New York Civil Law

New York County Bar Association's Ethics Opinion on Metadata

The New York County Lawyers'  Association issued this ethics opinion on mining an adversary's responding documents in discovery for metadata (see opinion).  Here's a press release on the opinion.  The New York State Bar Association issued an opinion on the same subject several years ago (see opinion).

I agree with the view that an adversary should not mine a document for metadata; I compare it to the disclosing party inadvertently handing over a privileged document.  If it's obvious that the disclosure is inadvertent, professional courtesy (especially in today's practice of large volume of e-mails and faxes) and ethical considerations warrant returning the privilege document (and ceasing analyzing the document once the inadvertent disclosure becomes clear).

Hat Tip to Sui Generis and Legalethics.com.

New York Court of Appeals Recent Decision on Personal Jurisdiction

In Fischbarg v. Doucet, the New York Court of Appeals augments its case law interpreting what constitutes the transaction of business in New York under CPLR 302(a)(1) for purposes of this state's long-arm jurisdiction statute.  The crux of the decision is that courts should look to the quality of an out-of-state party's contacts with New York, not the quantity, in determining whether the party's activities justify a New York court's juridiction over that party.  Also, the Court dispels the myth that an out-of-state party cannot be hauled into New York courts where it has not physically entered the state.

The appeal concerns a dispute over fees between the plaintiff (a New York attorney who performed all his work in the underlying matter in New York) and the defendants (a California individual and corporation).  The defendants retained the New York attorney through a telephone call and subsequent letter, and frequently communicated with the attorney through email and telephone conversations. The dispute transpired entirely in Oregon.

The Court held that the defendants' actions in seeking out this New York attorney and engaging in frequent telephone conversations was of a quality that constituted transacting business under New York's long-arm statute.

Fischbarg provides one more example to flesh out the boundaries of CPLR 302(a)(1).

Supreme Court, Queens County Orders In Camera Inspection of Driver's Cell Phone Records in Motor Vehicle Accident

As many lecturers will tell you, the proliferation of electronically stored information makes its impact on litigation inevitable.  The recent case of Morano v. Slattery Skanska, Inc. out of Supreme Court, Queens County is a good example.

The injured plaintiff was driving a motorcycle and saw a motor vehicle stopped on the side of the road.  He thought the person was broken down and calling for help on her cell phone.  He stated in an affidavit in support of a subpoena for the driver's cell phone records that he saw the driver "with an object in her hand held to her head."  The defendant moved to quash the subpoena for the records, citing privacy issues.

Justice Ritholtz denied the motion to quash the subpoena, ordering an in camera review to determine what calls, if any, should be discoverable by the accident victim.  Notably, Justice Ritholtz observed that the justification for allowing the injured plaintiff to even gain the benefit of obtaining any part of the cell phone records was his statement that he saw the defendant holding something to her head that looked like a cell phone just before the accident happened.  Justice Ritholtz indicated in the decision that a party would not be able to discover such records without some indication that a cell phone was a possible factor in the accident.

A Divisive Decision -- Arons v. Jutkowitz & Kish v. Graham -- Which Side Are You On?

Most of you have already trudged through the New York Court of Appeals' 32-page decision in Arons v. Jutkowitz and Kish v. Graham.  For those who didn't, the Court held that defense counsel may conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  A plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  The defense attorney need not hand over to the plaintiff's attorney notes, memoranda or recordings of the informal interview; the treating physician is not compelled to cooperate.  Judge Pigott dissented, arguing that Article 31 of the CPLR does not provide for this type of discovery and its silence on the matter indicates that the Legislature did not authorize it.

Numerous bloggers have weighed in on this case:  this post at New York Personal Injury Law Blog (with comments), this post at A Buffalo Lawyer, this post at Outside Counsel, this post at HealthBlawg, and this post at Drug and Device Law.

I'm trying to shed my "defense attorney mind-frame," but I just don't see how the absence of a provision in the CPLR reflects that such ex-parte interviews are disallowed (a la Judge Pigott's reasoning in his dissent).  Informal discovery devices exist that both parties use to gain information, most of which are not set forth in the CPLR.  What's the justification for precluding this discovery device where the plaintiff has already put his or her physical or mental condition at issue (especially where the physician can refuse to cooperate and can testify at trial about what the defense counsel asked)? 

I'd really value your opinion and encourage your comments.

Further Chipping Away at Graham v. Dunkley

As New York Civil Law has written in the past, the decision in Graham v. Dunkley -- which held that the Transportation Equity Act of 2005 was unconstitutional -- has been consistently called into question (see prior post here).  Yet another recent case has upheld the Act as constitutional --   Traitouros v. Goldstein here Download Traitouros.pdf .  In Traitouros, the injured plaintiff was a pedestrian who was allegedly hit by an automobile leased by Defendant Hoffman, LaRoche and the LaRoche Group from Wheels, Inc.  The lessors moved to dismiss Plaintiffs' claims based on the Act. 

