New York Civil Law

New York Court of Appeals Addresses Landowners Liability

The New York Court of Appeals recently granted a motion for leave to appeal in Yarborough v. City of New York.  The matter involves a plaintiff who injured himself on a pothole on a New York City street.  The leaveworthy issue apparently involved in the case was what evidence was the plaintiff required to proffer to raise an issue of fact to establish that there was an affirmative act of negligence of New York that created the defect. 

The Court in Yarborough observed:

The plaintiff's engineers submitted sufficient evidence that the City was the only entity that could have been responsible for the allegedly defective street repair, and outlined the manner in which the repair deviated from relevant construction industry practices.  However, the plaintiff submitted no evidence as to when the street repair occurred in relation to the accident or that the repair immediately resulted in a dangerous condition.  The mere “eventual” emergence of a dangerous condition as a result of wear and tear and environmental factors, as described by one of the plaintiff's experts, does not constitute an affirmative act of negligence that abrogates the need to comply with prior written notice requirements.

NYCL will keep you abreast of developments in this case.

Is a High/Low Agreement a Settlement? Appellate Division, Second Department Says So

In Cunha v. Shapiro, the Appellate Division, Second Department recently addressed two open issues: (1) is a high/low agreement considered a settlement; and (2) if so, does the high/low agreement trigger CPLR 5003-a?  The Second Department answered in the affirmative on both issues. 

Appellate Division, First Department Reaffirms Concept that Insured Can Seek Extra-Contractual Damages Against Insurer

The concept that an insured can seek damages against its insurer above and beyond the limits of its policy is a somewhat unsettled concept in New York.  Acquista v. New York Life Ins. Co. is an insured's favorite case because the Appellate Division, First Department held in that case that an insured could indeed recover extra-contractual damages.  Since Acquista, the federal courts in New York have heavily criticized it and it hasn't been cited enough to gain momentum.

Does the First Department's in Panasia Estates, Inc. v. Hudson Ins. Co. change that?  In Panasia, the First Department concluded that the trial court correctly denied the insurer's motion to dismiss regarding the insured's claim for extra-contractual damages.  Guess what case the First Department cited for that proposition?  You got it: Acquista.

Don't fear insurers . . . The Appellate Division, Second Department recently rejected Acquista in Paterra v. Nationwide Mut. Fire Ins. Co.

Thanks Dan for the head's up on this case.

Free Electronic Management Seminar on May 17, 2007

I thought this press release would be of interest to some of NYCL's readers:

TECHNOLOGY FOR LAW FIRMS: ELECTRONIC DOCUMENT MANAGEMENT SEMINAR SCHEDULED FOR MAY 17, 2007

Converting Your Office From Piles (Of Paper) To Files (Of Easily Managed Documents): a Technology Roundtable Hosted by Washington D.C. Law Firm, Tobin, O'Connor, Ewing & Richard in conjunction with IT Managed Services Provider, Alteritech

WASHINGTON, D.C., May 2, 2007 - Tobin, O'Connor, Ewing & Richard, a Washington D.C. law firm and Alteritech, an IT consulting and managed services firm, announced today they will host a Law Firm Technology Seminar on May 17, 2007 from 6 pm

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8 pm. The seminar will be led by Eric Nelson, who has served in executive IT management roles at MegaPath Networks, Netifice Communications, e.spire Communications and is currently a Director at Alteritech. The seminar offers free admission to lawyers who have passed the Bar Exam in the DC area or in another state.

Boxes of paperwork in the hallways, in the conference room, in storage can be costing you thousands in real estate dollars and countless hours in efforts to locate past information. Any law firm can testify that paper is an essential asset to its office. But, what if you could get rid of the piles of paper by converting to a paperless office? Tobin, O'Connor, Ewing & Richard will host a seminar and peer-to-peer discussion on the topic of how to convert your office from piles of boxed paper to easily found and indexed files of version controlled documents.

IT expert, Eric Nelson, will present the "Do's and Don'ts for Going Electronic" and lead a discussion among your peers to determine what has worked most effectively at other law firms. Eric has held Senior Vice President and CIO positions at next-generation service providers MegaPath Networks and Netifice Communications and currently serves as Director at Alteritech, a leading provider of managed IT services for law firms and other mid-sized businesses.

WHEN: Thursday, May 17, 2007 6:00 pm

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8:00pm

WHERE: Maggiano's Little Italy (conveniently located at the Friendship Heights metro stop)

5333 Wisconsin Avenue N.W.

Washington, DC 20015

FREE ADMISSION: To attorneys who have passed the Bar Exam in the DC area or another state.

PLEASE RSVP by May 7, 2007, if possible to: [email protected]

Free Expert Witness Database

JurisPro is a free database of expert witnesses.  The database goes well beyond just listing an expert's contact information.  Some profiles include photographs, the respective expert's webpage, references, CV, and contact information.  A search of more common areas of expertise resulted with a list of experts in the New York area.  As I searched for more obscure areas, the geographical search expanded beyond New York, even if I limited the search to New York. 

