimant was

struck by a 45 pound unsecured concrete block that fell 5 feet off a scaffold);

Nazario v. 222 Broadway LLC, 135 A.D.3d 506 (1st Dept. 2016)(§ 240 proper

where worker fell 3 or 4 feet from an A-frame step ladder after receiving an

electrical shock from an expose wire since worker was not provided with an

adequate devices to prevent the fall);

ii. §240 dismissed: Smith v. Extell W. 45th St. LLC, 2016 NY Slip Op (1st Dept.

2016)(§ 240 dismissed where construction worker injured riding in building

elevator which was not a safety device or elevation related risk) chore; Joseph

v. City of New York, 2016 Slip Op 06649 (1st Dept. 2016)(§240 dismissed where

plaintiff struck by a pipe while being flushed clean with a water air mixture

propelled with high pressure did not involve gravity); Vitale v. Astoria Energy

II, LLC, 138 A.D.3d 981 (2d Dept. 2016)(§ 240 dismissed where plaintiff fell up

to groin through 12 inch x 12 inch rebar grid which the Court found not an

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elevation-related hazard requiring protective devices); Vatavuk v. Genting

N.Y., LLC, 37 N.Y.S.2d 445 (2d Dept. 2016) (§ 240 dismissed where worker

struck on his hard hat by the top of a 10 foot high piece of cold board that

snapped forward while he was fitting it into a wall frame); Seales v. Trident

Structural Corp., 142 A.D.3d 153 (2d Dept. 2016)(§ 240 dismissed where

plaintiff ascending stairwell from 5th floor was hit in the head by a piece of

falling sheetrock that had been stored against a wall near a 6th floor landing

with the Court finding the sheetrock was not being hoisted or secured nor was

it expected to require securing); Almodovar v Port Auth. of N.Y.& N.J, 138

A.D.3d 571(1st Dept. 2016)(§ 240 dismissed where plaintiff caught pant leg on

rebar descending ladder causing him to lose balance and fall from 3d rung

usual and ordinary danger at a construction site);

iii. Issues of fact: McManus v. City of New York, 142 A.D.3d 918 (1st Dept.

2016)(Summary judgment denied to plaintiff where issues as to whether a

scaffold covering a hole in a flocculation tank was proper and adequate safety

device) Kolenovic v. 56th Realty, LLC, 139 A.D.3d 588 (1st Dept. 2016)(summary

judgment motion by defendant denied where plaintiff fell from a permanent

ladder that was sole access to fix a roof leak); Ankers v. Horizon Group, LLC,

141 A.D.3d 418 (1st Dept. 2016)(plaintiff’s summary judgment motion denied

where issues of fact presented as to whether accident was part of usual and

ordinary work site dangers or gravity-related where plaintiff jumped or was

thrown from a motorized wheelbarrow that slid uncontrollably down a

hillside);

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f. Causation

i. Violation as cause of accident – Myiow v. City of New York, 2016 NY Slip

Op. 06461 (1st Dept. 2016) (§ 240 proper where claimant fell 13-14 feet from a

flatbed truck while preparing steel beams to be unloaded by a crane,

supporting wooden skid dunnage broke and there was nowhere to tie safety

harness, dissent argues whether failure to provide safety device caused the

accident is properly an issue of fact, no proof any device was appropriate or

could have prevented the accident); Somereve v. Plaza Constr. Corp., 136

A.D.3d 537 (1st Dept. 2016)(§ 240 proper where plaintiff was flipped,

catapulted or ejected 8 inches off the back of a mini-forklift that pitched

forward for unexplained reasons while lifting a load of bricks, dissent questions

causation);

ii. Cause or effect? - Albino v. 221-223 W. 82 Owners Corp. 37 N.Y.S.3d 113 (1st

Dept. 2016) (plaintiff’s § 240 motion denied where the Court found issues of

fact as to whether fall was caused by plaintiff losing his footing or some

movement of the scaffold before he fell); Hill v. City of New York, 140 A.D.3d

568 (1st Dept. 2016)(§ 240 granted where Court found it “irrelevant” whether

plaintiff fell because the ladder wobbled or because he dropped a wrench

since the ladder did not prevent the fall);

iii. Foreseeability - Carillo v. Circle Manor Apts., 131 A.D.3d 662 (2d Dept.

2015), lv. to appeal denied 27 N.Y.3d 906 (2016) (§ 240 dismissed where his

right foot went through a rotted plywood subflooring, court finding “no

foreseeable risk of harm from an elevation-related hazard for which the use of

safety devices would be required.”);

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iv. Sole Proximate Cause – Valente v. Lend Lease (US) Constr. LMB Inc., 2016

Slip Op 06987 (1st Dept. 2016)(§ 240 proper where plaintiff fell on greasy

planks of a 5 foot high makeshift ramp because alternative ramps were not

sufficient for task or could not be constructed in time for approaching crane);

Cronin v. New York City Transit Auth., 2016 NY Slip Op 06445 (1st Dept. 2016)(§

240 proper, sole proximate cause rejected where defendants did not submit

evidence that worker was told not to use a straight ladder without rubber feet

or that worker knew not to do so); Baugh v. New York City Sch. Constr. Auth.,

140 A.D.3d 1104 (1st Dept. 2016)(§ 240 proper where the court rejected misuse

arguments where plaintiff was only provided with an unsecured ladder)

McManus v. City of New York, 142 A.D.3d 918 (1st Dept. 2016)(summary

judgment properly denied to plaintiff where issues as to whether worker

moved a scaffold covering a hole in a flocculation tank); McCrea v. Arnlie Realty

Co., LLC, 140 A.D.3d 427 (1st Dept. 2016)(§ 240 proper where there was no

evidence that claimant elevator repairman was aware of “kill switch” in super’s

office and super left building during repair); Batista v. Manhattanville Coll., 138

A.D.3d 572(1st Dept. 2016)(summary judgment properly denied to plaintiff

where issues as to whether worker disregarded instructions to only use pine

planks for scaffold flooring and whether such planks were readily available);

Niewojt v. Nikko Constr. Corp., 139 A.D.3d 1024 (2d Dept. 2016)(§ 240 proper

where plaintiff fell climbing perimeter fence in attempt to leave closed job site,

sole proximate cause rejected, defendants liable for all normal and foreseeable

consequences); Kosinski v. Brendan Moran Custom Carpentry, Inc., 138 A.D.3d

935 (2d Dept. 2016)(summary judgment properly denied to plaintiff where

issues of fact existed as to whether worker misused ladder); Somereve v. Plaza

Constr. Corp., 136 A.D.3d 537 (1st Dept. 2016)(§ 240 proper where plaintiff was

flipped, catapulted or ejected 8 inches off the back of a mini-forklift that

pitched forward for unexplained reasons while lifting a load of bricks which

according to the 3-2 majority did not present any sole proximate cause issues

on the plaintiff’s operation of the lift); Guaman v. Ansley & Co., LLC, 135 A.D.3d

492 (1st Dept. 2016)(§ 240 proper, no sole proximate cause issues where

worker cut overhead beam into two pieces, one of which struck the ladder he

was on since hazard was foreseeable); Scofield v. Avante Contr. Corp., 135

A.D.3d 929 (2d Dept. 2016)(§ 240 dismissed where HVAC worker fell from A-

frame ladder he improperly positioned and misused); Sanchez v. Metro Bldrs.

Corp., 136 A.D.3d 783 (2d Dept. 2016)(§ 240 proper, no issues of sole

proximate cause issues where safety rope around workers waist came lose

while removing snow from a roof);

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v. Recalcitrant Worker - Saavedra v. 89 Park Ave., LLC, 2016 NY Slip Op (1st

Dept. 2016)(§ 240 proper, electrician held not recalcitrant despite being told

by the site safety manager not to work in room where debris prevented use of

an 8 foot ladder but he was not told to stop working and fell while climbing

down from the top step of a 6 foot ladder); DaSilva v. Everest Scaffolding, Inc.,

136 A.D.3d 423 (1st Dept. 2016)(§ 240, plaintiff not recalcitrant where he fell

from a scaffold cross brace in absence of evidence that he was expected to use

a ladder or that there was a practice of workers obtaining ladders themselves

because it was “easily done”);

g. Falling Workers & Objects - Nerney v. 1 World Trade Ctr. LLC, 140 A.D.3d 459

(1st Dept. 2016)(§ 240 proper where plaintiff lost control of a rope that “lifted

and dropped his leg” while adding slack to the rope pulley system hoisting an

object); Almodovar v. Port Auth. Of N.Y.& N.J., 138 A.D.3d 571 (1st Dept. 2016)(§

240 dismissed where sheet metal worker descending a ladder caught his pant leg

on protruding rebar, which the Court deemed a usual and ordinary of a

construction site, causing him to lose his balance and fall from the third step);

Pazmino v. 41-50 78th St. Corp., 139 A.D.3d 1029 (2d Dept. 2016)(§ 240 for

plaintiff premature where worker struck on the head by a piece of wood could

not identify the wood fall or know where it came from);

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h. Problems of Proof

i. Experts - Cronin v. New York City Transit Auth., 2016 NY Slip Op 06445 (1st

Dept. 2016)(§ 240 proper where defendants failed to supply expert evidence

that A-frame ladder could fit in work area instead of straight ladder plaintiff

used); Nerney v. 1 World Trade Ctr. LLC, 140 A.D.3d 459 (1st Dept. 2016)(§ 240

proper even though defendants submitted 2 expert opinions that plaintiff’s

version was improbable or impossible);

ii. Unwitnessed accidents - Smigieski v. Teachers Ins. & Annuity Ass’n of Am.,

137 A.D.3d 676 (1st Dept. 2016) (issues of fact preclude summary judgment

where plaintiff is sole witness to an accident and provides inconsistent

accounts, the account is contradicted by other evidence or his or her credibility

is otherwise in question); Ocana v. Quasar Realty Partners, L.P., 137 A.D.3d 566

(1st Dept. 2016)(§ 240 proper where worker submitted only his own testimony

that ladder wobbled and fell); Pazmino v. 41-50 78th St. Corp., 139 A.D.3d 1029

(2d Dept. 2016)(§ 240 for plaintiff premature where worker struck on the head

by a piece of wood could not identify the wood fall or know where it came

from);

iii. Multiple versions - Albino v. 221-223 W. 82 Owners Corp. 37 N.Y.S.3d 113

(1st Dept. 2016) (plaintiff’s § 240 motion denied where worker said there were

no safety ropes to attach his harness to the scaffold which moved but his

foreman said he instructed all workers to use available safety ropes and

plaintiff only said he lost his footing); Kupiec v. Morgan Contr. Corp., 137

A.D.3d 872 (1st Dept. 2016)(§ 240 proper where deposition testimony of the

job superintendent, masonry foreman and mason tender that plaintiff

removed a scaffold guardrail prior the accident was inadmissible hearsay not

based on personal knowledge); Ausby v. 365 W. End LLC, 135 A.D.3d 481 (1st

Dept. 2016)(§ 240 proper where under either version of conflicting evidence,

statute was violated)

71

IV) Developments in the NY Labor Force

V) Developments in the NY Construction Industry

a. Mayor DeBlasio’s Office data

b. NY Building Congress data

VI) NYS Political Developments

a. Court of Appeals Chief Judge

b. Legislature

c. Lobby Efforts

VII) NY Insurance Industry Response to Labor Law

a. Claim values

b. Costs

72

New York State Bar Association Outline

1. Labor Law §240(1)-Liability Imposed by Status

No comparative Fault

A. Applies to General Contractors, Owners and Statutory Agent

Sanchez v Metro Bldrs. Corp., 136 A.D.3d 783 (2d Dep’t.

2016); While pushing snow off from the roof on a new

construction single family house, the plaintiff fell three

stories to the ground when a knotted rope tied around his

waist came loose. The court found that the general

contractor was a statutory agent of the property owner, and

liable under §240(1), since the general contractor

coordinated and supervised the project and hired and paid

the subcontractors and that adequate safety devices were

not provided to the plaintiff, proximately causing his

injuries. The court dismissed, however, the plaintiff’s §200

claim noting that the right to generally supervise the work,

stop the contractor’s work if a safety violation is note, or

ensure compliance with safety regulations and contract

specifications, would not impose liability.

Villaneuva v. 80-81 & First Assoc., 141 A.D.3d 433 (1st

Dep’t. 2016); Defendant, Standard Water Proofing Corp.,

was granted summary judgment where it was found that

they were not the owner, general contractor or statutory

agent for purposes of the Labor Law. Additionally, it was

found that they did not supervise or control the injury

producing work and was simply a separate prime

contractor.

Marquez v. L&M Development Partners, Inc., 141 A.D.3d

694 (2d Dep’t. 2016); Plaintiff was injured when he was

caused to fall one story through a plywood covered hole in

the floor of a ramp. The site safety consultant had agreed

to provide “loss control and safety consulting services” at

the worksite. Defendant moved for summary judgment to

dismiss plaintiff’s complaint because they were not an

owner, general contractor or statutory agent under the

Labor Law. The Court noted that to hold a site safety

consultant liable as an agent of the owner there must be a

showing that they had authority to supervise and control the

work. The determining factor in whether they could be

deemed an agent is whether the party had the right to

exercise control over the work, not whether it actually did

exercise that control. The site safety consultant submitted

73

evidence in support of their motion showing that its role on

the site was one of only general supervision and that its loss

control services were in an advisory capacity only. In

addition, the applicable contract specifically excluded the

site safety consultant from responsibility for management

or control of safety practices on the site. Accordingly, the

Appellate Division upheld summary judgment on behalf of

the safety consultant.

Churaman v. C&B Electric Plumbing and Heating, Inc.,

142 A.D.3d 485 (2d Dep’t. 2016); Plaintiff was injured

when he was directed to cut a vertical beam that extended

from the floor to the ceiling and supported the ceiling, the

ceiling joists and a shelf with supplies. Plaintiff was hired

to perform work by the building’s tenant and directed to

perform this specific task by the building’s tenant.

Although the building owner had no involvement with the

work being performed, the Court found that they were a

viable Labor Law defendant under Labor Law §240(1) and

§241(6). However, the Court denied summary judgment

stating the motion was premature since no discovery had

been conducted. Plaintiff moved for summary judgment

simply using their own affidavit. The Court specifically

noted that in light of the circumstances of this accident,

defendant should be entitled to conduct full discovery to

learn about the facts surrounding this incident.

(i) One and Two Family Homeowner Exception

Costa v. State of New York, 141 A.D.3d 43 (1st Dept. 2016);

Plaintiff was injured when a metal beam collapsed and struck him.

The Court held that that a lessee’s total control of a property does

not alone excuse the owner from liability under § 240(1). Under

240(1), the only exception to owner liability is for owners of one-

and two-family dwellings who contract for, but do not direct or

control the work. The court, however, granted the property

owner’s motion to dismiss where another legislative enactment

exempted the owner from liability under the labor law.

Sandals v Shemtov, 138 A.D.3d 720 (2d Dep’t. 2016); The plaintiff

was injured when a ladder he was standing on to paint a fire escape

slipped backwards. The court held that the property owner was not

liable under either §240(1) or 241(6) due to the homeowner’s

exemption despite the fact that the property was classified as a

multiple dwelling. The court similarly held that the owner did not

have the authority to control or supervise the means and methods

of the plaintiff’s work or have actual or constructive notice of the

alleged dangerous condition.

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Kosinski v. Brendan Moran Custom Carpentry, Inc., 30 N.Y.S.3d

237 (2d Dep’t. 2016); The plaintiff, a carpenter, was injured when

he fell from a ladder while working at the defendant’s single

family home. Noting that there was a question of fact as to whether

the plaintiff misused the ladder and whether the misuse was the

sole proximate cause of the accident, the court denied the

plaintiff’s §240(1) motion. However, the court granted the

owner’s motion to dismiss the plaintiff’s §241(6) and §240(1)

causes of action inasmuch as there was no evidence that the owner

controlled or directed the work performed and the work performed

directly related to the residential use of the home.

Ramirez v I.G.C. Wall Sys., Inc., 140 A.D.3d 1047 (2d Dep’t.

2016); The plaintiff fell from a makeshift ladder constructed by the

general contractor while carrying a heavy drill. The court denied

the property owner’s motion to dismiss the matter under the

homeowner’s exemption since the owner, who was also an officer

of the general contractor for the project, was involved in the

construction, assembly, and placement of the makeshift ladder and

instructed workers to use it. The owner also performed some of

the work himself, coordinated the subcontractors, and was eight to

ten feet from the plaintiff when he fell. The court further granted

the plaintiff’s §240(1) motion holding that the ladder jerked

causing him to fall.

Batzin v Ferrone, 140 A.D. 3d 1102 (2d Dep’t. 2016); The plaintiff

was injured while using a table saw while performing renovation

work at a residential home in East Hampton that the owner

intended to renovate and resell for a profit as he had done with

fifteen prior homes. The court denied the owner’s attempt to

dismiss the matter pursuant to the homeowner exemption under

§240(1) and §241(6). While the owner testified that he intended to

live in the home for two to four years before reselling it, he did not

live in the house at any time before the accident, and many

materials for the job were shipped directly to the home in the

owner’s name and contractor invoices were directed to the owner.

Moreover, approximately four months after moving into the home,

the owner listed it for sale.

Del Carnen Diaz v. Bocheciamp, 140 A.D.3d 408 (1st Dep’t.

2016); Plaintiff’s decedent died after falling to the ground while

working on the roof of a home owned by the defendants. The sole

issue at trial was whether defendant’s home was a one or two-

family dwelling subject to the homeowner exception. The Court

explained that the applicability of the homeowner’s exemption is

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determined by a site and purpose test which hinges upon the site

and purpose of the work and must be employed on the basis of the

homeowner’s intentions at the time of injury. Here, the court

found that defendant’s home was a two-family residence where a

family friend lived in the basement and the three upper floors were

occupied by defendant’s adult child and two grandchildren.

Defendants did not receive any rental income from any of the

parties who resided there.

B. Applies to Gravity Related Risks

Nazario v. 222 Broadway, LLC, 135 A.D.3d 506 (1st Dept. 2016);

Plaintiff was injured when he fell from an unsecured, but not defective

ladder after receiving an electric shock. The court granted plaintiff’s

motion for summary judgment on his § 240(1) claim. It held that

defendant’s failure to properly secure a ladder to ensure it remained steady

and erect while in use constituted a § 240(1) violation that proximately

caused the accident. Defendants’ arguments that plaintiff caused his own

injuries by failing to wear protective gloves could at most establish

comparative negligence. The court granted defendants’ contractual

indemnification claims against the subcontractor since plaintiff’s injuries

arose out of the work performed under the subcontract.

Somereve v. Plaza Constr. Corp., 136 A.D.3 537 (1st Dept. 2016);

Plaintiff was injured when the forklift he was operating tipped over and

ejected him. The court granted plaintiff’s motion for partial summary

judgment on his § 240(1) claim. The court held that the failure to provide

a proper hoisting device to protect plaintiff violated § 240. Defendants’

arguments that the machine may have been overloaded or that plaintiff’s

operation caused the forklift to tip over were only relevant to comparative

negligence. Comparative negligence is not a defense to a 240(1) claim

and a plaintiff is not required to have acted in a manner completely free of

negligence.

McCrea v. Arnlie Realty Co. LLC, 140 A.D.3d 427 (1st Dept. 2016);

Plaintiff was injured when an elevator he was repairing fell on top of him.

The court held that the owner was subject to absolute liability under

§240(1) because plaintiff was engaged in an activity protected by the

statute. The elevator was a falling object within the meaning of the Labor

Law. The court denied summary judgment to both parties under §200

where it found issues of fact as to whether the owner had supervisory

control over the means and methods of plaintiff’s work. Specifically, it

found that there were triable factual issues as to whether the parties’

course of conduct altered the agreement. The court held further that

plaintiff failed to establish the owner gave specific instructions to plaintiff.

76

Hill v. City of New York, 140 A.D.3d 568 (1st Dept. 2016); Plaintiff was

injured when the ladder he was using to perform HVAC work wobbled,

causing him to fall. He did not have any harness equipment. The court

granted plaintiff summary judgment on his §240(1) claim against the

owner and tenant because plaintiff had not been provided an adequate

safety device. The court denied plaintiff summary judgment on his

§241(6) claim predicated on a violation of the Industrial Code because

there were issues of fact as to whether the ladder used was missing rubber

feet.

Aslam v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 135

A.D.3d 790 (2d Dep’t. 2016); The plaintiff was injured after he fell from a

scaffold. The defendant owner and general contractor claimed that the

plaintiff was expressly prohibited from working on the building until

certain demolition work was first completed. The court denied the

plaintiff’s §240(1) motion inasmuch as the defendants had raised a triable

issue of fact as to whether the plaintiff was actually permitted to work on

the site of the date of the accident.

Kupiec v. Morgan Contr. Corp., 137 A.D. 3d 872 (2d Dep’t. 2016); The

plaintiff, a waterproofer, was injured when he stepped into a hole in the

scaffold between the second and third floors of the building. The plaintiff

argued that the scaffolding was not suitable to protect him from the

alleged elevation related hazard since it was missing foot planks and a

guardrail at the location of his fall. The court agreed and held that there

was sufficient evidence to hold the general contractor liable under

§240(1), despite the allegation that the plaintiff removed the guardrail

before his accident, inasmuch as the contractor’s witnesses did not have

personal knowledge of the facts of the accident or the condition of the

scaffold at the time of the accident.

Vitale v. Astoria Energy II, LLC, 30 N.Y.S.3d 213 (2d Dep’t. 2016); The

plaintiff, a surveyor, was injured when his left leg fell into a square

opening across the top of a rebar grid, five feet off the ground. The court

held that §240(1) did not apply since the opening, measuring at most 12

inches by 12 inches, was not of a dimension that would have permitted the

plaintiff’s body to completely fall through and, therefore, did not present

an elevation-related hazard. The court similarly held that the statute

predicated on plaintiff’s §241(6) was inapplicable since the opening was

not a “hazardous opening” pursuant to 12 NYCRR 23-1.7(b) due to the

fact that the dimension of the opening would not have allowed the plaintiff

to fall completely through.

Pazmino v 41-50 78th

St. Corp., 139 A.D. 3d 1029 (2d Dep’t. 2016); The

plaintiff was injured when he was struck on the head by a piece of wood

while unloading pieces of scaffolding that had just been lowered from the

roof above. The court denied the plaintiff’s §240(1) motion holding that

the plaintiff’s mere belief that the wood that struck him was part of the

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hoist mechanism being used to lower the pieces of scaffolding was

insufficient to establish that it was a component of the safety device itself.

Viera v WFJ Realty Corp., 140 A.D.3d 737 (2d Dep’t. 2016); The plaintiff

was injured after a piece of aluminum siding made contact with overhead

power lines while he was working on a scaffold affixing the siding to the

roof of a grocery store. The court granted the plaintiff’s §240(1) motion

finding that he was injured when he fell from a scaffold that lacked a

safety railing and he was not provided with a safety device to prevent him

from falling.

Baugh v. New York City Sch. Constr. Auth., 140 A.D.3d 1104 (2d Dep’t.

2016); The plaintiff was injured when he fell from an unsecured ladder

with no safety devices provided by the property owners. The court held

that although a fall from a ladder itself was not sufficient to impose

liability under §240(1) the owners would be liable since the evidence

showed that although the plaintiff was provided with a ladder as required

by the statute, the ladder was not secured so as to prevent him from

falling.

McManus v. City of New York, 142 A.D.3d 918 (1st Dep’t. 2016); The

Court found issues of fact as to whether plaintiff’s Labor Law §240(1)

claim was appropriate because questions of fact existed as to whether the

scaffold being used at the time of the incident was a proper and adequate

safety device and whether plaintiff’s moving of the scaffold defeated its

purpose.

Saavedra v. 89 Park Ave. LLC, 2016 N.Y. App. Div. Lexis 6858 (1st

Dep’t. 2016); Plaintiff was injured when he fell from an A-frame ladder as

he was attempting to descend it. He was using the ladder within a

confined space and could not open it completely. The Court granted

plaintiff summary judgment on Labor Law §240(1) and found that

plaintiff was neither the sole proximate cause of his accident nor a

recalcitrant worker even though he was required to work from the top step

of the ladder and was previously told the room he was working in was

unsafe due to the debris that existed within it.

Valente v. Lend Lease (US) Construction LMB, Inc., 2016 N.Y. App. Div.

Lexis 6872 (1st Dep’t. 2016); Plaintiff was caused to slip and fall on grease

on planks he was using as a make shift ramp to descend 5’ from the top of

a building to a scaffold. The court awarded summary judgment based

upon Labor Law §240(1) finding that the use of the ramp constituted a

failure to provide adequate protection against a risk arising from elevation

differential. Defendants failed to raise an issue of fact arguing that

plaintiff was the sole proximate cause of his accident because he chose to

use the planks instead of using a ramp which he knew was available or

constructing a proper ramp from materials that were readily available

onsite.

78

Nerney v. 1 World Trade Ctr. LLC, 140 A.D.3d 459 (1st Dep’t. 2016);

Plaintiff was injured while hoisting a guide rail in an elevator shaft using a

rope and pulley system. Plaintiff was injured when he lost control of the

rope and his leg became entangled in the coiled rope that was located on

the platform where he was working. The Court awarded summary

judgment under Labor Law §240(1) indicating that plaintiff was not

provided with a proper safety device. In granting summary judgment, the

Court discounted two expert affidavits provided by the defendants, both of

whom found it impossible or improbable for the accident to have occurred

as plaintiff testified and alternative ways the accident could have

happened. However, the Court found that in light of the lack of safety

devices provided, plaintiff was entitled to recovery under any version of

the accident, therefore the expert reports did not raise an issue of fact.

C. Accident must have occurred during the erection, demolition, repairing,

altering, painting, cleaning or pointing of a building or structure.

Felix v. Klee & Woolf, LLP, 138 A.D.3d 920 (2d Dep’t. 2016); In a

legal malpractice action, the plaintiff sued her attorneys alleging

that she had viable claims under §240(1), §241(6), and §200, that

were not pursued. The plaintiff was injured when she fell from the

grating of a seeding machine as it was being pulled by a tractor in

the process of seeding a new cricket field for the New York City

and New York City Parks Department. The court found that she

had no basis for the malpractice action since the accident did not

occur in the context of work being performed on buildings or

structures under §240(1). Similarly, the court found no basis for

her potential §241(6) claim since she was not involved in

construction, excavation, or demolition work, and no validity to

her §200 claim since neither the City nor The Parks Department

had the authority to control the plaintiff’s work.

Jardin v. A Very Special Place, Inc., 138 A.D.3d 927 (2d Dep’t.

2016); The plaintiff was injured when he fell from an unsecured

ladder while he was trying to reach the roof at a construction site.

The court upheld the denial of the plaintiff’s §240(1) motion

holding that the while the plaintiff had submitted evidence that the

unsecured ladder shifted, causing him to fall, the owner and

general contractor raised the triable issue as to whether the plaintiff

was authorized to be at the renovation site and whether anyone had

instructed the plaintiff to access the roof.

Myiow v. City of New York, 2016 N.Y. App. Div. Lexis 6351 (1st

Dep’t. 2016); Plaintiff was injured while working in the flatbed of

a truck when dunnage that was holding steel I-beams broke

causing the beams and plaintiff to fall from the truck. At the time

of the incident, plaintiff was wearing his harness, but it was not

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tied off. The defendants argued that unloading of a vehicle does

not fall within the purview of Labor Law §240(1). The Court

found that plaintiff was working from an elevation so some sort of

protective device should have been used. The Court specifically

noted that plaintiff was working from a height of 13’-14’ above

ground on an unstable surface.

D. Defenses

(i) Sole Proximate Cause and Recalcitrant worker

Scofield v. Avante Contr. Corp., 135 A.D.3d 929 (2d Dep’t. 2016);

The plaintiff was injured when he fell from a six foot A-frame

ladder while performing HVAC work at a condominium

construction project. The plaintiff had successfully completed the

same task using the same ladder in four or five rooms without

incident. In the fifth room, the plaintiff could not position the

ladder directly under his work area due to sheetrock in his work

location. While the ladder was firmly on the ground, the ladder

tipped, and the plaintiff fell to the ground, when he reached three

to four feet to his right to complete the task. The court granted the

owner and general contractor’s motions to dismiss the §240(1)

claim holding that plaintiff improperly positioned and misused the

ladder, which was the sole proximate cause of the plaintiff’s

injuries.

Saavedra v. 64 Annfield, 137 A.D.3d 771 (2d Dep’t. 2016); The

plaintiff sustained injuries while he and a coworker were installing

wooden coverings to metal support columns. The plaintiff and his

co-workers constructed and used an unsecured makeshift structure

by affixing wooden planks on top of each other over metal rebar

protruding from the concrete ground floor, despite the presence of

an A-frame ladder in the immediate vicinity and metal scaffolding

on the same level. The court dismissed the plaintiff’s §240(1)

claim holding that the plaintiff was the sole proximate cause of the

accident due to the use of the makeshift and unsecured structure.

Albino v.221-223 W. 82 Owners Corp., 2016 N.Y. App Div. Lexis

5843 (1st Dep’t. 2016); Plaintiff was injured when he fell to the

ground while attempting to descend from the roof of a building by

means of a scaffold attached to the side of the building. The Court

held here that an issue of fact existed as to whether the plaintiff

was the sole proximate cause of his own accident where he had his

own safety harness, was in charge of the jobsite, and had used a

safety harness earlier in the day. His foreman, who had left him in

charge for the day, testified that plaintiff had a safety harness

available and in fact had used the safety harness on the roof earlier

in the day. In addition, the Court found an issue of fact existed as

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to Labor Law §240(1) where two versions of the alleged accident

existed, one which would fall under Labor Law §240(1) and the

other which would conceivably fall under Labor Law §241(6).

2. Labor Law §241(6)-Liability imposed by Status

Ramos v. Penn Tower, LLC, 136 A.D.3d 1009 (2d Dep’t. 2016); The plaintiff was

injured when a piece of wood flew back and hit his right eye while using a table

saw to cut wood. He cited 12NYCRR 23-1.8(a), pursuant to §241(6), alleging

that he was not provided adequate eye protection while using the saw. The court

denied summary judgment under this provision holding that there were questions

of fact as to whether the statute was violated based on the deposition transcript of

a witness who visited the property on the date of the plaintiff’s accident revealing

testimony as to whether safety goggles were available despite the plaintiff’s claim

that “there was nothing” to protect his eyes.

A. Defenses

(i) General Safety Requirement v. Specific Mandate

Sawicki v. AGA 15th

St., LLC, 2016 N.Y. App. Div. Lexis 6691 (1st

Dep’t. 2016); Plaintiff was injured while working at a construction

site when a bobcat backed up over his left foot. The court granted

defendant summary judgment dismissing plaintiff’s Labor Law

§241(6) claim on the basis that plaintiff failed to allege an

applicable Industrial Code section that proximately caused his

accident. The section plaintiff relied upon dealt with appropriate

operators for construction equipment [12 NYCRR 23-9.5(g)]. The

defendant in this matter showed that the operator of the bobcat had

been specifically selected and trained on how to use it and

therefore this section was found inapplicable.

3. Labor Law §200-Liability based upon Fault

A. Defects in the premises.

(i) Defendant created the condition or had actual or

constructive notice

Korostynskyy v 416 Kings Highway, LLC, 136 A.D.3d 758

(2d Dep’t. 2016); The plaintiff was injured when a worker

and construction materials from scaffolding on a

neighboring construction fell through a skylight in the roof

and onto him while he was working on the owner’s

building. The court denied the owner’s motion seeking to

dismiss the §200 claim inasmuch as there were unresolved

questions regarding the location of the adjacent property’s

scaffolding in relation to the owner’s property and whether

81

the owner personally saw materials being stacked and left

unsecured over the skylight.

Kolari v. Whitestone Constr. Corp., 138A.D.3d 1070 (2d

Dep’t. 2016); The plaintiff was injured when he stepped

into an uncovered drain on the roof of a building and fell.

The exposed drain was 12 inches wide and 6 inches deep.

The court held that there as a question of fact as to whether

the general contractor caused or had notice of the exposed

drain and refused to dismiss plaintiff’s Labor Law §200

claim. The court further ruled that the contractor could not

establish that the condition was an ordinary and obvious

hazard of his employment.

Niewojt v Nikko Constr. Corp., 139 A.D.3d 1024 (2d Dep’t.

2016); The plaintiff was injured after he fell while trying to

scale a six foot wall at a high school where he had been

working as a painting subcontractor. The plaintiff was

accidentally locked into the school’s gated sports stadium

and could not find an exit. The court refused to dismiss the

plaintiff’s §200 claim determining that there was a question

as to whether the plaintiff’s act in scaling the fence was a

natural and foreseeable response to a condition allegedly

created by the school’s negligence.

B. Defect in the equipment or work.

Matter of New York City Asbestos Litig., 140 A.D.3d 610 (1st

Dep’t. 2016); The Court upheld a jury verdict against National

Grid based upon Labor Law §200 where they were found to have

issued detailed specifications directly to contractors as to the

means and methods of mixing and apply asbestos containing

concrete and insulation at a power plant. The Court found that

liability for Labor Law §200 could be imposed even though they

only supervised the superintendents rather than supervised the

actual injured workers.

Lam v. Sky Realty, Inc., 142 A.D.3d 1137 (2d Dep’t. 2016);

Plaintiff was a day laborer who was injured while using a hand

held electric grinder to cut an opening in a metal fence for a

ventilation pipe. The blade of the grinder came lose and caused

plaintiff’s injuries. Plaintiff brought an action under Labor Law

§200 and common law negligence. The defendant moved for

summary judgment citing to the fact that they did not have

authority to supervise or control the work plaintiff was performing

and therefore not bear responsibility for the manner in which the

work was performed. The Court held issues of fact existed as to

82

the party’s roles and renovation work at the subject premises where

plaintiff was injured and as a result denied their motions.

4. Third Party Claims

A. Third Party Actions

(i) Contractual Indemnification Claims

Zubaidi v. Hasbani, 136 A.D.3d 704 (2d Dep’t. 2016); The

plaintiff, a plumber, was injured when he fell from stairs at the

owner’s property. The owner moved for common law

indemnification against the contractor at the construction site. The

court dismissed the common law indemnification claim holding

that the contractor had created its prima facie case that it was not

responsible for the negligence that contributed to the accident and

it lacked the authority to direct, supervise, or control the work

giving rise to the injury.

Chilinski v LMJ Contr., Inc., 137 A.D.3d 1185 (2d Dep’t. 2016);

The plaintiff, a welder, fell through a purposely designed opening

in a platform floor that had been temporarily covered with a piece

of plywood while installing a commercial bakery oven. The owner

moved for conditional summary judgment under §200 against the

general contractor hired to install the oven. The court denied the

owner’s motion holding that the owner had failed to establish that

the accident occurred solely from the method or manner of the

work performed, and not from a dangerous condition on the

property, or that the owner did not create or have notice of the

allegedly dangerous condition. The court granted the contractor’s

motion to dismiss the owner’s claim for common law

indemnification inasmuch as the contractor provided unrefuted

evidence that it was not involved in the construction of the

plywood cover and did not direct, control, or supervise the

plaintiff’s work.

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86

At an lAS term of the Supreme Court held inand for the County of Rensselaer, in the Citof Troy, New York on the 23rd day of April2014

PRESENT: HON. PATRICK J.McGRATHJUSTICE OF THE SUPREME COURT

SUPREME COURTCOUNTY OF RENSSELAER

NEAL COLEMAN,

STATE OF NEW YORK

".}. ,. ~

Plaintiff,DECISION AND ORDERINDEXNO.237063

-against-

BAST HATFIELD,Defendant.

BAST HATFIELD, INC. (s/h/a BAST HATFIELD),

Third Party Plaintiff,

-against-

TRI~CITY SCAFFOLD CO., INC.,

Thil~dParty Defendants.

APPEARANCES: THORN GERSHON TYMANN AND BONANNI, LLPFor the Defendant/Third Party Plaintiff Bast Hatfield

MATTHEW J. KELLY, ESQ.For the Third Party Defendant Tri-City Scaffold Co., Inc.

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\. McGRATH, PATRICK J., JSC

This personal injury action arises outof a construction site accident in which Neal Coleman("plaintiff') was injured after he fell from a scaffold erected at the Sutherland School inNassau, NewYork on September 1, 2009. Third Party Defendant Tri-City Scaffold Co., Inc. ("Tri-City") nowmoves for summary judgment, and third party plaintiff Bast Hatfield opposes the motion.

Parties/Procedural History

Bast Hatfield, the general contractor at the Sutherland School renovation project, hiredDeBrino Caulking Associations, Inc. ("DeBrino") as a mason subcontractor. At the time of theinjury, plaintiff was a union mason working for DeBrino. DeBrino subcontracted with Tri-City toconstruct the scaffolding.

Plaintiff originally brought suit against DeBrino, which has now been discontinued. DeBrinodiscontinued its fourth party action against Tri-City on September 10, 2013.

This matter has previously been on motion before this Court. In its Amended Third PartyComplaint, Bast Hatfield alleged that there was a contractual clause whereby Tri-City was requiredto indemnify Bast Hatfield and DeBrino. In a decision and order dated June 18,2014, this Courtdismissed Bast Hatfield's claim for indemnity against Tri-City, as Bast Hatfield conceded there wasno such language in the contract. Thus, Bast Hatfield has no contractual right to indemnificationfrom Tri-City.

Remaining are the plaintiff's four causes of action against Bast Hatfield, including claimsof negligence and three labor law violations (SS 200, 240(1), 241(6)), and Bast Hatfield's third partyclaim of negligence against Tri-City, the latter of which is the subject of the instant motion.

An award of summary judgment is appropriate when no issues of fact exist. See CPLR3212(b); Andre v. Pomeroy, 35 NY2d 361 (1974). It is well established that the proponent of amotion for summary judgment must demonstrate that there are no material issues of fact in dispute,and that it is entitled to judgment as a matter of law. Wine grad v New York University MedicalCenter, 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by themovant, the party opposing a motion for summary judgment bears the burden of "produc[ing]evidentiary proof in admissible form sufficient to require a trial of material questions of fact."Zuckerman v City of New York, 49 NY2d 557,562 (1980). lilt is incumbent upon a defendant whoopposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order toshow that the matters set up in his answer are real and are capable of being established upon a trial. IISpearmon v. Times Square Stores Corp., 96 AD2d 552, 553 (2d Dept. 1983). Mere conclusoryallegations, expressions of hope, speculation or conjecture are insufficient to resist summaryjudgment. Zuckerman, supra.

There are essentially two allegations contained in Bast Hatfield's Amended Third Party

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Complaint against Tri-City: 1) that Tri-City is contractually obligated to indemnify Bast Hatfieldfrom the claims of the plaintiff, which has already been determined to be false and 2) that BastHatfield is entitled to common law indemnification from Tri-City, based on Tri-City's negligentconstruction of the scaffolding. In its Bill of Particulars, Bast Hatfield claims that Tri-City wasnegligent in that it failed to use, erect, construct and/or build the scaffolding in a manner thatcomplied with safety regulations applicable to commercial construction, and failed to comply withthe generally accepted safety standards of a scaffold within the community.

A claim for common-law indemnification is dependent upon a showing that the partyseeking indemnity was not guilty of any negligence and also a showing that the proposed indemnitorwas guilty of some negligence that contributed to the cause of the accident or had authority to direct,supervise, and control the work giving rise to the plaintiffs injury. Benedetto v Carrera Realty Corp.,32 AD3d 874 (2006); Perri v Gilbert Johnson Enters., 14 AD3d 681, 685, (2005); Priestly vMontefiore Med. Ctr.lEinstein Med. Ctr., 10 AD3d 493,495 (2004).

Tri-City now argues that there is no proof that it was guilty of any negligence. Tri-Cityprovides the deposition testimony of Leo Kern, an employee ofTri -City who holds Scaffold IndustryAssociation (SIA) certification and has an OSHA 10 and OSHA 30 card. He described the OSHAsystem of tags. Specifically, that a red tag is placed on scaffolding when it is being built. Tri-Citywould place a green tag on it when it was "complete and safe." A yellow tag would indicate anyhazards.

Kern was involved in the erection of this scaffolding at two locations at the Sutherthandschool site in August 2009. He raised certain decks to a higher level. He noted that once the plankswere raised, Tri-City placed guardrails on the "whole thing." On the day that he moved the planks,he did an inspection, and signed off at that point.

After the accident, he returned to the site and noted that the scaffolding was not in the samecondition as he left it. The plank levels had been moved. Certain braces and guardrails were missing.He cannot recall if he observed any work being done on the scaffolding between August 2009 andthe date of the accident. He noted that ifhe observed anything dangerous about the scaffolding, hewould have the duty and the authority to take the green tag off and place a red tag on the scaffold.He never removed the green tag, because the scaffolding was "fine when [he] left." Ifhe had seenscaffolding in the condition it was in on the date ofplaintiffs fall, he would have removed the greentag.

He notes that OSHA and the SIA require that a "competent person" who can find hazards andcorrect deficiencies in the scaffolding must be present at every job site, and must inspect thescaffolding every day. However, neither OSHA nor SIA require Tri-City to ensure that a competentperson is on site. He states that Tri-City is responsible for "putting the [green] tag on the scaffoldingand turning it over to the contractor."

John James, owner and manager of Tri-City, testified that Tri-City is a company that erects

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scaffolding for construction jobs, "labor only." He has attended courses put on by the SIA and ismember of the national trade industry. He has testified as an expert in scaffolding. He testified thaOSHA requires that only a scaffold inspected by a competent person can receive a green tag,otherwise, it cannot be used by a customer. He notes that OSHA requires that scaffolding must binspected by a competent person every day that it is in use. The company using the scaffolding musselect the competent person. He stated that DeBrino told him that their employee Brain Pulver wasin charge of the job, that he would complete daily inspections. Mr. James thought that Pulver wasa competent person in suspended scaffolding. Pulver had a competent person card in his possession,which can be obtained after taking the SIA test.

Mr. James stated that 'I'ri-City constructed the scaffolding, and that Kern was responsible fOlthe green tag. He noted that the decks were "planked solid. There was access gates wherever therwas a landing." On August 11-12,2009, Tri-City put the scaffold on the roof on the back side ofthchimney, and on August 14,2009, Tri-City installed the guardrails and gates. Kern signed off on thscaffolding on this date. On August 20,2009, Tri-City did further work on the opposite gable. Jametestified that if anyone from Tri-City saw any deficiencies in any of the scaffolding, they would havcorrected it, but no corrections were made and the scaffolding was deemed "adequate." He was nopresent at the site again until the date of the accident.

He noted that the scaffold was only "planked" at the working level, not top to bottom.DeBrino also requested additional planks to "be able to move around." DeBrino declined scaffoldinthat was fully planked because of the cost, and to provide flexibility on the job.

Mr. James stated that after the accident, he went to the site and was "surprised" because therewas "planks all over the ground and nothing up in the air ...they moved the planks, so I didn'uhderstand the logic of why they would send the planks to the ground and leave the holes up on top."He stated that "obviously [DeBrino] didn't have anybody that was trained [tomove the planks] ...theywere still novices, as far as actually doing it." He stated that [DeBrino] "didn't do it properly." Healso offered his opinion, based on plaintiff's testimony, the testimony of another worker on thescaffolding, and photographs taken at the scene the day of the accident, that the plaintiff wasstanding on aportion of plank, and attempting to reach another piece of plank. When he lowered theplank, he failed to wrap his foot around a post, which would have locked him in place. He lost hisbalance and the weight of the plank took him down through a gap in the scaffolding.

Mr. James also described photos he took the day of the accident, which demonstrate that Tri-City installed proper access, but that DeBrino had moved a plank from the level plaintiff fell, andhad also removed guardrails and braces. Plaintiff fell in the area of a missing guardrail. Jamestestified that there should have been planking in this area, and this was not the condition Tri-City leftthe scaffold on August 14, 2009. Another Tri-City employee, Jesse Weber, worked on thescaffolding, and drove past it on August 20, 2009. He did not conduct a formal inspection, butobserved the scaffolding and did not report any problems with it. Brian Pulver told James thatDeBrino removed the guardrail to "get product up to that working level." James said that if any Tri-City employee observed any deficiencies with the scaffolding, they would pull the green tag.

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However, he also said that Pulver informed him that DeBrino had been taking braces and guardrailsoff and putting them back on throughout the entire job, including August 11,2009. If they lost arai!,they would use another plank as aguard instead. He noted that he was aware that DeBrino employeeswould be moving planks themselves, and he offered to provide an SIA "hazards awareness training'for "$35 a man." He also offered to inspect the scaffolding on a daily basis, for an additional cost.

Richard Farnan testified that he was the Proj ect Manager on the job and executed the contracwith Tri-City on behalf of DeBrino. He bid the job for working level planks only, not for a scaffoldthat was fully planked. All of the work was at the top, and thus, there was no need for lower planks.DeBrino has done previousjobs with scaffolds only partially planked, where they moved the planksthemselves. He assumed that would occur on this job. He said in masonry, "we're always movinplanking. The walking levels, we're always moving planking."He noted that DeBrino had weekI"job box talks" about safety during the project, and there was a full time safety coordinator, AlPoole.

Mr. Farnan was present when the scaffolding was set up for this project. He had nocomplaints regarding it, and said it was "set up perfect." He stated that all of the equipmennecessary for an OSHA compliant scaffold was on the scaffold when Tri-City completed its work.He said "if John [James] left the scaffold, it was ready to go." He noted that the scaffolds would haveto modified, and cross braces removed, so that product could be delivered to the upper levels. He is"pretty positive" that occurred on this job. He states that the plaintiff told him that he was movinga plank "from outrigger to outrigger" in order to get to another elevation. An outrigger hangs offtheside of the scaffold and the plank sits on it to another outrigger. Mr. Farnan states that plaintiff saidthat "he went to hit across an outrigger, he missed it. And the weight of the plank coming around,rather than let it go, he hung on to it, and it took him." He believes plaintiff fell forward, betweenthe planking and the building.

Darrell Lavare also testified, and stated that he was the DeBrino foreman on the job. Heconfirmed that all modifications to the scaffolds were done by DeBrino employees after Tri-Cityturned it over to them.

Counsel for Tri-City argues that the record establishes that the scaffold was delivered in safecondition, and that any modifications were done by DeBrino and its employees. Counsel argues thatthe Labor Law violations are not applicable to Tri-City, since it did not direct or supervise theplaintiff, nor did Tri-City have any control over the scaffold on the date of injury.

The Court finds that Tri-City has met its initial burden of demopstrating that it was notnegligent in construction of the scaffold, and therefore, it is incumbent on Bast Hatfield to raisematerial issues of fact.

Bast Hatfield argues that the only testimony provided by Tri-City as to the condition of thescaffold when it was delivered comes from Leo Kern, and that this "self-serving testimony" isinsufficient to meet Tri-City's burden on summary judgment. In support of this argument, Bast

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Hatfield cites three cases, each of which hold that where the manner of the happening of the accidentis within the exclusive knowledge of the plaintiff, an award of summary judgmcnt on liability isinappropriate becausethe defendant should have the opportunity to subject the plaintiffs testimonialaccount to cross-examination and have his credibility determined by the trier offact. Rodriguez v.New York City Hous. Auth., 194 AD2d 460; Manna v. New York City Hous. Auth., 215 AD2d 335Carlos v. Rochester General Hosp., 163 AD2d 894. However, these cases are not on point, as theyall concern a plaintiffs version of events when the plaintiff was the only witness to the accident. Theplaintiffs version of events is not even at issue here, since he cannot recall how the accidentoccurred. Bast Hatfield does not point to any evidence which directly contradicts Mr. Kern'stestimony, his qualifications, or his credibility. And unlike the cases cited by Bast Hatfield,knowledge of the condition of the scaffolding when it was delivered is not exclusive to Mr. Kerns.Mr. Farnan testified that he was present when the scaffolding was set up, that it was "set upperfect,"and that all of the equipment that was necessary for an OSHA compliant scaffold was therewhen Tri-City completed its work.

Next, Bast Hatfield claims that "there are facts suggestive ofthe scaffold being in a defectivecondition at the time it was furnished by Tri-City." Bast Hatfield claims that there is testimony thaton the morning of the accident, the scaffolds were inspected and that all planks, guardrails and braceswere in place. Counsel for Bast Hatfield cites the deposition testimony of Vincent Nicolletti, whowas working alongside plaintiff on the scaffold on the day of the accident. He was asked "is itcorrect...that before you would use the scaffold on any day, somebody would inspect it?", and heanswered "yes." He also testified that all planks were in place and that all cross braces "seemed tobe in place." Counsel claims that Mr. Nicolletti testified that neither he nor plaintiff moved anyplanks or any aspect of the scaffold prior to the plaintiffs' accident. Counsel then states that it isundisputed that the area in which plaintiff fell should have been supported by two planks, and thatthere was only one plank observed in the area "it is believed" that plaintiff fell, and that the missingplank was found on the ground. Additionally, that it is.undisputed that "ifthe planking on the groundfailed to support plaintiff, it was defective." Counsel argues that "there are questions offact as to thecause of plaintiff's accident, one of which Tri-City would be liable for, Tri-City's motion must bedenied."

Essentially, Bast Hatfield's argument here is that summary judgment is inappropriate becausethe cause of the accident has not been determined, and therefore, Tri-City's negligence cannot beruled out. However, as noted above, Bast Hatfield is now required to point to some proof that raisesa triable issue of material fact concerning its allegation that Tri-City was negligent in constructingthe scaffold. Bast Hatfield cannot simply point to holes in the overall proof, but rather, has theburden of laying bare some proof concerning Tri-City's negligence. Bast Hatfield implies that theconditions present on the day of the accident could be attributable to Tri-City because Nicolletti didnot move the planks or any aspect of the scaffold. However, this is simply speculation. There is noshowing on this record that the planks supplied were physically defective, inappropriate in size, orimproperly installed. Thus, Bast Hatfield has not carried its burden of demonstrating a viable factualissue in this regard sufficient to warrant denying Tri-City summary judgment relief.

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Bast Hatfield also claims that there are questions of fact as to whether Tri-City employeesobserved defects in the scaffolding, and but failed to act. The only proof adduced on this claim isfrom Tri-City employees who stated that if they saw any defects, they would address them, perhapseven to the point of removing the green tag. Bast Hatfield does not present any actual evidence thatthis occurred.

Finally, Bast Hatfield argues that when DeBrino hired Tri-City, it was clear that DeBrinowould be modifying the scaffolding (Bast Hatfield noted that Tri-City left additional planks for thisvery purpose), but that Tri-City did not provide instructions or training on how to move thescaffolding, as was its duty, and that DeBrino's misuse was "foreseeable."

Labor Law ~ ~ 200, 240, and 241 apply to owners, general contractors, or their "agents." Aparty is deemed to be an agent of an owner or general contractor under the Labor Law when thatparty has the "ability to control the activity which brought about the injury." Walls v Turner Constl'.Co., 4 NY3d 861,863-64 (2005); see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-18(1981). The record does not contain any evidence that Tri-City had control over the use of thescaffold or any contractual responsibility for its maintenance and, indeed, it was not even present atthe job site for most of the work. See Brown v Two Exch. Plaza Partners, 146 AD2d 129, 136(1989), affd 76 NY2d 172; Holt v Welding Servs., 264 AD2d 562, 564 (1999), Iv dismissed 94NY2d 899; Gaddy v Colgate Scaffolding Corp., 236 AD2d 333 (1997). Labor Law ~~200,241(6)and 240(1) are not applicable to Tri-City; thus, the only cause of action available as against Tri-Cityis common law negligence.

Courts have dismissed failure to warn claims where the plaintiffhad prior experience inusingthe product, and thus knew of its dangers. Liriano v Hobart Corp., 92 NY2d 232, 241 (1998)("[W]here the injured party was fully aware of the hazard through general knowledge, observationor common sense ...lack of awarning about that danger may well obviate the failure to warn as a legalcause of an injury resulting from that danger.") In Stokes v. Komatsu Am. Corp., 117 AD3d 1152(3d Dept. 2014), the Third Department held that the trial court properly granted a commercial lessor'smotion for summary judgment because any duty to warn by the lessor was negated by the fact thatan injured worker was a "knowledgeable user" of heavy equipment with over 20 years of experiencein operating and maintaining such machines. In Hall v Husky Farm Equip., Ltd., 92 AD3d 1188 (3dDept. 2012), the Court found that plaintiff was a "knowledgeable user" of the pump that he wasoperating at the time of the accident, and thus, the defendants "were relieved from any obligation towarn him of latent dangers that existed when the agitator was operating and the pump was in use."In Felle v W.W. Grainger, Inc.. 302 AD2d 971 (4th Dept. 2003), the Court dismissed plaintiffsfailure to warn claims because he had seven years of experience using a grinder and should haveappreciated the dangers of placing his face in proximity to a rapidly rotating and completelyunguarded split or hinged sanding wheel.

According to the plaintiff's deposition testimony, he had been a mason from 1983 until 2009,over twenty years. His work required him to be on scaffolds on a "regular basis." He knows thedifferent parts of the scaffold. He is familiar with changing levels on a scaffold, and has received

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instruction on how to do it. Dudng his career, he has moved planking on scaffolds, generally if thelaborers were sent to other jobs or places. He tecalls that he was moving planking op.the day of his ..accident. No one needed to tell him to do this, it was simply understood that moving planks was anecessary part of this job. Mr. Farnan testified that in masonry, "we're always moving planking. Thewalking levels, we're always moving planking." The Court finds that any duty to warn by Tri-Citywas negated by the fact that plaintiff was a knowledgeable user of scaffolding with over 20 years 0

experience not only working on scaffolding, but moving plariks in the same malmer he was doingon the date of his injury.

