New York Civil Law

Appellate Division, Fourth Department Addresses Novel Issue Concerning Anti-Subrogation Rule

In Phoenix Ins. Co. v. Stamell, the Appellate Division, Fourth Department addressed a novel issue regarding whether a student living in a residence hall is considered a co-insured under her dormitory residence hall's fire insurance policy.  The Fourth Department held that the student was not an express or implied co-insured under the policy, thereby allowing the dormitory's insurer to successfully pursue a subrogation action against the student.  The student did not deny that she had negligently fallen asleep while leaving a candle burning in her dorm room; her negligence caused extensive fire damage to her room and other rooms.

Thank you to my colleague Dan Gerber for bringing this case to my attention.

Pink Floyd Reunites for Live 8

I'm breaking one of my rules about this blawg to post about this incredible news: Pink Floyd is reuniting to perform at the Live 8 concert in London.  Here is the breaking news concerning one of my all-time favorite bands: see this article at CNN.com, this article at BBC News, this article in Billboard.com, and this article at New Music Express.

More New York-law related news tomorrow.

New York Court of Appeals Hands Down Enigmatic Labor Law sec. 240(1) Decision

The New York Court of Appeals on Thursday handed down its memorandum decision in Outar v. City of New York.  The terse memorandum -- the unfortunate result of the Court's sua sponte merits process -- does not reveal the complexities of this case. 

Since the underlying Appellate Division, Second Department decision is not online, I offer this brief factual recitation:

The injured plaintiff, a track worker for the New York City Transit Authority, allegedly was injured while working on subway tracks. He was lifting pieces of track and replacing them when an unsecured dolly, which was used in his work and stored on top of a "bench wall" that was 5 1/2 feet high and adjacent to the worksite, fell and hit him.   The plaintiff alleged that he was injured when the unsecured dolly fell from the top of the bench wall while he was engaged in replacing pieces of the tracks, and the defendant did not assert that the dolly was secured prior to the accident.

The Court held that the height differential of 5 1/2 feet was sufficient for the incident to fall within the ambit of Labor Law sec. 240(1).  Juxtapose this height differential from the 5-foot height differential off of a flatbed truck in Marvin v. Korean Air, Inc.

Thank you Michael Hutter for bringing this case to my attention.

Upcoming Free Blog Presentation in Buffalo, New York

I will be giving a free blog presentation on June 22, 2005 as part of the Supreme Court Library at Buffalo "Lunch-Hour Series." (see flyer Download library_series_20050601093502.pdf ).   This presentation will obviously take place in Buffalo, New York.  I will provide a brief overview of what are blogs, how to read them, and how to use news aggregators.  I would love to see you there.

If you have any questions about the presentation, please feel free to email me.

I will try to post the PowerPoint presentation and handouts for those whom cannot attend.

Depends on Which Building You Fell Off! - Recent Labor Law Decision

The holding in Billman v. CLF Mgmt. literally depended on which building the plaintiff fell off. 

The injured plaintiff worked on two buildings -- the CLF building and the Anjo building -- on the same day, but fell off the CLF building's roof upon trying to reach a ladder.   Anjo and CLF shared common owners and principals, but the two entities were distinct corporations.  As such, the Court held that Anjo was not an entity which had an interest in the property and which fulfilled the role of owner by contracting to have work performed on the CLF building for its benefit, even though the work performed on both buildings was arranged for at the same time by the same principals of both corporations.  The Appellate Division, Second Department held that the trial court had incorrectly determined that Anjo constituted an "owner" under Labor Law secs. 240(1) and 241(6).

Relatively New Blog on Disability Law

Troy Rosasco at Turley, Redmond & Rosasco, L.L.P. has been posting on the firm's blawg The Disabled Law Blog for the past several months.  The attractive layout courtesy of lexBlog also contains helpful information on this specific area of law.  The blawg is a welcomed edition to New York blawgers.

New York Court of Appeals Today Accepts Five Certified Questions on Permissive User Statute

The New York Court of Appeals accepted five certified questions in Country Wide Ins. Co. v. National Railroad Passenger Corp. concerning New York's permissive user statute under New York's Vehicle and Traffic Law sec. 388(1).  .  Although I posted the questions here when the United States Court of Appeals for the Second Circuit certified the questions, I am posting the questions again in this post:

(1) Whether, under New York law, uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission are sufficient to warrant a court in awarding summary judgment to the owner;

(2) If the answer is “no,” whether additional circumstantial evidence such as the contemporaneous accident reports submitted by the owner here may tip the balance and warrant a court in awarding summary judgment despite the interested nature of the sources;

(3) Assuming arguendo that summary judgment could not be awarded under either scenario, whether the uncontradicted testimony of driver and owner that the the driver was operating the vehicle without permission, even if not sufficient to warrant summary judgment, is sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on plaintiff to prove permissive use at trial;

(4) Whether, even if the uncontradicted testimony of driver and owner that the use of the vehicle was without permission is not by itself enough to rebut the presumption of permissive use, the addition of such further evidence as contemporaneous accident reports by the owner is sufficient to do so, with the result that at trial the burden of proving permissive use will rest on the plaintiff; and

(5) Whether the answer to any of the above questions is affected by the absence of evidence that Amtrak reported the unauthorized use of its vehicle to any law enforcement agency.

Appellate Division, First Department Touches Upon Settlement-Privilege Evidentiary Rule in Insurance Context

Am. Re-Ins. Co. v. United States Fid. & Guaranty Co. is a recent, short decision from the Appellate Division, First Department that offers a useful and interesting evidentiary holding.  The Court affirmed the trial court order denying vacatur of a special referee's order for the defendants to produce certain material to the plaintiff reinsurer.  The disputed documents related to settlement negotiations in the underlying action, but the Court agreed that since the plaintiff reinsurer was not using the documents to prove the defendant's liability it did not enjoy the settlement privilege set forth under CPLR 4547.

Hearken back to your law school days and remember why certain out-of-court statements can be used for purposes other than the matter asserted -- i.e., notice   -- and, by analogy, the Court's reasoning in not applying the settlement-privilege makes sense.

More on New York Court of Appeals' Certified Question on Attorneys' Fees

While reading Appellate Law & Practice, I learned that the United States Circuit Court of Appeals for the Second Circuit has rendered a decision in McGrath v. Toys "R" Us.  The New York Court of Appeals answered a certified question from the Second Circuit in November 2004, stating that counsel fee awards under the New York City Human Rights Law are subject to the Farrar v. Hobby analysis.