Second Circuit Proposes New And Revised Local Rules

The Second Circuit has proposed a number of new and revised local rules for public comment.  Click here for a blacklined version.  The comment period ends October 27, 2010.

Another Example Of Med Mal Cases Getting Greater Scrutiny Before Trial

Granted the following case is in the context of a default by the plaintiff, but it does serve as an another example of an appellate court giving greater scrutiny to a plaintiff’s medical expert’s testimony then you might see post-trial.  In Siccoli v. Sasson, the plaintiffs failed to file a note of issue after an order directing them to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiffs failed to comply with that directive. The Second Department held that the order had the same effect as a valid 90-day notice pursuant to CPLR 3216, thus requiring the plaintiffs to provide a reasonable excuse for their default and demonstrate a potentially meritorious cause of action. The Court held that the plaintiffs’ medical expert’s affirmation was insufficient to demonstrate that the causes of action alleging medical malpractice and lack of informed consent were potentially meritorious because “the medical expert failed to establish that his opinions were grounded in facts appearing in the hospital or medical records.”

This next case does not break any new ground. We just thought it was an interesting story. In Singh v. North Shore Universty Hospital, “During jury deliberations in this wrongful death case, the parties entered into settlement discussions. Before the jury rendered a verdict, the parties entered into a stipulation of settlement on the record. The Supreme Court then discharged the jury. Apparently, when the exhibits available for the jury’s review were collected, it was discovered that the plaintiff’s attorney’s ‘typewritten summation notes,’ which were not in evidence, had been mixed in with the plaintiff’s decedent’s medical records, which were in evidence. Soon thereafter, the defendants moved to vacate the stipulation of settlement, and for a new trial.”

After concluding that the plaintiff’s attorney had intentionally included his notes with the medical records, the Court granted the defendants’ motion and vacated the settlement. The court also issued sanctions against the plaintiff’s attorney and directed that the matter be referred to the Grievance Committee. The Appellate Division, however, reversed finding, “The record does not establish that the defendants entered into the stipulation because they were aware that the plaintiff’s attorney’s typewritten summation notes had been made available to the jury.” If that conclusion is not entirely clear, you are not alone.

The Court also vacated and remanded the issue of sanctions for a hearing because the plaintiff’s attorney had not received prior notice that the Court was considering issuing sanctions.

Court of Appeals Watch

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

Wyckoff Heights Med. Ctr. v. Country-Wide Ins. Co.  - whether the hospital's submission of a completed hospital facility form (N.Y.S. Form N-F 5), within 45 days after services were rendered, was sufficient to satisfy the written notice requirement in 11 NYCRR 65-1.1.   

Gronski v. County of Monroe - whether owner of a recycling facility had a nondelgable duty for site safety and whether the owner did not exercise control because by agreement the plaintiff's employer was delegated all responsibility for maintenance and repair

New York Coalition for Quality Assurance v. MFY Legal Services - whether the plaintiff's proposed Guidelines for Visitor Access, which restricts or limits access to adult-care facilities, conflicts with state regulations controlling visitor access to such facilities    

Court of Appeals Names New Clerk

The Court of Appeals has announced that Andrew W. Klein will succeed Stuart Cohen as Clerk of the Court of Appeals when Mr. Cohen retires at the end of November.  For appellate practioners, Mr. Cohen's retirement comes on the heels of the retirement of Jim Pelzer and Sue Harkavy from the Appellate Division, Second Department.  All three have been mainstays of their courts and we wish them all the best in their retirement.    

Court of Appeals Grants Leave In Another Labor Law § 240(1) Case

On September 14th, the Court of Appeals granted leave to appeal in Avila v. Plaza Construction Corp.  In Avila, the plaintiff was standing on top of the rebar grid when he picked up a hose used in the pouring of concrete.  As he disconnected two sections of the hose, concrete inside of the section he was holding suddenly shifted, and one of the iron clamps recoiled and hit him in the head, causing him to lose his balance and fall down.  When the plaintiff fell, his body landed on the rebar, but his right leg fell approximately three feet down into one of the openings, and he fractured that leg.

The Second Department held that the defendants established their prima facie entitlement to judgment as a matter of law on the plaintiff's Labor Law § 240(1) claim because “the openings of the grid, which were clearly not of a dimension that would have permitted the plaintiff's body to fall through and land on the dirt floor below, did ‘not present an elevation-related hazard to which the protective devices enumerated’ [in Labor Law § 240(1)] are designed to apply. ’”  Since the plaintiff failed to raise a triable issue of fact, the Court reversed, thereby granting that branch of the defendants' motion for summary judgment on the Labor Law § 240(1) claim.  