Therefore, Tri-City's motion for summary judgment is granted, and the third party complaintit dismissed in its entirety.

This shall constitute the Decision, Order and Judgmentof the Court.. This Decision, Orderand Judgment is being returned to the Third Party Defendants Tri-City Scaffold Co., Inc.. Alloriginal supporting documentation is being forwarded to theiClerk's Office for filing. The signingof this Decision, Order and Judgment shall not co~stituteentry or filing under CPLR 2220. Counselis not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.

SO ORDERED AND ADJUDGED.ENTER,

Dated: April 24, 2015Troy, New York

Papers Considered:

1. Notice of Motion for Summary Judgment, dated December 18,2014; Affidavit, Matthew J.Kelly, Esq., dated December18, 2014, with annexed Exhibits A~K.

2. Affidavit in Opposition, Erin Mead, Esq., dated February 17, 2015, with annexed ExhibitsL &M; Memorandum of Law, Erin Mead., Esq., dated Febrllary 11,2015.

3. Reply Affidavit, Matthew J. Kelly, Esq., dated February 23,2015, with annexed Exhibits A&B.

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ISSUES BETWEEN DEFENDANTS, THIRD-PARTIES AND INSURERS

Eileen M. Haynes Bartlett, Pontiff, Stewart & Rhodes, P.C.

One Washington Street P.O. Box 2168

Glens Falls, New York 12801 (518) 792-2117 x 6435

emh@bpsrlaw.com

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ISSUES BETWEEN DEFENDANTS, THIRD-PARTIES AND INSURERS

1. RISK TRANSFER

Labor Law 240(1) imposes on owners and general contractors, and their agents, a nondelegable duty to protect workers from risks inherent in elevated work sites. Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991). Section 240 (1) holds owners and general contractors absolutely liable for any breach of the statute even where the job was performed by an independent contractor over whom the owner or GC had no supervision or control. Id. Labor law 240 (1) does not prevent an owner or GC from seeking full indemnification from the party wholly responsible for the accident. McCarthy v. Turner Construction Co., 17 NY3d 369 (2011).

Indemnity, by definition, involves the transfer of an entire risk from one entity to another. The issue of indemnity is paramount in all construction litigation since the construction industry is fraught with risk. Generally, owners and contractors seek to shift the inherent and explicit risks of construction away from themselves and onto the subcontractors who determine the means and methods of the work and are best suited to control the risk. A party’s right to indemnification may arise from a contract or may be implied “based upon the law’s notion of what is fair and proper as between the parties.” Mas v. Two Bridges Assoc., 75 NY2d 680 (1990).

2. COMMON LAW INDEMNIFICATION

Common law indemnity is a restitution concept which permits shifting the loss to avoid the unjust enrichment of one party at the expense of the other. Mas., 75 NY2d at 690 (1990). Common law indemnification is available for a party who is held responsible solely by operation of law because of his relation to the actual wrongdoer. Id. at 690. Thus, owners and contractors who are vicariously liable by statute, such as Labor Law § 240(1), may seek indemnity from the party wholly responsible for the accident. There are, of course, limits on the extent to which common law indemnification is available and against whom it may be sought.

A. Common Law Indemnity Against The Plaintiff’s employer.

Since 1996, it is extremely difficult for owners and general contractors to seek common law indemnification from the injured party’s employer. In 1996, the Legislature enacted the Omnibus Worker’s Compensation Reform Act, abrogating employers’ liability to third parties for injuries to their employees. Under this law, an employer is not liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment unless it can be shown that the employee suffered a

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“grave injury.” Worker’s Compensation Law § 11. New York Jur. 2d, Worker’s Compensation § 114.

Grave Injury means one or more of the following:

Death

Permanent and total loss of use or amputation of an arm, leg, hand or foot;

Loss of multiple fingers or toes (one is not enough);

Paraplegia or quadriplegia;

Total and permanent blindness;

Total and permanent deafness;

Paraplegia or quadriplegia;

Loss of nose;

Loss of ear;

Permanent and severe facial disfigurement;

Loss of an index finger; or

An acquired injury to the brain caused by an external physical force resulting inpermanent total disability.

Worker’s Compensation Law § 11.

Section 11 creates a problem for defendants who generally want to minimize the extent of a plaintiff’s injury. This is especially true in Labor Law § 240 cases where the owners and general contractors are held strictly liable for injuries caused by an elevated risk at a construction site. In the absence of a contractual right to indemnification, owners and general contractors find themselves in the awkward position of arguing that a plaintiff’s injury is severe or grave, raising the possibility of a large plaintiff’s verdict for which they will ultimately be responsible.

The question becomes when, and if, a defendant should raise the grave injury defenses. In certain situations the answer is obvious. If the employee dies in the accident, is paralyzed, loses an index finger, arm, leg, hand or foot as a result a construction injury, the courts will find as a matter of law that he has suffered a grave injury and there is no issue with raising the defense early in litigation. In other contexts, however, the issue is not as clear. In keeping with the purpose of Section 11, to reduce the costs to employers, the Courts have narrowly interpreted the definition of grave injury. Courts have found that the loss of multiple fingertips does not amount to a grave injury. Castro v. United Container Machinery Group, Inc., 96 NY2d 398 (2001). Similarly the loss of a thumb is not a grave injury since a thumb is not finger. Rubeis v. Aqua Club, Inc., 3 NY3d 408 (408). A severe injury to the Plaintiff’s leg that does not result ina total loss of use of the leg is not a grave injury. Fleischman v. Peacock Water Co., Inc., 51 AD3d 1203 (3d Dept. 2008). Loss of vision in one eye is not a grave injury. Jarvis v. Crotona Associates, LLC, 14 AD3d 423 (1st Dept. 2005). To constitute a severe and disabling facial disfigurement, the injury must “detrimentally alter the plaintiff’s natural beauty, symmetry or

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appearance or otherwise deform.” Fleming v. Graham, 10 NY3d 296 (2008)(numerous scars to forehead and eyelid did not constitute severe disfigurement). When the employee has a brain injury, however, the parties do not need to show that he is incapable of performing daily activities. Rather, an employee has a qualifying grave injury where he suffers a brain injury and is no longer employable in any capacity, regardless of whether he can perform day-to-day functions. Rubeis v. Aqua Club, Inc., 3 NY3d 408 (2004).

A party raising a grave injury defense may also allege that the injured employee’s injuries are not severe, provided that it raises these inconsistent theories in the same lawsuit. Courts have held that a party is not estopped from asserting that injured employee suffered a grave injury where it previously argued that the employee’s injuries were treatable and not grave. Olszewski v. Park Terrace Gardens, 18 AD3d 349, 350 (2d Dept. 2005). In Olszewski, the Court dismissed the property owner’s claims against the employer for common law indemnification prior to trial finding that, as a matter of law, the Plaintiff’s did not suffer a grave injury. At the trial, the jury found in favor of the plaintiff and awarded him more than $10 M. After the trial, the Court found that it had erred in dismissing the owner’s claim for common law indemnification based on its reliance solely on the plaintiff’s bill of particulars. The employer moved for summary judgment alleging the property owner was judicially estopped from alleging that the plaintiff suffered a grave injury where the owner argued at trial that the plaintiff’s brain injury was treatable and did not render him unemployable.

The Supreme Court and Appellate Division denied the employer’s motion finding that doctrine of judicial estoppel did not apply because (1) the jury did not rule in the owner’s favor and (2) the owner’s inconsistent positions were being asserted in the same proceeding. Id.

An employer’s statutory protection against common law indemnification and contribution claims by third parties is not extinguished simply because the injured employee is an undocumented alien. New York Hosp. Medical Center of Queens v. Microtech Contracting Corp., 22 NY3d 501 (2014).

B. Common Law Indemnity Claims Against Other Contractors

The majority of recent common law indemnity claims in construction litigation occur between owners and general contractors and/or other sub-contractors. An owner who has failed to include an indemnification clause in its contract with its general contractor, may still seek common law indemnification from the general contractor for injuries to an employee of a subcontractor on the theory that it delegated its duties of supervision, etc. to the general contractor who was expected to manage the risks on the job. McCarthy v. Turner Constr., Inc., 17 NY3d 369 (2011). Similarly, a general contractor and owner may seek common law indemnification from a subcontractor who is not the plaintiff’s employer, but may have responsibility for the injury because it furnished the scaffolding or other safety equipment. See, Naughton v. City of New York, 94 AD3d 1 (1st Dept. 2012).

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To be entitled to common-law indemnification, the party seeking such indemnity must show that (1) it has been held vicariously liable without proof of any negligence or supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the work that produced the injury. Naughton, 94 AD3d at 10.

An owner or general contractor is not entitled to be indemnified by a subcontractor where there is no evidence that the subcontractor was negligent. See Coleman v. Bast-Hatfield, Index No. 237063 (Rensselaer Cty Sup. Ct. 2014)(a copy of this case is included with this submission). In Coleman, employee of subcontractor DeBrino Caulking fell from scaffolding provided by Tri-City Scaffolding Co. Employee sued Bast-Hatfield, the contractor, who brought common law indemnification claim against Tri-City Scaffolding alleging that the faulty scaffolding or improper installation. The Court granted Tri-City’s motion for summary judgment finding no evidence that Tri-City was negligent. Tri-City’s obligation was to provide and set up the scaffolding, which it did. After Tri-City set up the scaffolding, DeBrino moved the scaffolding and removed some planks. There was no evidence that Tri-City had any control over the use of the scaffold or contractual responsibility for its maintenance and was not present on the job site for much of the work. Id. At 7.

Similarly, a subcontractor is not liable for common law indemnification simply by virtue of a contractual duty to supervise the work. McCarthy v. Turner Construction, Inc., 17 NY3d at 378. Rather there must be some active fault on the part of the indemnitor. In McCarthy, the Court of Appeals held that common law indemnification can only be imposed against those parties who exercise actual supervision. Id. The Court ruled that if a party with contractual authority to direct and supervise the work at a job site never exercises that authority because it subcontracted its contractual duties to an entity that actually directed and supervised the work, common law indemnity claim will not lie against that party on the basis of its contractual authority alone.

3. CONTRACTUAL INDEMNIFICATION

Parties may also transfer the risks of injury through contract. Section 11 of the Worker’s Compensation Law does not apply to a claim or cause of action for contribution or indemnification based on a clause in a written agreement that was entered into prior to the accident and by which the employer expressly agreed to contribution or indemnification of the claimant or person asserting the cause of action. Similarly, Section 240(1) of the Labor Law does not prevent an owner or general contractor who is vicariously liable from seeking contractual indemnification from the party responsible. As with common law indemnity, there are issues that must be addressed.

A. Indemnification Agreement Must Be Specific.

The Worker’s Compensation law allows a party to bring a claim against an injured person’s employer where the employer has “expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered.” Worker’s

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Compensation Law § 11. This language is consistent with the governing rule of indemnification: when a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. Tonking v. Port Authority of New York and New Jersey, 3 NY2d 486, 490 (2004)(citing Hooper Assoc. v. AGS Computers, 74 NY2d 487 (1989)). Thus indemnification agreements that are not clear or express will not be enforced. Tonking, 3 NY3d at 490.

Tonking, a construction manager, argued that it was entitled to indemnification from a subcontractor whose employee was hurt on a construction job. The Construction Manager had no contract with the subcontractor, but claimed protection under the owner’s indemnification contract with the subcontractor which extended to the owner’s employees and agents. Toning contended that it qualified as the owner’s agent because the owner retained supervision and control over the construction manager’s work. The Court of Appeals disagreed finding that the contract between the owner and the subcontractor did not refer to the construction manager as the agent of the owner and, in one provision of the contract, the contract used the terms “Construction Manager” and “agent” as separate classifications. Under these circumstances, the Court found that the indemnification clause in the contract between the owner and subcontractor did not clearly or expressly extend to the Construction Manager. Id.

Courts engage in a two part inquiry to determine whether the parties in an indemnification dispute did in fact intend to agree to indemnification. Rodrigues v. N & S Building Contractors, Inc., 5 NY3d 427, 432 (2005). First, the Court considers whether the parties entered into a written contract containing an indemnity clause which is applicable to the site or job where the injury took place. Rodrigues, 5 NY3d at 432. Second, the Court determines whether the indemnity provision was sufficiently particular to meet the requirements of Section 11. Id. In applying this test, the Court may review the parties’ course of conduct to determine whether there was a meeting of the minds sufficient to give rise to an enforceable contract. Tullino v. Pyramid Companies, Inc., 78 AD3d 1041, 1042 (2d Dept. 2010).

There is no requirement that the indemnity agreement refer to the specific project on which the injured employee was working at the time of his injury. Rodrigues, supra. In Rodrigues, a general contractor, N & S Building Contractors, which built residential properties, frequently worked with a subcontractor Caldas Concrete Company, Inc., to erect the concrete foundations for those properties. N & S and Caldas entered into an Insurance, Indemnification and Safety Agreement which required Caldas to, among other things, name N & S as an additional insured on its general insurance policy and further required Caldass to indemnify and hold harmless N & S against any claims arising out of “subcontracted work to the extent caused in whole or in part by [Caldas]” or its employees. Id.

Despite that this agreement did not specifically reference the project on which the plaintiff was injured, the Court found that it met the requirements of a contract for indemnity. The contract was intended to, and did, apply to all jobs on which Caldas was the subcontractor for N & S. To hold otherwise would be to render the agreement meaningless. It was a written agreement as required by Section 11. The Court further held that it was clear and express. It

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specifically required Caldas to assume responsibility for the safety of its employees, purchase insurance protecting N & S and indemnify N & S in the case of an on-the-job injury. Id..

In Tullino v. Pyramid Companies, the plaintiff was injured as a result of exposure to fireproofing material during the construction of a mall. The owners and general contractor brought a third party action against the plaintiff’s employer, Terra Firma Construction Corp., for contractual indemnification. Terra Firma moved for summary judgment on the grounds that there was no contractual agreement between itself and the third-party plaintiffs. Tullino, 78 AD2d at 1042. In opposition, the third-party submitted a purchase order signed by Terra Firma in which Terra Firma contracted for the work that caused the plaintiff’s injuries. The purchase order indicated that the work was to be performed pursuant to the terms and conditions of a subcontract agreement entitled “Appendix A,” an unsigned agreement between Tullino and the general contractor which included an indemnification provision. Appendix A contained the same project number as the project described in the purchase order, but listed a different purchase order. Id. The general contractor’s vice president submitted an affidavit attesting that all the separate contracts for the mall project contained the same language as Appendix A. Further, Terra Firma purchased insurance for the general contractor in accordance with Appendix A. Under these circumstances, the Court found an issue of fact as to whether the parties intended to be bound by the terms of Appendix A.

The Appellate Division, Third Department, however, reached a different result in Trombley v. Socha, 113 AD3d 921 (3d Dept. 2014). Trombley involved a separate indemnificationagreement between Socha Builders, Inc. and Michael Sullivan. In 2004, Socha Builders required Sullivan to execute an insurance/indemnification rider which contained an indemnification clause. At the time, Socha had hired Sullivan to work on various construction projects and Sullivan was constructing a pole barn for Socha when he signed the rider. Socha required all contractors working for the company to sign the rider. Mr. Socha believed he had explained to Sullivan that the rider would apply to all future jobs. Thus, when Sullivan’s employee was injured on a different job in 2006, Socha relied upon the rider to seek indemnification from Sullivan.

Mr. Sullivan did not remember the conversation in 2004 that the rider would apply to all future jobs. The rider itself referred to “work by or for [Sullivan] pursuant to this contract.” (Emphasis added). Further, at the time the rider was signed, the parties did not discuss any future jobs beyond the work on the pole barn. The rider was never attached to any proposals that Sullivan submitted to Socha, which were about one per year. After a bench trial, the Court dismissed the third-party claim finding that the rider was ambiguous as to whether it was intended to apply to future projects and there was insufficient testimony to show that the parties had reached a meeting of the minds on this issue. Trombley, 113 AD3d at 924. Unlike the Second Department, the Third Department, which affirmed the decision of the trial court, found the fact that Sullivan did purchase insurance for Socha, as required by the Rider, to be unpersuasive. The Court held that an agreement to procure insurance is not an agreement to indemnify or hold harmless. Id.

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B. The Indemnification Agreement Cannot Be Overbroad

Historically, owners and general contractors attempted to transfer the full risk of construction projects onto contractors and subcontractors by requiring such parties to sign agreements assuming the full liability for injuries, regardless of fault. Brooks v. Judlau Contracting, Inc. 11 NY3d 204 (2008). The Legislature found that this practice unnecessarily limited the number of contractors able to obtain the necessary insurance for a job and also created expensive double coverage for general liability insurance. Itri Brick & Concrete Corp. V. Aetna Cas. & Sur. Co., 89 NY2d 786 (1997). In an attempt to prevent this practice, the Legislature enacted General Obligations Law § 5-322.1 which provides:

A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable

N.Y. Gen. Oblig. Law § 5-322.1 (McKinney).

On its face, Section 5-322.1 appears to invalidate any indemnification agreement which purports to indemnify a party for its own negligence or the negligence of others. However, the Courts have not read it so strictly.

In Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 786 (1997), the Court of Appeals considered two separate lawsuits involving causes of action for indemnification. In both cases, the general contractor on a construction project, who was found to be at least partially responsible for the plaintiff’s injuries, sought indemnification against the plaintiffs’ employers pursuant to certain indemnification agreements. The Court invalidated these indemnification agreements because they were overbroad. These agreements required the subcontractors to hold the general contractor or owner harmless from all liability from injuries or death from any cause while on the project without regard to whom or what caused the injury. Id.

The Court found that these agreements contemplated a complete, rather than partial shifting of liability from the general contractor to the subcontractor even if the general contractor caused the injury in whole or in part. The Court dismissed the general contractors’ arguments that Section 5-322.1 merely barred enforcement of the indemnification agreements to the extent they would require indemnification for the portion of the awards attributable to

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the general contractors’ negligence. Id. at 795. The Court found that the agreements contemplated full indemnification and did not contain any language limiting the subcontractor’s obligation to that permitted by law or to the subcontractor’s negligence. Id. Thus, the Court left the question of whether a more limited indemnity clause would be enforceable under section 5-322.1 even where the general contractor is found to be negligent.

C. Savings Clause

In 2008, the Court of Appeals answered the question of whether Section 5-322.1 allows a general contractor who is found to be partially negligent to enforce an indemnification agreement against a subcontractor for the portion of damages attributable to the subcontractor. Brooks v. Judlau Contracting, Inc., 11 NY3d 204 (2008). In Brooks, Judlau was a general contractor on a highway overpass project. The plaintiff was an ironworker employed by Thunderbird Constructors, Inc., a subcontractor. The plaintiff fell while on the job and sued Judlau who brought a third-party claim against Thunderbird seeking contractual indemnification. The action was bifurcated with a jury determining the plaintiff’s claim for damages and the court determining Judlau’s claim for indemnification. Relying on Itri Brick, the Supreme Court found that Judlau was actively negligent in its installation of the safety cable and was not therefore entitled to indemnification from Judlau. The Appellate Division affirmed. Id.

The Court of Appeals reversed finding that, unlike the indemnification provisions in Itri Brick, the indemnification agreement between these parties precluded indemnification for Judlau’s negligence. The clause provided that, among other things, “the Subcontractor shall, to the fullest extent permitted by law, hold the Contractor and the Owner, their agents, employees and representatives harmless from any and all liability . . . arising from the Subcontractor’s work.” The Court found that the words “to the fullest extent permitted by law” limited Thunderbird’s contractual indemnity obligation solely to its own negligence. Id. at 209. To hold otherwise would leave a partially negligent general contractor liable for the negligent acts of its subcontractor. This would be contrary to the intent of Section 5-322.1 which is that payment of damages should be made according to fault. Id. ; see also, Dutton v. Charles Pankow Builders, Ltd., 296 AD2d 321 (1st Dept. 2002)(allowing partial indemnification where the indemnification allowed indemnification “to the fullest extent permitted by law.”). Thus, as long as the indemnification provision has the saving language “to the fullest extent permitted by law,” the indemnification provision is enforceable even if the party seeking indemnification is also found to be negligent for the happening of the accident.

D. Broad Indemnification Clauses May Nonetheless Be Enforced Where the Party Seeking Indemnity Was Not Negligent.

Courts have also enforced overly broad indemnification provisions where the indemnitee was not negligent in the happening of the accident. In Brown v. Two Exchange Plaza Partners, 76 NY2d 172 (1990), the Court of Appeals allowed the enforcement of an indemnification clause that was similar to those later rejected in Itri Brick, 89 NY2d at 793,

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where the party seeking indemnification was not negligent and even where the facts showed that the indemnitor was not negligent. Brown, 76 NY2d at 434. In Brown, the plaintiff was an employee of a subcontractor working on an office building. The scaffolding on which he was standing collapsed and he was injured. He brought suit against the owner and general contractor. These parties brought third-party actions against the scaffolding company, the subcontractor who contracted with plaintiff’s employer and plaintiff’s employer for contractual indemnity. There was no evidence of negligence against any of the parties, including the general contractor, who was held liable under Labor Law 240 (1). The lower court dismissed the general contractor’s contractual indemnity claims holding that indemnity was not available unless there was some evidence that the subcontractors were negligent. Further, the lower court held that, because the general contractor was liable under Labor Law 240(1), the indemnification clause was unenforceable under GOL § 5-322.1.

The Court of Appeals reversed finding that the indemnification clause in the subcontractors contracts were intended to indemnify the general contractor where the claim arose in connection with the subcontractor’s work or where the claim arose out of the acts or omissions of the subcontractor’s work. The Court held that, by its terms, these indemnification agreements required indemnification as long as the plaintiff was injured while performing work for the subcontractor, even if there was no negligence on the part of the subcontractor. Id. at 433.1 The Court held because there was no evidence of the General Contractor’s fault in this case, “neither the wording nor the intent of [Section 5-322.1]” was violated by the enforcement of this indemnification provision. The Court further held that liability under Labor Law §240(1) was not dependent on fault and was not the equivalent of negligence. Without a finding of negligence on the part of the General Contractor, section 5-322.1 was inapplicable to the facts of the case. Id. at 433-35.

Courts in all departments have followed this holding, including, among others, Cabrera v. Board of Education of City of New York, 33 AD3d 641 (2d Dept. 2006); Masciotta v. MorseDiesel International, Inc., 303 AD2d 309 (1st Dept. 2003); Biance v. Columbia Washington Ventures, LLC, 12 AD3d 926, 927 (3d Dept. 2004); Conley v. Salt City Energy Venture, L.P., 234 AD2d 909 (4th Dept. 1996).

So, even if the owner’s and/or general contractor’s contractual indemnity seeks clause seeks full indemnity for all liability from any cause and does not contain the savings language, it may still be enforceable if the party seeking indemnity has only vicarious liability for the plaintiffs’ injury and is not found to be negligent.

4. ADDITIONAL INSURED COVERAGE

Section 5-322.1 applies only to indemnification agreements and does not apply to references in construction contracts requiring subcontractors to purchase insurance naming the

1 The indemnification agreement between the scaffolding subcontractor and plaintiff’s employer, however,

indemnified the scaffolding contractor only for the employer’s negligence.

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owners or general contractors as additional insureds under their policies. Kinney v. Lisk Co., 76 NY2d 215 (1990). An agreement to procure insurance is not an agreement to indemnify or hold harmless. As the Court held, “[t]he purpose of an indemnification agreement is to relieve the promisee of liability, an agreement to procure insurance specifically anticipates the promisee’s continued responsibility for its own negligence for which the promisor is obligated to furnish insurance. “ Id. at 218. Thus, a contractual provision requiring the subcontractor to procure insurance naming the owner or general contractor as an additional insured is enforceable regardless of the owner or general contractor’s own negligence in causing the accident. Cavanaugh v. 4518 Associates, 9 AD3d 14 (1st Dept. 2004).

5. CONCLUSION

Despite Section 11 of the Worker’s Compensation Law and Section 5-322.1 of the General Obligations Law, it is possible for owners and general contractors to transfer the risk of construction-related injuries to sub-contractors. Those seeking indemnity should plan ahead by requiring the subcontractors to execute a carefully constructed indemnification agreement and by requiring the subcontractor to purchase general liability insurance naming the owner and/or general contractor as an additional insured.

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5813108.1

Issues Between Defendants and Third-Party Defendants

Brendan T. Fitzpatrick

Goldberg Segalla, LLP

200 Garden City Plaza, Suite 520

Garden City, New York 11530

(516) 281-9892

bfitzpatrick@goldbergsegalla.com

Indemnification is the total shifting of economic loss to a party chiefly responsible for

that loss. McDermott v. City of New York, 50 N.Y.2d 211, 428 N.Y.S.2d 643 (1980). “The right

to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It

springs from contract, express or implied, and full, not partial reimbursement is sought.” Id.

I. Contractual indemnification

A. Interpretation of indemnity agreements and public policy considerations.

Indemnification agreements are contracts. Therefore, contract principles will apply. In

Hooper v. Associates, Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 549 N.Y.S.2d 365, 367

(1989), the Court of Appeals ruled that “words to a contract are to be construed to achieve the

apparent purpose of the parties…[t]his is particularly true with indemnity agreements.” Parties

are free to agree upon conditions precedent to suit, but they must be within limits of public

policy. See Proc v. Home Ins. Co., 17 N.Y.2d 239, 270 N.Y.S.2d 412 (1966). “When a party is

under no legal duty to indemnify, a contract assuming that obligation must be strictly construed

to avoid reading into it a duty which the parties did not intend to be assumed. The promise

should not be found unless it can be clearly implied from the language and purpose of the entire

agreement and the surrounding facts and circumstances. Hooper Assoc. v AGS Computers, 74

N.Y.2d 487, 491-92.

“‘The right to contractual indemnification depends upon the specific language of the

contract.’” Sherry v. Wal-Mart Stores E., L.P., 67 A.D.3d 992, 994, 889 N.Y.S.2d 251 (2d Dep’t

2009), quoting George v. Marshalls of MA, Inc., 61 A.D.3d 925, 930, 878 N.Y.S.2d 143 (2d

Dep’t 2009). The intent to indemnify must be clearly implied from the language and purposes of

the entire agreement. See Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777, 521

N.Y.S.2d 216 (1987).

Note: when pursuing a claim for contractual indemnification against an injured worker’s

employer, there must be a valid contract. According to the Workers’ Compensation Reform Act

of 1996, an owner or general contractor must show that a written contract for indemnification or

contribution existed before the date of this accident:

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For purposes of this section the terms ‘indemnity’ and

‘contribution’ shall not include a claim or cause of action for

contribution or indemnification based upon a provision in a written

contract entered into prior to the accident or occurrence by which

the employer had expressly agreed to contribution to or

indemnification of the claimant or person asserting the cause of

action for the type of loss suffered.

See Guijarro v. V.R.H. Construction Corp., 290 A.D.2d 485, 736 N.Y.S.2d 397 (2d Dep’t 2001):

the Second Department held that Workers’ Compensation Law §11 “explicitly requires that any

written contract for indemnification must be entered into prior to an accident.”

Public policy in New York that prohibits a party from being indemnified for their own

negligence is the General Obligations Law. The GOL prohibits a party from being indemnified

for their own negligence in a variety of contractual scenarios: GOL §5-321, landlord-tenant;

GOL 5-§322, caterers; GOL §5-323, building maintenance contractors. In the construction

context, it is § 5-322.1:

A covenant, promise, agreement or understanding in, or in

connection with or collateral to a contract or agreement relative to

the construction, alteration, repair or maintenance of a building,

structure, appurtenances and appliances... purporting to indemnify

or hold harmless the promisee against liability for damage arising

out of bodily injury to persons or damage to property contributed

to, caused by or resulting from the negligence of the promisee, his

agents or employees, or indemnitee, whether such negligence be in

whole or in part, is against public policy and is void and

unenforceable . . . .

Thus, an agreement to indemnify in connection with a construction contract is void and

unenforceable to the extent that such agreement contemplates full indemnification of a party for

its own negligence. See Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 N.Y.2d 786,

795, 658 N.Y.S.2d 903, rearg denied 90 N.Y.2d 1008, 666 N.Y.S.2d 103 (1997).

If an agreement violates the GOL, can it still be enforced? The Court of Appeals

addressed this question in Brown v. Two Exchange Plaza Partners, 146 A.D.2d 129, 539

N.Y.S.2d 889, aff’d, 76 N.Y.2d 172, 556 N.Y.S.2d 991 (1990). In Brown, because there was no

evidence brought forth during trial that demonstrated that the general contractor was at fault,

“neither the wording nor intent of the statute is violated by allowing it to allocate responsibility

for this unexplained accident through an indemnification provision.” Id., 556 N.Y.S.2d at 995.

The subcontractors attempted to demonstrate the general contractor’s negligence during trial.

They failed to do so, and the cause of the accident was not resolved. As the general contractor’s

liability was based solely upon Labor Law § 240(1) and not upon any negligence on its part, the

GOL’s prohibition against indemnifying a contractor for its own negligence was inapplicable.

Id.

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In Itri Brick, the Court addressed the issue left unanswered by Brown, what is the impact

of an agreement that violated the GOL coupled with evidence of the contractor’s active fault. In

Itri Brick, the indemnity clause was drawn in “extremely broad terms.” The Ginsberg/Shopvick

agreement from Itri Brick, called for Ginsberg to be indemnified from any and all liability “in

connection with or resulting from the work.” Id., 89 N.Y.2d at 795. In Itri Brick, the Court held

that the agreement was unenforceable as there was evidence of the contractor’s active

negligence:

…whether, and to what extent, an indemnification agreement

between a general contractor and subcontractor can be enforced

where the general contractor has been found partially negligent in

an action brought by an employee of the subcontractor against the

general. We hold that, because the agreements in question

contemplate full, rather than partial, indemnification, the

agreements are unenforceable under General Obligations Law § 5-

322.1 in the circumstances of these cases.

Question: (1) Is indemnity synonymous with hold harmless? The safe answer is, likely yes. While be understated that various courts, in various states differ, in New York, the courts usually treat them the same.

B. Can there be partial contractual indemnification?

What if there is a savings provision in an agreement that is otherwise offensive to the

GOL? For example, if the agreement starts with the phrase, “To the fullest extent permitted by

law.” An indemnification clause that provides for partial indemnification to the extent that the

party to be indemnified was not negligent does not violate the GOL. See Brooks v. Judlau Contr.,

Inc., 11 N.Y.3d 204, 210, 869 N.Y.S.2d 366 (2008) (indemnification “to the fullest extent

permitted by law” contemplated partial indemnification and was permissible under statute);

Murphy v. Columbia Univ., 4 A.D.3d 200, 202, 773 N.Y.S.2d 10 (1st Dep’t 2004) (permitting

indemnification “to the fullest extent permitted by applicable law”); Dutton v. Pankow Bldrs.,

296 A.D.2d 321, 322, 745 N.Y.S.2d 520 (1st Dep’t 2002), lv denied 99 N.Y.2d 511, 760

N.Y.S.2d 102 (2003) (indemnification “to the fullest extent permitted by applicable law” called

for partial, not full, indemnification and was enforceable).

This jurisprudence follows the reasoning of Brown v. Two Exchange where the Court

ruled an agreement that violates the GOL may nevertheless be enforced where the party to be

indemnified is found to be free of any negligence, thus not violating the “spirit” of the law. See

also Collins v. Switzer Constr. Group, Inc., 69 A.D.3d 407, 408, 892 N.Y.S.2d 94 (1st Dep’t

2010).

Therefore, when drafting indemnity agreements, it is key to have some type of savings

language included. “To the fullest extent permitted by law” has been viewed favorably by the

Court of Appeals and the Appellate Divisions.

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C. Defending against contractual indemnity claims.

In the construction context, subcontractors and employers invariably have to defend

against contractual indemnity claims. The first step, look to the words of the indemnity

provision. Note, any ambiguities in an agreement will be construed most strongly against the

party that prepared it. See Strauss Paper Co., Inc. v. RSA Exec. Search, Inc., 260 A.D.2d 570,

688 N.Y.S.2d 641 (2d Dep’t 1999).

One of the most common and useful defenses is opposing an award of indemnification

because the agreement contains a negligence trigger, and there has been no finding of

negligence. Thus, any award would be premature. An example of such an agreement would be:

…subcontractor shall fully indemnify and hold harmless the

owner/general contractor for any injuries, damages, or other claims

arising out of, or connected with any negligent action of the

subcontractor.

Other language that may be considered a trigger would include words such as “failure,”

“omission,” or “error” of the indemnitee.

When this language is present in indemnification agreements, the party seeking

indemnification will need to prove the indemnitor was negligent in the happening of the incident

in order to trigger the duty to indemnify. See Crimi v. Neves Assocs., 306 A.D.2d 152, 761

N.Y.S.2d 186 (1st Dep’t 2003) (contractual indemnity not awarded where agreement required

finding that indemnitor was negligent); Zeigler-Bonds v. Structure Tone, Inc., 245 A.D.2d 80,

664 N.Y.S.2d 799 (1st Dep’t 1997); Hennard v. Boyce, 6 A.D.3d 1132, 776 N.Y.S.2d 411 (4th

Dep’t 2004); and Malecki v. Wal-Mart Stores, Inc., 222 A.D.2d 1010, 635 N.Y.S.2d 888 (4th

Dep’t 1995).

D. The impact of an unsigned agreement

It is not unheard in the construction industry to have agreements that are either unsigned

or signed by only one party. Contracts may be sent back and forth between general contractor

and subcontractors with revisions and edits. As a result, in many instances, work may begin

before contracts are signed. What is the impact when a worker is injured on the project, but the

contract is unsigned?

A contract may be valid even if it is not signed by the party to be charged, provided its

subject matter does not implicate a statute—such as the statute of frauds (General Obligations

Law § 5-701)—that imposes such a requirement. Flores v. Lower E. Side Serv. Ctr., Inc., 4

N.Y.3d 363, 368, 795 NYS2d 491 (2005). To be enforceable, there must be objective

evidence establishing that the parties intended to be bound. Id., Murphy v. Eagle Scaffolding,

Inc., 129 A.D.3d 799 (2d Dep’t 2015). In Geha v. 55 Orchard St., LLC, 29 A.D.3d 735, 736,

815 N.Y.S2d 253 (2d Dep’t 2006), plaintiff, an employee of the third-party defendant, Strong

Equipment, was injured while working and sued 55 Orchard Street, LLC, and L & H

Construction Company. 55 Orchard and L&H commenced a third-party action against Strong,

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seeking common-law indemnification/contribution and contractual indemnification. The

Supreme Court dismissed the third-party action.

The Second Department reinstated the contractual indemnification claim and, relying on

Flores, held that even though the contract was unsigned, “an unsigned contract may be

enforceable, provided there is objective evidence establishing that the parties intended to be

bound” and found an issue existed as to whether the written contract was enforceable.

II. Common-law indemnification

When considering the issue of common-law indemnification, the first question that must

be considered is whether the party from whom indemnity is sought—the indemnitor—is the

injured party’s employer or not.

A. The Omnibus Workers’ Compensation Act of 1996 and the impact on the

ability to pursue common-law indemnification against an injured worker’s

employer.

Workers’ Compensation Law § 11 provides:

An employer shall not be liable for contribution or indemnity to

any third person based upon liability for injuries sustained by an

employee acting within the scope of his or her employment for

such employer unless such third person proves through competent

medical evidence that such employee has sustained a grave injury,

which shall mean only one or more of the following: death,

permanent and total loss of use or amputation of an arm, leg, hand

or foot, loss of multiple fingers, loss of multiple toes, paraplegia or

quadriplegia, total and permanent blindness, total and permanent

deafness, loss of nose, loss of ear, permanent and severe facial

disfigurement, loss of an index finger or an acquired injury to the

brain caused by an external physical force resulting in permanent

total disability.

Section 11 was enacted in 1996 as part of a comprehensive reform intended to reduce

costs for employers while also protecting the interests of injured workers. See Omnibus Workers’

Compensation Reform Act of 1996, L 1996, ch 635; Governor’s Approval Mem, Bill Jacket, L

1996, ch 635, at 54, 1996 NY Legis Ann, at 459). Before that, New York State stood alone in

freely allowing a defendant in a personal injury action brought by an employee injured on the job

to seek indemnification or contribution from the employer. Central to the reform was immunity

from tort liability for employers who provide workers' compensation coverage by exposing

employers to third-party liability “only in cases involving narrowly defined ‘grave’ injuries.”

(Governor’s Approval Mem, Bill Jacket at 55, 1996 NY Legis Ann, at 460). The injuries

enumerated as grave were “deliberately both narrowly and completely described. The list is

exhaustive, not illustrative: it is not intended to be extended absent further legislative action.” Id.

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For common-law indemnification or contribution to survive, plaintiff must have suffered

a “grave injury” within the meaning of the statute. See Majewski v. Broadalbin-Perth Cent. Sch.

Dist., 91 N.Y.2d 577, 673 N.Y.S.2d 966 (1998). The purpose of the amendment to the Workers’

Compensation Law § 11 “was to abolish most third-party actions to as to enhance the exclusivity

of the Workers’ Compensation Law, thereby reducing insurance premiums and decreasing the

cost of doing business in New York.” Id.

For example:

Ibarra v. Equipment Control, Inc., 268 A.D.2d 13, 707 N.Y.S.2d 208 (2d Dep’t 2000):

plaintiff claimed he suffered “loss of use and function of the right eye” and other injuries related

to this loss, but “plaintiff’s loss of vision in only one eye, even if total, does not constitute ‘total

and permanent blindness.’”

Castro v. United Container Mach. Group, Inc., 96 N.Y.2d 398, 736 N.Y.S.2d 287 (2001):

“loss of multiple fingers” did not mean partial loss of multiple fingers; the word finger in the

statute meant the whole finger, not just its tip.

Meis v. ELO Org., LLC, 97 N.Y.2d 714, 716, 740 N.Y.S.2d 689 (2002): loss of a thumb

is not “permanent and total loss of use” of a hand, and thus not a grave injury.

Rubeis v. Aqua Club Inc., 3 N.Y.3d 408, 788 N.Y.S.2d 292 (2004): for a traumatic brain

injury, permanent total disability under § 11 was one of unemployability in any capacity.

B. Seeking common-law indemnification against a non-employer.

When pursuing implied or common-law indemnification from a non-employer, the focus

is on activity: passive v. active/primary v. secondary.

McDermott v. City of New York, 50 N.Y.2d 211, 216, 428 N.Y.S.2d 643 (1980): implied

indemnification finds its roots in the principles of equity and that the law recognized that a party

that “in whole or in part, has discharged a duty which is owed by him but which as between

himself and another should have been discharged by the other, is entitled to indemnity.” Id., 50

N.Y.2d at 216-17. “Where payment by one is compelled, which another should have made * * *

a contract to reimburse or indemnify is implied by law.” Id.

The key issue: activity. Implied indemnity arises when one party is compelled by the

judgment of a competent court to respond in damages for the wrongful act or negligence of

another. Implied obligation exists on the part of the actual wrongdoer to reimburse the non-

culpable party for any damages sustained by the latter as a result of the former’s conduct. Linney

v. Consistory of Bellevue Reformed Church, 115 A.D.2d 209, 495 N.Y.S.2d 293 (3d Dep’t

1985).

Principle: everyone is responsible for the consequences of their own acts, and if another

person is compelled to pay damages that ought to have been paid by the wrongdoer, these

damages may be recovered from the wrongdoer by the person indemnified. Johnson City Central

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5813108.1

School District v. Fidelity and Deposit Company of Maryland, 272 A.D.2d 818, 709 N.Y.S.2d

225 (3d Dep’t 2000).

Where a general contractor or owner has been held liable to an injured subcontractor’s

employee based purely because of their statutory status under §§ 240 and 241(6), they are

entitled to indemnification from the party “whose negligence, in whole or in part, caused the

accident.” Kelly v. Diesel Construction, Div. of Carl A. Morse, Inc., 35 N.Y.2d 1, 3-4, 358

N.Y.S.2d 685 (1974). As between tortfeasors, the party whose negligence directly resulted in the

plaintiff’s injuries is primarily liable, and the party who is liable to the plaintiff by operation of

law is secondarily liable. Id., 35 N.Y.2d at 7. According to the Court, “the one who should pay

ultimately for his actual fault is primarily liable. The one who must pay because of first instance

liability to third parties but who ought to be able to recover from one guilty of actual fault, is

secondarily liable.” Id.

Raquet v. Braun, 90 N.Y.2d 177, 182-83, 659 N.Y.S.2d 237 (1997): “every one is

responsible for the consequences of his own negligence, and if another person has been

compelled…to pay the damages which ought to have been paid by the wrongdoer, they may be

recovered from him.”

See also Perri v. Gilbert Johnson Enters., Ltd., 14 A.D.3d 681, 684-85 (2d Dep’t 2005):

To establish a claim for common-law indemnification, “the one seeking indemnity must prove

not only that it was not guilty of any negligence beyond the statutory liability but must also

prove that the proposed indemnitor was guilty of some negligence that contributed to the

causation of the accident.”

Must do more than simply have the authority to control the injury-producing work, and

must be based upon more than a mere contractual obligation to supervise the work. See

McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 377-78 (2011): Consistent with the equitable

underpinnings of common-law indemnification, case law imposes indemnification obligations

upon those actively at fault in bringing about the injury, and thus reflects an inherent fairness as

to which party should be held liable for indemnity. See Rogers v Dorchester Assoc., 32 N.Y.2d

553, 347 N.Y.S.2d 22 (1973); Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1,

358 N.Y.S.2d 685 (1974); Felker v. Corning, Inc., 90 N.Y.2d 219, 660 N.Y.S.2d 349 (1997).

Must actually supervise or direct the injured plaintiff’s work. See also Seales v. Trident

Structural Corp., 142 A.D.3d 1153 (2d Dep’t 2016).

III. Contribution

A claim for contribution rises and falls based on the existence of separate tortfeasors. See

CPLR §§ 1401, 1403; see also Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 557, 583

N.Y.S.2d 957 (1992).

The right to contribution is not dependent on contract, joint action, or an original

relationship between the parties; it is based on principles of fundamental justice and equity that

require that those who are subject to a common burden bear it in equal proportions and that one

party not be subject to bear more than their share to the advantage of other tortfeasors.

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ISSUES BETWEEN DEFENDANTS, THIRD-PARTIES AND THEIR INSURERS

I. The Governing Statutes

CPLR § 1401 – Contribution Claims

Except as provided in sections 15-108 and 18-201 of the General Obligations Law, sections eleven and twenty-nine of the Workers’ Compensations law, or the Workers’ Compensation law of any other state or federal government, two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.

CPLR § 1404 - Rights of persons entitled to damages not affected; rights of indemnity or subrogation preserved

(a) Nothing contained in this article shall impair the rights of any person entitled to damages under existing law. (b) Nothing contained in this article shall impair any right of indemnity or subrogation under existing law.

WCB § 11 – Alternative remedy

The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the Defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee. The liability under this chapter of The New York Jockey Injury Compensation Fund, Inc. created under section two hundred thirteen-a of the racing, pari-mutuel wagering and breeding law shall be limited to the provision of Workers' Compensation coverage to jockeys, apprentice jockeys and exercise persons licensed under article two or four of the racing, pari-mutuel wagering and breeding law and any statutory penalties resulting from the failure to provide such coverage.

For purposes of this section the terms "indemnity" and "contribution" shall not include a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered. An employer shall not be liable for contribution or indemnity to any

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third person based upon liability for injuries sustained by an employee acting within the scope of

his or her employment for such employer unless such third person proves through competent

medical evidence that such employee has sustained a "grave injury" which shall mean only one or

more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand

or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and

permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe

facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an

external physical force resulting in permanent total disability.

GOL § 5-322.1 Agreements exempting owners and contractors from liability for negligence void and unenforceable; certain cases

1. A covenant, promise, agreement or understanding in, or in connection with or collateral toa contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable;  provided

that this section shall not affect the validity of any insurance contract, Workers' Compensation agreement or other agreement issued by an admitted insurer. This subdivision shall not preclude a promisee requiring indemnification for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of a party other than the promisee, whether or not the promisor is partially negligent.

2. A covenant, promise, agreement or understanding in, or in connection with or collateral toa contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to condition a subcontractor's or materialman's right to file a claim and/or commence an action on a payment bond on exhaustion of another legal remedy is against public policy and is void and unenforceable;  provided that this subdivision shall not affect the validity

of any insurance contract, workers' compensation agreement or other agreement issued by an admitted insurer.

3. The provisions of this section shall only apply to covenants, promises, agreements orunderstandings in, or in connection with or collateral to a contract or agreement, as enumerated in subdivision one hereof, entered into on or after the thirtieth day next succeeding the date on which it shall have become a law.

II. The Difference between Indemnity and Contribution

Under the traditional working concept of risk transfer, indemnity transfers the entire riskof a matter, while contribution transfers only a portion or percentage of the risk. The basic definition of indemnity is captured in an early 1950s New York Court of Appeals decision which illustrated the fundamental distinction between contribution and indemnification:

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The right to contribution is not founded on nor does it arise from contract and only ratable or proportional reimbursement is sought in an action for contribution.

* * *

The right to indemnity, as distinguished from contribution, is not dependent upon the legislature’s will. It springs from a contract, express or implied,

and full, not partial, reimbursement is sought.

McFall v. Compagnie Maritime Belge S.A., 304 N.Y. 314, 327-28 (1952).

Further analysis into the difference between indemnity and contribution is set forth in Smith v. Hooker Chemicals & Plastics Corp., 83 A.D.2d 199, 200-01 (4th Dep’t 1981):

The differences between partial indemnity, also known as apportionment or contribution, and true indemnity, are familiar. . . . Contribution or apportionment involves a determination of relative responsibility in which the respective fault of two or more Defendants is determined by reviewing the contribution of each to the damage sustained. Once the tort-feasors’

relative responsibilities are determined, each pays his ratable portion of the total damages. By contrast, true or full indemnity does not involve apportioning the wrong, but rather a shifting of the entire burden by defendant to another. It rests upon the premise that one party has been compelled to pay money which, in justice, another ought to pay. In the case of true indemnity, the Third-Party Plaintiff demands that the Third-Party Defendant pay not just his share of Plaintiff’s damages but the whole outlay. Conceptually different, contribution is based upon negligence while indemnity arises because of an independent duty between tort-feasors based upon contract.

III. Contractual Indemnification

Contractual indemnification is a risk transfer mechanism in which a party agrees to bearthe financial risk of loss or damage incurred by another party. In the context of construction cases, it is the subcontractor who typically agrees to bear the risk incurred by the general contractor and/or owner. These indemnity agreement can be designed to achieve full risk transfer (where the indemnitor agrees to pay for loss regardless of fault – even that of the indemnitee) or partial (where the indemnitor is responsible only for the costs attributed to its own liability). However, certain statutory restrictions exist in New York prohibiting indemnification for an indemnitee’s own

negligence, thus bringing to light circumstances under which an indemnitee can seek partial indemnification (also known as contractual contribution) which bases risk transfer on percentages of fault.

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A. Examples of Indemnification Clauses

1. Indemnification for Incidents Arising from the Performance of the Work

In a broadly worded clause, the indemnitor agrees to provide indemnity regardless of its fault. The working of such a clause usually contains the phrases “arising out of” or “in connection

with the performance” of the contract or work. Because of the particular language employed in

defining the scope of the agreements to indemnify, the duty to indemnify is not contingent upon proof that the indemnitor has been negligent. Stated differently, having something “arise out of”

one’s performance under the contract is a much broader concept than demonstrating negligence for purposes of triggering the indemnity clause.

For example:

To indemnify owner for “all claims . . .arising in whole or in part and in any manner” from indemnitor’s obligation to provide site safety protection in connection with “any work” performed by indemnitor pursuant to the

subcontract.

2. Indemnification Predicated On the Negligence of the Indemnitor

A second, narrower type of indemnity clause is triggered upon the finding of negligence on the part of the indemnitor, such as:

To indemnity for claims arising out of or resulting from the performance or nonperformance of the Work . . . but only to the extent caused in whole or in part by negligent acts or omissions of the [subcontractor], anyone directly or indirectly employed by them, or anyone for whose acts they may be liable.

Note: If successfully triggered, even a fault-based indemnity cause where the indemnitor is found 1% negligent will allow for the transfer of the entire risk, subject to the limitations of the General Obligations Law, discussed infra.

B. Enforceability of the Contractual Indemnity Provision

New York’s General Obligations Law § 5-322.1 prohibits indemnification for an indemnitee’s own negligence. But the courts have allowed partial indemnification so long as the

indemnity clause contains sufficient “savings” language.

In Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786 (1997), the New York Court of Appeals determined that § 5-322.1 was enacted to “prevent a prevalent practice in

the construction industry to assume liability by contract for the negligence of others. The Legislature concluded that such ‘coersive’ bidding requirements unnecessarily increased the cost

of construction by limiting the number of contractors able to obtain the necessary hold harmless insurance, and unfairly imposed liability on subcontractors for the negligence of others over whom

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they had no control. The agreements also needlessly created expensive double coverage for hold harmless or general liability insurance.”

In Itri Brick, the Court decided that the wording of the indemnity clause was overbroad in that it attempted to contract away the indemnitees’ own negligence, rendering it unenforceable.

The Court went on to suggest that a different result could have been found if the indemnification clause had language which called for partial as opposed to full indemnity.

A decade later, the Court of Appeals answered the questions left open in Itri Brick in deciding the case of Brooks v. Judlau Contr., Inc., 11 N.Y.3d 204 (2008). In Brooks, the Court was asked to decide whether §5-322.1 allows a general contractor who has been found partially at fault to enforce an indemnity clause against its subcontractor for that portion of damages not attributable to the negligence of the contractor. The Court held that a partially negligent general contractor will be entitled to contractual indemnification from its subcontractor as long as the indemnity provision does not seek to indemnify the general contractor for its own negligence. The Court further held that the words “to the fullest extent permitted by law” act to limit an

indemnitor’s obligation and bring the indemnification clause within the required standards of

General Obligations Law § 5-322.1.

But what if my indemnity clause does not contain the “savings” language? An indemnification agreement which would otherwise be unenforceable pursuant to GOL §5-322.1 is enforceable if it is established that the party seeking to be indemnified under the contract is completely free from negligence. Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172 (1990); Mahoney v. Turner Constr., 37 A.D.3d 377 (1st Dep’t 2007). In holding so, it was determined that neither the wording nor the intent of the General Obligation Law bar would be violated if the indemnification clause was enforced for a faultless indemnitee.

C. Effect and Significance of Partial Indemnification

Prior to the Brooks case (and earlier First Department case of Dutton v. Charles Pankow Builders Ltd., 296 A.D.2d 321 (1st Dep’t 2002)), a general contractor who was found 1% negligent

would have no contractual risk transfer mechanism against the employer where the claim did not involve a “grave injury.” Partial indemnification provides the owner or general contractor an end-around the “grave injury” rule. Stated differently, the same common law contribution claim that

is barred in Workers Compensation Law § 11 is now permitted as a partial indemnification claim so long as the indemnity clause is worded properly.

The concept of “partial indemnification” is also significant from an insurance standpoint

in that it triggers a totally distinct type of coverage than a common law indemnification claim; i.e. general liability coverage for the partial indemnification claim v. 1B/EL coverage for a common law indemnification claim.

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D. Third-Party Beneficiaries

Entities who are not parties to the contract can also sue for indemnification pursuant to contract if they are intended third-party beneficiaries. One is considered an intended beneficiary of the contract (as opposed to an incidental beneficiary) when the following is established:

(1) the existence of a binding contract between other parties; (2) that the contract was intended for their benefit; and (3) that the benefit to them is sufficiently immediate, and not just incidental, so as to show a duty on the part of the contracting parties to compensate them if the benefit is lost.

Mandarin Trading, Ltd. v. Wildenstein, 16 N.Y.3d 173 (2011).

If the performance is rendered directly to a third party, then there is a presumption that the third party is an intended beneficiary of the contract and can seek indemnification under the contract. White Plains Plaza Realty, Inc. v. Cappelli Enterprises, Inc., 108 A.D.3d 364 (2d Dep’t

2013).

E. Other Issues Pertaining to Contractual Indemnification

The indemnity agreement must be in writing. 405 Bedford Ave. Dev. Corp. v. New Metro Constr., Ltd., 26 A.D.3d 408 (2d Dep’t 2006).

Certain written agreements may not rise to the level of providing for indemnification. For instance, in Torres v. LPE Land Dev. & Constr., Inc., 54 A.D.3d 668 (2nd Dep’t 2008), the Court

held that the contractor failed to demonstrate the legitimacy of a purported agreement which was undated and did not specify the party to be indemnified, the work to be done or the location of the work, nor was there any evidence of the existence of an ongoing relationship or a pattern of conduct.

Unsigned contract and contracts signed after the date of loss also give rise to issues concerning the enforceability of an indemnity clause. Unsigned indemnification agreements are still enforceable based on common law contract interpretation principles; i.e., meeting of the minds, intent, pattern of conduct between the parties. In Flores v. Lower East Side Service Center, 4 N.Y.3d 363 (2005), the Court of Appeals, in reviewing an unsigned contract, held that the Legislature did not intend to deviate from the common law rule that unsigned contracts could be valid, as long as it does not implicate a statute, such as the statute of frauds, where execution of the agreement is mandated.

