I. COURT OF APPEALS AFFIRMS DISMISSAL OF LABOR LAW 240(1) CLAIM ON GROUNDS THAT WORKER WAS NOT PERFORMING REPAIRS, BUT RATHER CONDUCTING ROUTINE MAINTENANCE.

The Court of Appeals has recently held that a worker engaging in routine maintenance at the time an injury occurred cannot recover under the scaffold law which requires owners to make demolition, construction, and excavation projects reasonably safe for workers. Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 770 N.Y.S.2d 682 (2003).

In Esposito, the plaintiff-worker was injured when he fell from a ladder while attempting to remove a cover from an air-conditioning unit on the 22^nd floor of a commercial building in Manhattan. At the time the fall occurred, the plaintiff was performing a monthly maintenance check of the air conditioning unit and was in the process of fixing the worn belts of the unit when the bottom of his ladder Akicked out@ causing him to fall.

The primary question in this case was whether the plaintiff was engaging in one of the covered activities as set forth in Labor Law 240(1) at the time of his fall. This issue turned on the fact that, although the plaintiff was performing Arepairs@ on the unit, the repairs were needed due to normal wear and tear. Accordingly, the Court of Appeals held that such work constituted routine maintenance rather than the otherwise covered activity of repairing.

II. DOCTRINE OF COLLATERAL ESTOPPEL NOT APPLICABLE TO BIND THE OWNER OF A VEHICLE WHEN A DEFAULT JUDGMENT IS TAKEN SOLELY AGAINST THE DRIVER.

In Chambers v. City of New York, 309 A.D.2d 81, 764 N.Y.S.2d 708 (2d Dept. 2003), the City of New York, as owner, and its employee, as driver, were sued for injuries the plaintiff allegedly sustained in a motor vehicle accident. For reasons not germane to this discussion, the City declined to defend and indemnify its employee-driver and, therefore, did not answer on its employee=s behalf. The plaintiff then obtained a default judgment against the driver and sought summary judgment against the City on the issue of liability.

The plaintiff=s motion was premised on the general rule in New York that default judgments are entitled to collateral estoppel effect. This, coupled with the applicability of Vehicle and Traffic Law 388, led plaintiff to argue that liability, as established by the default judgment, could be imputed to the City.

In affirming the denial of the plaintiff=s motion, the Second Department applied the full and fair opportunity test to determine whether it would be fundamentally fair to deny the City an opportunity to litigate the issue of the driver=s negligence. Upon applying that test, the Second Department ruled that in order for collateral estoppel to apply, the issue must have been previously litigated which, in this case, it was not. Moreover, the Court held that vicarious liability imposed as a result of Vehicle and Traffic Law 388 did not provide the necessary privity between the parties for purposes of collateral estoppel.

Although in Chambers default judgment was obtained against the non-appearing co-defendant, the rationale of the Court could be applicable in all instances where a purportedly vicariously liable party was not provided an opportunity to contest the liability of the underlying tort-feasor. Such a situation could arise from any number of procedural scenarios and underlying circumstances. As evidenced by the Court=s decision in Chambers, the doctrine of collateral estoppel does not in all instances resolve the liability of those vicariously responsible.

James S. Curtis

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