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The Court of Appeals Tuesday narrowed the scope of Labor Law �240 by reversing a lower court and holding that a worker who was provided adequate safety devices and trained on their use is not entitled to strict liability protections if he decides to forgo proper protection and is injured as a result. Tuesday’s opinion in Cahill v. The Triborough Bridge and Tunnel Authority, 174, topples a trial court summary judgment ruling and a 3-2 affirmance by the Appellate Division, 1st Department. The ruling, one of a long series of cases attempting to interpret and apply the strict liability provisions of �240, is a victory for Labor Law defendants in its extension of the “recalcitrant worker” defense. “We decide in this case that, where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover [under �240] for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred,” Judge Robert S. Smith wrote for the unanimous court. Also, in its final hand down of the year, the court: � Unanimously held in a case of importance to New York City that a provision in the City Charter requires nonresident employees to make payments in lieu of taxes, no matter how and where the income was generated. Fleming v. Giuliani, 175, stemmed from a challenge by 13 physicians who live outside the city and work part-time as surgeons for the New York Police Department. � Found that when a substantial portion of a court reporter’s notes are lost and never transcribed, the defendant is entitled to a reconstruction hearing — but only if he or she “acted with reasonable diligence to mitigate the harm resulting from the mishap.” People v. Parris, 178/ People v. Hofler, 179, and People v. Marquez, 168 The Labor Law case involved a worker, Timothy Cahill, who was involved in a construction project at the Triborough Bridge in July 1999. Court records show that Cahill had been trained in the use of a safety line and admonished on a prior occasion when he neglected to use the line while working at elevation. Regardless, Cahill was not using the safety line the day he fell. Cahill sued the Triborough Bridge and Tunnel Authority and sought to invoke the strict liability provisions of �240. Those provisions were drafted to protect workers from elevation-related risks and generally hold owners and contractors strictly liable for accidents. However, when the plaintiff’s own conduct is the sole proximate cause of the accident, �240 is not implicated, the Court of Appeals held last year in Blake v. Neighborhood Housing Services of New York City Inc., 1 NY3d 280. The so-called “recalcitrant worker” defense is available when a laborer disregards instructions to use a safety device. In Cahill, the lower courts said the defense was not applicable in because the plaintiff had not received the instruction immediately prior to his accident. Rather, he was instructed about three weeks earlier. Smith said “the word ‘recalcitrant’ fits plaintiff in this case well.” “Here, a jury could have found that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured,” Smith said. NONRESIDENT TAXES The New York City case, Fleming, revolves around City Charter �1127, which requires city employees to make “condition of employment payments” in lieu of city income taxes. The case involved 13 doctors who live outside the city but hold part-time city jobs. Most of them also have private medical practices and apparently all of them derive some income from sources other than the city. The doctors argued that they should not be subjected to the equivalent of a New York City income tax on the money they earn from their private practices. But the Court of Appeals disagreed in unanimously affirming the Appellate Division, 1st Department. In an opinion by Judge Victoria A. Graffeo, the court said there is no constitutional bar to the city policy of taxing nonresident employees. However, the court left for another day the question of whether �1127 applies to income attributed to the spouse of a nonresident employee. Assistant Corporation Counsel Jane L. Gordon argued for the city. Richard A. Dienst of Manhattan appeared for the physicians. In the three criminal cases, a portion of the court minutes were lost, and the court crafted a new rule for dealing with that problem. The 1st Department had held in Parris and Hofler that the defendant has no remedy unless he or she can show that an appealable issue came up during the portion of a court proceeding for which the record was lost. “We find this rule too harsh � as it applies to defendants who � are appealing a conviction after trial,” Smith wrote. “[W]here a significant part of the minutes has been lost, a defendant appealing after trial is, through no fault of his own, subject to a more than trivial disadvantage,” he said. “It should not burden the trial courts excessively to provide defendants, in those relatively few cases, the opportunity to remedy that disadvantage, to the extent that a reconstruction hearing can do so.” However, the court cautioned that defendants who do not move promptly to mitigate the damage of misplaced notes are not entitled to that relief. “A defendant who does not proceed diligently is open to the suspicion that he thinks the likelihood of really finding significant appellate issues remote — and would prefer failure in reconstructing the proceedings to success, hoping to claim prejudice when reconstruction proves impossible,” the court said. In Parris and Hofler, which were decided in a single opinion, the court declined to order reconstruction hearings. It said Peter Parris, after learning 3 and 1/2 years ago that some minutes were missing, “has not behaved in the least like someone eager to obtain the best record possible of what happened at untranscribed proceedings.” For instance, the court said, when the prosecution made a motion that may have expedited a reconstruction hearing, Parris successfully opposed it. Parris is serving a 30-year sentence for burglary and other charges. Donnell Hofler pleaded guilty to an attempted robbery and related counts. Although the minutes of his plea allocution were lost, the court said, he is not entitled to a reconstruction hearing. It said the guilty plea by itself virtually eliminates the need for such a hearing since the defendant was convicted with his own consent. The other case, People v. Marquez, was decided in memorandum. In that matter, the court remitted the case to the 1st Department for reconsideration in light of Tuesday’s holding in Parris. Manhattan Assistant District Attorney Eleanor J. Ostrow argued for the prosecution in Parris/ Hofler. Christopher M. Ferguson of Kostelanetz & Fink in Manhattan appeared for the defendant in Parris. Sara Gurwitch of the Office of the Appellate Defender in Manhattan argued for Mr. Hofler. Marquez was decided on submissions.

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