Contracts signed after the date of loss present a more complicated variation of the unsigned contract analysis. The scenario came up in Pena v. Chateau Woodmere Corp., 304 A.D.2d 442 (1st Dep’t 2003), wherein the contract expressly state that it was effective not on the date signed

but as of a different date set forth in the contract (which happened to be three days before the accident). Pena applied the principle that “[a] term in a contract executed after a Plaintiff’s injury

may be applied retroactively where evidence establishes as a matter of law that the agreement

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pertaining to the contractor’s work ‘was made “as of” [a pre-accident date], and that the parties intended that it apply as of that date”. 304 A.D.2d at 443. Similarly, in Podhaskie v. Seventh Chelsea Assocs., 3 A.D.3d 361 (1st Dep’t 2004), the court took into consideration pre-accident documents such as a bid proposal and certificate of insurance in finding issues of fact as to whether an indemnity provision within a subcontract dated and executed three weeks after the underlying accident demonstrated an intent to have retroactive effect. However, a different result occurred in Burke v. Fisher Sixth Ave. Co., 287 A.D.2d 410 (1st Dep’t 2001), wherein the court held that

“[t]here is nothing about these contracts to suggest that they were intended to have retroactive

effect”. 287 A.D.2d at 410.

IV. Common Law Indemnification

A. Basic Elements

To be entitled to common-law indemnification, a party must show:

(1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and

(2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work.

Note that merely having contractual authority to supervise the work and implement safety procedures is not enough to invoke common-law indemnification. There must be actual supervision of the injury-producing work. McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369 (2011).

In order to bring a common law indemnification and/or contribution claim against the employer on an injured party, there must be a

a. a “grave injury” or;

b. a failure on the part of the employer to secure Workers’

Compensation coverage for the injured employee.

B. Who is the Employer?

There are occasions when the employer-employee relationship is not a straightforward determination. In those circumstances, factors include:

the right to control the work; the method of payment; pay stub representations; the right to fire the employee; and the relative nature of the work.

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Matter of Park v. Lee, 53 A.D.3d 936 (3d Dep’t 2008).

There is no single factor that is dispositive on this issue. The Workers’ Compensation

Board’s determination on this issue is binding. The Workers’ Compensation Board’s decision will be upheld on appeal if supported by “substantial evidence.” Lew v. Younger, 69 A.D.3d 1161 (3d Dep’t 2010).

Under New York law, an employee who is employed by one employer (i.e. the “general

employer”) may be transferred for a limited time to the service of a second employer, thus becoming a “special employee” of that second employer. “Where a Claimant is employed by both a general and special employer, the [Workers’ Compensation] Board is empowered to ‘make an

award against either or both of the employers as it sees fit.’ Carlineo v. Snelling & Snelling, LLC, 90 A.D.3d 1288 (3d Dep’t 2011). If a worker is deemed to be a special employee, a common law indemnification claim against that special employee is prohibited (unless there is a “grave injury”).

C. “Grave Injury”

Under Workers’ Compensation Law § 11, a “grave injury” means one or more of the

following:

death; permanent and total loss of use or amputation of an arm, leg, hand or foot; loss of multiple fingers; loss of multiple toes; paraplegia; quadriplegia; total and permanent blindness; total and permanent deafness; loss of nose; loss of ear; permanent and sever facial disfigurement; loss of an index finger; and an acquired injury to the brain caused by an external physical force resulting in

permanent total disability.

Some examples as applied by the courts:

Loss of an eye not a grave injury. Giblin v. Pine Ridge Log Homes, Inc., 42 A.D.2d 705 (3d Dep’t 2007).

Partial amputation of index finger not a grave injury. Blackburn v. Wysong & Miles Co., 11 A.D.3d 421 (2d Dep’t 2004).

The leading case on assessing the brain injury issue is Rubeis v. Aqua Club Inc., 3 N.Y.3d 408 (2004). In Rubeis, the Court of Appeals decided three lower court cases to resolve a split in

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the appellate divisions and held that “a brain injury results from ‘permanent total disability’ under

section 11 when the evidence establishes that the injured worker is no longer employable in any capacity”. 3 N.Y.3d at 413.

D. Issues That Arise When Pursuing a Common Law Indemnification Claim

In cases where the injury is not necessarily a clear-cut “grave injury” as contemplated under Section 11 of the Workers’ Compensation Law, defense counsel can feel understandable discomfort in prosecuting a common law indemnification claim while having to prove through “competent medical evidence” that the Plaintiff sustained a “grave injury.” Since it is in the interest of Plaintiff’s counsel to have the employer in the case, and since the plaintiff can never

sue the employer directly, it is often a practice that the plaintiff presents the medical proof necessary to establish “grave injury.”

The common law indemnification claim also opens up an unlimited line of insurance coverage in the form of Employer Liability EL coverage (aka “1B” coverage). Thus, if available,

it is best to plead both contractual and common law indemnification against the employer. The employer’s general liability carrier would cover the contractual claim and the Workers’

Compensation carrier would cover the common law claim, thus maximizing the coverage and available funds for a settlement or judgment.

Lien waiver considerations: Having the common law indemnification claim in place, and thus creating the potential exposure on the “1B” side of coverage that otherwise would not exist, also tends to give the Workers’ Compensation carrier, which controls the lien, incentive to compromise more of the lien than the law requires, which often facilitates settlement of cases.

V. Anti-Subrogation

As a general rule, anti-subrogation prevents an insurer from subrogating against its own insured for a claim arising from the very same risk for which the insured was covered. The rationale is that it prevents the insurer from passing on the loss to its own insured and guards against the potential for a conflict of interest which may affect the insurer’s incentive to have a vigorous defense provided to the insured. North Star Reinsurance Corp. v. Continental Ins. Co., 82 N.Y.2d 281 (1998). In determining whether the anti-subrogation rule is violated, courts look to whether the insurance carrier – the true party of interest in these cases – is trying to manipulate or fashion the litigation to protect itself over its insured’s interests.

In the context of third-party practice, it is often is situation where the general contractor is named as an additional insured on the employer’s general liability policy on a primary basis. In those situations, the third-party action against the employer is barred up to the limits of that general liability policy. The third-party claim, however, can still be maintained to the extent the case value exceeds the limits of the employer’s GL policy or otherwise exposes the indemnitee or its own insurer. Estate of Aprea v. Willets Point Contracting Corp., 215 A.D.2d 708 (2d Dep’t 1995)

(“[Third-Party Plaintiff] is not precluded from seeking indemnification to the extent that [Third-Party Plaintiff’s own insurer] may be required to pay any portion of an eventual settlement or judgment.”).

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1

INDEMNIFICATION

AND CONTRIBUTION CLAIMS IN

LITIGATION

Jennifer A. Ehman, Esq.

Hurwitz & Fine, P.C.

1300 Liberty Building

Buffalo, New York 14202

(716) 849-8900

(716) 855-0874 [fax]

jae@hurwitzfine.com

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I. BASIC RULES OF CONSTRUCTION FOR

CONTRACTUAL INDEMNITY CLAUSES……………………………………….…4

A. Indemnity Agreements are Strictly Construed………………………………..4

B. Negligence Requirements……………………………………………………….5

C. “Acts or Omissions” Language Without a Negligence Trigger………………6

D. Indemnity Claims Cannot be “Generally” Incorporated

Into Sub-Contracts……………………………………………………………...6

E. No “Implied Third-Party Beneficiary Status”

in Contractual Indemnity Claims………………………………………………8

F. Unsigned Contracts………………………………………………………….…..8

II. BREADTH OF CONTRACTUAL INDEMNIFICATION UNDER NY LAW……..9

A. Absent a Statutory Provision, a Party May Be

Indemnified for its Own Negligence……………………………………………9

B. General Obligations Law § 5-322.1 Prohibits Certain

Contracts that Indemnify for Another Party’s Own Negligence…………….10

1. GOL § 5-322.1 Provides……………………………………………..…10

2. However, “Fullest Extent Permitted by Law” or

Other “Savings” Language, permits “Partial Indemnification”…….10

3. The Preclusive Effects of GOL § 5-322.1 are also Avoided

if the Party Seeking Indemnification is Not Actually Negligent……..11

4. GOL § 5-322.1 applies to “Services” Contracts………………………15

C. General Obligations Law § 5-321 Prohibits Certain

Indemnity Claims Based Upon a Lease Agreement………………………….17

1. GOL § 5-321 Provides………………………………………………….17

2. However, “Fullest Extent Permitted by Law” or Other “Savings”

Language, permits “Partial Indemnification”………………………..17

3. The Preclusive Effects of GOL § 5-321 May be Avoided Where

the Agreement Was Negotiated “At Arm’s Length”, Between

“Sophisticated Parties” and Where Insurance was Provided……….18

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(a) Some Court’s May Require “Waiver of Subrogation”

to Avoid Application of GOL § 5-321………………………...20

(b) The Fourth Department Requires an

“Additional Insured” Clause………………………………….20

D. Failure to Procure Insurance May Give Rise to Indemnity Claim…………21

III. COMMON LAW INDEMNIFICATION…………………………………………….22

A. Common Law Claims Against Employer

Barred by Workers’ Compensation Section 11………………………………22

B. If Common Law Indemnity Sought From an Employer, Movant

Must Establish Grave Injury Under Workers’ Compensation § 11………..23

C. Common Law Indemnification Claim Must Establish

(a) Lack of Negligence on Indemnitee and (b) At Least 1%

of Negligence Party from Whom Indemnity is Sought………………………23

D. No Basis for Common Law Indemnity Claim Where there is

No Allegation of Vicarious Liability…………………………………………...25

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I. BASIC RULES OF CONSTRUCTION FOR CONTRACTUAL INDEMNITY

CLAUSES

A. Indemnity Agreements are Strictly Construed

Cahn v Ward Trucking, Inc.

(101 AD3d 458, 955 NYS2d 583 [1st Dept., 2012])

Loss did not Arise from the Conduct Described in the Indemnity Agreement

Plaintiff was injured when he was struck by barrels that fell off of a hand truck. At the time of

the incident, plaintiff was at work in the lobby of a building owned by his employer, 450 Park.

Plaintiff commenced the above action against the delivery company and trucking company that

were in the process of unloading the barrels at the time of the incident. Those entities, in turn,

commenced an action against Chemtreat as the vendor/packer of the barrels.

Chemtreat ultimately moved for summary judgment dismissing the common law and contractual

indemnity claims that had been asserted against it. With regard to the common law indemnity

claim, Chemtreat noted that there was no proof offered that it was “actively at fault” for causing

the incident. Thus, under McCarthy v Turner Construction, Inc. there was no basis for a

common law indemnity claim.

The contractual indemnity claim was dismissed where Chemtreat established that the provision

in question was inapplicable to the facts of this case. Specifically, the Chemtreat indemnity

agreement only triggered where the loss arose from the use Chemtreat’s patented devices,

processes, materials and equipment. In the instant case, barrels falling from a hand truck during

delivery did not fit within any of the enumerated areas giving rise to a valid indemnity claim.

Perales v First Columbia 1200 NSR, LLC

(88 AD3d 1213, 932 NYS2d 211 [3d Dept., 2011])

Facts of the Case DO NOT Trigger Indemnity Obligations Per the Terms of the Contract

Plaintiff slipped and fell in the parking lot of a premises owned and operated by defendant First

Columbia. The instant lawsuit against First Columbia and co-defendant Gallivan Corporation

(the snow plow contractor) resulted. Upon answering, First Columbia asserted cross-claims for

contractual and common law indemnification against Gallivan.

At some point in the litigation, Gallivan moved to dismiss First Columbia’s cross-claims.

Gallivan argued, first, that it only owed contractual indemnification to the extent the incident was

“caused by or sustained in connection with the performance of this Service Agreement or

conditions created thereby.” In support of its motion, Gallivan argued that it had performed all

required duties under the contract, including the removal of snow as required by the timeframe

established in the contract and by placing the snow piles in the areas designated by the contract.

Where the contract was not breached, and First Columbia could not establish that the incident

occurred due to Gallivan’s failure to adhere to its duties under the contract, the contractual

indemnity claim was dismissed.

Further, First Columbia’s common law indemnity claim was dismissed. The claims against First

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Columbia were that (a) it failed to properly configure the parking lot and walkways and (b) that

the snow piles were negligently created. Where, as here, Gallivan had no role in configuring the

property and where, as here, Gallivan placed the snow piles exactly where it was directed under

the contract, Gallivan had no negligence in this case. As such, the only liability facing First

Columbia was its own, active, negligence. As a party cannot be indemnified under common

principles for its own negligence, the cross-claim was dismissed.

B. Negligence Requirements

Bellreng v Sicoli & Massaro, Inc

(108 AD3d 1027, 969 NYS2d 629 [4th Dept., 2013])

Where Contract Requires Negligence To Trigger, the Burden Falls on the Party Seeking

Indemnification

Plaintiff, an employee of Innovative, fell through the deteriorated gypsum roof decking onto

scaffolding that had been erected inside the building to prevent debris from falling into the pool.

At the time of his fall, plaintiff had unhooked his safety harness from the steel lifeline that had

been placed on the roof.

Defendant Board of Education hired third-party plaintiff Sicoli as the general contractor on the

project, who subcontracted with third-party defendant Guard to remove the existing roof. Guard

subcontracted that work to fourth-party defendant Innovative.

Plaintiff filed this action for Labor Law violations and common-law negligence. Sicoli moved

for judgment dismissing plaintiff’s complaint and for judgment on its third-party complaint.

Guard moved for partial judgment on its contractual indemnification claim. Plaintiff cross-

moved for partial judgment on his §§ 240(1), 240(3) and 241(6) claims, and Guard cross-moved

to dismiss the §§ 200, 240(1) and 241(6) claims.

The trial court denied defendants’ motion and Guard’s cross-motion regarding the § 200 claim;

denied all motions concerning the § 240(1) claim; granted defendants’ motion to dismiss the §

241(6) claim except as it related to 12 NYCRR 23-1.16; and denied defendants’ motion for

judgment on the third-party complaint.

The motion relative to plaintiff’s Labor Law 200 claim was granted where it was established that

neither Lockport, nor Sicoli, exercised actual supervision, direction or control over plaintiff’s

work. In so holding, the Court noted that at most, these defendants engaged in monitoring and

oversight of the timing and quality of work, which is insufficient to raise a triable issue of fact

with respect to supervision or control for the purposes of Labor Law 200.

As such, Sicoli’s motion for contractual indemnity was also granted due to the fact that it had no

actual negligence.

Finally, the Court denied Guard’s motion for contractual indemnity on the basis that it did not

conclusively establish that Innovative was negligent. Apparently, the clause at issue in the

Guard/Innovative contract only provided indemnification where Innovative’s negligence caused

the loss.

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C. “Acts or Omissions” Language Without a Negligence Trigger

Anton v West Manor Const. Corp.

(100 AD3d 523, 954 NYS2d 76 [1st Dept., 2012])

Negligence Triggered Needed Before Indemnity Provision Applied

Plaintiff was employed by Tiegre. During the course of his employment, plaintiff was struck by a

falling cinderblock. As a result of his injuries, plaintiff commenced suit against West Manor

Construction Corp., who, in turn, commenced a third-party action against Tiegre.

West Manor sought both common-law and contractual indemnity against Tiegre. The former,

common law indemnity, claim was dismissed by application of Workers’ Compensation Law §

11. In so holding, the Court noted that daily headaches and frustrating loss of focus did not rise

to the level of a grave injury.

With regard to the contractual indemnity claim, the Court likewise affirmed dismissal of West

Manor’s claims against Tiegre. Although not explicitly stated, it appears as though the contract

only provided West Manor protection from losses that were occasioned out of Tiegre’s

negligence. Here, although the plaintiff was in an area that he was instructed not to use, his

“violation” of the workplace rule only furnished the occasions for the occurrence. It was not,

however, the proximate cause of the loss. As such, the indemnity clause at issue was not

triggered.

Simone v. Liebherr Cranes, Inc.

(90 AD3d 1019, 935 NYS2d 337 [2d Dept., 2011])

Contract Means What It Says: No Requirement of Negligence for Indemnity Purposes

In this action, Beys Contracting (“Beys”) sought an award of contractual indemnification from

third-party defendant Resun Leasing, Inc. (“Resun”). Resun appears to have opposed the

demand by arguing that neither it, nor its subcontractors, were negligent.

In affirming the trial court, the Second Department started by reviewing the language of the

indemnity clause at issue. Upon review, the Court noted that Resun was obligated to indemnify

Beys so long as the loss was “caused in whole or in part by any act or omission of the

Subcontract.” Where there was no obligation in the contract that the acts or omissions be

negligent, any argument that Resun (or its subcontractors) was free of negligence was irrelevant.

Accordingly, because the incident arose from the work of Resun’s contractors, the protections of

the indemnity clause were triggered.

D. Indemnity Claims Cannot be “Generally” Incorporated Into Sub-Contracts

Persaud v. Bovis Lend Lease, Inc.

(93 AD3d 831, 941 NYS2d 208 [1st Dept., 2012])

Words to Remember – “Incorporation Clauses” in Subcontracts Bind a Subcontractor

Only to the Quality, Character and Manner of Work and NOT the Insurance and

Indemnity Requirements

Persaud worked at Gessin Electrical Contractors, Inc. (“Gessin”). Gessin was a sub-

subcontractor to BTG. When Persaud was injured, he sued Bovis and other defendants

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(collectively referred to as “Bovis”). Bovis sued Gessin, alleging claims for contribution,

common-law indemnification, and contractual indemnification, and to recover damages for

breach of contract for failure to procure insurance.

A third-party action against an employer for contribution and indemnity can survive only if

employee has sustained a grave injury as defined by the Workers' Compensation Law or when

there is a written contract entered into prior to the accident or occurrence by which the employer

had expressly agreed to contribution or indemnification of the claimant. Gessin established that

there was no grave injury so the common law claims for contribution and common-law

indemnity must be dismissed.

As to the written contract for indemnity, the claims were based not on the sub-sub contract but

on a promise found in the prime agreement between the subcontractor BTG, and Bovis to which

Gessin was not a signatory. Even though the construction subcontract signed by Gessin

incorporated the main agreement by reference, “[u]nder New York law, incorporation clauses in

a construction subcontract, incorporating prime contract clauses by reference into a subcontract,

bind a subcontractor only as to prime contract provisions relating to the scope, quality, character

and manner of the work to be performed by the subcontractor'" and not to insurance or

contractual indemnification. Accordingly, the contract claim is dismissed, thus leading to the

dismissal of the entire third-party claim.

Baillargeon v Kings County Waterproofing Corp.

(91 AD3d 686, 936 NYS2d 298 [2d Dept., 2012])

Indemnity Provision can Only be “Incorporated” by Specific Provision in the Prime

Contract

Plaintiff slipped and sustained injury while in the course of installing carpet at the Jacob Javits

Convention Center. It was alleged that plaintiff was caused to slip due to the existence of water

that entered the facility due to a recurrent roof leak. Defendant Kings had previously been

retained by the Convention Center to repair the leak. Defendant Gordon H. Smith Company had

been retained by the Convention Center to identify the problem, and formulate plan to remedy

the situation.

Plaintiff named both Kings and Gordon as defendants in the instant proceeding. Upon

answering, Gordon asserted cross-claims against King for contractual indemnification. Gordon

later moved for summary judgment seeking an award of contractual indemnity against Kings.

Kings opposed the motion on the basis that it did not have a contract with Gordon.

In affirming the trial court, the Second Department noted that Kings contract was limited to the

Convention Center. There was no obligation within the Kings/Convention Center Contract

which required Kings to indemnity non-party Gordon. In addition, the Kings/Convention Center

Contract did not explicitly incorporate the terms of the Convention Center/Gordon Contract.

Accordingly, Gordon had no basis to assert a contractual indemnity claim.

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E. No “Implied Third-Party Beneficiary Status” in Contractual Indemnity

Claims

Galvin Bros. Inc. v Town of Babylon, NY

(91 AD3d 715, 936 NYS2d 563 [2d Dept., 2012])

Movant Fails to Meet Burden to Establish Third-Party Beneficiary Status

Plaintiff commenced the instant action seeking to recover alleged economic loss on a breach of

contract theory against the Town of Babylon. In its Answer, the Town asserted cross-claims

against co-defendant Hanes Geo Components. Haynes moved to dismiss the cross-claims for

failure to state a cause of action resulting in this appeal.

Haynes first argued that the Town’s claims for contribution must be dismissed where, as here,

the complaint only seeks economic damages. In affirming the trial court’s dismissal of the

Town’s claim for contribution, the Second Department noted that there is no viable claim for

contribution under CPLR 1401 where only economic damages are sought.

In addition, Haynes also moved to dismiss the Town’s indemnity claim on the basis that the

Town was not in privity of contract with it. In affirming the dismissal of the contractual

indemnity claim, the Second Department noted that there was no direct contract between Haynes

and the Town. In addition, the Court noted that the Town had failed to establish the existence of

third-party beneficiary status under any other contract entered into by Haynes.

F. Unsigned Contracts

Seales v Trident Structural Corp.

(142 AD3d 1153; 38 NYS3d 49 [2nd

Dept., 2016])

Unsigned Contract May Yet Prove to be Enforceable for Indemnity Purposes Plaintiff was installing a new sprinkler system as part of a renovation project at a building owned

by defendants 138 West and 2794 Broadway (collectively the owners). Defendant Trident was

the contractor responsible for carpentry, structural work, framing, roofing and sheetrock

installation. While ascending a staircase from the fifth to the sixth floor, plaintiff allegedly was

struck in the head and rendered unconscious by a piece of falling sheetrock.

Third-party defendant Trident’s president testified that shortly after the accident, he observed

several 4x8 feet sheets of sheetrock leaning against the wall on the sixth floor. One sheet had

fallen away from the wall and was leaning against a railing, and a portion of that sheet was

broken away. A jagged piece of sheetrock 8-12 inches was on the landing of the fifth floor on

the stairs. Conversely, plaintiff’s coworker testified that the piece of sheetrock that fell onto the

stairwell in the vicinity of plaintiff was approximately the size of an entire sheet of sheetrock.

The trial court denied plaintiff’s motion for summary judgment on his Labor Law § 240(1)

claim, and denied the owners’ cross-motion for summary judgment dismissing the Labor Law §§

240(1), 241(6), 200 and common-law negligence claims. The trial court also denied the owners’

cross-motion on their third-party claims for common-law and contractual indemnification against

Trident, and granted Trident’s cross-motion to dismiss all third-party claims against it.

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The owners and Trident both moved for summary judgment on the contractual indemnity piece

of this case. Owners argued that they were entitled to an aware of contractual indemnity, while

Trident argued that the unsigned contract was unenforceable. With regard to the question of

whether the contract was properly enforceable, the Court noted that a question of fact existed as

to whether the parties wished to be bound by its terms. While an unsigned contract may be

enforceable, it was owners’ obligation to come forward with evidence demonstrating both parties

intent to be bound by the operative language therein.

Even if the contract was enforceable, a question still existed as to whether the events of the case

at bar triggered the indemnity provision. The contract only obligated Trident to indemnity

owners where Trident (or Trident’s subcontractors) negligent acts or omissions contributed to the

loss. Here, Trident was unable to establish itself free of negligence, or the negligence of its

subcontractors.

Lastly, the unresolved factual issues regarding negligence also precluded either side from

prevailing upon motions for common law indemnification.

II. BREADTH OF CONTRACTUAL INDEMNIFICATION UNDER NY LAW

A. Absent a Statutory Provision, a Party May Be Indemnified for its Own

Negligence

Cortes v Town of Brookhaven

(78 AD3d 642, 910 NYS2d 171 [2d Dept., 2010])

Contractual Indemnity For One’s Own Negligence Is Permissible So Long as There is No

Statutory Prohibition

Plaintiff was injured when the truck he was operating overturned while at defendant’s landfill

facility. As a result, he commenced the instant action against Brookhaven.

In response, Brookhaven commenced a third-party action against DF Stone and the Town of

Hempstead. Apparently, DF Stone was engaged to transport certain items from Hempstead’s

landfill to Brookhaven’s landfill. In any event, per the terms of the contract, Brookhaven sought

contractual indemnification from DF Stone.

At the conclusion of trial, Brookhaven was found to be 40% liable for plaintiff’s injuries

(plaintiff was deemed 60% responsible for the incident). As a result, DF Stone opposed

Brookhaven’s contractual indemnity claim on the basis that Brookhaven could not be

indemnified for its own negligence.

The Appellate Division disagreed, and held that absent a specific statutory prohibition (i.e., GOL

§ 5-322.1 [construction contracts] and GOL § 5-321 [commercial leases]) parties were free to

contract for indemnification for their own negligence. Here the contract provided indemnity for

“any and all claims.” Given the breadth of this agreement, the Second Department ruled that DF

Stone had agreed to indemnify Brookhaven for all losses, including those occasioned due to

Brookhaven’s own negligence.

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B. General Obligations Law § 5-322.1 Prohibits Certain Contracts that

Indemnify for Another Party’s Own Negligence

1. GOL § 5-322.1 Provides

5-322.1. Agreements exempting owners and contractors from liability for negligence void and

unenforceable; certain cases

1. A covenant, promise, agreement or understanding in, or in connection with or

collateral to a contract or agreement relative to the construction, alteration, repair

or maintenance of a building, structure, appurtenances and appliances including

moving, demolition and excavating connected therewith, purporting to indemnify

or hold harmless the promisee against liability for damage arising out of bodily

injury to persons or damage to property contributed to, caused by or resulting

from the negligence of the promisee, his agents or employees, or indemnitee,

whether such negligence be in whole or in part, is against public policy and is

void and unenforceable; provided that this section shall not affect the validity of

any insurance contract, workers' compensation agreement or other agreement

issued by an admitted insurer. This subdivision shall not preclude a promise

requiring indemnification for damages arising out of bodily injury to persons or

damage to property caused by or resulting from the negligence of a party other

than the promisee, whether or not the promisor is partially negligent.

2. A covenant, promise, agreement or understanding in, or in connection with or

collateral to a contract or agreement relative to the construction, alteration, repair

or maintenance of a building, structure, appurtenances and appliances including

moving, demolition and excavating connected therewith, purporting to condition a

subcontractor's or materialman’s right to file a claim and/or commence an action

on a payment bond on exhaustion of another legal remedy is against public policy

and is void and unenforceable; provided that this subdivision shall not affect the

validity of any insurance contract, workers' compensation agreement or other

agreement issued by an admitted insurer.

2. However, “Fullest Extent Permitted by Law” or Other “Savings”

Language, permits “Partial Indemnification”

Alarcon v UCAN White Plains Hous. Dev. Fund Corp.

(100 AD3d 431, 954 NYS2d 13 [1st Dept., 2012])

Saving Language Provides Basis for “Partial” Indemnity

Plaintiff allegedly sustained injury in the course of his employment with MSI. At the time of the

incident, MSI was performing work as the masonry contractor at a jobsite owned by UCAN.

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Thereafter, plaintiff commenced the instant lawsuit seeking recovery against UCAN under Labor

Law § 240(1) & (2) and/or Labor Law § 241(6).

In turn, UCAN commenced a third-party action seeking contractual indemnification against MSI.

MSI opposed on the ground that the indemnity provision at issue was in violation of General

Obligations Law § 5-322.1. In affirming the trial court’s decision, the First Department noted

that the disputed clause at issue had “saving” language which indicated that the provision should

be read “to be limited only to the extent necessary to comply with…law.”

Moreover, the Court also noted that even if the indemnity clause did not contain “saving”

language UCAN would still be entitled to summary judgment. This is because, regardless of the

anticipated scope of the provision, there was no evidence submitted which established any

negligence on UCAN. As noted by the Court, no one from UCAN was at the site at the time of

the incident. Likewise, no one from UCAN supervised, directed or controlled plaintiff’s

activities.

Charney v. LeChase Construction

(90 AD3d 1477, 935 NYS2d 392 [4th Dept., 2011])

Fullest Extent Permitted by Law Saves Contractual Indemnity Claim

This incident arose from the collapse of a steel canopy, and resulted in a claim under Labor Law

240(1). As part of that litigation, defendants moved for Summary Judgment against third-party

defendant Contour Erection (“Contour”) pursuant to an indemnity clause found within the

Contour contract.

In modifying the trial court’s decision, the Fourth Department notes that any provision that

purports to provide indemnification for a negligent party is void by operation of General

Obligations Law § 5-322.1. The Court also notes, however, that an indemnity clause can be

saved from the reaches of the GOL by simply inserting the term of art “to the fullest extent

permitted by law.” The inclusion of such language then requires the Court (or the jury) to make

a determination as to the active negligence of the purported indemnitee. If negligence is found,

then no indemnity right will exist for that portion of liability attributable to the negligent conduct

of the party seeking indemnification.

3. The Preclusive Effects of GOL § 5-322.1 are also Avoided if the Party

Seeking Indemnification is Not Actually Negligent

These cases remind us that an indemnity clause is not voided simply because it does not have

“fullest extent permitted by law” savings language (or some other carve out for the indemnitee’s

own negligence). Rather, in addition to language which violates the statute, the party seeking to

void the indemnity agreement must also establish negligence on behalf of the party seeking

indemnity.

Brooks v. Judlau Construction, Inc.

(11 NY3d 204, 898 NE2d 549, 869 NYS2d 366 [2008])

Court Upholds Claims for Partial Indemnification, and Avoids the Application of GOL § 5-

322.1

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In this case, plaintiff was injured as a result of a workplace fall. Not surprisingly, he commenced

an action under Labor Law § 240(1) of the Labor Law against the general contractor on the site

(Judlau). Judlau, as you can imagine, immediately commenced third-party practice against

plaintiffs employer (Thunderbird) for contractual indemnification.

Importantly, the contract between Judlau and Thunderbird contained an indemnification clause

which began [t]he Subcontractor [Thunderbird] shall, to the fullest extent permitted by law, hold

the Contractor [Judlau]…harmless. Thunderbird argued that this clause contemplated Judlau

being indemnified for losses which arose from its own negligence which would have been in

violation of General Obligations Law § 5-322.1s prohibition of the same.

The Court of Appeals noted that the fullest extent permitted by law language actually implied the

exact opposite when it came to the breadth of the indemnity agreement at issue. In so holding,

the Court of Appeals acknowledged that a party may be entitled to partial indemnity for any

percentage of liability that was not attributable to the direct negligence of the party seeking

indemnification.

Thus, for example, in this case, if Judlau was held 20% negligent in the underlying action, it

would still be entitled to be indemnified for 80% of the total verdict.

Grant v. City of New York

(109 AD3d 961, 972 NYS2d 86 [2d Dept., 2013])

No GOL § 5-322.1 Protection Where No Proof of Negligence of the Purported Indemnitee

Plaintiff sustained injury when he fell from a ladder while in the course of his employment with

A&S Electric. At the time of the fall, plaintiff was working on a building owned by the City of

New York. NYC, in turn, commenced a third-party action against A&S Electric for contractual

indemnification.

Importantly, at the motion stage of this case, NYC established that it did not supervise, direct or

control the work of the plaintiff. As such, it was not liable to plaintiff for common law

negligence. It followed that NYC was, in fact, entitled to contractual indemnity against A&S

Electric.

A&S Electric argued that because the indemnity clause conceivably provided indemnification for

NYC’s own negligence, the provision was voided by operation of General Operations Law § 5-

322.1. That argument failed where, as here, it was established that NYC was not negligent.

In so holding, the Court also reminded us that liability under Labor Law § 240(1) is statutory. It

does not, contrary to A&S’ argument, establish any degree of negligence against NYC.

Mathews v Bank of America

(107 AD3d 495, 968 NYS2d 15 [1st Dept., 2013])

Dismissal of Labor Law § 200 Clears the Way for Contractual Indemnification

Plaintiff, an employee of EFI, was injured while at work at a project site owned by Bank of

America (“BOA”). Thereafter, plaintiff commenced suit against BOA and a subcontractor, JVN,

alleging violations of Labor Law § 240(1). BOA & JVN, subsequently, both moved to dismiss

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the suit. As part of the same motion, both entities also sought an award of contractual

indemnification against EFI.

Defendant JVN’s motion for summary judgment was granted where, as here, it was able to

establish that it was not an owner, general contractor, or agent of either. To be an agent, the First

Department noted that plaintiff needed to establish JVN had actual authority to supervise, direct

or control the actual work at the project site. Here, JVN had no such authority.

In this vein, it followed that the Court denied and dismissed plaintiff’s Labor Law §

200/Common Law Negligence claims. In so holding, the Court again reiterated that neither

BOA, nor JVN, had exercised any supervision, direction or control over the methods and

manners of plaintiff’s activities. As BOA and JVN were absolved of negligence, it followed that

both parties were entitled to contractual indemnity against EFI (plaintiff’s employer). The fact

that the indemnity clause at issue may have been in violation of GOL § 5-322.1 was irrelevant

given the dismissal of negligence claims against the proposed indemnitees.

Picaso v 345 E. 73 Owners Corp.

(101 AD3d 511, 956 NYS2d 27 [1st Dept., 2012])

Question of Fact on Labor Law § 200 Claim Precludes Contractual Indemnity Claim

Plaintiff commenced this action after he tripped and fell on a staircase at a jobsite owned by

defendant. As part of the lawsuit, plaintiff asserted a Common Law Negligence/Labor Law § 200

claim against defendant therein alleging that the owner had constructive notice of a defective

condition prior to the incident.

Upon reviewing the motion papers, the Court noted that a question of fact existed as to owner’s

notice of the allegedly defective condition. As such, defendant/owner’s motion to dismiss the

Labor Law § 200 claim was denied.

At the same time, third-party defendant Tower’s motion to dismiss the common law indemnity

claim asserted by owner was granted. Clearly, plaintiff had not sustained a grave injury.

Moreover, the Court noted that the contractual indemnity clause relied upon by the owner was in

violation of GOL § 5-322.1 Thus, the Court noted that if owner is assigned any percentage of

negligence its claims for contractual indemnity will be voided.

Dwyer v Central Park Studios

(98 AD3d 882, 951 NYS2d 16 [1st Dept., 2012])

GOL 5-322.1 Does Not Preclude an Indemnity Claim Unless the Party Seeking Indemnity is

Actually Negligent

Plaintiff sustained injury during the course of his employment with DPS. Prior to the incident,

DPS had been retained by Michael and Janet Slosberg to perform some construction work in

condo they owned. The condo was located in a building owned by Central Park Studios (CPS).

Plaintiff commenced an action sounding in Labor Law against CPS. In turn, CPS commenced a

third-party action against the Slosberg’s therein asserting a claim for contractual indemnification.

The Slosberg’s opposed the contractual indemnification claim by asserting that the clause in

question potentially provided CPS with indemnification for its own negligence. Thus, the

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Slosberg’s argued that the clause was in violation of GOL 5-322.1 and was void as a matter of

law.

As noted by the Appellate Division, the trial court previously dismissed Mr. Dwyer’s Common

Negligence/Labor Law 200 claim against CPS. The result of which meant that CPS was not

negligent. Accordingly, where, as here, the only liability facing CPS was vicarious in nature, the

prohibitions of GOL 5-322.1 were inapplicable.

Ventimiglia v. Thatch, Ripley & Co., LLC

(96 AD3d 1043, 947 NYS2d 566 [2d Dept., 2012])

Question of Fact on Negligence = Question of Fact on Contractual Indemnity

Plaintiff, an employee of a third-party defendant subcontractor, was allegedly injured when he

fell while he was working on a project to construct a new condominium building. According to

the plaintiff, a trench approximately 10 feet wide and 8 feet deep surrounded the work site and

three or four 10 foot planks were placed across the trench at a “slight decline,” and served as the

only way into and out of the site. The plaintiff alleged that he was instructed by his foreman to

bring some lumber onto the site. As he was walking across the planks, carrying lumber on his

shoulders, the planks “opened up,” causing him to fall into the trench.

The Second Department reversed the trial court and denied summary judgment to the owner on

common-law negligence/Labor Law § 200 claims, finding that the plaintiff raised a triable issue

of fact as to whether the owner had constructive notice of a dangerous premises condition by

adducing evidence that the trench and planks from which plaintiff allegedly fell had existed for

approximately six months prior to the occurrence of the accident.

Where there remains a question as to the defendant’s own negligence, it follows that any motion

for contractual indemnity is likewise premature. Recall, that under General Obligations Law 5-

322.1 a contractor may not be indemnified for its own negligence. Where, as here, that

negligence is still at issue, it follows that relief under an indemnity claim cannot be afforded.

C & M 345 North Main Street, LLC v. Nikko Construction Corp.

(96 AD3d 794, 946 NYS2d 241 [2d Dept., 2012])

Question of Fact on Negligence = Question of Fact on Contractual Indemnity

The owner of a warehouse commenced the instant action after its building was severely damaged

by fire. Plaintiff named, among others, the tenant D’Agostino and the sprinkler company,

Allstate, as direct defendants. Allstate eventually moved for summary judgment on the basis of

the age old argument that it was simply a service contractor, and thus did not owe any duty to

plaintiff. In the alternative, Allstate sought contractual indemnification from D’Agostino

pursuant to its sprinkler service contract.

In denying Allstate’s motion, the Court noted that plaintiff was a third-party beneficiary of the

sprinkler service agreement entered into between D’Agostino and Allstate. Simply stated, the

agreement, which presumably protected plaintiff’s structure, was directly for the benefit of

plaintiff. In addition, the Court also noted that a question of fact existed as to whether plaintiff

detrimentally relied upon Allstate to provide monitor services as the facility per the terms of the

aforementioned agreement. In noting a question of fact existed, the Court noted in particular the

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fact that Allstate had failed to inspect the sprinkler system for several months prior to the

incident, and had failed to notify authorities on previous occasions when it discovered the system

was non-operational.

Given the questions of fact as to Allstate’s direct negligence, the Court likewise concluded that

Allstate’s claims for contractual indemnity over and against D’Agostino were likewise

premature. Under the terms of the contract, Allstate was not entitled to receive a windfall for

losses occasioned out of its own negligence.

4. GOL § 5-322.1 applies to “Services” Contracts

Bell v City of New York

(104 AD3d 484, 961 NYS2d 121 [1st Dept., 2013])

GOL Prohibition Against Indemnity for One’s Own Negligence Can Apply to Service

Contracts

In 2007, NYU closed down its boiler room as part of an ongoing asbestos abatement project. As

an alternative, NYU contracted with Mobile to supply a portable boiler unit for the premises. The

portable boiler was housed in a truck that was to be parked, per NYC Order, on 5th Avenue.

At the same time, the City of New York was engaged in a milling project on 5th Avenue. When

the subsequent repaving occurred, the mobile boiler was sitting on a milled section of the street.

Accordingly, rather than move the boiler, the City elected to pave around the mobile boiler. That

resulted in a large area of unpaved road that was 2 or 3 inches below grade.

Plaintiff was injured when she tripped over the uneven surfaces, and the instant lawsuit followed

as a result. Mobile’s motion for summary judgment, as a third-party service contractor, was

denied on a question of fact. Specifically, the court was unable to state with certainty that Mobile

had not exercised control over the affected area during the abatement project.

In addition, the Court found a question of fact regarding whether NYU was negligent. As such,

its motion for contractual indemnification against Mobile was likewise denied on a question of

fact.

Mesler v. Podd, LLC

(89 AD3d 1533, 933 NYS2d 493 [4th Dept., 2011])

Snow Plow Contract Gets Section 5-322.1 Protection

Lots of good stuff in this one. Plaintiff commenced the instant action against defendant Podd,

LLC, among other parties, as a result of a slip and fall incident that occurred at a Weight

Watcher’s, Inc. site. Plaintiff allegedly slipped on ice that had apparently formed as a result of

run-off from the roof of the premises. Upon being named in the lawsuit, owners BG Developers

and BG BCF, LLC commenced a third-party action against JJK Management. JJK Management

had provided snow removal services for the premises pursuant to a written contract. Thereafter,

plaintiff amended his Complaint to assert a direct cause of action against JJK.

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JJK moved to dismiss plaintiff’s amended Complaint insofar as it asserted a claim against a

third-party contractor. Under the Court of Appeals’ famous Espinal decision, JJK argued that it

owed no duty the plaintiff because it did not “launch an instrument of harm.” In reversing the

Trial Court, the Appellate Division noted that even if JJK was negligent in the performance of its

obligations under its contract with the owners of the premises, at a minimum, its actions “amount

to a finding that [JJK] may have failed to become an instrument of good.” It followed that absent

a specific duty, ala Espinal, plaintiff had no viable basis to proceed in a direct claim against JJK

as the snow removal contractor.

In addition, JJK also sought reversal of the trial court’s decision which granted the owners

conditional contractual indemnification. Upon review of the contract between the owners and

JJK, the Appellate Division noted that, per the clear language of the contract, JJK only owed an

indemnity duty if it was established that the loss occurred due to its own negligence. Here, the

owners had failed to make any showing of negligence on behalf of JJK. Accordingly, the owners

failed to meet their burden for summary judgment, and the order of conditional indemnification

was reversed.

As part of this holding, the Appellate Division also noted that the owners also were required to

show that they were free from negligence in order to enforce the agreement. The Court relied

upon the language of General Obligations Law 5-322.1 to reach this conclusion. Of course, by its

terms, GOL § 5-322.1 only applied to construction contracts. In reaching this decision, the

Appellate Division confirms that a snow plow contract is, in fact, entitled to the protections of

the GOL.

Weight Watchers, as the tenant at the premises, also moved on the basis that it had no snow

removal obligations. Indeed, a review of the lease between Weight Watchers and owners

revealed that Weight Watchers has no contractual duties to keep the front of the premises free

snow and ice. In granting Weight Watchers’ application for summary judgment, the Court noted

that the occasional removal of snow from the front of the premises did not establish that Weight

Watchers had exerted “control over the sidewalk.”

Finally, plaintiff’s motion against defendant owners was denied on a question of fact as to

whether the owners’ had sufficient knowledge of the allegedly defective condition.

Mak v Silverstein Props., Inc.

(81 AD3d 520, 916 NYS2d 592 [1st Dept., 2011])

Maintenance Agreement Seeking Indemnity for One’s Own Negligence Is Barred by

Application of GOL 5-322.1

Plaintiff commenced the instant Labor Law claim against Silverstein (as the property manager)

and 120 Broadway Holdings (as the owner). In response, Silverstein moved for summary

judgment dismissing plaintiff’s claims under Labor Law 200/Common Law Negligence. This

motion was denied where, as here, the Court ruled that questions of fact existed relative to

whether Silverstein created, or had notice of, the allegedly defective condition which caused

plaintiff’s injury.

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Notably, however, the Court dismissed Silverstein’s motion for contractual indemnification

against 120 Broadway on the basis that the management agreement was in violation of General

Obligations Law 5-322.1. In addition, due to the plain language of the management agreement,

the Court also noted that Silverstein had no obligation to defend/indemnify 120 Broadway

because the indemnity agreement only required indemnity for Silverstein’s violation of the

agreement or gross negligence. Neither requirement was found in this case.

C. General Obligations Law § 5-321 Prohibits Certain Indemnity Claims Based

Upon a Lease Agreement

1. GOL § 5-321 Provides

5-321. Agreements exempting lessors from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with or collateral to any lease of

real property exempting the lessor from liability for damages for injuries to person or property

caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the

operation or maintenance of the demised premises or the real property containing the demised

premises shall be deemed to be void as against public policy and wholly unenforceable.

Hadzihasanovic v 155 E. 72nd St. Corp.

(70 AD3d 637, 896 NYS2d 83 [2d Dept., 2010])

Contractual Indemnity Clause Within Lease Agreement Voided by Operation of GOL § 5-

321

Plaintiff commenced the instant action as a result of allegedly sustaining injuries while in course

of performing construction work at defendants’ apartment building. Defendants then asserted a

claim for contractual indemnification against the tenant of the apartment where plaintiff

sustained injury. The tenants opposed on the basis that the indemnity provision found within the

lease was unenforceable.

The Trial Court dismissed the cross-claim for contractual indemnification, and the Second

Department affirmed. In so holding, the Second Department ruled that “[a] broad

indemnification provision in a lease, such as the alteration agreement here, which is not l limited

the lessee’s acts or omissions, fails to make exceptions for the lessor’s own negligence, and does

not limit the lessor’s recovery under the lessee’s indemnification obligation to insurance

proceeds, is unenforceable pursuant to GOL § 5-321.”

2. However, “Fullest Extent Permitted by Law” or Other “Savings”

Language, permits “Partial Indemnification”

Mendieta v 333 Fifth Avenue Association, et al.

(65 AD3d 1097, 885 NYS2d 350 [2d Dept., 2009])

Landlord’s Indemnity Clause Fails Where It Provides Indemnification for Landlord’s Own

Negligence, and Does Not Contain “Fullest Extent Permitted By Law” Language

Plaintiff, an employee of SPN, sustained injury when he fell down an elevator shaft at a premises

owned by defendant/owner. At the time of the incident, plaintiff was in the course of his

employment with SPN, and SPN was a tenant at the premises at issue. Thereafter,

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defendant/owner commenced a third-party action seeking contractual indemnification from SPN

for any losses related to plaintiff’s fall.

As a condition to obtaining a key to access the elevator where plaintiff sustained injury,

defendant/owner required the tenant requesting access to agree to indemnify defendant/owner for

all injuries related to its use. The indemnification clause was not limited to damages resulting

from the tenant or a third-party’s negligence. Rather, the clause could be read to provide

indemnity protection for the defendant/owner even if the defendant/owner’s negligence caused

or contributed to the accident. Further, the indemnity clause at issue did not contain the familiar

“fullest extent permitted by law” that we have all grown accustomed to seeing.

As a result, SPN moved to dismiss the contractual indemnification claim on the basis that it

violated General Obligations Law § 5-321. As the clause at issue purported to provide indemnity

protection to the defendant/owner for its own negligence, the clause, as written, was

unenforceable. In turn, SPN’s motion to dismiss was granted accordingly.

3. The Preclusive Effects of GOL § 5-321 May be Avoided Where the

Agreement Was Negotiated “At Arm’s Length”, Between

“Sophisticated Parties” and Where Insurance was Provided

Otero v L & M Hub Associates, LLC

(68 AD3d 444, 889 NYS2d 582 [1st Dept., 2009])

Conditional Order of Indemnity Ok Where the Contract Complies with General

Obligations Law

In this matter, L&M moved for contractual indemnification from co-defendant Great American

Construction Company (Great American). In granting L&Ms motion for contractual indemnity,

the trial court failed to condition L&Ms recovery upon a showing that L&Ms negligence did not

contribute to the bodily injuries sustained by the plaintiff. In modifying the trial court decision,

the First Department conditioned the Order so that L&M could not recover indemnity for its own

percentage (if any should be proven) of negligence.

Because the contract between L&M and Great American also contained an insurance

procurement requirement. As such, according to the First Department, the indemnity clause was

enforceable under General Obligations Law 5-321 because it was coupled with the insurance

requirement.

Berger v 292 Pater Inc.

(84 AD3d 461, 922 NYS2d 346 [1st Dept., 2011])

Movant Must Establish Lease Was Negotiated at Arm’s Length Between Two

Sophisticated Entities to Avoid the Application of GOL § 5-321

Plaintiff commenced the instant action seeking damages for injuries she allegedly sustained in a

slip and fall accident in front of the premises owned by 292 Elizabeth Street Realty and rented by

defendant 292 Pater Inc. 292 Elizabeth Street moved for summary judgment dismissing

plaintiff’s claim, and also seeking an award of contractual indemnification against 292 Pater Inc.

The motion as against plaintiff was denied on a question of fact. With regard to the indemnity

motion, 292 Pater Inc. opposed on the basis that 292 Elizabeth Street could not be indemnified

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for its own negligence pursuant to General Obligations Law § 5-321. The trial court denied 292

Elizabeth Street’s indemnity motion, without prejudice, on an outstanding factual issue.

The Appellate Division affirmed the denial of 292 Elizabeth Street’s motion on the basis that the

movant had failed to adequately support its motion for summary judgment. In so holding, the

Court noted that the General Obligations Law did not preclude a landlord from being

indemnified for its own negligence so long as the contract under which the indemnity provision

arose was negotiated at arm’s length. Here, the Court noted, the Record was devoid of the

relative barging powers of the two entities at the time the lease agreement was executed.

DiBuono v. Abbey, LLC

(95 AD3d 1062, 944 NYS2d 280 [2d Dept., 2012])

Allocation of Losses Between Sophisticated Landlord and Tenant, Couple with Insurance

Coverage, Is Enforceable and Not Against Public Policy

Plaintiffs claimed property damage alleging that Abbey, the purchaser of a service station was

responsible for contamination caused by gasoline leaks. The damage took place on or before

July 25, 2005. Abbey purchased the property from LMC subject to a lease on the property to

Palisades and after the purchase, Abbey renewed the lease with Palisades. Palisades was

obligated to provide Abbey with liability insurance coverage and agreed to a hold harmless

agreement running in Abbey’s favor.

The indemnification provisions in the lease were enforceable even in light of General

Obligations Law § 5-321, which provides that an agreement which purports to exempt a lessor

from its own negligence is void and unenforceable. This lease only allocated the responsibility

between two sophisticated parties and was coupled with an insurance procurement requirement.”

The court found that to the extent one of the leases required indemnification, it also required

reimbursement for defense costs.

DiBuono v Abbey, LLC

(83 AD3d 650, 922 NYS2d 101 [2d Dept., 2011])

GOL 5-321 Does Not Prohibit a Party to a Lease from Being Indemnified for Its Own

Negligence

Plaintiff commenced this action against Abbey, LLC after its land was contaminated by gasoline

storage tanks on land owned by Abbey. Abbey, in turn, commenced a third-party action against

its tenant Palisades Resources, Inc. In the third-party action, Abbey alleged that Palisades

breached the lease agreement by failing to procure insurance under which Abbey was named as

an additional insured. In addition, Abbey also sought an award of contractual indemnification

against Palisades.

The Second Department held that the lease agreement required Palisades to name Abbey as an

additional insured, and the evidence submitted to the Court revealed that no such policy was

obtained by Palisades.

In addition, the Second Department also held that Abbey was entitled to an award of contractual

indemnification pursuant to the agreement in the lease. In so holding, the Court noted that GOL

5-321 does not preclude a party from being indemnified for its own negligence. Rather, GOL 5-

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321 only prohibits a party from absolving itself from liability to the injured party.

Finally, with regard to Palisades’ duty to defend and indemnify, the Court noted that Abbey must

only defend, and indemnify (if necessary) those damages sustained during the term of the lease

agreement. As such, the Court noted that Palisades is not obligated to pay for, nor defend,

damages that occurred before or after Abbey’s occupancy of the premises.

(a) Some Court’s May Require “Waiver of Subrogation” to Avoid

Application of GOL § 5-321

Ben Lee Distributors, Inc. v Halstead Harrison Partnership

(72 AD3d 715, 899 NYS2d 301 [2d Dept., 2010])

Contractual Provision Providing Indemnity to Owner/Landlord Too Broad Under General

Obligations Law § 5-321

In the instant matter, defendants sought an award of contractual indemnification for property

damage allegedly sustained at a premises they rented to plaintiff. Plaintiff, Ben Lee, opposed

said request for contractual indemnification on the basis that the indemnity clause at issue was in

violation of General Obligations Law § 5-321, and therefore void.

The Appellate Division, Second Department affirmed the Trial Court’s holding that the clause at

issue was in violation of the General Obligations Law’s prohibition of agreements which provide

indemnity for an owner or landlord’s own negligence. The Court noted that parties may choose

to allocate risk through insurance, but in doing so each such party must agree to waive

subrogation claims against the other or agree that the loss will totally be enveloped by procured

insurance.

(b) The Fourth Department Requires an “Additional Insured”

Clause

Wagner v. Ploch

(85 AD3d 1547, 925 NYS2d 273 [4th Dept., 2011])

Indemnity Clause in a Commercial Lease Voided Per GOL § 5-321

Plaintiff sustained injury while in the course of her employment with 1680 Elmwood Avenue,

Inc. (“Elmwood”). As a result, plaintiff commenced a lawsuit against the owner of the premises

where she was working. The owner was/is defendant Ploch. In response to being named in a

lawsuit, Mr. Ploch commenced a third-party action seeking contractual indemnification against

Elmwood.

Elmwood moved for summary judgment against Ploch on the basis that the contractual

indemnification clause at issue was in violation of the General Obligations Law. Essentially,

Elmwood argued that the clause was void because it provided for Ploch’s complete

indemnification even if Ploch, himself, was the negligent party. Where the indemnity clause at

issue contemplated “complete rather than partial shifting of liability from [Ploch] to

[Elmwood]”, the Fourth Department found in violation of New York Public Policy.

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In so holding, the Court noted Ploch’s argument that this was a contract negotiated at arm’s

length, between sophisticated entities, did not save the indemnity clause from being voided.

Although it did not explain why, the Fourth Department unequivocally noted that the contract

was not, contrary to Ploch’s contention, negotiated at arm’s length between sophisticated parties.

Lastly, the Court also refused to be swayed by Ploch’s argument that the existence of an

insurance procurement clause within the lease removed the indemnity clause from the reaches of

the General Obligations Law. Here, the insurance clause at issue only required Elmwood to

purchase a policy of insurance. It did not, however, require that Elmwood provide additional

insured status to Ploch on such policy of insurance. Accordingly, the Court noted that the

insurance clause did not evidence an intent to circumvent the scope of the GOL.

D. Failure to Procure Insurance May Give Rise to Indemnity Claim

LaMorte v City of New York

(107 AD3d 439, 967 NYS2d 331 [1st Dept., 2013])

Court Hints that Indemnity Provision Might Apply to Failure to Procure Claims

Plaintiff was injured while riding a bicycle in Manhattan on May 26, 2002. Second third-party

defendant Roadway Contracting (Roadway) performed road work in that spot pursuant to a

contract with second third-party plaintiff Consolidated Edison Co. (Con Ed). The contract

consisted of a term purchase order agreement (the purchase order) and a document entitled

“Standard Terms and Conditions of Construction Contracts” (the standard terms) wherein

Roadway agreed to install underground conduits and equipment boxes as needed for two years.

