Friday, January 29, 2010

Are the Winds Changing?

In Chacha v. Glickenhaus Doynow Sutton Farm Development, LLC, the plaintiff, a carpenter, was on the first floor of a residence under construction when a strong gust of wind blew a piece of plywood off a nearby stack, striking the plaintiff in the arm and knocking him over the edge and onto the floor ten to fifteen feet below.  Although the Second Department held that the plaintiff established that the defendants violated Labor Law Sec. 240(1) by failing to provide him with an adequate safety device, the Court found that the plaintiff failed to establish as a matter of law "that his accident was a foreseeable consequence of the defendants' failure to provide him with an adequate safety device, rather than the result of an unforeseeable, independent, intervening act that attenuated the defendants' failure to provide him with an adequate safety device." 

Similar arguments have been frequently made by defense counsel and routinely rejected.  Perhaps this case signals a shift. 

Tuesday, January 26, 2010

Court of Appeals Watch: First Department Grants Leave

The First Department has granted leave to appeal to the Court of Appeals in Waggoner v. Caruso, involving the facial sufficiency of a legal malpractice complaint and the applicability of the continuous representation doctrine.

Tuesday, January 19, 2010

Court of Appeals Watch

Today the Court of Appeals accepted certification of questions posed by the Second Circuit in Kirschner v. KPMG, LLP.  Generally speaking, the case addresses whether acts of corporate insiders can be imputed to a corporation.  The Court of Appeals also granted leave in the following cases: Lehman v. North Greenwich Landscaping, LLCIn re Leroy M. and People v. Wells Fargo Insurance Services, Inc. 

Friday, January 15, 2010

Average Time to Decide Appeals

As reported today in the New York Law Journal, during the work year that ended June 30, 2009, the average time to render a decision after oral argument for the  

First Department was 30 days
Second Department was 53 days
Third Department was 48 days
Fourth Department was 33 days

While the Courts' efforts to reduce the time to render their decisions are admirable and appreciated, they should not feel pressured to make it a priority to reduce their time frames any further.  None of these time frames in and of themselves are particularly troubling.  In fact, a longer time period might be preferable as it can be an indication, or at least project the feeling, that the Court spent a lot of time really pondering the issues raised on the appeal. On the other hand, a shorter time frame can leave the impression that the appeal was given short shrift.

At the end of the day, the public and practitioners are probably more focused on whether their cases have been taken seriously and their arguments truly considered.  The length of time it takes to render a decision can contribute to that sense, but what is more important is the substance and quality of the decisions themselves.  My guess is that most would be willing to sacrifice a bit of expediency, if it took a little longer (1-2 months) to produce more detailed decisions.  

Wednesday, January 13, 2010

Are All Creditors in a Liquidation Proceeding Created Equal?

According to the First Department, with respect to choice of law, the answer is "Yes." In Matter of Midland Ins. Co., the First Department held that the Supreme Court’s order “which granted the major policyholders' motion for partial summary judgment declaring that for each policyholder an individualized choice-of-law review must be undertaken following the ‘grouping of contacts’ approach and giving predominant weight to the policyholder's principal place of business, and denied the intervening reinsurers' cross motion for partial summary judgment on the applicability of New York substantive law to all policyholder claims under the Midland policies in the liquidation, should be reversed, on the law, without costs, the MPHs’ motion denied, and the intervening reinsurers’ cross motion granted, declaring that New York substantive law governs the interpretation and application of the Midland insurance policies at issue in this liquidation proceeding.”

Sunday, January 10, 2010

This Week's Civil Cases at the Court of Appeals

Tuesday, January 12, 2010
The Court of Appeals will address the three judicial pay raise cases Maron v. Silver, Larabee v. Governor and Chief Judge v. Governor

Wednesday, January 13, 2010
Wadler v. City of New York - whether the firefighter's rule (no recovery under common-law negligence where some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury) can be applied to bar a claim by an officer who was injured while driving his police car across a barrier to enter a parking garage?   

Friday, January 8, 2010

Second Department Finds Queens County Judge Went to Far

In Strocchia v. Celentano Provisions, Inc., after holding that the Supreme Court erroneously sua sponte dismissed the complaint, the Second Department noted that the Supreme Court judge's continuous and wrongful interjections into the trial proceedings were improper requiring remittal to a different justice.  This is now the ninth time involving this judge that the Appellate Division has reversed and remitted the matter to a different justice.

Wednesday, January 6, 2010

Second Circuit's New Rules

The Second Circuit has adopted New Local Rules, which became effective January 1, 2010.  Mark D. Harris and Theodore K. Cheng had a nice article in today's New York Law Journal describing some of the more significant changes.

Tuesday, January 5, 2010

First Department Splits in Defective Design Case

In Yun Tung Chow v. Reckitt & Colman, Inc., the plaintiff sustained an eye injury while using defendants’ product, crystalline sodium hydroxide, packaged as a drain cleaner called “Lewis Red Devil Lye” when it splashed back into his eye while trying to unclog a drain. The plaintiff claimed that the warnings were inadequate and the design was defective. The Supreme Court granted the defendants’ motion for summary judgment and dismissed the complaint. The First Department agreed that the Supreme Court properly dismissed the inadequate warning claim, but split 3-2 on the defective design claim. In particular, they disagreed over whether the plaintiff’s expert affidavit sufficiently set forth a foundation for his conclusion that his suggested alternative designs are feasible.

Monday, January 4, 2010

This Week's Civil Cases at the Court of Appeals

Tuesday, January 5, 2010
Heslin v. Coounty of Greene - whether the infancy toll of CPLR 208 can be used on behalf on decedent infant's distributees to extend the statute of limitations for filing a personal injury claim?

Wednesday, January 6, 2010
Gallagher v. The New York Post - whether testimony that there were standing orders to use harnesses or other safety devices when working near any opening in the floor and that these safety devices were available on the job site on the day of the accident were sufficient to raise a question of fact to defeat the plaintiff's motion for summary judgment under Labor Law Sec. 240(1).