New York Civil Law

No Posts This Week

Because of work commitments, I will not be posting this week.  I'll see you back here next week.

Treble Damages Under General Business Law sec. 340 Not Recoverable for Class Action

The New York Court of Appeals decided yesterday in Sperry v. Cromptom Corp. that treble damages in a class action under General Business Law sec. 340 are not recoverable.  Judge Graffeo provides an excellent decision explaining the history of sec. 340, providing an analysis of the difference between a penalty provision and compensatory provision in a statute, and the history of the class action rule of the CPLR. 

New Entry in No-Fault Song Parody Contest

Remember my proposition of submitting a song parody based on the no-fault law? (see prior posts here and here).  Well, I received yet another song parody.  This song comes to us from one of my close sources, who wishes to remain anonymous. 

“Cripple Creep” sung to the tune of Up on Cripple Creek, by The Band (listen here for the song)

When I get off of this gurney

You know where I want to go

Straight up the five line subway

To Bronx Borough Medical

Bronx Expert Radiology

Little radiologist that I once knew

And he told me just to come on by

If there's anything he could do

Up for DME he sends me

If I spring a disc he mends me

I don't have to speak my lawyer defends me

An insurance dream if I ever did see one

Phantom driver had just struck me

To the dentist I did go

He bet on TMJ

And I got my prescription to go

Odds were in my favor

I had the adjuster five docs to one

When that IME appointment came around

I was sure that I had won

I took all of my MRIs

And I gave that IME doctor half

And he looked at them and just shook his head

And I just had to laugh

Now there's one thing in the whole wide world

I sure would like to see

That's when that IME report shows up

And they try to use it to deny me

Up for NCVs he sends me

I just sign the sheets he pays me

I don't have to work he disables me

An insurance dream if I ever did see one

Loo, loo hooooooo . . .

Lodi, lodi, lodi hoooooo . . . . .

Now, there's arbitration out in Queens

And this massage therapy is getting old

And this living off no-fault wages

Is almost three years old

So I guess I'll call up my employer

Tell him I'll be rolling in

But you know, deep down, I'm kinda tempted

To go and see my chiropractor again.

Up for EMGs he sends me

Household help and mileage he gets me

I don’t have a maid but I get paid

An insurance dream if I ever did see one

Loo, loo hooooooo . . . .

Lodi, lodi lodi hoooooooo . . . .

New York Court of Appeals Will Hear Important Workers' Compensation Issue -- Burns v. Varriale

Last week, the New York Court of Appeals granted leave to appeal in Burns v. Varriale.  As stated in this prior post, the appeal addresses the following workers' compensation law issue: whether the value of future workers' compensation benefits to be awarded to a claimant with a nonscheduled permanent, partial disability is speculative.  The Appellate Division, Third Department held that the value is speculative.

The appeal will  impact the way courts apportion a workers' compensation carrier's share of litigation costs a worker expends in commencing a successful lawsuit against a third party regarding the injury.  This case puts a glean on an older New York Court of Appeals' case, Matter of Kelly v. State Ins. Fund, 60 N.Y.2d 131 (1983). 

New York Civil Law will keep you apprised of oral arguments and the decision.

New York Court of Appeals Adheres to Well-Settled Rule Regarding Common Carriers

Last week, the New York Court of Appeals in Bingham v.  New York Trans. Auth. adhered to a long-standing rule regarding the duty of care imposed on common carriers.  Courts have long recognized that the duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers.

In Bingham, the plaintiff fell while descending a stairway leading to a subway station, alleging that a dangerous condition caused her fall.  She brought suit against the New York City Transit Authority and the Metropolitan Transit Authority, asserting, among other things, failure to keep and maintain the stairway in a proper and safe condition and failure to provide notice or
warning of the defective condition.  The Transit Authority neither owned nor maintained the stairway.   It requested that Supreme Court charge the jury that, unless the plaintiff
had established that the stairway was used exclusively for subway purposes, she had failed to state a cause of action and her suit should be dismissed.  The Supreme Court rejected the Transit Authority's request.

In upholding the jury charge requested by the plaintiff, the Court of Appeals fashioned this rule regarding common carriers: Where a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger.  Whether those means of ingress or egress are used primarily for that purpose would generally be a question of fact.

The procedural posture of this particular case is interesting because this was the second time that the case was before the Court.  In Bingham I, the Court observed that the Transit Authority failed to preserve the argument regarding a common carrier's duty within the context.  The Bingham I decision is an excellent discussion of the preservation rule.

New York Civil Law's Third Anniversary

I am proud to announce that today marks the third anniversary of "New York Civil Law."  When I first started writing this blawg, there were only a few New York blawgers.  Now I'm proud to say that I am one of many New York blawgs.  Throughout these three years, I have interacted with so many great people.  Thank you for reading this blawg, and I hope the upcoming year is as fun and informational for you as it will be for me.

Here is an abbreviated list of New York's blawgers:

A Buffalo Lawyer

Albany Lawyer

The Disabled Worker Blog

Indignant Indigent

It's No-Fault of N.Y.