The standard terms contained both a contractual indemnification provision and an insurance

procurement provision. The indemnification provision required Roadway to defend and

indemnify Con Ed for any liability arising out of Roadway's work and to pay for Con Ed’s legal

expenses associated with that work. The insurance provision obligated Roadway to carry

products/completed operations liability insurance “for at least one year after completion of

performance hereunder.”

Plaintiffs sued Con Ed to recover damages for personal injuries. At trial, Con Ed took the

position that Roadway’s work had caused the accident. The jury returned a verdict for $660K in

plaintiffs' favor, apportioning liability 40% to plaintiff, 35% to Con Ed ($231K), and 25% to

Roadway ($165K). Con Ed argued it was entitled to indemnification from Roadway because

Roadway breached the contract by failing to obtain insurance naming it as an additional insured.

In opposition, Roadway took the position that assuming there was a valid contract, Roadway did

not breach the insurance procurement provision because it had no obligation to maintain

insurance one year after it completed the alleged injury-causing road work. Moreover, Con Ed

ordered them off the worksite on January 26, 2001 as their work caused a water leak and

Roadway performed no further work.

Despite the fact that the jury had apportioned 35% of the fault against Con Ed, it nonetheless

moved for full indemnification against Roadway. Although Con Ed recognized that GOL § 5-

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322.1 prohibited a party to a construction contract from being indemnified for its own

negligence, Con Ed argued that it was seeking indemnification as a remedy to Roadway’s breach

of contract.

Con Ed premised its argument on the fact that Roadway was required to provide completed

operations coverage for a period of one year after its work was completed. Such coverage was

required to name Con Ed as an additional insured. Where, as here, Con Ed was not provided

with additional insured status, it argued that it was entitled to indemnity as a contractual remedy

due to Roadway’s failure to procure and maintain proper coverage.

Roadway opposed the motion by arguing, principally, that its obligations to procure insurance

ceased when it was removed from the jobsite. As that date was more than one year prior to the

incident giving rise to the current lawsuit, it followed that Roadway owed no obligation to Con

Ed on the date of loss.

The appellate division agreed by acknowledging that Roadway performed no work at the project

site for more than a year prior to the incident. Where Roadway’s work ceased more than a year

prior, its contractual obligation to provide completed operations coverage (and name Con Ed as

an additional insured thereunder) had expired.

In so holding, the Court rejected Con Ed’s argument that the obligation ran until the completion

of the project. On the contrary, per the language of the agreement at issue, the one year time

limit began to run immediately after Roadway completed the “performance” of its work.

III. COMMON LAW INDEMNIFICATION

A. Common Law Claims Against Employer Barred by Workers’ Compensation

Section 11

McGlinchey v Vassar College

(88 AD3d 626, 931 NYS2d 503 [1st Dept., 2011])

Lack of Grave Injury = Dismissal of Common Law Indemnity Claim Against Employer

McGlinchey commenced the instant action after being injured in the course of his employment

with Kirchhoff Construction Management. Plaintiff filed suit against Vassar College,

presumably as the owner of the project where he was working at the time of the incident. Vassar

responded by filing a third-party action against Kirchhoff alleging both common-law and

contractual indemnity. Vassar then moved for summary judgment against Kirchoff on both

theories.

Kirchhoff opposed the motion and was successful in defeating Vassar’s common law indemnity

claim. Because Vassar had not proven the injury to be “grave” under Workers’ Comp. Law

Section 11, the action against Kirchhoff was barred. However, because Vassar had no common

law liability (read Labor Law Section 200 liability) to plaintiff, its claim for contractual

indemnity was entitled to be upheld. This is because the Court of Appeals has long held that

146

General Obligations Law 5-322.1 does not void an otherwise invalid contractual indemnity

provision where the proposed indemnittee is free from negligence (see, e.g., the Judlau

Contracting case).

B. If Common Law Indemnity Sought From an Employer, Movant Must

Establish Grave Injury Under Workers’ Compensation § 11

Cullin v. Makely

(80 AD3d 1042, 914 NYS2d 788 [3d Dept., 2011])

Attorney Affirmation in Opposition to “Grave Injury” Claim Was Insufficient to Defeat

Summary Judgment

Plaintiff, Ted Cullin, sustained an injury to his lower leg and ankle when he fell from a scaffold

while in the course of his employment. As a result of the incident, coupled with the fact that the

same area of Mr. Cullin’s body had been traumatically injured in a previous accident, Mr.

Cullin’s foot was amputated. The treating physician opined that the amputation was necessary

where the plaintiff was being subjected to continued pain and that other conservative treatments

were not viable options.

Armed with this evidence, defendant Makely commenced a third-party action seeking common

law indemnity from Mr. Cullin’s employer. The Court noted the well- known rule that common

law indemnification is available against an employer of an injured party so long as the injury

qualifies as a “grave injury” under Section 11 of the Workers’ Compensation Law. Here, based

upon the statements provided by Mr. Cullin’s treating physician, it was clear that the burden of

establishing a grave injury had been met. In reply, the Court noted that a self-serving attorney

affirmation on behalf of the employer was not enough to rebut the objective medical evidence

provided by Makely.

C. Common Law Indemnification Claim Must Establish (a) Lack of Negligence

on Indemnitee and (b) At Least 1% of Negligence Party from Whom

Indemnity is Sought

McCarthy v. Turner Construction Co.

(17 NY3d 369, 953 NE2d 794, 929 NYS2d 556 [2011])

Court of Appeals Rules That Vicariously Liable Owner Is Not Entitled to Common Law

Indemnification from Non-Negligent Vicariously Liable General Contractor Which Did

Not Actually Supervise Work

In McCarthy, the plaintiff sustained injury from a fall while in the course of performing his job

duties for his employer Samuel Datacom, Inc. (“Samuel”). Samuel had been retained by Linear

as the electrical subcontractor on the jobsite. Linear had previously been retained to provide

electrical services at the jobsite by the General Contractor, Gallin.

147

As a result of the incident, McCarthy commenced a suit against the owners of the building where

the incident occurred, as well as against Gallin (as the general contractor on the project).

McCarthy’s claims were based in violations of Labor Law Sections 240(1), 241(6) and 200. The

owner commenced a cross-claim against Gallin for common law indemnity on the basis that

Gallin, as the general contractor, had overall authority to supervise and direct all work at the

premises. Gallin opposed on the basis that, as it did not actually supervise, direct or control the

work, it could not be held negligent. Without active negligence, Gallin argued that it would be

improper to force Gallin to indemnify the owner under common law principles.

In a unanimous decision, the Court of Appeals agreed. Where Gallin was able to establish that it

did not provide “actual supervision and/or direction over the work,” the Court of Appeals noted

“Galin was not required to indemnify the property owners for bringing about plaintiff’s injury.”

As succinctly stated by the Court in McCarthy, the hard and fast rule for common law

indemnification is “[l]iability for indemnification may only be imposed against those parties (i.e.,

indemnitors) who exercise actual supervision” (emphasis added). As such, the Court went on

to explain that “if a party with contractual authority to direct and supervise the work at a jobsite

never exercises that authority because it subcontracted its contractual duties to an entity that

actually directed and supervised the work, a common law indemnification claim will not lie

against that party on the basis of its contractual authority alone” (emphasis supplied).

What does this mean, you ask? It means that common law claims against a general contractor

will be extinguished if, and when, the general contractor is able to extract itself from underneath

a Labor Law Section 200 claim. When taken a step further, one could (and perhaps should)

argue that if actual direction and control is necessary to establish common law indemnification, it

follows that “actual direction and control” is also required to establish common law/Labor Law

Section 200 liability. Indeed, several courts have already employed this construction. Please see

Morris v. City of New York, [1st Dept., 9/22/11], as a recent example.

Naughton, Jr. v The City of New York

(94 AD3d 1, 940 NYS2d 21 [1st Dept., 2012])

Common Law Indemnity Claim Require (1) Proof that Indemnitee Was Not Negligent and

(2) that Indemnitor Was Negligent, or at Least Supervised or Controlled the Work

Lots of good stuff in this lengthy decision from the First Department. The facts of the

surrounding incident are relatively straightforward. The City of New York retained Petrocelli to

serve as the general contractor for the renovation of the New York County Family Court

building. Petrocelli, in turn, entered into a subcontract with W&W Glass, wherein W&W Glass

agreed to perform all curtain wall, glass and stonework. W&W Glass then subcontracted the

unloading and installation of certain curtain wall panels to Metal Sales. Metal Sales employed

the plaintiff at the time of the incident.

Essentially, plaintiff was instructed by Metal Sales supervisors to ascend a stack of panels which

where bundled and sitting on a flatbed delivery truck. Although plaintiff was required to stand

15-16 feet above street level, Metal Sales denied his request for a ladder (or any other safety

device for that matter). During the course of hoisting a panel bundle from the truck to a nearby

sidewalk bridge, plaintiff was struck and knocked from the area where he was standing.

148

The resulting injuries gave rise to this instant lawsuit. Not surprisingly, plaintiff’s Labor Law §

240(1) claim was granted on summary judgment motion. The factual background leads us to a

variety of indemnity issues which the Court addressed individually.

The Appellate Division affirmed the Trial Court’s dismissal of Petrocelli’s (GC) motion for

common law indemnity against W&W Glass. While Petrocelli established that it, itself, was not

negligent, its motion failed where it could not establish negligence on the part of W&W Glass.

On the contrary, the Record established that W&W Glass was not negligent, and likewise did not

direct, supervise or control plaintiff’s work. Accordingly, there was no basis for a common law

indemnity claim

Leone v BJ’s Wholesale Club, Inc.

(89 AD3d 406, 931 NYS2d 327 [1st Dept., 2011])

Movant Must Establish Negligence Against the Party From Whom Indemnity is Sought

Plaintiff sustained injury when she slipped and fell on what had leaked from a refrigerated

merchandise case at a BJ’s Wholesale Club. As a result, the instant action was commenced

against both BJ’s (on a negligence theory) and against Killon Industries on the basis that the unit

in question was improperly designed.

Killon moved for summary judgment, therein demonstrating that there was no design defect, nor

was its failure to warn BJ’s of potential leaks a proximate cause of the injury. Where, as here,

there was no negligence on behalf of Killon, it followed that co-defendant BJ’s cross-claims for

common law indemnification likewise failed.

D. No Basis for Common Law Indemnity Claim Where there is No Allegation of

Vicarious Liability

Great American Insurance Companies v. Bearcat Financial Services, Inc.

(90 AD3d 533, 934 NYS2d 413 [1st Dept., 2011])

No Vicarious Liability Allegation = No Basis for Third Party Common Law Claim

Great American commenced this action, in part, against third-party defendant Hayes as a result

of Hayes’ own wrongdoing. In response, Hayes commenced a third-party action seeking

common law indemnification against another party, Dresdner. Dresdner moved to dismiss the

common law claim on the basis that the main-party action filed by Great American only sought

to recover for actions committed solely by Hayes. Accordingly, where the only basis for liability

against Hayes was his own liability, it was impossible for a claim of common law

indemnification to ripen.

Interesting enough standing alone, but the fact that Hayes’ counsel was actually sanctioned as a

result of bringing the third-party action makes this decision especially noteworthy. In the

opinion of the trial court, and affirmed by the First Department, Hayes’ third-party action

seeking a remedy that was impossible to obtain was patently frivolous.

Torres v 63 Perry Realty, LLC

(123 A.D.3d 9111 N.Y.S.3d 142 [2nd

Dept. 2014])

149

Common Law Indemnification Claim Dismissed Where there is No Vicarious Liability

Claim; Common Law Contribution Claim Survives Where Third-Party Defendant may

have Contributed to the Cause of the Defective Condition Plaintiff sustained injury after he slipped on a marble landing at defendant’s premises. The

marble landing was installed at the premises by third-party defendant Suli approximately 22

months prior to the incident. As part of the third-party action, 63 Perry sought common law and

contractual indemnification from Suli, as well as alleging a breach of Suli’s obligation to procure

insurance.

Suli moved to dismiss the common law indemnification claim by arguing that plaintiff only had

direct claims of negligence against 63 Perry. Because 63 Perry could not be vicariously liable to

plaintiff, it followed that 63 Perry would never have a viable claim for common law

indemnification.

Moreover, the contractual indemnity claim, as well as the failure to procure coverage claim, were

both dismissed where, as here, 63 Perry could not produce an agreement containing triggering

language. Rather, it only produced a 2005 purchase order which did not contain an insurance

procurement clause, or sufficient indemnity language.

Finally, the Appellate Division noted that 63 Perry’s claim for contribution survived. The court

noted that traditionally a breach of contract will not impose tort liability for damages to a non-

contracting party. However, an exception to that general rule is created where the party from

whom contribution is sought “launches an instrument of harm or creates or exacerbates a

hazardous condition.” In the instant case, 63 Perry’s expert opined that the marble slab upon

which plaintiff fell was defectively installed, thus leading to the condition giving rise to the

claim. Based upon that opinion, the Court found a question of fact relative to Suli’s potential

negligence.

150

:J:NOEMNIFiCATION AGREEMENT !. . :.

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To the'. ,fullest '.extbnt p~rmi.tted by'law; the. Subcontra<;.t,orshall. indemnifY: and hoi4'ha.rn1less the'Cfmtractor' and the Owner. and' each of. their ciffi'cers, directcirs~'~mployees,and agents from lUld against, any and aJ:l claims,' damages'; ~osses and exp~iis'es~'includingbut not limited to attorney.' s' fees, for any' actual or 'alleged inj,Ury to ~yperson' Dr' ." ..

persons', inclu~g death, or ~amage to o,r.ciestructionof proper:fy 'arising out of-any act or '.omission on ,thepart of the Subcontractor, itsempl oyees;',agenis or subcontractors for' any"work 01' services performed on behalf of the' Owner or Contractor by the-Subcontractor.

In the event 8.J;ii provision (jf this ':i\g~eeme:ritis held to be unenfo~ceable 'or voidable',by a .court,. the enforceability, of the remaining provisions s~aQ,not be' a£fe~ted.aD:d, in lieu ofsuch unenforceaple or voidable provision, 'there 'shall'be added automatically provisionsE,lS similar in ~erms as may. '!?eenforceable under applicable 'law.

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IN WITNES~',WBEREO:F, the ;'arties hereto' hav~, ~x~uted this Agreement, ~ of the' ,Effective Dat~..." . ;" ,

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All t),f. 'tM 8.YQqO~tr'ilc.t, DO'quments are' avalia'bre,for !3UeCONJRAt;TOR'S review;,at: .B.Hl's:f:r.r,arn 'pt,nQe., In ~1ie even.t',ef 'oot'lfll.ot":between ;any of'.t~e doct:lmentEf, ,dr.aWlh$$ andlot-:specIfloatJons., tme,,SUSG()N1RACTOR 'shEil!, be bciur.ld ~Y'thri ,m'QFa, iltr.r.n'g\3:p~ p~pv.:I$:10t1, ,rE}g~rp~es,s'pf ',w.~eth~f~in,!nofeasa;lh cDsl',reaL/lts,' . .

11" $c~l.adtiJ.e: .TlmB' Is :of tnEl ~$&nt;ei; •Th,s t>fo]ec't' ,mv,$t ,be ~u'tj~fafi.tl.~lIybQlTl~l(l.i~i nQ .Igtl?f thi'fnS'e;ptembl1r 1,.,"20Q9, ,and must'meet' nt:]alcOIT\plfitlon' 'no la'ter1haJi ~,O da'y,s. ¥l.'ft'eHlI1;lst'an:fla(,c~mpre(/.on. :SUs:C:b'tIltf.{;i\C':tot{ wJW:ciPP!dinatEdts ,wo.rR';s'o as,:(6 ~~e"o6iiip),ElIEli;lby :fliI~'~e.fe'indlcafed,on t " ,pro.gfess,sohe'ClUle,'stlM:raili1ir.e:liHne ;ovetallco1.tipiletlon tlflfs.,S'HI may' make 'r.easona oj's:' ad.J.\istmenfs.: ,to. the: pr4l9ress' 'slj'f.l~,CJ.ulI~,,,r,o.,pp.~f8:rrl'iiiW :W,gr.}<flr;lf.!1,sQcelerale' :the, 66'mp'IElllo'r.l,. ef 'rtiake up I'Q~tfi,mel f'(trthetl:n'~r,~"jSUBG'GN:f.R.A'Qrr:OR ,l\,M~1Ired,0~nliex ~h'e prq~r:ess:iQr o.tbsr 5MbcQllrta_G.fpr~. ~h:i;;l lrH3K.(;},I't ,jt!? t6~p"qr'l~JpIUlY'to.' 'Wq~~I~

'c'onjwnd\[oi:) With' Q,ftl:o/.t :s.q~aQ~tr:aQ.to'rg'wnen 'c.<Q1T'Ir.I~dJi9it,S Wqr.K, I.t 'IS' :n:9TEf~, IMt\ 'It In th'e.ppi,nl,IlIi:qf ~HI" ~h6:?Uf.3:00N:rR:N'(J.Of1.doe;B D9! k/3ep ~~Q~ .wltn ~he~p~t).$truo~I~t;lp,b/;\~,~L!IET\",or' p~tf(jriJj,~;Wrj,t.k\Ynlcih dp'!'i(l '(TQt'm!?!i1!the ~HJ(?,QlfJ:e'~,qu.a!ltv~enq f~f1~ to ol('1K,e,~gtll';ln ,to 0GWre!Jtt'he'?e epncl1rlonl? 'WiI~)f1 ;l;B :hp~ntwr!f!e.n,Dotr.ql'l,'b~'SJ-I):,:,Sf:j.I ,ml'lyt~rm!n,ate'filf~~!3ub~Pl!lraot, Ih

:Wh't;lla, Qf .11'\/il~rt i'l(l'd ,c.6tT)ple:te fh,e ,r~(.11aJllI1.1S';WOti~. 0r those pGrtl'ons, EHI 'bas, elios,en' ,to,p~'r'f9r,IT],:r~,~nl~p'qV~ry,9qqe ,t0~'wprk !s :oorpplete and' :B,HI. ry~~ r.e,c.elvsQ. ,e~Y,f:i:i,etit! :F~r:rtf.sq!3~,0NTRAcTOR wl!! ,l;J:e'p~1i:/,the .b£1/ancre 'Of H's:SVbGlCln.!rad 'l1l:J'loumt rass- ,IRe. GlOS! 'll'\c.urreC/'Py. Sfi! In; oompl'etlt:lf] $.LJ,8C0 NTtMCTOR"'S' ',wor:k, J'[ ,the amo:i.Jnt, '/6: ,ddi~i~l.etethe,s,t:J.Elo(j'fi[ffiA'D::rOJ~:t$ SQO~:e of wor.1{ -exceeds: fh.e, :b'a'lanc(;l' :af ~hra ,S.,i.ib,d!!in1lE(~f :tb:t;l'f.) '(hlil'

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:~db.(t6!'l,lr:'a,dtq~t1 Apg,JT9.E\tiR'tT for P.,~ym'ent;, all':0J~'1ms must be r.e-subr.nlttaQ by :~rup'dQn'ti'~cloras,eu~att~,9l}f~iI~Dt' WIt!), ~yen~.f;~pllcatlon' 10t Payment 1M ord.er .for ,them to rem,aln preser'v,ed;fa,I!<M ~Q..r.~~~~(TlJt ~s'ha'lI 'pe ,de,emaG! .ana' snen oo't:isfltl.1l~ ,:s' l/It~!v.eir. :th~i:lo:t , 1M fO(I:lgQ'\J:)~t:r'!p11f.1i1~tl~'1rJ:~.q,ulh:~ment6 are, a ,coni:fJtlon :pl:eceper:rt'lp the 's.s$ertlp~ ,rJr :l;l,n51 qlalths) ,an~' ar!?,aC!dltlonal tCl.any,'(i),th,er r~q'ul,re.m,eJiil3, (Cit' G)~lms tl'O,t1flcE);tlor\,.aoo ;f:10p'rr1J~SJ9.1'\p,roVfd)3d:l'Or In the,

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!l~ .lha even'! t.hEft,tlis.' pw.ti;:l'('fail~'IGf'p!;lY :?H.'L, in who.le ,or 'In panll any 'su'rns:, ~ue: l1noer :the:,g~h~f~r:C9).i'.(r,?9.tvynlGH."$t:!rn'» 'J.rl'~j~~e'~WI1:s"as maY' be >due ,10:SUBtdNTRAGTvOB JtQm .13:HI,';$,!)$0,~~~TRAgT'QIi, !'l~~.lJ.9V;I~rl~esIElnd' :Ejgr.ees' ~ha(:11~sha'JI ~oQ,ep1Jn f\.01 ~a'tl~f~pt!C31i,(j~ I,t~:t,la~h'i~1lt,:rl9'hj~ ''the Ii'lsR't9,nrr:f\3nf 'from' BH.I: to' 'StlBO'ONT.RACTQ.R of ,I'll) 9t :BHI..'~' hs.\1 r1gh,~~:'ljlg:al,tM, Own,er,; 'to: tfi:~'~,xte:nt rof''!b.e "ul::lp,ald',s),m'; .d,l,j~,to. eUSoQN,rn.;t>;:G.TOR, 8Hl: ~h,£!!I:rn~Ejll,r~'?pyql~ "oooperate w.llh ,sU B'COKITRACTOR In/th.(3, p,tJ,rsWlt Df ~LJ,C/:la,Elslg'D,8;d' IJ[?Q' r!90.t? '~m.d,'13h'flJI' .e,xe.cule .such, oth,e.r: 'and fur'ther ,d6c4'i:r)ehJs' :a~ l'0'E\y, , fiff ,IlElC~S6'ary 'tp', :p.errnlt,SL;JBCONTRACTOR. Iro: pursue, StjOR lI~n rElr.n.e,~y. .c;l:).!3P0!'l'f~AGTQR "E1gT~\3~ ,(hat ft, wJI/.eone))'!:ln ;sallsfat<'tlor.l' ,Qf l,?f,ly ;l'u}ii,s ..g\.!,e,ltlror,h sH,I ,In ~~ch'qltuatlo:n13 'Suc'h' sums, ~s may De',recovered ,from 'thf:f .DWr.1~~ th'rop~'h'the, 'p'qr.,~ult'6'fth~ LJI'Hd Law r\9mlJ~j~s,' '

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y;, ::$ntllM :lOe. '(ji:(J.f1l~0NTIM~rr,Q.:(;I.'::~~,:qr.:~~~l~~~Wp.~Jhg.:~;~1~9M'9t ~lsr.q'{:l'~d.nh;P'~r((Jf.mJ.n(1:i:'t~~.:':~f~J;i~t.(Aj~?:~t}~-T,t(\!Jr(~~~~~..~~:~aJl:¥./?JT,J.P:W)~f.t~:;..' ..... ~~~!fW~r.~:;~;~[tlbtrJlil1.;l;\a.!loweg rp E}HJ.:t?: t'9.W;, ,~~J;l;~w.:p(;!,,. ,~~,q~l~\7.1gV.$':9,r~~!?r.J.lUI~Hlilr.l.\s,:t}~,(ee.Wl;l)j~.iwJ.l~',ml'l.pwmer,Q1';,tff.ore;: ..th:EiiQ ;'t'l:\~~\\gJ ~~JM9Jl~iiY$,.:?:~<?r.r~'~f;l:pJ;j~ft:1nwrf~I?r.P,$.(\i;.:~t~~rlt~o,b.~JI'pn.).Yl~hl.cf.1.l~ .<i~i'Lls.ihg,oJ 1$.:rhr.\'i~lafu.i~~\:tJ:i: \1"AJ:i.~I1.'~j,J~/j:dti'l.~y:c>f ;j;I!p:r.~tl>.~,q~;'f.w.h'j.CM\;i~f~I~,~~~~).,~~'ptl,WSHt rtt' \i:(:~itJDrj pro ithl?;.~~'ve<:it~d.fi$\.1~n,~9'qn,{i~~litl;!;(~t;{J;\ ;I,~~:1Ir9ljt~{1.~~$,~h~~~J~I'r;;;f~tfhlliwh~ :ati'd :r~.wfl~t:ti3Elp6ip.t~ m:r3}.r.~~r.rclltl!'JJji1~.:Qp.~?lb~!'P:t' J.l.oS: '~'tQr!3I,{te.f:l;\tJ~, ';t~.!Q~.-q~~':qgl~~,

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StJPPLEMt:NTAL.~COnDITIQNS 'SJ,AGREEMEMTS I.p.r,eject No;...... I l')Ii r i ,. rP~91,',ri .cf ~.p'p.~~$$

. ' .. ~<jIi.Yf~,lp.c~mPly~It!~.}h.l~.'t~'r~~:(.3); d~y~'h'litl,qtl; r.£;l~~tr~r.ne'ryt;s!i~'l!:~!il.Q~~,ry1ed.a:Walv.er.t;>:r

'!Ite ~.u~Q9N.'m,ACTo.R,'.S: QI?,iO! '/qr ,89'dn)onal tlm~,'anGf ~h.e,JSUBCbNTRAGWR, shan. f9rsy,er ge' Darr.('lq from.se.eking"atidfflonal:cC:Jmpen.satfom fOr. Its :claim;

'.' ..". .', ..... "',,' ".,' . .' @)!\i~'t.iili'~~RAC'fOf't.ILlaKe:;,~.o68;fl~&"S,~.~''*.a~r.tHt~s :~- ". "."'~.s.tmtcf.;tIi.i:l:t:$:~f.ig~AAi.~e.a~t;jJilt.fl.€:%-=tf)o;#1~.~Fe~meFi'k:l.r..,.. I'." ,

rt~.~~.Eii~f.$'Wp,te.:d;:'" (~:~<,o/~~'1" .,.' ": ,';. . ?:,"'iGUARANTY. . " ".. f"'j;h~ '. U'Q~er9.J9/)E19 ,,~gr.ees. td p8 petspn~'IIy'. P:o'liQ9. :1),9 ::~nCf.. ,\.0a.~$'l:jtn(\l' ,q.l ~f. tt;le.'$U,SCO.N!rR.MrQ~'.~'9'~JlQ~tI90S;'.~~Q~(qe~f(qtJti, (lrilil'. ~~l.?'qr:in~eEj~t,'F.~.rth;~r(')l.gr~I'!~11(lJ1per.gfgjf:l.~d rag.r.e~s lq ~:e.rs~n~I&'lhtleJD\1Jry:.and Hb!g' }:\ar.rt,JJ~:s~W'U, .trgaib!:it'.9nY'cjFlm~gj'e!s Enl 'll'lflY.I,nqur '/r.e:;l\:1ll1ng tmrn ~n)(bte'adh' .of tbls:.agre~r:t1~ntQy";}I1~ ql1spqN:r . 9TPR: .

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SUBCONTRACTOR:

.SUBCONTRACTAll Invoices must refertp Projec~No .

• WE? Project Title:proj~ct No.1.

AnN:

Telephone: • . Subcontract No.:

Previous Subcontract Amt.: . $

p..

Fax: Amt. Of this Subcontract. $ , . i& i

: '

T o~al Subcontract Aint.i " .J$L...:-~~~.J!!!!!!!""'t.

SCOPE OF WORK TO BE .PERFORMED: .

[9.~.~ .:......•..., :

VI"

. "'t5::li:::W., .

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$4,320.00 each.fora total of $8,640.00$ 975.00 each.fote total of $1 ,950.00PrIce to furnish., erect & dismantle scaffold w/4 wei3k rentaf

Rental chi:u-ge for an additional 4 weeks .

.. Exclusions: NONE .

a IwHi supply, :erect and dismariiie a complete OSHA:coropliant scaffold for tlietwo 'gabled ~lids.There \Ifill be .Iadder access to a tiered planked deck on the top head bar .of each step .In. ..: 'There will be one level of 20"sidewall bracKets :also planked and a complete gU8rP rail system on the top.outsid~ .

. perimeter: . ' : : .' .' .

Accepted ih Accorda,nce with llie:Condltions and.Agreements Printed on the revers~ Side.and ihe ...Supplemental Conditions and Agreement$~

.. RETAIN COpy AND RETURN ORIGINAL TO• I ... <. c.'.'

t

- -e-XHtBIT-;. :--."

Sign.ature: ..

Date: ...

By:

ntle: ..

Company: . .Jill••••• '•.• ! ,*,1Iia-

.Pagelof1.

_~ .-_iIIllIiIlUI.L.

June. 2009

Date:

Signature: .

By:

Company.:

Accepted this 29tll day of

. Title:

165

.' .... . GONDmONS AND AGREEMENTS'1. !1'e SVBC?N!MCTOR .shalI !Io all wom.in aeeordaneo w.i1ht1ie draWings, plans, . (govein. . . .specifications, bIdding dOCUll1ontsand addenda thereto (hereinafter ",furred to lIS the PLANS) 13 The SUBCON'r1U\CTOR hall fl all 'a1s' '.' . . '.which are to be added 00andform ~part o~tbJs agre~em ie thi.sSUBC01'ITR:ACT.The word co:u,ection v.ith, the perform.an~ ol:£;. ~UB~o~du;:~ a:;,~I:~~v~'::e:lr hili

byWO: ;~~e:ul th;::, :mal, ~~~ Wlehin~ry, eqwpment and o?,erltemfrequjred previousJ'"yments received &0",..... and shall furnish satisfactory'evidenco when Y. '. ~~ e .w, an e construction plan~ 1<>ols,eqUlpmenl, materials, reques1ed.~ to verifYcompllanee with tho above r uirem•••ur". . '.

SCl'Vleesandfuell!tiesne~llIfu11YCOmpJyingwithth.requiremopt,ofthePI..ANSandthi" 14. In ciln')ling out Its wQrI:SUBCONTRACTOR shaU:Ire all ncc;"'SlUy 'utions'rosubcontract. All mcldenlal womreasona"rnecem,y to eo~lete this SUBCONTRACT sh;ill properly proteotthe finished work of other trades from.dlll1lagescaused b hiS ::tiOllSb. donohy the SUBCONT)l.ACTORnotwitl1$tanc!!"S the samo may hava be.n omiUedfromtho IS. TI,e SUBCONTRACTOR sball takt: aUreasonable safei)' preeautio"; willi ~••paot ti, /Ji'P~S The p~onn2llpe of ~ work.or matenals used shall be sa~sfilctory 10 ••• WORK. shall comply willi aDsafety measures inhiat.d by •••••• and wilh aIlappllcable lllWll6\l" SUBCOtrRA~~~~.~ ~ ~~"'d ") llD?the Owner.. ordinanccll, rule" 'feguUuioDSand 'orderi; ofllny public authority for !he. safety. of persons 0;'

. repr It.... an,oPPortnmty 10earefully exall':"'e the property and shall hold lannles. for any fines, dela)'llllt other loss••..il1CUl)'CdinPLANS. and the SUBCO~CT lllld hIlS.fulJr .~W\1Jlled its~lf with the. soil coolliiions, connecnon with infractions of suoh' laws, Ordinances, nil•• , Il!guJntion. or orders:. ThoobstrucbODS,.grad/lS, e~c~vaticn and oth~r .condiboDS at tho SIte of. the WORK and illl SUBCONTRACTOR, shaD report within .24 hours any UVWy .to any' of lbeS,:,"01Ul~gs, ~ that ,t bas nuulc: all invesligatj,?", essential to a full undcrstandlagof the SUBCONTRACTOR's employees at l1rissite. . .. .' .' .difficll1l1eswhich may be ecco~=d in pe",?=g the WORK. SUBCONTRACTOR win 16. The SlJBCONTRACTO:R.R1wl cocpernto with •••• and oilie( CONTRACTORS endrogmtllcs., of any suoh conditinns relovatlt to lb•. WORK, the' ,lie of t)J.eWORK, or It.!! SUBCONTRActoRS, $hnllparticipate in the preparatiollofcoordiriated drawicgs in the ~

. SIUl'O\ll1dingsiOompl~telbeWORK:on lite face of lhis SUBCONTRACT l!l!dassume .ColI!'l'd of congesbon. sball advise"'" of any illterferenec witb"other CONTRACTORS d'corople!£responsiblluy foc ,,?wpletion o~lb. ~OfUC lUIderany sucltcondiuQllllWbichDlayexist SUBCONTRACTORS, sIuillllMi91in scbaduling and performing its work to avoid contli:;'r

. al the ~le.of the WORK or Its .urrow,diilgs ~~ aU ,J.ks ~ conn""tion therewilb. In addition. interl'e=ce with the wnrl<of othOlllIllld,hail promptly s.broit Shopdrawings and ~Je •••therelo,SUJ?CO~RA~Rrcpr~ntsthal1t:sfullyquali1i&dandablelDdothcWORK'lll1d required...... .' '.. • .'.ass~e:all nsks II? C?nneobcn therew>th. III .9di~.Qn thereto, SUBC9~CTOR ",presents 17, The SUBCONTRACTOR shall give all DOnceSand comply with1iIIlaw.;'otdiilnn=. rules-,that It IS fully quaJi.?e:J and ?ble 10 '!". the WORK in ac<;ordanceW1ih.~ lenns of this rcgulalions and orders 0~2IlYpublic authprity bearirig 00 the performan.e.ofthe WQIU( under .SUBCONTRACT Wllhinlbe time ~fi~ TIME IS OF -r:re ES:'!ENCE. . , thls SUBCONTRACT. The SUBCONTRAC'l'QR shall &eourolllld pay Illlpermits, ~, and '2. The SUBCONTRACTOR shaJJsabs!'y trDlIledlatelyany HellDr.ODCUIIlbrancewhich,beoau.se 'licenses lleaes!lll!,)lfor lhe exeeution of the .wORK described in the PLANS and ConltBetof any acl. or default of the SUBCONTRACTOR is filed against the premise)' 'and <hall Doewnents os aPplicable to this SUBCONTRACT. .indOllllillYand s.ve •••• hannJ•• sagainsr all resulting loss and expenses,.inchlt!in<:al1cmey's 18. The SUBCONTRACTOR agrees tbatall WORK shall be done subject to the final .pproValfoos.. . of~ t!lllOwner, or bia.alienl; '. '. . . .3. The SUBCONTRAc.r0!t.shaD comply with the proyi!ifoos of lI1lfuderal, Sial. and local 19. Tho SUBCONTRACTOR will oot iiisctimiml1e ag.mst any i:!nployee. nqppllcanbi fQrtaxes and all required frin¥e ~~t.payments lISncW or hereafter ;'1' force, applYingto the empIo)'DlOllIba=e ofrece;llfee<!, O<)lor,aga, sax, or lllltional.origin,1UI0wi'll tOkellIlU1i>ativeWORK and accep~ exclUSIveliabrl~tyand wilIllold harmless for Ill))'contributions 'or action to insure lbal.all.src Idl'orded equal employment opportuni~es .wiUI.Q'!l.disorilnin'ution

. taxes Wllhrospeel to lba WORK payable lUlderany sucb laws and labor agreemOIlts. . because of race, creed, color, age,.SOll.oroutional origin,SUBCONTRACTQRwill cbmplYwitby;. 4. To the fullest ek1en! pennitt.e.dby law, the SUBCONTRACTOR WIll.indemnilY,.bold all provisions ofExeeutlve Order 11246 cfSeplWJlbar 24,1955, lUIdofthe rula•• regulation., . .' ..-1\" ~~ss and dofej.!d~. agaJnsl any and alllosso., clalnu, acti0n:".delDlinds,~.~~, and releV~1 cu:delSome SecretaI)' cf Labor. .

lIablUUDSor expenses, mcl\Ulinghut llnt llmIted to atton.lCy's fees, by reason of the llabil,ty .20. The uU. to aUWORK oontemplaled and in lbe cours.of.construction IIIthe ,ite and of all. Imposed bylaw or othmyj:se upon for damages hocause of bodily i'1iuries, including malerials whlcb ore delivered and .Iored at.the site'and wlllcl1'will.'lleCessaruybelncor:p~t!d in'

dealh •. susts.ined at IIlJYtime by any perBOOor JlOTSOJUl.ino1udmgSUBCON!McrOR'S. the building,:as hctween: lbe Owner.sod •••••• or SUBCoNTRACTO&; shall be in Ilt~employees. agents orrepreselltatives; or b.ecause of damage 10property iol:Judllg loss of use Owncr. Ri'll<of loss for,j)j WORK conlompl8ted and in the'course of construction of the sile 8!1dtheroo~ llrisingdirectb: or indirectly out of the performnuce of SUBlXlN'TRACTOR'S work or . of nil materials. which' are delivered and stored. at' 11>eaile ,hall 'remain Witli: thofrom aclS' or CmiSSIOnson tlie part of .the SUBCONTRACfO its employeeS, age~ts or . SUBCONTRACTOR until.r.cept>lhle b~ and lbe.Owner. This llrtielc shaDgovern the .representatives. In e event sue mdemnity p'1JYldodabove ismade void or othei;vi•• impaired pasSing.of title of all WORK BIld DlateriaJs affected; theteby. aOJ' other provision in thisby any law QonlrOllingthe construction. cf.this. provisIon, .sueh indemoity &ball.bedeemed to . agreement to th~contrary nolwiUlStanding. . . . . .confomllo.the indemnity permitted by such law. SUBCONTRACTOR sllll11not he req&od to .21. All guarantee. reeeivnd by tho SUBCONTRACTOR from llJlllerial dealers equipment

. iit!Jemul.'i'lIIld save hannJess_on' ..,.,urit ot and 10 the oxtect of, the nOll'li.neool makers, or SUBCONTRACTORS shaUba app<ovedbythaSUBC.ONTRAcrO~ and: ,.Its agents or employees,nctwl lS1lIO g thc oregomg. . Owner, but sbaDhe IDlIdedii-oetl)'to the Owner. Such guaraJlt•• s;ho~eYer shall be emorced liy.

5. The 'lOR shall maintain al Its 'OWO 0 the fcllowicg inSOflUlCO lbe SUBCONTRACTOR if CCCllSionsrlses. If the IIUlkers.oflhe guaraJllees fail to fulfill thoisrequireroen"', .or the insurance requifollieot oalled .for in the 'PLAN .if groater, tO~le .guarantee obligatiocs,l1Dl' coSts i1ie~d by the ~er in connection therewith.shaD be anhe .SUBCONTRACTOR and rhe.Own". and tha SUBCONTRACTOR~haD.file'W1th expe1lBeof'SUBCONTRACTOR. '.' '.. . .

. •••••• prior to comenoing worli po ,Site,a properly executed "Certifioate arJnw",," llS 22. ~ elects to termiilat.tho WORK, itmay do so upon l'I~o(2)'eal~dsr daxs' writtenevidenoo that tho required ooversges lIr$:In. force. . Failure on the part of the nolico to:lbe "SUBCONTRACTOR. In the event cf.te~Clll1le S~CONTRA.c:T0R shallSUBCONTRACTOR to file sai4 c.erti1lc~' shall not constilUte a WOlVerb~. Th. prepare a SlaICmeDt.ofCosts.to!h. date oftermilllltiou, plus all ohligations incurredin themler""tfollowing coverages os'outlmed sreminimuuc . of the.WORK but Dotyet.due. . . , .

1. S1Jltutof)'y,'orkmon's Compensation. Coverngo. . .. '23.,lf n petition shall be"filed, either by or, againSt:the SUBCONTRACTOR, ill !iny~urt or .2. Bodily inJary liabiliiy in thelUDDuntofSl,OOO,OOOJor.ach OCCDrrenCewith XCV pursuao' to. any statute, .whether in bankruptcy,.insolvency,.or ,imilar proceediilg, or if.th •..

waiv.r. if spplicable. The generw ageregate is per job llmIt and pel'lccation. $VBCONiRACTOR should innke an lISsipcnt foi'the benefit of creditors, otif a receiver of .3. Property daJnage liability in thc amount of $1,00.0,000 for •• oll ocoun'enCewith any property of lbe SUBC,?N1.'RAC.TORbe appointed In any suit or proceeding, or If the

. waived and btoad for form.endorsemont. ." SUBCONTRActOR should. pentsteotly or repeatedly refuse 00.or. fltil to supply enough4. Comprehensive automoblle bodily injUl)'liability al $1,000,000for eacbpelSoPand properly ,killed worlaJ,let\,proper materials orrefuse 10carry out theWORK;" l\CCOrdancewith

$1 000,000 for each accident, .. . . lbeiJ,teotofUle PLANS, orif'ljJe SUBCONTR.ACTOR should fJillto Illllkeprompt payment to5. Cdmprebensive autorooblleproperty damage liability of $500,000. SUB-SUBCONTRACTORS., or for mat,;ria] or lobor, or persisteniJydisragard laws,'onliiumeeo;6. Umhrella liability coverage in 11.eamount of,$2,OPO.OOO. 'or otherwise!le I,'uillyofa subslaDtia1yiolationofanyprovisfon of this SUBCONTRACT, then7-. benam' 'tiona!lnsurnd;$UBCONTRAcioR'spoUciessball __ .may, after'giving jhe.SUBCONTRACTORtWo (2) calcncl:ardoys' written nolice.

be nmary, and sball WI coverage os . Oll os 0 termiDntetbeemploymont of tho SUBCONTRACTOR and possossiDnoftbeptelilises.andofallSUB . OR. pee OR .ffiii>fiedboretc as £Xhi6Jl.'A' . materials, ll>ols, and "I'pliancoS t!IerOOlland finish WORK by whatever.method it .maydee.m

6. Payments will be made monlh1yOll1lOCOuntto.90% of the cost of the :-vcm in plae''''"ld O)Cpedlent..'... ., . . . . :.' .. '..materials suitably stored on thaslte wit1lin,~tea$.onnbleperiod oClimeafl.••.approvaloftheWOlk In llJeeveotthe SUBCONTRACTOR shall co~ the_sltu.ti?n..whichbe;' caw;ed furnobeeby__ .nd funds ha"e heeD.reoeived from tho Owner or his agent. Plnal and fu)l paym?nt : of caneeUntion tobe.gi~ by •••. as,above prov,ded thr"~.wm0le pen~ oftwo.(2)'d~swiU.bemade after the SUBCONTRACTOR has ocmpleted aU'WOru;: and repah~, propert~ from !he date of the r~pt (Ifsuob DObce.the nause of canc.Uation shall blo.de"emed."",.;vad,and . .submitted.1ll1documenllltian and'both the WORK~d repairs and the documentnJlonis nocepted thi, SUBCONTRACT shall conUnoo.in effect iD.the samo'lDl\Illler •.,. tbough. such ~.use' of .".byPeI:}nno and iheOwner and !inal paymeothas'heeD. received by""..: ~eeU!llion bad net e:dsted.'-, bowever; Te$O;rvingits ri,gblto damai\es for breilch ofa .'.7, Tho Sun.CON1.1lACTOR.ab811 •• sumerespon.ibilltx for:my dall1llges;'liquidated'or provIsion oftlusSUBCONTltACT:. ..' '.' . ''''. .. . :,.... ..oiherw;so, assessed by the Owner.aga{nst......-esuliing from any dbley '" the.ocmplctlODtlf . lothe eve.o.t.of the lermlnation ofJhe emplOYJ<loalqf a,e SUBCONJll.ACTOR as proVIdedfor,the wonx whicb' delayVl'llSeau...,.j.by the .SUB.CONTRACTOR. .in the preceding .paragraph, !he.S~CONTRACTOR shaDprepare a scbedule of costS to that&•. __ reservo' the. right roo oudit ..aU records audbooks of ~,1Jlt of. the . date, similar to the wocthly request fo, progress pnym'<llta, les. paymeots received. from. SUBCONTRACTOR of any of theWOjUi. of this SUBC01'ITRACT, inoludinil'chan~ orders, ••••• , plus all cbl!gutionn incwreddireody in the.int~ests.ofthe~roject but.nol yet~aid orto bo~op;,ed on a cos1oftbe WO~ p!'"'. ~.eb?sis.' f>,' ~ '.. due for p.Yll1'.n~;but oot irlel~gany portion of the SUBCON}'RACTO:res f~ or'~verhead;.9. 'rhe SUBCONTRACTOR shaDno1"S1gD this SUBCONTRACT or IDlYamouot$due ot to The complOllonoftlle.rem~der.oflbe WOIU( will.b•.aeoomphsbed by •••••• Orlts agents,..!=Ome due nereunder wilhout consent o~:nor SUBQONTRACl'OR th, whole oflhi. Conslrul:tion .equipment ~ Ibe .site balQQgillgto tM.SUBCqNIRACTQ~ 'may be used by' .. SUBCOlf!RACT wilbont'the Writtenconsent or..- nor t\uther SUBCONTRACTportions __ or its agen~ or successor $UBCONTRACTO~ UIlhl1bepOropleoon of Ihe WOIU(.of IbeSUBCONTRACT without written notific,ltion to.... Sbculd the expeDSOSso iuOIUl'edby ~ in_complcting the WORK Ol'oeed the -differen"" .1'0. This agreemenl i.bin<fu,~njlOlllbepartie... and.their sUClOOSSors. . 'between lbemax.lmum S.UBC0NTRA,CT~ce, ~~cluding fec:s,lIIldlbe tctalamolUlt Paid to the .'11'. This agrooment shaJJ be eqnstrued ~ .ceordaneo with tho Ja~ of th, state.in which the SUBCONTRAcrOR;th~ S~CONTRACTOR shall.pay the ~ccas \0'-' Sbould.the '. ..

.. project is pafOIl!'ed. . ". . ." .xpen...•• be less than thc di.fl'e•.•nce~~aD not be obligaled)~ the SUBCON:1'RA00R ...

(

12. The SUBCONTRACTOR slll\Ube bOundto•••• by th.terms oftliis.Agreement andof in.anyamount; . '.. : ... '. . : -:.' .'... ,.. the Plans aud Contract "Doeumcots'between the OWner and""" and shall assume toward . 24, The SUBCONTRAcrO~ shall at Its own expense, comply WId,.aD.the reqwrements of the .'. ~I tho Obligations..and responsibilities .whiob......, by these documents, assumes' p.LANS for me preparation and submissi.on ror "I'provaJ. of drawicgs of aU killds, llIImples, .

. _ tow..rd the Owner, and shaDhave the benefit cf all right.!!,,emcdies and redross ~. certificates, eta., covering Ibo.WORK. PerfOITlljUlll~'bythe SVBCONTllACT.O~ of soy wo.rkwhich' ••••• by those dor.ument$,has agliinst the :Owner, insofur as appUe,able10 this .bofor" required related approvals bavc been issued shall be. althe SUBCON'rRACTOR's'sCle

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168

NEW YORK STATE BAR ASSOCIATION

SEMINAR ON LABOR LAW CLAIMS, COVERAGE & LITIGATION

PART IV: Insurance Coverage:

Additional, Horizontal, Vertical or Some Other Way

December 15, 2016

Carolyn B. George, Esq. FRIEDMAN, HIRSCHEN & MILLER, LLP 100 Great Oaks Blvd – Suite 124

Albany, New York 12203 cgeorge@friedmanhirshen.com

518-377-2225

David M. Knapp, Esq. WARD GREENBERG HELLER & REIDY, LLP

1800 Bausch & Lomb Place Rochester, New York 14604

dknapp@wardgreenberg.com 585-454-0700

Kristin V. Gallagher, Esq. CARROLL MCNULTY KULL LLC

120 Mountain View Boulevard Basking Ridge, New Jersey

kgallagher@cmk.com 908-848-6300

Kevin R. Van Duser, Esq. Michael C. Boisvert

SUGARMAN LAW FIRM LLP 211 West Jefferson Street Syracuse, New York 13202

kvanduser@sugarmanlaw.com mboisvert@sugarmanlaw.com

315-362-8939

169

I. ADDITIONAL INSURED ENDORSEMENTS & COVERAGE

Triggering Additional Insured Coverage

Blanket versus Scheduled Endorsements. Scheduled additional insured endorsements confer

additional insured coverage on a specified entity or individual. In contrast, blanket additional insured

endorsements do not list specific additional insureds, but instead confer additional insured coverage on

a category of entities or individuals. The language of blanket endorsement varies, but one typical

example provides, in relevant part, as follows:

Who Is An Insured (Section II) is amended to include as an insured any

person or organization for whom you are performing operations when

you and such person or organization have agreed in writing in a contract

or agreement that such person or organization be added as an

additional insured on your policy. . . .

Form CG 20 10 03 97 (ISO Properties, Inc. 1997).

Privity. Whether the named insured and the party for whom additional insured coverage is

sought are required to be in privity in order to trigger additional insured coverage depends on the

language of the additional insured endorsement. For example, under the endorsement quoted above,

the named insured must have agreed to provide additional insured coverage to the owner or contractor

in an agreement with the owner or contractor.

E.g.: An owner’s contract with a general contractor requires that any subcontractors name the

owner as an additional insured on their CGL policies. The contractor’s agreement with the

subcontractor similarly requires that the subcontractor name the owner as an additional insured

on its policy, which has a blanket AI endorsement with the language above. There is no contract

between the owner and the subcontractor. Is the owner an AI under the subcontractor’s policy?

No, because the subcontractor is not in privity with the owner and thus did not agree in writing

with the owner to name it as an additional insured.

Other endorsements permit a named insured to confer additional insured status on entities with

whom the named insured is not in privity. For example, ISO CG 20 38 04 13 confers additional insured

status on “Any other person or organization you are required to add as an additional insured under the

contract or agreement[.]”

Oral v. written. Whether an agreement to name another as an additional insured must be in

writing will depend on the language of the additional insured endorsement. For example, some New

York courts have found the phrase “written contract or agreement” to be ambiguous and therefore have

held that oral agreements are sufficient. Superior Ice Rink, Inc. v. Nescon Contracting Corp., 52 A.D.3d

688 (2d Dept. 2008); Travelers Indem. Co. of Am. v. Royal Ins. Co. of Am., 22 A.D.3d 252 (1st Dept. 2005);

Bassuk Bros. v. Utica First Ins. Co., 2002 N.Y. Misc. LEXIS 1643 (Sup. Ct. Kings County 2002), aff’d, 1

A.D.3d 470 (2d Dept. 2003). In contrast, language including as an additional insured “any person or

organization with whom you have agreed, because of a written contract or agreement or permit, to

provide insurance,” has been held to require a written agreement. Federated Dept. Stores, Inc. v. Twin

City Fire Ins. Co., 28 A.D.3d 32 (1st Dept. 2006).

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Agreement to Add as Additional Insured. Where the additional insured endorsement requires

that the named insured agree to add another person or entity as an additional insured, courts have held

that contract language requiring that the other person or entity purchase of insurance for its own

benefit are not sufficient to trigger additional insured coverage. See, e.g., 140 Broadway Prop. v.

Schindler Elevator Co., 73 A.D.3d 717, 718-19 (2d Dept. 2010) (“Although the written contract between

140 Broadway and Schindler, the primary insured, requires Schindler to purchase several forms of

insurance coverage, it does not expressly state that Schindler is required to name 140 Broadway as an

additional insured on its general liability coverage. Consequently, the plain language of the written

contract cannot be read to require Zurich to defend and indemnify 140 Broadway as an additional

insured under the general liability policy issued to Schindler.”); Trapani v 10 Arial Way Assocs., 301

A.D.2d 644 (2d Dept. 2003) (“A provision in a construction contract cannot be interpreted as requiring

the procurement of additional insured coverage unless such a requirement is expressly and specifically

stated. In addition, contract language that merely requires the purchase of insurance will not be read as

also requiring that a contracting party be named as an additional insured.”). However, the contract

need not use the words “additional insured”; language requiring the purchase of coverage “for the

mutual benefit of” the parties has been held sufficient. Kassis v. The Ohio Cas. Ins. Co., 12 N.Y.3d 595

(2009) (“The natural and intended meaning of the term ‘mutual benefit’” is that both parties to the

contract would enjoy the same level of insurance coverage.”).

Unsigned Contracts. While unsigned contracts may be enforced; unsigned contracts may not be

sufficient to trigger coverage under an additional insured endorsement where the additional insured

endorsement requires that the underlying contract be “executed” prior to the loss. See e.g., Rodless

Properties, L.P. v. Westchester Fire Ins. Co., 40 A.D.3d 253, 254 (1st Dept. 2007) (“[A]n ‘executed

contract,’ as defined by Black's Law Dictionary, 8th ed. [2004], is either a contract that has been signed

or a contract that has been fully performed by both parties.”).

Scope of Additional Insured Coverage

While all additional insured endorsements require that the owner or contractor’s liability have

some relationship to the named insured’s work in order for the owner or contractor to qualify as an

additional insured, the degree and type of relationship required depends on the language of the

endorsement.

“Arising out of.” One form of additional insured endorsement limits the additional insured’s

coverage to liability “arising out of” the named insured’s operations. For example:

A. Section II – Who Is An Insured is amended to include as an insured

any person or organization for you are performing operations when

you and such person or organization have agreed in writing in a

contract or agreement that such person or organization be added as

an additional insured on your policy. Such person or organization is

an additional insured only with respect to liability arising out of your

ongoing operations performed for that insured. A person’s or

organization’s status as an insured under this endorsement ends

when your operations for that insured are completed.

ISO CG 20 33 10 01 (ISO Properties, Inc. 2001).

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Generally, courts construe the phrase “arising out of” in such endorsements broadly, holding

that the additional insured will be afforded coverage so long as there is some causal relationship

between the named insured’s operations and the loss. See Maroney v. New York Cent. Mut. Fire Ins. Co.,

5 N.Y.3d 467 (2005). For example, in AIU Ins. Co. v. American Motorists Ins. Co., the claimant, an

employee of the named insured subcontractor, tripped over debris that was allegedly left at the

construction site by another contractor, and sued that contractor and the owner. The court held that

the contractor and owner were entitled to additional insured coverage under the subcontractor’s policy,

because the claimant’s mere status as the named insured’s employee satisfied the policy’s requirement

that the liability “arise out of” the subcontractor’s work. See also Admiral Ins. Co. v. Am. Empire Surplus

Lines Ins. Co., 96 A.D.3d 585, 589 (1st Dept. 2012) (“Where … the loss involves an employee of the

named insured, who is injured while performing the named insured’s work under the subcontract, there

is a sufficient connection to trigger the additional insured “arising out of” operations’ endorsement and

fault is immaterial to this determination.”).

