New York Law Review

Tag: De Milio v. Borghard

  • De Milio v. Borghard, 55 N.Y.2d 220 (1982): Non-Delegable Duty and Common-Law Indemnity in Construction Accidents

    55 N.Y.2d 220 (1982)

    When a party’s liability arises from a non-delegable duty imposed by statute, and that party did not exercise actual control over the work that caused the injury, they are entitled to common-law indemnity from the party directly responsible for the negligent act.

    Summary

    This case concerns a construction worker’s injury and the allocation of liability between the property owner (New York Telephone) and the subcontractor (Lakelands Precast). The Court of Appeals modified the lower court’s order, holding that the trial court erred in refusing to charge contributory negligence as a bar to recovery. Further, because New York Telephone’s liability arose solely from its non-delegable duty under Labor Law § 241(6) and it did not exercise actual control over the work, it was entitled to indemnification from Lakelands, the party whose employee’s negligence caused the injury. The Court ordered a new trial on New York Telephone’s liability to the plaintiffs and, if found liable, directed a verdict in its favor on its claim over against Lakelands.

    Facts

    The plaintiff, a construction worker, was injured during the offloading of a vault at a construction site. Lakelands Precast, Inc., was the subcontractor responsible for offloading the vault. New York Telephone Company was the owner of the property and held responsible for the project’s compliance with Labor Law.

    Procedural History

    The trial court initially ruled against New York Telephone. The Appellate Division affirmed. New York Telephone appealed to the New York Court of Appeals. The Court of Appeals modified the order, granting a new trial on New York Telephone’s liability and directing a verdict in its favor against Lakelands Precast on the claim over, should it be found liable to the plaintiffs.

    Issue(s)

    1. Whether the trial court erred in refusing to charge contributory negligence as a bar to recovery by the plaintiffs.

    2. Whether New York Telephone, whose liability arises from a non-delegable duty under Labor Law § 241(6), is entitled to common-law indemnity from Lakelands Precast, the subcontractor whose employee’s negligence caused the injury, given that New York Telephone did not exercise actual control over the work.

    Holding

    1. Yes, because the trial court erred in refusing to charge contributory negligence as a bar to recovery by plaintiffs.

    2. Yes, because New York Telephone’s liability stemmed from a non-delegable duty, and there was no evidence it exercised actual control over the offloading operation. Therefore, it is entitled to common-law indemnity from Lakelands Precast.

    Court’s Reasoning

    The Court reasoned that the trial court erred by not allowing the jury to consider the plaintiffs’ contributory negligence. Regarding indemnity, the Court emphasized that New York Telephone’s liability was based on the non-delegable duty imposed by Labor Law § 241(6). This section of the Labor Law imposes a duty upon owners and general contractors to provide reasonable and adequate protection and safety to construction workers. However, the court noted, “There being no evidence that it [New York Telephone] had authority to exercise or in fact did exercise control over the offloading of the vault by Lakelands’ employee in the course of which the plaintiff’s injury occurred, New York Telephone was entitled under principles of common-law indemnity to a directed verdict on its claim over.” The key factor was the lack of evidence that New York Telephone controlled the specific work that led to the injury. Because Lakelands Precast was directly responsible for the negligent act, New York Telephone was entitled to indemnification for any liability arising from its statutory duty. This case illustrates the principle that a party held liable due to a non-delegable duty can seek indemnification from the party whose direct negligence caused the harm, provided the former did not exercise control over the negligent act. This prevents unfair allocation of liability when a party is only vicariously liable due to statute and did not contribute to the negligence.

  • De Milio v. Borghard, 55 N.Y.2d 216 (1982): Statute of Limitations for Challenging Employee Discharge

    De Milio v. Borghard, 55 N.Y.2d 216 (1982)

    For a probationary government employee discharged without a right to a hearing, the four-month statute of limitations to challenge the discharge begins to run from the date of termination, not from the denial of a request for reconsideration.

    Summary

    De Milio, a probationary employee, was terminated by the Westchester County Department of Environmental Facilities. He requested reconsideration, alleging factual misinterpretations, but his request was denied. He then commenced an Article 78 proceeding, which was dismissed as untimely, measured from his termination date. The Court of Appeals affirmed, holding that because De Milio was a probationary employee without a right to a hearing, the statute of limitations began on the termination date, and a request for reconsideration does not extend this period. This ruling clarifies the commencement of the limitations period for challenging employee discharges under Article 78, distinguishing between employees with and without hearing rights.

    Facts

    The Westchester County Department of Environmental Facilities employed De Milio in a probationary role.
    On October 12, 1979, the commissioner informed De Milio that his employment would end on October 25, 1979.
    De Milio initiated a grievance procedure under his union’s collective bargaining agreement, which proved unsuccessful.
    On October 29, 1979, De Milio requested the commissioner to reconsider the termination, citing misconstrued facts.
    De Milio received a negative response to his reconsideration request around November 15, 1979.

    Procedural History

    On March 5, 1980, De Milio commenced an Article 78 proceeding to challenge his termination.
    Special Term dismissed the petition, citing the four-month statute of limitations under CPLR 217, measured from the October 25, 1979, termination date.
    The Appellate Division affirmed this dismissal, stating that a reconsideration request does not extend the limitations period.
    Two dissenting justices argued the period should run from November 15, 1979, the date reinstatement was denied.
    The Court of Appeals then reviewed the case.

    Issue(s)

    Whether the four-month statute of limitations in an Article 78 proceeding challenging a probationary government employee’s discharge begins on the termination date or the denial date of a request for reconsideration.

    Holding

    No, because as a probationary employee without the right to a hearing, the statute of limitations begins to run on the date of termination. A request for reconsideration does not extend this limitations period.

    Court’s Reasoning

    The court differentiated between types of Article 78 proceedings: certiorari (review of a hearing), mandamus to compel (employee entitled to a hearing but denied), and mandamus to review (employee not entitled to a hearing).
    Since De Milio was a probationary employee, he was not entitled to a hearing, making his proceeding one for mandamus to review.
    For mandamus to review, “the period runs from the notice of discharge, or the effective date of discharge, if later.”
    The court distinguished this case from situations where an employee is entitled to a hearing but is denied one; in those cases, the limitations period runs from the denial of reinstatement.
    The court rejected De Milio’s argument that his petition sought review of the denial of reinstatement, finding that the petition focused solely on the original discharge.
    The court emphasized that allowing a reconsideration request to extend the statute of limitations would “emasculate” the rule that the limitations period begins when the determination becomes final and binding.
    The court stated, “The rule that the four-month limitations period begins to run on the date that the determination to be reviewed becomes final and binding would be completely emasculated if the petitioner could extend the commencement of this period by merely requesting that reconsideration be given to a prior decision because it is asserted that the earlier decision was based upon facts which were misconstrued.”