New York Civil Law

The Hammer Comes Down -- Court Enforces Stipulation in No Fault Case

Justice Marber of the Nassau District Court got "old-school" on the defendant insurer in Vinings Spinal Diagnostic v. Travelers Prop. Cas. Ins. Co. Within the No-Fault context, the parties entered into a stipulation in which the defendant No-Fault carrier was to be precluded from producing any evidence that the plaintiff demanded at trial if the defendant failed to produce certain requested evidence within a certain time period.  The stipulation was not "so ordered" by the Court.

In enforcing the stipulation when the defendant failed to provide the requested discovery, Justice Marber relied upon the 1885 Court of Appeals' decision in In re Petition of New York L.& W.R.Co., 98 NY 447, 453 (1885).  That case states in pertinent part:

Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory, and even constitutional rights. They may stipulate for shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes, such limitations being frequently found in insurance policies. They may stipulate that the decision of a court shall be final, and thus waive the right of appeal; and all such stipulations not unreasonable, not against good morals, or sound public policy, have been and will be enforced.

Interesting Appellate Division, Second Department Decision About Activity that Falls Under Automobile Policy

A plaintiff in an underlying case slips and falls in a parking lot that the insured snowplowed.  The insured in this declaratory judgment action -- Republic Long Isl. Inc. v. Andrew J. Vancore, Inc. -- seeks a defense and indemnification from its insureds under its personal automobile insurance policy.

The Appellate Division, Second Department affirmed that part of the trial court's conclusion that the accident was not covered by the applicable policies "use and operation" clause, because the injuries "did not result from the intrinsic nature of the motor vehicle as such, nor did the use of the automobile itself produce the injury, but, at most, contributed to the condition which produced it."  The policy contained a standard automobile liability provision which requires the insurers to defend and indemnify their insured for accidents resulting in bodily injury or property damage, arising out of the "ownership, maintenance, or use" of the insured vehicle.

Recent Issues of Insurance Coverage/Defense Newsletter

In continuing with New York Civil Law providing the free insurance coverage/defense newsletter, here are the two most recent issues:

Download CaseWatchVol2_No20.DOC (CaseWatch Vol. 2., No. 20)

Download CaseWatchVol2_No21.DOC  (CaseWatch Vol. 2., No 21)

To receive the benefit of having CaseWatch delivered to your email inbox on the day it is published, feel free to contact CaseWatch's editor, Kevin Merriman.

Applying the No-Prejudice Rule After Rekemeyer and Argo

In a nutshell, the no-prejudice rule in New York provides that an insurer does not have to demonstrate prejudice where the insurer receives late notice of claim or occurrence concerning its insured and may disclaim based on that late notice where no reasonable excuse for the delay by the insured is given.  As New York Civil Law has reported, the New York no-prejudice rule has been whittled down in the past couple of years (see posts here and here).

I've been curious to see how trial courts and Appellate Division are applying the holdings in Argo Corp. v. Greater New York Mut. Ins. Co.  and Rekemeyer v. State Farm Mut. Auto. Ins. Co.  The decision in Amer. Trans. Ins. Co. v. B.O. Astra Mgmt. Corp. is a recent example.

In this case out of the New York County Supreme Court, the victim was injured in an automobile accident by American Transit Ins. Co.'s insureds.  The insureds did not inform American Transit about the accident or the victim's lawsuit that he instituted several months after the accident.  The victim immediately notified American Transit about the accident, providing a written notice of the accident and claim.  That written notice made clear that the victim retained an attorney and that potential claims against American Transit's insured existed.  On the same date as the letter, the victim's attorney sent American Transit a letter and an application for no-fault benefits. 

American Transit claimed that it did not learn of the suit that the victim had commenced until it received a copy of the victim's motion for default judgment against the insureds.  American Transit (1) sent notification to its insureds that it was disclaiming coverage for the failure to provide timely notice of the commencement of the underlying victim's action, and (2) subsequently commenced a declaratory judgment action seeking a declaration that it did not have a duty to defend or indemnify the insureds.