Importantly, the “arising out of” requirement is satisfied even in the absence of a finding that

the named insured was negligent. In Nuzzo v. Griffin Tech., 222 A.D. 2d 184 (4th Dept. 1996), the court

rejected the insurer’s argument that because an additional insured was insured only for liability “arising

out of” the named insured’s work, it was not entitled to coverage for liability arising out of the

additional insured’s own negligence. The court reasoned that “[t]he language of the additional insured

endorsement does not focus upon the precise cause of the accidents . . . ‘but upon the general nature of

the operation in the course of which the injury was sustained,’” and therefore coverage for the

additional insured was not limited to the additional insured’s vicarious liability for the acts of the named

insured. Id. at 189, quoting Lim v. Atlas-Gem Erectors Co., 225 A.D.2d 304 (1st Dept. 1996).

Courts have broadly construed the requirement that the additional insured’s liability arise out of

the named insured’s work to include situations where the liability arises out of work that the named

insured was contractually obligated to perform, but did not, in fact, perform, because it subcontracted it

to another entity. For example, in Tishman Interiors Corp. of N.Y. v. Firemens Fund Ins. Co., 236 A.D.2d

385 (2d Dept. 1997), Tishman, the general contractor, contracted with Industrial for HVAC and sheet

metal work. Industrial was contractually required to purchase liability insurance naming Tishman as an

additional insured. Industrial subcontracted the sheet metal work to FRP. An employee of FRP was

injured at the construction site when he was struck by a falling brick and sued Tishman. The policy

issued to Industrial provided coverage to Tishman for liability “arising out of” Industrial’s work for

Tishman at the job site. Because the underlying claimant was injured performing sheet metal work that

Industrial was contractually obligated to perform for Tishman – even though it had been subcontracted

to FRP – the court found that the injury arose from Industrial’s work for Tishman so as to trigger the

coverage provided by Industrial’s policy.

Additional insured coverage likewise has been found where an employee is injured entering or

exiting a job site. See, e.g., Chelsea Assoc. v. Laquila-Pinnacle, 21 A.D.3d 739 (1st Dept. 2005) (holding

that the “contract could not be performed, of course, unless [the subcontractor’s] employees could

reach and leave their workplaces on the jobsite, and therefore the instant injuries, occurring during such

a movement, must be deemed as a matter of law to have arisen out of the work.”); Longwood Cent. Sch.

Dist. v. Am. Employers Ins. Co., 35 A.D.3d 550, 552 (2d Dept. 2006) (“Because [injured party's] accident

occurred as he was traversing the parking lot to inspect the frozen pipe, his accident arose out of

[named insured’s] work.”).

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While the “arising out of” language has been construed broadly, there still must be some

connection between the liability and the named insured’s work. For example, in Worth Constr. Co. Inc.

v. Admiral Ins. Co., 10 N.Y.3d 411 (2008), a general contractor claimed that it was entitled to additional

insured coverage under a policy issued to a subcontractor that had been hired to build a staircase,

where a worker of a non-party company was injured on the staircase after slipping on fireproofing

applied by another subcontractor. The named insured subcontractor was not negligent and had

completed its work and was not on the jobsite at the time of the accident. Although the court noted

that the absence of the named insured’s negligence by itself was not sufficient to establish that the

claim did not arise out of the named insured’s operations, it nonetheless held that the mere fact that

the accident occurred where the named insured previously had performed work did not establish

additional insured coverage. Id.; see also Christ the King Reg'l High Sch. v. Zurich Ins. Co. of N. Am., 91

A.D.3d 806, 809 (2012) (additional insured endorsement not triggered where injured party slipped on

additional insured’s property while on her way to a dance competition run by the named insured, who

had rented out additional insured’s property, because named insured merely provided “occasion” for

the accident).

“Caused, in whole or in part, by.” In 2004, ISO issued new additional insured endorsements

that replaced the phrase “arising out of” with “caused, in whole or in part, by.” For example form CG 20

10 07 04 provides as follows:

Section II—Who Is An Insured is amended to include as an additional insured the person(s) or Organization(s) shown in the Schedule, but only with respect to liability for “bodily injury”, “property damage” or “personal and advertising injury” caused, in whole or in part, by:

1. Your acts or omissions; or2. The acts or omissions of those acting on your behalf;

in the performance of your on-going operations for the additional insured(s) at the location(s) designated above.

Form CG 20 10 07 04 (ISO Properties, Inc. 2004).

Many courts in other jurisdictions have construed the “caused, in whole or in part, by” language

more narrowly than the “arising out of” language to require that the named insured be at least 1% at

fault in order to trigger coverage for the additional insured. See, e.g., Gilbane Building Co. v. Empire

Steel Erectors, L.P., 664 F.3d 589, 601 (5th Cir. 2011); Nor-Son, Inc. v. Western National Mut. Ins. Co.,

2012 WL 1658938 (Minn. App. May 14, 2012) (“[T]his language indicates that policy coverage is not

limited solely to vicarious liability, but that coverage extends to situations in which liability is shared by

[the named insured] and another. Thus, if [the named insured’s] negligent safety practices were at least

in part the cause of the liability, the policy may extend coverage for [the additional insured’s] negligent

acts.”); Thunder Basic Coal Co., LLC v. Zurich Am. Ins. Co., 2013 U.S. Dist. LEXIS 62834, at *10 (E.D. Mo.

May 2, 2013) (“By its plain language, the phrase ‘caused, in whole or in part,’ merely requires the named

insured or those acting on its behalf to have been at least partially responsible for the injuries alleged by

the claimant.”); Pro Con, Inc. v. Cas. Co., 794 F. Supp. 2d 242, 256-57 (D. Me. June 30, 2011) (holding the

language “caused, in whole or in part” “specifically intended coverage for additional insureds to extend

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to occurrences attributable in part to acts or omissions by both the named insured and the additional

insured”); Nat'l Union Fire Ins. Co. v. NGM Ins. Co., 2011 U.S. Dist. LEXIS 147266, at *12-13 (D.N.H. Dec.

21, 2011) (holding that because the named insured employee’s injury could in part be attributable to the

actions of the additional insured, the court could not grant summary judgment to the named insured’s

insurance provider on its defense that coverage was not triggered by the injured employee’s claims.);

Dale Corp. v. Cumberland Mut. Fire Ins. Co., 2010 U.S. Dist. LEXIS 127126, at *21 (E.D. Pa. Nov. 30, 2010)

(holding duty to defend was triggered where named insured’s acts or omissions were the proximate

cause of the injury).

Other courts have held that the “caused, in whole or in part, by” language limits coverage to the

additional insured’s vicarious liability for the named insured’s acts. See, e.g., Schafer v. Paragano

Custom Building, Inc., 2010 WL 624108 (NJ AD Feb. 24, 2010); Lincoln General Ins. Co. v. Federal

Construction, Inc., 2010 WL4978852, at *3 (N.D. Ill. Dec. 2, 2010) (“[I]nsurance is provided for vicarious

liability imputed to [the additional insured] by the acts or omissions of [the named insured], but not for

[the additional insured’s] own negligence.”).

In New York, however, courts have construed the phrase “caused, in whole or in part, by” in an

additional insured endorsement to mean the same thing as “arising out of.” For example, in Burlington

Ins. Co. v. New York City Transit Auth., 132 A.D.3d 127 (1st Dept. 2015), the court rejected the argument

that the change in language of the additional insured endorsement was intended to “restrict coverage

to liability arising, at least in part, from the fault of the named insured,” holding that, “no words

referring to the negligence or fault of the named insured were included in the endorsement itself.” Id.

at 138. Rather, the endorsement refers to the named insured’s “acts of omissions.” As a result, the

court held that – as with the “arising out of” language – the named insured need not be negligent in

order to trigger coverage under the “caused, in whole or in part, by” additional insured endorsement.

Id.; see also W & W Glass Sys., Inc. v Admiral Ins. Co., 91 A.D.3d 530 (1st Dept. 2012) (“Contrary to

defendants’ argument that the ‘caused by’ language in the policy is ‘narrower’ than the ‘arising out of’

language . . . the phrase . . . ‘does not materially differ from the general phrase, ‘arising out of.’”); Kel-

Mar Designs, Inc. v. Harleysville Ins. Co. of N.Y., 127 A.D.3d 662 (1st Dept. 2015); National Union Fire Ins.

Co. of Pittsburgh, PA v. Greenwich Ins. Co., 103 A.D.3d 473 (1st Dept. 2013).

2013 ISO Additional Insured Endorsements. In 2013, ISO issued new additional insured forms,

which retained the “caused, in whole or in part, by” language, but added additional provisions that

potentially narrow the scope of coverage. For example, ISO form CG 20 33 04 13 provides as follows:

A. Section II – Who Is An Insured is amended to include as an

additional insured any person or organization for whom you are

performing operations when you and such person or organization

have agreed in writing in a contract or agreement that such person

or organization be added as an additional insured on your policy.

Such person or organization is an additional insured only with

respect to liability for “bodily injury”, “property damage”, or

“personal and advertising injury” caused, in whole or in part, by:

1. Your acts or omissions; or

2. The acts or omissions of those acting on your behalf;

in the performance of your ongoing operations for the additional

insured.

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However, the insurance afforded to such additional insured:

1. Only applies to the extent permitted by law; and

2. Will not be broader than that which you are required by the

contract or agreement to provide for such additional insured.

Form CG 20 33 04 13 (ISO Properties, Inc. 2004) (emphasis added).

Subparagraph 1, which provides that additional insured coverage “only applies to the extent

permitted by law,” appears to be an attempt to prevent the additional insured endorsement from

violating state anti-indemnity statutes that prohibit granting additional insured coverage for the

additional insured’s own negligence. While most state anti-indemnity statutes only bar a party from

indemnifying another party for that party’s own negligence, some states also prohibit the indemnifying

party from providing additional insured coverage to the other party for that party’s own negligence. In

those states, the 2013 ISO language would limit the scope of coverage in accordance with the state anti-

indemnity statute.

Subparagraph 2 potentially narrows the scope of additional insured coverage if the underlying

contract provides that the named insured will provide the additional insured with narrower coverage

than the policy otherwise would provide. This change is significant, as under previous versions of ISO

additional insured endorsements, the scope of coverage is determined by the language of the

endorsement, not the language of the underlying construction contract.

II. PRIORITY OF INSURANCE IN NEW YORK

One of the most difficult problems in evaluating complex insurance coverage matters isnegotiating the relationship between multiple, primary and excess policies. Determining the priority of policies can have a dramatic impact on the exposure under a particular policy – any shift of a primary policy to excess coverage (or vice versa) may significantly affect contribution levels, and can impose the bulk of a loss onto a different insurer.

Owners, tenants, general contractors, and trades typically agree to allocate or transfer risk through the use of two types of provisions in their contracts, namely indemnity and insurance procurement. These provisions are intended to determine who pays and in what order before any claim occurs. To a large extent, when used in conjunction, indemnity and insurance procurement provisions complement each other and establish different paths to push responsibility downstream with the same outcome.

Although there are basic judicial rules governing the priority of policies, the outcome of these disputes is often driven by the specific language of each insurance policy. Each policy usually contains its own specific terms governing how it will apply in such circumstances – and these terms and clauses often conflict with those contained in the other policies involved in the matter, as well as the trade contracts related to the underlying claim. Determining the “pecking order” among multiple insurance companies – with complex and often conflicting clauses – has been characterized as “a court’s nightmare…filled with circumlocution,” and “compared sarcastically to the struggles which often ensue when guests attempt to pick up the tab for their dinner companions.” State Farm Fire & Cas. Co. v. LiMauro, 65 N.Y.2d 369, 372 (1985) (internal citations and quotations omitted).

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“In order to determine priority of coverage among different insurance policies, a court must review and consider all of the relevant policies at issue.” BP Air Conditioning Corp. v. One Beacon Ins. Co., 8 N.Y.3d 708, 716, 871 N.E.2d 1128, 1133, 840 N.Y.S.2d 302, 307 (2007). As such, in New York, priority for additional insured coverage is determined solely by the insurance contracts, not by the underlying trade contracts. Bovis Lend Lease LMB, Inc. v. Great American Ins. Co., 53 A.D.3d 140, 147-48, 855 N.Y.S.2d 459, 466 (1st Dept. 2008); Tower Ins. Co. of v. T & G Contracting Inc., 44 A.D.3d 933, 845 N.Y.S.2d 356, 357 (2d Dept. 2007).

The Court of Appeals has explained that New York law “recognize[s] the right of each insurer to

rely upon the terms of its own contract with its insured.” LiMauro, 65 N.Y.2d at 373; accord United

States Liability Ins. Co. v. Mountain Valley Indem. Co., 371 F. Supp.2d 554, 558 (S.D.N.Y. 2005)

(“insurance policy provisions take precedence over conflicting provisions found in contracts between

insureds”); Travelers Indem. Co. v. American & Foreign Ins. Co., 286 A.D.2d 626, 730 N.Y.S.2d 231 (1st

Dept. 2001) (“it is the policy provisions that control and not the provisions of the subcontract” between

the insureds); United States Fid. & Guar. Co. v. CNA Ins. Cos., 208 A.D.2d 1163, 1165, 618 N.Y.S.2d 465,

467 (3d Dept. 1994) (“the scope of the insurance coverage actually obtained...must be determined by

the terms of the policies, not by the terms of the subcontract.”). Thus, priority is generally established by

reference to the “Other Insurance” language in the policies at issue.

In the context of additional insured status, horizontal exhaustion is the default rule in New York

and numerous other jurisdictions. Primary policies are required to pay their respective limits of liability

for any settlement or judgment on behalf of their insureds before “true excess” policies may be required

to pay any amount of any settlement or judgment on behalf of their insureds. See, e.g., Bovis, supra, 53

A.D.3d at 147-48; Tishman Constr. Corp. of N.Y. v. Great American Ins. Co., 53 A.D.3d 416, 861 N.Y.S.2d

38 (1st Dept. 2008); Cheektowaga Central School Dist. v. Burlington Ins. Co., 32 A.D.3d 1265, 822

N.Y.S.2d 213 (4th Dept. 2006); LiMauro, supra, 65 N.Y.2d at 374. Indeed, New York courts have

consistently held that an excess insurer is not obligated to provide coverage until all other applicable

primary policies have been exhausted. See, Sport Rock Intern, Inc. v. American Cas. Co. of Reading, PA,

65 A.D. 3d 12 (1st Dept. 2009) (“where the same risk is covered by two or more policies, each of which

was sold to provide the same level of coverage, priority of coverage (or alternatively, allocation of

coverage) among the policies is determined by comparison of their respective `other insurance’ clauses);

General Acc. Fire & Life Assur. Corp. v. Piazza, 4 N.Y. 2d 659, 669, 176 N.Y.S.2d 976, 152 N.E. 2d 236

(1958); Harleysville Ins. Co. v. Travelers Ins. Co., 38 A.D. 3d 1364, 1367, 831 N.Y.S.2d 625 (2007), lv.

denied, 9 N.Y.3d 811, 846 N.Y.S.2d 601, 877 N.E.2d 651 (2007).

In Bovis Lend Lease LMB, Inc. v. Great American Insurance Company, 53 A.D. 3d 140 (1st Dept. 2008), New York’s First Appellate Department held that the rights and obligations of the insurers are governed by their respective insurance policies, not by the underlying trade contracts among the insureds.

The Bovis case arose out of a fatal accident at a construction site. Id. at 143. The decedent’s estate filed an underlying wrongful death suit against the construction manager, Bovis Lend Lease LMB, Inc., the owners of the construction site, the Dormitory Authority of the State of New York (“DASNY”), the City of New York, and the general contractor, and Bovis’ insurer brought a coverage action seeking a judicial determination that Bovis, DASNY, NYC, and itself (collectively, “Plaintiffs”) were entitled to a defense and indemnification from the general contractor’s insurers and the insurers of two subcontractors. Id.

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The insurer of the concrete subcontractor agreed to defend and indemnify the plaintiffs as additional insureds. Id. The parties filed summary judgment motions concerning the priority of coverage after exhausting the concrete subcontractor’s primary policy. The trial court determined that the priority of coverage among the subject policies was dictated by the terms of the underlying trade contractors, which required the subcontractors to obtain “additional insured” coverage for the plaintiffs that would be “primary to any other insurance maintained by the [Plaintiffs].” Id. at 144. The trial court held that the umbrella policy of the concrete subcontractor’s policy would be triggered immediately upon exhaustion of its underlying primary policy, before the policies of the general contractor or the construction manager. Id. at 145.

The First Department reversed the trial court, holding that the concrete subcontractor’s umbrella policy is excess to both the construction manager’s own primary insurance and the additional insured coverage provided to the construction manager by the general contractor’s primary insurance.

The Bovis Court reasoned that an insurer’s obligation is determined solely by the terms of its policy, and not the contracts between the insureds. Id. The court stated that the concrete subcontractor’s subcontract would be determinative of the priority of coverage afforded to additional insureds only if “the insurance policy itself expressly provided that the terms of the subcontract would determine whether the additional insured coverage afforded was primary or excess.” Id. Because the subcontractor’s umbrella insurance policy did not define the priority of the coverage afforded to additional insureds by reference to the requirements of the underlying trade contract, the court noted that the determination of the issue “‘turns on consideration of the purpose each policy was intended to serve as evidenced by both its stated coverage and the premium paid for it, as well as upon the wording of its provision concerning excess insurance.’” Id. at 148 (quoting LiMauro, 65 N.Y.2d at 374).

The Bovis Court held that the subcontractor’s umbrella policy is a “true excess policy” that is triggered only after the primary policies of the construction manager and the general contractor are exhausted, regardless of insured or additional insured status. The court rejected the plaintiffs’ argument that an endorsement in the general contractor’s primary policy – providing that “Commercial General Liability coverage maintained by subcontractors [of the general contractor] shall be primary and this policy shall be excess” required that the subcontractor’s umbrella policy respond before the general contractor’s and construction manager’s respective policies. Id. at 149. The court reasoned that the term “commercial general liability coverage” referred to in the endorsement is limited to a primary CGL policy and not a “commercial umbrella liability policy.” Id. at 149-50.

It is interesting to note that Bovis was a declaratory judgment action pertaining only to priority of coverage issues. Thus, the Court specifically declined to rule on the contractual indemnity claim as that claim was not before it. Accordingly, this decision did not answer the question of who ultimately pays the claim.

In Tishman v. Great Amer. Ins,.53 A.D.3d 416 (1st Dept. 2008), the First Department held that a policy issued to the subcontractor was an excess policy which provided the final tier of coverage and should not be invoked prior to the complete exhaustion of the primary policy issued to the construction manager.

The court weighed several factors when making this determination, including the stated coverage, the premium paid and the “other insurance” provisions of the policies at issue. Id. at 419. In

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addition to the policy language of the subcontractors’ excess policy establishing itself as such, the premium for the excess policy was $60,000 for coverage of up to $25 million while the premium on the contractors’ primary policy for up to $2 million was significantly higher. This was a direct reflection of the underwriter’s evaluation that the excess policy was a secondary policy that had a significantly less chance of being invoked. Tishman illustrated the full gamut of factors that are considered when determining a policy’s place in the insurance pecking order.

An important exception to the application of horizontal exhaustion was made by the New York appellate court in Indemnity Insurance Company of North America v. St. Paul Mercury Insurance Company, 74 A.D. 3d 21 (1st Dept. 2010). The wording of the underlying contract between the general contractor and subcontractor stated that the subcontractor agreed to “(1) indemnify and hold harmless [the owner] and [general contractor] from any claims arising from or in connection with any acts or omissions in the performance of [the subcontractor’s] work.” Id. at 23. This wording resulted in the vertical exhaustion of the subcontractor’s policies before considering the general contractor’s insurance. It was held that the language “indemnify and hold harmless” entitled the general contractor to “contractual indemnification from [the subcontractor] and a complete pass-through of liability to [the subcontractor] and its insurers”. Id. at 25.

The St. Paul Court stated the horizontal exhaustion rule was “irrelevant” since; (1) contractual indemnity against the downstream trade contractor at fault had been established, and (2) the contractors’ excess policy had accepted additional insured status to the owner and general contractor “without reservation or qualification.” Id. at 28.

The case of HDI-Gerling Am. Ins. Co. v. Zurich Am. Ins. Co., 2015 N.Y. Slip Op 30871(U), 2015 N.Y. Misc. LEXIS 1851, at *2 (N.Y. Sup. Ct. April 16, 2015), involved parties that separately contracted with the City of New York to provide the City with additional insured coverage. Skanska USA Civil Northeast and Siemens Corp. were each independently hired by the City to perform work on the construction of a water treatment plant in the Bronx. Id. Skanska and Siemens entered into separate contracts with the City. The contracts had identical insurance provisions requiring each party to agree to procure commercial general liability insurance and add the City as an additional insured under its insurance policy on a primary and noncontributing basis to the City’s own insurance. Id. at *3. Skanksa had a Zurich American Insurance Policy while Siemens had a policy from HDI-Gerling America Insurance (HGA). Id.

The Skanska Endorsement provided that where an additional insured on the Zurich policy was also an additional insured on another policy, the Zurich policy would be excess to that other insurance policy. Id. at *4-5. The Skanska Endorsement made clear that the Zurich policy would be primary to the City’s own insurance in order to satisfy Skanska’s contractual obligation to have its insurance pay before the City’s program. The HGA policy, in a “Blanket Additional Insured” Endorsement, required it to apply on a primary and non-contributory basis and primary to other insurance available to the additional insured and would not be shared with that other insurance. Id. at *7.

Based on the Skanska Endorsement, the court found that the Zurich policy was excess over the HGA policy and that the HGA policy, by its own terms, required that it provide primary coverage without sharing with other insurance. Id. at *14-19. The court also agreed that the Skanska Endorsement created an exception to co-primary insurance coverage for instances where the written contract required the insurance to be primary and noncontributory, as the contract between Skanska and the City did. Id.

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III. CONTRACTUAL INDEMNIFICATION

A second way that owners and general contractors attempt to allocate risk is by requiring indemnification from their subcontractors, pursuant to which one party agrees to indemnify or “hold harmless” the other. Generally, each party to a construction project requires indemnification from those below it. For example, a subcontractor may be required to indemnify the general contractor and owner, and the general contractor will usually be required to indemnify the owner. Indemnification agreements generally are enforceable if they express a clear intention to indemnify, and are not otherwise prohibited by statute.

Scope of Indemnity. Indemnity agreements typically take one of three basic forms: (1) those that obligate a contractor to indemnify another only for its own negligence; (2) those that obligate a contractor to indemnify another for all liability except for the other’s sole negligence; and, (3) those that obligate a contractor to indemnify another for all liabilities. The following is an example of a common indemnification clause found in construction contracts:

To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect’s consultants and their agents and employees from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury or destruction of tangible property (other than the work itself) including loss of use resulting therefrom….

The clause may also contain language similar to the following, which serves to limit the extent to which the indemnitee must be indemnified:

… but only to the extent caused in whole or in part by negligent acts oromissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by the negligence of a party indemnified hereunder, unless the loss is caused by the sole negligence of the Owner, Architect, Architect’s Consultants or their agents and employees.

Pursuant to these provisions, the obligation of the contractor to indemnify the owner would be “triggered” only upon a showing of negligence on the part of the contractor (or parties for whose acts it is responsible).

Statutory Restrictions on Enforcement. In New York, indemnification provisions in construction contracts are subject to General Obligations Law § 5-322.1, which provides:

A covenant, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure,

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appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons … contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable….

General Obligation Law § 5-322.1 renders void agreements to indemnify contractors against liability for injuries “contributed to, caused by or resulting from the negligence of the promisee … whether such negligence be in whole or in part.”

In Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786 (1997). the Court of Appeals considered the extent to which an indemnification agreements between a general contractor and subcontractor were enforceable, where the general contractor had been found partially negligent in an action brought against it by an employee of the subcontractor. The court held that, because the agreements at issue contemplated full rather than partial indemnification, the agreements were unenforceable. In particular, the court found that agreements which imposed an indemnification obligation on the subcontractor merely upon a determination that the claim arose from activity while on or near the project, without regard to whether the subcontractor was a cause of the injury, and notwithstanding the culpability of the general contractor, were unenforceable. The Court of Appeals further concluded that, where an indemnity provision violates the General Obligations Law, a court will not salvage the provision to allow for partial indemnification; however, the court also stated in a footnote that an agreement that violates the General Obligations Law is void only to the extent its application would violate the statute. That is, without a finding of negligence on the part of the contractor, the agreement would not run afoul of the statute regardless of the language used in the agreement. See also Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 12 (2011) (“Where … the provision provides for full indemnification, GOL 5–322.1's proscription of indemnification is only applicable if the indemnitee is found negligent to any extent.”).

Indemnification provisions that contain the language “to the fullest extent permitted by law” repeatedly have been held not to violate GOL § 5-322.1. See, e.g., Dutton v. Charles Pankow Builders, Ltd., 296 A.D.2d 321 (1st Dept. 2002); Landgraff v. 1579 Bronx River Ave., LLC, 18 A.D3.d 385 (1st Dept. 2005) (finding that indemnity provision did not run afoul of GOL § 5-322.1 because it authorized indemnification “to the fullest extent permitted by law”); McGuiness v. Hertz Corp., 15 A.D.3d 160 (1st Dept. 2005) (holding that indemnification clause was enforceable because it contained the requisite language limiting the subcontractor’s obligation to that permitted by law).

In Brooks v. Judlau Contracting, Inc., 11 N.Y.3d 204 (2008), the court was asked to decide “whether section 5-322.1 of the General Obligations Law allows a general contractor—who has been found to be partially at fault—to enforce an indemnification provision against its subcontractor for that portion of damages attributable to the negligence of the subcontractor.”1 The court concluded that the statute “does permit a partially negligent general contractor to seek contractual indemnification from its subcontractor so long as the indemnification provision does not purport to indemnify the general contractor for its own negligence.” Id.; see also Babiack v. Ontario Exteriors, Inc., 2013 WL 1847716, at *2 (4th Dept. May 3, 2013) (Indemnity agreements enforceable because they did not purport to

1 Id. at 207.

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indemnify owner for its own acts of negligence.); Burton v. CW Equities, LLC, 97 A.D.3d 462, 463 (1st Dept. 2012) (same).

Insurance Coverage for Contractual Indemnification Obligations. Construction contracts often call for the subcontractor to procure insurance covering the subcontractor’s contractual indemnification obligations. Standard CGL policies include a contractually assumed liability exclusion, which bars coverage for the insured’s indemnification obligations; however, the exclusion contains an exception for “insured contracts,” which typically is defined as:

That part of any other contract or agreement pertaining to your business … under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

Form CG 00 01 10 01 (ISO Properties, Inc., 2000). Similarly, while it is often the case that the injured claimant is an employee of the subcontractor, and the CGL policy excludes coverage for claims of an employee under the employer’s liability exclusion, such exclusions also except obligations of the insured under an “insured contract.” This protection does not extend to common law indemnification, which is covered by Workers’ Compensation and Employers Liability policies.

To the extent the subcontractor’s indemnification obligation is insured under the subcontractors’ policy, any amounts that the owners’ and contractors’ primary insurers are obligated to pay in defense and indemnity of their insureds may be passed through the subcontractors’ policy. This is true not only for amounts they are required to pay in the absence of additional insured coverage, but also for amounts they are required to contribute as co-insurers with additional insured carriers.

There is considerable confusion concerning an insurer’s obligations to defend and indemnify parties in response to a tender where the owner or contractor is not an additional insured. It is often assumed that indemnification clauses give rise to the same obligations to defend and indemnify as would be required if the owner and contractor were additional insureds under the subcontractor’s insurance policy. In fact, however, insurers have no defense obligation in the absence of additional insured coverage (except as explained below). Insurers are only obligated to indemnify the indemnitee (and reimburse it for defense costs where the indemnification agreement so provides) when it is determined that their named insured is obligated to indemnify (because all the insurer is covering is the named insured’s contractually assumed indemnification obligation).

Under certain circumstances, however, an insurer will be required to defend an indemnitee who is not an additional insured. The Supplementary Payments provisions of a standard policy provide:

SUPPLEMENTARY PAYMENTS—COVERAGE A AND B

…

2. If we defend an insured against a “suit” and an indemnitee of theinsured is also named as party to the “suit”, we will defend that indemnitee if all of the following conditions are met:

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a. The “suit” against the indemnitee seeks damages for which theinsured has assumed the liability of the indemnitee in a contractor agreement that is an “insured contract”;

b. This insurance applies to such liability assumed by the insured;c. The obligation to defend, or the cost of the defense of, that

indemnitee, has also been assumed by the insured in the same“insured contract”;

d. The allegations in the “suit” and the information we know aboutthe “occurrence” are such that no conflict appears to existbetween the interests of the insured and the interests of theindemnitee;

e. The indemnitee and the insured ask us to conduct and controlthe defense of that indemnitee against such “suit” and agreethat we can assign the same counsel to defend the insured andthe indemnitee; and

f. The indemnitee:

(1) Agrees in writing to:

(a) Cooperate with us in the investigation, settlement or defense of the “suit”;

(b) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the “suit”;

(c)Notify any other insurer whose coverage is available to the indemnitee; and

(d) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and

(2) Provides us with written authorization to:

(a) Obtain records and other information related to the “suit”; and

(b) Conduct and control the defense of the indemnitee in such “suit”.

So long as the above conditions are met, attorneys’ fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by is and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 2.b.(2) of Section I – Coverage A – Bodily Injury And Property Damage Liability, such

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payments will not be deemed to be damages for “bodily injury” and “property damage” and will not reduce the limits of insurance.

Our obligation to defend an insured’s indemnitee and to pay for attorneys’ fees and necessary litigation expenses as Supplementary Payments ends when:

a. We have used up the applicable limit of insurance in thepayment of judgments or settlements; or

b. The conditions set forth above, or the terms of theagreement described in Paragraph f. above, are no longer met….

Form CG 00 01 10 01 (ISO Properties, Inc., 2000).

The Supplementary Payments provisions are often overlooked as a source of coverage in those circumstances where additional insured protection is not available. To the extent a carrier is obligated to pay for defense costs under the supplementary payment provisions of the policy, the costs of defense are in addition to limits, as it would be if the indemnitee qualified as an additional insured. Conversely, where the right to reimbursement of defense costs is merely covered because it represents an obligation under an “insured contract,” such costs are included within limits. One wonders, however, whether all of the conditions of the provisions can ever be satisfied, since an indemnitee and insured are rarely completely united in interest—indemnitee’s often prosecute claims for indemnification that exceed available limits, making joint defense under the terms of the Supplementary Payments provisions potentially improper.

IV. PURSUING 1B COVERAGE

Under New York Labor Law, owners and general contractors are held vicariously liable for tort claims involving injured employees who are otherwise barred from suing their employer directly. As a result, these third parties bring claims against the injured employee’s employer for contractual and common law indemnity and/or contribution.

Generally, third party claims for contractual indemnity triggers insurance coverage under the employer’s Commercial General Liability (“CGL”) insurance policy. On the other hand, the common law indemnity and contribution claims triggers coverage under the employer’s 1B portion of their Workers’ Compensation policy. An employer’s 1B coverage provides unlimited coverage for an employer, whereas, an employer’s CGL coverage is capped at the policy’s limit. As a result, most parties involved attempt to trigger an employer’s 1B coverage. However, New York Workers Compensation Law § 11 only allows for common law indemnification and/or contribution where the injured employee suffers a “grave injury.”

New York Workers Compensation Law § 11 provides in relevant part:

An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer

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unless such third person proves through competent medical evidence that such employee has sustained a “grave injury” which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by external physical force resulting in permanent total disability.

New York Courts strictly adhere to and construe the definition of “grave injury.” For example, in Castro v. United Container Mach. Group, Inc., 96 N.Y.2d 398 (2001), the Court held that the loss of two tips of fingers on one hand and three tips on the other hand is not a “grave injury.” The Court explained that the statute requires the loss of “fingers,” which means the entire finger and not just the tips.

Another case that is illustrative of how strict New York Courts construe this statute is Pilato v. Nigel Enters. Inc., 48 A.D.3d 1133 (4th Dept. 2008). The Court held that the loss of an eye which was replaced with a slightly darker prosthetic eye, and where the other eye appeared to be slightly more open, did not constitute severe facial disfigurement.

RECENT CASES ADDRESSING “GRAVE INJURY”

Gabriel v. Jonhston’s L.P. Gas Serv., Inc., 2016 N.Y. App. Div. LEXIS 6515 (4th Dept. 2016)

The plaintiffs were employed at a farm in Oswego County seeking damages for injuries they sustained when their living quarters exploded. The plaintiff sued the Johnston’s, the entity that supplied propane gas to the farm where the plaintiffs worked. The Johnston’s commenced a third-party action against DeMarco, the plaintiffs’ employer, seeking contribution and/or indemnification for the injuries sustained by the plaintiffs in the main action.

The issue was whether the plaintiffs sustained a “grave injury” that would trigger the unlimited 1B coverage under the employer’s workers’ compensation policy. The Johnston’s allege that the plaintiffs’ qualifying grave injury was a “permanent and severe facial disfigurement.”

The Court said that a disfigurement is severe “if a reasonable person viewing the plaintiff’s face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking, or extremely unsightly. In finding that a disfigurement is severe, plaintiff’s injury must greatly alter the appearance of the face from its appearance before the accident.” Fleming v. Graham, 10 N.Y.3d 296 (2008).

The Court held that the photographs of the plaintiff demonstrated that he is not severely disfigured within the meaning of the statute.

Aramburu v. Midtown W.B., LLC, 126 A.D.3d 498 (1st Dept. 2015)

The plaintiff slipped and fell on an icy ramp while he was working. The plaintiff suffered a brain injury that caused various conditions including seizures, persistent headaches, and depression. The

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plaintiff sued the defendant who was the entity responsible for maintaining the ramp. The defendant then commenced a third-party suit against the plaintiff’s employer for indemnification and contribution.

The issue was whether the plaintiff’s injury constituted a “grave injury,” thus allowing the defendant to obtain indemnification and/or contribution from the plaintiff’s employer.

The Court held that the plaintiff’s brain injury did not qualify as a “grave injury.” The Court said that the plaintiff’s brain injuries must be so that the plaintiff is “no longer employable in any capacity.” Rubeis v. Aqua Club, Inc., 3 N.Y.3d 408 (2004).

NEW YORK’S ANTISUBROGATION RULE AND ITS EFFECT ON 1B COVERAGE

The New York Antisubrogation Rule precludes an insurer from seeking recovery of coverage provided to one insured from another insured. As a result, if an insurer provides coverage to an additional insured, then any third party claims or cross claims by the additional insured against the named insured are barred. Pennsylvania General Insurance Company v. Austin Powder Company, 68 N.Y.2d 465 (1986). Stated another way, Antisubrogation bars an owner or general contractor insured by the employer’s CGL carrier from bringing third-party claims against the employer also insured by the same carrier for the same risk. This bar, however, is only to the extent of the coverage provided to the additional insureds and does not bar third-party claims for exposure beyond the primary policy limits.

One unintended consequence of the Antisubrogation Rule was a windfall to the Workers’ Compensation carrier in “grave injury” claims. Since the Antisubrogation Rule bars all claims an additional insured can bring against a named insured, the employer’s Worker’s Compensation policy receives the benefit of not having to provide coverage to the extent of the Antisubrogation bar.

Insurers have circumvented the Antisubrogation Rule by including exclusions for bodily injuries sustained by employees. See U.S. Underwriters Inc. Co. v. 614 Constr. Corp., 142 F. Supp. 2d 491 (S.D.N.Y. 2001) (Court found coverage was excluded to the additional insured’s employee’s injuries under an exclusion for “bodily injury . . . to any contractor hired or retained by or for any insured or to any

employee of such contractor.”).

V. RECENT CASES ON ADDITIONAL INSURED ISSUES

Duty to Defend Additional Insured

BP A.C. Corp. v. One Beacon Ins. Group, 8 NY3d 708 (2016)

AI coverage is not contingent upon a liability finding. A determination of liability is not required before an AI is entitled to a defense. The insurer’s obligation to provide a defense and indemnification to an AI under the policy exists to the same extent as the named insured.

Henegan was the GC for a construction project and BP was its sub; Alfa was a further sub of BP. Alfa was required by its subcontract to keep its work site safe. Alfa was also required by its subcontract to obtain a CGL policy naming BP as an AI, only with respect to liability arising out of Alfa’s “ongoing operations performed for that insured.” The injured party was an employee of another sub who slipped on an oil slick created by a pipecutting/threading machine.

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The court determined there was a factual and legal basis on which the carrier might have to indemnify BP. So long as there was a possibility that the injured person’s injuries arose out of Alfa’s ongoing operations performed for BP, the carrier had to defend and indemnify BP.

Cumberland Farms, Inc. v. Tower Group, Inc., 137 AD3d 1068 (2d Dept., 2016)

Noori Auto & Fuel, Inc. operated a gas station under a franchise and lease agreement with Cumberland Farms, Inc. Noori had a GL policy which named Cumberland Farms as an AI “with respect to its liability as a grantor of a franchise to the named insured.” Zevlakis was the injured party who tripped and fell on a sidewalk outside the gas station. He sued Cumberland Farms for negligent ownership, operation, control and maintenance of the gas station. The complaint did not specifically allege Cumberland Farms was liable as a franchisor.

The court held that Noori’s GL policy was required to provide a defense to Cumberland Farms. The court held that the complaint suggested “a reasonable possibility of coverage for Cumberland Farms in the underlying action” since Cumberland’s liability, if any, may hinge on the scope of its obligations under the franchise agreements, citing BP A.C. Corp. v. One Beacon Ins. Group, 8 NY3d 708, 713 (2016). (137 AD3d 1071)

Gilbane Building Co.,/TDX Construction Corp. v. St. Paul Fire & Marine Ins. Co., 38 NYS3d 1 2016 Slip. Op. 06052 (1st Dept., 2016)

The City of New York had a contract with the Dormitory Authority of the State of New York (DASNY) to finance and manage the construction of a hospital building. DASNY retained the joint venture (JV) of Gilbane/TDX to provide construction management services under a written construction management agreement. This agreement provided that any prime contractor, whether retained by DASNY or otherwise, was required to name the JV as an AI on its liability policies. Samson Construction Co. had a separate contract with DASNY to serve as the prime contractor for all foundation and excavation work. Samson’s prime contract required it to obtain a CGL policy naming DASNY and the other entitles specified on the sample Certificate of Insurance as AIs. There was no contract between Samson and the JV.

Samson’s CGL policy had an AI clause which defined the AI as any person/organization with whom you have agreed to add as an AI by written contract but only with respect to liability arising out of your operations of premises owned or rented to you.” Samson’s excavation and foundation work caused substantial structural damage to adjacent buildings. The JV was impleaded into an action by DASNY against Samson and the project architects.

The court held that the JV was not entitled to coverage as an AI under Samson’s policy – there was no written contract between the named insured (Samson) and the party seeking coverage (the JV). Samson’s contractual agreement with DASNY is not an “insured contract” under Samson’s policy. The phrase “with whom” limited AI status to the sole party (DASNY) with whom Samson contracted. The JV did not have a written contract with Samson and thus was not an AI under that policy.

Town Plaza of Poughquag, LLC v. Hartford Ins. Co., 175 F.Supp.3d 93 (S.D.N.Y. 2016)

Beekman Pharmacy was a tenant of Town Plaza, the property owner, for the original leased area plus a 2500 sq. ft addition to be constructed by the landlord. Beekman’s lease with Town Plaza required it to maintain liability insurance naming the owner as an AI on its GL policy for $3,000,000 for liability “claimed to have occurred on or about the demised premises.” The tenant’s GL policy stated that AI

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coverage is primary when the NI has agreed in a written contract that it is to provide primary coverage for the AI.

The owner also had a GL policy, which stated it was excess “to any other primary coverage available to you….for damages arising out of the premises or for which you have been named as an AI.”

Luders, a patron exiting the pharmacy, tripped over a construction pallet left on the sidewalk adjacent to the new addition. Luders claimed insufficient lighting contributed to the accident. Tenant’s lease required it to install and light the demised premises at its sole expense.

The owner tendered its defense to the tenant based on the AI coverage in the tenant’s policy. The court held that under Pecker Iron Works of N.Y. v. Travelers Ins. Co., 99 NY2d 391 (2003), the tenant’s policy provided primary coverage to the owner under the AI endorsement.

Wausau Underwriters Ins. Co. v. Old Republic Ins. Co., 122 F.Supp.3d 44 (S.D.N.Y. 2015)

Burawski was an employee of security system contractor Tyco. He was injured in a trip and fall at a hotel project construction site. Tyco was not yet hired but its employee was onsite to meet with construction manager McGowan about a potential retainer. The construction manager was responsible under its contract with the owner (170 Broadway) to oversee and hire subs and also to obtain GL policy naming the owner as an AI.

McGowan’s GL carrier argued that because McGowan had not yet begun “work” as defined by the construction manager agreement (encompassing the actual construction of the hotel), injury did not “arise out of” McGowan’s ongoing operations.

The court rejected this argument, holding that the carrier was obligated to afford a defense to the owner. The court noted that the construction manager agreement also required McGowan to hire subs. So long as the allegations necessarily “suggest a reasonable possibility of coverage,” the AI coverage is triggered (see, Euchner-U.S.A., Inc. v. Hartford Cas. Ins. Co., 754 F.3d 136, 141 (2d Cir., 2014) McGowan “was in charge of the entire project, not just a discrete component of the project,” in contrast with situations where the instrumentality was merely the situs of the accident and there was no connection between the contractor’s obligations and the accident. (Regal Const. Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 39 (2010)) (122 F. Supp.3d 44, 51)

Burlington Ins. Co. v. NYCTA, 132 AD3d 127 (1st Dept., 2015)

At issue was whether the AI (NYCTA/owner) was entitled to a defense under the CGL policy obtained by the excavation contractor (Breaking Solutions) where the accident was not caused by that contractor’s negligence. Breaking Solutions’ CGL policy named NYCTA as an AI “only with respect to liability for bodily injury caused in whole or in part by the named insured’s acts or omissions in the performance of the named insured’s ongoing operations.”

NYCTA and MTA hired Breaking Solutions to supply excavating equipment and personnel to work under NYCTA’s authority. NYCTA was responsible for identifying and marking/protecting hazards. Breaking Solutions’ excavator struck a buried energized cable, causing an explosion. During discovery it was learned that the accident was not due to any fault on the part of Breaking Solutions, but because NYCTA had failed to mark hazards.

The court held that the AI was entitled to coverage under Breaking Solutions’ policy “where there is a causal link between the named insured’s conduct and the injury, regardless of whether the

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named insured was at fault for causing the accident.” This endorsement does not require a finding of negligence on the part of the named insured. Accord: Kel-Mar Designs, Inc. v. Harleysville Ins. Co. of N.Y., 127 AD3d 662 (1st Dept., 2015) and Liberty Mutual Ins. Co. v. Zurich Amer. Ins. Co., 2016 WL 1303595 (S.D.N.Y. 2014)

Zurich Amer. Ins. Co. v. Wausau Business Ins. Co., 2016 WL 4532196 (S.D.N.Y. 2016)

Due to an ambiguity in the AI endorsement, as well as another specific exclusion, the subcontractor’s CGL carrier was held not required to defend or indemnify the mall owner or manager.

Whiting-Turner (the GC) and mall owner Brooks were required to be named as AIs on the CGL policy procured by Montesano, a sub engaged in utility work. The sub’s policy contained a blanket AI endorsement with a “construction exclusion,” excluding “any construction, renovation, demolition or installation operations performed by or on behalf of you or whose operating on your behalf.” Montesano was clearly engaged in construction when the injured person, a mall patron, was injured walking by or through the construction site, and this exclusion precluded coverage.

Under another portion of the AI endorsement, AI coverage was limited to liability caused, in whole or in part, by the negligent acts or omissions of the policyholder or its employees, agents or subcontractors, for “installation exposures.” Since “installation exposures” was not defined anywhere in the policy, nor was it a term of art in the industry, it was considered too ambiguous. The sub was not engaged in anything that could be considered “installation exposures,” so coverage was denied.

Duty to Indemnify Additional Insured

Town Plaza of Poughquag, LLC v. Hartford Ins. Co., 175 F.Supp. 3d 93 (S.D.N.Y. 2016)

Luders was walking out of the Beekman Pharmacy when he tripped off the sidewalk curb. He has been maneuvering around a pallet of construction materials obstructing the sidewalk. The injury took place on the sidewalk adjacent to the new addition for the pharmacy. Luders claimed the lighting was insufficient.

Beekman was a tenant of Town Plaza, the property owner. Beekman’s lease with Town Plaza required it to maintain liability insurance naming the owner as an AI on its GL policy for $3,000,000 for liability “claimed to have occurred on or about the demised premises.” The tenant’s policy stated that AI coverage is primary when the NI has agreed in a written contract that it is to provide primary coverage for the AI.

The owner had a GL policy that stated it was excess “to any other primary coverage available to you….for damages arising out of the premises or for which you have been named as an AI.”

Beekman’s GL carrier claimed it was not required to indemnify the owner since the accident occurred within a new area of the property that was not within the demised premises, and because the accident was caused solely by the owner’s negligence, an activity which fell within the policy’s exclusion.

The contractor hired by Beekman left the pallet on the sidewalk but the property owner was responsible for shelving, fixtures, and additional lighting within the new area. The owner’s contractors were off the job the month before the accident.

The court denied the owner’s motion for indemnification. It held there were questions of fact as to whether the accident arose out of the maintenance, use or operations of the pharmacy. Citing

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Servicone Constr. Corp. v Security Ins. Co., 64 NY2d 419 424 (1985)), the court held that “unlike a duty to defend, a duty to indemnify cannot be triggered by the mere possibility of coverage; rather, it is triggered by an independent factual finding that the insured’s liability is within the coverage provided by the policy.”

Wausau Underwriters Ins. Co. v. Old Republic General Ins. Co., 122 F.Supp.3d 44 (S.D.N.Y. 2015)

Construction manager’s GL carrier was directed to defend and indemnify hotel owner for costs and expenses incurred in defending owner in trip and fall suit by employee of security system provider. “Reasonable costs plus expenses” awarded dating back to the date when this DJ action was commenced.

Liberty Mutual Ins. Co. v. The Fairbanks Co., 2016 WL 1169511 (S.D.N.Y. 2016)

At issue was allocation of defense costs and indemnification relating to settled personal injury actions concerning exposure to asbestos. The court held that under New York law, a pro rata approach applied to allocation of defense costs and indemnification. This way, liability is spread across the different insurers and policies during the time when each was on the risk. The court held that joint and several liability was inconsistent with policy provisions which provided for indemnification for liability incurred as a result of an “accident” or “occurrence” during the policy period. Concerning an insolvent insurer’s “orphan” share, the court held that the insured should bear that share. It was not fair to attribute that share to other carriers since they were “a stranger to the selection process.”

“Ongoing Operations”

Mack-Cali Realty Corp. v. Peerless Inc. Co., 115 F. Supp.3d 449 (S.D.N.Y. 2015)

Lascon, Inc. had a contract with Mack-Cali Realty, the property owner, to remove snow at its office complex. The contract also imposed on Lascon a continuing duty to monitor conditions at the office complex. The contract had a broad-form hold-harmless agreement in favor of the owner, indemnifying it from claims arising out of Lascon’s operations and also requiring Lascon, Inc. to procure GL insurance naming the owner as an AI.

Lascon’s policy contained an endorsement naming as AI any person or organization whom Lascon agreed to add as an AI in a written contract. However, this endorsement also provided that such person or organization’s status as an AI ends when “that portion of Lascon’s work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as part of the same project.” (emphasis added)

Sheppard was injured in 2013 when she slipped on ice on a path to the building’s parking lot. Grossman claims she was injured in 2014 when she slipped on snow or ice on exterior steps leading from one suite to another. Each claimed that the snow/ice was not fully or sufficiently cleared. Mack-Cali sought a defense under the Lascon policy. Mack-Cali argued that Lascon’s obligations at the site were not “completed,” even though the injured parties fell after the snow plow had been put to its “intended use.”

The court held that Lascon’s carrier owed Mack-Cali a defense because coverage for “ongoing operations” has been construed broadly (citing Wausau Underwriters Ins.Co. v. Cincinnati Ins. Co., 198 Fed.Appx. 148, 150 (2d Cir., 2006)) Although the term “intended use” was perhaps ambiguous, the court construed that ambiguity against the carrier.

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Priority of Coverage

Town Plaza of Poughquag, LLC v. Hartford Ins. Co., 175 F.Supp. 3d 93 (S.D.N.Y. 2016)

Beekman Pharmacy was a tenant of Town Plaza, the property owner, for the original leased area plus a 2500 sq. ft addition. Beekman’s lease with Town Plaza required it to maintain liability insurance naming the owner as an AI on its GL policy for $3,000,000 for liability “claimed to have occurred on or about the demised premises.” The tenant’s policy stated that AI coverage is primary when the NI has agreed in a written contract that it is to provide primary coverage for the AI. The owner had a GL policy that stated it was excess “to any other primary coverage available to you….for damages arising out of the premises or for which you have been named as an AI.”

Luders was a patron of the pharmacy who tripped over a construction pallet left on the sidewalk adjacent to the new addition. Luders claimed insufficient lighting contributed to his accident. The tenant’s lease required it to install lighting and light the demised premises at its sole expense. The owner tendered its defense to the tenant based on the AI coverage in the tenant’s policy.

The court held that under Pecker Iron Works of New York v. Travelers Ins. Co., 99 NY2d 391, 393 (2003), the tenant’s policy provided primary coverage to the owner under the AI endorsement.

Muss Development, LLC v. Nationwide Ins. Co., 2015 WL 6160240 (E.D.N.Y. 2015)

Urban Power & Lighting, Inc. was the electrical subcontractor hired by the construction manager, Muss Development. The property owner, Flushing Town Center III, L.P., was deemed a third party beneficiary of this contract. Urban Power agreed to indemnify and defend Flushing and Muss from claims arising from Urban Power’s work. During the construction, Tishman Construction agreed to take over some of Muss’ duties, retroactive to the original contract date.

Urban Power’s contract included the Illinois National OCIP insurance manual, which required Flushing and Muss to be named as AIs on Urban Power’s CGL policy on a “primary and noncontributory” basis. This policy did NOT name Urban Power as an insured but did extend coverage to Flushing and other “named insureds.”

Urban Power obtained a CGL policy from Nationwide which extended AI coverage to any person or organization for whom Urban Power was performing operations, when the parties have so agreed in writing in a contract or agreement. It further provided that coverage is requested for bodily injury liability arising out of Urban Power’s acts or omissions in the performance of Urban Power’s ongoing operations for the AI. This policy stated that coverage was also subject to an “other insurance clause,” in which case the policy’s coverage was “excess over…any other primary insurance available to Urban Power” covering liability or damages arising out of the premises or operations for which Urban Power has been added as an AI.

One of Urban Power’s employees slipped and fell at the construction site, injuring his rotator cuff.

The court held that Muss was entitled to AI coverage under the Nationwide policy, which coverage was primary and must be exhausted before the excess coverage under the Illinois National OCIP policy becomes effective. The rule of ratable contribution did not apply, because the Nationwide policy provides that its coverage is primary except where there is other primary insurance available; whereas, the Illinois National OCIP policy indicated it was excess over any other insurance, including

190

other excess insurance, citing Amer. Transit Ins. Co. v. Continental Cas. Ins. Co., 215 AD2d 342, 343-433 (2d Dept., 1995)

Mecca Contracting, Inc. v. Scottsdale Ins. Co., 140 AD3d 714 (2d Dept., 2016)

Mecca Contracting, Inc. was the GC who hired Salcora Construction Corp. as its sub pursuant to a written contract. The contract between Mecca and Salcora required Salcora to name Mecca as an AI and that such insurance be primary for Mecca.

Salcora’ GL policy did not explicitly name Mecca but had a blanket AI endorsement: any person/organization which Salcora was required to add as an AI on the policy pursuant to a written contract would be considered an AI under the policy.

Amaya, an employee of a sub-subcontractor of Salcora, sustained injuries when his hand became trapped under a fire escape ladder.

The court held that Salcora’s GL policy was primary to any other coverage Mecca may have procured, and that carrier owed Mecca a defense in the underlying suit.

Forty Second Associates, Inc. v. National Fire Ins. Co. of Hartford, CNA, 48 Misc.3d 1211(A) (Sup. Ct., N.Y.Co., 2015)

Tenant Yaffa Wigs obtained a GL policy with a blanket AI insured endorsement. The carrier did not dispute that the property owner, Forty Second Associates, Inc., was an AI on this policy. The property owner had its own GL policy which contained an “other insurance” clause, stating that such coverage was excess over any other insurance, whether primary, excess or contingent or on any other basis. The tenant was obligated by its lease from the owner to have public liability insurance of $500,000 or more. Klein was the injured party who fell within the rented premises, the wig shop.

The tenant’s GL carrier declined to defend the owner, claiming that the owner had its own insurance so that at most, it would be responsible for no more than 50% of defense costs and that it is responsible for defense costs only after the date of tender. Citing National Union Fire Ins. Co. of Pittsburgh, PA v. Greenwich Ins. Co., 103 AD3d 473, 474 (1st Dept., 2013), the court held the tenant’s GL carrier was responsible for defense costs and expenses only after the date when it refused the tender.

