New York Court of Appeals Takes Narrow View of Labor Law Provisions in Recent Cases
July 03, 2022 —
Lisa M. Rolle & Matthew Feinberg - Traub LiebermanSince the end of March, the New York State Court of Appeals has issued decisions in favor of the defense concerning New York Labor Law §240 and §241. These pro-defendant decisions take a narrow view of the scope of the Labor Law provisions. However, while it remains to be seen how the Court’s below will apply the Court of Appeal’s reasoning, these recent decisions are beneficial for the defense bar going forward.
In Toussaint v Port Auth. of N.Y. & N.J March 22, 2022 N.Y. LEXIS 391 | 2022 NY Slip Op 01955 | 2022 WL 837579, the Court held that 12 NYCRR 23-9.9 (a), does not set forth a concrete specification sufficient to give rise to a non-delegable duty under Labor Law § 241 (6). In Toussaint Plaintiff, who was an employee of Skanska USA Civil Northeast, Inc., brought the lawsuit against the Port Authority asserting claims under Labor Law § 200 (1) and Labor Law § 241 (6) after he was struck by a power buggy while operating a rebar-bending machine at the World Trade Center Transportation Hub construction site owned by the Port Authority of New York and New Jersey. Power buggies are small, self-operated vehicles used to move materials on construction sites. On the day of the accident, a trained and properly designated operator drove the buggy into the area near the plaintiff's workstation. That vehicle operator got off the vehicle, but short time thereafter, another worker—who was not designated or trained to do so—drove the buggy a short while prior to losing control and striking plaintiff. Plaintiff relied upon 12 NYCRR 23-9.9(a) which states that “[no person other than a trained and competent operator designated by the employer shall operate a power buggy.” In rejecting plaintiff’s argument the Court held that the "trained and competent operator" requirement is general, as it lacks a specific requirement or standard of conduct.
Reprinted courtesy of
Lisa M. Rolle, Traub Lieberman and
Matthew Feinberg, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Feinberg may be contacted at mfeinberg@tlsslaw.com
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Update Regarding New York City’s Climate Mobilization Act (CMA) and the Reduction of Carbon Emissions in New York City
July 05, 2021 —
Caroline A. Harcourt, Natalie S. Starkman & Nika Bederman - Gravel2Gavel Construction & Real Estate Law BlogIn a previous post, we described how the New York City Climate Mobilization Act, 2019 (the CMA, or Local Laws 92, 94, 95, 96, 97, and 147 enacted in 2019) was passed with the goal of reducing New York City’s carbon emissions by 40 percent by 2030 and by 80 percent by 2050 (as against a 2005 baseline as provided for in item 3 of Local Law 97). It is the most ambitious building emissions law to be enacted by any city in the world. The CMA impacts “Covered Buildings” (described below) and, besides contemplating the retrofitting of Covered Buildings to achieve energy efficiency and establishing a monitoring program for Covered Buildings, the CMA contemplates compliance by means of the purchase of carbon offset credits or renewable energy. (Note the new NYC Accelerator program, launched in 2012 by the Mayor’s Office of Sustainability, provides guidance regarding energy-efficient upgrades to properties and emission reductions.)
Pursuant to the CMA:
- Beginning in 2024, Covered Buildings will have to meet the first emission targets, which are calculated by multiplying the gross floor area of each Covered Building by the occupancy classification as set forth in Local Law 97; and
- In 2025, owners of Covered Buildings will need to establish compliance by submitting a report establishing such compliance (prepared by a certified design professional) to the newly created Office of Building Energy and Emissions Performance.
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Caroline A. Harcourt, PillsburyMs. Harcourt may be contacted at
caroline.harcourt@pillsburylaw.com
New York's New Gateway: The Overhaul of John F. Kennedy International Airport
September 09, 2024 —
Aileen Cho - Engineering News-RecordOn the cusp of the 70th anniversary of the originally named New York Airport’s opening in Queens, N.Y., a blue-ribbon panel in 2017 released a report to the governor of New York: The facility, once popularly known as Idlewild Airport, needed a comprehensive master plan and a total transformation. In the seven years since, builders at John F. Kennedy International Airport have been anything but idle, and the speed at which that $19-billion transformation of the roads and terminals is occurring could be called wild.
Reprinted courtesy of
Aileen Cho, Engineering News-Record
Ms. Cho may be contacted at choa@enr.com
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Florida District Court Finds That “Unrelated” Design Errors Sufficient to Trigger “Related Claims” Provision in Architects & Engineers Policy
March 02, 2020 —
Jason Taylor - Traub LiebermanMost professional liability polices include some form of a “related claims” provision that generally provides where two or more claims or wrongful acts are causally or logically related, they will be deemed to constitute a single claim. Importantly, these provisions typically provide that those “claims” are then deemed to have been “first made” at the time the first claim or act was committed for purposes of the policy’s claims-made and reporting requirements. Understandably, these provisions provide insurers and insureds with some clarity over the number and timing of claims that could involve multiple errors or omissions, and potentially aggregate all related claims or acts into a single policy period. While reasonable in principle, application of such provisions, especially involving large scale design and construction projects, is not always so easy.
Nova Southeastern University, Inc. v. Continental Cas. Co., 18-cv-61842 (S.D. Fla. Dec. 27, 2019), involved such an insurance coverage dispute with a design project gone wrong. DeRose Design Consultants, Inc. (“DeRose”) was hired as a structural engineer to design “ice tanks” to store and chill water for an energy efficient air conditioning facility constructed on the campus of Nova Southeastern University (“NSU”). An early water test on one of the tanks determined the walls of the ice tank deflected, leaked, and cracked when the tank was filled with water. DeRose later discovered that the problems with the ice tank were caused by a structural design error.