This now marks the fifth Labor Law § 240(1) case that has been granted leave to appeal to the Court of Appeals since the beginning of July.  The other four cases are Salazar v. Novalex Contr. Corp.; Strangio v. Sevenson Environmental Services, Inc.; Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp.; and Ortiz v. Varsity Holdings.  Furthermore, the First Department has issued three recent 3-2 decisions on Labor Law § 240(1) (Ramirez v. Shoats; Makarius v. Port Authority of New York and New Jersey; Lombardo v. Park Tower Mgt. Ltd).

Its probably safe to say that maybe its time to take a step back and consider whether the current splitting hairs approach to deciding these cases is the best approach.  Should whether Labor Law § 240(1) applies really come down to whether the plaintiff fell from 18 inches or four feet?  While its good that many of these issues are coming to a head, and hopefully will be resolved, if Runner is any indication, the next pronouncement by the Court of Appeals might just add more fuel to the fire.

Why Can't We All Just Get Along -- More Dissents In AD1

In Ramirez v. Shoats, the plaintiff was injured leaving his construction site for a coffee break when corrugated decking on the stairs he was using, which had just been installed, gave way causing him to fall. A majority of the First Department found that a question of fact existed as to whether the permanent staircase was plaintiff's sole means of egress from the worksite. According to the majority, if the stairs were the sole means of egress, then they must be considered a safety device within the meaning of Labor Law 240(1).

In a two-judge dissent, Justice McGuire observed that the Court's prior holding in Ryan v. Morse Diesel, Inc. (98 AD2d 615 [1st Dept. 1983]), that a permanent staircase is not a safety device within the meaning of Labor Law 240(1), is consistent with decisions from the other three Appellate Departments. Justice McGuire further indicated that plaintiff was not using the staircase in place of a scaffold or other safety device, but was instead using the stairs as a passageway, which does not fall within the ambit of 240(1).

In yet another opinion with a dissent, Sweeney v. Riverbay Corporation, the plaintiff tripped and fell over a garden hose that had been stretched across a sidewalk for at least one-half hour. In reversing summary judgment to the defendant, the majority found that the hose constituted a tripping hazard and that a question of fact existed as to whether 30 minutes was sufficient to permit the defendant to discover the hose and remedy the condition.

In dissent, Justice Catterson stated his opinion that 30 minutes was not sufficient time for the defendant to have had constructive notice of an alleged condition on its 300-acre property.

This Week at the Court of Appeals

At the beginning of each week that the Court of Appeals hears oral arguments, we will do our best to preview for you the civil cases we are following that will be argued that week.  Full summaries of all cases can be found on the Court of Appeals website.  Here is the complete list for this week and a brief summary of the cases we are watching:

Tuesday, September 14, 2010

Geraci v. Probst - whether the original publisher of a libelous letter could be responsible for its subsequent publication in Newsday

Flemming v. Barnwell Nursing Home and Health Facilities, Inc. - whether a member of a class action who successfully raises objections to a settlement reached on behalf of the class can recover attorney's fees for bringing the objections

Kirschner v. KPMG LLP - the Second Circuit certified the following question to the Court, "would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation...?"  New York Civil Law has a further description of the case and issues involved.  

Wednesday, September 15, 2010

Gasques v. State of New York - accident occurred when Gasques's paint hose caught on something and his hand was crushed between the motor control and bridge as he reached for the motor and his partner continued to raise his end of the scaffold. The majority held that while the accident was tangentially related to effects of gravity, the accident was not caused by the limited type of elevation-related hazards encompassed by the statute. The dissent argued that the scaffold did not protect the plaintiff from the distinctly separate elevation hazard created by the need to untangle hose lines while suspended on a tilting platform.

Thursday, September 16, 2010

Cusumano v. City of New York - plaintiff claimed that he slipped on debris at the top of the stairs and was unable to grab the handrail to stop his fall because it was too close to the wall.  At issue is whether Administrative Code Secs. 27-127 and 27-128 (duty to maintain building in a safe condition) provide a sufficient basis to support the plaintiff's claim that the handrails did not provide proper finger clearance.

Labor Law Issues Divide First Department Bench

In Makarius v. Port Authority of New York and New Jersey, a majority in the First Department dismissed plaintiff's Labor Law 240(1) claim (Roman, Andrias and McGuire), while a different majority found that issues of fact existed with respect to plaintiff's Labor Law 200 claim (Roman, Moskowitz and Freedman). On the issue of 240(1), plaintiff was injured while standing on the ground when a transformer attached to the wall slightly above his head fell, striking him in the head. The majority found that 1) there was no appreciable height differential between plaintiff and the object to trigger the extraordinary protections of the Labor Law and 2) plaintiff's injury did not result from the absence of a safety device.