The court declined to address the issue of priority of coverage because the owner’s GL carrier was not a party to this action, citing BP A.C. Corp. v. One Beacon Ins. Group, 8 NY3d 708, 716 (2007)

BP A.C. Corp. v. One Beacon Ins. Group, 9 NY3d 708 (2016)

It goes without saying that a court must review and consider all relevant policies at issue in determining priority of coverage. If all of the relevant policies are not before the court, and the issuing carriers are not parties, the court may not determine priority of coverage (citing State Farm Fire & Cas. Co. v. LiMauro, 65 NY2d 369 (1985).

Cost of Defense

Forty Second Associates, Inc. v. National Fire Ins. Co. of Hartford, CNA, 48 Misc.3d 1211(A) (Sup. Ct., N.Y.Co., 2015)

191

Tenant Yaffa Wigs obtained a GL policy with a blanket AI insured endorsement. The carrier did not dispute that the property owner was an AI on this policy. The property owner had its own GL policy which contained an “other insurance” clause, stating that such coverage was excess over any other insurance, whether primary, excess or contingent or on any other basis. The tenant was obligated by its lease from the owner to have public liability insurance of $500,000 or more. The injured party was a patron of the tenant’s business who fell within the rented premises.

The tenant’s GL carrier declined to defend the owner, claiming that the owner had its own insurance so that at most, it would be responsible for no more than 50% of defense costs and that it is responsible for defense costs only after the date of tender. Citing National Union Fire Ins. Co. of Pittsburgh, PA v. Greenwich Ins. Co., 103 AD3d 473, 474 (1st Dept., 2013), the court held the tenant’s GL carrier was responsible for defense costs and expenses only after the date when it refused the tender. The court declined to address the issue of priority of coverage because the owner’s GL carrier was not a party to this action, citing BP A.C. Corp. v. One Beacon Ins. Group, 8 NY3d 708, 716 (2007).

Mack-Cali Realty Corp. v. Peerless Ins. Co., 115 F.Supp.3d 449 (S.D.N.Y. 2015)

The owner sought coverage under the snow plow contractor’s coverage for the cost of defending two personal injury lawsuits brought by patrons who slipped and fell on premises where the contractor failed to effectively remove all ice/snow.

After finding the tenant’s GL carrier was required to provide a defense to the owner in the tort suit, the court directed it to reimburse the owner for all litigation expenses thus far incurred, citing Urban Resource Inst. v. Nationwide Mut. Ins. Co., 191 AD2d 261 (1993).

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./

. PROJECT SITE ENTRY AGREEMENT

PROJECT SITE ENTRY AGREEMENT (the "Agreement') date~ras of the' 29th .. day of'June , 2009 -(the "Effective Dat~") by and between . ,,' S' .,with ~ principal busmess address at 0 itt. ; 5 (the."Contractor") and • with.a pdncipal business address at III. .1. ' pl. I (the "Sub~Cpntractor"'), 'at:tached to and fanning a part .Dfllie contract between the Contractor.and the Sub-Contractor with respect to the project' .and/or site located at RL £ 7 t (the "Project Site"). For' ...purposes of thi~ Agreement, "Owner". Shallll.m.e.an~::::~."IIiIlil •• '"_ •• with a principal business address at1. In consideration of the mutUal promises contained. herein and other good and valuable'consid~ration, the receipt and'~ci~ncy of which is acknowledged, Cont;ractor.and Sub':"Contractot agree as follows: . ..' . .' .. ': . . '. ...

1. .. Subject to the ternis anq. conditions set forth in thi$ Agreement,Conh:actor d~es .~..hereby give permission to ~u6~Contractor to. enter the Project Site.

2. The Slib-C'ontractor ~aives all rights against the.' Contractor and' the OWJ.'),erarid' .each of their agents,' employees, contractors or sub.-contnictors for 'damages caused by.fire or other perils to the extent qovered by.property insurance obtained p:ursuant to this: ..Agreement or other property insurance applicable to'the work at the Project Site except.such tights as they:have to proceeds of such'insurance held by the O~eJ; as fiduciarY.

. The Sub-Contractor shall 'require it.s. sub-contractors, agents and .employees of .~y'of. ..them,. by appropriate agreements, written where legally' required for validi.ty;' siinilarwaivers each in favor'ofth~Contractor'and the Owner'.. Th.e policies shall provide such

.waivers oJ subrogation by endorsernen~ or otherwise. . '.

".. '

3. The Sub~Contractor shal~purcha.C)eand m~t~ the following nu~Um'li.m.its ofinsurance CO\' age.' or t' e . . e£--insurance' cov e provide4,for in the written ..contract betwe n Owner.and'Contractor clat.ed'10/20/0S, 0 .as'required.by1aw, whicheveris ireater: '. : .' . " . '. . .

.a..Commercial Gen~ral Liability.

(1) C;yerage will include' 'premises .and operations, contractor's .. protective. Products/Completed Operations, contractual liabiliry-, personal

injury, full explosion, collap~e and ~mderground coverage.' . .

. (2) Limi~: of liability will be at'le~t $1;000,000 per occurrence'(Coverage 'A), at-least $2,OOO~OOOgenera1.aggre'gate; at least $1,000,000 .'per anyone person or .organization (Cc.>verageB), and at least $2,000,000'for ~roducts/Coinpleted Operation~ aggregate.

~3) .,. .Owner.~'d. C:Qntr~cto'r~e. t~ be named as ~n additlopal' i~llred o~' ' .. ' :. :.. a prunary, non-contributo:r: b.asts. ~ .. . .' . '. . ....

. ; ... ..0/ .

. I

. i

. ,:.

193

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'., '.

(4) :Eridorserilents' to in~l~9-~th~ ~e~er~i'agg~eg~t~ per 'project 'form: ", ,CG2503, ,a waiver of subrogat~-ori rights against: Ovvner 'and 'Coritr~tor; '''-'',arid thirty' (30) days prior 'written'noticeofcancel1a:tion br'non~renewal;'" " ',..'. . . '. . .' '.

b. Business Automobile iiability~, , ,

. ..(i) 'Cover~ge wi1l'include, all owned, non-owned. le~~d and hiredvehicles, , ' ,

,: (2), " Limits,' 'of'. liab,ility \:Vith' combined: bodily ,in]Ury,',and' 'propefty ',':damage willb,fat lea&t $1,OOO~OOO'per occurrence, . , '

'(3) 'o'-wner and C~ntractor are to ,be named as an additional insured ~~, "a primary, non-contributory basis. ' ,',',."', ' :, ' ' ,: , ' , "",

(4) Endorseme~t~ to' ~cl~dea 'waiyer of, s~br:ogati~n ,righ~~ ~ga~~ ' ,Owner and, C,ontractor and' thirty: (30)" dl;1ysprior written notic'~ of

, cancellation orno~:.renewaJ.. ' ' ' ",

c. Statutory Workers Compensation', ' ... . .'

(1) ,Coverage will include all employees. ,including corporate q.fficers,.,',partners'andsole p~opri~tors., " " ,', ,

',(2) " Unlimited liability. ' ,

, ,(3) ,"E~dorsements t6 Jritlude a waiver ~f ~u~rbgati6n ri~ts'ag~st ':.- " ':' ',:,' Owner, and '~ont~actor and., thirty (3Q) , d9-Ys, prior ',,~itten ,~otice" or' ".' ,

, cancellation or non-renewaL , , '

d. Builders RisklInsiallationFloater. ''" (1') ,', Covera~e ~ilinC1ude au, m~te~a1~ and' supplies "vsedfor. the '

'.'project that are tPe re~pcinsibility of the Sub-Contractor; ,AlI,matelials and . .-'supplies will be subject to the Sub-Contractor' s ~ri$urance1.l11tinheProJect,

is accepte,d by the Contractor and C?wner~ ,,' ,(2) ',Lill1it~ of liability will be the subcontt~act 06st f~~the'project

(3) Owner ~d Contractor ~e t~ b~~ani~,4as l~ss pay~b. ',' .. (4) "Enciorsemen~s'to include a'~aive.r of"s~b'roga~iml'ri~ts' 'against,'

, ' Own.er' and', Contractor 'and thirty' (30) days prior,' written notic~, ofcancellat~on or ,non-renewal. ' ' ,". '. .' . .' . .,

~. .tJmbreIlalExcess Lhi.bility. , ".. "(I) ,Lirriits of liability will be at' least' $,1;000,000 per pccUlTence. "at, ' ,least, $1.000,000 'ProduytsJCompleted Op~rations aggregate, ','at' .. [eils~' " ,

,: $1,600,.000 general,' aggregate,., at ,i.east '.$l,~OO.ObO, per, occurrence' ,:.(Coverage: A). ~d ::at'-Ieast ,$1,000;000 ~y one- ,person ,or organization(Coverage' B). ' , ' ", ' , " '

(2) OWner' ~d,Co~tractor are t~be 'n~ined as ~ additio~ahns~ed',on~, .'primary, no~-contributory, basis.' ' .

"

:;. .

:.' .

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',. (3)"Endorsements to include excess coverag~ over the pe~ P!oJectgerieral '.' : '. " .'8.ggr~gate,' a wai.v~r .of subrogation rights. agillrist Owner and'" "COJ?tractor,and .thirty (30) days prior written ..notice of cancellation 'ornon-renewal.. . .

4. 'Coverages will be 'maintained with.o~t interruption from date of .co~ei1ceme~t', ',',of the ',:work on the proje9t until. date of final paymen,t .and termination: of any coverage .required to' ~e maintained after 'final payment ,or until no person. or entity'other than .Owner has an insurable interest in the property.' .

. . . .5.' All equipment owned by Sul?-Contractor 'and/or wed at the Project Site, wiU bethe sole' responsibility of the SUb:-CQlltractorand will be insured or self.insured by' the'Sub-Contractor, The Sub-Contractor will be solely. responsible for any damage"to' .equipment caused by Bub-Contractqr's use. of ,the. equipment, and the ContrMtor andO'01er will be named ,as ad~itional.insured 'on a prim:ary basis on any insurance, poiicy'

. obtained for physical damage to the equipment, ...',.. ' . ,'. .',.;.. ' ".. .. . . ,

'. 6,' . Sub~Co~tractor wili provide OYiin~r~d Co~tractor wttl~,a,certific'~t~ '~f ins~~~ ':, at least ten (10) working days prior:to .commencement of ap,y work on the:projecf atid;

thereaikr; within forty.eight (48) hours of request by 't;he'Owner :or C~:l,ntractor,'All :cert~cates of insurance will provide thirty (30) 'days notice to' Contractor and Owner,ofcancellation or non-renew8.1. Iftformation co!).c.~tningreduction of coverage on 'accoun~ ..

. of r~vised Umits or claims ,paid,under the General Aggiegatl;l" or bpth, shall be furnished,by the S.ub~Contractor with reasonable promptness in" .accordance with. the" Sub-:Contractor's informat;on '~dbelief, Failure',to 'Comply with,'these proyis~ons ~hall beconsidered, a delay by the Sub~Contractor. No. wbrk on the p:J;:OjectshaUcommence' untilsuch time as the conditions of this paragraph are niet by the Sub~Contract6r.' ,

. .

7, . Suq-Contractor's ,right to ',enter ont~ the :project Site 'is .subject t~ 'ii.nrrieiiiate'.'cancellation if,Sub~Contractor does not provide Contractor andi.or'Owner With evidenceof required i:ri.suiailce'.cov,erage, incfudfug .Sub-Subc9ntractoi's' coverage, WIthin forty-"eight (48) hours of request. . '. ". ." "

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".

'." ". '. '. ~. ':.....

.": .

" .8" '. All, ins~anc~ .required wui be' placed' :with insuran~e c9~p~es': .lice~sed to d~ '.' ..:, '.. . , .. :.

'business in the State 9fNew York; with a "Best's" rating, of "A", or better. ' : , ",' ,., .. " :: .. ' . . .' . . " . ,"

, 9. ~~b~Co~tractor' hereby represents and w~atits that' the in~vi~~~ '.~'igning.th~~ " .Agreement on: its behalf is ,authorized to .sign this document and, .if requested 'by"Contrlictor •. y,rill provide' evidence of.such authority wj.ili.in tWenty.,four'.(24} ho~.s'of :' ...request.:

. 10. ' Sub-Contractor agrees to requite any an4 ,all s\ib~sub-contractors hired t~perforci'. ~'ork on the,.project t9 obtain' ~nsul'anc~coverage as provided 'for in P~gr~pl~ 2,of'this'Agreement .. Ail such insurance' coverage shaH .name the. Owner and theContJ;'actoraS.ail .

, additional insured on a primary, 'non,,'contrlbut0rY basis .. ' Sub':Contractor: must prqvld~.,.'Contractor with, valid certificates of, hisurance for each 'sub~sub~contractor at Jeast ten'. ". .,' .' ." " . . . ' "

"

195

. ,•• , t

(10) :vorking days. prior t~ s~b-contractor;s comrp.encel11e1J.t o:f any work ~n the proj~ct or.: ently onto ..the Project Site' .. 'All. sub-contractors' in~urance carriers are subject'to .the

. . .",'. rev~ewof Contractor and Owner.'

': ' .

1i. .Sub-Contractor agre~s .to require any aud all'sub-~ontractorshired' to. perform .:work on the project to execute. a Project Site, Entry A!1;reement"and' a.i:l'Indemnification

. Agreement with provisions identi9al to or substantially similar ~0 those. proVided for in., .. Exhibit. "A" annexed .hereto. 'S'l;l.b:-Contractor'ml,lSi. ~rovide Contractor \0.th,.a .yai~dly, . executed copy of ,any such' agreeinents~t leaSt ten ..(lO) working day's'.prior to'sub;

contractor's COmrriencementof any work on the projeytorentryonto 1:1;1eProjecfSite. " " .

12. . This. Agreement' snall be go'y'emed and c~)llstnied ill 'acCordance with 'the 'l~w~''of .'.:the State of New York, without regard to its. choice 9£ law rules. All suits related to or' ...arising underthe'Agreem,ent shall be conunenced in, andven:uesh.a11 r~st exdu~ively.in~either the stat~ or federal CQut'ts located in Rensselaer Courity, New York. in. the' event.any pr6visioq 6tthis Agreement is.'held to be unenforceable or \'9i~able: bya.coui-(.the.' ....enforceability of the reillaiclng .provisions shall not. be' .f!£fected and" in lieu. of .such .

.unenforceable' or voidable provision, there shall be added' automatically provisions :assimilar in terms as may be 'e~orceab.le under applicable law. . "', . . '.' .

INWITNE~'S:WHEREOF, .the parties hereto have execu~e.d.tbis.Agreem~i:l.t.as of'the'Effective Date, .' .

. - - .Sub-Co'ntr~dor'.

13

,Signature:

By:

'Title:~'.

---------Contractor

, Signature:'

',.By:

'. Title ...r

....

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196

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197

198

OPENING STATEMENTS IN LABOR LAW CASES

William T. Little

Law Office of Teresi & Little, PLLC.

21 Colvin Avenue, Albany, New York 12206

I. OPENING STATEMENTS

a. Goals for opening statements

i. Establish rapport with the jury.

ii. Establish credibility with the jury.

Show the jury you are a credible source of information and why

they should rely on the evidence you present.

Know the facts, dates, locations and relevant laws, statutes and

codes.

iii. Clarity

Provide a clear understanding of what the case is about.

The most important task in opening statements is to avoid

confusion.

Presenting your case in a clear and concise manner assists the jury

in determining credibility.

iv. Tell your story

b. Do’s and Don’ts of opening statements

i. Stick to the facts.

ii. Avoid argument until you have established credibility with the jury.

Educate the jury first before you advocate.

Early advocating may result in pushback from the jury.

iii. Keep it simple

Avoid confusion.

Don’t provide too much information to the jury.

iv. Don’t overstate or exaggerate your case to the jury.

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Limit your opening to what you know you can prove during the

trial. If you overstate your case or fail to deliver on a promise you

will lose credibility with the jury.

v. Know the elements, specific statute, rules and regulations and apply to the

facts of the case and the individual defendants.

Although granting of trial order of dismissal is generally

disfavored it is possible that a court may grant the request if

plaintiff’s counsel makes an admission during opening statement

or fails to address an essential element of the case.

Jones v. Davis, 307 A.D.2d 494 (3d Dept. 2003) In finding that the trial

court erred in dismissal of the defendant’s cross claims the Appellate

Division, Third Department held that counsel did not make a factual

concession to preclude recovery and noted that “the practice of dismissing

a complaint at the conclusion of counsel’s opening statement is disfavored

and should only be done if on the opening it becomes obvious that the suit

cannot be maintained because it lacks a legal basis, or when taken in its

strongest light, cannot succeed.”

Beshay v. Eberhart, 69 A.D.3d 779 (2d Dept. 2010) Plaintiff worker

sued defendant owner, alleging Labor Law §§ 200, 240(1), 241(6), and

common-law negligence claims, and defendant manufacturer, alleging,

inter alia, a products liability claim. During plaintiff’s opening statement,

counsel admitted that the worker was wearing protective eye gear just

prior to the time of the accident, but was injured when he removed the eye

gear in order to clean it. Following plaintiff’s opening statement, the

owner and manufacturer moved pursuant to CPLR 4401(a) for judgement

as a matter of law. Supreme Court, Queens County, granted the CPLR

4401(a) motions and dismissed the complaint after plaintiffs’ counsel

indicated that he would not change his opening statement if given a chance

to “reopen.” Plaintiff appealed to the Supreme Court, Appellate Division,

Second Department, which held that dismissal of a complaint after

plaintiff’s opening statement is warranted only where it is demonstrated

either: “(1) that the complaint does not state a cause of action, (2) that a

cause of action that is otherwise stated is conclusively defeated by

something interposed by way of a defense and clearly admitted as a fact,

or (3) that the counsel for the plaintiff, in his or her opening statement, by

some admission or statement of fact, so completely compromised his or

her case that the court was justified in awarding judgment as a matter of

law to one or more defendants.” However, when the complaint, in

conjunction with plaintiffs’ bill of particulars, states a viable cause of

action, dismissal is not warranted. Accordingly, the judgment was

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modified by denying the owner’s and manufacturer’s motion for judgment

as a matter of law with respect to the Labor Law § 200, common-law

negligence, strict products liability and warranty of fitness for a particular

use causes of action, finding that nothing in the plaintiff’s opening

statement precluded the possibility of recovery under those theories.

vi. Do not introduce facts during opening statements that you have no

intention of proving at time of trial or to poison the jury. This may be

deemed by the court as inherently unfair warranting a new trial.

Rodriguez v. City of New York, 67 A.D.3d 884 (2d Dept. 2009) During

defense counsel’s opening statement he argued to the jury that the

plaintiff’s disability stemmed from “lung problems, sepsis and his

treatment with interferon for hepatitis C.” Plaintiff’s counsel objected,

arguing that there would be no testimony with regard to those issues or

concerns. The court overruled plaintiff’s objection and commented on

several of the plaintiff’s unrelated medical conditions. The Appellate

Court reversed the case and ordered a new trial, noting that the defense

attorney’s comments were improper and deprived the plaintiff of a fair

trial. The court further stated that the court improperly injected itself in

the trial further serving to deprive the plaintiff of a fair trial.

vii. Don’t talk down to the jury

Don’t lecture or preach to the jury. “This is what we lawyers call

opening statements.”

II. OPENING STATEMENTS – PLAINTIFF

a. Concentrate on what the defendant did wrong and minimize pity for your client.

i. The time to focus on your client will come at a later point in the opening.

b. Focus on the rules, laws and statutes violated by the defendant.

c. Explain to the jury why the specific rules, laws or statutes were implemented.

i. Principal objective and purpose stated in the Legislature history of

Sections 200, 240(1) and 241 of the Labor Law is to provide for the health

and safety of employees.

ii. Commonly referred to as “Safe place to work” statutes.

iii. New York Codes Rules and Regulations.

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d. Connect the violation of the specific rules, laws or statutes by the defendant to the

harm caused to the client.

e. Tell the Jury what you are asking for before you sit down.

III. OPENING STATEMENT – DEFENDANT

a. Define your client’s role on the construction site.

i. Is your defendant the owner, contractor, or construction manager.

ii. Responsibilities and duties of the owner, construction manager, and

general contractor.

iii. Who supervised and controlled the plaintiff.

b. Know the applicable affirmative defenses

i. Exemptions

ii. Trespassers

iii. Supervision or control

iv. Scope of work performed by the plaintiff at the time of the injury

v. Recalcitrant worker

vi. Was the plaintiff’s actions the sole proximate cause of the accident

vii. Did the plaintiff plead specific Industrial Code Violations

viii. Comparative fault - Labor Law 241(6) or (7) cases

c. Concentrate on the plaintiff’s actions or the conduct of the co-defendants

i. Apply the affirmative defenses to the plaintiff’s conduct

ii. Indemnification or contribution – Indemnification or contribution is not

precluded by the fact that the duty is non-delegable. McCarthy v. Turner

Constr. Inc., 17 N.Y.3d 369 (2011)

d. Expert witness testimony

i. Liability

ii. Damages

Vocational Rehabilitation Expert

IME

Economist

Medical records

Pre-existing conditions

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Developing a Strong Trial Theme 11/16/2016

The Importance of the Opening Statement –

Strong Trial Themes Through Storytelling

NYSBA – Labor Law Claims, Coverage & Litigation

December 16, 2016

John D. Gilleland, PhD

jgilleland@decisionquest.com

Agenda

Part I

Part II

Part III

How Do Jurors Process Information?

Persuasion Considerations in Jury Trials

Creating a Persuasive Narrative

2

Part I: How Do Jurors Process Information?

3

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Developing a Strong Trial Theme 11/16/2016

What Makes Jurors Tick?

© 2016 DecisionQuest | 4

Decision Making Psychology 101

© 2016 DecisionQuest | 5

Scenario

Novel and ritualized environment

Unfamiliar language

Conflicting versions of the facts

Asked to make profound decisions

© 2016 DecisionQuest | 6

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Developing a Strong Trial Theme 11/16/2016

Mental Process

Story developed early in trial

Experiences and beliefs used as framework

Selectively filter information

Expect witnesses to tell them the answer

© 2016 DecisionQuest | 7

Filtering Information

Attitudes, Experiences, and Preconceptions

© 2016 DecisionQuest | 8

Filtering Information

Attitudes, Experiences, and Preconceptions

Case

Information

© 2016 DecisionQuest | 9

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Developing a Strong Trial Theme 11/16/2016

Filtering Information

Attitudes, Experiences, and Preconceptions

Case

Information

© 2016 DecisionQuest | 10

Mental Process

Decisions made quickly with relatively little information

Jurors focus on a small number of issues and facts

Primacy and recency effects

Nonverbal vs. verbal cues

© 2016 DecisionQuest | 11

Perception Is Reality

© 2016 DecisionQuest | 12

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Developing a Strong Trial Theme 11/16/2016

Preconceptions – Color Perceptions

© 2016 DecisionQuest | 13

Perception Blindness

© 2015 DecisionQuest | 17

Perception

We see and hear whatwe want to see and hear.

© 2015 DecisionQuest | 18

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Developing a Strong Trial Theme 11/16/2016

Perception

Most people listen

just some of the time

© 2015 DecisionQuest | 19

The Changing American Jury

© 2015 DecisionQuest | 20

Demographic Shift

Meet today’s juror, so overloaded with information that he can barely focus on the important things in his own life. Chances are, more than half the jurors on any given panel belong to Generation X or, even worse, Generation Y – raised with a television in every room, surfing the Internet, cell phones in their pockets and iPods in their ears.

Trey Cox, “Information Age Saps Jurors’ Attention,”

The National Law Journal (February 6, 2009)

www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202428037744

© 2015 DecisionQuest | 21

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Variability in Learning Styles

The concept of “learning styles” suggests there is no one best way to educate every person. Instead, people are presumed to have different strengths and preferences concerning the manner in which they perceive, process and retain information.

"Tactics, Ethical Considerations in Leveraging Demonstratives,”

Rhode Island Lawyers Weekly (February 9, 2009)

http://rilawyersweekly.com/blog/2009/02/09/tactics-ethical-considerations-in-leveraging-

demonstratives/

© 2015 DecisionQuest | 22

Jurors Have a Predominant Learning Style

Several models have proposed various ways to describe the learning styles concept, suggesting that people tend to represent information primarily as words or as images, and that people vary in terms of which modality induces them to learn most optimally (i.e., visual, auditory or kinesthetic touch).

"Tactics, Ethical Considerations in Leveraging Demonstratives,”

Rhode Island Lawyers Weekly (February 9, 2009)

http://rilawyersweekly.com/blog/2009/02/09/tactics-ethical-considerations-in-leveraging-

demonstratives/

© 2015 DecisionQuest | 23

Jurors Rely More on Visual Processing

"Tactics, Ethical Considerations in Leveraging Demonstratives,”

Rhode Island Lawyers Weekly (February 9, 2009)

http://rilawyersweekly.com/blog/2009/02/09/tactics-ethical-considerations-in-leveraging-

demonstratives/

Not surprisingly, 29 percent of American adults rank at the “basic” level of literacy (able to perform only simple and everyday literacy activities); 14 percent rank as “below basic”; and only 13 percent rank as “proficient” at performing complex and challenging literacy activities. Put another way, most jurors on your jury spend far more time consulting their “visual sketch pad” than their “verbal diary.”

© 2015 DecisionQuest | 24

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Jurors Must Utilize Visual Imagery

The bottom line is that visual images, rather than words, dominate most people’s thinking, and visual images are the modality through which most people are most comfortable and best able to learn.

"Tactics, Ethical Considerations in Leveraging Demonstratives,”

Rhode Island Lawyers Weekly (February 9, 2009)

http://rilawyersweekly.com/blog/2009/02/09/tactics-ethical-considerations-in-leveraging-

demonstratives/

© 2015 DecisionQuest | 25

Lawyers tend to think of themselves as orators first…but they should really be thought of as presenters

Part II: Persuasion Considerations In Jury Trials

27

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Developing a Strong Trial Theme 11/16/2016

Many Decisions Are Made Via Peripheral Processing

Audience Processing Persuasion

Peripheral Route

Low effort:use peripheral cues,rule-of-thumb heuristics

Cues trigger liking and acceptance, often only temporarily

Not analytical or involved

Central Route

Persuasive Appeal

Response

Cogent arguments evoke enduring agreement

Analytical and motivated

High effort: elaborate, agree, or counterargue

28

Dual Routes to Persuasion

29

Top notch credentials

and he’s kinda cute.He blinks a lot and

fidgets before he

answers tough

questions.

He makes a very

good point about

publicly available

information.

Who will compensate

me for MY losses

from the market

crash.

I’m angry that Wall St.

hasn’t paid for the

problems it caused

but this guy is making

good points for

his case.

He looks like Donald

Trump, and I can’t

stand the Donald.

I’m just a cashier, I

don’t understand his

points, but corporate

fat cats will lie to save

their skin and the

company.

The Lawyer

The Jury

The Story Model

Nancy Pennington, Reid Hastie,

“Explaining the Evidence: Tests of the Story Model for Juror Decision Making,”

Journal of Personality and Social Psychology (1992)

Jurors actively build stories based

on the material presented at trial

and then fill the gaps in the

narrative with their own personal

experience and knowledge.

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Developing a Strong Trial Theme 11/16/2016

The Process Is as Important as the End Product

Cognitive Load

Arousal HighLow

Per

form

ance

Wea

kS

tro

ng

Simple Task

Focused

attention,

flashbulb

memory, fear

conditioning

Difficult Task

Impairment of

divided attention,

working memory,

decision-making

and multitasking

Chunking

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Developing a Strong Trial Theme 11/16/2016

Chunking

Chunking

Chunking

213

Developing a Strong Trial Theme 11/16/2016

A Picture Can Be Worth a Thousand Words to Capture a Theme

The Shift to Visual Learning

Trial Calls for Inductive Reasoning

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Developing a Strong Trial Theme 11/16/2016

• Argues from the particular to the general

• This particular ice is cold and the ice I

touched yesterday is cold therefore all ice

is cold.

Inductive Reasoning

• Lawyer and witnesses present fact one…

• Followed by fact two…

• Followed by fact three, etc.…

• Presumption: Jurors will assimilate all ofthe facts and be in our favor

Inductive Reasoning

• A cognitive system that helps us organize

and make sense of information

Schema

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Developing a Strong Trial Theme 11/16/2016

• Jurors make sense of the case by creating

a story or schemata with the evidence

• Jurors use their own personal attitudes,

experiences, and beliefs

• Without a schema, juror confusion results

Schema

• Helps jurors organize evidence

• Helps jurors recall gist and themes

• Causes jurors to ignore or “rewrite” the

opposing side’s evidence

Schema “Pros”

Part III: Creating a Persuasive Narrative

45

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Developing a Strong Trial Theme 11/16/2016

Developing the Story

© 2016 DecisionQuest | 46

Facts Provide the Foundation –Themes Persuade

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Developing a Strong Trial Theme 11/16/2016

Basics of a Story

Incomplete

Take a moral stand

Involve a unique occurrence

About unique people

Driven by motives

© 2016 DecisionQuest | 49

Steps to a Better Story

Tell the story before they hear the evidence

Identify a clear moral theme

Reaffirm what jurors already believe

Embrace opponents best facts (preemptive strike)

Stay in bounds

© 2016 DecisionQuest | 50

Steps to a Better Story

Stories are distinct from drama

The best defense is a good offense

Be succinct

Learn the folk psychology of your case

© 2016 DecisionQuest | 51

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Developing a Strong Trial Theme 11/16/2016

Themes work to:

Organize elements; convey the essence of the dispute

Make key evidence salient

Suggest motives

Advance your theory of the case

© 2016 DecisionQuest | 52

Identifying Your Themes

Start with a list of key case issues

Construct phrases that characterize the issue

Don’t have more than just a few main themes

The best themes are not always verbal

Themes are a crutch that helps jurors piece together

the complexities of a case

© 2016 DecisionQuest | 53

Three Questions To Cover With Your Themes

What is this case about?

Why did it happen?

Why are we here?

© 2016 DecisionQuest | 54

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Developing a Strong Trial Theme 11/16/2016

Thematically Speaking

Opening Case in Chief Closing

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Concepts to Consider When Developing Demonstratives

56

Context

Step by step

“Prove it”

57

Confidential Data Remains Within the Exchange

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Developing a Strong Trial Theme 11/16/2016

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What Did Barnes and Clark Do?

Barnes and Clark violated the

Exchange’s policies and

procedures.

Four Areas At Issue

59

1. Complied with the Law

2. The Facts Confirm Compliance

3. Genuinely Believed it Wasin Compliance

4. Ms. Smith Simply Got it Wrong

What is this case about?

Why did it happen?

Why am I here?

Creating a Persuasive Narrative

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Developing a Strong Trial Theme 11/16/2016

• In a legal story it’s the first two to threeminutes of the opening statement

• Sets climate or atmosphere for the story

• Critical component as it affects jurors’perception of the rest of the story

What is this case about?

Creating a Persuasive Narrative

Why did it happen?

Creating a Persuasive Narrative

– ACT (What was done?)

– ACTOR OR AGENT (Who did it?)

– MEANS (How it was done?)

– PURPOSE/MOTIVE (Why?)

– CONTEXT (What are circumstances?)

You are the Director

If you fail to answer one

of the questions jurors

have, jurors will do it for

you…

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Developing a Strong Trial Theme 11/16/2016

Why am I here?

Creating a Persuasive Narrative

• Jurors will be instructed to evaluate bothsides’ stories

• A key ingredient of every good story -

whether narrative, film, or trial - is conflict

• This section allows you to loop back to the

themes presented - resolving the conflict

• Central processing over peripheral

processing

• Stronger/resistant attitudes

• Provide a compelling story so jurors are

more interested in content vs. peripheral

factors

Ultimate Goal

Storytelling is Paramount: A Case Example

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Developing a Strong Trial Theme 11/16/2016

• Bill is a salesperson for a trucking company andhad a company car

• Drunk driving accident

• Question about course and scope ofemployment

• Turns out Bill had another DWI w/prior truckingcompany

Case Study

If an employee decides to drink alcohol,

drive a company car, and then causes an

accident…

24%

5%

52%

19%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90%100%

The employee is responsible for theaccident.

The employee is responsible for thatemployee's conduct.

Both the employee and the company areresponsible.

It depends on whether the employee wasworking at the time.

40%

33%

17%

10%

0%

20%

40%

60%

80%

100%

Strongly agree Somewhat

agree

Somewhat

disagree

Strongly

disagree

Companies that allow employees to have company

cars are always responsible for any injuries the

employee causes while driving that car.

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Developing a Strong Trial Theme 11/16/2016

Among all the types of drivers on the road,

which of the following is the most dangerous,

in your opinion?

5%

0%

7%

0%

83%

0%

5%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Drivers without a license

Uninsured drivers

Drunk drivers

Drivers in trucks and semis

Drivers who are tired

Drivers who speed

Drivers on cell phones

• CZ Trucking conducted a thorough backgroundcheck on Bill Bunnell

• CZ Trucking allows its salespeople to use thecompany vehicles both on and off work and BillBunnell was not working at the time of thisaccident

• CZ does not allow any drinking while drivingcompany vehicles

• Bill Bunnell was the cause of this accident,not CZ

Prior Themes

• Bill Bunnell broke his contract with CZ Trucking

Company.

• Bill Bunnell has a history fraught with deception

and lies.

• CZ Trucking Company’s background checks

exceeded industry standards.

• Bill Bunnell dodged the system—twice.

New Themes

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Developing a Strong Trial Theme 11/16/2016

• Start with Bill Bunnell filling out the

application and signing the contract.

• Keep the focus on him…details.

• When the tone is set, shift back to respect

for the plaintiffs but CZ’s right to be

defending itself.

The First Few Minutes of Opening:

• Jurors sought to blame Bill Bunnell

but…also blame on CZ.

• Not motivated to find in CZ’s favor

• Unlikely we would get them there directly

but perhaps indirectly…

Motivate Jurors to Find for Your Client

Testable Themes

Get ready to root for the angry guy.

He acted as if the rules didn’t apply to him.

My client doesn’t compromise with people that steal.

The plaintiff didn’t act responsibly then, and is refusing

to take responsibility now.

© 2016 DecisionQuest | 75

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The Importance of Opening Statement – Strong Trial Themes Through Storytelling

Speech Agenda – Approximately 1 hour presentation

12:00 – 12:50 CLE presentation

12:50 – 1:00 Q & A

This CLE program discusses the impact of the opening statement on jurors’ perceptions of the

evidence, and how the concept of storytelling can heavily influence how jurors process that

information as it comes in during the trial. Specific examples from employment matters will be

utilized throughout the program, detailing how Labor & Employment cases are especially

susceptible to the storytelling model, including the five places that jurors always go in thinking

about employment disputes.

I. THE POWER OF STORYTELLING (5 MINUTES)

A. The “story model,” developed by social scientists Nancy Pennington and Reid Hastie in 1992

(Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 Journal of

Personality and Social Psychology 189 (1992)). Jurors actively build stories based on the

material presented at trial, and more importantly, then fill the gaps in the narrative with their

own personal experience and knowledge.

B. From oral traditions to visual and multimedia formats

1. Use visuals to narrow the focus and organization of your case

a. Identify problematic areas and develop compelling themes

b. Use visuals to support those themes

II. HOW DO JURORS PROCESS INFORMATION? (10 MINUTES)

A. Understanding audience’s expectations, characteristics, and predispositions

1. Understanding what makes jurors tick and why they behave the way they do

a. Inexperienced with courtroom settings

b. They will build a framework and selectively filter incoming information

c. Attitudes and experiences drive decision-making

i. Demographics may drive attitudes and experiences

2. Examples of perceptions driving decisions

B. The changing American jury

i. Younger

ii. Different types of learning styles

iii. The shift to visual processing

C. Routes to Persuasion

i. Central (or systemic)

ii. Peripheral (or heuristic)

iii. The story model

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1. The process is just as important as the end product

2. Be aware of possible cognitive overload

3. Chuck your information

4. Visuals can work to tell the story/theme

5. Schemas (or frameworks) help us to organize information

D. Inductive reasoning is in play at trial

III. CREATING A PERSUASIVE NARRATIVE – THEMES PERSUADE (20 MINUTES)

A. Humans think in narratives, and as a result, this affects jurors’ acceptance or rejection of a

case at trial.

B. Given the narrative nature of humans’ thinking processes, how a case is framed thematically

can have a dramatic effect on the outcome

i. Facts lay the foundation – themes persuade

ii. Themes help cognitively organize elements that convey the essence of a dispute

iii. Themes highlight key evidence

iv. Themes suggest motives

v. Themes advance your theory of the case

C. Identify your themes

1. Start by creating a list of the case issues.

2. Next, construct a phrase or statement that characterizes the opposing party and

another that characterizes your client. Typically, heightening the contrast between

the two is the goal. For example, if the plaintiff can easily evoke a sympathetic

narrative of the “powerless victim,” then defense counsel’s goal is to change the

narrative to one of personal responsibility. For instance, in a case involving exposure

to chemicals in a workplace, reframe the “failure to post warning signs” narrative to a

“failure to wear proper protective gear” narrative.

3. The third step is to tell the story of the case in a five- to 10-minute narrative, which is

roughly two to four written pages, introducing themes and previewing the evidence

that supports each theme.

4. Generally speaking, it is best to have a few themes, but no more 2 or 3 so that jurors

can easily remember them at trial.

5. Cognitive load: The higher an individual’s cognitive load or the total amount of

mental activity imposed on a person’s memory, the more challenging it is for them to

process information.

6. A juror is more likely to take mental shortcuts when the cognitive load is high (e.g.,

basing expert credibility on credentials rather than testimony).

228

7. The best themes are not always catchy phrases or even verbal at all. Using a visual

aid to convey a theme is just as powerful as a catchy phrase.

1. A picture can literally be worth a thousand words if it effectively captures the

essence of the case theme.

2. Themes provide a useful “crutch” for jurors to assist them in understanding or

piecing together the nuances or complexities of a case.

IV. Three Questions to Address With Your Themes (10 MINUTES)

A. What is this case about?

i. Start your opening with an overview – setting the stage – what is this case

about?

1. …unfair competition

2. …a man who felt the rules didn’t apply to him

B. Why did it happen?

i. What was the act(s)?

ii. Who were the agents (protagonists)?

iii. How was it done?

iv. Why was it done?

v. What were the circumstances?

C. Why am I here?

i. To resolve a conflict

V. Developing a compelling story (5 MINUTES)

A. Case study

i. The events

ii. What will jurors believe

1. Collect empirical data

2. Use those lay perceptions to generate your themes/story

iii. The existing company themes

iv. The new – more responsive to preconception – themes

B. Testable theme exemplars

VI. QUESTIONS (10 MINUTES)

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VVooccaattiioonnaall RReehhaabbiilliittaattiioonn EExxppeerrtt

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TO ALL MY DEFENSE FRIENDS:

PLEASE REQUEST A VOCATIONAL REHABILITATION EXPERT!

Presented To The

Labor Law Claims, Coverage and Litigation Section

New York State Bar Association

December 16, 2016

By: Vito A. Cannavo, Esq.

Sullivan Papain Block

McGrath & Cannavo P.C.

120 Broadway, 18th Floor

New York, New York 10271

(212) 732-9000

INTRODUCTION

I was asked to speak to you about the use of vocational

rehabilitation experts in personal injury matters. As a

plaintiff’s counsel, I have particular views about the use of

these purported experts in personal injury claims. I know that

the defense in general loves to use these witnesses. The

defense bar and insurance companies believe the witness will

convince the jury that the plaintiff is either a malingerer or

can be gainfully employed in some other capacity. The defense

hopes to mitigate economic damages by showing that there were

plenty of employment opportunities available to a willing and

motivated plaintiff. The defense hopes to show that the

plaintiff is exaggerating the injuries and damages by claiming

that he or she has become permanently disabled as a result of

the accident caused by the defendant.

311

I am probably going to be cast off by my colleagues in the

plaintiff’s bar by speaking to you about this topic today and

giving you some insight from a plaintiff’s standpoint about the

effectiveness of these experts. I truly enjoy having them

called as witnesses and being able to cross-examine them at

trial. So, I implore defense counsel: please request a

vocational rehabilitation examination of my plaintiff!

I. OTHER EXPERTS I ENJOY CROSS-EXAMINING

I like the defense to call any of the following three

experts on damages: (1) an economist; (2) a life care planner;

(3) a psychiatrist. I always do better on my claim when the

defense can’t resist using them. Here’s some insights as to

why.

A. The Economist

This expert is usually relied upon in response to my

exchange of an economic expert setting out the economic damages

sustained in my case. I will have an expert review the earnings

and benefit history for my client and set forth an analysis that

lets the jury see objectively what that loss involves. In

addition, under some circumstances, I may have the economist lay

out the loss for past and future medical expenses. By doing

this, I have a basis for establishing my economic damages and

supporting the record should an appeal be taken regarding the

amount of a jury’s award.

312

The defense loves to respond by hiring an economist

who invariably seeks to minimize the economic loss. These

economists are often so biased that they will go out of their

way to show that the plaintiff’s claim for damages is completely

exaggerated and not based on any objective economic data. In

doing so, their credibility is easily challenged because I can

show that their numbers are too extreme to the underside. I

also always use the defense economist to establish a baseline of

damages for the jury to consider.

An economist called by the defense cannot find that

plaintiff sustained no economic loss (although some have tried).

The defendant will project some loss even if it is much reduced

from the plaintiff’s analysis. But, by doing that, I can always

speak to the jury about the minimum recovery that my client

should receive because the defense counsel and the defense

economic expert have demonstrated that. So, I can only benefit

from this expert who has conceded the defendant’s baseline

amount.

When I finish cross-examining the expert and show how the

evaluation was completely biased and intended simply to minimize

a legitimate claim, I also undermine the credibility of the

defense case in its entirety. I usually can get a jury to agree

that the defendant, having caused injury to my client, is simply

trying to avoid paying just compensation.

313

When these experts are presented, I always want to get

their report. I always want to review their evaluation. I

always send it to my economist to get some insights and some

cross-examination points on whether the evaluation is fair and

accurate and how I can demonstrate the exaggerated response by

the defense.

B. The Life Care Planner

I only use life care planners when there are

significant injuries that are going to reflect the disability of

my client. Usually, if I call this witness, my client will

require long term care and treatment because of some devastating

injury that has left him or her totally disabled from

employment, and there is a need for continuous future medical

care and treatment. I use a life care planner who coordinates

with my examining (or treating) doctor, who has examined my

client and can highlight the disabling effects of the injuries

for the life care planner. I have the examining doctor and the

life care planner speak to each other to formulate a plan of

future treatment. The life care planner then establishes the

costs over time of each of the various elements of care and

treatment that will be needed. Plus, I get an economist to

explain how prescriptions for needed drugs or medical treatment

will play out over time and what the cost of compensating the

plaintiff for providing those medicines and that treatment will

314

be. I now have a basis for the claim of damages that provides

both the trial court, on post-trial motions, and the Appellate

Division, on the appeal, an opinion that supports the economic

loss that I claim, and hopefully, recover from the jury.

Of course, the knee jerk reaction of the defense is to hire

its own life care planner. And, again that just gives me a

baseline of damages. I can show the jury the minimum that I

should recover from my client for the future medical care and

treatment because even the defense and its expert have conceded

that. And, more importantly, I also can demonstrate how biased

the defense planner is because the witness is simply trying to

(a) minimize the treatment that should be provided and (b)

highlight the cheapest method of treatment and the providers of

supplies and medicines who propose the bare minimum of future

care and treatment for the plaintiff. It comes across as mean

spirited. It comes across as an intentionally biased way to

minimize damages.

Some of my favorite cross-examinations are of these life

care planners. In my view, you are better off not using them

and simply letting the jury determine whether this plaintiff

really needs the extended treatment called for. It also gives

you some credibility on the defense side when you state that, if

this plaintiff is that seriously injured, then yes, you should

compensate the plaintiff for what is needed. But, I know that

315

insurance companies would never tolerate a defendant not

resisting a claimed element of damages. So, I don’t expect any

defense counsel to take the bold move of avoiding the use of a

life care planner.

C. Psychiatrist

The hard reality about psychiatrists, like

chiropractors, is that they will never “cure” you of your

illness. They will only find a need to bring you back to

explore further means of reducing your pain, suffering and

mental state. Of course, if they delve into anyone’s background

they will always find some mental ailment. We all suffer from

something!

Jurors are skeptical of them for that reason. We all

have emotional components and we all have problems in life.

Some jurors don’t buy psychiatric elements of a claim. They

feel that life is hard and that you have to tough it out and

move forward with your life. Although many jurors have softened

on that view and believe that psychiatric treatment can be

helpful to alleviate symptoms, do they really believe that a

psychiatrist is ever going to cure you of your problems?

Usually, a psychiatrist will present some component of the

plaintiff’s psychological make-up that has no bearing on the

claims. The psychiatrist will ignore the true elements of the

psychiatric overlay that may come from a major physical injury.

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The gamble for the defense is whether to use a

psychiatrist. Unless the plaintiff is making a very serious

psychiatric claim arising from some very real trauma (such as in

a zone of danger case where the plaintiff is watching their

loved one being crushed to death), I would question the reasons

why any defendant would want to use a psychiatrist. But, I love

when the defense does it and I encourage my defense colleagues

to bring psychiatric witnesses to court. It is always a field

day of cross-examination when the defendant either claims that

this person does not have a psychiatric overlay, or that the

psychiatric overlay stems from when the plaintiff was a little

kid and the coach would not allow him or her to play a full game

of Little League baseball.

II. WHY I LOVE THE VOCATIONAL REHABILITATION EXPERTS

I am thrilled when you bring in these experts for one

simple reason: they highlight the fact that my client had an

accident which caused him or her to lose his or her job or to be

unfit or unable to perform all of the necessary elements of that

prior job. My plaintiff comes to court after having worked at a

particular position where he or she developed a skill and had an

earning capacity. The plaintiff made money. The plaintiff

received benefits. The plaintiff had the satisfaction of

knowing that he or she could provide for families, himself or

herself, and could be a worthwhile member of society. By

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bringing in a vocational rehabilitation expert, the defense, in

my view, cheapens those elements and offends the jury. They

highlight the fact that this plaintiff did not want to have an

accident simply to make a claim for damages. Plaintiff was

doing well before the accident. There was a job. There was

health and no pain. There was no need to rely upon anyone to

compensate them because of an unfortunate incident.

But now you bring in a witness who concedes that the

plaintiff must be disabled, because otherwise why try to

rehabilitate that person? The expert explains to the jury how

the expert can rehabilitate the plaintiff to do a job that

hypothetically may exist. Of course, that job (a) does not pay

as much, (b) does not give the same benefits, (c) does not

provide the same job security or training, and (d) just may be

something that is insulting to the pride of the person who

worked so many years to develop a particular skill and level of

competence in a chosen field. Without doubt, some job will be

proposed that is simply below the skill level and work capacity

of the injured person.

Importantly, that same vocational rehabilitation expert is

going to forget about one key component of my claim of damages:

the loss of enjoyment of life. My client will testify that he

or she enjoyed being a skilled worker. They enjoyed knowing

that, after years of hard work, they had grown to be

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accomplished in their field or endeavor. They were a carpenter.

They had a great skill. They could fabricate things that gave

people satisfaction in their lives. And, now the best the

defense can offer is a witness who can state that despite the

disability from injuries caused by the defendant’s fault,

plaintiff can now find a new occupation and calling that will

give him or her great satisfaction out of being a “button

sorter”. This is great cross-examination material. I am going

to roll over an expert who is going to appear to be

unsympathetic and biased by trying to get a person to do a job

that they never did before, or never wanted to do. I’ll take

that expert any day of the week!

III. VESID

There are programs with the State’s Department of

Disability Services. One of them used to be called VESID. It

is now called “Acces-VR”, which stands for Adult Career and

Continuing Education Services-Vocational Rehabilitiation. The

vocational rehabilitation guy will want to tell the jury that

there are these free programs available. They are state funded

and sponsored and can go a long way in retraining a person and

putting that person back into gainful employment. That

testimony is as good as it gets for the plaintiff. Please

volunteer my guy for this program!

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Yes, it’s a free program. Yes, it can get job placement.

But, there is a BIG catch: to qualify for one of these programs

you must have been found disabled! So, when the jury finally

hears from this expert on cross-examination that this free

program that provides job training and job placement only exists

if you are truly disabled, the house of cards built up by this

vocational rehabilitation expert collapses. By proposing that

the plaintiff become involved with this type of retraining

program, the expert eventually must concede that it is only

available to people who have proven disabilities. If the

plaintiff was able to work because he or she was not disabled --

a key element of the defense anyway -- then why would you

propose a mechanism that provides services only for the

disabled? Clearly, you are suggesting that maybe that plaintiff

is disabled from the injuries sustained. Please propose this as

it will only backfire on you!

IV. FOR THE PLAINTIFF, ALWAYS OBJECT AND SEEK A PROTECTIVE

ORDER

All too often these vocational rehabilitation experts are

attempting to abuse the discovery process. They believe they

will now get information that could not have been obtained

through normal discovery channels. They get a chance to have

interrogatories submitted to the plaintiff and have written

answers given back. They expect that they will conduct an

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inquisition far greater and wide ranging than any deposition

would allow. And, they expect to do all of this without any

court supervision or any attorney being present.

For the plaintiff, be wary of these exams and what they may

call for, and be ready to object. Seek a protective order! All

too often these sessions are too long. They are abusive. They

submit people to prolonged and tedious “exams”. And, they

simply get unwarranted and intrusive discovery. Remember, in a

personal injury matter, once the defendant seeks a bill of

particulars, it cannot also ask for interrogatories. It is

simply barred under the CPLR. It cannot have both a deposition

and interrogatory answers. See CPLR §3130(a). A “voc rehab”

expert will always have written questions for the plaintiff to

fill out. They are extensive. They are time consuming. They

give ammunition for the defense on cross-examination to show how

the plaintiff is not limited in seeking employment and doing

other things. When you are the plaintiff, seek to limit this.

Object at the exam. Avoid the abuse and the potential for

damaging admissions by your client.

I always follow this procedure when I receive a request for

a vocational rehabilitation examination: I write to the defense

advising that I will not subject my client to written

interrogatories, tests or a prolonged examination. I will want

an assurance that the examination will be limited in time. I

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want an assurance that we can be present and can limit the use

of written tests and questionnaires. I also want the right to

videotape or audiotape the session. Why? Because far too often

these examiners abuse this process. They are antagonistic to

the plaintiff. They are very aggressive in trying to minimize

the effects of the injury. And, they are going to try to get

information that could be used against the plaintiff in a

damaging way at trial.

Because I don’t expect the defense counsel to ever agree to

my request for limits, I have a protective order ready to go.

The letter that I sent and which is rebuffed is a basis for my

good faith attempt to resolve these issues previously. It now

forms the basis for my motion for a protective order. I can

point out to the court the extensive examination that the

defendant wants to subject my plaintiff to. I can point out the

violations of the CPLR in seeking the equivalent of

interrogatories and depositions after a deposition has been held

and a bill of particulars has already been served. I can

request that the court limit the time and scope this

examination. Because of my concerns, I can also get the court

to order that the entire session be videotaped or audiotaped.

That is a very strong incentive for these examiners to minimize

their abuse of the system and the purported examination.

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V. FIND OUT THE REFERENCE SOURCES

Please get these reference sources. They are a credible

source of cross-examination information. They are going to

describe some of the most trivial and mind boggling jobs ever

imagined. No one would want these jobs. No one could get paid

to do these jobs at a living wage. And, no one would get

benefits from them. Many of them will be part time. Many of

them will be tedious and boring. Many of them will simply not

replace what this plaintiff already had before sustaining

disabling injuries. The jury must be told: but for the fact

that plaintiff has become disabled and can’t do the job he or

she previously had, there would be no need for this plaintiff to

be out in the job market to find a completely different job in a

different field that provides no satisfaction or financial

support.

The two reference volumes usually used by the “voc rehab”

expert are the “Dictionary of Occupational Titles” published by

the United States Department of Labor and The “O*Net Dictionary

of Occupational Titles” published by JIST Publishing.

Have a field day when you look through these volumes and

see the proposals that these “voc rehab” people have for future,

substitute employment. And, importantly, make sure that you

highlight for the jury that these are hypothetical positions.

Go to the job listings. See if there are any such jobs in the

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area where the case is being tried. More importantly, ask the

“voc rehab” expert if they found such jobs in the community.

Ask them how many are available. Ask what the salaries and

benefits are. And then lower the boom on a false premise: that

the disabled person would not have first choice on these jobs

over everyone else in the job market. Remind the expert and the

jury that your disabled client, who has limitations because of

the injuries and the pain that comes with the disability, will

be competing for these same jobs with people with no

disabilities. There is no requirement that employers have to

hire the disabled. They simply can’t discriminate against them.

But, in the real world who do you think is going to get that

job?

Again, you get a fresh chance to highlight for the jury how

badly hurt your client was, and how difficult any job will be to

perform, including some of the most tedious and ridiculous

proposals presented by the defense expert. Just because the

expert says the person “can do the job”, the ultimate question

remains whether there is a job to find.

