New York Civil Law

Old New York Civil Law Poll About the Wikipedia

The old poll that I posted had surprising results.  The poll asked this question: Would you cite the Wikipedia for a non-legal point in a legal document such as a motion submission or appellate brief?

75% stated that he or she would not, and 25% stated that he or she would.  This might come as a surprise to you; there are over 100 reported cases in 2007 that cite to the Wikipedia.  Food for thought.

In any event, please vote in NYCL's new poll about the Court of Appeals.

New York Court of Appeals Clarifies Outar v. City of New York -- Labor Law sec. 240(1)

Does a falling object need to be in the process of being hoisted or secured to come within the ambit of Labor Law sec. 240(1)?  The New York Court of Appeals in Quattrocchi v. F.J. Sciame Contr. Co. clarified the point and reiterated its decision in Outar v. City of New York (see prior post).  In Quattrocchi, the plaintiff alleged that he was struck by falling planks that had been placed over open doors as a makeshift shelf to facilitate the installation of an air conditioner above a doorway.  

The Court of Appeals agreed with the Appellate Division, Second Department that it was not dispositive that the planks were not in the process of being hoisted or secured when the accident happened, citing Outar for the proposition.  The Appellate Division Majority and Dissenting Opinions are essential to understanding the Court of Appeals' decision (see decision here).

New York Court of Appeals Accepts Important Products Liability Certified Question

The New York Court of Appeals recently accepted the following certified questions in Jaramillo v.  Weyerhaeuser Co. & Tech. Licensing Assocs.:

Construing the evidence in the light most favorable to Jaramillo, is Weyerhaeuser Company a "regular seller" of used Flexo Folder Gluers such that it can be held strictly liable under New York law?

The issue is an important one because it will address what constitutes a "casual" or "occasional" seller of a product as opposed to an "ordinary" or "regular" seller.

New York Court of Appeals Will Address Labor Law sec. 240(1) Issue

This week, the New York Court of Appeals will hear oral arguments in Stringer v. Musacchia.  The issue in Stringer concerns whether the plaintiff's "work" falls within the protection of Labor Law sec. 240(1).  The facts of this case are important because it turns on whether the plaintiff was performing voluntarily services just before his accident.

The plaintiff was injured when he fell from a ladder while constructing a shed on the defendants' property. The plaintiff was a self-employed construction contractor.  He agreed to build the shed for his friend, the defendant, in return for his inclusion in a hunting trip organized by the defendant on the defendants' property.  The defendant friend organized hunting trips annually; most guests were expected to work on the property in the afternoon after hunting in the morning.

The defendant friend permitted the plaintiff to attend the hunting trip in exchange for his labor in building the shed.  The plaintiff conceded that he was not compensated for building the shed, that he did not expect to receive any remuneration, and that he paid his own travel expenses.

The Appellate Division, Third Department's Majority held that the "work" was not encompassed under the protections of Labor Law sec. 240(1).  The Majority reasoned that, despite the intangible benefit that the plaintiff might have enjoyed from participating in the hunt, because the plaintiff chose to volunteer his services, was under no obligation to complete the shed and knew that he would receive no monetary consideration, he was not an employee entitled to the protections of the Labor Law.

Justices Spain and Peters disagreed, stating, "Regardless of whether a worker such as [the] plaintiff was required to pay for the hunting event and was monetarily compensated for building the shed, or was charged to participate in the hunt and deemed to be thereafter paying off that debt incurred by erecting the shed . . .. or--as here-- a quid pro quo barter arrangement was entered in which no money was exchanged, the construction work such as performed by [the] plaintiff was not gratuitous; rather, it was substantially equivalent to acting as a general contractor to design, oversee and complete the building of a structure."

 

New York Court of Appeals Will Address New York's No-Prejudice Rule

The big news regarding New York insurance law this past summer was that Governor Paterson signed a Bill eviscerating New York's long-standing no-prejudice rule (see Bill here: Download No-Prejudice.doc).

The New York Court of Appeals heard oral arguments in Sorbara Constr. Corp. v. AIU Ins. Co. yesterday regarding applying the no-prejudice rule where the insured failed to give timely notice to an excess insurer.  In Sorbara, the plaintiff became aware of its employee's accident and his ensuing lawsuit almost immediately, but did not notify defendant excess insurer for some 5½ years, until after the defendants in the underlying matter had instituted a third-party action against it.  The Appellate Division, First Department held that the insured's "protracted delay" relieved the insurer from defending or indemnifying the insured. 

