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February 02, 2023 | New York Law Journal

Of Burdens and Hatch Covers

In this edition of his Construction Accident Litigation column, Brian Shoot discusses two unrelated issues. Each figured in rulings rendered in, respectively, November and December of 2022. One issue arises when a plaintiff moves for summary judgment under Labor Law §240. The other issue, which arises far less frequently, is whether a falling hatch cover (or similar object) may qualify as a "falling object" within the scope of Labor Law §240.
16 minute read
January 03, 2023 | New York Law Journal

2nd Department Upholds $1.8M Malpractice Award Against Upstate Attorney in Executor Case, Even Absent Privity

"Although an attorney representing the executor of an estate, generally, is not liable to the beneficiaries of the estate, as the attorney does not represent the estate itself, when fraud, collusion, malicious acts, or other special circumstances exist, an attorney may be liable to ... for harm caused by professional negligence," the Second Department justices wrote.
4 minute read
November 03, 2022 | New York Law Journal

The 'Forbidden Conduct' Defense: Is It a Subset of the 'Sole Proximate Cause' Defense or an Entirely Different Animal?

Are these really "sole proximate cause" defenses or are they an entirely different animal? That threshold question, which may or may not give rise to the same answer for all three variants of the Forbidden Conduct argument, matters.
24 minute read
October 18, 2022 | New York Law Journal

But What About But-For Causation? Challenging Legal Malpractice Claims for Lack of Proximate Cause

In recent decisions, New York courts have shown a consistent willingness to dismiss malpractice claims where a plaintiff impermissibly speculates about the causal link between a lawyer's alleged negligence and the plaintiff's damages.
7 minute read
August 04, 2022 | New York Law Journal

Examining the Fault Lines, Once More

Appellate cases resolved with a 3 to 2 vote are decisions where people can reasonably differ. Such rulings thus display the fault lines of the law. In this column, Brian J. Shoot takes a look at some recent 3 to 2 rulings.
18 minute read
Law Journal Press | Digital Book New Jersey Estate Litigation 2014 Authors: Michael R. Griffinger, Paul F. Cullum III View this Book

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May 05, 2022 | New York Law Journal

The Plain Meaning of Labor Law §241(6) … Or Its Opposite

In this edition of his Construction Accident Litigation column, Brian J. Shoot discusses in detail the Court of Appeals' recent 4-3 ruling in 'Toussaint v. Port Auth. of New York and New Jersey', which is important in itself and for what it may portend in other actions involving application of Labor Law §241(6).
29 minute read
April 29, 2022 | New York Law Journal

Split New York Court of Appeals Reverses Judgment for Plumbing Subcontractor Injured in Fall

New York's highest court, in a 4-3 split decision, took a narrow view of Section 240 of the Labor Law, which governs elevation risks, reversing a ruling from an appellate panel. The case turned on whether a fall was caused by elevation or by an electric shock.
4 minute read
February 03, 2022 | New York Law Journal

The Scope of Labor Law §§200, 240 and 241(6): Two Anomalies

In this edition of his Construction Accident Litigation column, Brian J. Shoot addresses two unrelated issues that have produced anomalous rulings concerning the scope of Labor Law §§200, 240 and 241(6). One issue is whether a defendant contractor's affirmative creation of a hazardous condition can give rise to liability under Labor Law §200 even where the defendant did not have any supervisory authority over the activities of the site worker who sustained the resultant injury. The second issue concerns an activity that plainly constitutes "construction" within the scope of Labor Law §241(6) and yet has lately been deemed not to be "construction" for the purposes of Labor Law §240.
19 minute read
November 04, 2021 | New York Law Journal

The Fault Lines of the Law (Again)

In this edition of his Construction Accident Litigation column, Brian J. Shoot considers two issues that recently generated illuminating Appellate Division dissents. One issue concerns construction and application of one of the most often cited Rule 23 subdivisions. The other issue concerns application of the workers' compensation bar.  
23 minute read
August 05, 2021 | New York Law Journal

Novel or Noteworthy Decisions From the Appellate Division

In this edition of his Construction Accident Litigation column, Brian J. Shoot discusses several Appellate Division rulings which, for one reason or another, are novel or noteworthy (or both). Two of the rulings have implications beyond the confines of construction accident litigation.
9 minute read

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