Page 8 - Litigation

S8 | MONDAY, NOVEMBER 14, 2016 | Litigation
| NYLJ.COM
Preservation of Issues Is a Prerequisite For Appellate Review
on the deck, resting on his side, with limited headroom, underneath a balcony that pro- jected from the building’s exterior, roughly three or four feet above the pool deck. After working in this position for 20 or 30 minutes, the grinder “kicked back” and struck plaintiff in the face, causing him to lose consciousness momentarily and to sustain deep lacerations to his upper lip, cheek and right nostril.
Plaintiff sued the owner, ultimately assert- ing violations of Labor Law §241(6), which “requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the speci c safety rules and regulations promul- gated by the Commissioner of the Department of Labor.” The duty to comply with the Com- missioner’s rules, set forth in the Industrial Code (12 NYCRR), is non-delegable. In order to support a claim under §241(6), the par- ticular provision relied upon must mandate compliance with concrete speci cation and not merely prescribe general safety standards or reiterate common-law principles. Ross v. Curtis-Palmer Hydro-elec. Co., 81 N.Y.2d 474, 504-05 (1993). Breach of a duty imposed by a rule in the Code is merely some evidence of negligence. See Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 159-60 (1982).
Plaintiff alleged a violation of two of the Commissioner’s rules—12 NYCRR 23-1.12(c) (“Power driven saws”) and 23-9.2(a). The own- er argued that §23-1.12(c) was inapplicable because it covered portable, household cir- cular saws, which the owner’s expert opined were not the same as portable, handheld grinders, and that §23-9.2 was not suf ciently speci c and concrete.
Subpart 23-9 of the Code, entitled “Pow- er-Operated Equipment,” includes §23-9.1 (“Application of This Subpart”), which speci es that, with certain exclusions, “[t] he provisions of [subpart 23-9] shall apply to power-operated heavy equipment or machin- ery used in construction, demolition and exca- vation operations.” Section 23-9.2 (“General Requirements”), which follows the statement of applicability, contains nine sections cover- ing speci c types of power-operated heavy equipment or machinery, including §23-9.2(a) that, in its entirety, states:
(a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Suf cient inspections of ade- quate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.
On the owner’s motion for summary judg- ment dismissing the complaint, the Supreme Court cited three Second Department cases— Phillips v. City of New York, 228 A.D.2d 570, 572 (1996), and Thompson v. Ludovico, 246 A.D.2d 642, 643 (1998), which, in dicta, noted that §23-9.2(a) established general safety standards and thus did not support a Labor Law §241(6) claim, and Anaruma v. Slattery
BY JOSEPH P. SULLIVAN
Preservation of error by objection to the receipt of evidence or the exclusion thereof, or to the failure to raise an issue sought to be argued on appeal, is an integral part of this state’s jurisprudence. The require- ment of issue preservation is based on sound judicial policy, assuring the opposing party the opportunity to respond with admissible evidence and arguments, thereby eliminating consideration of new fact issues or legal theo- ries on appeal. In ordinary circumstances, the failure to register an objection or to raise an issue bars appellate review.
An exception to that rule exists in the case of a party who does not allege new facts but, rather, raises a legal argument “’which appeared upon the face of the record and which could not have been avoided ... if brought to [the opposing party’s] attention at the proper junction.’” Gerdowsky v. Crain’s NY Bus., 188 A.D.2d 93, 97, 593 N.Y.S.2d 514
JOSEPH P. SULLIVAN is of counsel to Holland & Knight’s New York o ce. A former Presiding Justice of the Appellate Division, First Department, in New York City, he concentrates his practice in appellate, media- tion, arbitration and white-collar matters.
(1st Dept. 1993); Chateau D’If v. City of New York, 219 A.D.2d 205, 641 N.Y.S.2d 252 (1st Dept. 1996). “In such circumstances, raising such an issue for the rst time on appeal does not prejudice the opposing party’s legal position in any respect. Since the record on appeal is suf cient for its resolution and the issue is determinative, it should by reviewed.” Id. at 209, citing Matter of Allstate Ins. Co. v. Perez, 157 A.D.2d 521, 523 (1st Dept. 1990).
While acknowledging the general rule that cases should not be resolved on grounds raised for the rst time on appeal, the Court of Appeals, with respect to its review pow- ers, has recognized a similar exception but one phrased differently “for a ‘newly raised point of law’ that is ‘decisive’ in a civil case and ‘could not have been obviated by fac- tual showings or legal countersteps if it had been raised below.’” Misicki v. Caradonna, 12 N.Y.3d 511, 519 (2009), 882 N.Y.S.2d 375; quoting Karger, Powers of the New York Court of Appeals **6 §17:1, at 591-92 (3d ed rev).
While Misicki is notable for its analysis of the application of the exception to the gen- eral rule that issues raised for the rst time on appeal will not be reviewed, it rejected the relevancy of the rule and its exception because the issue sought to be reviewed was raised, not by either of the parties but in a dissent in the case. In such circumstances,
the court held, as an additional reason for its rejection, application of the rule and its exception would offend notions of fair play.
In Misicki, a worker sued the owner of a cooperative residential complex for injuries sustained in an accident while working on a construction project at the complex, the renovation of the buildings’ pool deck. The job required plaintiff and his fellow workers to remove bricks from the base of the build- ings’ exterior wall adjacent to the deck in order to lay bare the underlying concrete. Directed to “cut” a slot 2 inches deep into the line marked on the exposed concrete, about a foot or two above the deck, plaintiff was using a handheld nine-inch electrically- powered angle grinder.
When plaintiff had retrieved the grinder from his employer’s toolbox, he was unable to nd its side handle, described as remov- able and designed to t into the grinder in one of two or three different positions. When plaintiff complained about the missing handle, his foreman instructed him “to go back ... and ... work without [the] handle.” Plaintiff “didn’t feel safe” using the grinder without the handle because he lacked “control over the machine.”
After working with the grinder without the side handle for several hours, plaintiff, to continue with the work, had to stretch out
SHUTTERSTOCK