New York Civil Law

New York Court of Appeals Hands Down Another Important Decision on "Serious Injury" in New York's No-Fault Context

Perhaps fueled by the rampant fraud problem overcoming New York's No-Fault Law, the New York Court of Appeals handed down yet another decision involving the evidentiary proof necessary to demonstrate a "serious injury" under New York's Insurance Law sec. 5102.  Its most recent decision involved three cases -- Pommells v. Perez, Brown v. Dunlap, and Carrasco v. Mendez.

In particular, the Court examined soft-tissue injury cases.  Building on its decision in Toure v. Avis Rent A Car Sys.,  the Court addressed the impact of the following factors even in light of objective evidence: a pre-existing injuries, gaps in medical treatments, and intervening medical conditions.

For Court of Appeals' decisions concerning fraud in the No-Fault context, see Matter of Medical Soc'y of N.Y. v. Serio and State Farm Mut. Auto. Ins. v. Mallela.

Posts Will Resume Next Monday

I apologize for the lack of posts.  I have been deluged with work and will be out-of-town until next week.

Have a great rest of the week.

Pending Appeal at Appellate Division, First Department Concerning Indemnification

Certain issues that fall within the interstices arise when dealing with common-law and contractual indemnification under Workers' Compensation Law sec. 11.  The attorneys in Transcontinental Ins. Co. v. State of New York graciously forwarded copies of their appellate briefs (the appeal has been argued and is awaiting decision in the Appellate Division, First Department). 

In this case, the owner and the proprietorship commenced a third-party action against the injured worker's employer, claiming that common-law and contractual indemnification existed.  The employer had a CGL policy with Transcontinental and the State Insurance Fund insured the employer for Workers' Compensation and employer's liability.  Thus, when Supreme Court held that the injured worker had experienced a "grave injury," a conflict arose between the insurers on whether to pursue an appeal on the "grave injury" issue.

To summarize these issues in a post proves impossible; therefore, please refer these briefs for some insight to a novel issue:

Transcontinental's Appellant's Brief: Download appellant_brief.pdf

The State of New York's Respondent's Brief: Download sif_opening_brief_8708.doc

Download title_page_trans.doc Download toc_toa_trans.doc

Trancontinental's Reply Brief: Download reply_brief_for_appellant.pdf

Thomas R. Esposito, Joseph D'Ambrosio and Kyle M. Medley of Ford, Marrin, Esposition, Witmeyer & Gleser, L.L.P. represent Transcontinental.

Michael J. Hutter, Jr. of Powers & Santola, LLP represents the State.

The State of New York's Reply Brief: Download sif_reply_brief_8909.doc

Yawning Juror Fined: Cruel and Unusual Punishment?

I have seen jurors yawn, daydream, and even fall asleep during trials.  I even witnessed one juror on a death-penalty case nod off from time to time.  Reuters printed this story about a Judge who fined a juror for yawning.

Appellate Division, Third Department Interprets Intentional Act Exclusion in New Coverage Decision

This is an excellent case to demonstrate the application of an insurance policy's intentional act exclusion.  The plaintiff's insured in Progressive N. Ins. Co. v. Rafferty pinned a person between his automobile and a garage door during an altercation.  The plaintiff's insured claimed that he only wanted to scare the person and did not intend to actually hit the person with his automobile.

The Appellate Division, Third Department interpreted the "intentional act exclusion" of the insurance policy (see Slayko v. Security Mut. Ins. Co.), rejecting the insured's claim that the act was unintentional and denying that the No-Fault law applied to the injured person because the occurrence was not an "accident." 

Recent Case on Labor Law sec. 240(1) Demonstrates Strict Liability Is Not Absolute Liability

Symonds v. 1114 Ave. of the Americas is a recent Supreme Court, New York County case concerning Labor Law sec. 240(1).  The plaintiff in this case fell from the seventh rung of a 10-foot, wooden, A-frame ladder while welding pipes near the ceiling of a worksite.  The accident was unwitnessed, and the plaintiff claimed that the ladder had twisted and had no safety feet on it.  Sounds like an open and shut Labor Law case, right?

As the New York Court of Appeals' decision in Blake v. Neighborhood Hous. Servs. of New York City has taught us, a fall from a ladder alone does not equal liability against an owner or general contractor.  In Symonds, evidentiary proof existed demonstrating the distinct possibility that the plaintiff was intoxicated during the accident.  Thus, Justice Sklar denied the plaintiff's summary judgment motion as to liability pursuant to section 240(1).

This case is an excellent example of why attorneys for owners and general contractors need to get involved in the investigation of a "height-related" accident as soon as possible.

Is Third-Party Funding for Plaintiffs Ethical?

I came across this article at Findlaw.com -- written by Professor Anthony J. Sebok -- concerning a recent New York Supreme Court case in which the plaintiff had received money from a non-party company that invested in the probability of the plaintiff recovering on his Labor Law sec. 240(1) claim.  Professor Sebok raises numerous cogent points on the peculiar interest Justice Warshawsky had concerning the arrangement between the plaintiff and the non-party Lawcash -- especially the large return on the company's investment within one year's time (2 -4 % compounded monthly).  However, I still have a visceral reaction to a non-party loaning money to a party in an action, thereby frustrating any chance of settlement.

My first reaction was to scream champerty, but Professor Sebok clarified that point; nevertheless, I'm still troubled about the possibility that a non-party can somehow fund a party to continue an action he or she might otherwise be unable to pursue. 

Justice Nardelli Grants Stay On Enforcement of Recent Zoning Decision Regarding New York City Adult Businesses

Justice Nardelli of the Appellate Division, First Department last Wednesday granted the request for stay by sex-oriented businesses after their loss in For the People Theatres of N.Y., Inc. v. City of New York.  The plaintiffs are owners of "adult" businesses in New York City that challenged the implementation of amendments to the 1995 Adult Use Zoning Ordinance, which was popularly termed the "60-40" rule (see excellent legal memorandum of New York Department of State on ordinance).

The next step is to see if the New York Court of Appeals will retain the appeal and hear oral arguments on the matter.

Today in Civil Procedure History

Today is an important date in civil procedure history.  On April 12, 1848, New York enacted The Code of Procedures (Field Code) (see New York Court of Appeals article on jurisdiction and history).  David Dudley Field brilliantly came up with the concept, among others, to prepare a code of courts' practice and procedures.  Here is a nice discussion of the jurisprudence of procedural reform in honor of the Code of Procedure's anniversary.

New York Court of Appeals Determines Fall From Truck Bed Not Covered Activity Under Labor Law sec. 240(1)

I posted last month about two appeals concerning the question whether a worker's fall from a truck bed constitutes a covered activity under Labor Law sec. 240(1) (see prior post).  The New York Court of Appeals last week determined in Toefer v. Long Island Rail Road/Marin v. Korean Air, Inc. that such an activity does not fall within the ambit of sec. 240(1).

These appeals have garnered yet another decision in which the Court of Appeals has attempted to narrow the reach of New York's Scaffold Law and explain the true intent of the section 240(1).