New York Civil Law

Appellate Division, Second Department Affirms Rejection of Creative Rear-End Defense

In Carrington-White v. Malvey, the Appellate Division, Second Department recently affirmed  the plaintiff's summary judgment motion on liability.  The matter concerned a rear-end accident, where the defendant struck a cement barrier, causing her vehicle to strike the plaintiff's vehicle.  In opposition to the plaintiff's summary judgment on liability, the defendant contended that she must have been struck from behind by an unidentified vehicle immediately before striking the plaintiff.  The Second Department agreed with the trial court that the defendant's contention was pure speculation and failed to raise a triable issue of fact.

Appellate Division, First Department Addresses Confidential Settlement Agreement Issue

The Appellate Division, First Department in Osowski v. AMEC Constr. Mgt., Inc. addressed a confidential settlement agreement between the plaintiffs and the defendants.  The plaintiffs and defendants entered into a settlement agreement to perform an end-run around a contractual waiver of subrogation contained in an Owner Controlled Insurance Program.  The opinion concerns issues surrounding the disclosure of confidential settlement agreements and the importance of forthrightness where the court orders disclosure.

New York Court of Appeals' Hears Oral Argument on Scaffold Law This Session

New York Civil Law posted about Affri v. Basch earlier this year.  The appeal will be argued this Session.  The Appellate Division decision does not reveal much as to what the novel issue concerns.  As what can be discerned from the terse Appellate Division decision, the issue surrounds the homeowner's exception to Labor Law sec. 240(1).  Affri seems to concern whether the homeowners' aesthetic decisions and general supervisory work regarding the project precluded them from enjoying the homeowner's exception.  When the Court's argument summaries are released, I'll write more about this appeal.

New York Court of Appeals' October Session Starts Next Tuesday

The New York Court of Appeals' October 2009 Session starts next Tuesday, October 13, 2009.  Here is the schedule of oral arguments for the Session.

Appellate Division, Second Department Dismisses Appeal Based on Inadequate Record

Let the recent decision in Civil v. Tae Hwa Sim serve as a warning.  In this appeal, the Appellate Division, Second Department dismissed the appeal based on an inadequate record on appeal.  The appellant based its motion to intervene, in large part, on an arbitration decision that was submitted to Supreme Court as an exhibit to the appellant's motion papers and the plaintiff's opposition papers.  The appellant failed to included the arbitration decision in the record on appeal.

Anecdotal Tip for Appellate Division, First Department Practice

What happens when you argue an appeal where there is a different attorney listed on the brief?  In some appellate courts, you just alert one of the clerks of the substitution or change.  However, I experienced something at the Appellate Division, First Department this past week.

If the attorney listed on the appellate brief will be different than the one who is going to appear at oral argument, send six labels with the new attorney's name clearly printed on it to the Clerks' office at least a week in advance.  This will save any confusion when you arrive at oral argument; the Court will likely appreciate the advance notice.

Decision on "Additional Insured" Coverage Will Reach New York Court of Appeals

The New York Court of Appeals in Worth Constr. Co. v. Admiral Ins. Inc. interpreted an additional insured endorsement of a commercial general liability insurance policy.  The issue concerned the provision providing that the additional insured was insured only regarding liability arising out of the insured's (subcontractor's) work.  In Worth, the injured worker fell on a stairway that the insured subcontractor had constructed.  However, the general contractor ultimately conceded that the insured was not negligent as to the worker's accident.  As such, the Court of Appeals held that the general contractor did not have coverage under the subcontractor's insurance policy as an additional insured because the injured worker's accident occurred at the situs of the subcontractor's work but was not due to any negligence on the subcontractor's part -- i.e., the liability did not arise out of the insured's work.

The Appellate Division, First Department recently addressed a gloss on Worth in Bovis Lend Lease LMB v. Garito Constr. Inc.  In that case, the injured worker's accident occurred at the situs of the insured subcontractor's work.  A jury found the general contractor and insured subcontractor negligence, but did not find that the subcontractor's work was the proximate cause of the accident.  

The Majority held that the jury's finding that the insured subcontractor was not the proximate cause of the accident was analogous to the general contractor's concession in Worth that the insured subcontractor was not negligent.  Therefore, the First Department held that the general contractor was not entitled to coverage as a general contractor.  The Dissenting Justices disagreed and held that coverage should have been afforded to the general contractor.

Because two Justices dissented on the same issue of law, and the declaratory judgment action is final, the Court of Appeals will hear the appeal.  New York Civil Law will keep you apprised of the results. 

New York Court of Appeals Will Hear Oral Arguments on The Scope of Expert Witness Testimony

On September 10, 2009, the New York Court of Appeals will hear oral arguments in Salm v. Moses.  The underlying Appellate Division, First Department doesn't have much to it.  The appeal addresses whether the trial court properly limited the cross-examination the defendant's expert by precluding inquiry into the fact that he and the defendant were insureds and shareholders in the same dental malpractice insurance company.  The Court of Appeals will likely address the standard that the First Department applied -- i.e., whether the trial court "achieved a fair balance between the plaintiff['s] right to attack the expert witness's credibility and the prejudicial effect of introducing the fact of [the defendant]'s insurance coverage".

New York Civil Law will keep you apprised on the decision.

New York Court of Appeals Determines Case Regarding Foundation of Expert Opinion

Butler v. City of Gloversville provides another case in which an expert did not support his conclusion with a proper foundation.  The New York Court of Appeals concluded that the defendant's expert did not support his conclusion that the plaintiff would have been injured even if other ground covering on the subject playground was present.

Since New York is a Frye state, I wish that there were more detailed decisions on the threshold Frye instead of the foundation issue.

New York Court of Appeals Hears Oral Argument on Important No-Fault Issues

On February 11, 2009, the New York Court of Appeals heard oral arguments in LMK Psychological Servs. v. State Farm Mut. Auto. Ins. Co., addressing two important issues regarding New York's No-Fault Law.  I attended the oral argument; however, I wasn't as industrious as our friend Dave Gottlieb over at No-Fault Paradise.  Dave provides this play-by-play of the oral argument.