New York Civil Law

Justice Scalia Interview

In case you missed it earlier today, here is the Justice Scalia interview on 60 Minutes (Part I and Part II). 

Justice Scalia's new book (written with Bryan Garner), "Making Your Case: The Art of Persuading Judges" was featured in the interview.

Quick Post About Admissibility of Accident Report

Nunez v.  Levy is an interesting Labor Law case that contains an issue regarding the admissibility of  an accident report.  The defendants attempted to preclude the admission of the post-accident report into evidence because, among other things, it addressed opinions about post remedial repairs or measures.  Supreme Court, New York County held that the report was admissible, describing it as a post-accident evaluation of what caused the accident and how it occurred.

Appellate Division, First Department Rejects Negligent Design Theory Regarding Cigarettes

The Appellate Division, First Department's recent decision in Rose v. Brown & Williamson Tobacco Corp. is an important for New York's products liability jurisprudence.  The plaintiffs' contention was that, during the years in question, the relevant tobacco companies should have sold only "light" cigarettes (which contain relatively low levels of cancer-causing tar and addictive nicotine) and should not have sold regular cigarettes of the kind Ms. Rose smoked (which contain significantly higher levels of the aforementioned harmful substances).  The plaintiff's theory was grounded on a negligent design cause of action.

The First Department analyzes the all-important feasible alternative product design prong of any design defect allegation.  Justice Nardelli and Catterson dissented and, thus, the Court of Appeals will have a crack at the case. 

NYCL will keep you informed of developments in the case.

New York Court of Appeals Will Hear Oral Argument In Yet Another No-Fault Appeal

Surprisingly, the New York Court of Appeals has heard several appeals in the No-Fault Law context this Term.  Next week, the Court will address another No-Fault appeal -- Fair Price Med. Supply Corp. v. Travelers Indem. Co. (Appellate Division, Second Department Decision and Order).  The question presented on the appeal is whether an insurance carrier is precluded from interposing a defense in an action to recover assigned first-party no-fault benefits if it fails to pay or deny the claim within 30 days, where it has reason to believe that the claim fraudulently seeks reimbursement for medical supplies that were never delivered to the insured.  The Second Department held that an insurer must do so because  its proposed defense in this case is not based on a lack of insurance coverage.

For a good discussion of the Second Department Decision and Order, see No-Fault Paradise's post here.

NYCL will keep you abreast of developments in this case.

Form for Ex Parte Interviews of Treating Physicians

The New York Court of Appeals' decision in Arons v. Jutkowitz and Kish v. Graham raised quite a stir.  In Arons and Kish, the Court held that opposing counsel may conduct an ex parte interview of the adversary's treating physician post-note of issue where that party puts his or her medical condition at issue (see prior post and comments).

Litigants are now required to provide their adversary with HIPAA compliant authorizations that permit the interview.

The Chief Administrative Judge, by order dated February 27, 2008, promulgated an official form to be used as the litigant's authorization to allow the treating physician to submit to an ex parte interview. The authorization is addressed to the physician. You can obtain this form here.

New York Court of Appeals Will Hear Yet Another Scaffold Law Appeal

The New York Court of Appeals will hear oral arguments in yet another Labor Law sec. 240(1) case this month -- Berg v. Albany Ladder Co.  In Berg, the plaintiff was hurt during the course of unloading steel trusses from a flatbed truck at a construction site.  The Appellate Division, Third Department Majority determined that the accident wasnot caused by the lack of a required safety device but, rather, by the improper movement of the trusses moved by a forklift.

Appellate Division, First Department Determines Superintendent Is Not Protected Under Labor Law

In Coombs v. Izzo Gen. Contr., the Appellate Division, First Department determined that the building's superintendent was not a protected person under Labor Law secs. 240(1) and 241(6).  The building was undergoing demolition and construction. 

The Court noted that

[the] plaintiff did not perform work integral or necessary to the completion of the construction project, nor was he “a member of a team that undertook an enumerated activity under a construction contract” * * *. As superintendent of the building, [the] plaintiff was responsible for maintaining the building, keeping it clean, supervising the building staff, and watching for unsafe conditions. Although the demolition and construction work made his job more difficult insofar as it affected the portion of the building that was not under construction, [the] plaintiff was not responsible for inspecting the areas of the building under construction. Nor was he responsible for performing any work related to the construction, and his job duties did not change after the project commenced

"New" Legal Search Engine

While giving a presentation on legal research on the Web earlier this week, one of the presenters showed me this new legal search engine -- PreCYdent.  It contains free access to federal and state case law and continues to accumulate older case law.  The webpage explains:

PreCYdent search technology ranks results by 'authority', using mathematical techniques, such as eigenvector centrality, similar to those used by advanced Web search engines, as well as proprietary techniques we have developed that are specialized to the legal domain. PreCYdent search technology is able to mine the information latent in the 'Web of Law', the network of citations among legal authorities. This means it is also able to retrieve legally relevant authorities, even if the search terms do not actually occur or occur frequently in the retrieved document."

Here is an interview with one of its developers at Law Librarian Blog.  Here is Robert Ambrogi's post about it on his Robert Ambrogi's LawSites.

Google's April Fools' Joke

At least two webpages exposed me to Google's New Feature for Gmail entitled Gmail Custom Time.
The feature allows you backdate current email to make it show up in the recipient's email inbox as if it were received on that specified earlier date.  You can even choose to have email appear as read or unread in the recipient's inbox.

The deadline-oriented lawyer in all of us can see the dangers if this feature were real.  For those who have missed deadlines (and have little regard for ethics), this feature is sadly Google's April Fools' Joke for 2008.   

Upcoming Golf Benefit for Family Counseling Services

I wanted to call your attention to a golf benefit that is occurring on May 19, 2008 at the Westhampton Country Club.  The benefit is for Family Counseling Services -- a licensed, non-profit, non-sectarian agency serving Eastern Long Island.  FCS was established in 1971 and is a community-based, United Way agency providing treatment, prevention, education, crisis intervention and supportive services at its main office in Westhampton Beach and its satellite offices in Brookhaven and Shirley.

Here is the brochure for the event helping an important cause (Download fcs_golf_broch_2008.pdf).