New York Civil Law

New Trial Ordered Regarding Physician's Testimony

Here is a decision for all you trial attorneys and insurance professionals.  In Fienco v. Rose, the plaintiff's physician was allowed to testify as to the permanency of her injuries based on an examination the physician conducted that morning.  The defendants' counsel had no prior knowledge of the examination until the physician's trial testimony, and the discovery records did not reflect the substance of the physician's testimony.  The Appellate Division, Second Department held that a new trial was warranted because the admission of the testimony deprived the defendants of a fair trial.

Yacht Can Be Considered Dwelling Under Homeowner's Exception to Labor Law sec. 240(1)

In what is likely a case of first impression, Supreme Court, Niagara County determined in Zahoransky v. Lissow that the defendant yacht's fell within the homeowner's exception to Labor Law sec. 240(1).  The plaintiff was injured when he fell off a ladder while renovating the defendant's yacht, which was dry-docked.  The defendant successfully argued that the yacht acted like his second home.  Justice Boniello adopted the defendant's argument, noting the various amenities of the yacht were similar to a home.  He also analyzed several definitions of the term dwelling.

NYCL will monitor this case to see what the Appellate Division, Fourth Department does with this decision on appeal.

New York Court of Appeals Determines Application of Equitable Estoppel in Medical Malpractice Context

The New York Court of Appeals has stated that equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentation.  In its recent decision entitled Putter v. N. Shore Univ. Hosp., the Court held that application of equitable estoppel was inappropriate.

In Putter, the plaintiff's decedent went into the hospital for heart surgery; shortly after the surgery he learned that he contracted hepatitis.  His primary care physician told the decedent that another patient of the hospital had contracted hepatitis during a similar procedure by the same surgeon.  The primary care physician told the decedent that he likely contracted the disease at the hospital or in the operation room.  The decedent's three sons -- all healthcare professionals -- told their father the same thing.  At his deposition, the decedent conceded that it was pretty clear how he contracted the disease.

The plaintiff commenced this malpractice action against the defendant hospital well after the statute of limitations expired.  The  plaintiff claimed that the decedent relied on the hospital's misrepresentation that the cause of the disease was from an unknown source.

The Court refused to apply equitable estoppel to the expired limitations period, holding as a matter of law that the decedent (and by virtue the plaintiff) had sufficient timely knowledge of
the facts, was aware of the basis of a cause of action within the applicable statute of limitations and failed to bring a timely suit.  Although Nicole at Sui Generis sees the hospital's misrepresentation as creating a material issue of fact, the Court implicitly determined that the decedent's "reliance" on that misrepresentation was unreasonable.

Without reading the record or brief, it appears to me that the Court concluded that the plaintiff's alleged reliance on the hospital's misrepresentation was really the plaintiff's attempt to avoid summary judgment in the face of damaging evidentiary proof demonstrating that the decedent had information during the limitations period that should have caused him to investigate further and commence the malpractice action within the limitations period.

Happy Thanksgiving

Have a Happy Thanksgiving.  Posts will resume next Monday.

An optimist is a person who starts a new diet on Thanksgiving Day.

-Irv Kupcinet

New York Court of Appeals Decides Conflicts of Law Question -- Pay-If-Paid/Pay-When-Paid Provisions

The New York Court of Appeals yesterday -- in a special "hand-down" day -- concluded in Welsbach Elec. Corp. v. MasTec N. Am. Inc. that enforcing a "pay-if-paid" provision in a subcontract that is controlled by Florida law does not violate a fundamental public policy of New York.  A "pay-if-paid" or "pay-when-paid" provision generally involves a contract provision in which the general contractor's obligation to pay the subcontractor is contingent on and subject to the general contractor's receipt of payment from the owner of the project.

Governor Pataki Designates Justice Scudder as Presiding Justice of the Appellate Division, Fourth Department

Breaking News . . .

Governor Pataki has designated Justice Henry Scudder as the new Presiding Justice of the Appellate Division, Fourth Department (see article in Buffalo Business First).  The position opened up after the Governor appointed Judge Pigott to the New York Court of Appeals.

Ironically, Justice Scudder only got 5.6% of your vote in NYCL's Vizu poll (see here).

New York Court of Appeals Judge Albert Rosenblatt

At the end of this year, New York Court of Appeals Judge Albert Rosenblatt will retire from the Bench due to the State's mandatory retirement age of 70-years-old.  The Poughkeepsie Journal has recently published two great articles on Judge Rosenblatt here and here.  To sample two of Judge Rosenblatt's decisions in which he infused his dogged pursuit of historical background information, see two of my favorites:  Blake v. Neighborhood Hous. Servs. of New York City and Morejon v. Rais Constr. Co.

Judge Rosenblatt inspired me, although he doesn't know it, to delve into the world of Sherlock Holmes.  Judge Rosenblatt and his wife are members of the Baker Street Irregulars, which is but one of their many interests.

Graham v. Dunkley Part Deux

In response to my prior post on Graham v. Dunkley (see post here or just scroll down), one of colleagues has informed me that the defendant has moved for reargument of Justice Polizzi's Decision and Order.  Justice Polizzi has apparently retired so the motion is before another Justice.  The reargument decision is rumored to come down in December 2006.

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

Thanks to Bryan for the update.

Update on Graham v. Dunkley -- The Transportation Equity Act of 2005

New York Civil Law reported in September about Justice Polizzi's decision in Graham v. Dunkley,  holding that that the Transportation Equity Act of 2005 was unconstitutional (see prior post here).  I contacted Plaintiff's attorney, Scott Zlotolow, yesterday and learned that the defendant has filed a notice of appeal but has not yet perfected the appeal.

New York Civil Law will keep you apprised of the case.  If you have any articles or any further information on the case, I would appreciate anything you can send me.

Appellate Division, First Department Finds Spoliation But Does Not Dismiss Design Defect Action

In McMahon v. Ford Motor Co., the Appellate Division, First Department was faced with the defendant's argument that the destruction of the subject automobile impaired its ability to defend itself in an adequate fashion against a design defect claim.  The plaintiff alleged that he was injured in an automobile accident due to the subject automobile's defectively designed seat belt.  The insurance company destroyed the subject vehicle,  apparently informing the plaintiffs in advance of the planned destruction.  The plaintiffs raised no objection.

The Court held that spoliation occurred but a dismissal of the plaintiff's claim of defective seat belt design was too drastic of a remedy.  The Court observed that prior to the vehicle's destruction, the seat belt buckle the plaintiff allegedly used at the time of the accident was removed from the vehicle in a documented procedure performed by an insurer, was preserved, and the defendants had since inspected it.   The Court also noted that the plaintiffs submitted an unrebutted expert affidavit explaining that the entire vehicle was not necessary to the defense of their claim, as narrowed.