New York Civil Law

New York Court of Appeals Refuses to Expand Duty of Care in Asbestos Litigation

The New York Court of Appeals in In re New York City Asbestos Litigation refused to impose a duty of care on an employer to an employee's wife, who cleaned her husband's work clothes and was exposed to asbestos (see prior post).   This decision provides a great overview of a basic tort concept that is frequently misunderstood: What determines a duty of care?  The Court uses Hamilton v. Beretta USA Gun Corp., a case determining liability of gun manufacturers, to explain the determination of duty in New York.

New York Court of Appeals Recently Interprets Non-Cumulation Clause in Insurance Policy

The New York Court of Appeals in Hiraldo v. Allstate Ins. Co. wrote a straightforward opinion concerning the interpretation of a non-cumulation clause in a business liability policy (see detailed facts in prior post).   The Court of Appeals held that the non-cumulation clause was fatal to the insured's claim that it was entitled to coverage for the policy limits of all three successive insurance policies.  The injured party in the underlying action sustained injuries from his continuous exposure to lead paint in the insured's building all throughout the policy periods.

Appellate Division, Second Department Grants Leave to Appeal to Court of Appeals in Majlinger

The Appellate Division, Second Department granted leave to appeal to the Court of Appeals in Majlinger v. Cassino Contracting, Co. (see prior post).  This decision directly conflicts with the First Department's decision in Balbuena v. IDR Realty Inc.  As reported, the First Department granted leave to appeal to the Court of Appeals in Balbuena.  These appeals concern whether an illegal alien is entitled to recover lost earnings based on the wages he or she might have earned illegally in the United States.  The Second Department holds that the illegal alien can do so, whereas the First Department disagrees.

It looks as though Balbuena will reach the Court before Majlinger and, so, the Court will likely decide Majlinger through its expedited process.

Thanks to Reed Podell for the information.

New York Court of Appeals Will Hear Arguments Concerning Foreign Judgment

The New York Court of Appeals last week granted leave to appeal in Sung Hwan Co. v. Rite Aid Corp., which appears to concern a fascinating issue concerning what evidence a New York can consider in reviewing a judgment of a foreign court.  From what can be gleaned from the terse facts, the plaintiff in this case is attempting to seek recognition of a Korean judgment against a United States' corporation. 

"New York Civil Law" will keep you apprised of the developments.

New York Court of Appeals Decides Causation Issue

In Ciocca v. Park, the Court of Appeals affirms the Appellate Division, Third Department's Majority holding concerning concerning causation of injuries regarding an automobile accident.  The issue at trial was whether the accident caused the plaintiff's injuries or, as the defendant argued, a degenerative condition did so.  In support of his position, the plaintiff offered his own testimony and the testimony of his orthopedic surgeon.  The surgeon's testimony was based on the plaintiff's subjective statements, X-rays, and an MRI, and he testified that it was impossible to tell from the X-rays whether the automobile accident caused the plaintiff's injuries.  The trial court granted the defendant a directed verdict, which was affirmed at both levels of appeal.

Although the case is not unusual, I find that it offers a good lesson on evidentiary techniques at trial.  The trial court excluded the orthopedic surgeon's testimony about the MRI because he relied on the radiologist's report as the foundation for his testimony and the plaintiff's attorney did not call the radiologist as a witness.

Also, the Court's decision took an unusually short amount of time from the Third Department's August 11, 2005 decision -- even for an appeal taken solely on submissions.

Content Note for New York Civil Law - Dead Hyperlinks

As a technical point, I just noticed that the New York Assembly's Website no longer directly links to New York's Consolidated Laws.  In an effort to keep this Weblog useful to its readers, I am going to comb through prior posts and link to the new Website to avoid any dead links.

I apologize for the inconvenience.

New York Court of Appeals Decides Second Case Regarding Written Contract Exception of Workers' Compensation sec. 11

As most know who practice in this area of law, there are two exceptions under Workers' Compensation Law sec. 11 where a third party may seek contribution or indemnification against the injured worker's employer regarding injuries that the employee sustains within the scope of employment.  The first involves whether the worker sustained a "grave injury" and the other is where the third party and employer entered into a written contract prior to the accident in which the employer agrees to provide the indemnification or contribution.  Rodrigues v. N & S Building Contractor, Inc. concerns the latter exception.

In Rodrigues, the general contractor -- N & S Building -- entered into a blanket-written contract with its concrete subcontractor prior to an accident in which the concrete contractor's employee was injured.  The written contract did not specify that it applied to a certain work-site and did not state outright that N & S would be indemnified by Caldas for injuries that Caldas' employees sustained while within the scope of its employment.  The courts below held that the blanket written contract did not conform to the requirements under sec. 11 and did not apply to the subject work-site (reading the Third Department's Memorandum in this case is important to understand the impact of the Court of Appeals' decision).

The Court of Appeals reversed the Third Department's holding, granting N & S summary judgment as to Caldas indemnifying it for injuries that Caldas' employee sustained during the accident (except Caldas would not have to indemnify N & S for any negligence on the part of N & S).  Notably, the Court of Appeals concluded that the blanket contract was sufficient to comply with the requirements of sec. 11.  It also sent a signal to the Appellate Division and to practitioners that New York courts should hesitate to read into sec. 11 any requirement that are not specifically stated in the express terms of the statute -- i.e., the specific wording the Third Department concluded was absent in its decision below.   

A nice complement to the Court of Appeal decision is the Third Department's recent decision in Gilbert v. Albany Med. Ctr., which the Court addressed at oral argument on the Rodrigues appeal.

Disclosure:   As a point of full disclosure, I briefed and argued the appeal for N & S.

(In the event I gain permission to post all the parties' briefs in this appeal, I will have a future post on the case that includes the briefs).

Insurance Law Case Summaries

New York attorney Thomas Bower has these excellent case summaries for September and October 2005 cases concerning insurance issues.

Appellate Division, Third Department Hears Oral Arguments on Same-Sex Marriage

New York Civil Law reported last June 2004 about challenges concerning same-sex marriages in the Albany area (see post here).  The matter has progressed to the intermediate appellate stage; yesterday, the Appellate Division, Third Department heard arguments on the issue (see new summary here in the Albany Times Union).  Also, see this news coverage on Capital News 9.

Will this case make its way to the New York Court of Appeals?

Appellate Division, First Department Holds Lunch-Time Accident Encompassed Under Scaffold Law (Labor Law sec. 240(1))

In Morales v. Spring Scaffolding Inc., the Appellate Division, First Department recently held that a worker who fell from a sidewalk bridge during his lunch time break could still state a viable claim under Labor Law sec. 240(1).  The Court recognized that there is a split in the Appellate Division Departments concerning the issue and was a case of first impression for the Court.  The plaintiff's employer had subcontracted with Spring Scaffolding Inc. to erect a sidewalk bridge over the sidewalk where the facade repair would take place and, upon completion of the project, to dismantle it.

Plaintiff stated that he fell eight feet off the sidewalk bridge during a lunch break when a parapet wall on the bridge gave way while he was leaning on it to see about a package regarding his employer.  The Court hedged by limiting its holding to these facts, stating:

In the factual context of this case, we conclude that Labor Law § 240(1) applies to the lunch break accident. As the record shows, the sidewalk bridge, where the lunch break was taking place, was used by the facade repair workers as a staging area, for storing equipment and mixing cement and as an entryway onto the scaffolding. Whether plaintiff was still on his lunch break or had finished lunch, eventually he would return to the scaffold, which was stored on the bridge during the lunch break, to do more pointing work. Labor Law § 240(1) requires that sidewalk bridges be built "so as to provide workers with proper protection"