Tuesday, October 5, 2010

Court Of Appeals Watch

Leave to appeal to the Court of Appeals has been granted in the following cases:

In Lifson v. City of Syracusethe plaintiff's wife died as a result of injuries suffered when she was hit by a vehicle at 4:00 p.m. on a Tuesday evening in late February. The driver of the car was found not liable and the City of Syracuse was found 15% liable, with the remaining liability on the decedent. The basis of the decedent’s liability was failure to yield the right of way at an unmarked cross walk, and the Fourth Department concluded that evidence at trial supported a finding that the decedent was outside the unmarked walkway.  

With regard to the driver of the car, the Court held that sun glare does not provide a defense to negligence as a matter of law.  The Court, however, found that the the trial court properly gave an “emergency” instruction because the driver testified he was blinded by sun glare immediately before hitting the plaintiff.  One justice dissented, arguing that sun glare was not “unforeseen,” but should be “anticipated as a routine occurrence at certain times of the day and in particular weather conditions.”

As to the City, a prior appeal concluded that the City had an ongoing duty to review its traffic plan as a result of a letter the City received seven years before the accident. The letter requested a traffic signal based on the danger to pedestrians at the relevant intersection.  On this appeal, the Court held that the trial court properly admitted evidence of its traffic plan.  The Court also held that the verdict was not inconsistent in its finding of no liability as to the driver but 15% liability as to the City.  


In Cragg v. Allstate Indemnity, a young girl drowned in a pool at her grandparents’ house where she had lived with her mother. Her father, who was not an insured and did not live at the house, brought a wrongful death suit as administrator and sole distributee of his daughter’s estate.  The primary issue in this declaratory judgment action was whether the grandparents’ insurance policy with Allstate excludes coverage of the plaintiff’s claim.

The Fourth Department held "[t]here is no coverage for the simple reason that a homeowners' insurance policy is essentially designed to indemnify the policy holders against liability for injuries sustained by noninsureds. Here, neither decedent nor her mother would be entitled to indemnification from Allstate for the injuries and death of decedent.  The Court further noted that to require Allstate Indemnity to pay "would result in the receipt by the mother, an insured of the benefits of the policy in the form of the satisfaction of the money judgment." 


In Bordeleau v. State of New York, the plaintiffs challenged appropriations of state funds to an agency and two public benefit corporations where the funds were to be distributed to private entities to “foster[] economic development.” The complaint is based on the New York Constitution’s prohibition on “the giving or loaning of state money to any private entity” and State Finance Law. The Third Department reversed, permitting the plaintiffs to proceed on this cause of action against the defendants, IBM, Advanced Micro Devices Inc., the State of New York, and West Genesee Hotel Associates.

The plaintiff also challenged legislative appropriations that “will be spent according to some future agreement between the Governor, Speaker of the Assembly and Majority Leader of the Senate.” The plaintiffs complain that this violates the New York Constitution’s limitations that appropriations “shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied.” The Third Department looked to Saxton v. Carey, 44 N.Y.2d 545 (1978), which held that “the degree of itemization and the extent of transfer allowable are matters which are to be determined by the Governor and the Legislature, not by judicial fiat.” In following Saxton, the Court affirmed dismissal of plaintiffs’ claims because they are non-justiciable.


At issue in Greenberg, Trager & Herbst, LLC v. HSBC Bank, is whether HSBC Bank is liable to the plaintiff law firm when a check the firm deposited was later revealed to be counterfeit. The trial court dismissed the matter and the First Department affirmed. The plaintiff claimed that as a result of HSBC's misrepresentation that the check cleared, it wired the money to an offshore account, causing it to suffer damages when it could not recover the money.  

Plaintiff alternatively argued that HSBC should be allocated the loss equitably as a matter of estoppel. The First Department disagreed, finding that the plaintiff was in the best position to avoid the loss and that it failed to do research into its client, its debtor, and the recipient of the wire transfer. 


In Town of Hempstead v. East Coast Resource Group, the Town of Hempstead seeks damages for the alleged breach of an insurance procurement provision.  At issue is whether the underlying accident arose out of the activities contemplated by the agreement.  The description of the case and issues involved have been limited here because this is an MGL case.      


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