VI. DEMAND THE NOTES!

These experts will subject your client to “standardized

tests”. In that regard, they will be taking notes of the

interview. They will also ask that certain documents be filled

out. They will want to do “tests” to determine your client’s

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ability to perform labor in any particular field. When the exam

is done, they gather that information and take it with them to

prepare their formal report for the defense. The problem is you

don’t get these notes or “tests”. They may be destroyed after

the exam and report are done. They may not come to court. They

may be a source of information to be utilized by and interpreted

by this expert. You must demand that you obtain copies of (a)

everything that your client fills out, (b) any test that is

performed, and (c) any notes that this expert took, so that you

can compare them with the notes that you or your representative

kept during the same interview. Do not let this valuable source

of information be lost because it can highlight inconsistencies

in the expert’s final report and statements made at the actual

examination. If anything, it will make sure that things are not

left out of the report that is ultimately exchanged.

VII. DO YOUR OWN RESEARCH INTO THE JOB MARKET

Once you get the report of the defense vocational

rehabilitation expert, do some research on those jobs. See if

your doctor agrees that this person can do that job. See what

the pay is for the job. See what the benefits are. See what

job security is in that particular field or industry. And,

mostly, given the circumstances of our present economy find out

if it is going to be part time or full time.

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Enter into the equation things such as transportation to

and from the job. How much will it cost in day to day expenses

to do this type of job? How much will be the plaintiff

ultimately benefit from going to work again at a minimal wage

without benefits on a part time basis while still incurring the

normal costs of work? Finally, keep in mind the variables in

the marketplace. There are layoffs. There are recessions. How

will the particular fields being proposed by the defense expert

be affected under those circumstances? How many jobs are being

created in the field? How many jobs exist? How many jobs are

being eliminated because of cutbacks in the field or because of

obsolescence in the type of work that is being done? How many

people without disabilities are competing for that same job?

The expert may not have the answers. And who cares? You get to

highlight how hard it is to get and keep a job.

VIII. PAIN IS THE GREAT UNKNOWN

I always end off my questioning of these experts by

pointing out that, regardless of what these jobs may or may not

involve or require, pain is always the great neutralizer. You

get to rehash the fact that your client has pain because of a

disabling injury. Pain is something that is unpredictable.

Pain never goes away. The degrees of pain may vary, but the

fact remains that this plaintiff will always have pain. How

will that pain affect the ability to do the job and the ability

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to get to the job? A person who has pain because of multiple

back surgeries will have a hard time sitting for long periods of

time. They will have problems getting to and from the job.

They will need to seek medical treatment if they have flare-ups.

They may need to just take a day off. How does that affect a

potential employee with a future employer? Will any employer

tolerate someone who simply can’t perform the task involved

because of disabling pain?

IX. CONCLUSION

In sum, I want you to hire these experts! I think it is

great for the defense to have someone that they can produce who

can highlight for the jury all of the potential jobs that this

plaintiff can do, if only they had the motivation to do so.

PLEASE DO THIS FOR ME! Give me a chance to summarize my

claim on damages all over again. Give me a chance to cross-

examine a biased expert whose sole purpose is to trivialize and

minimize my client’s injuries. I would appreciate that favor

greatly and will consider you my friend if you did!

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Labor Law Claims, Coverage and Litigation Wednesday, December 14, 2016

Sheraton Syracuse University Hotel 801 University Avenue, Syracuse, NY 13210.

Trial Practice Demonstration: Cross-Examination of

Vocational Rehabilitation Experts

Lauren M. Miller, Esq.

Cramer, Smith & Miller, P.C.

Vocational Rehabilitation Expert: An expert who typically performs an assessment (as more fully set forth below) and renders an opinion regarding a person’s Vocational Functional Limitations, Residual Employability and Work

Life Expectancy. Vocational Rehabilitation Experts are routinely hired by either litigant relative to claims of lost or reduced earnings.

Expert Qualifications:

Typical:

Education: MS, Rehabilitation Counseling Certifications: Certified Rehabilitation Specialist

(NYS Department of Education)

Examples of some further degrees and certifications:

Education: Ph.D., Rehabilitation Counseling Psychology

Certifications: Certified Vocational Expert (Social Security Administration) Certified Rehabilitation Counselor

(Commission on Rehabilitation Counselor

Certification)

Means of Ascertaining Nature of Disablement:

A. Record Review - Typically a Vocational Rehabilitation Expert will, at a minimum, review the pleadings, Plaintiff’s deposition transcript and Plaintiff’s treatment records.

Issues for cross-examination of either expert:

Did the Vocational Rehabilitation Expert review, or ask to review, any of the following in connection with his/her evaluation?:

423

• Plaintiff’s Educational Records;

For instance, in Aman v. Federal Express Corp. et. al, Defendant’s

Vocational Rehabilitation Expert testified that further education would enhance Plaintiff’s residual employability. However, the expert didn’t interview or assess Plaintiff and didn’t request his

academic records. On cross-examination, Plaintiff’s counsel established that Plaintiff had struggled academically throughout

high school, graduating in the bottom 5 percent of his class, suggesting that the expert’s testimony regarding further education was unreliable.

• Plaintiff’s Employment Records;• The report of any Functional Capacity Evaluation; and• Treatment records relative to Plaintiff’s treatment subsequent to

the Vocational Rehabilitation Examination but prior to trial.

Did the expert fail to review all of Plaintiff’s post-accident treatment records? If so, do the post-accident treatment records include any information that would change the expert’s opinion?

Issues for cross-examination of Plaintiff’s expert:

Did Plaintiff’s expert review the reports from Plaintiff’s treating physicians, but fail to review the defense IME report?

Issues for cross-examination of Defendant’s expert:

Conversely, did Defendant’s expert rely solely, or primarily, on the report of Defendant’s IME doctor?

B. Interview with Plaintiff - After the expert has reviewed the relevant records, he/she typically interviews Plaintiff prior to administering

a series of tests. The interview and testing typically ranges from two to six hours.

Issues for cross-examination of Plaintiff’s expert:

Was the history provided by Plaintiff consistent with his/her treatment

records and/or deposition testimony?

Issues for cross-examination of either expert:

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If both Plaintiff and Defendant have retained Vocational Rehabilitation Experts, was one examination more comprehensive than the other?

Did the expert ask Plaintiff specific questions about Plaintiff’s effort to

return to work? For instance, did the expert ask Plaintiff whether he/she sought or declined Vocational Rehabilitation services (such as VESID) and/or requested a workplace accommodation?

Vocational Testing

Experts administer a range of tests to assess Plaintiff’s physical and cognitive abilities (sometimes described instead as “exertional and non-

exertional abilities). Some examples are as follows:

A. Physical:

Dexterity assessments:

Perdue Peg Board; Grooved Peg Board;

Manual Dexterity Test; Battery Finger Dexterity Test; Battery Form Perception; and

Crawford Small Parts Test.

B. Cognitive:

Generally:

Verbal Comprehension; Visual Speed and Accuracy; and Survey Manual Speed.

Specifically:

Kaufman Brief Intelligence Test 2 (KBIT-2):

- Measures verbal and non-verbal intelligence to provide an estimate of Plaintiff’s intellectual ability:

- Verbal Score (Verbal Knowledge and Riddles); and - Nonverbal Score (Matrices subtest).

Wide Range Achievement Test: Fourth Edition (WRAT4)

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- Word Reading; - Sentence Comprehension;

- Spelling; - Math Computation; and

- Reading Composite.

Issues for cross-examination of either expert:

Did the expert videotape the examination? If not, the jury has to rely on the expert’s impressions as to Plaintiff’s ease or degree of difficulty in

performing a particular task and whether Plaintiff appeared to work through discomfort or conversely, whether any claim of

discomfort/difficulty appeared genuine, exaggerated or feigned.

Were the tests that the expert administered tailored to assess the

limitations alleged or the skills necessary for Plaintiff to perform his/her preferred vocation? Or did the expert simply administer the same tests at

each evaluation.

Vocational Functional Limitations: Restrictions on the Plaintiff’s ability to

perform or accomplish certain work-related tasks due to a physical or cognitive/emotional impairment. The vocational tests administered by the expert serve as the foundation for the expert’s conclusions as to Plaintiff’s

Vocational Functional Limitations.

Issues for cross-examination of either expert:

Did the expert fail to acknowledge any of Plaintiff’s pre-existing injuries

or impairments?

Transferrable Skills Analysis: Ascertaining whether the skills that Plaintiff had or developed in pre-accident employment can be used to meet the requirements

for alternate employment.

Transferable skills are commonly a consideration when a skilled laborer,

such as a plumber or an electrician, can no longer engage in “very heavy” or

“heavy” work as defined by the Dictionary of Occupational Titles. In such instances, Vocational Rehabilitation Experts often opine that Plaintiff’s transferable skills qualify him/her to work in retail, or at a home improvement

or hardware store.

Issues for Cross-Examining Plaintiff’s Expert:

In the example above, the hourly rate of pay for working at a home

improvement or hardware store is typically considerably less than Plaintiff

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earned working as a skilled laborer and is often accompanied by a loss of fringe benefits.

Identifying Employment Possibilities/“Residual Employability”: The extent to which an individual is able to work subsequent to sustaining an injury.

In some instances, the expert will perform a Labor and Wage Market Research Analysis to render an opinion regarding the likelihood that Plaintiff could

obtain a job that he/she is capable of performing.

Decisional Law:

Rotta v. Ferreira, 16 A.D.3d 399 (2d Dep’t 2005).

The issue on appeal was whether the trial court properly permitted Defendant’s Vocational Rehabilitation Expert to testify based upon a labor market survey that he conducted by telephone with prospective employers. The

Appellate Division noted that the general rule is that opinion evidence must be based on facts in the record or personally known to the witness.

The question was whether such interviews were “accepted in the profession as reliable in forming a professional opinion”. The Court held that

they were, especially in light of the fact that Plaintiff’s Vocational Rehabilitation Expert relied on “similar hearsay information”.

Issues for cross-examination of Defendant’s Expert:

Did the expert perform a Labor and Wage Market Analysis that relied

exclusively on positions available on a State or National level? Did he/she consider the labor market in Plaintiff’s locale, especially in those instances in which Plaintiff lives in a rural area?

Is a worker who requires certain accommodations, such as more frequent

breaks or supplemental sick days, less productive than a worker who doesn’t require a similar accommodation? If so, wouldn’t a prospective employer be more inclined to hire a worker who doesn’t require those kinds of

accommodations?

Diminished Work Life Expectancy:

Projected work expectancies are set forth in tables in the Pattern Jury

Instructions (PJI).

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In some instances, Vocational Rehabilitation Experts encourage a

departure from the figures set forth in the table, citing circumstances particular to Plaintiff. For instance, in Quackenbush v. State of New York, 37

Misc.3d 1207 (A) (Court of Claims 2012) Claimant’s expert testified that there was “no reason to think” that Claimant could not continue working until age

67, citing the fact that he would likely need to work longer than “most people” because did not have a pension or union benefits. The Court found that it was likely that Claimant would return to work and, as such, did not specifically

address the contention that Claimant’s circumstances warranted a departure from the figure contained in the PJI tables.

Relative to the foregoing, the Courts have held that the jury is not bound

by either the work life expectancy tables used by the expert or charged by the

Court. De La Cruz v. N.Y. City Transit Auth, 11 Misc. 3d 1086(A), 819 N.Y.S.2d 847 (Sup. Ct. 2006). The Court held that, in light of evidence of Plaintiff’s “low

economic status” and steady work history before the accident, the jury’s finding that Plaintiff would have likely worked to age sixty-five was supported by the evidence.

Reduced/Lost Earning Capacity, Household Services and Future Medical Expenses

Often the Vocational Rehabilitation Expert’s report includes

calculations regarding Plaintiff’s lost future earnings. The question is whether such an expert is competent to testify regarding the issue.

Decisional Law:

Smith v. M.V. Woods Const. Co., 309 A.D.2d 1155 (4th Dep’t 2003)

At trial, Plaintiff's Vocational Rehabilitation Expert was permitted to express an opinion as to Plaintiff’s past and future loss of earnings, past and

future loss of household services and future medical expenses. The Fourth Department held that the trial court abused its discretion in permitting Plaintiff’s expert to testify concerning those elements of

damageshttps://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995252047&pubNum=602&originatingDoc=I027b0b96d9fa11d983e7e

9deff98dc6f&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite) and further erred in denying Defendant’s cross-motion seeking to set aside the verdict with respect to those elements of

damages.

The Court noted that because Plaintiff’s expert was qualified by training and experience as a Vocational Rehabilitation Expert, he could assess Plaintiff's vocational abilities, but did not have the expertise to assess Plaintiff’s

past and future loss of earnings, past and future loss of household services or

428

future medical expenses, noting that the foregoing are generally the subject of expert testimony by an economist.

Thus, that portion of the verdict awarding damages for past and future

loss of earnings, past and future loss of household services and future medical expenses was set aside and a new trial was granted with respect to those particular elements of damages.

Madden v. Dake, 30 A.D.3d 932, 819 N.Y.S.2d 121 (3d Dep’t 2006)

The Plaintiffs Vocational Rehabilitation Expert testified over Defendant’s objection regarding Plaintiff’s residual earning capacity, her projected earnings

based upon her expected work life, and her future anticipated medical expenses. The foregoing was proceeded by testimony regarding her functional limitations and qualified ability to work in a sedentary capacity as a nurse. The

Appellate Division held that the testimony of a Certified Vocational Rehabilitation Expert did not lack adequate foundation or exceed the scope of

his expertise.

Specifically, the Court noted that the expert did not “endeavor to

extrapolate his calculations to account for inflation or offer conclusions as to total losses sustained by Plaintiff, leaving those calculations to the economist”.

Moreover, the Court noted that the expert’s assessment was largely based upon materials in evidence, predicated on professionally accepted outside sources or derived from his own personal knowledge and experience. Perhaps more

notably, the Appellate Division held that the trial court's determination as the Vocational Rehabilitation Expert’s testimony would not be disturbed, “in the absence of serious mistake, an error of law or abuse of discretion”.

Other Resources for Cross-Examination:

Prior trial testimony that’s inconsistent in some respect to his/her current position (ie. the work-life expectancy for laborers);

Number of times working with particular attorney/law firm; and

The Expert’s Website: Does the website “market” to “individuals who have sustained serious injuries as a result of someone else’s negligence”, despite the

fact that the expert testified that he tends to testify for either litigant.

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5813978.1

LABOR LAW CLAIMS COVERAGE & LITIGATION

CLOSING ARGUMENTS

Brian W. McElhenny

GOLDBERG SEGALLA LLP

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5813978.1

DEFENDANT PERSPECTIVE

Congratulations, because if you are giving a summation for the defense you

have managed to beat plaintiff’s motion for summary judgment and the trial

motion for a directed verdict.

Litigation conventional wisdom is that the case is won before the

summation is delivered but in some cases this is not true and an unprepared

summation can contribute to a loss.

You need to be yourself and capitalize on the credibility you have already

established.

Use of demonstrative evidence or graphics is advised to support your

defense theme that was established in the opening and cross of plaintiff’s

witnesses.

Honor the accepted notions of the importance of primary and recency by

starting and finishing strong. If there are weak points, do not ignore them but

discuss them in the middle of your summation.

In Labor Law cases the defense often is that the equipment provided gave

plaintiff a safe place to work and he failed to use available safety equipment that

he was instructed to use.

Incorporate the language of the jury instructions found in Pattern & Jury

Instructions: 2:217 into your summation. Defendant needs to argue how and why

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5813978.1

plaintiff has not proven that defendant failed to provide proper protection or that

said failure was not a substantial factor in causing the injury.

If plaintiff has a Labor Law 241(6) or Labor Law 200 claim, comparative

negligence is a potential defense. Explain to the jury how the evidence supports

the conclusion you want them to draw, that plaintiff failed to act reasonably under

the circumstances and caused his own accident.

If plaintiff is only pursuing Labor Law 240, your defense is likely based on

the sole proximate cause argument.

You need to be mindful of the language in the jury verdict sheet and tell the

jury the answers the evidence and Justice supports.

As you know, plaintiff gets the last word and you should anticipate and

defuse some of plaintiff’s arguments.

One last thought is that you may consider not seeking dismissal of a weak

Labor Law 241(6) or Labor Law 200 claim as it will allow you to argue

comparative negligence. A jury could reject the 240 claim and render a split

decision finding plaintiff contributed to the accident.

Defendant needs to object to improper conduct by plaintiff in summation or

the issue is waived on appeal. Counsel needs to decide when to object, or to move

in limine before summation to preclude improper comment.

A defendant has wide latitude in presenting arguments to a jury and can

point out the insufficiency of plaintiff’s evidence or contradictions in plaintiff’s

proof.

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5813978.1

In Chappotin v. City of New York and Consolidated Edison, 90 AD3d 425

(1st Dept. 2011), defense counsel argued that plaintiff was a man who played the

system for 15 years and had been on disability and had no concern about working.

The Trial Court set aside the defense verdict because defendant’s summation

remarks deprived plaintiff of a fair trial.

The Appellate Division First Department, however, reinstated the verdict.

It held that defense counsel came close to overstepping the line, but plaintiff failed

to object to 13 of the 15 comments they argued were improper on appeal.

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5813978.1

PLAINTIFF PERSPECTIVE

As a defense trial lawyer, I have not given summations as a plaintiff but I

have heard them.

Plaintiffs have 3 advantages in Labor Law litigation: First they represent a

worker who was injured while performing a physically demanding job. They are

suing a corporate owner or general contractor and have jury appeal.

The second advantage is that the nature of the accident and injury can be

exploited to engender sympathy for the plaintiff who was injured simply doing his

job.

The most significant advantage is the language in Labor Law 240 and its

interpretation by New York’s Appellate Courts. Plaintiff need not prove

negligence. Plaintiff must prove he was not given equipment or tools so as to

provide proper protection and the lack of proper equipment was “a cause” of his

accident. If the statute was violated, plaintiff’s conduct cannot be the “sole

proximate cause” of the accident. See Gallagher v. New York Post, 14 NY3d 83

(2010).

Counsel needs to remind the jurors that plaintiff does not need to prove

negligence, and plaintiff will object in a Labor Law 240 case to any argument

from the defense concerning “negligence”.

Plaintiff’s counsel will argue that their client had no choice concerning the

equipment that was provided and was just doing his job and following

instructions.

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5813978.1

UNFAIR COMMENT

Plaintiff needs to avoid reliance on statements that are deemed improper

comment or they run the risk of losing a trial victory on appeal or facing the

penalty of a new trial.

In Wilson v. City of New York, 65 AD3d 906 (1st Dept. 2009), plaintiff

sued the City for lead intoxication as a result of inhaling fumes during demolition

work.

Plaintiffs won substantial awards after a seven week trial. The Trial Court

set aside a multi-million dollar damages verdict and ordered a new trial due to

improper summation comments. The First Department agreed that plaintiff’s

description of defendant’s medical witness as a hired gun was improper. The

Court also criticized plaintiff’s invitation to the jurors to put themselves in the

plaintiff’s shoes to determine the level of damages. The Court held, however, that

the improper comments did not warrant a new trial, but did reduce the pain and

suffering award to each plaintiff.

In Gregware v. City of New York, 132 AD3d 51 (1st Dept. 2015), plaintiff

was seriously injured in a multi-vehicle accident on the West Side Highway where

road construction led to closure of two of three moving lanes. Plaintiff Gregware

sustained substantial orthopedic injuries when his vehicle was rear-ended. He

sued the City and its contractor for negligence in failing to erect proper warnings

and signs regarding the lane closures.

438

5813978.1

Plaintiff obtained a multi-million dollar verdict for pain and suffering for

his injuries which necessitated 5 operations on his knees.

At trial counsel attacked the testimony of a City Police Officer who

responded to the accident. He did not recall any details of his accident

investigation at his two depositions. At trial he testified his memory was better

because it had been refreshed in several prep sessions with the City’s trial counsel

and he had reviewed documents.

On appeal, the City argued that improper comments by counsel during

summation deprived the defendant of a fair trial.

Counsel characterized the officer as a liar and as one of New York’s City’s

worst.

He also criticized the credibility of defense counsel.

Counsel for the City moved for a mistrial midway through the summation,

which was denied.

The trial took 6 weeks and 5 days of deliberations.

The Appellate Division held 3-2 that although the comments were

inflammatory and regrettable, they did not deprive the defendant of its right to a

fair trial.

The lengthy dissent would have ordered a new trial based on a pattern of

inflammatory improper comments which as a whole deprived the City of a fair

trial.

439

5813978.1

Plaintiff who has the burden of proof gets the last word to the jury. While

counsel has wide latitude to present arguments in summation in support of

plaintiff’s case, there are limits to what is fair comment, and what is harmless error

as opposed to conduct that deprives the opponent of a fair trial.

Brian W.McElhenny

Brian W. McElhenny

GOLDBERG SEGALLA LLP

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Trial Practice Demonstration:

Closing Arguments from a Defendant's Perspective

I. Purpose of Summation:

A. Review with the Jury the supporting evidence of your

case.

B. Critiquing the evidence produced by your adversary.

C. Drive home and solidify your position to the jury.

II. Planning and Preparing your Summation:

A. A good lawyer will formulate a theme to his case during

his trial preparation. That theme will be developed from

jury selection through summation and may incorporate

the law read to the jury during the judge's charge.

B. The theme of the case will be touched on in every aspect

of the case and tied together during the summation.

C. Take notes during the trial.

D. Highlight key statements made by witnesses or opposing

counsel that can be used during your summation.

E. Take the air out of the plaintiff's summation.

1. Plaintiff is the last to sum up.

2. Anticipate plaintiff's arguments in his/her

summation and use your summation to take the air

441

out of his arguments.

III. Formulating the Summation:

A. Organization, organization, organization.

B. Structure of Summation:

1. Discuss the purpose and reason for a summation.

a. Opportunity to discuss with the jury the

evidence in the case.

2. Discuss what "we believe the evidence has

shown."

3. Advised the jury what to expect during

deliberations and how they reach a verdict.

a. When they go to deliberate, they will receive

a questionnaire with allegations against your

client.

b. Show them a copy of the verdict sheet.

c. Sometimes you may want to blow up the

questionnaire.

d. Make a general statement to the jury that

based on the evidence, their answer to the

questions should be in favor of your client.

4. Individually discuss each question in the

questionnaire.

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a. Discuss the evidence showing the jury why

they should vote in favor of your client.

b. Highlight testimony from your witnesses in

favor of your position.

c. Highlight uncontested testimony and

evidence in your favor.

d. Discuss the weaknesses in your case, but

minimize their importance in the overall

context of the trial.

5. Anticipate the plaintiff's summation and discuss

their position and why their position fails based on

the evidence.

6. Review plaintiff's opening statement and see what

promises they made and advise the jury of any

unfulfilled promises the plaintiff made in his

opening statement.

7. Use the opportunity to take apart the plaintiff's

proof and allegations against your client. Attack

the credibility of plaintiff's important witnesses,

especially their expert witnesses.

a. Qualifications.

b. Prior history as an expert witness.

Inconsistencies in expert's testimony in this

case and prior cases (must have prior trial

testimony of plaintiff's expert, which was

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presented to the expert during cross-

examination).

c. Highlight mistakes made by the expert with

regard to knowing the facts of the case, as

well as the credibility of their expert

testimony.

C. Compare the evidence in favor of your client while at the

same time pick apart the evidence by the plaintiff against

your client.

D. Use the actual trial testimony and evidence to strengthen

your point.

1. If you are able to obtain the daily trial testimony

transcripts and a witness gives testimony that is

particularly helpful to your client, or directly

contradicts the claim of the plaintiff, read that

testimony from the transcript directly from the

transcript to the jury citing both the page and line

number of the transcript. The same goes for a

medical record in evidence that has a notation

helpful to your defense on damages.

E. When possible make reference to the law that the judge

will be reading to the jury in the charge as it fits into your

theme and defense of the case.

1. Use "buzz words" that are the same words found in

the PJI charge that will be read to the jury following

summations.

444

2. E.g. “The evidence in this case has shown that the

defendant used reasonable care to make the area

where work was being performed reasonably safe…”

F. Summation of the Summation.

1. After discussing the important aspects of the case,

finish up by going back to the questionnaire.

2. Read each question again to the jury and advise

them that the answer to their questions should be

in favor of your client and they should return with

a verdict in your client's favor.

IV. You Heard the Do's, Do Not Forget the Don'ts:

A. As long as an attorney stays within the evidence

presented within the case, there is a great deal of latitude

given by the Court during summation. However, there

are things that should not be said either because they are

objectionable, or may anger the jury.

1. If a ruling is made by the Court during the trial, do

not try to criticize the ruling or put forward

evidence that has been deemed inadmissible in the

case.

2. You cannot put yourself in the place of one of the

parties or provide facts or opinions that are not in

evidence.

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3. Do not take shots at opposing counsel or the

plaintiff.

B. You should be firm in your summation regarding the

credibility of plaintiff's witnesses in order to raise

questions in the jury's mind. However, do not go as far

to call any witness a liar.

V. Besides cross-examination of an expert, summations can be the

most fun part of any trial. Depending on who you talk to, there

are varying opinions as to when a jury makes up their minds

and decides a case. Some people will say that the jury has

already rendered their decision prior to summations. That may

be true in some circumstances and based on a particular juror.

However, remember that a jury is not as involved in a case as

you are. They are listening to the case, you are living it. While

a jury is being attentive and listening to the evidence, they are

not hearing the evidence and testimony as well as you know it.

There are many things that may go over a jury's head during the

course of the trial and have little meaning, if any at all, to the

jurors. It is your job as the attorney to tie all the pieces of

evidence and testimony together and explain to the jury the

meaning of certain things that occurred in the trial.

A well-prepared and organized summation could very well

sway a jury that is on the fence to lean in your favor and return

a verdict for your client.

446

Labor Law Claims, Coverage, and Litigation CLE

Closing Arguments from Plaintiff’s Perspective

(The Do’s and Don’ts)

Samuel J. Capizzi, Esq.

Collins & Collins Attorneys, LLC

I. Introduction. We all know the critical importance of a well thought out and

well-delivered closing argument. This outline draws upon my years of experience

in trying personal injury cases on behalf of plaintiffs. In addition, given the

unique issues in labor law claims, the practitioner needs to be aware of those

differences and address them throughout the trial – especially in a closing

argument.

A. Things to Avoid

It’s Statutory; Don’t Forget. Labor law cases are not simple

negligence cases. Concepts of notice, foreseeability, and duty are

sometimes quite different. Don’t lose sight of the fact that you are

proving the violation of a statute or several statutes. So don’t sum up

by emphasizing traditional negligence theories. Focus on the fact that

the law has been violated. And pay particular attention while

defendant puts in its case and sums up. Don’t permit concepts of

negligence to creep back into the case. For example, there is no

447

relevance to an owner or general contractor arguing or even

mentioning that it did not know about the accident happening, was not

informed of any dangerous condition leading up to the accident, or

weren’t even on the premises at the time of the accident. These

concepts are irrelevant in claims under Labor Law §§240(1) and

241(6). Indeed, a labor law defendant may be held liable even if it had

no notice of the condition at issue. The absence of notice to the

defendant is irrelevant because liability under the statutes are not

dependent upon the defendant’s personal capacity to prevent or cure

the dangerous condition (see Rizutto v. L.A. Wenger Constr. Co., 91

N.Y.2d 343, 350 [1998]; Mitchell v. NRG , 125 A.D.3d 1542 [4th Dept.

2015]). Liability is vicarious!

Be Careful With References. It is wise to stay away from humor,

pop culture refences, quotes from Shakespeare, passages from the

Bible, etc…You just can’t predict how these references will be

received by the jury. Your jury will be comprised of Baby Boomers,

Generation Xers, and Millennials. Don’t assume your references are

relevant.

Hired Gun. We know the reality, but be careful how far you go.

Certainly, the defense witness’s bias or prejudice must be brought out

on a cross-examination and commented on at closing argument. But

448

don’t necessarily say what you think. You have to be more creative. It

can be reversible error (see Berkowitz v. Marriott Corp., 163 A.D.2d

52 [1st Dept. 1990]).

Don’t Make it Up. While this seems rather basic, we all can point to

times where we have seen it. Counsel may not argue a position that he

or she knows there is no proof to support it (see O’Neil v. Klass, 36

A.D.3d 677 [2nd Dept. 2007]; Pagano v. Murray, 309 A.D.2d 910 [2nd

Dept. 2003]).

What You Think Doesn’t Matter. This is another elementary rule,

but one which is often violated. Counsel simply cannot be an unsworn

witness and express her personal belief on matters or vouch for the

credibility of witnesses (see Doody v. Gottshall, 19 Misc.3d 1136(A),

Affd. in part 67 A.D.3d 1349 [4th Dept. 2009]).

B. Things You Should Consider

Tell Your Client’s Story and Stay Out of It. Labor law cases

usually lend a unique opportunity to tell your client’s story through his

or her work life. Union members or craftsmen have to spend a lot of

time training to get their position. Often they are following in a

relative’s footsteps, boosting themselves up from the station in life

449

from which they came, or consciously going in a different direction

from family or peers who prefer white collar jobs. There is a story

there, so be sure to develop it from your first meeting with the client.

All Work is Noble. Your client went to work the day he got hurt.

This is part of the story, but it deserves separate mention because

counsel often overlooks this critical part. Your client was at work, on

the clock, and laboring for not only his benefit, but that of the

company as well. This type of plaintiff has a “leg up” on some of our

other clients. The fact that your client was working when injured can

often carry the day on credibility issues. It is a more attractive and

believable client.

Address Proximate Cause Head On. Because the statutory

violations often lead to summary judgment or even a very strong

liability picture, the defendant often is left with only a proximate cause

argument on damages. You must address it in your summation, but

first be sure that the issue even goes to the jury. Don’t assume they do

automatically. In situations where the defendant calls no doctor to

refute plaintiff’s treating physician, or has no other basis to refute such

proof, proximate cause does not go to the jury (see Prescott v.

LeBlanc, 247 A.D.2d 802 [3rd Dept. 1998]). Also, where the

defendant’s examining physician testifies that the injury at issue was

450

caused by the accident, but diminishes its nature and extent, proximate

cause does not necessarily go to the jury as a directed verdict on that

issue may be appropriate (see Boone v. Hopkins, 288 A.D.2d 916 [4th

Dept. 2001]). Where it does go to the jury, use worker’s comp IMEs,

yearly work physical exams, or even time records to show you client

was on duty before the accident, and the accident caused the injury

that disabled him

Mitigation Matters. Again, don’t assume mitigation will always be

charged. There is some authority for not charging it where you contest

your client’s employability or he seeks employment (see Gerbino v.

Tinseltown, 13 A.D.3d 1068 [4th Dept. 2004]). If it will be charged,

draw upon the realities of the workplace in your summation. Jurors

understand it’s not so easy to get a job.

Missing Witnesses. Argue missing witness or missing evidence even

if it won’t be charged. You do not need to have a missing witness

charge or failure to produce evidence charge in order to make these

arguments to the jury (see DeVaul v. Carvigo, Inc., 138 A.D.2d 669

[2nd Dept. 1988]).

Follow the Verdict Sheet. Labor law claims are complex enough.

One good idea is to frame your closing argument to follow the flow of

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the verdict sheet. By the time the jury gets it in the deliberation room,

it will be at least the third time they have been through the verdict

sheet.

It’s Statutory; Don’t Forget. I repeated it again because it is too

important to overlook.

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SUMMATIONS IN CIVIL TRIALS December 2016

Matthew Zullo Rappaport, Glass, Levine & Zullo, LLP 1355 Motor Parkway Hauppauge, New York 11749 631-293-2300

Summation represents your final opportunity to persuade the jury. By the time of

summation, jury analysis proves that virtually all of the jurors have already formed opinions as to

who should win and who should lose. The role of summation, therefore, is to sway those few

jurors who still remain undecided, and to arm jurors already on your side with the ammunition to

convince adverse jurors to change their opinion.

I. THE LAW OF SUMMATIONS

The Court permits attorneys wide latitude to "fairly comment" on the facts and evidence

as borne out by the proof. Fair comment encompasses argument on every pertinent matter of

fact before the jury. Indeed, the permissible boundaries of summation are best defined by what

cannot be said. Thus, counsel may not:

Comment On Facts Which Have Not Been Placed In Evidence. See Cattanov. Metropolitan St. Ry. Co., 173 N.Y. 565 (1903) (appeals to prejudice or passionor raising facts neither proved nor presumed have no place in the trial); Taggart v. Alexander’s Inc. 90 A.D.2d 542, 455 N.Y.S.2d 117(2d Dep’t 1982) (reversibleerror to permit defense counsel to refer to prior acts of the decedent in summation where there was no evidence introduced of such acts at trial).

Request Damages In Excess Of The Amount Demanded In The Pleadings.See Pop Cowboy, Inc. v. 175 West 73rd Street Reality Corp., 292 A.D.2d 300,740 N.Y.S.2d 29 (1st Dep’t 2002), reducing a jury’s damage award where theaward exceeded the amount specified in the ad damnum clause.

Make References To The Insurance Coverage Of A Party. See Young v.Tops Markets, Inc., 283 A.D.2d 923, 725 N.Y.S.2d 489 (4th Dep’t 2001) holdingthe lower Court properly sustained defendant’s objections to plaintiff counsel’s“veiled references to insurance” during summation); Knapik v. Whitaker, 30A.D.2d 915, 292 N.Y.S.2d 781 (3d Dep’t 1968); Rendo v. Schermerhorn, 24A.D.2d 773, 263 N.Y.S.2d 743 (3rd Dep’t 1965) holding defense counsel’sreferences to defendant’s lack of insurance cannot be condoned.

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Allude to a Party’s Ability or Inability to Respond in Damages. See Vassurav. Taylor, 117 A.D.2d 798, 499 N.Y.S.2d 120 (2d Dep’t 1986) holding it wasgrossly improper for defense counsel to remark in summation that the defendants have limited means and could not afford to pay a large judgment; Carey v. AAA Con Transportation, Inc., 61 A.D. 2d 113, 401 N.Y.S.2d 1015 (3rd Dep’t 1978), granting a new trial where plaintiff’s counsel in summation commented on the defendant’s ability to pay; Nicholas v. Island Industrial Park of Patchogue, 46 A.D.2d 804 (2d Dep't 1974). In Nicholas, plaintiff's counsel stated in summation: "They're the corporations, they're the owner, they're the defendant, they've got the money, they've got the assets behind them." Nicholas supra at p. 41. The court held that references to a defendant's ability to pay damages were improper.

Act As An Unsworn Witness By Asserting Personal Knowledge the Facts inIssue. See Valenzuala v. City of New York, 59 A.D.3d 40, 869 N.Y.S.2d 49 (1stDep’t 2008) plaintiff’s counsel caused reversible error by continually voicing hisopinion as to the facts of the case during summation, which conduct amounted toa subtle form of testimony which could not be cross examined; Boruch v.Morawiec, 51 A.D.3d 429, 857 N.Y.S.2d 103 (1st Dep’t 2008) (it is improper fordefense counsel to call the Industrial Code a “stupid law,” but holding that thecomment had been properly limited by a curative instruction); see also, Pilon v.Pilon, 278 A.D.2d 760, 718 N.Y.S.2d 449 (3d Dep’t 2000); Reynolds v. Burghezi,227 A.D.2d 941, 643 N.Y.S.2d 248 (4th Dep’t 1996); Stangl v. CompassTransportation, 221 A.D.2d 909, 635 N.Y.S.2d 376 (4th Dep’t 1995); Sanchez v.Manhattan and Bronx Surface Transit Operating Auth., 170 A.D.2d 402, 566N.Y.S.2d 287 (1st Dep’t 1991).

In addition to the foregoing, there is a general, but important, category of improper

summation commentary which can be best characterized as undignified, discourteous and

plainly obnoxious conduct of such a significant degree as to compel a retrial. See, e.g., McArdle

v. Hurley, 51 A.D.3d 741, 858 N.Y.S.2d 690 (2d Dep’t 2008); Vazquez v. Costco Companies,

Inc., 17 A.D.3d 350, 792 N.Y.S.2d 593 (2d Dep’t 2005); Rodriguez v. New York City Housing

Auth., 209 A.D.2d 260, 618 N.Y.S.2d 352 (1st Dep’t 1994); Abbott v. New Rochelle Hospital

Medical Center, 141 A.D.2d 589, 529 N.Y.S.2d 352 (2d Dep’t 1988).

Some specific examples follow:

Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318 (1st Dep't 1982).

Among the other excesses contained in the plaintiff's summation, was the following:

"They will say anything to beat this case because, ladies and gentlemen, there is a lot of money involved here. They bring in a phony doctor for a price. . ." Id. at p. 318.

Berkowitz v. Marriott Corporation, 163 A.D.2d 52 (1st Dep't 1990). In this case, a

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verdict of nearly $8 million was reversed because of plaintiff counsel's remarks during

summation, including calling experts hired guns, accusing the defense attorney of not even

himself believing the positions his clients advanced, etc. This case is significant in that defense

counsel did not object to the comments as they were being spoken; rather, he waited until the

conclusion of summation. Notwithstanding, the court ordered a new trial.

Maraviglia v. Lokshina, 92 A.D.3d 924, 939 N.Y.S.2d 534 (2d Dep't 2012). The

Second Department ordered a new trial based on a defense attorney's comments during trial

that the plaintiff's treating physician was the "go-to" doctor for people seeking disability benefits

and that the doctor performed medicine "in a parking lot." He also implied that another one of

plaintiff's doctors was involved in a scam and he made various other inflammatory comments

not based on the evidence.

Mercurio v. Dunlop, 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dep't 1980). In Mercurio,

the defense verdict was reversed because defendant argued plaintiff's expert was a fraud and a

phony and plaintiff wanted to steal money from the defendant. Yet, in Chappotin v. City of

New York, 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dep't 2011) lv. To app. Den. 19 N.Y.3d 808

(2012), the First Department affirmed a jury verdict despite defense attorney comments that the

lawsuit was part of a pattern of the plaintiff trying to "scam his way into free money," and that the

plaintiff, who was on disability before the accident, "has played the system going on 15 years."

The Appellate Division affirmed the defense verdict on the grounds that plaintiff's attorney had

failed to object to 13 of the 15 objectionable comments and the trial Court gave curative

instructions on the two comments plaintiff objected to.

The lesson in these cases is clear. Parties in summation may recap the evidence,

comment on its relevance to the issues in the case and contrast the testimony. Counsel is

given, "within the four corners of the evidence, the widest latitude by way of comment,

denunciation or appeal in advocating his cause." Braun v. Ahmed, 127 A.D.2d 418, 421, 515

N.Y.S.2d 473 (2d Dep't 1987); Kasman v. Flushing Hospital and Medical Center, 224 A.D.2d

455

590, 638 N.Y.S.2d 687 (1996). Ad hominem attacks, however, are not favored, although

sometimes permitted, but may result in a reversal if they have no evidentiary basis. In short,

deliver your summation based on the evidence.

MAKE THE OBJECTION!

Counsel should always remember to object during summation if improper remarks are

made, asking that counsel desist and request a curative instruction. It has been held that failure

to timely object may waive a claim of error at appellate review. See Winiarski v. Harris, 78

A.D.3d 1556, 910 N.Y.S.2d 814 (4th Dep’t 2010); Friedman v. Marcus, 32 A.D.3d 820, 821

N.Y.S.2d 136 (2d Dep’t 2006); Sweeney v. Peterson, 24 A.D.3d 984, 805 N.Y.S.2d 477 (3d

Dep’t 2005); Meyers v. Levine, 273 A.D.2d 449, 711 N.Y.S.2d 742 (2d Dep't 2000); Smith v.

City of New York, 217 A.D.2d 423, 629 N.Y.S.2d 411 (1st Dep't 1995); Torrado v. Lutheran

Medical Center, 198 A.D.2d 346, 603 N.Y.S.2d 325 (2d Dep’t 1993); Heberer v. Nassau

Hospital, 119 A.D.2d 729, 501 N.Y.S.2d 143 (2d Dep't 1986); Murphy v. Town of Schodack, 98

A.D.2d 911, 471 N.Y.S.2d 354 (3d Dep't 1983). Please also note that it has been held

reversible error for the Court to prohibit defense counsel from making objections during the

summation. Roma v. Blaustein, 44 A.D.2d 576, 353 N.Y.S.2d 44 (2d Dep't 1974). On the other

hand, incessant groundless objections interrupting your opponent's summation are rarely

appreciated by the judge or effective before the jury.

USING DEMONSTRATIVE EVIDENCE DURING SUMMATION

The use of charts and demonstrative aids in summation is permissible in the discretion

of the trial judge as long as the material is directly relevant to matters in evidence. See Caroll v.

Roman Catholic Diocese of Rockville Center, 26 A.D.2d 552, 553, 271 N.Y.S.2d 7 (2d Dep't

1966), aff'd. 19 N.Y.2d 658 (1967) (holding that the Court did not abuse its discretion in

permitting counsel to use a blackboard or chart during summation); see also Rojas v. City of

New York, 208 A.D.2d 416, 617 N.Y.S.2d 302 (1st Dep’t 1994). Plaintiff's counsel should be

permitted to show the jury x-rays admitted into evidence during his or her summation and

456

comment on the markings of the experts. Roseingrave v. Massapequa General Hospital, 298

A.D.2d 377, 751 N.Y.S.2d 218 (2d Dep't 2002).

MISSING WITNESS ARGUMENTS

A common theme in closing argument is the failure of one side or the other to call a

relevant witness who would otherwise be expected to favor that party. Such arguments are

perfectly appropriate. See Seligson, Morris & Neuberger v. Fairbanks Whitney Corp., 22 A.D.2d

625, 257 N.Y.S.2d 706 (1st Dep't 1965).

STRUCTURE OF THE SUMMATION

It is too late to think about summation as the last witness is leaving the stand and the

judge is instructing the jurors to return the next day to hear summations and charge.

Preparation for an organized summation should begin even before the trial starts with a

summation folder or summation tab in your trial notebook. Before you begin the trial you should

have a general outline of what you expect to comment on in summation and the order in which

you intend to introduce the issues. To avoid a weak introduction or a weak conclusion, try

preparing the introduction and concluding remarks of your summation well in advance. During

the course of the trial you can add, modify and supplement what you would like to say in the

body of the summation based on what happens in real time with the witnesses.

Most attorneys begin the summation by thanking the jurors for the time they have spent

on the case and the attention they have devoted to the witness' testimony. Often, then, the jury

is reminded in summary fashion of the central theme of the case or the rule that was violated by

the defendant, and how the witnesses have all agreed to what the rule is, and how the facts

prove the rule was violated.

Next, as an organizing principle of the body of the summation, the attorney should use

the jury interrogatories as landmarks for reference points. Tell the jurors they will be asked very

specific questions by the judge, and that the answers to the questions will be used by the judge

to create the verdict and determine the outcome of the case. It is critical to go over each

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interrogatory the jurors will be asked, and to suggest how the interrogatory should be answered.

Thus, in a non-bifurcated trial, the summation proceeds through each liability question, to the

proximate cause question. Do not take for granted, for example, that the jurors understand the

causation question, because causation can sometimes confuse jurors even in the simplest

cases. Tell the jurors what evidence compels the answers which favor your client.

Next, address and debunk the defenses raised by your adversary. All too often, both

experienced and inexperienced plaintiff attorneys become so agitated at the defense summation

that they spend the better part of their own summation chasing the missiles the defense

attorney has fired off. They sometimes fail to fully return to the plaintiff's themes and plaintiff's

proofs. Address the defense arguments, but do not permit the defendant to dictate the course

of your summation.

With the defenses dealt with, and the arguments for a plaintiff's verdict on liability laid

out, turn to the damages interrogatories and remind the jury of the special and general

damages. These are the consequences of the defendant's rule violation. Here, the plaintiff's

attorney asks for a specific damages amount for past and future pain and suffering, medical bills

and lost wages. Rare is the case where a plaintiff attorney will not advise the jury what money

damages he believes are appropriate. Jurors have no reference point for the value of an injury

and are anxious to know how the attorneys value the case, even though they are inherently

suspicious of both plaintiff and defendant attorney remarks on this subject.

Finally, conclude. Conclude by uplifting the jurors. Remind them how important their

work is. Appeal to the noble aspirations of the jurors to do justice, to set things right, to bring

closure for the parties and to do something the jurors can be proud of. And then sit down.

IV. Repackage the Evidence in a Way that is Useful for the Jury

More than 2000 years ago Aristotle wrote about the importance of refreshing the

memory of the audience frequently. No where is that dictate more true than in summation. An

old trial lawyer's proverb is: "Tell the jury what you expect to prove in opening statement, prove

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it in your case in chief, and then tell the jury what you proved in summation."

There is no doubt the summation must contain a repetition of the strongest and most

important points made on behalf of your client during the trial. Refreshing the memory of the

jury in summation, however, must not be a boring repetition of what each witness said. If you

bore the jury, they will stop listening and you will have lost the opportunity to persuade. Instead

of merely repeating the evidence, repackage it in a way that the jury will find useful in their

deliberations. Reacquaint the jury with the testimony in the context of the jury interrogatories

the jurors will be called upon to answer, as well as core credibility questions. For example, in

reviewing the testimony of plaintiff's expert witness, Dr. Smith, a defendant attorney might say:

(1) "Let's now look at how the testimony of Dr. Smith squares with his own medical records;" or

(2) "Let's now consider how the testimony of Dr. Smith lets you answer the question of whether the plaintiff's injuries are permanent."

Then, review the testimony of Dr. Smith. In short, repackage the testimony in a way the jury

deems useful while still adhering to the age-old principle of repeating the important evidence.

Repackage, do not simply rehash.

V. Rhetorical Techniques

1. Use analogies and similes liberally in your opening and summation. They create

word pictures and assist the jury in understanding your theme and remembering key facts.

2. Use empowering words. Use present tense and action verbs. Lose the lawyer

language.

3. Employ the rhetorical technique known as the "Rule of Three" ("I came, I saw, I

conquered").

V. Discussing the Law in Summation

It is universally understood in New York State courts that it is improper for the lawyers to

inform the jury what the applicable law is. It is not improper, however, to weave the language

the judge will use in his charge into your summation. Mimicking the terminology in the jury

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charges, it is entirely appropriate to advise the jury that the defendant caused the crash

because "he failed to see what was reasonably to be seen," or that he failed to "look, or look

carefully." In summation, speak the same language as the judge.

VI. Non-Verbal Influences and Using Courtroom Space on Summation

One study suggested that 7% of communication is absorbed by verbal communication

(words), 38% is absorbed by vocal impression (intonation and tone), and an incredible 55% of

communication is absorbed by visual impression (body language and non-verbal

communication). Use non-verbal communications to support your message.

The jury is looking with their eyes as well as hearing with their ears. Use your body to

complement your verbal message. Use gestures for emphasis. High energy in the speaker can

infect the listener. Low energy means low juror interest. When speaking to the jury:

Don't bury your hands in your pockets (too casual) or repetitively open and closethem (too nervous). If you glue your elbows to your flank, you won't be able to makeexpansive gestures with your hands and arms. Don't stand tilted on one foot offbalance or dance around the courtroom when you speak. Imagine the distraction ofsomeone trying to speak to you in your living room while pacing back and forth.

Do permit your hands to drop naturally to your sides. Let your hands supplementyour presentation, emphasizing and physically describing what you are saying.Gesture, if possible, with one hand at a time. As one pair of communicationsexperts wrote:

You look strongest and in greatest control when you plant your two feet shoulder width apart, weight equally balanced, square to the audience. That way, all of your energy manifests itself in gestures, facial expression, and upper body movements. Your message is reinforced and made clearer by your physical behavior. (Talk Your Way to the Top, Kevin and Laura Daley (McGraw - Hill 2004).

Focus your eyes on one person on the jury panel at a time until you complete athought. A thought is a short sentence; a place in your monologue where you wouldnaturally pause. Repeat the process continually until your presentation is over.

VII. Develop a Passion for Your Client's Cause

In your summation show that you care for your client, you care for your client's cause

and that you are a true believer in it. If you don't, your body language, your non-verbal

communication, will betray you. Passion, however, is not the same as histrionics. Persuade the

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jury with logic and evidence, not emotion. Overt appeals to emotion rarely succeed on their

own. Emotions should be used strategically, for emphasis and to motivate the jury.

MATTHEW ZULLO RAPPAPORT, GLASS, LEVINE & ZULLO, LLP 1355 Motor Parkway Hauppauge, New York 11749 (631) 293-2300

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Kenneth M. Alweis Partner Goldberg Segalla, LLP

Kenneth M. Alweis is a partner in Goldberg Segalla’s Syracuse, New York office whose

practice focuses on representing contractors, construction managers, shopping center

developers, owners, and retailers in construction and commercial disputes, negligent

security and liability claims, tenant litigation, and land use and zoning disputes. Mr. Alweis

heads the firm’s Retail, Hospitality, and Development Practice Group, a multi-disciplined

team of attorneys that provides innovative legal and consulting solutions aimed at avoiding

disputes and managing risk. In addition to matters related to the retail industry, Mr. Alweis

has extensive product liability, catastrophic injury litigation, and employment litigation

experience. He regularly represents manufacturers of industrial and consumer products in

state and federal court and has defended many personal injury, property damage, and fire

cases involving alleged manufacturing and design defects and warning claims. He has also

represented employers in all types of employment-related litigation in state and federal

courts as well as in arbitration.

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Peter F. Brady Senior Counsel Faraci Lange, LLP

Peter F. Brady is Senior Counsel with Faraci Lange, LLP in their Buffalo office. He handles

all areas of plaintiff personal injury claims, with emphasis on construction accidents, motor

vehicle accidents, and premises claims. Formerly, he was a founding partner of Brady &

Schaefer, where his practice was essentially the same.

He has considerable experience as well in defending personal injury claims. In a career of

over thirty years, he has tried cases to verdict both as plaintiff and defense counsel.

He is a former officer of the Western New York Trial Lawyers Association, and a former

director of the Erie County Bar Association.

For many years, he has also served as a private mediator and arbitrator.

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Brian M. Brown Partner Zaremba Brownell & Brown, PLLC

Brian M. Brown is a founding member of the law firm of Zaremba-Brown in Manhattan, one

of the largest firms in New York dedicated to representing the rights of injured members of

the construction trades. Mr. Brown is one of New York’s leading trial attorneys having

won many millions of dollars in verdicts and settlements for his clients, specializing in the

areas of construction accidents and medical malpractice.

He has been recognized by his peers with his multiple selections to Super Lawyers and has

been featured multiple times in New York Magazine’s annual list of Top Personal Injury

Litigators and a number of his cases have been featured in the New York Law Journal’s

annual Top Verdicts and Top Settlementspublications. Mr. Brown has been selected for

inclusion and serves on the New York County Supreme Court Advisory Committee for

Medical Malpractice.

Mr. Brown is a member of the Board of Directors of the New York State Trial Lawyers.

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Paul J. Callahan Partner Brown & Kelly, LLP

Paul J. Callahan is a partner with Brown & Kelly, LLP which is located in Buffalo, New York.

His extensive experience includes the analysis and litigation of complex insurance coverage

related issues. He also assists special investigation units on a statewide basis in the

investigation, evaluation and litigation of suspicious first party claims as well as represents

insureds with respect to various third-party matters.

Admitted to practice in the courts of the State of New York and the United States District

Court for the Western District of New York, Mr. Callahan frequently chairs, lectures, and

publishes materials on insurance coverage and defense related matters for the American

Bar Association, New York State Bar Association, Claims and Litigation Management

Alliance, as well as for regionally and locally-based insurance associations such as the New

York Association of Independent Adjusters, Inc. and the Buffalo Claims Association. Since

2005 he has authored AInsurer=s Avoidance of Policy Obligations for Material

Misrepresentations@ which can be found in the second edition of the New York State Bar

Associations=s treatise Insurance Law Practice.

Mr. Callahan is a member of the New York State Bar Association, its Torts, Insurance and

Compensation Law Section (TICL), TICL=s Insurance Coverage Committee, and the Bar

Association of Erie County. He is also a member of DRI, its Insurance Law Committee, the

Claims and Litigation Management Alliance, New York State Chapter of Special

Investigation Units, Buffalo Claims Association, and the Defense Association of New York.

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Vito A. Cannavo Partner Sullivan Papain Block McGrath & Cannavo P.C.

Employment Experience

1988 - Present

Sullivan Papain Block McGrath & Cannavo P.C. Member of the firm since 1993

Responsible for trials, trial preparation, supervision of attorneys in all aspects of

personal injury matters involving medical malpractice, product defects, municipal

liability, premises, automobile, accidents, firefighter litigation.

1984 – 1988

Office of the Corporation Counsel

Trial attorney in the Special Litigation Unit responsible for trials involving all

aspects of municipal claims, including highway and roadway design, sidewalk

defects, firefighter and police claims, premises.

Named Lawyer of the Year by Association of the Bar of the City of New York

1980-1984

Simpson Thacher & Bartlett

Litigation associate responsible for all aspects of litigation involving product

liability, drug manufacturer liability, securities and corporate litigation.

1978-1980

Honorable Mark A. CostantinoLaw clerk to Judge Mark A. Costantino in the United

States District Court for the Eastern District

Responsible for legal research, drafting legal opinions and orders and assisting the

Court with trial and motion issues, including jury charges and memoranda and

discussion points in all aspects of federal, civil and criminal litigation.

Education

1975-1978

Cornell Law School

Awarded Juris Doctor 1978

1971-1975

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SUNY Stony Brook Awarded B.A. 1975 (Summa cum laude)

1967-1971

Msgr. Farrell High School

Awarded high school regents diploma 1971

Bar Association Activities

Lecturer

New York State Trial Lawyers Institute

Lecturer

New York State Bar Association

Lecturer

Columbian Lawyers Association of Brooklyn

Lecturer

Transitional Training for Criminal Term Judges for Unified Court System

Lecturer

Nassau Academy of Law

Memberships

Association of the Bar of the City of New York

New York State Trial Lawyers Association

Columbian Lawyers Association of Brooklyn

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Samuel J. Capizzi Partner Collins & Collins Attorneys, LLC

Samuel J. Capizzi is a graduate of the State University at Buffalo Law School. And since then

he has spent his entire career representing those injured by another’s negligence. He feels

honored to be their voice against the powerful interests of the insurance companies and big

corporations. Mr. Capizzi is keenly aware that it is not just a client’s interests at stake, but

those of his or her family members as well. It is a responsibility he doesn’t take lightly.

