New York Civil Law

Top Five Surprises and Disappointments Impacting New York Law in 2008

For the first time since I started writing this blawg, I am presenting my own end-of-the-year list.  Today's list is:

The Top Five Surprises and Disappointments Impacting New York Law

5. The Commission on Judicial Nomination does not recommend Judge Carmen Ciparick (or any other qualified woman, for that matter).

Read article here regarding New York Governor Patterson's reaction to the seven nominations.

4. Appellate Division, Third Department Justice Anthony Carpinello loses election.

An experienced, intellectual powerhouse loses his seat likely due to his position on the Republican ticket in the year of Barack Obama (see article). 

3. The New York Legislature passes law that changes New York from a "no-prejudice" state to a state that requires insurers to demonstrate material prejudice when insureds provide late notice of a claim.

The long-standing rule is toppled by S. 8610/A. 11541, changing New York to a prejudice state.

2. Chief Judge Judith Kaye is forced to retire based on outmoded 70-year-old age limit.

Here is an article about the Chief's retirement.

1. Former-New York Governor Eliot Spitzer's resignation.

Please feel free to provide more disappointments and surprises in the comments section.

New York Court of Appeals Recently Addresses Cigarette Liability

There have been waves of litigation against cigarette manufacturers.  One of the newest waves concerns an argument plaintiffs have recently presented -- "regular" cigarettes are defective as compared to "light" cigarettes because "light" cigarettes have less tar and a lower amount of nicotine.

The New York Court of Appeals recently rejected that argument in Adamo v. Brown & Williamson Tobacco Corp.  The only cause of action on the appeal was the plaintiffs' claim that the defendants had negligently designed "regular" cigarettes when technology was available to manufacture "safer" "light" cigarettes.  The plaintiffs had not demonstrated that an equal consumer acceptance existed for "light" cigarettes when compared to "regular" cigarettes.  Based on the plaintiffs' failure to do so, the Court agreed with the Appellate Division, First Department's determination that the plaintiff failed to demonstrate an essential element of their claim.

Applying the test set out in Voss v. Black & Decker Mfg. Co., the Court noted that a cigarette's "utility" is to gratify a smokers' desire for a certain experience.  As such, the plaintiffs needed to demonstrate that "regular" cigarettes had the same consumer acceptability as "light" cigarettes.

Note: My colleagues and I wrote an amicus curiae in this appeal on behalf of The Product Liability Advisory Council.

"New Yorker" Piece on Chief Judge Judith Kaye

The "New Yorker" published this interesting piece on Chief Judge Judith Kaye.

Hat Tip goes to Eric from New York Personal Injury Law Blog.

New York Court of Appeals Addresses Insurance Law sec. 3420(d) Within Context of Insured Non-Cooperation

Plaintiffs' and defense attorneys struggle with the lack of defined time limits as applied to Insurance Law sec. 3420(d).  Section 3420 is the requirement in bodily injury and death cases that an insurer shall give an insured, injured person, or any other claimant written notice of a disclaimer or denial of coverage as soon as is reasonably practicable of the disclaimer of liability or denial of coverage .

In prior cases, the New York Court of Appeals has refused to set a bright-line deadline as it applies to sec. 3420(d).  What happens when the insurer is faced with an insured who is not cooperating in the defense of an action?  The lack of cooperation standard that an insurer must demonstrate is extremely high.  As such, a lot of time can pass before an insurer has enough evidence to demonstrate lack of cooperation.

The Court addressed that exact issue in Continental Cas. Ins. v. Stratford.  The case stemmed from a dental malpractice actions commenced against the insured Stratford.  The insured over a six-year period cooperated with his insurer only sporadically.  The Court held that there were issues of fact regarding the amount of time required for Stratford's insurer to evaluate his cooperation (or lack thereof) with the insurer.

A possibility exists that the reasoning in this decision applies beyond the non-cooperation context.  An insurer who can demonstrate a valid excuse for a disclaimer beyond the "industry-standard" 30-day time limitation can rely on this decision as additional support that the time limit is an elastic concept.

New York State's Commission on Judicial Nomination Gives Governor Seven Candidates

New York State's Commission on Judicial Nomination gave Governor David Paterson seven candidates for the position of Chief Judge of the New York Court of Appeals.  Two of the candidates are current Judges on the Court of Appeals:

Judge Theodore Jones and Judge Eugene Pigott.  The other candidates are:

Justice Jonathan Lippman, Justice Steven Fisher, George Carpinello, Evan Davis, Esq., and Peter L. Zimroth.

The New York Times has this article on the candidates and the New York Law Journal has this article.