In Matter of Fermin-Perea v. Swarts, a New York Appellate Division, First Department panel held that it was error to revoke a driver’s license on the basis of a refusal to submit to a chemical test, where a field sobriety test conducted 25 minutes after the stop indicated, contrary to the information contained in the…
Read More Videotaped Field Sobriety Test Trumps Officer’s Observations; License ReinstatedIn a decision issued on March 29, 2012, the Appellate Division, First Department, held in Ortega v. City of New York that, in a Labor Law § 240(1) case – here, arising from plaintiff’s use of a “tremie rack” (example pictured) – “a plaintiff is not required to demonstrate that the injury was foreseeable, except…
Read More Labor Law § 240(1) Does Not Require Plaintiff To Show That His Injury Was Foreseeable Except In Case Involving the Collapse of a Permanent StructureIn Carpinone v. City of New York, No. 11 Civ. 2074 (PAE), the SDNY recently clarified the pleading requirements for a claim under Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). SDNY Judge Engelmayer dismissed plaintiff’s complaint on the pleadings under Federal Rule of Civil Procedure 12(c). Plaintiff alleged that he was…
Read More SDNY Reiterates Section 1983 / Monell Pleading RequirementsOn January 23, 2012, the U.S. Supreme Court held (in U.S. v. Jones; decision below) that the government’s “installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” within the meaning of the Fourth Amendment. Central to the Court’s analysis and conclusion…
Read More Supreme Court Holds That Affixing GPS Tracking Device to a Car Constitutes a Fourth Amendment “Search”In a 42-page opinion issued last week (copy below), Southern District Judge Colleen McMahon held that the federal Occupational Safety and Health Act’s (“OSHA”) crane regulations did not preempt the New York City Building Code’s crane regulations (codified at Title 28 of the New York City Administrative Code). According to the Court, OSHA “is a…
Read More Federal Court rules that New York City statutes and regulations governing construction cranes are not preempted by OSHA regulationsSalazar v. Novalex Contracting Corp., et al., 2011 NY Slip Op 08446 (Nov. 21, 2011) illustrates the “common sense approach” that must be employed when analyzing Labor Law 240(1) and 241(6) claims. P and his fellow workmen were directed to pour and spread concrete over the floor of a basement which contained trenches into which…
Read More NY Court of Appeals Holds No Labor Law 240(1) or 241(6) Liability Where Protective Measure Would Have Been Inconsistent With WorkIn Wilinski v. 334 East 92nd Housing Development Fund Corp., 2011 NY Slip Op 07477 (Oct. 25, 2011), the New York Court of Appeals vitiated the so-called “same level” rule that had embedded itself in New York Labor Law § 240(1) jurisprudence, and construed a Labor Law § 241(6)-triggering regulation. P, who was engaged in the demolition of…
Read More Court of Appeals Repudiates Labor Law § 240(1) “Same Level” Precedent and Construes a Labor Law § 241(6)-Triggering RegulationNY Supreme Court Judge Michael Stallman today issued an order denying a petition for a temporary restraining order prohibiting the city from, inter alia, evicting the OWS protesters from Zuccotti Park and enforcing the park’s owners’ rules. The court found that the rules – which prohibited, inter alia, “camping and/or the erection of tents or other structures” and…
Read More Judge denies Occupy Wall Street application for TRO to prevent NYC from evicting protesters from Zuccotti ParkOn October 29, 2011, a Bronx building collapsed, resulting in the death of 51 year-old construction worker Muhamed Kebbeh. It is believed that the two-story commercial building’s collapse was due to the failure of about a dozen pillars in the basement. The workers there were apparently engaged in an “active demolition” of the building when…
Read More Construction Worker Killed in Building CollapseOn August 30, 2011, the National Labor Relations Board issued a final rule, entitled “Notification of Employee Rights Under the National Labor Relations Act“. In sum, the final rule (which takes effect on November 14, 2011) requires employers to notify their employees of the employees’ rights under the National Labor Relations Act by posting a notice, establishes the…
Read More NLRB Issues Final Rule Regarding Employee Rights Under the NLRA