New York Civil Law

FTC's Reaction to Second Circuit's Decision Concerning Out-of-State Wineries

The Federal Trade Commission recently provided comments to the New York Legislature with respect to allowing out-of-state wineries to sell wine directly to New York State consumers. Here is one of the proposed bills in the New York State Assembly and one in the New York Senate. The FTC's position is in response to the Second Circuit's recent decision that upheld New York's prohibition of out-of-state wineries to sell directly to New York State consumers. Here is an article in Newsday addressing the FTC's comments.

One for the Record Books

After tomorrow, I will have defended three separate insurers in three different trials within the span of 48 hours. Impressed? What if I told you that the trials were in small claims court?

My Way or the Highway

Driving home on the I-90 in Albany, I noticed a billboard about working to change Labor Law section 240(1). I didn't catch who sponsored the billboard, but I am assuming that it is the New York Builders Association. I think the Court of Appeals' recent decision on the issue is a step in the right direction.

Lawrence Lessig Offers Something More Fascinating than His New Book

Professor Lawrence Lessig's new book, "Free Culture," has been something I've been waiting to read for some time now. Professor Lessig is an intellectual property pioneer -- he walks the walk and talks the talk. Although I'll probably buy "Free Culture" before the summer, the book is being offered on the Web for free in many different forms. For example, one Blawg has recruited its audience and Lessig fans to read and record chapters of the book, and the readings will be offered for free in MP3 format. Another site offers the book in .pdf format. The book's license is worth examining and, of course, the content -- what little I've read so far -- is top notch. You can even participate in a virtual book club on this site.

Court of Appeals Addresses Mootness Doctrine in Construction Context

The New York Court of Appeals discussed the mootness doctrine within the construction context last week in this decision involving a building in NYC. The Court decided the case through the S.S.M. procedure, which translates to sua sponte merits. The procedure is an expedited one that usually applies to simple questions that can be resolved on the submissions rather than briefs and oral arguments, see Rule 500.4.

In any event, the Court offers a good discussion of the mootness doctrine and hints to those parties who plan to challenge the construction of buildings.

This Goes Out to All the Lead Paint Enthusiasts

The Court of Appeals just yesterday handed down two decisions, 1 and 2 concerning a municipality's liability in tort for certain inspection and health services that its employees perform. The cases were in the context of lead paint litigation.

NYS Insurance Department Renders Recent Opinion on Certificates of Insurance

The NYS Department of Insurance has recently rendered an opinion on interpreting the rights a certificate of insurance has on the respective insurance policy.

Day in the Life of An Associate

I have been delinquent in my blogging duties because of the amount of deadlines I am trying to meet at work. I argued a supplementary underinsurance motorist issue today at the Appellate Division, Third Department. These types of cases are incredibly fact specific, as the Court of Appeals recognized in Mancuso. My adversary was very civil and so was the panel, although the odds are against me as an appellant . The Third Department heard over 2,056 in the year 2000 but reversed 7% of the time and modified just over 8% of the time.

NY Labor Law -- The Nation's Only Scaffold Law Hurts NY Construction Industry

The New York Scaffold Law -- i.e., Labor Law sec. 240(1) -- might be a boon to plaintiffs' attorneys, and keeps defense attorneys like me busy, it truly has an adverse affect on the building industry in this state. This recent article in the Miami Herald addresses the issue.

Fourth Department Balks at Certifying Question to Court of Appeals on No-Fault Law

My motion for leave to appeal to the Court of Appeals at the Appellate Division, Fourth Department was denied today. The appeal involved the discrete issue whether a defendant within the context of a No-Fault Law threshold summary judgment motion can rely on the unsworn physician records of the plaintiff. The Fourth Department requires that the plaintiff provide the records to the defendant or that the records be certified. The Second and Third Departments have held that a defendant can rely on unsworn records. Therefore, a clear conflict exists on this issue at the Appellate Divisions, and this fact is one of the certiorari factors the Court of Appeals looks for in granting a motion for leave to appeal (see Rule 500.11(d)(1)(v)).

I think the Fourth Department's rule is impractical. I'm interested in learning what you think and what experiences you have had with these threshold motions.