Monday, June 28, 2010

Defining an aggrieved party

In Mixon v. TBV, Inc., the Second Department addressed whether a person can be aggrieved where the relief granted was not sought against that person but was sought against a third person?  The Court set forth a two-pronged definition of the concept of aggrievement.  

First, a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part.  Based on this test the court held that Applying the second prong of that definition to the case at bar, it is apparent that both the plaintiffs and the limousine defendants were aggrieved by the order of the Supreme Court, the plaintiffs by the portion thereof that awarded summary judgment dismissing the complaint insofar as asserted against the van defendants, and the limousine defendants by the portion thereof that awarded summary judgment dismissing their cross claim against the van defendants. The limousine defendants were not aggrieved, however, by the portion of the order that granted the branch of the van defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the van defendants because that branch of the motion sought relief against the plaintiffs and not against the limousine defendants.”

The court also held that even though the plaintiffs could not seek relief on the appeal because she did not file a notice of appeal, the plaintiffs are not necessarily without a remedy.  The plaintiff could seek relief on a motion for leave to reargue, or on a subsequent appeal from the judgment.

Court of Appeals 2009 Annual Report

The following are some notable statistics from this year's Court of Appeals 2009 Annual Report:

  212 appeals were decided by the Court in 2009, slightly down from the number of appeals decided in 2008.  Of those appeals decided in 2009, 161 were unanimous with 16 concurrences and 45 dissenting opinions.  

  The average time from submission to a decision was 36 days.

  The average time from the filing of notice of appeal or order granting leave to appeal to oral argument is 7.5 months.

•  The average time from completion of briefing to oral argument is approximately 3 months.  

  The Court granted 7.2% of all motions for leave to appeal in civil cases, up from 6.8% in 2008.

  The Appellate Divisions issued 65 orders granting leave to appeal to the Court of Appeals.  Of those orders, the First Department issued over half (39 in all).  


Wednesday, June 16, 2010

To E-File or Not to E-File?

The New York Court of Appeals is considering changing its rules to require electronic filing in addition to paper copies.  Comments must be submitted by September 7th to

Wednesday, June 9, 2010

A reminder that New York law has changed as to late notice

In Tower Insurance Co. of N.Y. v. Miles (decided on June 1, 2010), the First Department reversed an order denying Tower's motion for summary judgment declaring that it no duty to defend or indemnify, holding that that "[b]ecause defendants were knowledgeable of facts that suggested a reasonable possibility of a claim against them and failed to conduct a sufficient inquiry into the circumstances, their five-month delay in notifying plaintiff of the incident was unreasonable as a matter of law."

Importantly, however, this incident obviously pre-dates the recent amendment to Insurance Law 3420. Effectve January 17, 2009, insurance companies are now required to show prejudice as a condition to denying coverage based on late notice if notice is provided within 2 years of the time it was due. If notice is provided more than 2 years after it was due, then the burden is on the insured to show a lack of prejudice. As amended, the statute only applies to policies issued on or after January 17, 2009.

Practice Tip: Finality and Motions for Leave to Appeal

Here's a good reminder from the Court of Appeals regarding motions for leave to appeal.  In Butler v. New York City Transit Authority, the Court dismissed a motion for leave to appeal for lack of finality holding, "The order denying the CPLR 4404 motion to set aside the verdict resolves the issues raised on the CPLR 4404 motion; it does not dispose of all of the issues in the action (see CPLR 5611). The final and appealable paper to this Court is the final judgment entered after the denial of the motion or an Appellate Division order resolving an appeal from that judgment (see Cuadrado v New York City Tr. Auth., 14 NY3d 748 [2010])."

Tuesday, June 8, 2010

Labor Law 241(6) and the State

In Morton v. State, the plaintiff was injured in a trench collapse on a State-owned road while working for a company which furnished water to portions of Nassau County. The employer failed to obtain a work permit from the Department of Transportation as mandated by Highway Law 52.  In a 5-2 decision, the Court of Appeals held that, like the cable company exception noted in Abbatiello, the State is not liable here under section 241(6) since there was no duty-creating nexus between the State and the plaintiff.  Since the employer had not secured a work permit, the plaintiff was deemed a “trespasser.”

Thursday, June 3, 2010

Cases Headed to the Court of Appeals

Matter of Miguel M. - whether, in a proceeding pursuant to Mental Hygiene Law § 9.60 for an order authorizing assisted outpatient treatment, a physician may obtain clinical records without the subject individual's authorization or without a court order under certain exceptions set forth in regulations promulgated under the Health Insurance Portability and Accountability Act of 1996

Ridge Road Fire Dist. v. Schiano - denial of disability benefits to a firefighter where there is a prior non-work-related injury

Seiferheld v. Kelly - whether the “suspension” or revocation of petitioner's disability benefits by the Police Pension Fund was without statutory authority, because it was not directed by the Board of Trustees

Court of Appeals Addresses Duty to Defend

In Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, the Court of Appeals addressed the obligation of an insurer to defend and indemnify an additional insured for potential liability arising out of the operations of the primary insured. The Court held “this case is factually distinct from Worth. Here, there was a connection between the accident and Regal’s work, as the injury was sustained by Regal’s own employee while he supervised and gave instructions to a subcontractor regarding work to be performed. That the underlying complaint alleges negligence on the part of URS and not Regal is of no consequence, as URS's potential liability for LeClair's injury ‘ar[ose] out of" Regal’s operation and, thus, URS is entitled to a defense and indemnification according to the terms of the CGL policy.”