You scratch my back and I will sue you

Aloise v. Saulo, NY Slip Op 04629 (2d Dept. 2008)
(Barter arrangement sufficient quid pro quo to constitute a compensable hiring to invoke Labor Law 241(6) protections to carpenter).

Plaintiff, a 40 year-old journeyman union carpenter injured his eye when a nail ricocheted off of a pipe he was securing with a “brad gun.” Plaintiff owned the nail gun for eight years and it bears a warning that protective eyewear is to be worn. Plaintiff did not wear eyewear and claimed that eyewear was not provided by Defendants.

Plaintiff's project was a barter arrangement with a homeowner and the homeowner’s architectural firm, Defendants, Saulo and Saulo, P.C., respectively. Saulo is a distant cousin of Plaintiff and a licensed architect. Saulo agreed to draw plans for Plaintiff’s home renovation project in exchange for Plaintiff's help completing an outdoor deck for Saulo.

In granting Saulo's SJ motion, Justice Partnow (Kings County) held that the work was not a compensable hiring and that Plaintiff was not an “employee” as defined within Labor Law section 2. Plaintiff appealed to the Second Department seeking.

The 2d Dep't held that the barter arrangement was a sufficient quid pro quo to constitute a compensable hiring. The Court, however, did not reach the issue of causation (i.e., whether Plaintiff was the sole proximate cause of his injury in failing to wear protective eyewear). See, McCormack v. Universal Carpet & Upholstery Cleaners, 29 A.D.3d 542, 815 N.Y.S.2d 635, 2006 N.Y. Slip Op. 03555 (2 Dept. 2006).

Thank you to Robert Conti of Bee Ready Fishbein Hatter & Donovan for bring this decision to my attention.

Art imitating life?

Avoiding those pesky Medicaid liens

In re Wright is a decision by the Westchester County Surrogate's Court,
--- N.Y.S.2d ----, 2008 WL 2447373 (N.Y.Sur.), 2008 N.Y. Slip Op. 28230. This decision
permitted the estate of a deceased 6 year old girl to settle a tort action (a car accident that caused her death) while allocating the entire $33,333.33 settlement to conscious pain and suffering and beyond the reach of a hefty Medicaid lien. This decision is based in part on the fact that the lienor defaulted and failed to refute that none of the settlement was for past medical expenses ( see 42 USC §§ 1396p[a]), -- which should not be surprising given the relatively modest amount of the settlement.

This case also declined to apply Riggs v. Palmer as a basis for preventing the girl's father from sharing in his daughter's estate despite the fact that he failed to secure her in a car seat.

ABL goes to see Mr. Garner

ABL went to NYC to see Brian Garner's seminar on The Winning Brief. It was ABL's 3d BG seminar -- and well worth the trip. At one point, BG told the crowd to take books he had displayed at a table, first come first serve. ABL was very excited because the latest edition of Black's Law Dictionary was there. Although ABL touched the book first (or perhaps tied for first), another BG groupie refused ABL's suggested coin toss [a dispute resolution method that has been adopted by the federal bench in the Northern District of Alabama a.k.a the "high noon coin toss" to decide lead counsel status in a securities class action]. In an effort to spread Buffalo's civility to the NYC bar, ABL left with another book. BG was fun, informative, and engaging -- even better now that he incorporates video clips of judicial interviews into the seminar. BG described the difference between enormity (evil) and enormous (large) with the quip that it is proper to refer to the "enormousness of Skadden Arps, not the enormity of Skadden."

The link above is to the debate between Garner and Judge Posner on the use of footnotes. ABL plans to explore BG's 100 tips from the TWB in future posts.

Buffalo mourns loss of favorite son, Tim Russert

Time to update the correspondence list

Judge Larimer recently dropped the following footnote in a decision (not about ABL or anyone ABL knows):

The [] firm directed its opposition to me in an envelope addressed to "Magistrate Judge" David G. Larimer. I held the position of Magistrate Judge twenty (20) years ago but no longer do so. The letter in the envelope was addressed to me at "The United States Supreme Court." I have never served on that Court and do not expect to do so.

2d Cir. on inquiry notice and "storm warnings"

Domenikos v. Roth, (2d Cir. 2008) held that a class action challenging financial statements placed investors on inquiry notice that previous financial statements were possibly subject to the same alleged infirmities.