New York Civil Law

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.

New York Chief Judge Jonathan Lippman Takes the Center Seat on the New York Court of Appeals

On February 11, 2009, the New York Senate confirmed Governor Paterson's appointment of Chief Judge Jonathan Lippman of the New York Court of Appeals.  Chief Judge Lippman sat for argument yesterday for his first day, and the Court's decisions reflected his presence on the Bench.

Here are some articles about the confirmation: this article in the New York Times, this article in the Albany Times Union, and here in the Legislative Gazette.com.

New York Court of Appeals Hears Oral Argument on Certified Questions Concerning Products Liability

Next week, the New York Court of Appeals will hear oral argument in Jaramillo v. Weyerhaeuser.  Jaramillo concerns a certified question from the United States Court of Appeals for the Second Circuit concerning whether an entity that sold a used machine can be considered a "regular seller" to be held strictly liable under New York product liability jurisprudence.

NYCL will keep you apprised of the decision that will likely be handed down next month.

Disclosure: The firm for which I work is involved in this litigation.

Appellate Division, Third Department Grants New Trial Regarding Ex Parte Communications With Plaintiff's Treating Physician

The New York Court of Appeals recently held in Arons v. Jutkowitz that a plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  This ruling allows defense counsel to conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  

What happens when defense counsel conducts an ex parte interview but does not seek HIPAA-compliant authorizations?

The Appellate Division, Third Department in Straub v. Yalamanchili recently affirmed a trial court's granting of the plaintiff's motion to set aside a jury verdict based on defense counsel's two ex parte interviews with the plaintiff's treating physicians without obtaining the plaintiff's authorization under HIPAA.  Notably, the motion to set aside the verdict was based on the interests of justice.  The Court noted that defense counsel, through the ex parte interviews, was able to obtain information that came as a complete surprise to the plaintiff's counsel and that plaintiff's counsel was unable to rebut.

New York Court of Appeals Grants Leave to Appeal on Scaffold Law Issuest

Last week, the New York Court of Appeals granted leave to appeal in Affri v. Basch.  As what can be discerned from the terse Appellate Division decision, the issue surrounds the homeowner's exception to Labor Law sec. 240(1).  The exception protects owners of one- or two-family homeowners from sec. 240(1) who contract but do not direct or control the work giving rise to a gravity-related injury.

Affri seems to concern whether the homeowners' aesthetic decisions and general supervisory work regarding the project precluded them from enjoying the homeowner's exception.

New York Civil Law will keep you apprised as this appeal develops.

Reports State New York State Governor Will Nominate Justice Jonathan Lippman Tomorrow

Certain news resources are reporting that New York Governor David Paterson will nominate Justice Jonathan Lippman as New York's new Chief Judge of the New York Court of Appeals.  This is the first time since 1897 that a chief judge has ascended to this position without already sitting on the Court.

Here is an article from the New York Law Journal; one from Bloomberg.com; and one from the New York Times.

New York Court of Appeals Recently Addresses Cigarette Liability

There have been waves of litigation against cigarette manufacturers.  One of the newest waves concerns an argument plaintiffs have recently presented -- "regular" cigarettes are defective as compared to "light" cigarettes because "light" cigarettes have less tar and a lower amount of nicotine.

The New York Court of Appeals recently rejected that argument in Adamo v. Brown & Williamson Tobacco Corp.  The only cause of action on the appeal was the plaintiffs' claim that the defendants had negligently designed "regular" cigarettes when technology was available to manufacture "safer" "light" cigarettes.  The plaintiffs had not demonstrated that an equal consumer acceptance existed for "light" cigarettes when compared to "regular" cigarettes.  Based on the plaintiffs' failure to do so, the Court agreed with the Appellate Division, First Department's determination that the plaintiff failed to demonstrate an essential element of their claim.

Applying the test set out in Voss v. Black & Decker Mfg. Co., the Court noted that a cigarette's "utility" is to gratify a smokers' desire for a certain experience.  As such, the plaintiffs needed to demonstrate that "regular" cigarettes had the same consumer acceptability as "light" cigarettes.

Note: My colleagues and I wrote an amicus curiae in this appeal on behalf of The Product Liability Advisory Council.

