Category: Uncategorized

It is absolutely time to revisit and revise New York State’s absolute liability standard imposed upon contractors and owners for construction-related accidents. New York Labor Law Sections 240 and 241, colloquially referred to as the “Scaffold Law,” impose a strict liability standard on contractors and owners for elevation/gravity related accidents.  Unlike other personal injury matters, the Scaffold Law does not allow for any consideration of the comparative fault of the injured worker for causing and/or contributing to his/her accident. As a result, facts such as the injured worker’s decision not to wear personal protective equipment (“PPE”) that is provided by his/her employer and readily available at the jobsite are not considered in evaluating liability or the award of damages.

Having worked in the construction industry for the past twenty years, and having overseen the Safety, Risk Management, and Loss Control Departments for contractors with a New York (as well as a national and international) presence, I’ve seen beyond dispute that New York’s Scaffold Law is among the primary reasons for the soaring cost of construction.  It drives up the value of settlements and verdicts which, in turn, increases the cost of insurance.  In fact, many insurance carriers have stopped writing policies in New York as a result of this antiquated and imbalanced law. And those carriers that have kept writing programs in New York have dramatically increased their premiums as well as the deductibles and self-insured retentions that the insured contractors are required to carry.

The net effect is an ever-increasing cost to build.  Further, it has forced many contractors and subcontractors to seek projects outside of New York, price shop insurance programs with carriers that are not admitted in New York State, and purchase policies that contain numerous exclusions that do not provide any actual coverage. These increased costs are then passed along to consumers on private sector projects and taxpayers on public sector projects.

This is not to say that injured workers should not be compensated for elevation-related accidents on construction sites.  Nor is it intended to endorse contractors that curtail spending on training, safety, PPE, and supervision that the workforce needs to perform their work.  But, when the Occupational Safety and Health Administration (“OSHA”) investigates an elevation-related accident and determines that the injured worker caused or contributed to his/her accident by not using available PPE, rushing/cutting corners, failing to follow proper procedures and/or the employee’s own training, but the contractor/employer cannot use OSHA’s findings to mitigate or cut off the worker’s entitlement to compensation for his/her own negligence, which is precisely what the Scaffold Law does, then it is time for some major reform.

Until New York State addresses this inequity, contractors and subcontractors should do the following:

• Read your insurance policies very carefully. Be careful of endorsements that exclude coverage for elevation-related work.

• Engage experienced insurance brokers, advisors, and other professionals who specialize in the construction industry. With insurance premiums being among the top three annual expenses for most contractors (along with payroll and brick & mortar costs), it is imperative to work with specialists who understand your business, the types of coverage that are needed, and how to put together a program that provides real coverage.

• Spend money on training, upgrading PPE, and supervision. In this era of increasing deductibles, think about how much it costs to proactively address safety issues vs. how much you spend on claims within your insurance deductibles.

New York’s construction industry cannot move forward and realize its full potential if antiquated laws keep it tethered to the past.

By Christine Malafi

The Internet has become a necessity for the marketing and promotion of businesses, services, and merchandise. An evolving legal issue is website accessibility to those with disabilities and the applicability of Title III of the Americans with Disabilities Act (“ADA”). Accessibility of public websites and compliance with the ADA in connection with public websites may cause issues for some time to come, given the lack of governmental regulations and guidance in this area. Nevertheless, it’s important for businesses to know where the law currently stands.

The purpose of the ADA is to provide equal opportunity to individuals with disabilities. Title III of the ADA specifically prohibits discrimination of individuals with disabilities “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” While the ADA is silent on the specific issue of website accessibility, case law has made it clear that the ADA applies to public websites, and businesses must accommodate individuals with disabilities and make their websites ADA accessible. However, the extent to which websites must be made accessible has not been definitively determined. Questions remain as to whether all websites fall under the ADA and whether a website must also be tied to a physical location before it falls under the ADA, among other questions.

In December 2015, the Department of Justice (“DOJ”) announced that it would not issue private sector website ADA accessibility regulations until fiscal year 2018. However, a recent Presidential Executive Order cut regulatory resources, and may subsequently freeze the DOJ’s public accommodations website rulemaking.

In the absence of DOJ regulations, what should businesses do? Many settlements approved by the DOJ have implemented the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG) on how to make a website more accessible. At the most basic level, an ADA accessible website should provide these (and other) types of features:

• Text alternatives for any non-text content;
• Alternatives for time-based media;
• Content that can be presented in different ways without losing information or structure;
• Be easy to see and hear, including separating foreground from background;
• Permit all functionality from a keyboard if needed (as opposed to a cursor);
• Permit sufficient time to read and use content;
• Not be designed in a way that is known to cause seizures;
• Include ways to help users navigate, find content, and determine where they are;
• Include text content that is readable and understandable;
• Operate and appear in predictable ways;
• Help users avoid and correct mistakes; and
• Compatible with current and future user agents, including assistive web technologies.

