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I. RECENT DEVELOPMENTS IN CPLR 4545 - THE COLLATERAL SOURCE RULE. New Legislative Amendment On December 9, 2002, a new subdivision was added to New York CPLR 4545 also known as the collateral source rule. The rule has always required that whenever an injured plaintiff received compensation from an outside source (usually insurance) those proceeds would be offset against future losses and would apply to personal injury, property damage and wrongful death claims. The legislative intent behind this statute was basically to eliminate windfalls and double recoveries for the same loss. The new subdivision - CPLR 4545(d), which took effect immediately, states "voluntary charitable contributions received by an injured party shall not be considered to be a collateral source of payment that is admissible in evidence to reduce the amount of any award, judgment or settlement." Now, if an injured plaintiff receives compensation from a charitable source, the defendant cannot try to show that this contribution was intended and, in some cases, actually went towards covering the plaintiff's losses. This new law will undoubtedly bring more scrutiny and raise the question "what is considered a voluntary charitable contribution?" II. RECENT DEVELOPMENTS IN THE FOURTH DEPARTMENT WITH LABOR LAW 240. In the case of Ciesielski v. Buffalo Industrial Park, Inc., 750 N.Y.2d 246, 2002 Slip Op. 08270 (4th Dept. 2002), the plaintiff commenced an action seeking damages for injuries as a result of a fall from a ladder. More specifically, the plaintiff in this case was injured while taking measurements for a proposed installation of a racking system in a warehouse leased by his employer from defendant. Evidence showed that the racking system was installed several months later by a company other than the plaintiff's employer. As a result, the Appellate Division held that the plaintiff was not present and, thus, not injured "during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Consequently, Labor Law 240(1) did not apply. The plaintiff tried to contend that Labor Law 240(1) applied because the measurements which were taken by him were "an essential part of the construction process." The Fourth Department though disagreed. Allowing the taking of measurements to be covered under Labor Law 240(1) would "improperly enlarge the reach of the statute beyond its clear terms." The defendant's summary judgment motion dismissing Labor Law 241 cause of action was granted and the plaintiff's complaint was dismissed. Another Fourth Department case dealing with Labor Law 240(1) is Boncore v. Temple Beth Zion, 751 NYS 2d 337, 2002 WL 31531973 (4th Dept. 2002). In Boncore, an electrician was injured in a fall when the ladder on which he was standing slid. The main issue the court faced in this case was whether the plaintiff was "employed" within the meaning of Labor Law 2(7). The definition of "employed" under the Labor Law is "permitted or suffered to work". The defendants argued that the plaintiff, who was hired by a subcontractor, was not an "employee" for purposes of the scaffold law. In opposition to the plaintiff's motion for summary judgment, the defendant submitted an affidavit of plaintiff's supervisor who stated that he had specifically directed plaintiff not to cover a certain hole in the wall. As a result of the plaintiff not following his duties, the defendants contended that he fell outside the umbrella of Labor Law 240. The court disagreed. In its opinion, the court stated that to be considered within the special class of persons entitled to protection of Labor Law 240(1), a plaintiff "must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it an owner, contractor or their agent." The court stated regardless of his voluntarily performed task, the plaintiff was still an employee working for his employer rather than just a mere volunteer and, thus, held that 240 covered the plaintiff's fall. The court went onto explain that it is not necessary for an employee to be working on his exact assigned duties in order to fall under the protection of 240. |