New York Civil Law

A Delay on Posting for New York Civil Law

I apologize for the lag in posts.

I am working on a trial out-of-town, and the hotel's Wi-Fi has been sporadic. 

Now that I have configured the computer with the Internet connection, I'll try to post on a daily basis.

If the Wi-Fi acts up again, I'll begin regularly posting starting this upcoming Sunday.

Thanks for your patience and readership.

The New York Court of Appeals Grants Leave to Appeal on Insurance Coverage Issue Concerning Issues on Exclusions

The New York Court of Appeals granted leave to appeal in Maroney v. New York Central Mutual Fire Insurance Co.  In that case, the insured's daughter was babysitting a child in the insured house but was busy dressing.  The insured mother had to do some chores in the barn across the street and took the child with her while her daughter finished dressing.  The barn was not insured on the insured's homeowner's policy.  While at the barn, one of the insured's horses unfortunately kicked the child in the skull, causing him injuries.

Several insurance coverage issues are involved in the appeal: (1) the application of the business pursuits exclusion because the barn was used for a horse-boarding business; and (2) the interpretation of the phrase "arising out of a premises."  I am not quite sure what issue sparked the Court's interest.

Article on Weblawgs' Benefits in Legal Practice

I wrote this article (Download SCAN_35300590_000.pdf) last spring and really didn't shop it around for publication.  It was published in a Defense Research Institute publication but the readership is extremely limited.  I am posting it because I would hate to see an article go to waste -- especially one in which I really believe in the content.  I took a lot of great articles about Weblogs and Weblawgs and put my own spin on it. 

If anyone is interested in reprinting this article in a publication, Weblog, or Weblawg, please contact me.   

Supreme Court Justice Closely Examines Blake Decision in Labor Law Section 240(1) Case

In Bustos v. Rome Gen. Hardware & Lumber, Justice Julian of the Oneida Supreme Court analyzes, in depth, the Court of Appeals decision in Blake v. Neighborhood Hous. Servs. of New York City.  The plaintiff injured himself after falling from an extension ladder, which slipped to its side, when he was attempting to bring an A-frame ladder up to the roof of the defendant's commercial building.  The defendant argued that it had not violated Labor Law Section 240(1) because the ladder was in good-working condition and that the plaintiff made the affirmative choice not to "tie-off" the ladder.

Justice Julian rejected the defendant's argument, holding that the very fact that the ladder slipped indicated the defendant had not provided the plaintiff with proper protection as required under section 240(1).  That the defendant had not provided the plaintiff with anything to secure the ladder demonstrated the violation. 

This opinion is an odd one becase Justice Julian went to great lengths to distinguish Blake, even citing portions of the Record on Appeal in that case.

Excellent Article on Undocumented Aliens and Their Ability to Seek Future Lost Wages in New York

In the wake of two important decisions concerning undocumented aliens, I am happy to provide you an extremely helpful article that I promised a week ago -- "Hoffman Plastic Compounds v. NLRB: Have Undocumented Aliens Lost the Right to Recover Unearned Lost Wages as Damages in Personal Injury Actions? " (see reprint here: Download SCAN_35300573_000.pdf) and accompanying discover documents (Download SCAN_35300592_000.pdf).  As stated in the prior post, Edwin Smith and Reed Podell wrote the article, and their firm was involved in both Balbuena v. IDR Realty, Inc. and Sanango v. 200 E. 16th Str. Hous. Corp.

The New York State Bar Association Torts, Insurance & Compensation Law Section Journal granted me permission to reprint this article.   The article originally appeared in the publication's Summer 2003 Vol. 32, No. 1 issue.

A Task for Sisyphus - Moving to Stay a Trial at the Appellate Division

I recently moved to stay a trial at the Appellate Division -- a difficult task indeed.  I wanted to share some words of advice before wasting the Court's and your client's time. 

1. Make sure that your reasons for moving for the stay are exceptional (deprivations of liberty, extreme family court matters, and issues that will cause definite irreparable harm);

2. Communicate with the Clerk's office to learn the procedures for that Judicial Department; and

3. Read the Court's rules carefully and research CPLR 5519 and the accompanying practice commentaries.

Good luck!

Appellate Division, First Department Holds Permanent Means Permanent in Workers' Compensation Law

One of my colleagues brought this Appellate Division, First Department case -- Vicenty v. Cincinnati Inc. --to my attention.  It concerns an injured worker's fingers that were completely amputated but subsequently reattached.  The injured worker had some use of those reattached fingers. 

The First Department held that a third-party plaintiff could not commence a third-party action for indemnity against the injured worker's employer based on the "grave injury" part of Workers' Compensation Law sec. 11 because the statute required the total loss of fingers to be permanent.  This decision might appear silly, but is actually consistent with the New York Court of Appeals' strict interpretation of sec. 11.

One of the First Oklahoma Blawgs Joins the Blogosphere

James Dee Graves has started up a relatively new blawg that concentrates on Oklahoma law, legal issues, and politics.  You can visit his blawg -- one of the very first ones for Oklahoma -- here.

The New York Court of Appeals Hears Arguments On Important Workers' Compensation Case

The New York Court of Appeals heard oral arguments this past session in Boles v. Dormer Giant, Inc., a case that raises an important question concerning Workers' Compensation Law sec. 11.  The injured plaintiff's employer failed to provide workers' compensation coverage for the injured plaintiff.  Thus, the third-party plaintiff -- the general contractor for this job -- argued that section 11 did not bar its third-party action against the injured plaintiff's employer even though the injured plaintiff did not experience a "grave injury" and an indemnification contract did not exist between the general contractor and subcontractor.

The general contractor argued that section 11 should not bar an action against an injured plaintiff's employer where that employer failed to provide workers' coverage for that employee.  This argument makes sense -- isn't the basis of requiring an employer to pay workers' compensation benefits based on the bargain that the employee cannot commence an action against it?  Why should the employer avoid paying workers' compensation benefits and liability?

Appellate Division, First Department Identifies Limit to New York City's Pothole Law

As the New York Law Journal aptly points out, the Appellate Division, First Department, set forth the outer boundaries of New York City's Pothole Law in Bielecki v. City of New York.  Under the Pothole Law (Administrative Code of City of NY, § 7-201[c][2]), the City must receive prior written notice of the particular dangerous condition before it can be held liable for injuries sustained as a result of that particular condition.  An exception exists to the rule that makes the City liable where its work results in the dangerous condition (see Amabile v. City of Buffalo).

The First Department reeled in that exception by stating that it was limited to work that immediately results in the dangerous conditon.  This holding somewhat closes the gate on those cases in which prior notice was not given but the plaintiff might be able to demonstrate that the City had worked in the vicinity several days, weeks, or months before.

For an interesting Court of Appeals case on a related issues concerning dangerous conditions on streets, see Brown v. City of New York.