December 2003

APPELLATE DIVISION LIMITS DISCOVERY OF NO-FAULT FILES

In Primeau v. Town of Amherst, 303 A.D.2d 1035, 757 N.Y.S.2d 201 (4th Dept. 2003), the Appellate Division held that the defendant is not entitled to the plaintiff=s entire no-fault claim file. Rather, the Court decided that the plaintiff only had to disclose medical and wage records contained in the no-fault file to the defendants.

RECENT SCAFFOLD LAW DECISIONS

In Bennett v. SDS Holdings, _____ A.D.2d _____, 764 N.Y.S.2d 763 (4th Dept. 2003), the Appellate Division, Fourth Department, dismissed the plaintiff=s Labor Law '240(1) cause of action where the plaintiff was hit by a piece of a wall that he was demolishing. The court reasoned that Labor Law '240(1) did not apply because the object that hit the plaintiff was part of a wall which was at the same elevation as the plaintiff.

In Eberhard v. Alexander Cent. Sch. Dist., _____ A.D.2d _____, 765 N.Y.S.2d 289 (4th Dept. 2003), the plaintiff was hit by a brick which was used as a weight holding down a tarp. Although the plaintiff was hit by a falling object, the Fourth Department decided that Labor Law '240(1) did not apply because these facts did not present a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.

In Striegel v. Hillcrest Heights Development Corp., 2003 W L 22387625, 2003 N.Y. Slip. Op. 17548 (Oct. 21, 2003), the Court of Appeals held that a worker tumbling down a slanted roof onto an adjacent eave was covered by Labor Law '240(1).

In Hanzilian v. Bob Evans Farms, Inc., (01-CV-22S, 9/30/03), the United States District Court, Western District, granted the defendant=s motion for summary judgment dismissing the plaintiff=s claims under New York Labor Law '240(1) on the grounds that the plaintiff was performing maintenance work while he was replacing a transformer in a sign. New York Labor Law '240(1) does not cover routine maintenance done outside the context of construction work.

The Court of Appeals has held that a plaintiff=s fall from a ladder while conducting an inspection of alteration work fell within the purview of New York Labor Law '240(1). Prats v. Port Authority of New York and New Jersey, 2003 W L 22387602, 2003 N.Y. Slip. Op. 17547 (Oct. 21, 2003). In reaching this decision, the Court of Appeals concluded that the inspection in this case was part of the alteration work and, therefore, covered by Labor Law '240(1).

John N. Philipps, Jr.