The best option for business owners to not fall victim to a successful Title III suit is to comply with these WCAG guidelines.

However, it may not always be deemed “reasonable” for businesses to create a fully ADA compliant website. As is stated in the ADA: “A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. “ 28 C.F.R. § 36.302 (2012).

If making your website fully compliant with the WCAG is too costly for your company, other options may be available. Although New York courts have yet to address this specific issue, others have. In National Federation of the Blind v. Target Corp., Target was sued because its website did not enable visually impaired persons to directly purchase products, redeem gift cards, or find stores.  The court ruled against Target, as Target failed to show that the information on its website was available in another reasonable format. The court acknowledged ADA defines discrimination to include a failure to take such steps “as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the goods, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C.S. § 12182(b)(2)(A)(iii). The court specifically noted the following examples of accessibility: “if a menu cannot be read by a blind person, the restaurant need not make the menu available in Braille; the restaurant could ensure that waiters are available to explain the menu”; and “while a bookstore must ensure that it communicates with its customers in formats which accommodate the disabled, a bookstore is not required to stock books in Braille.” Courts therefore recognize that there may be significant limitations on the possibility of making a website completely or fully ADA accessible.

In a more recent case, Robles v. Domino’s Pizza LLC, a blind plaintiff claimed that he could not order pizza from the Domino’s website because it was not accessible using a screen reader. The court found that although Domino’s website was not in compliance with the WCAG guidelines, their 24-hour toll free phone number, where live agents provided assistance with using the website, was enough to meet its obligations under the law.

Absent further guidance, businesses and individuals with public business websites are urged to ensure accessibility. At CMM, we are available to assist and guide you on this issue.

By Patrick McCormick

The basic rule of karma is what goes around comes around. While in everyday life this principle may appeal only to the superstitious, the harsh reality is that in a court of law one mistake or bad act from your past can come back to haunt you.

In New York courts, the rule regarding the admissibility of uncharged prior bad acts is derived from the landmark case People v. Molineux, 168 N.Y. 264 (1901). Put simply, the admissibility of uncharged prior bad acts is dependent upon why the evidence was proffered. Generally, courts will deem evidence of uncharged prior bad acts inadmissible if it is proffered as pretext to demonstrate that the defendant has a propensity to act in a certain way. However, evidence of a defendant’s uncharged prior bad acts is admissible if it demonstrates something other than propensity, such as intent, motive, knowledge, common scheme or plan, identity of the defendant, or necessary background information and context.

Recently, the Court of Appeals and the Third Department decided two cases that demonstrate the increasing scrutiny courts apply when determining the admissibility of evidence pertaining to uncharged prior bad acts: People v. Leonard, 29 N.Y.3d 1 (2017) and People v. Anthony, 152 A.D.3d 1048 (3d Dep’t 2017). While on the surface these two cases may seem to warrant similar conclusions of law as to the admissibility of the evidence at issue, a subtle distinction can be gleaned to give insight as to how courts analyze this evidentiary issue.

In Leonard, the Court of Appeals reversed the finding of the trial court holding that the trial court erred in admitting Molineux evidence. The defendant was charged with sexual assault. At trial, the victim’s boyfriend testified that the defendant approached the victim, who at the time was intoxicated and vomiting, and then knelt by the victim and inappropriately touched her while her pants were down to her knees.

In an attempt to elicit testimony from the victim regarding an earlier incident of sexual abuse by the same defendant in which the circumstances were nearly identical, the prosecutor filed a “Molineux Proffer.” The testimony described how on an earlier occasion the victim was intoxicated and asleep on her coach when the defendant approached her, pulled down her pants, and inappropriately touched her. The prosecutor argued that this testimony was relevant because it demonstrated intent, absence of mistake, background, and a common scheme or plan. Over the defendant’s objection, the trial court ruled that the testimony could be elicited.

However, on appeal, the Court of Appeals found that the testimony regarding the prior incident of sexual abuse was propensity evidence that merely sought to show that the defendant committed the charged crime because he acted that way on a prior occasion. Notably, the Court stated that the testimony at issue did not fall into the background evidence exception because it was “not necessary to clarify their relationship or to establish a narrative of the relevant events.” Leonard, 29 N.Y.3d at 8.

