New York Civil Law

New York Appellate Division, Second Department Addresses Falling Object Accident - Labor Law § 240(1)

The New York Appellate Division, Second Department handed down an interesting Labor Law § 240 (1) decision recently. In Wiski v Verizon N.Y., Inc., the accident concerned a falling object accident (see recent post discussing falling object case). The injured plaintiff fell from a scaffold while performing asbestos abatement work for his employer. While standing on the scaffold, the injured plaintiff was removing ducting from the ceiling. A section of the ducting bent downward and struck the scaffold, causing him to fall.

At a deposition, the injured plaintiff testified that he was provided with the scaffold and with a hoist to use for securing and gradually lowering the ducting segments. Notably, he was not using the hoist when the accident occurred.

The appeal concerned the trial court's denial of the plaintiffs' cross-motion for summary judgment on liability concerning a violation of Labor Law § 240 (1). The Second Department concluded that the plaintiff failed to meet their initial burden on summary judgment. The Court concluded that the injured plaintiff's deposition testimony raised a triable issue of fact as to whether the ducting posed an elevation-related risk that required securing for the purposes of the undertaking. The Court pointed out that the injured plaintiff testified that the ducting was light enough to be held up by his hands after being cut. Such an object is arguably different than the dolly involved in the accident at issue in Outar v City of New York.

Without much discussion about the sole proximate cause defense, the Second Department in Wiski stated, "[i]n any event, the injured plaintiff was provided with an enumerated safety device, the hoist, which he declined to use to secure the subject ducting prior to cutting it." Finally, the Court also stated that the plaintiffs failed to show by evidence in admissible form that the scaffold provided to the injured plaintiff was inadequate to protect him.

A Collection of Tributes to Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg passed away a week ago. There are numerous elegant tributes to Ginsburg, touching on all facets of her incredible life. I collected a few of my favorites below:

• This piece is my favorite tribute. Eric L. Motley's "My Unlikely Friendship with Ruth Bader Ginsburg" in The New York Times;
• Former law clerks Abbe R. Gluck & Gillian E. Metzger's "Her Black Coffee Always Brewed Strong" in The New York Times;
• NPR's Nina Totenberg's tribute, "A 5-Decade-Long Friendship That Began With A Phone Call" at NPR.com;
• This lovely piece, "New York Honors Ruth Bader Ginsburg, Child of Brooklyn," by Troy Closson in The New York Times;
• Paul Clement's blog post here at SCOTUSblog; 
• Edith Roberts' piece, "Ruth Bader Ginsburg: A 'precise female'" in The Washington Post; and
• "RBG is still inspiring young girls to be a 'superhero,' dream big. These photos prove it" in USA Today (truly heartwarming photos).
  

Finally, I created a playlist inspired by the many facets of RBG's wonderful life. 

Avoiding the Negativity Bias/Reasons to Be Cheerful - Attorney Anxiety, Burnout, and Depression

You are in control of your mood, thoughts, and your responses to negative situations. It is hard to remember these truths when you're depressed, overwhelmed, or anxious. Many times we're too mired down in negative thinking to come out from under its pall. "When you're going through hell, keep going," Winston Churchill wisely said.

Podcasts inspire me. Two recent Freakonomics podcasts sparked hope and happiness in me, so I want to share them with you. The first episode -- "Reasons to Be Cheerful" -- explains the "negativity bias" and how to overcome it. David Byrne of Talking Heads appears in the episode and wonderfully offers sprinkles of happiness through his enviable creative mind. He actually started an online project called Reasons to Be Cheerful.

The second podcast "68 Ways to Be Better at Life" is whimsical, with futurist Kevin Kelly providing some of his unique wisdom. You can also read the entire list here  on KK* and see Kelly read the list here on YouTube.

Here are some helpful links about anxiety and depression in general:

Lawyers Depression Project - https://www.lawyersdepressionproject.org/

Lawyer Assistance Programs = https://www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/

National Suicide Prevention Lifeline - https://suicidepreventionlifeline.org/

Lawyers With Depression Blog - http://www.lawyerswithdepression.com/

*This post cannot and does not constitute medical advice. Always seek the advice of your mental health professional or other qualified health provider with any questions you may have regarding your condition.

 

 

Appellate Division, First Department Builds Off of Court of Appeals Labor Law § 240(1) Case -- Outar v City of New York

The facts in the recent case Diaz v Raveh Realty, LLC concern an important aspect of New York's Scaffold Law -- Labor Law § 240( 1). The mechanism of the accident in Diaz implicates the aspect of § 240(1) which seeks to protect a worker from a falling object that was being secured or should have been secured. The worker must show that the absence or inadequacy of a safety device of the kind enumerated in the statute caused the object to fall. The mechanism of the accident in Diaz is an instance where a securing device would have been necessary or expected.