Jamestown Lawyer

Lennyesq.

New York Divorce Report

New York Personal Injury Law Blog

New York Public Personnel Law

New York Small Business Law

New York Zoning & Municipal Law Blog

No-Fault Paradise

Outside Counsel

Second Opinions

Small Town Lawyer

Sui Generis

Tillers on Evidence and Inference

A Visit to Orange County, Supreme Court

A couple of days ago I had the pleasure of visiting Supreme Court, Orange County.  It's a long drive from Albany, especially when you have 9:00 a.m. calendar call, but I really enjoy Goshen (where the courthouse is located).

The courthouse's new addition is extremely nice.  There's lots of glass and cool lighting in the walkways.  It's a nice change from the older section of the courthouse, which reminds me of the dormitories at the University at Buffalo and Fredonia.

The courthouse is located at 285 Main Street, Goshen, New York 10924.  Justices Alessandro, Horowitz, McGuirk, Owen, and Slobod reside there.

I think my pictures are better than the one posted on the court's webpage.

Two Cases Regarding Sole Proximate Cause Analysis of Labor Law sec. 240(1)

Two recent cases in the First and Second Department address the sole proximate cause analysis of Labor Law sec. 240(1), and the cases reach different results.  The first case, Leniar v. Metropolitan Tr. Auth., is reminiscent of  Cahill v. Triborough Bridge & Tunnel Auth.  In this case, the plaintiff was injured when he fell approximately 13 feet from a scissor lift while painting a section of the Verrazano Bridge.  The defendant established on summary judgment that the plaintiff was provided with a safety harness and a lanyard, that he was present for several safety meetings at which he was instructed in the use of the harness, that he was instructed to tie-off the harness at all times while using the scissor lift, and that the plaintiff intentionally unhooked his harness and climbed on the railing of the scissor lift, in direct violation of these instructions.  The parties do not dispute that the plaintiff would not have fallen to the ground and sustained injuries if his harness had been hooked to the scissor lift.  The plaintiff's supervisor also stated in an affidavit that he told the plaintiff to paint only the sections of the bridge he could reach.

The Appellate Division, First Department concluded that the plaintiff was the sole proximate cause of his injuries as a matter of law.  The Court cited Robinson, but curiously failed to cite Cahill.

The defendant in Gonzalez v. Rodless Props. L.P. was not as successful.  The plaintiff sustained a height-related injury; however, the decision is unclear how.  The injured plaintiff was provided with several safety devices enumerated in Labor Law § 240(1) — two scaffolds, a ladder, ropes and a safety harness.  The Appellate Division, Second Department held that the defendant raised a triable issue of fact in opposition to the plaintiff's motion on 240(1) liability that proper safety devices were provided and the worker's own recalcitrant conduct may have been the sole proximate cause of his injury.  Given that the plaintiff seemed to be provided with a multitude of safety devices, I am curious to know why the defendant did not move for summary judgment. 

Judge Theodore Jone Jr. Confirmed to the New York Court of Appeals

Yesterday,  February 12, 2007, Judge Theodore Jones Jr. (see prior post) was sworn in as Judge of the state's highest court, the New York Court of Appeals.  Judge Jones said this about his confirmation and the Court: "I'm proud of course to be confirmed and sworn in to this           [C]ourt which is so important to this state and to the residents of New York."

As an article in the Albany Times Union pointed out, Judge Jones is in the gender minority on the Bench.  Judge Jones, Judge Pigott, and Judge Smith share the Bench with their female colleagues: Chief Judge Kaye, Judge Ciparick, Judge Graffeo, and Judge Read.

Here's a short piece at Capital News 9

Thank you Eric at New York Personal Injury Law Blog for the head's up.

Appellate Division, Second Department's Automobile Chain-Reaction Holding Redux

A recent post regarding an automobile chain-reaction accident stirred up a lot of discussion here at New York Civil Law (see post here).  In Park v. Kim, the Appellate Division, Second Department revisited a similar situation, but ironically not citing Ali v. Daily Pita Bakeries (the case that raised the hackles of a few NYCL readers).

In Park, defendant Park apparently stopped his automobile short on a roadway (unidentified in the decision) and defendant Kam was able to stop behind Park without hitting his automobile.  Defendant Kim rear-ended Lam (the one who successfully stopped behind Park), causing Kam (the second in line) to crash into Park (you following this?).  The defendants asserted cross-claims against Park his negligence proximately caused the accident.  The Court disagreed, observing that since Lam was able to safely bring his vehicle to a complete stop behind the Park vehicle prior to the collision, any purported negligence on the part of Park was not a proximate cause of the collision or the injuries.  Where's the citation to Ali?

More importantly, it appears that the Second Department is cutting off liability in a chain-reaction automobile accident where the automobile behind the lead automobile is able to successfully stop without hitting the lead automobile, irrespective of the negligence of how the lead automobile driver acted.