The webpage also provides a free e-newsletter entitled "The Pro."  For a free service, this database goes well beyond what I have seen floating out there on Web.

Jurisdictional Tidbits in Recent New York Court of Appeals' Decision

As reported in this prior post, the case of Pavlou v. City of New York raises some extremely interesting issues.  The seriously injured plaintiff commenced an action against the City of New York (the site's owner) under, among other statutes, Labor Law sec. 241(6) for violation of the specific State Industrial Code concerning maximum weight loads for cranes.  The City, in turn, commenced an action against the plaintiff's employer for contribution and indemnity based on its negligent maintenance of the crane; allegations existed that the crane had a crack in it before the accident.

The Majority and Dissenting opinions of the Appellate Division, First Department grapple with the jury verdict in which the jury found that the City's violation of the Labor Law was not a substantial cause of the accident but asserted 99% liability against the employer (a third-party plaintiff), even though the jury asserted no liability against the direct parties.

The New York Court of Appeals' held that the First Department did not abuse its discretion of reversing the trial court's order granting a new trial.  The first procedural tidbit is that the Court's review power over the certified question was restricted to whether the First Department abused its discretion in reversing the trial court's grant of a new trial.  Because the trial court granted a new trial based on its discretion and in the "interest of discretion," and the First Department reversed essentially in the interest of justice (even though it stated it did so on the law), the Court's review power is restricted to whether the First Department abused its discretion (the explanation of reviewability is best understood by reading Levo v.Greenwald, 66 NY2d 962, 963 (1985).

An additional jurisdiction point is that the Court could not review a prior nonfinal order, even if it necessarily affected the First Department Decision and Order below.  The appeal came up to the Court as a certified non-final question and, therefore, the Court did not have jurisdiction to review the prior nonfinal order (the best explanation for this conclusion is reading CPLR 5501(a)(1) ).

New York Court of Appeals Decides Premises Liability Case Regarding Duty of Care of Condition on Neighboring Premises

The New York Court of Appeals in Clementoni v. Consolidated Rail Co. affirmed the decision of the Appellate Division, Fourth Department regarding the defendant private landowners duty of care regarding railroad tracks that passed over their property.  As stated in a prior post,  an automobile driver brought an action against a railroad, the estate of deceased owners of private road, and owners of property abutting railroad tracks and a private road, based on injuries he sustained when his vehicle collided with a train.  The motorist claimed that the owners of the private road owed him a duty to warn or protect him from the dangers of the railroad crossing.  Notably, the motorist stated his deposition that he had passed over the railroad crossing on that day three times before.  The Majority of the Appellate Division, Fourth Department dismissed the claim against the property owners, holding that they did not owe the motorist a duty to erect a gate and, in any event, the lack of protections were not the proximate cause of the accident.

The Court of Appeals agreed,  stating:

Plaintiff assumed that the tracks were actively used by Conrail's trains.
He testified that the stopped and looked in both directions for oncoming
trains and proceeded cautiously each time he approached the tracks, which he
uneventfully drove across three times on September 27, 1994
before the accident.   As for the landowners, a landowner is
generally not liable for the existence of uncut vegetation
obstructing the view of motorists at an intersection

Should You Object During Summations

I haven't seen a lot of decisions like the Appellate Division, First Department's decision in Binder v. Miller.  The case concerned a dental malpractice action, and during summations the plaintiff's attorney called the defendant's expert witness a litigation witness.  The defendant's attorney preserved the objection for appellate review but was restricted from objecting during the summation of the plaintiff's attorney.   The Court held that the remark was better left unsaid but did not warrant a new trial.

The takeaway point of the case is that the Court reminded the Supreme Court Justice that directing counsel that "there is to be no objecting in the middle of summations," is inappropriate.

Attorneys have their own rules about objecting during openings and closings (always with an eye toward not looking obstructive in front of the jury).  This case provides a good lesson for attorneys to keep their wits about them when a judge does something that warrants appellate review, making sure to do something to preserve the issue for appellate review.

New York Court of Appeals Will Address Issue Regarding Serious Injury Threshold and SUM Coverage

Does an injured plaintiff have to establish he or she sustained a "serious injury" under Insurance Law sec. 5102 to recover supplementary underinsurance motorist coverage (SUM) from his or her insurance carrier?  The Appellate Division, Second Department in Raffellini v. State Farm Mut. Auto. Ins. Co. held that the injured plaintiff did not have to do so.

The Second Department on March 5, 2007 granted State Farm's motion for leave to appeal to the Court of Appeals and, therefore, the New York Court of Appeals will sort out this issue.

NYCL will keep you apprised of the developments in the appeal.