New York Civil Law

New York Court of Appeals Interprets Applicability of Vendor's Endorsement

The New York Court of Appeals recently held that the vendor's endorsement in a commercial general liability policy in Raymond Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa. only covered claims stemming from a defective product.  The Majority, lead by Judge Read, held that the endorsement most naturally read to describe the vendor's activities with respect to Raymond Corp.'s products, not to indemnify the vendor for its negligent performance of repair, service, demonstration, installation or rental of Raymond Corp.'s products.  In explaining some of the exclusions to the endorsement, the Majority relied on a United States Court of Appeals for the Seventh Circuit opinion in Hartford Fire Ins. v. St. Paul Surplus Lines, Ins. Co.

Judge Robert Smith in a straight-forward dissenting opinion completely disagreed with the Court's interpretation of the endorsement and its exclusion.  He observed that the Majority's interpretation rendered the exclusions superfluous.

New York Court of Appeals Holds Work on Billboard Not Alteration Under Labor Law sec. 241(1)

The New York Court of Appeals agreed with the Dissenting Justices in Munoz v. DJZ Realty, LLC in holding that the injured plaintiff's work on a billboard did not come within the ambit of the activities set forth in Labor Law sec. 240(1) (see Second Department decision here).  The plaintiff fell off a ladder while applying a new advertisement to a billboard.  Citing its prior discussion in Joblon v. Solow concerning the activity "altering," the Court reasoned that the activity was more "cosmetic maintenance" or "decorative modification" than an altering under the Labor Law.  The Court's definition of altering in Joblon plays an important part in this decision's holding ("altering" within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure., excluding simple, routine activities).

New York Court of Appeals 2004-2005 Term Wrapping Up

This week will mark the end of the New York Court of Appeals' 2004-2005 Term, starting up again in late August with its election session.  I expect the Court to release some decisions this coming Thursday as the Court takes a reprieve from oral arguments for the summer.

Excellent Blog on Insurance Issues

Through a comment posted on "New York Civil Law," I learned about this relatively new blog called Insurance Scrawl.  Marc Mayerson writes comprehensive analysis on the law of insurance, the insurance of business, and the business of insurance.  An accomplished attorney, Marc writes from the perspective of the insurance policyholder.   

Court Holds Issue of Fact Exists As to "Serious Injury" Even Though Plaintiff Has a Three-Year Gap in Treatment

In Pommells v. Perez (one of three cases decided in the opinion), the New York Court of Appeals discussed factors in light of objective medical proof that can warrant summary dismissal of a complaint concerning whether a plaintiff has sustained a serious injury under Insurance Law sec. 5102(d).  One of the factors is where the plaintiff has an unexplained gap in treatment.

In Davis v. Bowman, Justice Polizzi of Supreme Court, Queens County, explicitly shares the Court of Appeals' frustration concerning the inundation of "serious injury" cases in the court system.  Despite a three-year gap in treatment between the conclusion of treatment and a medical examination conducted to oppose the summary judgment motion, Justice Polizzi denied the defendant's summary judgment motion.  His short opinion is a biting commentary on section 5102(d) and its impact of the court system.

Appellate Division, First Department Addresses Jury Verdict in Labor Law Case - Juror Confusion?

The recent Appellate Division, First Department decision in Pavlou v. City of New York involves an incredibly interesting discussion concerning appellate review of jury verdicts.  The case arises out of a construction site accident in which a crane on a flatbed collapsed after attempting to carry a steel plate that weighed in excess of that allowed under the State Industrial Code. 

The seriously injured plaintiff commenced an action against the City of New York (the site's owner) under, among other statutes, Labor Law sec. 241(6) for violation of the specific State Industrial Code concerning maximum weight loads for cranes.  The City, in turn, commenced an action against the plaintiff's employer for contribution and indemnity based on its negligent maintenance of the crane; allegations existed that the crane had a crack in it before the accident.

The Majority and Dissenting opinions grapple with the jury verdict in which the jury found that the City's violation of the Labor Law was not a substantial cause of the accident but asserted 99% liability against the employer (a third-party plaintiff), even though the jury asserted no liability against the direct parties.

Thank you once again to Michael Hutter for calling my attention to this great case.

New York Civil Law On the Road

Posts will continue on Friday, June 24, 2005.  Until then, I am on the road to Buffalo, New York to give a free presentation on blogs and R.S.S.  If you are in the area, please join me (see prior post for information).

New York Court of Appeals Uphold Statute Banning Cameras in Courtrooms

As most have already read in the mainstream media, the New York Court of Appeals rejected Court TV's constitutional challenge to the ban of audio-visual coverage of most court proceedings in New York courtrooms.  The Court upheld Civil Rights Law sec. 52.

Here is an interesting essay on cameras in courtrooms in the Canadian Journal of Communication.  Here is article in on the National Press Photographers Association's Website that discusses the dedication of the attorneys in crafting this constitutional argument.

Are New Yorkers and the rest of the country being denied some part of their First Amendment rights based on the existence of this statute?  I tend to think not.

New York Court of Appeals Reaffirms No-Prejudice Rule

The New York Court of Appeals recently reaffirmed the "no-prejudice" rule within the primary liability context in Great Canal Realty Corp. v. Seneca Ins. Co. Inc.  Justice Catterson from the Appellate Division, First Department went out on a limb in the concurring opinion below, stating that an insurer company must demonstrate that it was prejudiced by an insured's late notice of claim or occurrence before a disclaimer on that basis will be upheld (see First Department decision here and prior post on that decision).  Notably, Justice Catterson also wrote a decision about the no-prejudice rule before joining the First Department (see decision Download 510029155199814SCIV.pdf and prior post).

The Court of Appeals rejected the abandonment of the no-prejudice rule in the primary liability context, upholding its recent decision in Argo Corp. v. Greater New York Mut. Ins. Co. 

New York Court of Appeals Grants Leave to Appeal in Choice of Law Contract Provision Case

The New York Court of Appeals recently granted leave to appeal in Boss v. Am. Express Fin. Advisors, Inc., which concerns the application of a choice-of-law provision in the subject employment contracts.  The Appellate Division, First Department applied Minnesota law (the forum indicated in the contract) over New York regarding the salary/expense deduction provision in the defendant's employment agreements, even though New York's Labor Law provided more protection to the employers than Minnesota law.  I am assuming that the plaintiffs are New York residents.

It takes a certain type of lawyer to get excited about a choice-of-law case (I find these cases fascinating).