New York Civil Law

New York Civil Law Celebrates One-Year Anniversary

I wrote my first post for "New York Civil Law" almost one year ago (see post).   This past year in the blogosphere has been exceptional.  "New York Civil Law" has been featured  on several blawgs and in several articles (see summary of one article in NY Lawyer).  I have also written to numerous wonderful people whom I met through this blawg.

My practice has really picked up these past few months, and the posts have been few and far between.  I am working on a new way of presenting new information about New York civil law on this blawg, and hope the new year will provide you even better, more timely information.

Thank you for your readership and participating in my love for the law.

New York Court of Appeals Decides Employer Is Not Immune from Third-Party Claims Where It Fails to Provide Workers' Compenstation Benefits to its Employees

Judge Read recently wrote a wonderfully logical decision for the New York Court of Appeals in Boles v. Dormers Giant, Inc., concerning the applicability of the workers' compensation bar to third-party actions where  the employer has failed to provide its employees benefits.   The Court held that an employer is not immune from a third-party action pursuant to Workers' Compensation Law sec. 11 where it fails to provide workers' compensation benefits to its employees.

Read this cogent opinion for a reiteration of the Legistive history of the amendments to the Workers' Compensation Law in 1996.

Recent New York Court of Appeals Decision Clarifies General Municipal Law sec. 50-i

Although most probably knew this rule already, the New York Court of Appeals set the City of New York straight about General Municipal Law sec. 50-i in Campbell v. City of New York.  The Court reaffirmed its prior holdings which stated that the one-year and ninety day time period set forth in section 50-i is to be considered a limitations period, not a condition precedent.  This means that the statue of limitations period is subject to tolling, an issue in Campbell.   Thus, a claimant has one year and ninety days to commence an action after the happening of the event.

For those uninitiated in commencing a claim against a municipality, the General Municipal Law requires that the claimant file a notice of claim with the municipality before commencing a claim against that municipality.  The applicable section of the General Municipal Law are here.

New York Court of Appeals' Decision Concerning Long-Arm Jurisdiction Also Raises Interesting Procedural Twist

The New York Court of Appeals recently decided Greenberg v. Sir-Tech Software, Inc. concerning a contract dispute in which the defendant was claiming lack of personal jurisdiction (see prior post on this case).  The Court held that the plaintiff had demonstrated personal jurisdiction over the defendant pursuant to CPLR 302(a)(1) [the transacts any business test under New York's long-arm jurisdiction].

The interesting procedural twist is that the plaintiff had appealed from the Appellate Division's dismissal of his third amended complaint.  The plaintiff had filed his third amended complaint during the pendency of the Appellate Division's decision on the plaintiff's second amended complaint, which the Appellate Division ultimately also dismissed based on the law of the case doctrine.  The Court of Appeals, in a footnote, stated that the appeal from the third amended complaint brought up from review the dismissal of the second amended complaint.

More Analysis on Justice Ling-Cohan's Decision on Same-Sex Marriage

Columbia Law School Professor Michael Dorf answers this interesting question in his recent commentary in FindLaw: Should Executive Officials Defend Laws They Consider Unconstitutional?

On a related subject, Mayor Bloomberg stated to the press that he wanted the City's attorneys to appeal Justice Ling-Cohan's decision on same-sex marriage in New York straight to the New York Court of Appeals.  Can the City do that? 

It appears so from what I can glean from Justice Ling-Cohan's decision.  Under CPLR 5601(b)(2), the City can appeal as of right straight to the Court because the decision resolves the constitutionality of a section of the Domestic Relations Law.  Since the issue was resolved on a declaratory judgment action, the decision appears final.

First Department Rejects Challenge to New York City's Childhood Lead Poisioning Prevention Act

The Appellate Division, First Department affirmed the dismissal of proceedings challenging New York City's Childhood Lead Poisoning Prevention Act.  The petitioners in Matter of Community Preservation Corp. v. Miller and Matter of Rent Stabilization Ass'n of N.Y. v. Miller challenged the Act under the State Environmental Quality Review Act, claiming the local ordinance will lead to a reduction in affordable housing and an increase in cases of lead poisoning.

The Court held that the petitioners did not have standing to challenge the Act because (1) the contended environmental harm was speculative; and (2) the injuries that petitioners purported would be shared by the public at large.

Second Circuit Court of Appeals Certifies Two Questions Concerning New York Uniform Commercial Code

The United States Circuit Court of Appeals for the Second Circuit in Regatos v. N. Fork Bank has certified the following two questions to the New York Court of Appeals:

1.  Can the one-year statute of repose established by New York U.C.C. Article 4A-505 be varied by agreement?  If so, are there any limits on the variation thereof (such as "reasonable time") that estop CBNY from denying Regatos recovery in this case?

2.  In the absence of agreement does New York U.C.C. Article 4A require actual notice, rather than constructive notice?  If so, can this requirement be altered by agreement of the parties and was such achieved here?

This case involves Plaintiff Regatos action against the Commercial Bank of New York and its successor-in-interest for the reimbursement of $600,000 that the bank  removed from is bank account pursuant to two separate wire transfers without his permission.  The Court will likely to determine whether to accept or reject these questions within the next two months (NYCL will keep you apprised of the decision).

The Most Recent New York Decision on Same-Sex Marriage

As most of you have already read, Justice Doris Ling-Cohan recently ruled that the  New York City Clerk's refusal to issue marriage certificates to same-sex partners is unconstitutional.  You can find the lengthy decision in Hernadez v. Robles (.pdf version) here thanks to  rawprint.com.  The decretal paragraph of the decision is quite interesting in how it states how to read New York's Domestic Relations Law.

New York City Mayor Michael Bloomberg states that he wants to appeal straight to the  New York Court of Appeals: see this article in the New York Times (subscription needed).

Appellate Division, Third Department Dismisses Complaint Based on Spoliation of Evidence

A dismissal of a complaint is usually a court's last resort where evidence of spoliation exists.  However, sometimes such a harsh result is the only one.

In Abulhasan v. Uniroyal-Goodrich Tire Co., the Appellate Division, Third Department dismissed the complaint against the tire manufacturer and the distributor of the automobile in which plaintiff's decedent was injured.  The plaintiff had commenced a products liability action against those defendants, claiming that a manufacturing defect had caused his wife's injuries and, ultimately, her death.  Notably, the plaintiff had sold the automobile for scrap and did not retain the alleged defective tire.

The Third Department dismissed the complaint against both the tire manufacturer and automobile distributor based on the spoliation of the tire.  The Court alludes to the plaintiff intentional destruction of the evidence, but notes that the tire was essential for the defendants to adequately defend themselves against the strict product liability claim.

Marsh & McLennan Cos. Settles Action with Attorney General Spitzer

Marsh & McLennan Cos. settled yesterday with the New York State Attorney General, Eliot Spitzer, regarding the state's action against it involving contigent commisions for insurance brokers.  The company agreed to pay $850 million in restitution to its policyholders who were harmed.   It will ban the process of contingent commissions (see Eliot Spitzer's press release). 

Here is an article in the New York Times about the agreement, and here is Marsh's apology.  Here is Marsh's press release on the agreement.  You can listen to the press conference here.