Friday, April 30, 2010


On January 13, 2010 we wrote about Matter of Midland Ins. Co.  The Court of Appeals has now granted leave to appeal. 

Tuesday, April 20, 2010

Plaintiff Claims Medical Malpractice Caused Stress Precipitating Decedent's Death

Roques v. Noble - In this wrongful death action, the plaintiff claimed that the defendants' misinterpretation of a CT scan and an MRI film stressed the decedent and that the stress contributed to the hastening of his cardiovascular disease and thus to his death. The Supreme Court granted the defendants’ motions for summary judgment, but the First Department majority reversed finding that the plaintiff had raised an issue of fact as to whether the defendants' treatment caused or substantially contributed to his death. Judge DeGrasse dissented arguing that the plaintiff’s expert failed to set forth any alleged departures from good and accepted medical practice.

Saturday, April 17, 2010

Other Cases of Interest from the Week

Klein v. Bialer - in this wrongful life action the plaintiffs claimed that had the defendants diagnosed or warned them that their daughter had rare genetic disorder they would not have become pregnant again.  The Supreme Court granted the defendants’ motion for summary judgment and the Second Department affirmed holding that the plaintiffs did not establish that the defendants owed them a duty.

Bowles v. Clean Harbor - whether the defendant could be considered a contractor or the owner's agent to impose liability under Labor Law Secs. 240 and 241.  

Byrnes v. Castaldi - binding arbitration clause contained in a contract to renovate a personal residence was void under General Business Law § 399-c.

Friday, April 16, 2010

How Important is Notice of Entry?

Garcia v. City of New York - in 1999, the plaintiff moved to restore the action to the calendar.  The motion was denied because of the failure to attach an affidavit of service.  In 2007, the plaintiff moved to renew.  The Supreme Court denied the motion and the First Department affirmed in a 3-2 decision.  The majority held that the plaintiff failed to show a lack of intent to abandon or a reasonable excuse for the eight-year delay in making the motion.  The dissent argued that because the 1999 order was never served with notice of entry the time to seek renewal had not run.  According to the dissent, therefore, the renewal motion made in 2007 was still timely.  

Friday, April 9, 2010

How Well-Settled is the Law?

At issue in Horst v. Brown was whether the statute of limitations defense is waived if it is not raised in a responsive pleading or pre-answer motion.  The majority found that it was waived drawing this dissent, "Well-settled law mandates an outcome, for the most part different from that which the majority holds and therefore, I dissent."

Court of Appeals Limits Assumption of Risk Doctrine

In Trupia v. Lake George Cent. School Dist. - the Court of Appeals rolled back the assumption of risk doctrine.  The Court has now held that the doctrine is limited to only athletic and recreational activities.  Judge Smith filed a concurrence in which he argued that it was unnecessary for the majority to go that far.  In his view this was an easy case "because it is absurd to say that a 12-year-old boy 'assumed the risk' that his teachers would fail to supervise him.  

Gesturing Drivers and Another Thorny Labor Law Case

Safety tip of the day: next time you extend a driver or pedestrian a courtesy by waving them to go first, make sure the coast is clear, otherwise you can be on the hook for anything that happens as a result.  In Olhausen v. City of New York - the First Department held that a driver may incur a duty to a third-party by gesturing to another individual that it is safe to cross.  

In Salazar v. Novalex Contracting Corp. - the First Department held that a worker's fall into a 3-4 foot deep trench presented a valid Labor Law Sec. 240(1) claim.  The dissent argued that the majority's holding was inconsistent with prior decisions which found no liability where the situation did not call for the use of safety devices within the ambit of Labor Law Sec. 240(1) and was inconsistent with prior decisions which found no liability under Labor Law Sec. 240 where the injury producing activity was an integral part of the work.  Case also raised issues with Labor Law 241(6).  

Thursday, April 1, 2010

Court of Appeals Watch

The Court of Appeals has granted leave to appeal in Simmons v. Sacchetti.  At issue is whether the landlord can be held liable where an unattended infant was burned in a bathtub of scalding hot water.  The First Department majority held “A landlord cannot be required to adjust the hot water temperature in order to protect children from adults who fail to do so.”  Justice Acosta dissented stating (1) that evidence the water temperature 20 days after the incident exceeded the temperature known to instantly scald an infant’s skin and (2) that the building's hot water system did not have a temperature relief valve, in violation of New York City Building Code Reference Standard 16, P107.26(b), raised issues of fact as to whether the landlord violated its duty to maintain the premises is a reasonably safe condition.  Judge Acosta also would have denied summary judgment as to the boiler contractor.