The trial court rejected American Transit's argument that the victim failed to satisfy the notice of lawsuit requirement because it first learned of the underlying lawsuit when the victim served it with a copy of his default motion.  The Court reasoned that the rationale of Matter of Brandon (Nationwide Mut. Ins. Co.) applied, even though this case did not involve supplementary underinsurance motorist coverage.  The Court noted that American Transit was not only given timely notice of the claim (citing Brandon) but it was also informed that the victim had retained counsel.

The decision does a nice job of applying the no-prejudice case law and is, indeed, worth a read.

New York Court of Appeals Tackle Res Ipsa Loquitur

In Morejun v. Rais Constr. Co., the New York Court of Appeals reaffirmed that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict.  The Court explained that such case would happen when the plaintiff's circumstantial proof is so convincing and the defendant's response is so weak that the inference of the defendant's negligence is inescapable.

As New York Civil Law discussed at the end of last year (see post), this appeal involved an injured of the plaintiff's decedent, who was delivering materials to a private residence that was undergoing renovation.  Building materials fell from the roof of the house and struck the decedent's head.  The plaintiff commenced a negligence action against the general contractor and its principals.  The Appellate Division, Second Department (see decision) reversed Supreme Court's grant of partial summary judgment to the plaintiff for common-law negligence pursuant to the doctrine of res ipsa loquitur. 

Judge Rosenblatt authored the decision for the Court of Appeals and provided an excellent historical analysis of the res ipsa loquitur doctrine.  Above and beyond the actual holding, the decision provides an important discussion of circumstantial evidence and the difference between an inference and a presumption.  Those familiar with Judge Rosenblatt's decisions will appreciate the historical perspective he frequently injects into his opinions (see for example: Blake v. Neighborhood Hous. Servs. of New York City).

For more analysis about this appeal, please see Nicole Black's post at Sui Generis.

Some Information on the Same-Sex Arguments at the New York Court of Appeals

As most of you probably already know, the New York Court of Appeals will be webcasting the oral arguments for the following appeals concerning the same-sex marriage issue: Hernandez v. Robles; Samuels v. New York State Dept. of Health, Kane v. Marsolais; and Seymour v. Holcomb.  The oral arguments will take place next Wednesday on May, 31, 2006 (see here).

On a related note, here is an excellent article from the New York Blade on the same-sex marriage appeals.  The article mostly focuses on the recusal of Judge Albert Rosenblatt.  It offers a lot of good information about the inner workings of the Court (including what will happen if there is a 3-3 split).  The writer did a lot of great research and provides that information in the article.

New York Court of Appeals Refuses to Expand Tort Liability in Animal Attack Context

The New York Court of Appeals' recent decision in Bard v. Jahnke is an extremely interesting example of how the Court followed the doctrine of stare decisis even though the result left the plaintiff with no remedy (see prior post).  The appeal involved an incident in which the plaintiff was attacked by a bull at a dairy farm at which the plaintiff was working.  The owner of the bull allowed the bull to roam free at the dairy farm and encountered no prior incidents regarding the bull.  The owner hired a non-party to work on the dairy farm in which the bull was housed and that non-party asked the plaintiff to assist him in the work.  On the day of the incident, the owner did not know that the plaintiff was going to work in the dairy farm.

Because the bull had not shown prior vicious behavior and was allowed to roam freely without prior incident in the dairy farm, the Court applied the following common law rule:  the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities.  Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.   A read of the Court's recent case applying this rule is helpful for background: Collier v. Zambito.

The heart of the appeal concerned whether an owner of a domestic animal, which the owner does not know or have reason to know to be abnormally dangerous, is nonetheless liable if he or she intentionally causes the animal to do harm, or is negligent in failing to prevent harm.  The Court refused to recognize this "enhanced duty" rule and, therefore, the plaintiff was unable to recover against the owner of the bull.  Judge R. Smith's Dissenting Opinion discusses some interesting points as to the Court's refusal to adopt the "enhanced duty" rule and its continued embrace of its long-standing rule regarding animal attacks.

New Posts Return Soon

I apologize for the recent infrequency of posts.  As I mentioned in a prior post, I am preparing for an upcoming presentation next Friday and am unable to write quality posts.  I hope to get to the great Court of Appeals' cases that were recently handed down.

