New York Civil Law

Tail Wagging the Dog? New York Court of Appeals Addresses Yet Another Dog Bite Case

We all recently read the misadventures of Larry Bard and Fred the hornless dairy bull in Bard v. Jahnke.  In Bard, the New York Court of Appeals followed the common law rule:  the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held strictly liable for the harm the animal causes as a result of those propensities.  Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.

Next Session, the Court will hear oral arguments regarding a glean on the vicious propensity rule in Bernstein v. Penny Whistle Toys, Inc.  In Bernstein, a young child was bit by a shop owner's dog while the young child, her friend, and her friend's mother were present in a toy store.  The novel issue is whether shop owners in addition to the legal obligations of a dog owner should be held to the standard of care imposed by the law of premises liability -- i.e., to maintain their premises in a reasonably safe condition in view of the circumstances.

The Majority in the Appellate Division, First Department applied Bard and held no triable issue of fact existed.  Justices Mazzarelli and Saxe dissented, raising the additional duty applied to shop owners.

New York Civil Law will keep you apprised of the Court's decision when it is handed down.

New York Court of Appeals Will Examine Burdens in Products Liability Context

During the February Session, the New York Court of Appeals will hear oral arguments in Ramos v. Howard Indus. Inc. -- a products liability case concerning an electrical transformer.  The novel issue concerns the burden a manufacturer has on summary judgment to make a prima facie showing that no manufacturing defect existed where the product has been spoliated.

The plaintiff in Ramos commenced a products liability action seeking damages for injuries he allegedly sustained when a transformer designed and manufactured by the defendant exploded.   Initially, the plaintiff reported to his employer and doctors that he was injured when he reached out of an aerial bucket while installing the transformer on a utility pole.  The plaintiff later claimed that his injuries occurred as a result of the transformer explosion, but at that time the transformer could not be located for inspection or testing concerning the cause of its failure.

In support of its motion the defendant manufacturer proffered evidence that its transformers generally were designed and manufactured under state of the art conditions according to power company's specifications and complied with all applicable industry standards.  The evidence also demonstrated that the transformer which allegedly exploded and injured the plaintiff would have been individually tested to ensure compliance with customer specifications and industry requirements.

The Appellate Division, Fourth Department Majority agreed with the trial court that the defendant manufacturer did not meet its burden on summary judgment because it merely pointed to gaps in the plaintiff's proof. 

Justice Peradotto dissented, offering a well-reasoned opinion on the impossible standard the Majority required of a defendant in defending a circumstantial products liability case where the product was missing.

NYCL will keep you apprised of the decision when the Court hands it down.

Free Webcast of New State Bar Association's Presidential Summit

Through the efforts of the New York State Bar Association's Electronic Communications Task Force, the State Bar will be webcasting the Presidential Summit on January 30th at 2 PM.  Here is the agenda (Download presidential_summit_agenda.pdf).

If you can't be at the NYSBA Annual Meeting, you can catch part, the webcast.  Just go to the  http://www.webcatter.com/live/nysbar/ to view the summit live over the Internet.

Unfortunately no CLE credit is available for viewing the webcast.

Excellent Upcoming Appellate Advocacy Seminar

I'd like to apprise you of an upcoming seminar an appellate advocacy.  I do so not solely because I am a member of the committee sponsoring the seminar; my experiences attending past seminars make me confident to say that this committee's seminars are some of the finest I've attended.

The upcoming Appellate Advocacy Seminar is sponsored by the DRI and will be held in Orlando, Florida on February 28-29, 2008.  The seminar's brochure is attached here: Download final_dri_app_advocacy.pdf

A  distinguished faculty of judges, professors, and appellate practitioners who will provide various perspectives on appellate advocacy.  A panel of federal and state appellate judges--Judge Diane Sykes of the Seventh Circuit, Chief Justice Jean Hoefer Toal of the South Carolina Supreme Court, and Judge Theodore McKee of the Third Circuit--will discuss the view from the other side of the bench. 

Dahlia Lithwick, a professional writer, will offer insights on how to create prose that will draw in the reader, and Professor Ruth Robbins will discuss the value of persuasion through appearance. 

Professor David Stras and attorney Patricia Millett will lead a panel discussion assessing the Roberts Court. 

James Duff, director of the Administrative Office of the U.S. Courts, will examine trends in federal appellate practice.  Additionally, a panel of general counsel will share their views on the role of appellate lawyers during significant trials.   

The seminar will be held at the JW Marriott Orlando, Grande Lakes Resort.  The number of credit hours is pending, but it should be around 12 hours, including one hour of ethics credit. 

If you have any questions, please feel free to contact me.  I can send you excerpts of the quality materials that I received during past seminars to help you make your decision to attend this upcoming seminar. 

New York Court of Appeals Will Resolve Conflict on Consequential Damages in Breach of Insurance Contract Context

The New York Court of Appeals recently heard oral arguments on whether an insured may recover consequential damages in a breach of contract action against his or her insurer.  The two appeals -- Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York [Fourth Department] and Panasia Estates, Inc. v. Hudson Ins. Co. [First Department] -- reached opposite results.

The Fourth Department in Bi-Economy held that the insured could not recover consequential damages.  The Court observed that the insurance policy expressly excludes coverage for consequential losses, and thus it cannot be said that such damages were “contemplated by the parties when the contract was formed.”