The first errors were discovered in early 2009, and reported under DeRose’s professional liability policy with Evanston. DeRose then created a remedial design to repair the tanks, which involved strengthening repairs. Additional leaking and an early indication of corrosion involving the Remedial Design arose as early as October 25, 2009. Several field investigation reports were prepared in 2011 and 2012 confirming these issues with the Remedial Design. A third report in February 2012, however, identified a new error involving the concrete slab under the ice tanks also designed by DeRose. The third report concluded that the concreate slab was overstressed and could not handle the loads of the ice tanks. The report also concluded, however, that the design defects in the concrete slab were “unrelated” to the original design defect of the ice tank walls or Remedial Design.
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Jason Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Whose Lease Is It Anyway: Physical Occupancy Not Required in Landlord-Tenant Dispute
February 07, 2018 —
Afua Akoto – SDV Case Alert In September 2017, a Texas Federal district judge ruled that that Personal and Advertising Injury coverage in a CGL policy did not require physical occupancy in a landlord-tenant dispute.
In the underlying lawsuit, restaurant owner Ziggy Gruber alleged that John Dunn, the landlord of a Houston shopping center, wrongfully interfered with his right of occupancy at the shopping center by failing to complete the negotiation of a lease and preventing his occupancy of the space. Gruber further alleged that he had acquired a direct interest in the premises and became a rightful tenant but as a result of Dunn’s interference, he was never able to open his restaurant.
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Afua Akoto, Saxe Doernberger & Vita, P.C. Ms. Akoto may be contacted at
asa@sdvlaw.com
The EEOC Targets Construction Industry For Heightened Enforcement
May 15, 2023 —
Meghan Douris & Andrew Scroggins - The Construction SeytSeyfarth Synopsis: On January 10, 2023, the Equal Employment Opportunity Commission (EEOC) released for public comment its
draft 2023-2027 Strategic Enforcement Plan (“SEP”)—a document that will guide the Commission’s enforcement priorities for the next five years. The EEOC’s prior Strategic Plan described how it would pursue its enforcement goals. (See our earlier blog on the Strategic Plan
here). The Strategic Enforcement Plan, on the other hand, describes what the EEOC’s enforcement priorities will be. Earlier actions by the EEOC suggested that it might be turning its attention to the construction industry. In the SEP, the EEOC makes its intentions explicit, putting the construction industry—and especially those receiving federal funding—squarely in its sights.
History of the SEP
The EEOC’s
first SEP covered Fiscal Years 2013-2016 (the EEOC’s fiscal years begin on October 1) and identified six broad subject-matter priorities. The EEOC’s
second SEP set the course for enforcement priorities for FY2017-2022. The
latest proposed SEP, published in the Federal Register for comment for the first time, provides notable additional details that put the employer community on notice of the Commission’s intentions for FY2023-2027.[
1]
Reprinted courtesy of
Meghan Douris, Seyfarth and
Andrew Scroggins, Seyfarth
Ms. Douris may be contacted at mdouris@seyfarth.com
Mr. Scroggins may be contacted ascroggins@seyfarth.com
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Landmark San Diego Hotel Settles Defects Suit for $6.4 Million
March 04, 2011 —
Beverley BevenFlorezCDJ STAFFAfter five years of legal battles, the condo owners of the El Cortez Hotel building in downtown San Diego settled for $6.4 million, as reported by The San Diego Union-Tribune on March 28, 2011. The Homeowners Association will net just over $3 million from the settlement.
The litigation may have had an adverse effect on the value of the condos within the El Cortez Hotel building. According to an article by Kelly Bennett of Voice of San Diego, “Many condos in the building originally sold for more than $600,000. Currently, the three units on the market are asking for just more than $200,000, the U-T said.”
Andrew Berman, the owners’ attorney, told The San Diego Union-Tribune that the five years of litigation included six lawsuits, 200 depositions, and multiple construction tests.
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Florida Self-Insured Retention Satisfaction and Made Whole Doctrine
March 11, 2014 —
Scott Patterson – CD CoverageIntervest Construction of Jax, Inc. v. General Fidelity Insurance Co., * So.2d * (Fla. 2014), the issue was whether the insured general contractor could satisfy the SIR in its CGL policy with funds it received from the insurer of a subcontractor in settlement of the general contractor’s contractual indemnity claim against that subcontractor. ICI was the general contractor for a residence sold to Ferrin. Several years after completion, Ferrin suffered injuries in a fall while using attic stairs installed by ICI’s subcontractor Custom Cutting. Ferrin sued ICI but not Custom Cutting. ICI was insured by General Fidelity with a $1M SIR. ICI sought contractual indemnity from Custom Cutting. The Ferrin suit was ultimately settled for $1.6M. Custom Cutting’s CGL insurer paid $1M to ICI to resolve ICI’s contractual indemnity claim. Using the $1M paid on behalf of Custom Cutting and $300K of its own funds, ICI paid $1.3M to Ferrin. General Fidelity paid the remaining $300K with an agreement with ICI that each was entitled to seek reimbursement of $300K from the other. ICI filed suit in Florida state court. General Fidelity removed to federal court. The Eleventh Circuit certified the relevant questions to the Supreme Court of Florida.
The Florida Supreme Court first held that the General Fidelity SIR allowed ICI to satisfy the SIR through indemnification payments received from a third party. While the SIR provision stated that it must be satisfied by the insured, it did not include any language proscribing the source of the funds used by the insured to satisfy the SIR. The court distinguished other decisions where the SIR endorsement expressly stated that payments by others, including other insurers, could not satisfy the SIR. The court also relied on the fact that ICI “hedged its retained risk” by paying for its entitlement to contractual indemnification from its subcontractor years prior to purchasing the General Fidelity policy.
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Scott Patterson, CD Coverage
