Wednesday, March 31, 2010

Court of Appeals Update

For last week and yesterday's Court of Appeals' decisions click here.

Belated Notes

Here are a few notable cases that we missed last week:

Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp. - holding that the collapse of pipes standing on the floor, like the collapse of a wall, does not give rise to a Labor Law Sec. 240(1) claim

Latchuk v. Port Authority of N.Y. & N.J. - the First Department reversed an order which had granted summary judgment to the plaintiff under Labor Law sec. 240(1).  The Court held that there were issues of fact as to whether the plaintiff was the sole proximate cause of the accident. 

American Home Assur. Co. v. Nausch, Hogan & Murray, Inc. - insurance brokers and contracts for reinsurance


Tuesday, March 23, 2010

This Week's Civil Cases to Watch at the Court of Appeals

Monday, March 22nd
Zakrzewska v The New School - "the question in this federal lawsuit is whether an affirmative defense to employer liability, adopted by the U.S. Supreme Court for workplace harassment claims brought under Title VII of the Civil Rights Act of 1964, applies to sexual harassment and retaliation claims brought under the New York City Human Rights Law (NYCHRL)."

Tuesday, March 23rd
Hurrell-Harring v State of New York - "this action, filed as a proposed class action in 2007 by 20 plaintiffs who are or were represented by assigned counsel in criminal cases, seeks a declaration that New York's public defense system, which is primarily funded and administered by counties, fails to assure effective assistance of counsel for indigent criminal defendants as required by the State and Federal Constitutions. "

Adams v Genie Industries, Inc. - products liability action addressing (1) whether after a product affecting human safety has been sold and the manufacturer becomes aware of dangerous design defects, the manufacturer has a duty to remedy the defects or, if that is not feasible, provide adequate warnings to minimize the danger; and (2) whether New York law requires products liability plaintiffs to “show that a safer alternative design was actually available at the time of sale, and not merely that a safer design was theoretically feasible.”

Monday, March 22, 2010

Second Department Affirms Punitive Damages in Lead Paint Case

In Solis-Vicuna v. Notias, the plaintiff brought an action against the defendant owners of a building for brain injuries to her infant children caused by lead paint. The jury awarded one child $420,000 for future pain and suffering and the other child $380,000 for future pain and suffering. The jury did not award either of the infant plaintiffs damages for past pain and suffering. The jury also awarded the plaintiffs punitive damages in the sum of $260,000. On appeal, the defendants argued that the jury’s award for future pain and suffering was inconsistent with its decision to make no award for past pain and suffering. The defendants also challenged the jury’s punitive damages award.

The Appellate Division held that “where the plaintiffs presented evidence that the damages from lead poisoning were not immediately manifest but will worsen over time, the award of future damages, but no past damages, is not an indication that the jurors were confused or that there was a compromise verdict.” The Court also affirmed the award for punitive damages holding such an award was not unreasonable since the plaintiffs presented evidence demonstrating that the appellant had long been aware of the dangers of lead paint, including that it was harmful to young children; that the appellants knew young children lived in the apartment; that in 2001 the appellants twice received notice that they were required to abate the lead paint in the subject apartment before they began abatement work; and that the abatement they performed was inadequate.

Two Other Interesting Notes from Last Week’s Second Department Decisions

Astrada v. Archer provides an important appellate practice reminder. The court states, “An order which directs a judicial hearing to aid in the disposition of a motion is not appealable as of right because it does not decide the motion, and does not affect a substantial right."

Rosado v. Hartford - the Court held that the word “occupying” in a Supplementary Uninsured/Underinsured Motorist policy applied to a plaintiff who was struck by a box truck while standing outside of his delivery truck reaching with his hands into a side bay of the delivery truck to rearrange empty cases of beer.

Monday, March 15, 2010

Second Circuit Strikes Portions of New York's New Attorney Advertising Rules

New York's attorney advertising rules adopted in 2007 barred: (1) testimonials from clients relating to pending matters; portrayls of judges or fictitious law firms; (3) attention getting techniques unrelated to attorney competency; (4) trade names or nicknames that imply an ability to get results; and (5) established a 30-day moritorium for a trageted solicitation following a specific accident.  The plaintiffs challenged these rules as violating the First Amendment.  The District Court agreed, for the most part, except for the 30-day moritorium, which it upheld.  On March 12, 2010, in Alexander v. Cahill, the Second Circuit affirmed the district court's ruling on the 30-day mortorium and as to testimonials, portrayls of judges, attention getting techniques and trade names or nickmanes.  The Court, however, reversed with respect to fictious law firms holding that prohibition should stand. 

Saturday, March 6, 2010

Court of Appeals Watch

The First Department has granted leave to appeal to the Court of Appeals in Union Carbide Corp. v. Affiliated FM Insurance Co.  The case addresses whether, in the absence of express langauge so stating, the terms of each insured's multi-year excess umbrella policy limits liability annually because the terms of the underlying policy had annual limits. 

The Debate Continues

Mata v. Park Here Garage Corp. is the latest Labor Law 240(1) case to display the continued debate over proof related to sole proximate cause.  The wrinkle in this case was that the plaintiff was "self-employed" and a self-proclaimed specialist.  The majority found that the plaintiff's actions, were at most, contributory negligence, which cannot defeat a 240(1) claim.  The dissent found that the plaintiff's actions and background raised a question of fact as to whether he was provided with adequate safety devices and if he was the sole proximate cause of his injury.