By contrast, the First Department in Panasia held that the insured could recover consequential damages, citing   Acquista v. New York Life Ins. Co., 285 A.D.2d 73, 730 N.Y.S.2d 272 [2001] ).  The insurance policy in Panasia excluded consequential losses.  The First Department held that the insurer had not shown that the exclusion was an applicable provision and observed that the terms "consequential loss" and "consequential damages" are not synonymous.

The forthcoming decision will finally put to rest whether consequential damages are recoverable in this context.

NYCL will keep you apprised of the Court's decision.

New York Court of Appeals Hears Oral Arguments on Premises Liability - Affirmative Act of Negligence

Most municipalities have a prior written notice requirement regarding  defects in sidewalks and streets.  However, an exception exists at common-law that prior written does not apply where the municipality's affirmative act created the hazard or defect.

An Appellate Division, First Department case -- Bielecki v. City of New York -- seems to have put a further glean on the exception.  The Bielecki holding indicates that an injured plaintiff can demonstrate that the defect is the  result of  an affirmative act by presenting evidence that the repair immediately resulted in a dangerous condition.

Last week, the New York Court of Appeals heard oral arguments on the application of Bielecki.  The appeal --  Yarborough v. City of New York -- concerns a plaintiff who injured himself on a pothole on a New York City street.  The plaintiff argued in opposition to the City's motion to dismiss that the City had created the defect through negligent repair and, therefore, prior written notice was not required.  An engineer for the plaintiff stated in an affidavit that the prior patching of the pothole "was improperly performed resulting in the recurring hole and depression."  The Appellate Division, Second Department granted the motion to dismiss, concluding that 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.

At the Court of Appeals, the plaintiff is arguing his suit should be reinstated, claiming that the testimony of his experts "established a prima facie case of negligence under the standard set forth in Bielecki since the patch repair immediately resulted in a defective condition."   He also asks the Court "to hold that even under Bielecki, a defect that was or should have been known at the time of the repair constitutes an exception to prior written notice statutes where there is adequate evidence of same."

NYCL will keep you apprised of the Court's holding when it is handed down.

New Blawg for Young Attorneys -- Learning to Litigate

Advice for the Young Lawyer: Learning to Litigate is a new blawg on, what else, tips for the young litigation attorney.  Frank Ramos writes substantive posts on such topics as deposition techniques, expert research, and tips on litigating certain types of cases.

Posts Resume When My Home Computer Comes Back to Life

What a way to start off 2008.  Not even finished with the first month of 2008 and my posts have been lagging.  Unfortunately, my home computer's OS completely quit on me and, therefore, I cannot analyze cases or post about them until I bring Microsoft XP (and my computer in general) back to life.

Please hang in there; 2008 is going to be a great year of posts.

See you next week -- hopefully.

New York Court of Appeals Recent Decision on Personal Jurisdiction

In Fischbarg v. Doucet, the New York Court of Appeals augments its case law interpreting what constitutes the transaction of business in New York under CPLR 302(a)(1) for purposes of this state's long-arm jurisdiction statute.  The crux of the decision is that courts should look to the quality of an out-of-state party's contacts with New York, not the quantity, in determining whether the party's activities justify a New York court's juridiction over that party.  Also, the Court dispels the myth that an out-of-state party cannot be hauled into New York courts where it has not physically entered the state.

The appeal concerns a dispute over fees between the plaintiff (a New York attorney who performed all his work in the underlying matter in New York) and the defendants (a California individual and corporation).  The defendants retained the New York attorney through a telephone call and subsequent letter, and frequently communicated with the attorney through email and telephone conversations. The dispute transpired entirely in Oregon.

The Court held that the defendants' actions in seeking out this New York attorney and engaging in frequent telephone conversations was of a quality that constituted transacting business under New York's long-arm statute.

Fischbarg provides one more example to flesh out the boundaries of CPLR 302(a)(1).

Appellate Division, Third Department Recent Decision on Attorneys' Fees in No-Fault Context

Within the No-Fault context, how should the arbitrator or court award counsel fees where a medical provider seeks reimbursement on multiple claims?  Is counsel entitled to an attorney's fee in the amount of $60 or 20% of the amount of the bill, plus interest thereon, subject to a maximum of $850 per assignor or per claim?

The New York Superintendent of Insurance states in this opinion that counsel fees should apply per assignor, not per claim.  In Alpha Chiropractic P.C. v. State Farm Mut. Auto. Ins. Co., Civil Court, Queens County (Siegal, J.), parted ways with the Superintendent and held counsel fees should apply per claim.   Civil Court, New York County in Marigliano v. New York Cent. Mut. Fire Ins. (Hagler, J.), also parted ways with the Superintendent.

Just recently, the Appellate Division, Third Department in LMK Psychological Servs. v. State Farm Mut. Auto. Ins. Co. also held that attorneys' fees should be calculated on a per claim basis.  The Court concluded that the Superintendent's interpretation was not a proper one under Insurance Law sec. 5106 and, therefore, the Court did not give the Superintendent's opinion deference.

Dave over at No-Fault Paradise makes a very poignant observation about the impact of LMK (see post here).  Because the Third Department is the only appellate court in the state to opine on the issue, all trial courts throughout the state must follow the holding until an appellate court within their Department rules otherwise.

Thank you to Jon for bringing the opinion to my attention.