The decision of the Court of Appeals in Runner v NYSE (13 NY3d 566 [2009]) reared its head once again in the dissent by Justice Moskowitz (see blog of 8/31/10). According to Justice Moskowitz, since the injury here was gravity related it "fit squarely within the Runner criteria". Justice Moskowitz criticized the concurring opinion of Justice McGuire, stating that his interpretation of the statute was too narrow. Quoting Runner, Justice Moskowitz observed that "The breadth of the statute's [240(1)] protection has, however, been construed to be less wide than its text would indicate". Justice Moskowitz instead took an expansive view of the statute to find that the anchor bolts which secured the transformer to the wall were "safety devices" within the meaning of the Labor Law. Therefore, the failure of those devices, coupled with the effects of gravity on the transformer, triggered 240(1) liability.

Court of Appeals Watch for September 2, 2010

Court of Appeals decisions for September 2, 2010 are here.

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

Cragg v. Allstate Indem. Corp. - at issue is whether “an insurer is required to defend or indemnify its insureds for the wrongful death of an insured person.”  Plaintiff's decedent sustained fatal injuries when she drowned in a swimming pool located at the residence of her grandparents, where she resided with her mother. "The plaintiff's decedent and defendants were insured under a homeowners' insurance policy issued by Allstate to defendant grandparents. Allstate disclaimed coverage for defendants under the policy pursuant to the provision excluding coverage for 'bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person.'"  The Fourth Department held that the policy excludes coverage for bodily injury to an insured person.  For an additional discussion of the Fourth Department's decision you can take a look at Roy Mura's blog posting on Coverage Counsel in May.   

Doomes v. Best Transit - whether manufacturer of a bus could be liable for the failure to equip the passenger seats with seat belts.

Roddy v. Nederlander Producing Co. of Am., Inc. - on a prior appeal, Roddy v. Nederlander Producing Co. of Am., Inc. (44 AD3d 556 [2007] [Roddy I]), the First Department granted conditional summary judgment to the owner of a theater on its contractual indemnification claim against Abhann, the plaintiff's employer, finding that the owner established its prima facie case "by demonstrating, through deposition testimony and other evidence, that the fogger machines and floor that caused plaintiff's injury were under the exclusive control of Abhann, and that Abhann had directed every aspect of the work through which plaintiff was injured.”  At issue was whether that prior decision constituted “law of the case” as to the plaintiff who had an opportunity to participate as a respondent on the prior appeal and where the issue on appeal went to the merits.  The First Department held that it was and affirmed an order dismissing the complaint against the owner.  

Court of Appeals Watch

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

Shiamili v. Real Estate Group of N.Y., Inc. – whether plaintiff’s defamation action brought based on comments posted on an internet website were barred by the Federal Communications Decency Act of 1996 (CDA)

Matter of Birnbaum v. New York State Dept. of Labor - whether Civil Service Law § 72 applies when an employee is already on voluntary sick leave and wants to return to work

Congregation Rabbinical Coll. of Tartikov, Inc. v.Town of Ramapo - whether property used by a religious organization for a summer camp was tax exempt pursuant to Real Property Tax Law § 420-a (1)

Marraccini v. Ryan – issuance of a home improvement license

Court of Appeals Issues Decision in Scalding Bathwater Case

At issue in Simmons v. Sacchetti was whether the landlord could be held liable where an unattended infant was burned in a bathtub of scalding hot water. The First Department majority held “A landlord cannot be required to adjust the hot water temperature in order to protect children from adults who fail to do so.” Justice Acosta dissented stating (1) that evidence the water temperature 20 days after the incident exceeded the temperature known to instantly scald an infant’s skin and (2) that the building's hot water system did not have a temperature relief valve, in violation of New York City Building Code Reference Standard 16, P107.26(b), raised issues of fact as to whether the landlord violated its duty to maintain the premises is a reasonably safe condition. Judge Acosta also would have denied summary judgment as to the boiler contractor.

The Court of Appeals has modified finding that there is a question of fact as to whether the owner and management company negligently failed to maintain the apartment building's boiler and domestic hot water system in a reasonably safe condition and whether the negligence of those defendants proximately caused the infant plaintiff's injuries. The Court also found that there were issues of fact as to whether the plaintiff's negligence was a superseding cause of the child's injuries. Finally, the Court held, as a matter of law, that the boiler contractor did not violate any duty owed to plaintiffs.