In Diaz, the plaintiff was injured at a construction site owned by the defendant while employed as a carpenter. His co-workers were stripping plywood forms from a cured concrete-poured ceiling. The project overseer for the defendant acknowledged that such plywood forms would be secured by a rope when being removed from near the building's edge. The plaintiff's expert opined that a safety device was required to secure the formwork to protect against the risk that the formwork would fall. 

The plaintiff was injured when he was hit by a heavy four inch by eight inch plywood form that fell or was dropped by co-workers who were stripping plywood forms from the cured concrete-poured ceiling. The plaintiff was looking down to clear debris when the accident happened, so it is unclear whether he was hit by the plywood that a co-worker dropped or tossed or was hit by a loosened plywood form that fell from the ceiling. The Appellate Division First Department found that, in either instance, the plaintiff was entitled to partial summary judgment on his §  240(1) claim. 

The First Department cited Gutierrez v 610 Lexington Prop, LLC, concluding "[t]he type of work being performed . . . involved a load that required securing . . . ." The Court stated further that, "because [the] plaintiff's injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in the statute, he was entitled to partial summary judgment." 

Gutierrez and two Court of Appeals cases provide context for the First Department's holding in Diaz. Gutierrez concerned a worker who fell backwards when he was being passed a heavy concrete form from workers on a scaffold above and was unable to control the form's descent. The accident in Gutierrez is similar to a Runner v New York Stock Exch. Inc. type of accident -- i.e., where an accident is caused by a heavy object that generates enough force to injure a worker, even if the fall is from a de minimis height.

The facts underlying the Court of Appeals' memorandum decision in Outar v City of New York  equally apply to a "securing a load" type of accident like the one in Diaz (Second Department Outar Decision & Order).

New York Law Law § 241(6), Substantial Factor & Juror Confusion

The facts in the recent Appellate Division, Second Department decision in Torres v City of New York are a good example of an attorney's need to listen closely to the trial court's charge to the jury. It also shows that a litigator should "run through" the proposed verdict sheet well in advance of the trial in anticipation that the court might get notes from the jury. Torres concerns the intersection of three interesting issues: Labor Law § 241 (6), the concept of substantial factor in tort law, and juror confusion.

The plaintiff injured his right hand while working as a member of an excavation crew on a project in Staten Island, NY. The City of New York and City of New York Department of Design and Construction hired the plaintiff's employer to work on the project. A bucket excavator crushed the plaintiff's hand against the inside of a steel trench box while he was working inside of it. The box was 10 feet below grade level

The plaintiff, and his wife suing derivatively, commenced a personal-injury action against, among others, the City defendants, alleging, among other claims, a violation of Labor Law § 241 (6). The § 241(6) cause of action was premised upon an alleged violation of Industrial Code 12 NYCRR) § 23-4.2 (k), which provides, in relevant part, that "[p]ersons shall not be . . . permitted to work in any area where they may be struck . . . by any excavation equipment."

A jury trial was held on the issue of the City defendants' liability. During deliberations, the jury sent a note to the trial court requesting, among other things, a written copy of Labor Law § 241(6). The trial court denied the request and, instead, repeated its charge on the law. Note: It is important to make sure the court's recitation of the jury charge accords with the Pattern Jury Instructions (PJI) word-for-word to make sure there is no error. In Torres, the plaintiffs' attorney subsequently advised the court that it erred in its charge to the jury by omitting a portion of the PJI and requested a curative instruction. More specifically, the court did not instruct the jury that in order to return a verdict in the plaintiffs' favor and against the City defendants on the issue of liability, it must find that "the failure to use reasonable care was a substantial factor" in causing the injured plaintiff's injuries. The court denied the request.

An inconsistent verdict followed. The jury found that the City defendants violated 12 NYCRR § 23-4.2 (k) but that the violation was not a substantial factor in causing the accident. Although the instructions on the verdict sheet directed the jury to end its deliberations if it found that the violation of Industrial Code (12 NYCRR) § 23-4.2 (k) was not a substantial factor in causing the accident, the jury further found that the injured plaintiff was negligent and that his negligence was a substantial factor in causing the accident. The jury then proceeded to apportion fault 25% to the City defendants and 75% to the injured plaintiff. How could the jury apportion fault against the City defendants while finding that they were not a substantial factor causing the accident?

The trial court instructed the jurors to reconsider the verdict. More confusion ensued. The jury returned a second verdict which was identical to the first verdict, except that the jurors did not answer the questions as to the injured plaintiff's negligence and the apportionment of the parties' fault. Under these circumstances, you certainly cannot assume the jury did not find fault against the plaintiff. 