On a non-related point, I wanted to share an experience that I had today that gave me a sense of community.  I'm working on an appellate brief and my colleague noticed a recent case that impacts on our issues.  I contacted two of the attorneys -- the one who succeeded on the appeal and the other who did not -- to get copies of their appellate briefs in the related appeal.  In the matter of hours, both attorneys emailed and faxed me their briefs.  It might not seem like a big deal, but when I consider how busy we all are, it really said something about these two attorneys who took time out of their day to help an attorney whom they never met.  I have had similar positive experiences in the past contacting attorneys for briefs to post on this blawg.  That type of kindness and professionalism makes me very proud to be a part of the New York Bar.

Short New York Court of Appeals Recent Decision Says A Lot About Labor Law sec. 240(1)

The New York Court of Appeals' sua sponte merits procedure provides an excellent mechanism for the Court to handle those "settled" issues of law that reach it through the 2-Justice Dissent track to get to the Court of Appeals (see Court rule 500.11).  Please note that this isn't the only reason for the SSM procedure.  However, decisions on the SSM track sometime require a bit of detective work.

The recent case of Keavy v. New York State Dormitory Auth. provides a good example of some of the procedure's weaknesses.  This matter implicates an important concept of Labor Law sec. 240(1), but it takes a bit of digging to get its implications.

In Keavy, the plaintiff was covering an eight-foot-high stack of insulation boards with a tarp.   The plaintiff was walking backwards on top of the stack of boards and was pulling the tarp when his right foot slipped into a gap between the boards.   How far he fell between the boards is in dispute between the Fourth Department's Majority and Dissenting opinion (see decision here)   -- either falling into the gap up to his knee or elbow (see excellent posts on this case by Nicole over at "Sui Generis" here and here).

The Court held that the accident was not gravity related, citing Toefer v. Long Island R.R. and Rocovich v. Consolidated Edison Co.  The citation to Toefer indicates to me that the height-differential here -- at most 8 feet -- was not the kind of danger sec. 240(1) contemplated under these circumstances.  The Court's citation to Toefer in combination with Rocovich indicates to me that certain accidents, although technically height-related, do not fall under sec. 240(1).  What safety device set forth in sec. 240(1) could have possibly prevented this accident?  That observation seems to be the Court's point of this decision.

Cast Your Vote for LawDragon's New Stars 2006

PLEASE NOTE THAT LINK TO VOTE HAS BEEN FIXED.  Clicking on the link that states "here" below will bring you to LawDragon's main page.  You will see a link entitled "Vote Now."  Clicking on that hyperlink will bring you to the list of nominees.  I think my name appears on the third nomination page.  Once you see my name, there should be a "Vote" button to the left of my name.  Click on the "Vote" button and you will be brought to a ballot to vote.

I have been nominated for LawDragon's New Stars 2006 Guide (I have posted the intent of the guide below).  I would very much appreciate if you would cast of vote for me here, should you agree that I fit the criteria (here is a link to my "About Me" part of this blawg and a direct link to my firm biography).   The polls close on May 15, 2006.  I'll let you know if I am chosen.  Thanks for your time and support!

Here is the guide's intent as stated on LawDragon's Webpage:

"We are searching for the freshest faces in American law, whether they're cutting edge professors, Internet advocates, movie star counselors or gurus on exports to China.

We assume more than a few of these New Stars will fit the conventional definition of lists that look for up-and-coming talent under a certain age. But at Lawdragon, we do not like to limit what inspires or expands the boundary of law to years in service. We believe octogenarians can create fascinating new practices while upstarts can excel at old ones.

Anyone may use the form to nominate an attorney for New Stars. Candidates may be private lawyers, in-house counsel, nonprofit attorneys and law professors.

We will be accepting votes and new nominations to the ballot through April 30, and voting will close on May 15.

The final guide to the Lawdragon 500 New Stars, New Worlds will be selected on May 26. The results will be published on our website and in the summer edition of Lawdragon magazine.

                                            *  *  *

The final 500 will be chosen based on number of votes as well as quality. Hence, ballot-box stuffing will get you nothing other than angry dragons. However, we do encourage you to have your clients and peers vote for you.