New York Civil Law

Is the Court of Appeals Shifting Toward Requiring the Prejudice Rule for Notice of Claim Disclaimers?

The New York Court of Appeals will hear oral arguments on the issue whether an insurer must demonstrate prejudice where the insurer receives late notice of an underlying action concerning its insured and has not received prior notice of the claim before the action was commenced. The case in which the Court granted appeal is ARGO Corp. v. Greater N.Y. Mut. Ins. Co..

As noted in one prior post, the Court also granted leave to appeal with respect to a notice of claim issue in an appeal that also hinted to the prejudice issue.

At least one Justice thinks the tide is changing toward requiring a prejudice rule for notice of claim issue (see prior post).

Further Proof that Alexander Hamilton Was An Amazing Man

The New York Law Journal has published a manuscript of Alexander Hamilton concerning American civil procedure (see press release here). Apparently, Hamilton was studying for the bar and could not find an adequate book on the procedure on American law, so he wrote one himself. The Law Journal is giving the book, "Practical Proceedings in the Supreme Court of the State of New York" to law schools and libraries for free and selling it to the general public (see here)

New York Court of Appeals Grants Leave to Appeal in Supplementary Underinsured Motorist Claim Declaratory Judgment Action - Matt from New York Civil Law Is Going To Visit 20 Eagle Street

My goal as an appellate practitioner was to one day appear (even as second or third chair) at the New York Court of Appeals; however, I wanted my first, and maybe my only, visit to the Court to be as an appellant. Yesterday, the Court granted leave to appeal to the Court of appeals in Rekemeyer v. State Farm Mutual Insurance Company (see Third Department underlying decision here). The case involves the timeliness of the plaintiff's notification to her insurer of her intention to file a claim under the supplementary underinsured motorist provision of her automobile policy. I posted about the appeal here.

I think this appeal will be greatly helped by amicus curiae briefs to the Court from those involved in the insurance industry. Important issues abound on this appeal.

New York Court of Appeals Opens Up Notice and Comment Period for Proposed New Court Rules

The New York Court of Appeals has opened the notice and comment period for its new proposed rules concerning civil and noncapital appeals, motions for leave to appeal, criminal leave applications, and certified questions: see link here. The notice and comment period will be open until November 1, 2004. Here are the current rules: link.

Has the Appellate Division, Third Department Imposed an Additional Requirement for Contract-Based Action under the Workers' Compensation Law

In this recent decision, Rodrigues v. N & S Building Contractors, Inc., the Appellate Division, Third Department held that the idemnity provision in the subject general contractor/subcontractor contract was not enforceable because it did not expressly or unambiguously state that the subcontractor was required to indemnify the general contractor for the injuries of the subcontractor's employees incurred within the scope of their employment. However, Workers' Compensation Law Section 11 does not require contract-based indemnification actions to include specific language in the indemnity provisions. Has the Third Department announced an additional requirement to fall within the ambit of section 11?

Do Blawgs Help You in Your Daily Newsgathering? - I Would Like to Hear Your Opinion

Do Weblogs help you as a law student, paralegal, lawyer, law librarian, librarian, or Weblog reader? In preparing for my presentations on using Weblogs in the law, I have been meeting with resistance from a few lawyers who do not see the worth in using Weblogs for research or marketing. For the most part, the lawyers who have expressed that opinion either are (1) not technologically curious or adept; or (2) use folders within Microsoft Word to store cases and statutes in Westlaw, feeling that technique is better than anything a Weblog could offer.

I would like to know how Weblogs and blawgs have helped you with your work.

Recent First Department Case Offers A Little Bit of Everything with New York's Scaffold Law - Case Summary

Priestly v. Montefiore Med. Ctr.

In this case, the plaintiff was on a demolition project and injured himself by falling from a ladder that was permanently affixed to a water cooling tower. The affixed ladder provided the only means of access to the motors upon which he was attempting to work. Several issues were involved on the appeal.

The Appellate Division, First Department held that the affixed ladder was a "device" under Labor Law Section 240(1) because it was the only means of gaining access to his elevated worksite. The Court also rejected the owner's argument that an issue of fact existed on whether the plaintiff was provided with safety devices but refused to use them, holding that there was no evidence that the plaintiff disobeyed an immediate instruction to use a harness or other actually available safety devices. The Court also held that the testimony of the plaintiff's supervisor that after the accident he found the ladder to be stable did not raise a triable issue of fact on whether the plaintiff's actions were the sole proximate cause of his accident.

Online Resource for Finding New York Briefs and Records on Appeal

New York State Unified Court System Law Libraries online information services (LION) provides a search engine to find Briefs and Records on Appeal from cases argued at all four Appellate Division Department in New York. The search engine is finicky, but once you type in the information in the proper format, it will give you the microfiche identification number and then it's off to the closest law library.

Thanks Deb for the information

New York Court of Appeals Hears Interesting Oral Argument Tomorrow Concerning Insurance Coverage

The New York Court of Appeals hears arguments tomorrow on an interesting insurance coverage question: Miceli v. State Farm Mut. Ins. Co. The plaintiff commenced a declaratory judgment action against State Farm to determine whether it was obligated to defend and indemnify its insured. State Farm's insured collided with an automobile in which the plaintiff was a passenger. The insured was driving an automobile without the owner's permission and hit the other automobile in a high-speed chase with the police. State Farm admitted that it did not notify its insured of its disclaimer pursuant to Insurance Law Section 3420(d), but claims the noncompliance is irrelevant because the accident does not fall within the insured's automobile policy. See the Court's case summaries for more details.

New York Court of Appeals' Calendar for September 13, 2004 Oral Argument

The New York Court of Appeals starts off this week -- the second week of the September Session -- with two oral arguments on civil law on Monday: Kazahstan Investment Fund Ltd. v. Manolovici and Hyman v. Queens County Bancorp (neither of the Appellate Division opinions are accessible on the Web, see Court of Appeals' case summaries).

Kazahstan involves whether a three-year Statute of Limitations applies to an action in which the plaintiff sought damages against the defendant, a former disinterested director of the plaintiff, for breach of fiduciary duties and negligence in overseeing the plaintiff's investment manager. The plaintiff claims that the defendant's oversight caused it to lose millions of dollars. The Appellate Division, First Department held that the action was time-barred, and that a six-year limitations period did not apply pursuant to CPLR 213(7).

Hyman involves a slip and fall on stairs in a bank. The Appellate Division, Second Department granted the defendant bank summary judgment based on, among other things, that the plaintiffs offered no proof from which it could be inferred that the State and City building code provisions they relied upon to assert violations were in effect when the building was constructed at some time prior to 1974. The Court also observed that it was undisputed that renovations were performed to the premises in 1977, but there was no evidence that the renovations were so substantial in nature that the defendant would have been required to bring the entire building into compliance with City and State building code regulations which existed at that time the plaintiff's assertion that the stairs failed to meet New York City's building code.