New York Civil Law

Dissenting Opinion Offers Helpful Analysis Regarding Spoliation and Circumstantial Evidence Analysis

Justice Perradotto's Dissenting Opinion in the Appellate Division, Fourth Department's opinion in Ramos v. Howard Indus., Inc. really hits the nail on the head.  The case concerns a very difficult analysis practitioners frequently face when a product is discarded or destroyed, and the manufacturer is attempting to move for summary judgment to demonstrate no defect existed with the product.

In Ramos, the plaintiff was injured by a transformer -- manufactured by the defendant -- when it exploded.  The transformer was no longer available, and the plaintiff claimed that the explosion occurred because of a design or manufacturing defect.  The Majority denied the manufacturer's summary judgment motion, holding that  the manufacturer did not  even meet its burden on the motion because it merely pointed to gaps in the plaintiff's evidence.  The defendant submitted evidence establishing that its transformers generally were designed and manufactured under state of the art conditions according to Niagara Mohawk's specifications and complied with all applicable industry standards, and that the transformer in question would have been individually tested to ensure compliance with customer specifications and industry requirements.

Justice Perradotto disagreed, noting

the majority is requiring defendant to make that same showing [one where the product is available] where the product is unavailable for inspection and testing. In my view, the majority thus is disregarding the particular facts of this case and is thereby creating a burden that is impossible for [the] defendant to meet and that is greater than that required by precedent.

She also points out that the Majority incorrectly required that the manufacturer eliminate a manufacturing defect as a cause of the accident.

Justice Peradotto's Dissenting Opinion crystallizes the exact issue and difficulty that arises when a product is spoliated, the plaintiff is attempting to prove the case circumstantially, and the defendant is left to defend itself without the product.  The opinion is a required read.

Thyroff v. Nationwide Mut. Ins. Co. -- An Incredibly Forward-Thinking Decision on Conversion

Judge Graffeo wrote an extremely encouraging and forward-thinking opinion regarding whether the common-law cause of action of conversion applies applies to electronic computer records and data.  In Thyroff v. Nationwide Mut. Ins.  Co., the New York Court of Appeals held that the cause of action of conversion can apply to electronic computer records and data, refusing to expand its holding beyond the certified question that specifically stated electronic computer records and data.

The decision is encouraging because Judge Graffeo analyzes the development of conversion through history and recognizes that changing societal attitudes and technology warranted change in how this cause of action encompassed property.  Perhaps courts around the country can look to this decision in thinking about other important topics where the law has not kept up with advancements in technology -- i.e., copyright law.

Don't Call It A Comeback . . .

The sorely missed posts at It's No-Fault of New York have resumed.  Go visit Damin and his informative and witty posts on New York no-fault law.

Recent New York Court of Appeals Decision on Court of Claims Act

In Kolnacki v. State of New York, the New York Court of Appeals held that the claimant's failure to provide the "total sum" of monetary damages in her claim, as required by Court of Claims Act § 11 (b), is a jurisdictional defect warranting the dismissal of the claim.  The claim arose within the context of a personal injury.  The Court rejected the claimant's argument that personal injury claims are sometimes difficult to estimate damages, stating a claimant can always provide an estimate that can be later amended.  The Court's reasoning is that essentially the State has waived immunity to be sued in exchange for a claimant following the mandates of the Act.

In light of the Kolnacki decision , claimants should follow the mandates of the Court of Claims Act.

New York Court of Appeals Determines No-Fault Priority of Payment Issue

How can you not love New York's no-fault regulations?  They raise such interesting issues.

Today, the New York Court of Appeals in Nyack Hosp. v. Gen. Motors Acceptance Corp. determined the following issue: whether an insurer that is waiting for information to verify a pending claim that causes aggregate claims to exceed $50,000 is prohibited by the priority-of-payment regulation (11 NYCRR 65-3.15) from paying already verified claims in the meantime.  The applicable regulation states:

[w]hen claims aggregate to more than $50,000, payments for basic economic loss shall be made to the applicant and/or an assignee in the order in which each service was rendered or each expense was incurred, provided claims therefor weremade to the insurer prior to the exhaustion of the $50,000. If the insurer pays the $50,000 before receiving claims for services rendered prior in time to those which were paid, the insurer will not be liable to pay such late claims.  If the insurer receives claims of a number of providers of services, at the same time, the payments shall be made in
the order of rendition of services.

The Court held that the regulation does not prohibit the insurer from paying already verified claims from other providers or applicants for reimbursement while the insurer awaits verification for an earlier submitted claim.

Because the procedure is so involved, I recommend analyzing the Decision.

March 26, 2007: I have added a trackback to It's No-Fault of New York's helpful discussion about this case.

