New York Civil Law

Super Lawyers Nomination

Super Lawyers is accepting nominations for its Upstate New York edition.  To nominate an attorney, click on this link and nominate the respective attorney (you must register to nominate an attorney; go to "Nominate Your Peers" link).

 If you have worked with me and feel I am worthy of a nomination, I ask that you consider nominating me.

Landlord Possibly Liable for Tenant's Dog Who Bit Plaintiff's Child Off the Landlord's Property

The Appellate Division, Third Department in Champ-Doran v. Lewis recently held that an issue of fact existed regarding the defendant landlord's liability for injuries the plaintiff's child sustained.  The plaintiff's child was attacked by one of two dogs owned by the defendant's tenants on the plaintiff's front own front porch.  The plaintiff stated in his bill of particulars that the defendant landlord was aware of the vicious propensities of his tenant's dogs; he also alleged that the defendant tenant had actual and constructive notice that the fence surrounding the landlord's property was "broken and otherwise defective."

 Supreme Court denied the defendant landlord's summary judgment motion.  The defendant landlord argued that he was not liable because the incident did not occur on his property.

The Third Department agreed with Supreme Court, noting that the defendant had knowledge of the dog's vicious propensities and had an adequate opportunity to control the premises and confine the dogs.  The defendant admitted at his deposition that soon after he rented the property to the tenant he became aware of the dogs and received a complaint from a neighbor about barking.  He also admitted that he knew of prior occasions where the dogs escaped the property and told the tenant that the dogs had to go.  Affidavits from neighbors demonstrated that they complained to the defendant about the dogs and their vicious propensities.

The Court recognized that generally a landlord does not owe a duty of care to persons injured from a tenant's dog where the injury occurs off the landlord's property.  The Court concluded, however, that liability can nevertheless be imposed where it is established that the defendant knew of the dog's presence on the premises and its vicious propensities, and the defendant had control of the premises or otherwise had the ability to remove or confine the dog.

New York Court of Appeals Grants Leave to Appeal in Interest Rate Issue

The Court of Appeals granted leave to appeal in Grobman v. Chernoff last month.  The matter surrounds an interest rate issue within the context of a personal-injury action.

In 1996, the plaintiff was injured as a passenger in an automobile that the defendant Chernoff drove and the defendant Grobman owned.  A bifurcated trial was held.  In June 2000, the jury determined during the liability phase that the defendants were 100% liable.  During a subsequent trial on damages, the jury found that the plaintiff sustained a "serious injury" under Insurance Law sec. 5102(d).  It awarded the plaintiff damages for future medical expenses, but did not award anything for future pain and suffering.  

A judgment was subsequently entered on the verdict in the principal sum of $10,000 - $1,100 for past pain and suffering and $8,900 for future medical expenses.  On appeal, the Second Department reversed the judgment and concluded that the jury award was inconsistent.  The matter was remitted for a damages trial.

The parties agreed to submit the damages issue to an arbitrator for resolution.  A dispute arose as to whether the "serious injury" should be submitted to the arbitrator.  Ultimately, the Appellate Division, Second Department, on a second appeal, determined that the "serious injury" issue was a binding issue based on the jury's determination and could not be relitigated at arbitration.

The arbitration agreement, dated December 13, 2004, contained a section with a heading which read, "AT ISSUE: Damages," and it further indicated the parties' agreement to high/low parameters of $150,000 and $10,000.  The agreement was silent on the issue of whether any damages award included interest.

The arbitration went forward and the plaintiff was awarded $125,000 on April 9, 2008.  The award was silent on the issue of interest.

The plaintiff moved pursuant to CPLR article 75 to confirm the award and to enter judgment thereon.  The defendants submitted an affirmation of counsel in "partial opposition" to the motion.  The defendants' counsel stated that a check in the sum of $125,000 dated May 23, 2009 had been tendered to the plaintiff's attorney, who "implied" that the plaintiff was entitled to interest in the amount of $90,000.  The defendants' counsel argued that any attempt to seek a judgment in excess of $125,000 was improper.