Shortly after Leonard was decided, the Third Department confronted a case with the identical evidentiary issue. In People v. Anthony, the Third Department affirmed the trial court’s ruling that the evidence fell within recognized Molineux exceptions. In Anthony, the victim and defendant were acquainted through a course of drug deals. During the course of drug deals, the defendant, a member of the Bloods gang, invited the victim to join the gang multiple times. The victim rejected each invitation. Unfortunately, one drug deal went south when the victim rejected a gang invitation, which incensed the defendant. The defendant pulled out a gun and fired multiple shots at the victim, ultimately killing him. The prosecutor elicited testimony regarding the defendant’s gang membership and his earlier attempts to recruit the victim, arguing it provided context for the crime. The trial court admitted the testimony.

On appeal, the Third Department affirmed the trial court’s ruling. The Third Department noted that the defendant’s “purported gang membership fell within several Molineux exceptions, including placing testimony regarding defendant’s earlier attempt to recruit the victim in context.” Anthony, 152 A.D. at 1051. Unlike the Leonard Court, the decision in Anthony in no way expressed concern for propensity evidence.

These two cases shrewdly present how courts carefully scrutinize evidence in cases where prosecutors attempt to admit uncharged prior bad acts. In Leonard, the court deemed the evidence a mere subterfuge to demonstrate the defendant had a propensity to act a certain way. The Leonard court highlights that a court will not buy the argument that an identical uncharged prior bad act should be admitted because it is necessary provide background information or context out of fear that it will give rise to a propensity inference by those jurors who may not be thinking critically. Rather, a court is much more likely to admit evidence of prior uncharged bad acts if the evidence necessarily elucidates a narrative of events, like in Anthony.

So, for the would-be criminal defendants out there, remember: your past just might come back to haunt you.

By Christine Malafi

Given the recent headlines, all employers should be reminded that they have a legal duty to maintain a workplace that is free from sexual harassment. Sexual harassment suits are prosecuted under the same federal and state laws that are used to sue employers for racial discrimination and harassment, so it is critical that every employer take this form of sexual discrimination seriously. As we have seen, employers have paid a high price for failing to address sexual harassment complaints adequately.

What is sexual harassment?

The New York State Division of Human Rights defines sexual harassment as a “hostile environment” consisting of words, signs, jokes, pranks, intimidation, or physical violence which are of a sexual nature, or which are directed at an individual because of that individual’s sex. This will also consist of any unwanted verbal or physical advances which are offensive or objectionable to the recipient.

Another type of sexual harassment is known as “quid pro quo,” where a person in authority, such as a supervisor, attempts to trade job benefits (i.e. hiring, promotion, or continued employment) for sexual favors.

It takes only a single incident of inappropriate sexual behavior to serve as the basis of a sexual harassment claim.

What Should Employers Do?

Employers can take several steps to reduce the risk of sexual harassment in the workplace, including:

• Sexual Harassment Policy: Have an employee handbook that sets forth a policy defining sexual harassment and the consequences of engaging in such conduct. This policy should also set out a procedure for filing sexual harassment complaints, and state that each complaint will be taken seriously and investigated thoroughly, and also make it clear that retaliation is unlawful. An employer is not allowed to retaliate against an employee who has filed a sexual harassment complaint, whether or not that complaint is ultimately founded.
• Train Employees: Employers should hold training sessions for both managers/supervisors and employees to teach them what sexual harassment is and what conduct is acceptable and not. The training should also review complaint procedures, and remind employees that they are entitled to have a workplace free of sexual harassment. Training is highly recommended because your managers and employees should all be familiar with the law and what to do if such conduct should occur, and if you face a lawsuit, you will be able to show that you took the necessary steps to prevent harassment.
• Monitor Your Workplace: Talk with your employees periodically and ask for their input on any issues that may be occurring inside the workplace. Look around to see if there are any offensive posters or notes that may raise concern. Make your employees aware that the lines of communication are always open.

Sexual harassment has no boundaries, and can occur in any business, and to a male or female. Training and prevention are critical to eliminate these issues to the extent possible. Employers are encouraged to take these necessary steps to eliminate sexual harassment.

Legislative Efforts

In early December, Assemblywoman Sandy Galef (Westchester) introduced a bill that would have the New York State Division of Human Rights develop and implement a uniform sexual harassment policy that would apply to employees of State agencies, offices, departments, and members and employees of the State Assembly and Senate. The policy would create a standard procedure for the handling of sexual harassment complaints and investigation. The future of this bill, and any other new legislation that may come out of this national moment of reckoning regarding sexual harassment, remains to be seen.

For guidance on employee handbooks, policies, and procedures to create a safe workplace, please contact us.