Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

The law governing settlements states in part that “[a]n agreement between parties or their attorneys relating to any matter in an action other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed to by him or his attorney or reduced to the form of an order and entered.�  CPLR 2104.  Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record.  The Appellate Court upheld this principle in Diarassouba v. Urban, 2009 Slip Op. 09420 (2d Dept. Dec. 15, 2009).

In this medical malpractice action, while the jury was deliberating, plaintiff’s counsel obtained consent from his client to settle the action.  Counsel presented the settlement figure to defendant, however, the parties failed to put the agreement in writing.  Prior to the verdict being read, plaintiff’s counsel requested to put the settlement agreement on the record.  The judge declined to do so until after the verdict was read, which returned an award ten times the amount of the settlement figure.  Plaintiff then argued that a binding agreement had not been made and over defendant’s objections, the Appellate Court held that the jury’s award must stand because the requirements of CPLR 2104 had not been satisfied. 

In Lue v. Finkelstein & Partners, LLP, 67 A.D.3d 1187 (3d Dept. 2009), plaintiff brought a malpractice case against his former attorneys who failed to preserve plaintiff’s claims.  In the initial action, plaintiff was injured when he fell from a scissor lift while working for his employer, an electrical contractor, at a warehouse owned by K-Mart Corporation.  Plaintiff retained new attorneys who commenced an action alleging, among other things, a Labor Law § 240 claim against K-Mart and claims of products liability and negligence against United Rentals, Inc., the lessor of the scissor lift. The Labor Law § 240 claim against K-Mart was dismissed on the grounds of collateral estoppel and res judicata as a result of the failure to preserve the claim in the bankruptcy proceeding. The claim against United Rentals survived and was settled on the eve of trial for $235,000.

In the present action, plaintiff brought this malpractice action against defendants with regard to the dismissed Labor Law claim. He asserted that he settled for an amount that did not fully compensate him because of the loss of the absolute liability cause of action.  During the deposition of plaintiff, he was questioned by defendant regarding conversations plaintiff had with his current attorney regarding settlement of the claims against United Rentals.  The Court held that plaintiff’s settlement discussions with his current attorney were protected by the attorney-client privilege and such privilege was not waived by plaintiff, or put in issue by plaintiff, by initiating the legal malpractice action. 

 

 

 

 

Section 240 of the Labor Law is the current enactment of New York State statutory laws aimed at protecting workers from the dangers of elevation-related risks.  The statute is one of strict liability and imposes liability on contractors as well as owners and their agents without regard to notice of any defective condition.  The duties imposed by Section 240 are nondelegable and require no showing that the owner exercised supervision or control over the workplace.  To establish a claim brought pursuant to this section, plaintiff must show a failure to provide the protection set forth in the statute and that such failure was a proximate cause of the accident.

            In Kindlon v. Schoharie Central School District, 66 A.D.3d 1200 (3d Dept. 2009), the court held that a collapse of a work site will constitute a violation of Labor Law § 240(1).  Here, plaintiff was working on a roof renovation at a school, which entailed removing portions of the roof.  While walking on a portion of the roof where the rubber insulation had been removed, leaving only gypsum board, the gypsum board collapsed from under plaintiff, causing him to fall 10 feet to the floor below and sustain injuries.  The Court went on to discuss that, in this instance, the roof acted as the functional equivalent of a scaffold, which failed.  The proof established that no safety devices were provided to protect workers against the hazards of falling through the roof and held that plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim.     

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In Adamowicz v. North Country Ins. Co., 2009 N.Y. Slip. Op. 08927 (3d Dept. Dec. 3, 2009), the court held that an insurer who sent the demand for sworn proof of loss to its insured’s attorney and not to the insured, violated the requirements of Insurance Law § 3407 (a). 

Section 3407(a) of the Insurance Law precludes the denial of an insured’s claim for lack of proof of loss unless the insurer first “give[s] to such insured a written notice that it . . . desire[s] proof of loss to be furnished by such insured.”  Here, the defendant/insurer did not mail the required demand to the plaintiff/insured, but to her attorney alone. The Court determined that while this demand could have been effective if plaintiff had, in fact, obtained the demand from her attorney, that did not occur here. Defendant moved for summary judgment dismissing the complaint for plaintiff’s failure to comply with the insurance policy’s provisions regarding proof of loss but since the record failed to establish that defendant gave plaintiff the notice prescribed by Insurance Law § 3407 (a), defendant’s motion was denied.