New York Civil Law

Happy New Year

bouI want to wish everyone a very Happy and Safe New Year.

Posts return tomorrow.

Happy Holidays - Posts Resume After New Year

I apologize for the lack of posts.  Posts will resume after the New Year.

Have a Happy Holidays and New Year.

Supreme Court, Queens County Orders In Camera Inspection of Driver's Cell Phone Records in Motor Vehicle Accident

As many lecturers will tell you, the proliferation of electronically stored information makes its impact on litigation inevitable.  The recent case of Morano v. Slattery Skanska, Inc. out of Supreme Court, Queens County is a good example.

The injured plaintiff was driving a motorcycle and saw a motor vehicle stopped on the side of the road.  He thought the person was broken down and calling for help on her cell phone.  He stated in an affidavit in support of a subpoena for the driver's cell phone records that he saw the driver "with an object in her hand held to her head."  The defendant moved to quash the subpoena for the records, citing privacy issues.

Justice Ritholtz denied the motion to quash the subpoena, ordering an in camera review to determine what calls, if any, should be discoverable by the accident victim.  Notably, Justice Ritholtz observed that the justification for allowing the injured plaintiff to even gain the benefit of obtaining any part of the cell phone records was his statement that he saw the defendant holding something to her head that looked like a cell phone just before the accident happened.  Justice Ritholtz indicated in the decision that a party would not be able to discover such records without some indication that a cell phone was a possible factor in the accident.

Appellate Review and Judicial Notice

Every appellate attorney knows that appellate courts only review submissions that were presented to the trial court below (except in narrow circumstances) -- nothing outside of the record.  The recent appeal in Walker v. City of New York really drives that point home, rejecting the plaintiff's request for the Court to take judicial notice of an affidavit filed in a submission that was unrelated to the motion on appeal.

The plaintiff in Walker was attempting to vacate a dismissal of his action.  In support of the vacatur motion, the plaintiff failed to submit to the trial court an affidavit of a medical expert to opine on the merits of the malpractice action.  To avoid the consequences of this failure, the plaintiff requested that the Court take judicial notice of a medical expert affidavit that was filed in support of a prior motion for leave to serve a late notice of claim.  In an excellent discussion of judicial notice in the context of appellate review, the Appellate Division, Second Department refused to do so.   The Court noted that the affidavit, which contained disputed facts, was not the type of factual material of which it could take judicial notice.

Thank you to the excellent blawg New York Legal Update for calling my attention to the appeal (see post here).

Anniversary of the Death of John Lansing, Jr. -- Former Chief Justice of the New York Supreme Court of Judicature

Yesterday marked the anniversary of John Lansing, Jr.'s mysterious death in 1829.  Among other things, John Lansing, Jr. was a Justice (appointed 1790) and later Chief Justice (1798) of New York's Supreme Court of Judicature -- the predecessor to the New York Court of Appeals (see "Duely and Constantly Kept" as reproduced at the Historical Society of the Courts of the State of New York").

On the evening of December 12, 1829, John Lansing Jr. left his Manhattan hotel to mail a letter at a New York City dock and was never seen again.

Supreme Court, Nassau County Addresses Interesting Question Regarding Workers' Compensation Law sec. 11 -- Grave Injury

In Paccio v. Whiting Door Manufacturing, Supreme Court, Nassau County (Lally, J.), addresses, among other things, whether the plaintiff sustained an "acquired injury to the brain caused by an external physical force resulting in permanent total disability" as set forth in Workers' Compensation Law sec. 11.   As you remember from Rubeis v. The Aqua Club, this particular injury must render the employee incapable of employment in any capacity; however, the injured plaintiff need not be unable to engage in the functions of daily living or be reduced to a vegetative state (see prior post)

The interesting point about this case is that the Court determined that an issue of fact existed as to whether the plaintiff's injuries qualified for this particular "grave injury," basing its conclusion on the plaintiff's expert affidavit regarding a physical examination that occurred a year before the affidavit's date.  The expert had numerous gaps in her affidavit, failing to clarify whether certain impairments were present prior to the plaintiff's accident.

Governor Spitzer Approves Thirteenth Judicial District

Last week, Governor Spitzer approved Bill A2688/S1325, which created a new judicial district for Staten Island.  The Bill amends New York's Judiciary Law and is the first creation of a new judicial district since 1981.  The New York Law Journal wrote about the new judicial district here and the Staten Island Advance (a paper a proudly delivered as a youth) has this article here.

The Appellate Division, Second Department Takes a Difficult Look at the Collateral Source Rule

In Kihl v. Pfeffer, the Appellate Division, Second Department recently took a look at the application of the collateral source rule.  One of the defendants in the case was attempting to get a reduction on the jury's award of over $1 million in the plaintiff's future medication expenses based on her husband's current health plan.  The question on appeal was whether the evidence established with reasonable certainty that the plaintiff would continue receiving health coverage toward her future medication expenses, warranting a collateral source reduction.

The Second Department weighed five factors and held that the evidence did not establish reasonable certainty of the coverage continuing for the plaintiff's expected lifetime.  The Court provided an excellent discussion of the standard "reasonable certainty" as stated in CPLR 4545(c).

New York Court of Appeals Addresses Duty of Care Issue Regarding Breach of Contract

Can a mechanic that performed a negligent inspection on an automobile be liable to a third-party who gets into an accident with the automobile that the mechanic inspected? (see prior post)  The New York Court of Appeals in Stiver v. Good & Fair Carting and Moving, Inc. that it would not impose such a duty of care on inspection stations, observing that it was unwilling to force inspection stations to insure against risks "the amount of which they may not know and cannot control, and as to which contractual limitations of liability [might] be ineffective."

This decision provides a good example of the application of the three exceptions to the generally held principle that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party."  It will serve you well to read Espinal v. Melville Snow Contrs. and Church v Callanan Indus. as background for this case.

A Divisive Decision -- Arons v. Jutkowitz & Kish v. Graham -- Which Side Are You On?

Most of you have already trudged through the New York Court of Appeals' 32-page decision in Arons v. Jutkowitz and Kish v. Graham.  For those who didn't, the Court held that defense counsel may conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  A plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  The defense attorney need not hand over to the plaintiff's attorney notes, memoranda or recordings of the informal interview; the treating physician is not compelled to cooperate.  Judge Pigott dissented, arguing that Article 31 of the CPLR does not provide for this type of discovery and its silence on the matter indicates that the Legislature did not authorize it.

Numerous bloggers have weighed in on this case:  this post at New York Personal Injury Law Blog (with comments), this post at A Buffalo Lawyer, this post at Outside Counsel, this post at HealthBlawg, and this post at Drug and Device Law.

I'm trying to shed my "defense attorney mind-frame," but I just don't see how the absence of a provision in the CPLR reflects that such ex-parte interviews are disallowed (a la Judge Pigott's reasoning in his dissent).  Informal discovery devices exist that both parties use to gain information, most of which are not set forth in the CPLR.  What's the justification for precluding this discovery device where the plaintiff has already put his or her physical or mental condition at issue (especially where the physician can refuse to cooperate and can testify at trial about what the defense counsel asked)? 

I'd really value your opinion and encourage your comments.