New York Civil Law

Summer Posting

Because of upcoming projects and publications, I will be forced to post only once or twice a week this summer.  I am hoping that post will be more frequent in September through the end of the year.

Insurance Coverage Opinion from Appellate Division, Third Department Raises Eyebrows

Back in 2005, the Appellate Division, Third Department in Elacqua v. Physicians' Reciprocal Insurers held that an insurer has a duty to inform its insured that he or she has the right to independent counsel paid for by the insurer where a matter concerns some covered causes of action and some that are not.  The Third Department recently had a chance to address a slightly different issue in Elacqua II.  The Third Department in Elacqua II held that the insurer's failure to inform the insureds that they had a right to select independent counsel of their choosing at defendant's expense pursuant to a company policy not to inform their insureds of that right constituted a deceptive practice under General Business Law sec. 349.

Historic Event -- New York State Bar Association's House of Delagates Meeting Webcasts Live

For the first time ever, the New York State Bar Association’s House of Delegates meeting, which is being held in Cooperstown this Saturday, June 21, starting at 8:30 a.m., will be broadcast live on the Association’s Web site. Interested members of the Association will be able to access the Webcast and watch the meeting as new President Bernice K. Leber (Arent Fox LLP) is sworn in and the House debates a full schedule of items of interest including reports from the Committee on Civil Rights, the Committee on Senior Lawyers and the Committee on Professional Discipline, as well as the Commercial and Federal Litigation Section report on electronic discovery.

The web cast will remain on the association’s site and be available for members to view at their convenience.

New York Court of Appeals Addresses Tricky Tort Issues

Chain-reaction motor-vehicle accidents or multiple related motor-vehicle accidents raise tricky tort questions regarding proximate cause.  The New York Court of Appeals addressed this type of tricky question last week in Tutraini v. County of Suffolk.

In that case, the plaintiff was behind a County of Suffolk police officer (the defendant) on a highway.  The police officer defendant suddenly decelerated from approximately 40 mile per hour to 1 to 2 miles per hour.  The plaintiff aggressively applied the brakes to her motor-vehicle and was able to stop without hitting the defendant police officer.  However, the plaintiff was rear-ended by another defendant seconds later.

A jury found that the defendant officer's reckless conduct and the rear-ending defendant's negligence were each a substantial factor in causing plaintiff’s injuries and apportioned fault at 50% each. The  Appellate Division reversed the judgment entered upon the jury’s verdict, holding, as a matter of law, that the defendant officer's conduct was not a proximate cause of the accident because the plaintiff was able to come to a complete stop without hitting the defendant's vehicle.

The Court of Appeals disagreed with the Appellate Division and held that the jury could have rationally found that the officer's conduct was a substantial cause of the collision between the plaintiff and the other defendant even though there was no contact between plaintiff's vehicle and the defendant officer's vehicle.  The Court held that the jury could have rationally found that that the officer's conduct " 'set into motion an eminently foreseeable chain of events that resulted in [the] collision' " between the vehicles driven by the plaintiff and the other defendant.

Here's an article in Newsday about the decision.

 

 

 

 

New York Court of Appeals Determines Another Labor Law sec. 240(1) Case

Earlier today, the New York Court of Appeals decided Berg v. Albany Ladder Co. -- a matter concerning Labor Law sec. 240(1).  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 was not caused by the lack of a required safety device but, rather, by the improper movement of the trusses moved by a forklift.  The Court of Appeals affirmed, holding that the plaintiff failed to raise an issue of fact as to whether his fall was caused by the lack of safety device set out in sec. 240(1).  The Court seems to hint that this fall from approximately 10 feet up is not the type of height covered under sec. 240(1), citing Toeffer v. Long Island R. R.

New York Court of Appeals Addresses Spectator's Assumption of Risk

In a short sua sponte merits decision, the New York Court of Appeals in Roberts v. Boys & Girls Republic, Inc. upheld that the plaintiff assumed the risk that resulted in her injury -- being hit in the face by a baseball bat while a spectator at a little league baseball game.  Here are the facts as described by Justice Kavanagh in his dissent below; you decide whether the plaintiff assumed the risk of her injury.

The Plaintiff was at the park to watch her son's little league practice. When the accident occurred, she was standing on a path that went from the entrance of the park to the spectator bleachers adjacent to baseball "Field Six. "  Along the third base side of Field Six ran a chainlink fence that separated the bleachers from the field of play, and which had an opening that allowed entry onto the field of play. Field Six lay in front of the bleachers; behind the bleachers was a separate, grassy area where the plaintiff's son's little league team was practicing. During the practice, the plaintiff sat on the bleachers. When the practice concluded, the plaintiff met her son with his team and coach on the path on the spectator's side of the opening in the fence that led to Field Six. Another team was on Field Six at this time playing a scrimmage game. After speaking briefly to her son and Coach Alameda, the plaintiff proceeded to walk toward the bleachers. Unbeknownst to the plaintiff, as she approached the bleachers she walked near an area that had been unofficially designated as an "on-deck" circle, where one of the players involved in the scrimmage on the field was standing with an aluminum bat. The player took a warm-up swing with the bat while standing off to the side of the plaintiff and struck her on the right side of her face, causing injuries, including a concussion, fractures to the upper and lower jaw and loss of teeth.

Appellate Division, First Department Addresses Falling Object Issue: Labor Law sec. 240(1)

The New York Court of Appeals several years ago handed down an enigmatic case regarding falling objects under Labor Law sec. 240(1): Outar v. City of New York.  Since then, parties have tried to twist the terse Outar decision.  The Appellate Division, First Department in Metus v. Ladies Mile, Inc. cited Outar, holding that the junior beam (which hit the plaintiff in the face) was a "falling object" for purposes of Labor Law § 240(1) protection.  The Court noted that the beam was situated 8 to 9 feet above the ground and was actually part of the scaffold upon which the plaintiff's co-worker was standing.

Urban Justice Center's 22nd Beer, Blues and Barbecue Fundraiser

Nicole over at the Urban Justice Center sent me this information about an upcoming fundraiser in New York City:

The Urban Justice Center's 22nd Annual Beer, Blues, and Barbecue fundraiser happens on June 11th at the West Side Loft (326 W. 37th St), starting at 6:00 PM.  I’ve attached a copy of the invitation: 

Download BBBQ_EMAIL.pdf

Here are some details about the event:

Hundreds of young professionals representing New York City's leading law, financial and real estate firms join together every year to support the UJC's mission of advocating for individual rights and creating systemic change through this fun and exciting event.  This year, the party includes: a mechanical bull, Virgil’s BBQ, a live band, an open bar (including Brooklyn Brewery and Dewar's 12), a live auction, photo booth, and raffles.  Proceeds from this year's benefit will support our efforts to achieve social justice.