Court of Appeals Watch

The Court of Appeals has granted leave in the following cases:

Bleecker Street Tenants Corp. v. Bleeker Jones LLC: in a bad law school flashback this case involves the rule of perpetuties, in particular, whether the exception to the prohibition against remote vesting of options appurtenant to a lease is applicable to the renewal option clause contained in the parties' lease. 

DaCruz v. Towmasters of New Jersey: whether a prior determination made in a related case in the United States District Court is law of the case and binding on the Appellate Division.  The case also involves the relation back doctrine.   

Rivera v. Kleinman: where the plaintiff claimed that orthopedic hardware inserted during hip surgery began to protrude over a year later causing him pain, whether his failure to have the hardware removed was a superseding cause of his injury.

First Department Finds That Collapse of a Wall is Not A LL 240(1) Violation

In Kaminski v. 53rd St. & Madison Tower Development, the plaintiff was injured when a wall that was being demolished by a co-worker fell and struck the plaintiff, causing him to fall down stairs. In affirming the dismissal of plaintiffs Labor Law 240(1) claim, the Court held that a collapsing wall was not the type of activity that 240(1) was intended to protect against and "being struck by an object loosened by vibration is merely a hazard incidental to the workplace." However, the Court reinstated plaintiff's 241(6) claim upon finding that questions of fact existed as to whether the defendants violated Industrial Code 23-3.3(b)(2) pertaining to falling masonry that may undermine the structrual stability of the floor upon which it landed. The question was whether the falling wall damaged the floor and staircase. Interestingly, there is no discussion of how damage to the floor or staircase could have proximately caused plaintiff's injury, since plaintiff claimed that he was injured when he was struck directly by the wall itself.

Second Department Affirms Summary Judgment for Defendants in Med Mal Action

In Ellis v. Eng, the Second Department affirmed orders granting summary judgment to the defendant doctors where the plaintiff claimed that the defendants failed to recommend that the decedent receive adjuvant therapy to treat cancer; failed to obtain the decedent's informed consent to forego such therapy; failed to refer the decedent to an oncologist for follow-up care; and failed to properly monitor the decedent for the recurrence of cancer.  The case touches on a number of topics including (1) the reliance on medical guidelines within the context of motions for summary judgment, (2) the proper function of a Frye hearing, (3) the requirement that the plaintiff have undergone some treatment, rather than forgone treatment, to assert a lack of informed consent claim; and (4) the duty of a referring physician.

First Department Decision Of Note

Tselebis v. Ryder Truck Rental - First Department reversed and granted summary judgment to the plaintiff on liability even though there were questions of fact as to the plaintiff’s negligence. The Court held that despite cases suggesting otherwise freedom from comparative negligence is not a required component of a plaintiff's prima facie showing on a motion for summary judgment. The case has been remanded for a trial on damages “to encompass the issues of plaintiff's culpable conduct and the extent to which his recovery diminished in proportion thereto.”

Today's Court of Appeals Highlights

Notable Civil Decision

Wadler v. City of New York - holding that “the ‘firefighter rule,’ which bars common-law negligence recovery by firefighters and police officers for injuries that result from risks associated with their employment, requires dismissal of this case, in which a police officer was injured by the negligent operation of a security device.” In doing so the Court recognized that its prior decision in Zanghi “has not proved easy to apply." The Court held that whether the officer was on duty is not the issue, it is the nature of the risk that is dispositive. “The cause of the injury to plaintiff here - a high-security device protecting the police headquarters parking lot - was plainly a risk ‘associated with the particular dangers inherent’ in police work. Ordinary civilians may encounter such devices, but police officers, whose duties may include working in secure areas that are at risk of a terrorist attack, are far more likely to do so. An act taken in furtherance of a specific police function - entry into a protected parking lot, which only plaintiff's police credentials allowed him to enter - exposed plaintiff to the risk of this injury.”

Court of Appeals Grants Leave

Kaufman v. Quickway, Inc. - whether a convenience store clerk’s statement to police officer regarding customer’s appearance of intoxication when she sold him beer was admissible in action against store under hearsay exception for admissions attributable to party or as a prior inconsistent written statement.

Review of the Lippman Court's First Year

The New York Times today has an article reviewing the first year of the Lippman Court. Of particular note, is that “unanimous rulings declined from about 82 percent during 2008, Judge Kaye’s final year, to 69 percent in Judge Lippman’s first year.”

Tomorrow's Civil Cases At The Court of Appeals

Teodorescu v. Resnick & Binder, P.C. - In this legal malpractice action, the Court will address whether the plaintiff presented sufficient evidence to raise an issue of fact as to whether the Housing Authority could have been found liable on a theory that it had constructive notice of an icy condition on a sidewalk.

Ashland Management Incorporated v. Altair Investments NA, LLC - whether an employer-employee confidentiality agreement that does not have a time limit is unreasonable as a matter of law and unenforceable?

Court of Appeals Watch

The Court of Appeals has granted leave in Matter of Meegan v. Brown involving whether, after lifting of wage freeze, city employees were contractually entitled to an increase in salary and wages commensurate with the continued accrual of service credit during the freeze.