Can One Appellate Department Be Right and Three Be Wrong? Yes, Says the Court of Appeals When It Comes to Power-Operated Heavy Equipment or Machinery and the Labor Law

An employee who claims to have suffered proximate injuries caused by a previously identified and unremedied structural defect or unsafe condition affecting an item of power-operated heavy equipment or machinery has stated a cause of action under Labor Law 241(6) based on an alleged violation of 12 NYCRR 23-9.2(a), held the Court of Appeals in Misicki v. Caradonna, — N.E.2d —-, 2009 WL 1286012 (N.Y.), 2009 N.Y. Slip Op. 03764 (May 12, 2009). The Appellate Division, Fourth Department, had been the only one of the four Appellate Divisions to rule that a violation of the rule and regulation promulgated by … Read the rest

First Amendment Protects Attorney Who in Good Faith Advises Client Even If The Advice Is Later Determined To Be Incorrect: A Most Eloquent and Impassioned Defense of The Constitutional Right to Advice of Counsel

It may be hard to find a more eloquent and impassioned defense of the constitutional right of an attorney to give, and a client to receive, advice of counsel than in the decision in Vinluan v. Doyle, 60 A.D.3d 237, 873 N.Y.S.2d 72 (Appellate Division, 2nd Department, January 13, 2009). The matter granted a petition for Article 78 review brought on by a group of ten nurses and their attorney to prohibit the Suffolk County district attorney from prosecuting, and Supreme Court justice from presiding over, a criminal case against the nurses, who were indicted for the misdemeanor offenses of … Read the rest

New Law Makes It Harder to Introduce Evidence of Prior Incarceration or Conviction in Negligent Hiring Claims

Under a negligent hiring theory, an employer’s liability arises from its failure to take reasonable care in making hiring decisions, thereby placing the newly hired employee in a position to cause foreseeable harm to others. The negligent hiring theory creates an incentive for employers to avoid hiring previously incarcerated individuals.

To avoid such tort exposure, many employers choose not to hire ex-offenders when they apply for employment even though New York Law provides that to do so under certain circumstances constitutes unlawful discriminatory practice.

The employer’s dilemma poses a serious problem for society.The unemployment rate for ex-offenders in New York … Read the rest

Construction Workers Fatal 42 Story Fall Latest Problem for Bovis Lend Lease

A construction worker who was pouring concrete at Trump SoHo, a condominium hotel in SoHo, fell 42 floors to his death on the afternoon of January 14, 2008, when a wooden mold used to set the concrete collapsed.

Another worker was thrown from the 42nd floor, but was caught in a safety net that extends outward from the 40th floor, fire officials said. He was brought to safety in a construction bucket and hospitalized for injuries that the authorities said were not life threatening. Two other workers were treated for minor injuries.

The cause of the collapse was unclear. Officials … Read the rest

Third Department Applies Most Stringent Standards to Protect Students From Teachers’ Harm

Courts continue to find it important that schools fulfill their non-delegable duty of protecting their students. Recently, the Appellate Division, Third Department, in Matter of Binghamton City School District v. Peacock, Docket No. 502329, held that public policy supports a no-leniency standard for teachers that instill harm on their students. The court clearly delivered this message when it held that a two-year suspension for a teacher who engaged in a grossly inappropriate relationship with a sixteen year old student was too lenient.

The case centers on a teacher where there is evidence that he helped the student purchase … Read the rest

Mystery Surrounds How One Window Washer But Not Other Survived 47 Floor Plunge From Scaffolding Previously Cited for 10 Violations

The scaffolding that broke last Friday (12/7/07), causing a pair of brother window washers to plunge 47 stories (550 feet) on Manhattan’s upper East Side, had been cited for 10 violations in June, including four that were repeat violations, state records show. Inspection records from the New York State Labor Department show that the scaffolding had been inspected twice in the past two years – and 10 violations were issued, but they were not severe enough to warrant a stop-work order.

Why one brother died and the other survived is a mystery. Speculation is that while they tried to ride … Read the rest

Attorney’s Pro Forma Notices at End of E-mails Not Worth the Bytes They’re Stored In (Beware the Employer’s E-mail Server)

It has become commonplace for attorneys and others sending faxes and e-mails to include at the end of such communications standard language stating that the contents thereof are confidential and privileged. Such standard language should provide no comfort, however, for senders and receivers of e-mails that use an employer’s server.

A decision by Hon. Charles E. Ramos of the Supreme Court, New York County, holds that a pro forma notice at the end of an e-mail message did not inure the attorney-client privilege to the e-mail when an employer’s e-mail server is used. The Court was particularly persuaded by the … Read the rest

Instant Messages May Byte Too

An interesting discussion contrasting the technology, data storage characteristics and the discovery process of e-mails with instant messages (IM) appears in an article by attorneys Michael B. de Leeuw and Eric A. Hirsch in the “E-Discovery” special section of the November 5, 2007 New York Law Journal.

IM is quickly becoming the medium of choice for informal communication in the workplace, offering far greater efficiency, speed and immediacy than e-mail.

The article points out that although IM typically are stored locally in individual hard drives rather than in servers, some users of IM have found themselves in trouble because they … Read the rest