 

Appellate Division, Fourth Department Is On Board with Second Department's Arons v. Juktowitz Decision

The Appellate Division, Fourth Department in Kish v. Graham recently sided with the Appellate Division, Second Department's reasoning in Arons v. Juktowitz (see prior post).   The Fourth Department held that there are several compelling reasons why a defense counsel's post-note of issue, ex parte interview with a plaintiff's treating doctor is impermissible.   The Court observed that no provisions in the law exist to permit this type of interview.  The decision is comprehensive and worth a read regarding a percolating issue within the Appellate Division Departments.

Thanks Paul for the tip on this case.

What is the Precedential Value of Graham v. Dunkley?

As most New York practitioners know already, Justice Polizzi (Supreme Court, Queens County) in Graham v. Dunkley held that that the Transportation Equity Act of 2005 was unconstitutional (see prior post).  As stated in the decision, the Act intends to preempt all state statutes to the extent that they hold those owners in the business of renting or leasing motor vehicles vicariously liable for the negligence of drivers, except when there is negligence or criminal wrongdoing on the part of the owner.  In New York, the Act implicates Vehicle and Traffic Law sec. 388.  That part of the Act which impacts sec. 388 is known as the Graves Amendment.

Notably, several cases decided subsequent to Graham have addressed some aspect of the applicability of the Act, recognizing that the Graves Amendment preempts state law.  For example,
the Appellate Division, Second Department in Jones v. Bill discussed whether the relation-back doctrine applied in action that concerned the applicability of the Graves Amendment.  The Second Department did not discuss the constitutionality of the Graves Amendment, nor did it acknowledge Graham.  In fact, my reading of the appellate briefs revealed that neither party raised the constitutional issue.   

The Appellate Division, Fourth Department in Williams v. White cited Jones v. Bill,  and concerned a similar relation-back issue regarding the Graves Amendment.  The Fourth Department also ignored the Graham decision.

Perhaps the most surprising is another Queens County Supreme Court Justice ignored the Graham decision and applied the Graves Amendment -- Infante v. U-Haul Co. of Fla.

What do these subsequent decisions say about the currency of Graham's precedential value?  Seems to me that New York courts are just ignoring the Graham decision and treating it like an anomaly.  We'll just have to see what the Second Department is going to do when it decides the Graham appeal.

New Treatise on No-Fault Law

Larry Rogak of Lawrence N. Rogak LLC has published a much needed treatise on New York's No-Fault Law (see publication here at Amazon.com).  I have not read the "Rogak's New York No-Fault Law & Practice" yet, but if it is anything like Larry's "The Rogak Report" it is sure to be incredibly informative and helpful to the New York No-Fault practitioner.

A Great Original Submission for the No-Fault Parody Contest

In comes New York Civil Law's third entry in the No-Fault parody contest (see posts here and here).  This gem comes from one of New York's most prolific insurance commentators, Larry Rogak.  He offers this original song.  I'm sure you will enjoy it as much as I have.

NO FAULT PARADISE

As I drive through the shadows of the Brighton Beach El
I take a whiff and I catch the unmistakable smell
Of the borsht and the hummus and the cabbage soup
But that's not all that's being cooked up by these immigrant groups
You get a Pontiac that's maybe fifteen twenty years old
And pack in twice as many people as the vehicle holds
Cruise the Grand Central Parkway or the B.Q.E.
With a car full of people fresh from over the sea
Looking for a likely target like a Porche or a Benz
Or some other fancy ride you buy to show to your friends
You cut in front of that sucker and you slam on your brakes
Then he hits you in the rear and now it's all his mistake

Thanks to this world of vice, we're living in No Fault Paradise
If you just roll the dice, you can live in No Fault Paradise
Came here for a better life, now I'm in a No Fault Paradise
You can live like Heidi Fleiss, thanks to this No Fault Paradise

Send these immigrants to clinics where they go through the mill
Got your acupuncture, chiropractic, collars and  pills
They stick a needle in your booty, and one in your knee
And check the status of your nerve conduction velocity
They got psychologists to talk to you and check out your mind
And before you go they'll take an x-ray of your behind
Before I came to this country I would ride on a goat
Now I got myself a sixty-five foot luxury boat
Got a twenty-bedroom house with seven double jacuzzis
And get my manicures and pedicures from personal floozies
You'll never hear this homey make a fuss or complain
Cause I make out like a bandit in the No-Fault game

Let me give you my advice, join me here in No Fault Paradise
Get a lawyer, don't think twice, you can live in No Fault Paradise
There's a pie, you'll get your slice, when you live in No Fault Paradise
Fraud is the admission price, to get into No Fault Paradise

Appellate Division, First Department On Routine Maintenance vs. Repair Argument of Labor Law sec. 240(1)

The Appellate Division, First Department in Cordero v. SL Green Realty Co. addressed the often elusive repair (covered activity under sec. 240) versus routine maintenance (not covered) argument within the Labor Law sec. 240(1) context.  The Court held that the plaintiff's injury while replacing metal slats of a fully operational roll-down security gate was routine maintenance.   The Court relied upon Esposito v. New York City Indus. Dev. Agency.