New York Civil Law

Posts Start Up Again Next Week

I am completely deluged with work.  Rather than posting sloppy posts with minimal legal value, I am going to work on some posts for next week after I am finished with work.

I apologize for the inconvenience.

Defense Research Institute's Annual Meeting

On October 19-23, 2005, the  Defense Research Institute will be holding its annual meeting in Chicago, Illinois.  Here is a brochure containing all the necessary information on the meeting and registration (Download SCAN_35301057_000.pdf ).

As a member, I have attended several DRI meetings and have found the speakers to be top-notch.

Appellate Division, Second Department Rejects First Department's View on Lost Wages for Illegal Aliens

In a lengthy decision, the Appellate Division, Second Department in Majlinger v. Cassino Contracting Co. reversed the Supreme Court, Richmond County determination and held that an illegal alien is entitled to recover lost earnings based on the wages he might have earned illegally in the United States.  This holding directly conflicts with two recent decisions in the Appellate Division, First Department -- Sanango v. 200 E. 16th Str. Hous. Corp. and Balbuena v. IDR Realty Inc.   The Second Department rejected the notion that its holding was contrary to the Supreme Court of United States' decision in Hoffman Plastic v. Nat'l Labor Relations Bd.  The New York Court of Appeals will have its chance to sort out this issue in the upcoming months (see post here).

See posts here, here, here, and here for a backdrop of this case.  Thank you Reed for the head's up on the decision.

United States Congress Reacts to Kelo v. New London

Marketplace reported that 90% of Americans are united on the conclusion that they don't like the Supreme Court of the United States' recent decision in Kelo v. New London.  Well, the United States Congress reacted to this consensus, putting forth several bills.  The Bill in the House -- the Eminent Domain Limitation Act -- ties federal assistance to those states that pass laws concerning eminent domain that meet a certain criteria.  Here are the texts of the Bills: Download SCAN_35301051_000.pdf 

New York Senate Considering Bill on Collateral Sources that Helps Plaintiffs and Defendants Reach Settlement

Have you had to perform the collateral source dance as a plaintiff's and defense attorney?  The parties are ready to settle but that inevitable lien puts a halt on negotiations because plaintiff's attorney wants to protect his or her client and the defense attorney doesn't want his or her client to be exposed to liability from the lienholder.

The New York Senate has referred A8114-A to its Rules Committee (see text of Bill and other information on it here: Download SCAN_35301050_000.pdf ), as the New York Assembly has passed the bill.  The bill addresses the impact of collateral source payments upon  tort claims  for  personal injury,  property  damage or wrongful death, and upon related subrogation claims.  It is worth reading the Bill's language; however, the crux of the Bill is that where the parties negotiate a settlement, it is assumed that the plaintiff has not settled in derogation of the contract between the lien-holder, and the defendant will not be subject to reimbursement for a claim from a collateral source payor, unless that payor has a statutory right to do so (i.e., a workers' compensation lien).  The Bill also addresses how collateral sources are handled where the action goes to verdict.

Notably, this Bill is one in a series of measures being introduced at the request of  the Chief Administrative Judge upon the recommendation of his Advisory Committee on Civil Practice.  Its sponsor is Kenneth Zebrowski.

New York Court of Appeals Granted Leave to Hear Issue of Negligence Cause of Action for Injuries Sustained By Domestic Animals

The New York Court of Appeals last week granted leave to appeal in Bard v. Jahnke, which will resolve a conflict between the Appellate Division Departments on whether an "enhanced duty" exists under certain circumstances (i.e., where a dog's playfulness is known to be a problem to visitors) to hold an owner of a domestic animal liable based on negligence for injuries that his or her domestic animal caused the victim (see Decision List here).  The victim in Bard was pinned against a stall in a barn in which he was working.  Besides holding that Supreme Court correctly granted the defendants'  -- the barn owner and the person who subcontracted work to the victim -- summary judgment motion based on the lack of evidence demonstrating the bull's vicious propensities, the Court refused to adopt the "enhanced duty" rule that the First and Second Appellate Departments have adopted under certain limited circumstances.  The Court merely looked to whether the bull had previously exhibited vicious behavior and rejected the plaintiff's argument that a court should take judicial notice of the ferocity of certain types of domestic animals.

New York Civil Law will follow this appeal as it works through the Court.

Appellate Division, Third Department Decides Novel Insurance Coverage Issue

The Appellate Division, Third Department in Allstate Ins. Co. of Hartford v. Cook recently decided a novel issue of insurance coverage.  The insured killed a person in his house, claiming he did so in self-defense,   In light of a wrongful death action brought by the decedent's estate and son, the insured sought a defense and indemnification under his homeowner's insurance policy.

The Third Department upheld the insurer's disclaimer, determining that the insured's actions were not covered under the applicable policy.  Notably, Justice Cardona dissented, observing that the insured's actions could fall within the ambit of the negligence cause of action in the underlying wrongful death complaint.

Michael Hutter, who successfully argued on behalf of Allstate, graciously provided the appellate submissions:

Appellant's Brief: Download SCAN_35301043_000.pdf

Respondent's Brief: Part I Download SCAN_35301044_000.pdf

Respondent's Brief: Part II Download SCAN_35301045_000.pdf

Reply Brief: Download SCAN_35301046_000.pdf

Court of Appeals Recently Heard Oral Arguments on Duty Question

I had the good fortune this past Tuesday to observe the beginning of oral arguments at the Court of Appeals in In re New York City Asbestos Litigation v. A.C. & S, Inc.  The issue involved on the appeal is whether a defendant owed a duty of care to a specific plaintiff who claims to have suffered injuries as a result of the defendant's negligent acts or omissions.  That specific plaintiff is a wife, who allegedly incurred a serious medical condition by laundering her husband's asbestos-contaminated work clothes during the 30-year period that the husband was employed by the Port Authority.  Notably, the wife was not an employee of the Port Authority.

Where does an employer's duty end?  The Appellate Division, First Department reinstated the wife's first cause of action in common-law negiglence, determining, among other things, that an issue of fact existed as to actual or constructive knowledge of the risk of secondary exposure.  I can't wait to read to see the Court of Appeals' decision on this case in the coming months.

New York State Insurance Department's Recent Decsion Discusses Insurance Binders

The New York State Insurance Department issued this informal opinion regarding the following question: Where a binder has been issued, is it permissible for an insurer to modify the value assigned to the property insured (change the limits of coverage and premium due) under a policy of commercial property insurance?  Relying on the Court of Appeals' decision in Springer v. Allstate Ins. Co. of N.Y., the Department explained why an insurer may modify the terms and limits and premiums due regarding the policy after the binder has been issued as part of the issuance of the insurance policy.

New York Court of Appeals Will Hear Oral Arguments on Contractual Indemnification Exception of Workers' Compensation Law sec. 11

The New York Court of Appeals will hear oral arguments in Rodrigues v. N & S Building Contractors, Inc., concerning whether the contractual indemnification exception to Workers' Compensation Law section 11  requires specific language.  The Appellate Division, Third Department held that the indemnity 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.

Disclosure:  I will be arguing this appeal; therefore, I will not be posting any analysis of this case until after oral arguments.