Friday, February 26, 2010

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.

Wednesday, February 24, 2010

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.

Friday, February 19, 2010

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.

Thursday, February 18, 2010

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.”

Wednesday, February 17, 2010

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?

Tuesday, February 16, 2010

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.

Thursday, February 11, 2010

Decisions of Interest For the Week

Here are some of this week's decisions of interest:

Court of Appeals
Gallagher v. New York Post - In this Labor Law 240 case, the issue as framed by the Appellate Division was whether a standing order that safety devices were available on site was sufficient to raise a question of fact to defeat a motion for summary judgment. The Court of Appeals, however, took a different approach instead focusing more on the fact the there was no evidence that the order was ever conveyed to the plaintiff. In doing so the Court further expounded on the meaning of Robinson and Montgomery, stating "Both cases stand for the same proposition. Liability under § 240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident."

Notably, the "chose not to do so" language has frequently been used to argue that a worker must, in essence, be "recalcitrant" before the sole proximate cause defense can be applied. Meaning, the worker must make a conscious decision not to use a safety device, rather than merely ignoring an earlier instruction at a tool box meeting that safety devices should be used. Gallagher undercuts that argument in future cases.

First Department
Bovis Lend Lease LMB Inc v. Garito Contracting, Inc. - motion for leave to appeal to the Court of Appeals granted. Matthew Lerner had a nice discussion about the case on his blog.

Acevado v. The Piano Building, LLC - motion for leave to appeal to the Court of Appeals granted. At issue is whether an apartment covered by the Loft Law may revert to rent stabilization after the landlord purchased the prior occupant's rights under Multiple Dwelling Law (MDL) § 286(12) in a pre-1974 building containing six or more residential units.

Dessasore v. New York City Housing Authority - reversing the jury's liability verdict on the basis that it was inconsistent even though the inconsistency was not raised until after the jury was discharged. Two justices dissented.

Legon v. Petaks - Two justices disssented on whether a metal stand that held wire shopping baskets for a store display was an inherently dangerous condition and an open and obvious danger as a matter of law.

Friday, February 5, 2010

Notable Second Department Decisions

In Troutman v. 957 Nassau Rd., LLC, the Court reversed and remanded for a new trial based on the trial court's error in dismissing a juror who had informed the court that she knew one of the witnesses who was going to testify, but would still be able to be fair.  The Court held that because there was no evidece the juror envinced any bias, the trial court should have denied the defendant's application to dismiss the juror and replace her with an alternate.   

In a case of first impression, the Second Department held in McCabe v. Dutchess County, that a child may not assert a claim against his foster parent for negligent supervision. 

Wednesday, February 3, 2010

Court of Appeals Creates Oral Argument Archive

From the New York State Court of Appeals website:
"The Court of Appeals has established a new video archive of oral arguments on its web site, an archive that will contain all cases heard since the beginning of this year. During future sessions of the Court, arguments heard each week will be added to the archive on the following Monday.

The Court has been recording oral arguments and making them available for public broadcast since 1987, and Albany Law School maintains an official archive of these recordings at its Government Law Center. The Court began webcasting arguments in certain high-profile appeals in 2002 and these recordings remain available through a separate link on the web site. The Court has provided live webcasts of all oral arguments since May 2009. The comprehensive webcast archive, allowing users to view arguments at their convenience, is meant to further enhance public access to proceedings before the Court. Click here to view the Archive"

Tuesday, February 2, 2010

To Defend Damages Or To Not Defend Damages?

Defendants face a real dilemma in addressing economic damages at trial. If defendants present such evidence, there is a fear that the jury will infer liability. The jury might believe that the defendant is concerned about damages and that this may be an admission that damages are due this injured plaintiff. On the other hand, if they fail to present evidence to show that plaintiff's damage claims are inflated, they take the risk that such inflated numbers will be reflected in the jury's award, and even worse, will be sustained on appeal. Today's First Department decision in Ulerio v. New York City Tr. Auth. highlights that problem.