Wednesday, August 4, 2010

Court of Appeals Watch

Leave to appeal to the Court of Appeals has been granted in the following cases:

Strangio v. Sevenson Environmental Services, Inc.: in this Labor Law § 240(1), the issue is whether plaintiff's injuries were directly caused by the application of the force of gravity when plaintiff was struck in the face by the handle of a hand-operated hoisting mechanism while raising a scaffold that descended unexpectedly.  The Supreme Court granted the motions of third-party plaintiffs and third-party defendant for summary judgment dismissing the Labor Law § 240(1) claim. The Appellate Division, Fourth Department affirmed, with two justices dissenting relying on the Court of Appeals recent decision in Runner v. New York Stock Exch. Inc., 13 N.Y.3d 599 (2010).

Doherty v. Merchants Mutual Ins. Co.: in this action against an insurer, the insured alleged that the insurer acted in bad faith by failing to settle an underlying personal injury action within the policy limits, thereby exposing the insured to personal liability. The Supreme Court granted the insurer’s motion for summary judgment and the Fourth Department affirmed. Two justices dissented finding that there was a question of fact as to whether the insurer’s investigation into the claim and the value of the claim was reasonable. (UPDATE: motion to dismiss the appeal was denied).   

Butler v. Stagecoach Group, PLC: in these consolidated actions, the plaintiffs are seeking damages for injuries or wrongful death resulting from the collision of a tractor-trailer parked on the shoulder of highway in New York and a chartered bus transporting a women's hockey team from Ontario, Canada.  At issue is (1) whether the courts below erred in determining that the law of Ontario, Canada applied as to noneconomic damages and (2) whether the Appellate Division erred in concluding that the Supreme Court did not abuse its discretion by taking judicial notice of Ontario law regarding noneconomic damages, despite defendants' failure to raise the applicability of such law as an affirmative defense and to provide the substance of the law in their pleadings pursuant to CPLR 3016(e).  The Fourth Department held that this case fell within the exception to the general rule that the law of the forum where the tort occurred should apply, because under the circumstances, “displacing the normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.” The Court also held that because CPLR 4511(b) permits a court to take judicial notice of laws of foreign countries that are presented prior to the presentation of evidence at trial, the court is not barred from considering them based on the requirement in CPLR 3016 that such laws be set out in the pleadings.

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