New York Court of Appeals Addresses Insurance Law sec. 3420(d) Within Context of Insured Non-Cooperation

Plaintiffs' and defense attorneys struggle with the lack of defined time limits as applied to Insurance Law sec. 3420(d).  Section 3420 is the requirement in bodily injury and death cases that an insurer shall give an insured, injured person, or any other claimant written notice of a disclaimer or denial of coverage as soon as is reasonably practicable of the disclaimer of liability or denial of coverage .

In prior cases, the New York Court of Appeals has refused to set a bright-line deadline as it applies to sec. 3420(d).  What happens when the insurer is faced with an insured who is not cooperating in the defense of an action?  The lack of cooperation standard that an insurer must demonstrate is extremely high.  As such, a lot of time can pass before an insurer has enough evidence to demonstrate lack of cooperation.

The Court addressed that exact issue in Continental Cas. Ins. v. Stratford.  The case stemmed from a dental malpractice actions commenced against the insured Stratford.  The insured over a six-year period cooperated with his insurer only sporadically.  The Court held that there were issues of fact regarding the amount of time required for Stratford's insurer to evaluate his cooperation (or lack thereof) with the insurer.

A possibility exists that the reasoning in this decision applies beyond the non-cooperation context.  An insurer who can demonstrate a valid excuse for a disclaimer beyond the "industry-standard" 30-day time limitation can rely on this decision as additional support that the time limit is an elastic concept.

New York State's Commission on Judicial Nomination Gives Governor Seven Candidates

New York State's Commission on Judicial Nomination gave Governor David Paterson seven candidates for the position of Chief Judge of the New York Court of Appeals.  Two of the candidates are current Judges on the Court of Appeals:

Judge Theodore Jones and Judge Eugene Pigott.  The other candidates are:

Justice Jonathan Lippman, Justice Steven Fisher, George Carpinello, Evan Davis, Esq., and Peter L. Zimroth.

The New York Times has this article on the candidates and the New York Law Journal has this article.

New York Court of Appeals Addresses "Law Office Failure" Excuse Within Context of CPLR 3404

The New York Court of Appeals addressed a CPLR 3404 recently in Okun v. Tanners.  In Okun, the "law office failure" excuse could not win the day for the plaintiff.  The case concerned CPLR 3404, which provides that after a case is struck from the calendar because of a missed calendar call, it must be restored within a year or will be dismissed as abandoned.

On November 11, 2002, the plaintiff in Okun commenced a breach of contract action against the defendant, and a note of issue was filed on July 23, 2004. On May 9, 2005, Supreme Court struck the action from the trial calendar based on the plaintiff's counsel's failure to appear at four pretrial conferences between January 26, 2005 and May 9, 2005.  On the same day the action was struck from the trial calendar, the defendant's counsel mailed a copy of the order to the plaintiff's counsel. 

In January 2007, the defendant moved to dismiss the action based on the plaintiff's failure to move to restore the action within one year, and the plaintiff cross moved to restore the action.  In support of the cross motion, the plaintiff's counsel stated that he had no notice of the May 9, 2005 conference, insinuated that he had no notice that the action had been struck from the trial calendar, and asserted that the “plaintiff never actively manifested an interest to abandon the prosecution of this matter.”  At oral argument on the motions, the plaintiff’s counsel offered the following excuse for the failure to prosecute: “[F]rom May 9th [, 2005] . . . what happened to this case can only be called law office failure. It just fell through the cracks.”

The Court of Appeals held that the plaintiff's conclusory and unsubstantiated claim of law office failure was not a reasonable excuse for 20-month delay in pursuing breach of contract action after it was struck from calendar.  The Court also held the plaintiff's inactivity between the time the action was marked off the calendar and defendant's motion to dismiss fails to rebut the presumption of abandonment that arose pursuant to CPLR 3404.

The Court’s terse memorandum opinion carriers several lessons.  First, a motion to dismiss the matter after the plaintiff has moved to restore the action to the calendar is unnecessary.  The action is dismissed by operation of law.  Second, a plaintiff will have to come forward with a legitimate excuse for his or her failure to restore the matter; the frequently tossed-around “law office failure” excuse does not cut it.

It's extremely helpful to read the Appellate Division, First Department's Majority and Dissenting opinions, here.