Monday, July 5, 2010

Court of Appeals Watch

The following cases have been granted leave to appeal to the Court of Appeals:

Acosta v. City of New York - Second Department reversed a jury verdict on the basis that the plaintiff's version of the events was manifestly untrue and tailored to avoid the consequences of previous statements made by him.

Simon v. Usher - First Department held that the defendants were not entitled to the five-day extension in CPLR 2103(b)(2) for the time period set forth in CPLR 511(b) to move to change venue.

McCarthy v. Turner - at issue is whether an owner can be entitled to contribution or indemnification from a general contractor where the general contractor has the authority to direct, supervise and control the work giving rise to the injury or whether contribution or indemnification can only arise where the general contractor is actually responsible for the supervision, direction and control of the work the plaintiff was performing at the time of injury. The Supreme Court adopted the later approach, which was affirmed on appeal. On June 29th, the First Department granted leave to appeal to the Court of Appeals.

Grimm v. State of New York Department of Housing and Community Renewal -
The First Department held that the Department of Housing and Community renewal (DHCR) was incorrect to refuse to review a rent overcharge claim and would have to review for fraud. The DHCR refused to review a case involving a landlord who set an illegal rent on a rent stabilized apartment. The critical issue is whether a four-year statute of limitations for rent overcharge should be interpreted to preclude a finding of an overcharge related to a fraud that occured beyond the four-year term. A new tenant brought the petition more than four years after the initial illegal rent, but documents may show that the landlord continued to hide the original fraud.

Groninger v. Village of Mamaroneck - The Second Department affirmed dismissal of a plaintiff's slip and fall claim due to a lack of prior written notice. The plaintiff slipped and fell on an ice patch in a municipal parking lot. The village moved for and the trial court granted summary judgment because that the village had not received prior written notice of the icy condition as required by Village Law. At the Court of Appeals, the issue will likely center on whether applying the Village Law was inconsistent with Walker v. Town of Hempstead. In Walker, the Court of Appeals declared a similar written notice provision of the Hempstead Code inconsistent with state law.

Perl v. Meher - The Second Department affirmed dismissal of a serious injury car accident case because the treating physician did not record objective results of range of motion tests taken shortly after the accident to a level of specificity sufficient for the Second Department. A dissenting Justice noted that while the contemporaneous examination failed to state the results with specificity, it did allege there were objective limits, and the Justice also noted that a later examination was satisfactory.

Ridge Road Fire District v. Schiano - The Fourth Department reinstated a hearing officer's determination that granted a firefighter benefits for a work-related back injury. The firefighter’s employer originally denied the claim for benefits because of some evidence of non-work related back injuries, but a hearing officer vacated the denial on appeal. The claim has bounced around between the hearing officer and Supreme Court due to mistakes in the standard of review, but at its core, it seems the disagreement between the hearing officer and Supreme Court was the outcome.

No comments:

Post a Comment