Catagory:Case Summaries

Mount Vernon City School Dist. v. Nova Cas. Co., 19 N.Y.3d 28 (N.Y. Ct. App. 2012)

On April 3, 2012, the New York Court of Appeals held that a compensated surety cannot rely on a violation of Article 3-A of the Lien law to discharge its obligations under a performance bond.  The Mount Vernon City School District (“Plaintiff”) hired a contractor who obtained a performance bond in Plaintiff’s name from Nova Casualty Company (“Nova”), a compensated surety, securing his obligation under the contract.  After he defaulted and Nova refused to pay additional funds to complete the project, Plaintiff sued Nova for breach of contract.  Nova moved for summary judgment claiming that Plaintiff violated Article 3-A of New York Lien Law when, per the contractor’s request, Plaintiff remitted $214,000 of his fee to the Department of Labor (“DOL”) thereby discharging Nova’s duty to perform.

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Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (N.Y. 2012)

On February 14, 2012 the New York Court of Appeals held that former Administrative Code of the City of New York § 27-1031(b)(1), a municipal ordinance (“the Ordinance”), triggers strict liability for defendants who cause damage to adjoining property through excavation work.

In Yenem Corp., Defendants purchased a lot adjacent to a building located at 287 Broadway and began a construction project requiring an excavation eighteen feet below street level.  As a result, 287 Broadway shifted out of plumb; eventually, the Department of Buildings deemed the building unsafe for occupancy.  The plaintiffs, the owner and a tenant of 287 Broadway, sued for damages resulting from the excavation and moved for summary judgment under the Ordinance, which states that “when an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation shall at all times and at his or her own expense, preserve and protect from injury adjoining structures”.

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People of the State of New York v. Grimditch, 936 N.Y.S.2d 527 (Sup. Ct. Essex Co. 2012).

In a case of first impression, the Court in People v. Grimditch held that a contractor cannot be held liable under New York Executive Law § 382(2) solely for building without a permit.  The Defendant contractor had been constructing a boathouse on Lake Placid when the town building code enforcement officer issued a stop work order for failure to obtain a building permit under the state building code.  When Defendant contractor disobeyed the order by continuing construction, he was indicted by the Essex County District Attorney’s Office for violating Executive Law § 382(2), which provides that failure to follow an “order to remedy any condition found to exist in, on, or about any building” or knowingly violating an order by a local government regarding the “standards for construction, maintenance, or fire protection” will result in fines or imprisonment.  The Court held that the indictment was defective because building without a permit did not amount to a condition existing “in, on, or about” the building and therefore was not a violation of the express language of the statute.  The Court also held that the requirement of a building permit was not a “standard of construction or maintenance.”

Wilinski v. 334 East 92ND Housing Dev. Fund Corp. et. al., 18 N.Y.3d 1, 935 N.Y.S.2d 551 (N.Y. 2011)

The New York Court of Appeals held that New York Labor Law § 240(1) could apply to injuries caused by a falling object whose base stands at the same level as the injured worker.  The Plaintiff was a construction worker who, while in the process of demolishing walls in a vacant building, was injured when two ten-foot poles which rose out of the floor on which he was working fell on him.  The Court clarified its prior holding in Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 35, 657 N.E.2d 1318 (NY 1995), by stating that Labor Law § 240(1), a scaffold law, could be invoked even if the injury was caused by an object on ground level.  In so doing, the Court explained that in order to state a claim under the statute, the plaintiff has to prove both that the injury was caused by the effect of gravity and that use of the protective equipment listed in the statute could have prevented the injury from occurring.  In this case, though the Court determined that the injuries caused by the poles falling were caused by the effect of gravity, summary judgment in favor of the plaintiff worker was precluded because an issue of fact remained as to whether the equipment prescribed by the statute could have prevented the injury from occurring.

In addition, Plaintiff brought a claim under 12 NYCRR 23-6.3(b)(3), a regulation promulgated under New York Labor Law § 241(6), which provides that “walls, chimneys and other parts of any building or other structure shall not be left unguarded in such condition that such parts may fall, collapse or be weakened by wind pressure or vibration.”  The Court found that Defendant could be liable despite the fact that neither wind pressure nor vibration contributed to the poles falling.  The Court reasoned that the wind pressure and vibration clause only attached to the words “be weakened” and not to the clauses “fall” and “collapse.”