New York Civil Law

Appellate Division, Second Department Holds Plaintiff Need Not Demonstrate Serious Injury to Recover SUM Coverage

The Appellate Division, Second Department in Rafellini v. State Farm Mut. Auto. Ins. Co. held that an insurer may not raise an affirmative defense that the insured did not sustain a serious injury within the meaning of Insurance Law sec. sec. 5102(d) and preclude the plaintiff from recovering damages under its supplementary underinsurance motorist portion of his or her policy (see this post and accompanying cases for explanation of SUM coverage).   The Second Department reasoned that (1) the legislative intent, as evidenced by the regulation setting forth the SUM policy language, did not require that the plaintiff meet the serious injury threshold, and (2) the no-fault considerations that prompted the serious injury threshold were not implicated in cases concerning SUM coverage.

I agree with this decision and the Court's reasoning.  The Court states that it is a case of first impression, and the issue will possibly reach the New York Court of Appeals.

I'm interested in hearing if you agree with the decision's reasoning.

Assumption of Risk and Health Clubs

The plaintiff in Colon v. Chelsea Piers Mgt., Inc., (Supreme Court, Kings County) advanced an interesting argument regarding a health facility's duty of care to the decedent.  Her husband died of a heart attack while playing in a basketball league at the defendant's health club facility.  The plaintiff claimed that the health club breached a duty of care by failing to maintain emergency resuscitative equipment on the premises and to adequately staff medically train personnel.  The Court held that although the health club owed the decedent a general duty, it observed that there is no authority for the proposition that on the subject date, the health club was required to maintain resuscitation equipment or a medically-trained staff during basketball games.

New York Court of Appeals Upholds Lease Provision Concerning Procurement of Insurance and Indemnity Provisions

During this past Session, the New York Court of Appeals addressed the enforceability of a lease provision requiring the tenant to add the landlord as an additional insured on the tenant's insurance policy and to indemnify the landlord regarding certain described acts that were not attributed to the landlord.  In Great Northern Ins. Co. v.  Interior Contr. Corp., the Court  concluded that the subject indemnification clause, which was coupled with an
insurance procurement provision, obligated the tenant to indemnify the landlord for its share of liability, and that such a lease provision did not violate General Obligations Law
§ 5-321.  The Court held that the indemnity provision was triggered in this case and that the particular provision, entered into by two sophisticated entities, did not violate sec. 5-321.

One of NYCL's readers asked about the impact this decision would have on risk assessment. The case allows landlords to shift the risk to tenants' insurers, but the case itself does not appear to be a dramatic change in existing law (see Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153 [1977]).

Recent Supreme Court, Kings County Labor Law sec. 240(1) Decision Addresses Plaintiffs' Credibility

Supreme Court, King County's recent decision in Rivera v. Rite Lite Ltd. illustrates an interesting point regarding litigation within the context of Labor Law sec. 240(1).  The plaintiff in this case claimed that he injured himself when he fell two stories from a scaffold.  He claimed at a deposition that the scaffold moved while he was on top of it; the accident was unwitnessed.  In support of summary judgment, the owner produced a workers' compensation document in which it stated that the plaintiff fell only two feet.

The Court rejected the plaintiff's argument that the discrepancy was not fatal to his sec. 240(1) claim because under either height he came within the statute's protection.  The Court stated that an issue of fact existed because the discrepancy went to the plaintiff's credibility regarding the accident.

Newest Issue of National Insurance Coverage/Defense Newsletter - CaseWatch

The newest issue of CaseWatch is now available here (Download casewatch_vol_3_no_5_265575.DOC ).  For those of you who are new readers, CaseWatch is a free publication that includes case summaries of insurance coverage and defense decisions in all 50 states.  I write about insurance developments in the legislatures of all 50 states.

Supreme Court, New York County Addresses Experts Regarding Mold Exposure

Supreme Court, New York County recently addressed in Fraser v. 301-52 Townhouse Corp. the admissibility of a plaintiffs' expert testimony within a mold exposure context.  Justice Kornreich precluded the plaintiffs' expert regarding his opinions as to the conclusion that human health has been adversely affected by inhaled mycotoxins in the home, school, or office environment.  The decision includes excerpts of several studies and doctor's opinions on mold exposure that a practitioner might find useful in his or her practice.

Appellate Division, First Department's Mass Suspension of Lawyers

The Appellate Division, First Department has issued an Order that will suspend a large number of lawyers who have failed to re-register and pay the appropriate fees as part of their biennial registration.  The Order becomes effective on November 13, 2006.  Here is an article in the New York Law Journal detailing the mass suspension and information for those impacted by the Order (subscription to the NYLJ is not required).

New York Civil Law Poll: Signed Appellate Division Opinions

New York Civil Law's last Vizu poll had low voter turnout.  Is this practice for the November elections?  The poll asked: Do you think all the Appellate Division Departments should adopt the Third Department's practice of having a Justice sign the decisions and orders or memoranda and orders?

85% said yes;
15% said no.

I support Appellate Division Decisions or Memoranda adopting a practice of having the reporting Justice sign opinions.  I've heard some say that it infuses credibility to the rulings.

Please participate in New York Civil Law's most recent poll about legal podcasting.

Also, some of the readers have mentioned that their browser does not display the Vizu poll.  Unfortunately, Vizu has not gotten back to me on the issue but I'm still working on it.

New York Court of Appeals Addresses Important Evidentiary Issue

The New York Court of Appeals yesterday in Parker v. Mobil Oil Corp., Inc. tackled the issue of the admissibility of expert witness testimony in a toxic tort context. In Parker, the plaintiff was diagnosed with acute myelogenuous leukemia ("AML"), and commenced a personal injury action against certain oil corporations. He alleged that he contracted AML as a result of his occupational exposure to gasoline containing benzene. The novel issue surrounds the admissibility of the plaintiff's expert witnesses, who attempted to establish the causal link between the plaintiff's exposure to the gasoline and his AML. The core evidentiary issue is to what extent the plaintiff was required to establish the precise level of his exposure to benzene to establish that his AML was caused by it through scientifically-reliable methodology. The Appellate Division, Second Department granted motions in limine to preclude the plaintiff's experts' opinions based on the speculative nature of their methodology.

Even though the Court of Appeals agreed that the expert testimony should be precluded, it parted ways with the Appellate Division on an important aspect of its reasoning.  Importantly, the Court stated: "[W]e find it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community."  This is an important holding because the Court made a policy decision in this case, determining that the concern regarding the difficulty of plaintiffs establishing their exposure to toxins outweighed the concern that juries might be faced with unreliable expert testimony in toxic tort cases.

As a side issue, the Court briefly addressed the Frye analysis, stating that the general acceptance analysis was at issue here.  Selfishly, I hoped the Court would have had a more in-depth discussion on Frye, junk science, and the admissibility of expert testimony where there is a lack of foundation.

For additional discussion on the issue, see Nicole post on the case at Sui Generis.

Resource for Associates Seeking Help Regarding Pro Bono Work

As the saying goes, better late than never.  I received this press release (Download pro_bono_center_news_release.doc) about ProBono.net.   This valuable website offers a broad introduction to pro bono work in New York City, including an overview of practice areas and pro bono organizations; traning and volunteer opportunities; and training manuals and practice materials covering a wide range of substantive areas.