Justice Anthony Parga of Supreme Court, Nassau County rejected Plaintiffs' argument that the Act was unconstitutional.  Justice Parga acknowledged Graham v. Dunkley and noted that he did not share its view.  Justice Parga concluded that the Graves Amendment (the Act) was constitutional, citing the Second Department's decision in Kuryla v. Halabi.

As far as I know, the appeal in Graham is still pending at the Second Department.  From its past decisions, we don't need a fortune teller to tell us what the Second Department will do with Graham.  However, we'll all have to wait to see if the appeal makes it to the Court of Appeals and, if it does, how the Court will hold.

Article on No-Fault and Notice to Admit

One of the most under-utilized discovery devices is the notice to admit.  During this past summer David Barshay and Dave Gottlieb (of No-Fault Paradise) wrote this excellent article (Download notice_to_admit.doc)  on the Notice to Admit in the No-Fault context.

Amendment to CPLR Concerning Cross Motions

Chapter 185 of the Laws of 2007 (Download STATUS.doc ) amends the CPLR regarding motion practice.   Under the old rule, a party could cross move and serve it on the third day before the motion date.  Some practitioners gave their adversaries earlier notice as a professional courtesy, but others used this extremely short deadline as a point of strategy.

Under the practice now, if the movant gives 16 days notice (where service is in person; 21 by mail), the movant can require the opposing parties to serve a cross motion at least 7 days before the return date.  See CPLR 2215 (Download rule_2215.doc )

Here's the tweak: the cross movant only gets 3 days added on to the 7 for mailing.   BE CAREFUL: This provision does not apply the 5-day mailing add on for cross motions that we are used to for regular motions.  If the cross movant uses overnight delivery, the cross movant gets the usual 1 day add on.

Is a High/Low Agreement a Settlement? Appellate Division, Second Department Says So

In Cunha v. Shapiro, the Appellate Division, Second Department recently addressed two open issues: (1) is a high/low agreement considered a settlement; and (2) if so, does the high/low agreement trigger CPLR 5003-a?  The Second Department answered in the affirmative on both issues. 

Jurisdictional Tidbits in Recent New York Court of Appeals' Decision

As reported in this prior post, the case of Pavlou v. City of New York raises some extremely interesting issues.  The seriously injured plaintiff commenced an action against the City of New York (the site's owner) under, among other statutes, Labor Law sec. 241(6) for violation of the specific State Industrial Code concerning maximum weight loads for cranes.  The City, in turn, commenced an action against the plaintiff's employer for contribution and indemnity based on its negligent maintenance of the crane; allegations existed that the crane had a crack in it before the accident.

The Majority and Dissenting opinions of the Appellate Division, First Department grapple with the jury verdict in which the jury found that the City's violation of the Labor Law was not a substantial cause of the accident but asserted 99% liability against the employer (a third-party plaintiff), even though the jury asserted no liability against the direct parties.

The New York Court of Appeals' held that the First Department did not abuse its discretion of reversing the trial court's order granting a new trial.  The first procedural tidbit is that the Court's review power over the certified question was restricted to whether the First Department abused its discretion in reversing the trial court's grant of a new trial.  Because the trial court granted a new trial based on its discretion and in the "interest of discretion," and the First Department reversed essentially in the interest of justice (even though it stated it did so on the law), the Court's review power is restricted to whether the First Department abused its discretion (the explanation of reviewability is best understood by reading Levo v.Greenwald, 66 NY2d 962, 963 (1985).

An additional jurisdiction point is that the Court could not review a prior nonfinal order, even if it necessarily affected the First Department Decision and Order below.  The appeal came up to the Court as a certified non-final question and, therefore, the Court did not have jurisdiction to review the prior nonfinal order (the best explanation for this conclusion is reading CPLR 5501(a)(1) ).

Should You Object During Summations

I haven't seen a lot of decisions like the Appellate Division, First Department's decision in Binder v. Miller.  The case concerned a dental malpractice action, and during summations the plaintiff's attorney called the defendant's expert witness a litigation witness.  The defendant's attorney preserved the objection for appellate review but was restricted from objecting during the summation of the plaintiff's attorney.   The Court held that the remark was better left unsaid but did not warrant a new trial.

The takeaway point of the case is that the Court reminded the Supreme Court Justice that directing counsel that "there is to be no objecting in the middle of summations," is inappropriate.

Attorneys have their own rules about objecting during openings and closings (always with an eye toward not looking obstructive in front of the jury).  This case provides a good lesson for attorneys to keep their wits about them when a judge does something that warrants appellate review, making sure to do something to preserve the issue for appellate review.