Notably, the First Department held that notice under a workers' compensation policy (by the same insurer) does not constitute notice under a liability insurance policy.  The Court also noted that the plaintiff's own duty to provide notice to the excess insurer is not negated by the insurer's actual knowledge acquired from another source.

New York Civil Law will keep you apprised when the decision is handed down. 

New York Court of Appeals Addresses Partial Indemnification Provisions

This week, the New York Court of Appeals will address a long-awaited question: whether General Obligations Law sec. 5-322.1 allows for partial indemnification provisions.  In the Judlau v. Brooks Contracting, Inc., the Appellate Division, Second Department held that the statute does not contemplate partial indemnification provisions.

Judlau concerned an ironworker that Thunderbird Constructors, Inc. employed.  The ironworker was injured while working on an overpass in Queens, New York.  Thunderbird was the subcontractor for the project.  The general contractor had installed a safety cable to mark the end of the partially-dismantled overpass to prevent falls.  The injured worker grabbed the safety cable with his hand, but it gave way.  The worker fell 25 feet to the parkway below.  The worker sued the general contractor, and Supreme Court awarded him summary judgment on liability.

The general contractor commenced a third-party action against the subcontractor for contractual indemnification.    Supreme Court dismissed the general contractor's indemnification claim against Thunderbird upon finding that the general contractor had been negligent and its negligence was "a substantial factor in causing the accident."  It said, "[T]he court determines that the installation by [the general contractor] of a safety cable was done in an ineffective and unsafe manner because it broke.  The degree of negligence the court is not determining, but [the general contractor] is negligent at least to some degree, 1 percent, 10 percent, 20 percent, and ... is an active tort feasor, active negligence."  The court declined to consider partial indemnification. The Second Department affirmed, ruling the general contractor's indemnification claim was properly dismissed because the general contractor itself was found to be negligent.

NYCL will keep you apprised of the decision, which will likely be handed down in October 2008.

Supreme Court, Saratoga County -- Map and Directions

Saratoga County Supreme Court Building

(Click on "A" on the map below to get driving directions from your location)

30 McMaster Street

Ballston Spa, New York 12020(518) 885-2224

Webpage

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Follow-Up on the New York Court of Appeals' Orals Arguments Regarding Tyco International Ltd.

As stated stated in this post, the New York Court of Appeals heard oral arguments in People v. Dennis Kozlowski and People v. Mark H. Swartz.-- the two imprisoned executives of Bermuda-based Tyco International Ltd.  Here are some articles regarding the oral argument:

This article in Business Week and this article in Reuters.com.

The New York Court of Appeals Revisits Timing for Summary Judgment Motion

Practitioners often grumble about the New York Court of Appeals' holding in Brill v. City of New York -- i.e., the outside time limit for a summary judgment motion is 120 days after the filing of the note of issue, unless good cause is shown for the delay.  During the first Session of the Court's new Term, the Court will revisit what constitutes "good cause" under CPLR 3212.

The Court will hear oral arguments in Crawford v. Liz Claiborne, Inc. during its September Term.  In Crawford, the parties entered into a scheduling order in New York County.  The outside deadline to file summary judgment motions was pursuant to the local rules.  The local rules provide that movants have an outside deadline of 60 days after the filing of the note of issue, rather than the 120-day deadline.

The defendant unfortunately overlooked the local rules and, upon realizing the oversight, served and filed its summary judgment motion a few days after the 60-day deadline.  The trial court considered the motion, even though the motion was beyond the 60-day deadline, and dismissed the complaint.  The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute "good cause" under Brill and CPLR 3212.  Justice Tom and Williams dissented.

The Court of Appeals will address whether this type of oversight constitutes "good cause."  New York Civil Law will keep you apprised of the Court's holding, which should be handed down in October.

New York Court of Appeals Webcast - Tyco International Ltd.

The New York Court of Appeals will webcast the appeals of the two imprisoned executives of Bermuda-based Tyco International Ltd.  See the webcast here for People v. Dennis Kozlowski and People v. Mark H. Swartz.

You will need to download Windows Media Player to view it.