Mr. Capizzi has handled all types of cases: general negligence claims, auto accidents,

premises liability, product liability, construction accidents under the New York State Labor

Law, and commercial claims. He has had recoveries of all kinds, with many multiple-million

dollar settlements and jury verdicts. He enjoys his work immensely, and he particularly

likes complex cases that present a challenge. In fact, some of his best trial results have been

in difficult liability cases or cases that other lawyers thought were unwinnable.

Mr. Capizzi is a member of the American Association of Justice, the American Board of Trial

Advocates, the New York State Trial Lawyers Association, the New York State Bar

Association, the New York State Bar Association Pro Bono Appeals Panel, and the Erie

County Bar Association. In addition to his busy trial and litigation practice, he regularly

speaks to community and school groups on legal topics of general interest, and he

participates in seminars for other lawyers who practice in his fields of interest.

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Michael T. Colavecchio Partner Lewis Johs Avallone Aviles, LLP

A partner with Lewis Johs Avallone Aviles, LLP, Michael T. Colavecchio has represented

clients for more than twenty-five years in all areas of casualty defense. For the past six

years, Mike has been selected for inclusion in Super Lawyers, New York Metro edition,

which recognizes the top 2.5% of lawyers in the New York City Metropolitan area. He has

also received a Martindale-Hubbell Peer Review rating of AV Preeminent, the highest

possible rating.

A well-respected trial lawyer, Mike has tried in excess of one hundred cases throughout his

career and continues to maintain a busy trial schedule. With a consistent history of

achieving positive trial results for his clients, he has taken verdicts throughout the New

York metropolitan area in cases involving construction accidents, medical, dental, legal and

other professional malpractice, motor vehicle and trucking liability, premises liability,

products liability, employment discrimination, land use claims, environmental liability and

commercial disputes.

In addition to trial work, Mike has drafted and orally argued numerous appeals before the

New York State and federal appellate courts, achieving a high rate of success. A 1990

graduate of The Hofstra University School of Law, Mike is a frequent lecturer for local and

national organizations.

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Thomas P. Cunningham Partner Rupp Baase Pfalzgraf Cunningham LLC

Tom is a founding partner with Rupp Baase Pfalzgraf Cunningham. His is a graduate of

Canisius College and the State University of New York at Buffalo School of Law. He is a trial

attorney and concentrates his practice on insurance defense litigation, insurance coverage

and business litigation. Tom is a frequent author and lecturer on New York State Labor

Law, automobile and premises liability, products liability and insurance coverage topics.

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Thomas Dargan Partner Lewis Johs Avallone Aviles, LLP

Tom Dargan is a partner at Lewis Johs Avallone Aviles, LLP and his practice focuses on the

representation of commercial clients in the areas of Labor Law, Transportation Law and

complex civil litigation. He defends numerous corporate and commercial clients in state

and federal courts for cases involving construction accidents, employment matters,

products liability, dram shop actions and premises security. He has tried cases for over

twenty years and has obtained favorable results throughout his trial career. He advises

commercial specialty units of several insurance carriers with respect to topics including

first and third party claims, contractual indemnification and breach of contract issues.

Tom has lectured to corporate clients and insurance organizations on a variety of topics,

including construction contracts, transportation losses, employment law, crisis

communications planning and investigation procedures for significant casualties.

Additionally, he acts as regional counsel to an international insurer as part of their

catastrophic loss response team. Tom was admitted to practice law in the State of New

York in 1997 and the United States District Court for the Southern and Eastern Districts of

New York in 1998. In March 2013, Tom was named and featured in Long Island Pulse

Magazine’s 2013 Top Legal Eagles List for his tremendous results and experience in the

field of commercial litigation. Additionally, he has been selected for inclusion in Super

Lawyers New York Metro Area from 2013-2016. In 1996, Tom Dargan received his Juris

Doctor degree from Hofstra University School of Law, where he served as the Research

Editor of the Hofstra Labor Law Journal. In 1993, he was awarded a Bachelor of Arts

Degree, cum laude, in English Literature from Providence College.

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Jennifer A. Ehman Associate Hurwitz & Fine, P.C.

Ms. Ehman is an attorney in the firm’s Litigation Department who focuses her practice in

insurance coverage analysis and coverage litigation, as well as No Fault/SUM arbitration

and litigation. Ms. Ehman also has experience in construction and labor law defense

matters, handling additional insured issues affecting construction site and premises

liability claims. She regularly analyzes construction contracts to determine respective

rights and obligations. She has provided legal training on the handling of insurance claims,

investigations and adjuster negotiations.

Ms. Ehman authors a column for the firm’s biweekly newsletter Coverage Pointers, entitled

“Keeping the Faith with Jen’s Gems”, summarizing both first party and third party trial

court cases along with reporting on notable bad faith cases from around the country. She is

also a columnist in the firm’s monthly newsletter Labor Law Pointers where she analyzes

recent cases discussing New York State Labor Law section 241(6).

Ms. Ehman is a member of the Torts, Insurance and Compensation Law Section of the New

York State Bar Association, a member of the Erie County Bar Association, the Western New

York Trial Lawyers Association and the Women’s Bar Association of the State of New York.

She has been named a Rising Star in Insurance Coverage by New York Super Lawyers

Magazine and a Rising Star in a special Legal Elite of WNY section of Business First

newspaper.

Ms. Ehman is a graduate of the University at Buffalo Law School where she earned her Juris

Doctor cum laude, and was an editor on the Buffalo Women’s Law Journal. She

simultaneously earned her Master’s of Business Administration at the University at Buffalo

School of Management. She received her Bachelor’s degree in Business Administration with

a concentration in Finance from Loyola College where she graduated magna cum laude and

was awarded the Business Achievement award two consecutive years. Ms. Ehman interned

with the U.S. Securities and Exchange Commission in Washington, D.C., Division of

Corporation Finance and at Fisher-Price, Inc. in East Aurora, New York.

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Julian D. Ehrlich Senior Vice President, Claims AON Construction Services Group

Julian oversees Aon’s Construction Services Group (CSG) claims team in the greater New

York/New Jersey region. This team of claim professionals advocates for superior claim

service for wrap up and traditional clients on issues ranging from accurate reserving to

appropriate resolution strategies to an expanded carrier view of coverage. He emphasizes

practical steps that clients can take to become better insureds and takes a collaborative

approach to facilitating resolutions that work for Aon’s business partners and customers

alike. He also edits the Aon CSG Claims Quarterly newsletter.

Julian has written for the New York Law Journal’s Outside Counsel and Expert Commentary

columns regularly for over 15 years. He has authored over 35 articles on insurance,

coverage and tort liability trends and emerging issues in numerous trade, industry and law

journals. He is also a coauthor of the definitive treatise on New York Labor Law published

by the New York State Bar Association and has been quoted in Crain’s New York Business,

Claims Journal, ENR (Engineering News-Record), and Business Insurance.

Julian has presented at programs for the American Bar Association, New York State Bar

Association, IRMI Conference Construction Cafés, the Defense Research Institute (DRI),

Construction SuperConference, Lormans, the Alpha Construction Conference, New York

RIMS and for other many bar and trade associations.

Julian served as President the Defense Association of New York (DANY) from 2010 to 2011

for which he received the Defense Research Institute (DRI) Exceptional Performance

Citation Award. He has also served on numerous committees of DRI.

Prior to joining Aon, Julian was Claims Counsel for AIG’s Construction Risk Division after

practicing as a defense attorney at private and staff counsel firms for more than 15 years.

Julian has spent his entire career in and around the insurance and the construction

industries. Known for his “4Cs” claims management approach – client service,

communication, competency and compliance, he is recognized as an industry thought

leader having published widely on coverage, liability, risk transfer, emerging legal issues,

claim handling and litigation management.

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Julian received his JD from Pace University School of Law and BS in Business

Administration from the State University of New York at Albany is licensed to practice law

in State and Federal Courts in New York and Connecticut.

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Brendan T. Fitzpatrick Partner Goldberg Segalla, LLP

Brendan T. Fitzpatrick concentrates his practice in all aspects of appellate litigation. In his

years of experience, he has briefed and argued appeals in every appellate court in New

York, including the New York State Court of Appeals and the Second Circuit Court of

Appeals. These appeals have covered a diverse range of issues, including constitutional law,

contracts, insurance coverage, products liability, and negligence.

As a member of the Amicus Curiae Committee for the Defense Association of New York

(DANY), he contributed to the preparation of amicus briefs to the New York State Court of

Appeals on significant cases that impact the defense bar throughout the state.

Brendan has published articles with the New York Law Journal, through Aspatore

Publishing, and USLAW Magazine on topics such as insurance coverage, the value of having

an appellate attorney involved throughout the litigation process, the impact of e-discovery

amendments on the Federal Rules of Evidence, and trade dress.

For his work with DANY, the organization honored him with its Literary Award “in

recognition of his outstanding work on the Amicus Curiae Committee” in 2009 and 2014.

Brendan has also been selected for inclusion in New York Super Lawyers.

Honors

New York Metro Super Lawyers 2010-2011, 2013-2016

Defense Association of New York (DANY) Literary Award: 2009, 2014

Professional Affiliations

New York State Bar Association

Defense Research Institute: Appellate and Ethics Committees

Defense Association of New York: Amicus Curiae Committee

American Academy of Appellate Lawyers

Nassau County Bar Association

Admitted to Practice

New York

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U.S. District Courts for the Eastern and Southern Districts of New York

U.S. Courts of Appeals for the Second and Tenth Circuits

U.S. Supreme Court

Education

University of Notre Dame School of Law, J.D., 1995

University of Notre Dame, B.A., 1992

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Elizabeth A. Fitzpatrick General Counsel Island Companies

Ms. Fitzpatrick provides legal counsel for Island Companies and their affiliates throughout

the Northeast on areas of the law impacting the business, including the preparation,

review, and negotiation of contracts and other agreements, insurance and risk mitigation,

cyber-liability and training of company managers on industry specific regulations.

She has significant experience representing insurers in defending and instituting

declaratory judgment actions and assisting clients in analyzing, arbitrating, negotiating and

providing coverage opinions on issues arising under a variety of insurance policies,

including commercial general liability, OCIP, professional, directors’ and officers’,

employment practices, premises, commercial and automobile liability policies, as well as

focusing on environmental coverage, cyber liability and social media issues. She also has

extensive appellate experience in both state and federal courts.

She is Vice Chair of the Torts, Insurance and Compensation Law section of the New York

State Bar Association where she previously served as chair of the Continuing Legal

Education Committee, receiving the Chairperson of the Year award for 2012. Nationally,

she is an active member of the highly selective, invitation-only Federation of Defense &

Corporate Counsel where she is a vice chair of the Property Insurance Section. She is also

active with DRI, the largest organization of defense attorneys in the country. Ms. Fitzpatrick

has been recognized as among the top ranked attorneys in the state and is listed in New

York Super Lawyers Magazine. She is AV rated preeminent. Also an active member of the

New York City and Long Island community, Ms. Fitzpatrick was honored as a 2014

recipient of the Leadership in Law Award by the Long Island Business News for

outstanding achievement in and service to the legal community. She serves on the Board of

Directors of the Child Care Council of Suffolk. An adjunct professor of Insurance Law at

Touro College, she is a graduate of St. John’s University School of Law and Pennsylvania

State University.

Ms. Fitzpatrick is a frequent lecturer and author on insurance coverage topics for a wide

range of professional groups and regularly provides insurance coverage training

throughout the country.

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Melissa A. Foti Partner Kenney Shelton Liptak Nowak LLP

Ms. Foti’s clients are her number one priority and focus. Her experience and connections

give her a unique perspective on how to best handle complex legal issues. It is her open and

collaborative spirit that helps ensure that her clients trust her on a personal level as

implicitly as they trust her legal experience.

Not only does Melissa tirelessly represent her clients, she is very active in the Western New

York legal community. Melissa is strongly committed to the Women’s Bar Association and

is a past president of the Western New York Chapter, and has served as the local director,

state director and co-chair for the Nominations Committee and Judiciary Committee over

the past several years. She is a former chair for the Young Lawyers Committee of the Erie

County Bar Association and has sat on the Judiciary Committee of the Erie County Bar

Association. She has also volunteered for the Volunteer Lawyers Project and has served as

an attorney advisor and judge for the Erie County High School Mock Trial Tournament.

Melissa continues to play an active role in a number of other professional organizations

where she enjoys time spent cultivating relationships with current clients as well as

meeting new clients.

Education

B.A., Legal Studies, State University of New York, University at Buffalo

Pursued course work toward Juris Doctor at The John Marshall Law School, Chicago, Illinois

J.D., State University of New York, University at Buffalo Law School

Independent Studies

University of Parma, Università degli Studi di Parma, Parma, Italy

Rome, Italy

Affiliations

Chicago Bar Association Young Lawyers Section

Erie County Bar Association

Justinian Society, Chicago, Illinois

Judiciary Committee of the Erie County Bar Association

New York State Bar Association

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Immediate Past President, Women’s Bar Association of the State of New York, Western

New York Chapter

The Young Lawyers Committee of the Erie County Bar Association

Accomplishments

New York State “Super Lawyer,” 2013-2015

Legal Elite of Western New York, 2015

Admission

New York State

Pennsylvania State Bar

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Kristin V. Gallagher Member Carroll McNulty Kull LLC

Kristin has spent nearly two decades litigating, mediating, and arbitrating insurance

coverage matters in federal and state courts around the country. Her resume includes

general liability, product liability, technology and media liability, directors’ and officers’

liability, cyber risk, professional liability/E&O, construction, property, and environmental

and mass tort claims. She is also experienced in all aspects of bad faith litigation, including

claims between primary and excess insurers.

Prior to 1999 when she joined CMK team, Kristin handled coverage and asbestos defense

litigation for three years with a large New Jersey based law firm. She also served as Law

Clerk to The Honorable Peter E. Doyne, P.J.S.C., Superior Court of New Jersey, Bergen

County.

Kristin is a member of the Defense Research Institute, Council on Litigation Management,

National Association of Professional Women and National Association of Insurance Women,

and is a founding member of the CMK Women's Initiative. She also serves as an elected

member of the Board of Education in Washington Township, New Jersey.

When she isn’t behind a desk or before the court, Kristin recharges her batteries through

pilates, cross fit training, tennis, gardening and reading. The greatest joy in her life,

however, is her two children.

Education

Fairfield University, Bachelor of Arts, 1992

Seton Hall University School of Law, Juris Doctor, 1995

Presentations

Coverage B – Personal and Advertising Injury,” Presented on May 18, 2010

One Claim…Two Policies,” Webinar Hosted by martindale.com Connected and the Council

on Litigation Management (CLM), Presented on November 16, 2010

The Relationship Between Primary and Excess Insurers,” Presented on March 22, 2011

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Hon. Elizabeth A. Garry Associate Justice Appellate Division, Third Department

Justice Garry is an Associate Justice of the Appellate Division, Third Department, and has

served in this court since March 2009. Her primary chambers are located in Chenango

County, where she began residing after graduating from Albany Law School, in 1990. She

began her legal career serving as the Law Clerk to the Hon. Irad S. Ingraham, JSC, and

thereafter engaged in private practice with the Joyce Law Firm for 12 years, trying civil

cases throughout central New York, and representing children in Family Court proceedings.

She was elected Town Justice in New Berlin in 2001, and served five years in that position

immediately prior to commencing her term as a NYS Supreme Court Justice in the Sixth

Judicial District in 2007.

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Carolyn B. George Partner Friedman, Hirschen & Miller, LLP

Carolyn B. George is an accomplished and respected attorney whose commitment to

professional excellence over the past 37 years has earned her recognition by Superlawyers,

Upstate New York edition, in the field of trial practice.

She concentrates her practice in the area of personal injury accidents, including pursuing

all avenues of insurance coverage available to injured persons, in order to obtain the

maximum recovery for her clients. Her experience representing defendants as in-house

counsel for major insurance carriers provides a unique insight into the nuances of

insurance company operations.

She also defends local municipalities in federal civil rights suits involving land use and

police encounters.

Known for detailed attention and an unflagging work ethic, she also represents individual

clients, nonprofits and corporate entities in a variety of general practice matters.

Education

BA, LeMoyne College cum laude

JD, Syracuse University College of Law

Bar Admissions

New York State Bar

United States District Court, Northern & Southern Districts

Second Circuit Court of Appeals

United States Bankruptcy Court, Northern District of New York

Member

U. S. District Court, Northern District of New York, Mediation Panel; Albany City Court

Mediation Panel

Member, New York State Character & Fitness Committee, Third Judicial District

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Speaker

NYSBA/NBI Seminars on UM/SUM coverage, CGL policies, bad faith, premises liability,

evidence, general policy exclusions, property damage coverage, ethics

Past Employment

Pentak, Brown & Tobin (associate); Travelers Insurance Company and General Accident

Insurance (staff counsel); Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander

(associate); Hacker & Murphy (associate)

Current Employment

Friedman, Hirschen & Miller, LLP (partner)

Honors

Albany Law School Gabrielli Award, Moot Court Program (four times)

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John D. Gilleland, PhD Vice President DecisionQuest

Dr. John D. Gilleland is Vice President of DecisionQuest, Inc., a trial consulting and strategic

communications firm with offices in Los Angeles, Chicago, Pennsylvania, New York, Boston,

Washington DC, Atlanta, Minneapolis, San Francisco and Miami. The firm is comprised of

approximately 100 individuals.

As one of the top jury consultants in the country, Dr. Gilleland has spent more than 30 years

studying jury psychology, the last 27 of which have been dedicated to exclusively

conducting empirical jury research. As such, he has extensive knowledge of jury behavior

as it relates to the study of attitude change and persuasion techniques, attributional

reasoning, and group decisionmaking processes. Dr. Gilleland is an expert on research

methodology and regularly assists trial teams with the development of effective trial

themes, the construction of compelling presentation strategies, opening statement

assistance, and the preparation of both fact and expert witnesses.

Dr. Gilleland began his postgraduate career as a visiting assistant professor of psychology

at Williams College in Williamstown, MA, before becoming a full-time jury consultant. Since

then Dr. Gilleland has conducted mock jury research on over 900 cases, and provided

strategic consulting advice on hundreds of others. He has a national practice and works on

civil and criminal cases in both federal and state courts across the United States.

As a recognized expert in his field, he is frequently asked to present at legal seminars and

CLE settings on topics related to jury research and juror behavior. Dr. Gilleland has several

media appearances as an expert commentator, and has presented before the American

Conference Institute, the Defense Research Institute, various Inns of Court, and a number of

state bar associations. He has been widely published on a variety of topics relating to jurors

and jury research and is an active member of the American Psychological Association, the

American Bar Association, and the American Society of Trial Consultants.

Education

University of California, Santa Barbara

Ph.D., Social Psychology

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University of California, San Diego

B.A., Psychology

University of Minnesota

B.A., Sociology

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Dennis P. Glascott Partner Goldberg Segalla, LLP

Goldberg Segalla partner Dennis P. Glascott has three decades of experience litigating and

trying catastrophic personal injury and other complex liability claims in the state and

federal courts of New York. He defends self-insured and insured clients in a variety of

areas, including product liability, premises and construction site personal injury litigation

under the New York Labor Law, municipal liability, and civil rights litigation involving

police misconduct. A frequent author and lecturer on topics pertaining to his areas of

practice, Dennis is also the Editor-in-Chief of Post-Trial Practice and Procedures in New

York, a publication released by the New York State Bar Association. He remains actively

involved in a number of legal and professional organizations, including the Defense

Research Institute, the New York Bar Association, the Defense Trial Lawyers Association of

Western New York, among others. He previously served on the Executive Committee of the

New York State Bar Association’s Tort, Insurance, and Compensation Law Section.

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Eileen M. Haynes Partner Bartlett, Pontiff, Stewart & Rhodes, P.C.

Eileen M. Haynes is a partner in the Glens Falls firm of Bartlett, Pontiff, Stewart & Rhodes,

P.C. where her practice is focused on the areas of civil litigation and appeals. In particular,

Ms. Haynes’ practice includes insurance defense, personal injury litigation, education

litigation, civil rights litigation, employment litigation, commercial litigation, and civil

appeals. Ms. Haynes received her B.A. degree from Cornell College and her J.D. degree, cum

laude, from Vermont Law School.

Ms. Haynes is a member of the New York State Bar Association; Warren County Bar

Association, and the Northern District of New York Federal Bar Association. She is admitted

to practice in the states of New York and Vermont, as well as the United States District

Courts for the District of Vermont and the Northern District of New York; the Second

Circuit Court of Appeals, and the United States Supreme Court.

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Julia M. Hilliker Partner Hodgson Russ LLP

Julia focuses her practice on trial work and complex litigation. For example, she recently

secured summary judgment on behalf of a Fortune 1000 company after it was sued by

numerous local residents alleging that toxic exposure to the company's operations caused

personal injury and property damage claims. She also frequently handles appeals and

recently successfully argued an issue of first impression to New York's highest court, the

Court of Appeals. In addition, Julia advises international clients on product liability and

insurance issues for manufacturers and distributors wishing to enter the U.S. market.

Julia’s past experiences include an internship at the U.S. Attorney's Office for the Western

District of New York as well as employment at Housing Opportunities Made Equal, an

organization dedicated to the enforcement of federal and state laws prohibiting housing

discrimination. Julia was also previously awarded a two-year research fellowship with the

Department of Human Resources for the City of Buffalo, where she assisted in disciplinary

hearings, general grievances, and contract negotiations.

Honors

Listed, Business First/Buffalo Law Journal's Legal Elite of Western New York, 2013

and 2014

Listed, Upstate New York Super Lawyers Rising Stars, 2013 – 2016

Buffalo Business First's Who's Who in Law 2012

Former symposium editor, Notre Dame Law Review

Member, Notre Dame trial team

Moot-Court First Speaker Award

Full fellowship recipient, University of Notre Dame Law School

Phi Alpha Delta law fraternity

Canisius Raichle Scholar

Canisius Dillon Scholar

Pi Sigma Alpha National Political Science Honor Society

Alpha Phi Sigma National Criminal Justice Honor Society

Alpha Sigma Nu National Jesuit Honor Society

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Paul Howansky Partner Harrington, Ocko & Monk, LLP

Mr. Howansky is a partner in the firm’s Insurance Litigation Group. Mr. Howansky

specializes in handling insurance coverage disputes and manages the firm’s appellate

practice. With nearly two decades of experience, Mr. Howansky has developed a strong

expertise with regard to risk transfer practices and has recovered hundreds of thousands

of dollars in litigation expense reimbursement for his clients. Mr. Howansky regularly

advises clients on drafting indemnification and insurance procurement provisions within

their trade contracts, and has experience assisting contractors as a “first responder” when

a catastrophic construction accident has occurred.

Mr. Howansky graduated with honors from New York University with a double major in

Piano Performance and Economics. In 1997, Mr. Howansky earned his J.D. from Hofstra

University School of Law where he had the distinction of serving as Articles Editor for the

Hofstra Law Review.

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Matthew J. Kelly Partner Roemer Wallens Gold & Mineaux LLP

Mr. Kelly received his undergraduate education from Cornell University (B.S. 1975) and his

law degree from Buffalo Law School (J.D. 1979). He was admitted to the New York State

Bar in 1980 and is admitted to practice in the Federal District Courts of the Southern,

Eastern, Northern and Western Districts of New York, and The U.S. Court of Appeals for the

Second Circuit. He was employed as Staff Counsel to the New York Public Service

Commission from 1979 to 1983, and has been in private practice since that time.

He is a Member of the Defense Research Institute of Northeastern New York, Albany Claims

Association and the Association of Ski Defense Attorneys (ASDA). He is a Member of the

House of Delegates of the New York State Bar Association, as well as on the Executive

Committee for the Torts, Insurance and Compensation Lawyers Section. He is a former

Chair of the President’s Committee on Access to Justice of the New York State Bar

Association, and was elected to the New York State Bar Association’s Executive Committee

as a Member at Large. He is also a Past President of the Albany County Bar Association,

Past President of Capital District Cornell Club; and Past President of Bethlehem Central

Athletic Association.

Mr. Kelly has lectured in the areas of trial practice and insurance coverage for the New York

State Bar Association, Albany County Bar Association, Association of Mutual Insurance

Companies of New York, and Albany Claims Association. He has argued matters before all

four Appellate Divisions of the Supreme Court, The New York Court of Appeals, and The

United States Court of Appeals, Second Circuit. He has tried over one hundred civil and

criminal cases to verdict throughout New York State in all four Departments and in the U.S.

District Courts for the Northern and Southern Districts.

He has been appointed as an Arbitrator in the Albany City Court and as a Mediator for the

U.S. District Court, Northern District of New York. Mr. Kelly has also been appointed to the

Governor’s Judicial Selection Committee for the Third Department by Chief Judge Hon.

Judith Kaye and Chief Judge Hon. Jonathan Lippman; and appointed to the Character and

Fitness Committee of the Third Department by Presiding Judge Hon. Karen Peters. He

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continues to be the Chairman of the Albany County Bar Association Diversity Internship

Program for Minority Law Students, and was one of the original organizers.

Mr. Kelly has received several awards, including:

• New York State Bar Association President’s Pro Bono Service Award-Third Judicial

District

• American Bar Association Award for Diversity Internship Program

• New York State Bar Association Award for Diversity Internship Program

• Albany County Bar Association’s President's Award

• Black, Latino, Asian & Pacific American Student Association Award for Development

of Diversity Internship Program

• Legal Aid Society of Northeastern New York and Albany Law School Award for

Promoting Equal Access to Justice

• New York County Lawyers Award 2013 for Pro Bono Work Assisting Victims of

Hurricane Sandy in 2012-2013

• Named Super Lawyer in Civil Litigation (2012, 2013, 2014 and 2015)

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William G. Kelly Partner Goldberg Segalla, LLP

William G. Kelly is a partner in Goldberg Segalla’s White Plains office and has been involved

in Labor Law cases since before the days of Kinney v. Lisk. Mr. Kelly has tried Labor Law

cases in every venue in the City of New York, has argued appeals successfully in the

Appellate Division, the Court of Appeals, and the Second Circuit. In Blake v. Neighborhood,

which set forth the Labor Law principle of “sole proximate cause,” the Court of Appeals

cited to Gomes v. State of New York as a basis for the principle. Mr. Kelly tried the Gomes

case, which involved the misuse of an extension ladder as the sole proximate cause. The

plaintiff’s case was dismissed and the decision was upheld on appeal in the Second

Department. Mr. Kelly has lectured numerous times on the Labor Law and was a

contributor to both the 2010 and 2014 supplements to the New York State Bar Association

textbook on Labor Law in New York State.

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David M. Knapp Associate Ward, Greenberg, Heller & Reidy LLP

David M. Knapp, an attorney with Ward, Greenberg, Heller & Reidy LLP, practices in the

areas of complex commercial and insurance coverage litigation, handling environmental,

asbestos, personal and advertising injury, allocation, priority of coverage, employee

dishonesty, first-party property, and bad faith/extra-contractual disputes. Mr. Knapp also

counsel clients on a broad range of insurance-related issues, performing detailed insurance

program reviews (including CGL, Builder’s Risk, Contractor’s Protective, Pollution, and

Professional Liability coverages), and works with insurance brokers to optimize coverage

for his clients. He also represents businesses in breach of contract, breach of warranty,

UCC and other complex commercial litigation.

Mr. Knapp has co-authored and contributed to papers on insurance coverage issues,

including social media coverage, construction defect claims, and allocation for long-tail

environmental claims, and has presented on various insurance coverage-related topics for

the New York State Bar Association.

Mr. Knapp is an Associate Fellow of the Litigation Counsel of America, and is a member of

the New York State Bar Association and Monroe County Bar Association. He was

recognized by Super Lawyers as a Rising Star in 2016.

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William T. Little Partner Law Office of Teresi & Little, PLLC

In 2013, William T. Little co-founded the Law Office of Teresi & Little, PLLC with his law-

school trial team partner Gregory Teresi. He practices primarily in the fields of civil and

commercial litigation and criminal defense and heads the firm’s civil litigation practice.

Mr. Little graduated from the State University of New York, College at Albany where he

received a B.A. in Political Science with a minor in Criminal Justice. He went on to received

his Law Degree from Albany Law School, where he was an Associate Editor for the Albany

Law School Environmental Outlook Journal. Mr. Little was selected to represent Albany

Law School in two mock trial competitions making it to the finals with Gregory Teresi.

Mr. Little started his career working at a large litigation firm in Albany, New York

practicing primarily in the areas of commercial litigation, personal injury litigation,

municipal liability, employment discrimination, products liability, and labor law claims. He

has represented clients in New York State and Federal courts, before the New York State

Court of Claims, and numerous state agencies including the EEOC, the New York State

Division of Human Rights and the New York State Department of Financial Services.

Mr. Little is the immediate past-President of the Capital District Black and Hispanic Bar

Association, a current member of the Board of Directors of the Albany County Bar

Association, General Counsel to the Arbor Hill Development Corporation, and District

Representative for the Torts Insurance and Compensation Law Section of the New York

State Bar Association. He is honored to serve on the Albany County Bar Association’s

Judicial Selection Committee and Albany County Democratic Law Committee.

Mr. Little has lectured on topics related to New York State and Federal Practice and for

employers on issues related to sexual, racial, and other types of harassment,

discrimination, and affirmative action. Mr. Little was selected to the New York State Super

Lawyers “Rising Stars” list in 2014 and 2015, an honor reserved for less than 2.5% of

lawyers in New York State.

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Stuart J. Manzione Partner Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C.

Stu Manzione earned his Juris Doctor degree in 1987 from St. John’s University School of

Law. He graduated Summa Cum Laude and Salutatorian from Long Island University, C.W.

Post in 1984.

The focus of his practice is on the defense and trial of matters of medical malpractice and

professional negligence, involving physicians, dentists, hospitals and nursing homes. He

also handles matters involving the trial of premises liability, products liability, automobile

liability and general negligence matters involving serious and/or catastrophic injury and

death.

Stu first joined Furey & Furey, P.C. in September 1987 and has been a partner with the firm

since 1995. Stu is admitted to practice in the State of New York and is also admitted in the

United States District Court, Eastern and Southern Districts of New York. He is also

admitted to the Federal Court of Appeals and is admitted to argue before the Supreme

Court of the United States. Stu is also a member of the Nassau County Bar Association and

the Trial Lawyers Association of Nassau and Suffolk Counties. He has lectured to

physicians and hospital staff regarding risk reduction strategies in several areas of patient

care and has previously lectured at the annual conference of The American Academy of

Otolaryngology-Head and Neck Surgery in Toronto and New York. He has also lectured on

trial techniques for the Bar Association and on various topics of interest to the insurance

defense community at seminars sponsored by Furey, Furey, Leverage, Manzione, Williams

& Darlington, P.C., and taught paralegal studies at C.W. Post College.

Additionally, Stu is active in community affairs. . With a few other parents, Stu founded the

Young Autism Program Charitable Foundation in 1998 and served as its President for five

years, providing funding for the Young Autism Program at Developmental Disabilities

Institute, as well as the assistance of other children and families affected by autism. He also

served as President of the Board of Trustees for the Ascent Funding Organization, a parent

organization supporting Ascent, A School for Individuals with Autism. He actively fund-

raises for The Center for Discovery and other autism societies. Stu has also been active in

the past in his town’s baseball league and was on the Board of Directors for the

Glenwood/Glen Head Baseball League.

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Brian W. McElhenny Partner Goldberg Segalla, LLP

Brian McElhenny, a partner in Goldberg Segalla’s Municipal and Governmental Liability

Practice Group, has more than three decades of experience defending clients in the courts

on Long Island and in the New York City area in municipal liability, labor law construction,

product liability, and premises cases. He has tried more than 90 cases to jury verdict and

argued 80 appeals before the Appellate Division, Second Department in New York State,

and he has argued five cases before the United States Second Circuit Court of Appeals.

Brian is a frequent author and presenter on topics in his areas of concentration. Recently,

he authored an article on New York’s “primary assumption of risk defense” doctrine for the

New York Law Journal.

He has been awarded an AV rating from Martindale-Hubbell, and has been selected for

inclusion in New York Metro Super Lawyers and as one of Long Island’s Top Legal Eagles.

Honors

Martindale-Hubbell Peer Review Rating: AV Preeminent

Top Rated Lawyer in Litigation, American Lawyer Media and Martindale-Hubbell, 2014

New York Metro Super Lawyers 2012-2016

Long Island's 2012 Top Legal Eagles

Professional Affiliations

Suffolk County Bar Association

Nassau-Suffolk Trial Lawyers Association

Admitted to Practice

New York

U.S. District Courts for the Eastern and Southern Districts of New York

U.S. Court of Appeals for the Second Circuit

Civic Activities

President of The Head of the Bay Club, Inc.

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Education

St. John's University School of Law, J.D., 1980

Colgate University, B.A., 1977

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Kevin T. Merriman Partner Ward Greenberg Heller & Reidy LLP

Kevin T. Merriman practices insurance law, handling a broad range of commercial,

professional and surplus/excess lines issues. He provides coverage counseling and

representation in complex coverage disputes involving long-tail and progressive losses

(including asbestos and pollution), advertising and personal injury offenses, product

liability, construction defect, public entity liability, risk transfer (additional insured,

indemnification), property damage and business interruption, employment practices,

priority of coverage, and bad faith/extra-contractual claims. Mr. Merriman’s recent

engagements have included representation of a Fortune 500 company in coverage

litigation for nationwide pollution and asbestos-related claims, and in related bankruptcy

proceedings involving the formation of an asbestos personal injury trust. He also

represents clients in foreign and domestic insurance-related insolvency proceedings, and

works with clients and their brokers reviewing insurance programs and policy wording to

optimize coverage. In addition to insurance coverage disputes, Mr. Merriman has defended

toxic tort claims, and has represented clients in mass tort, multi-district and class action

litigation.

Mr. Merriman writes and lectures frequently on insurance law issues for the American Law

Institute, Defense Research Institute, National Constitution Center, Property Liability

Research Bureau, and New York State and Erie County Bar Associations. He also

participates in the National Insurance Law Forum, a blog that facilitates discussion and an

exchange of ideas and information among industry professionals, risk managers, attorneys,

policyholders and students interested in insurance law.

Mr. Merriman is a member of the American College of Coverage and Extracontractual

Counsel and a Fellow of the Litigation Counsel of America. He possesses an AV®

Preeminent™ 5.0 rating from Martindale-Hubbell, and is listed in The Best Lawyers in

America® and New York Super Lawyers®. In 2016, he was named Best Lawyers®

Insurance Law “Lawyer of the Year” in Rochester, NY.

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Jeffrey N. Miller Partner Friedman, Hirschen & Miller, LLP

Jeff Miller has been practicing law for over 40 years and is the senior partner of Friedman,

Hirschen & Miller, LLP. He is recognized as one of Upstate New York's leading trial lawyers.

Jeff has worked both sides of the aisle having first been a very successful defense litigator

and then for the second half of his career becoming an equally successful plaintiff's trial

attorney.

Jeff has represented numerous individuals who were seriously injured as the result of

medical malpractice, defective products, defective premises, construction accidents,

industrial accidents and motor vehicle collisions many with multi-million dollar results.

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Lauren M. Miller Partner Cramer, Smith & Miller, P.C.

Ms. Miller has practiced law since 1996. She has litigated a variety of personal injury

actions, such as premises liability, dram shop actions, construction litigation, auto accidents

and premises liability suits. She has also represented both employees and employers with

respect to workplace disputes, including claims of retaliatory discharge and employment

discrimination.

She litigates in state, federal, administrative and appellate courts, and is a member of the

Onondaga County Bar Association Judiciary Committee. Ms. Miller lives in DeWitt, with her

husband and two children.

Education:

Syracuse, University (B.A. 1991)

Albany Law School, Union University (J.D. 1995)

Member Phi Alpha Beta

Admitted:

1996, New York

1997, United States District Court, Northern District of New York

2006, United States District Court, Western District of New York

Professional Organizations:

American Bar Association

New York State Bar Association

Onondaga County Bar Association

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Christopher Patrie Director of Human Resources Janitronics Inc.

Chris is Director of Human Resources for Janitronics Inc., an industry leading facility

services contractor servicing world class commercial partners in nano-technology,

pharmaceutical, educational, healthcare, and Class A office environments. Chris manages

and oversees all human resources initiatives and responsibilities for the company’s

corporate headquarters and branch offices throughout New York and Vermont. Prior to

joining Janitronics in 2006, Chris held progressive human resources and operations

management positions for regional and Fortune 50 corporations. His twenty-plus year

human resources career has allowed him the opportunity to speak publicly on a variety of

business and social issues. He volunteers his time as a long-time member of the Business

Advisory Council for Northeast Career Planning, Board of Directors for Capital Area Human

Resources Assoc., Past Chairman, Government Affairs, NYS SHRM Legislative District

Captain, NYS Business Council Legislative Committee, and various community programs.

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James E. Reid Managing Partner Greene & Reid, PLLC

James E. Reid is the managing partner at Greene & Reid, PLLC and also the president of

Advocate's Forum, Inc.

He is a 1976 graduate of Syracuse University College of Law and a 2015 graduate of the

Stetson University College of Law with LLM in Trial Advocacy with distinction.

Mr. Reid concentrates his practice in the representation of plaintiffs in personal injury

litigation. He also is a much sought after mediator in personal injury matters.

He has been an adjunct professor at Syracuse University College of Law teaching Advanced

Trial Practice and is a frequent lecturer in New York State Bar Association and New York

State Trial Lawyers Academy continuing legal education seminars.

Mr. Reid is a former Assistant District Attorney in Wayne County and a retired Marine

Corps Officer.

He has been honored with the Martindale-Hubbell AV rating, is a member of the American

College of Trial Lawyers, The American Board of Trial Advocates and the American College

of Civil Trial Mediators. He is also a member the Multimillion Dollar Advocates Forum and

is listed in multiple additions of New York Super Lawyers.

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Joanna M. Roberto Partner Goldberg Segalla, LLP

Joanna Roberto concentrates her practice in complex insurance coverage and commercial

litigation. She serves as coverage counsel for multi-national insurance carriers in numerous

matters pending throughout the country. Joanna has litigated all phases of declaratory

judgment actions and arbitrations. She has counseled large insurers on underwriting

procedures and policy rewriting and claims practices.

She also focuses her practice on professional liability claims, including errors and

omissions; property claims; life, health, and disability; construction liability coverage;

Coverage B litigation; and products liability.

Joanna is multi-lingual and has attained a degree in linguistics in Florence, Italy. She has a

familiarity with and appreciation for international claims handling practices as a result of

her experience handling claims arising in Mexico, Italy, the United Kingdom, Spain and

France.

Joanna is currently the editor of the TICL Insurance Coverage eNews, published by the New

York State Bar Association’s Torts, Insurance, and Compensation Law Section, and an

editor of Goldberg Segalla’s Environmental Coverage Report newsletter. She is also a

commentator for Mealey's Litigation Report: Insurance Bad Faith.

Admitted to Practice

New York

U.S. District Courts for the Southern, Eastern, and Northern Districts of New York

U.S. District Court for the District of Connecticut

U.S. Courts of Appeals for the Second and Tenth Circuits

Connecticut, 1997

Pennsylvania

Education

Pace University School of Law, J.D., 1997

Diploma di Conoscenza, Centro Linquisto, Florence, Italy, 1997

Hofstra University, B.A.,1994

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Lisa M. Robinson Partner Goldberg Segalla, LLP

Lisa Robinson is a partner in the firm's Syracuse office. She concentrates her practice on

the defense of catastrophic personal injury and death cases. An experienced litigator in

product liability defense cases and transportation, she has participated in the defense of

manufacturers of products and medical devices. In addition, she has worked on cases

involving bus crashes and large numbers of injured passengers, and she has both

investigated truck accidents and defended motor carriers. Lisa’s practice also includes

commercial litigation, product liability, general and municipal liability litigation, and

asbestos litigation.

Honors

Upstate New York Super Lawyers, Rising Stars 2013-2015

Professional Affiliations

Defense Research Institute

Admitted to Practice

New York

U.S. District Court for the Northern District of New York

U.S. District Court for the Southern District of New York

U.S. Court of Appeals for the Second Circuit

Education

Syracuse University College of Law, J.D., magna cum laude, 2004 (Syracuse Law Review;

Justinian Honor Society)

Alfred University, B.A. cum laude, 1992

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Michael Rubin Partner Goldberg Segalla, LLP

Michael Rubin is a partner in the firm’s Buffalo office who focuses his practice on complex

construction litigation, construction defect, and defending owners and contractors in

claims alleging violations of the New York Labor Law. Michael is the Chair of Goldberg

Segalla's OSHA and Worksite Safety Practice Group and devotes a significant portion of his

practice to OSHA, including counseling clients across multiple industries regarding

inspections, responding to citations, and the intricacies of the OSHA recording and

reporting requirements. He has on-the-ground experience conducting accident

investigations and represents employers at all stages of OSHA enforcement proceedings,

including negotiating for the withdrawal and reclassification of violations at informal

conferences and formally contesting citations. He is a member of the firm’s Business and

Commercial and Construction Practice Groups. He possesses an AV rating from Martindale-

Hubbell.

Michael, a certified Construction Health and Safety Technician (CHST), is a frequent

lecturer on best practices for minimizing OSHA liability, the New York Labor Law (Scaffold

Law), and strategies for effective risk management and risk transfer. He has completed the

Department of Labor’s OSHA-30 construction training and general industry training and

has authored numerous articles/blog posts on OSHA, including as co-editor of Goldberg

Segalla’s OSHA: Legal Developments and Defense Strategies blog. He also has experience in

employment law, class action litigation, and defending clients through trial in general

liability actions, including wrongful death, premises liability, products liability, and

environmental claims.|

In 2014, Michael was the recipient of a “Trial Gladiator Award” for his work on a case for a

major international insurer. It is the highest award the insurer presents to its defense

attorneys.

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Joseph M. Schwed Vice President, Construction Safety Related Companies

Joseph (Joe) M. Schwed is Vice President, Construction Safety at Related. He is part of a

team overseeing construction safety at the Hudson Yards project in mid-town Manhattan,

NY. When completed this will be a 28-acre site with over 17 million square feet of

commercial and residential space. An adjunct professor at Columbia University and

Stevens Institute of Technology he teaches Construction Safety Management within the

Masters of Science Programs in the evening.

Joe has over 20 years of experience and was previously the Port Authority of NY & NJ

World Trade Center Site Safety Director responsible for ensuring risk management

activities are coordinated among Port Authority, Silverstein Properties and contractor

safety teams involved in the Lower Manhattan World Trade Center Redevelopment. The

concern for the safety of men and women working on mega-projects helped Joe to focus his

efforts to develop and implement safety and health management systems, written

operating policies and procedures for programs such as incident investigation,

lockout/tagout, confined space entry, US-OSHA recordkeeping and numerous related areas.

Prior to that he was the Corporate Manager of Global HSE Operations for Honeywell

International, Morristown, NJ. During his time there, Joe lead comprehensive safety audits

of construction sites, chemical plants, and manufacturing facilities in the USA, Australia,

Asia and Europe.

He holds a BS in mechanical engineering, an MS in occupational safety and health

engineering and an MS in environmental science from the New Jersey Institute of

Technology. He is a Board Certified Safety Professional (CSP), a NYC Licensed Site Safety

Manager, a Facilities Management Administrator (FMA), a Real Property Administrator

(RPA) and an authorized trainer for the OSHA 10-hour and 30-hour courses in the

Construction Safety and Health field.

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Robert Seigal Member Carroll, McNulty & Kull LLC

Robert, a Member with Carroll McNulty & Kull LLC, has extensive experience in the area of

insurance defense litigation with an emphasis in labor law and the interpretation of

contractual and Insurance Coverage issues.

Rob has practiced litigation since admission, eleven years ago, in the areas of negligence

and insurance, including New York Labor Law, premises liability, professional liability,

products liability, and motor vehicle law. He has represented clients at trial and the

appellate level.

Rob received his undergraduate degree from Binghamton University and his Juris

Doctorate from Benjamin N. Cardozo School of Law. He is admitted to practice in New

Jersey and New York, as well as the Eastern and Southern Districts of New York.

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Robert J. Smith Partner Costello, Cooney & Fearon, PLLC

Mr. Smith joined Costello, Cooney & Fearon, PLLC in 1983 and has been a partner with the

firm since 1988. Prior to joining the firm, he was a full time professor of law at South Texas

College of Law in Houston, Texas, where he is also licensed to practice law. He has

successfully tried over 50 cases to jury verdict in both state and federal courts, involving

multiple catastrophic injury and wrongful death claims. In the commercial context, he has

successfully tried multi-million dollar claims ranging from construction delay claims to

tenant tax allocation disputes, and is increasingly called upon to represent clients or act as

an arbitrator or mediator in arbitration or mediation proceedings. He has increasingly

been called upon to represent parties in matters surrounding the management, ownership

and control of closely-help business entities and he has developed an expertise in the

negotiation of leases, financing transaction and municipal agreements for several New York

based real estate developers. In January 2008, he was elected the Chief Executive Officer of

the firm and continues in that position today.

Mr. Smith has lectured and written extensively on various issues involving civil trial law.

His numerous lectures have included presentations before the American Bar Association's

annual convention, the International Association of Defense Counsel’s annual meeting and

across New York State for various organizations including the New York State Bar

Association. He has been retained by the New York State Office of Court Administration to

teach trial evidence to newly elected local Judges and serves on the Advisory Committee on

Civil Practice by appointment of the Chief Judge of the Court of Appeals.

In September 2002, he was inducted as a Fellow into the American College of Trial

Lawyers, and in 2004 he was admitted to the American Board of Trial Advocates. In 2005,

he was selected to be a member in the International Association of Defense Counsel. From

2006 to 2016, Mr. Smith was voted by his peers for inclusion in “Best Lawyers in America”

and “Super Lawyers” in the area of products liability, and was more recently selected as

“Lawyer of the Year” in the areas of professional liability defense and Product Liability

defense.

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Connie L. Standhart MS, CDMS, CRC President & Vocational Consultant Peak Solutions Vocational Services, LLC

Connie has been actively involved in vocational rehabilitation and job placement for over a

quarter of a century. She has worked with injured workers in various capacities:

vocational evaluation, rehabilitation, job placement, and ergonomic assessments. In 1997,

Connie began her own company, Peak Solutions Vocational Services, serving injured

workers, employers, insurance carriers and legal representatives, both in defense and

plaintiff. She currently serves as vocational expert for the Social Security Administration

and also in other venues. Connie prides herself on her integrity and objectivity, which has

earned her many long-term assignments as a trusted in-house vocational consultant to

regional, national and international carriers. Connie earned both her Bachelor’s Degree in

Psychology and her Master’s Degree in Human Services Counseling from SUNY Oswego.

She has maintained the Certified Rehabilitation Counselor (CRC) and the Certified

Disability Management Specialist (CDMS) professional designations since 1997. She has

served as a Regional Representative for NY IARP for the past three years and has been

elected President, to begin her term in 2018. In addition to her IARP membership, Connie is

also an Associate with the American Board of Vocational Experts.

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Theodore W. Ucinski III Partner Goldberg Segalla, LLP

Theodore W. Ucinski III is an experienced litigator in the state and federal courts of New

York and New Jersey, and handles cases up to and including trial. Ted’s primary areas of

practice include New York labor law, as well as multi-party construction defect litigation

and high-exposure personal injury actions. Over the last 20 years, Ted has faced some of

New York’s most skilled plaintiff labor law attorneys and successfully defended owners and

contractors throughout New York against catastrophic claims.

Ted’s clients include the Port Authority of New York and New Jersey as well as major

developers and owners with holdings throughout the five boroughs. As a result, Ted has

come up against every conceivable claim brought under New York’s labor law and has dealt

with multiple multimillion-dollar claims.

Due to Ted’s breath of knowledge and OSHA training, he is part of the firm’s OSHA rapid

response team. Ted’s qualifications allow him access to construction and worksite accident

scenes to conduct investigations within hours of an alleged injury. When litigation

commences, Ted is able to rely on an in-depth understanding of the incident to create an

effective defense strategy.

Ted is also a prolific writer and lecturer. He has frequently written articles for the New

York Law Journal and spoken at the New York State Bar Association’s lecture series.

Honors

New York Metro Super Lawyers 2013-2015 (Thomson Reuters)

View peer-review methodologies at superlawyers.com. No aspect of this advertisement has

been approved by the Supreme Court of New Jersey.

Professional Affiliations and Training

Department of Labor OSHA-10 and OSHA-30 Construction Training

Admitted to Practice

New Jersey

U.S. District Court for the District of New Jersey

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New York

U.S. District Courts for the Southern and Eastern Districts of New York

Community Involvement

Eastern Property Owners Association for the Incorporated Village of Garden City: Director,

Board of Directors

Fordham Alumni, Long Island Chapter

Garden City Eastern Property Owners Association

Long Island Corvette Owners Association

Education

Pace University School of Law, J.D., 1998 (Pace International Law Review)

Fordham University, dual B.A., cum laude, 1995 (Dean's List; History Honor Society)

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Kevin R. Van Duser Partner Sugarman Law Firm LLP

Kevin R. Van Duser has been a partner at the Sugarman Law Firm since 2005. As a litigation

and trial lawyer, he has significant courtroom experience and has successfully tried cases

throughout New York State. His practice has focused on the defense of professional

malpractice claims, commercial and contract matters, toxic tort claims, products liability

lawsuits, labor law claims, premises liability actions, and personal injury lawsuits including

catastrophic injury cases. Mr. Van Duser serves as the Chair of the Insurance Coverage

Department at the Sugarman Law Firm, where he handles insurance coverage disputes

involving high value claims on behalf of insurers, individuals, estates, and businesses.

Recognitions and Honors

Selected, Top 100 Lawyers in America magazine

Rated, AV Preeminent, Martindale-Hubbell in Litigation (highest rating from peers)

Rated, AV Preeminent, Martindale-Hubbell in Insurance (highest rating from peers)

Recipient, AV Preeminent Judicial Award, Martindale-Hubbell (highest rating from judges)

Selected, Premier 100 Trial Attorney, American Academy of Trial Attorneys

Recipient, America’s Most Honored Professionals Award

Professional and Community Affiliations

New York State Bar Association

Onondaga County Bar Association

American Association for Justice f/k/a Association of Trial Lawyers of America

Defense Research Institute (DRI)

American Council of Engineering Companies of New York (ACEC New York)

Board of Trustees for the Make-a-Wish Foundation of Central New York (2006-2011)

CNY Make-A-Wish Board’s Executive Committee and Governance Committee

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Recent Speaking Engagements

New York State Bar Association CLE: Insurance Coverage Update 2015 (05/08/15)

New York State Bar Association CLE: Law School for Insurance Professionals (9/30/14)

New York State Bar Association CLE, Local Chairman: Advanced Insurance Coverage

Emerging Issues, Developments, and Strategy (5/2/14)

New York State Bar Association CLE: Law School for Insurance Professionals (10/10/13)

Admissions

All New York State Courts

United States District Court, Northern District of New York

United States District Court, Western District of New York

United States Court of Appeals, Second Circuit

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Richard P. Weisbeck, Jr. Partner Lipsitz Green Scime Cambria LLP

Richard P. Weisbeck, Jr. is a senior partner of the firm. For over 25 years, he has focused his

practice in the area of personal injury law, including construction accidents, workplace

injuries, automobile accidents, defective products/products liability, slip and fall accidents,

and amputations.

Numerous local attorneys refer their complex cases to Mr. Weisbeck. His experience in

resolving difficult matters as well as his nationally recognized litigation and trial skills are

essential for successfully handling serious cases. Over the course of his career, Mr.

Weisbeck has ensured that hundreds of people recover substantial damages for their

injuries.

Bar & Court Admissions

State of New York, 1983

United States Supreme Court, 1986

United States Circuit Court of Appeals, Second Circuit, 1984

United States District Court, Western District of New York, 1984

Education

State University of New York at Buffalo, J.D., 1982

State University of New York at Buffalo, B.A., 1978

Professional Activities

Member, American Trial Lawyers Association

Member, New York State Trial Lawyers Association

Member, Western New York Trial Lawyers Association

Member, New York State Bar Association

Member, Bar Association of Erie County

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Matthew J. Zullo Partner Rappaport, Glass, Levine & Zullo, LLP

RGLZ partner Matthew J. Zullo graduated from Denison University in 1983 with a degree in

Economics, and from St. John's University School of Law in 1986. He is an accomplished

trial attorney; having brought hundreds of cases to trial over the course of his career, with

almost 200 jury verdicts in those cases in both state and federal court. Additionally, he has

an extensive portfolio of six and seven figure settlements in all manner of personal injury

practice areas.

Mr. Zullo is admitted to the New York State Bar and the Connecticut State Bar, and belongs

to the Suffolk County and New York State Bar Associations, the American Association for

Justice, the St. John's University School of Law Alumni Association, and the New York State

Trial Lawyers Association. He has lectured for the New York State Trial Lawyers in the area

of trial preparation. His practice has focused exclusively in personal injury litigation and

medical malpractice for over 30 years.

Matthew and his wife Andrea live in East Setauket with their twin daughters Emilie and

Natalie. They are actively involved in multiple charities and in their community. Matthew is

an Assistant Coach for the Three Village Soccer Club, the largest youth organization in the

Three Village/Stony Brook community.

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