By notice of cross motion, the defendants sought to preclude the plaintiff from recovering pre-arbitration award interest.  The plaintiff opposed the cross motion.  The plaintiff argued that the liability verdict in her favor was rendered on June 25, 2000 and if she was to be made whole in the context of the bifurcated procedure used in her case, interest on her damages award had to be computed from that date to the date of entry of the final judgment.

Relying on Love v. State of New York, the Second Department held that the the plaintiff should recover interest on her personal injury award from the date the defendants' liability was first fixed -- i.e., from June 25, 2000.  The Court also noted that Supreme Court correctly directed post-award interest to run up to the date of payment, rather than to the date of judgment.

New York Civil Law will keep you abreast of this matter as it winds its way through the Court of Appeals

New Legal Resource on the Block

I enter a lot of legal search terms into Google News for purposes of my practice and writing this weblog.  In the few weeks, I've been getting notifications from a new resource, Leagle, Inc.  The webpage has a list of recently released decisions on the right side of the page (not identified by jurisdiction).  

Leagle, Inc. writes this about its collection:

In addition to video, news and copies of court cases and federal and state regulations, we also provide information based on and about the law. In particular, our Leagle EyeViews™ are articles we'vewritten to provide understandable and practical legal information.  Driven by current events and legal topics common to daily living, Leagle EyeViews provide a snapshot of consumer social matters and self-help, summarizing state and federal law as it applies to specific legal issues, and with the full text of relevant court cases, statutes and regulations linked directly to each article.  Leagle EyeViews also examine current events through the lens of actual court cases and regulations. 

New York Court of Appeals Hears Oral Argument on Sole Proximate Cause within Labor Law sec. 240(1) Context

The New York Court of Appeals just yesterday heard oral arguments in Gallagher v. New York Post, which concerns an issue of the sole proximate cause defense within the Labor Law context.  In Gallagher, the plaintiff injured worker fell into an opening in decking floor after the blade of a circular cut-off saw he was using became bound up in steel decking that he was cutting.  The plaintiffs moved for summary judgment on the issue of liability on their Labor Law sec. 240(1) cause of action.

The Appellate Division, First Department Majority held that the trial court properly denied the plaintiffs' motion because material issues of fact existed on whether the worker chose not to use an available safety device.  The Majority held that the evidence proffered in opposition to motion demonstrated more than "[m]ere generic statements of the availability of safety devices."  The Majority hinged this conclusion on the testimony of the worker's employer's assistant project manager, who stated that (1) he had weekly meetings with the safety specialist hired to oversee the construction project in question; (2) the ironworkers were required to use certain safety devices, such as lanyards, cables or harnesses, when working near open areas; (3) the devices were used to prevent injury in case a worker fell through an opening or off an elevated surface; (4) the safety devices were available on the job site the day the worker was injured; and (5) a standing order was in place that all workers operating around any opening in the floor were to be in a harness and tied off.

Justice Catterson, with Justice Moskowtiz joining, dissented in part and concluded that the motion should have been granted because no triable issues of fact existed regarding whether the requisite safety equipment was made available and, if so, whether the injured worker chose not to make use of it.  Justice Catterson observed that no evidence existed in the record that the worker chose not to use an available safety device.  He reasoned that every worker except the worker's employer's assistant project manager testified that no safety devices were provided to the ironworkers.  Justice Catterson pointed out that the assistant project manager's testimony did not state that the worker was told to use certain safety devices and that he declined and that he had "no good reason not to do so."

The Court of Appeals' decision will likely provide more clarification to its holdings in Montgomery v. Federal Express Corp., Cahill v. Triborough Bridge & Tunnel Auth., and Blake v. Neighborhood Hous. Servs. of N.Y. 

New York Civil Law will keep you apprised of the Court's decision.

Google Scholar Includes Legal Research Tools

In case you missed it, Google Scholar now offers a legal research tool.  You can use the search tool by selecting the "radio button" that states "Legal opinions and journals".  Here is a post on Google's Blog that discusses this new feature. 

I've used the search several times and have been happy with the results.