Personal Injury - Out-of-Possession Landlords May Still Be Responsible For Construction Accidents On Their Property

A hat-tip to Matt Lerner's Civil Law Blog, the Court of Appeals clarified a mildly unsettled Labor Law 240(1) issue recently, finding in Sanatass v Consolidated Inv. Co., Inc., 10 N.Y.3d 333 (2008) that when the statute -- which requires that owners and contractors give workers "proper protection" against elevation related risks (both falling from scaffolds and ladders, or being struck by falling objects) -- says "owners," that includes out-of-possession landlords. The landlord can of course contract with the tenant for complete indemnification, i.e. that the tenant has to pay any judgment against the landlord, but the owner themselves is at least nominally on the hook.

You can learn more about Labor Law 240(1) here.  If you are looking for representation, feel free to contact me at Scott.Kreppein@gmail.com.  

Around the Blogosphere: July 2008

* The Empirical Legal Studies Blog has an interesting piece on the legal job market for new attorneys. It is old news that most law graduates do not make $160,000. What leaves many graduates still perplexed, however, is how much less their starting salaries actually are and where the "middle of the road" jobs are hiding. Based on NALP statistics, the ELS blog explains that first year law salaries have something of an inverse bell curve -- or two peaks with a trough in the middle -- called bimodal distribution. As the ELS Blog explains, until approximately the year 2000, law salaries followed an ordinary bell-curve, but then top firms started following "the Cravath system," i.e. hiring only top law graduates or laterals from comparable firms and paying them exorbitant salaries. The result was a two-tiered system for recent law graduates: one with a dominant salary around $40,000 (in 2006); and the other with a dominant salary of $135,000 (in 2006); with relatively few jobs available in the intervening ranges.

* The Snark has an amusing post on office decoration. Unfortunately, I think my office may fall into the "as soon as I finish my novel I'm out of here" category. I still haven't hung my law degree or bar admissions (I'm just too lazy to get them framed). I do, however, have several plaques, a plant, a nice desk set, a stuffed dragon, and a little talking Yoda figure. And, of course, a lot of redwells. Hopefully, rather than "I'm out of here...," my office says "I'm too busy to frame stuff." Of course, who knows what'll happen when that novel is finished.

* According to the WSJ Law Blog, Texas wants to execute five mexican nationals who were not offered their Geneva Convention Rights (Foreign Nationals must be instructed that they can contact their consulate). At least one of the nationals had lived in the US illegally since preschool. The World Court found that the executions would violate the Geneva Convention, and ordered the US to stop them. President Bush issued a memo telling the Texas State Court to impliment the decision, but the Texas courts found that the nationals had waived their rights by not raising them in the ordinary course of the appeals process. The Supreme Court upheld the ruling, President Bush went to the World Court and said, essentially, "I tried." Mexico is arguing that the US Federal Government should do more to stop the execution.

Under Labor Law 240(1) and 241(6), The One- Or Two-Family Dwelling Exception Depends On the Site and Purpose Of The Work

Where a construction accident occurs during work on an owner-occupied one- or two-family dwelling, the property owner is exempt from liability under New York's Labor Law 240(1)(related to gravity related hazards) and Labor Law 241(6)(related to tools, equipment, and violations of he State Industrial Code).

In Zheng v. Cohen, 2008 NY Slip Op 5910 (2d Dept., June 24, 2008), a homeowner attempted to argue that they were entitled to the one- or two-family dwelling exception to New York Labor Law 240(1) -- which places an affirmative obligation on contractors and building owners to ensure that workers who are exposed to gravity-related hazards have proper protective equipment (such as ladders, hoists, scaffolding, etc.) but exempts owners of one- or two-family dwellings -- because they used the home as a one-family residence. The building, however, was legally a three-family dwelling, and the construction project during which the plaintiff was injured did not change the legal occupancy of the dwelling.

Defendants argument that the one- or two-family dwelling exception applied to three-family dwellings that are only occupied by a single family was based on Stejskal v Simons, 3 NY3d 628 (2004) and Khela v Neiger, 85 NY2d 333, 648 N.E.2d 1329 (1995) which had held that the purpose of a construction project is the determinitive factor in deciding whether a building is a one- or two-family dwelling (i.e., a three-family home being converted to a one-family home is entitled to the exemption). Stejskal had never before been interpreted, and it was an open question whether an owner's averments as to the actual use of the premises were sufficient to implicate the one- or two-family dwelling exception.

The lower court denied the defendants' motion for summary judgment, and the Second Department affirmed, finding that the homeowners had failed to show that the sole purpose of the construction was the conversion of the building to a one- or two-family dwelling, and that the homeowners statements were insufficient to set forth a prima-facie showing that the building was not used as a three-family dwelling at any point after the construction.

  

You can learn more about Labor Law 240(1) here.  If you are looking for representation, feel free to contact me at Scott.Kreppein@gmail.com.