The plaintiffs then moved pursuant to CPLR 4404 (a) to set aside the jury verdict, which the Court denied. The court subsequently issued a judgment in favor of the City defendants and against the plaintiffs, in effect, dismissing the cause of action alleging a violation of Labor Law § 241 (6).

Since the jury's initial verdict was internally inconsistent, the Second Department agreed with Supreme Court's determination to direct the jury to reconsider its verdict. Because the jury in its second verdict did not answer the questions regarding the plaintiff's negligence, the Second Department concluded that the record supported the conclusion that the second verdict, although internally consistent, was unreliable and the product of substantial juror confusion The Second Department noted that, after the jury returned its initial verdict, the trial court simply advised the jury to follow the directions on the verdict sheet. The Second Department concluded that the trial court should have reinstructed the jury on the concept of comparative fault and the meaning of the term "substantial factor," especially in light of the fact that its prior charge "incompletely convey[ed] the germane legal principles to be applied" (J.R. Loftus, Inc. v White, 85 NY2d 874, 876 [1995]).

The Second Department reversed the judgment and ordered a new trial.

(Don't) Do The Hustle - The Busy Trap Pt. 1 - Attorney Anxiety, Burnout, & Depression

Do you rise and grind? Do you hustle everyday? How is your side hustle? While you're hustling and side hustling, are you practicing mindfulness and wellness?

In the 1970s, hustling was about dancing and having fun. (see The Hustle by Van McCoy and The Soul City Orchestra) Yes, Pete Rose, a/k/a Charlie Hustle was the model of a strict work ethic in that era, but "The Hustle" has taken on a whole new meaning in the past few years. For every article and blog post on self care, wellness, and mindfulness, there is an equal on busyness and overwork. 

If you visit a few law firm websites, you will likely see some iteration of "we work tirelessly for our clients" or "we're available 24/7 for our clients". I get it; competition is fierce, we're in a service industry, and a client's legal issues are supremely important. Some attorneys internalize the 24/7 message, however, and create a culture of "busyness". If they're not busy, they're doing something wrong. Billable hours compound the problem, but that's a topic for another post.

There are numerous articles on the negative impact on your health when you overwork and deprive yourself of sleep. There are vast benefits of downtime and just plain doing nothing. Not everything you do during a day needs to be measured by how productive you are. In fact, one of the benefits of downtime is being more productive when you are working. Here are three pieces that speak to culture of busyness and the benefits of downtime.

The first was featured in The New York Times' Opinionator -- "The 'Busy' Trap" by Tim Kreider. The second and third articles extol the virtues of downtime -- "The Power of 'Low-Stakes' Productivity" by Leah Fessler and "The Case for Doing Nothing" by Olga Mecking

The New York Court of Appeals' recent memorandum decision in Barry v Lee, on its face, is cryptic and indicates a summary-judgment, burden shifting analysis.¹ The case concerns an interesting theory in the medical malpractice context -- i.e., whether rendering a certain course of treatment could have increased the decedent's chances of survival.

The underlying Appellate Division, First Department's opinion sets out the facts and arguments at issue in Barry. The treatment at issue concerned administering tissue plasminogen activator (tPA), which can dissolve clots and open arteries in 10-15 minutes. The upside of tPA is that it is a fast-acting "clot buster" for patients suffering strokes or embolisms. The downside is that tPA might not work and could lead to uncontrollable bleeding and death. To further complicate the issue, there is a six-hour window within which to administer tPA following the appearance of symptoms. 

Hospitals have protocols for tPA use. Some protocols are to not use tPA under any circumstance. The hospital in Barry v Lee allowed for the use of tPA, and there was an inference from defendant Dr. Lee's testimony that it was not his practice to administer tPA under any circumstances concerning a pulmonary embolism.

The defendant doctor in Barry v Lee performed a differential diagnosis of the decedent upon her admission to defendant Bronx-Lebanon Hospital Center and determined that she was suffering from a pulmonary embolism. Despite the diagnosis, the doctor and staff did not administer tPA until after waiting hours for the results of blood tests and an angiogram to confirm the diagnosis. Part of the doctor's consideration of not administering tPA was that the decedent recently gave birth and reported postpartum bleeding.

After approximately four hours post admission, the decedent's condition severely worsened, prompting medical staff to administer tPA just two minutes before she went into cardiac arrest. Despite the treatment, the decedent unfortunately died from the embolism. 

The appeal at issue presents itself in a summary-judgment context in a medical malpractice case. The motion concerned a "battle of the experts," and the First Department determined that the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law because their expert did not address the proposition that prompt administration of tPA would have increased decedent's chances of survival. The Majority also noted that, even assuming the defendants met their burden, the plaintiff through her expert raised a triable issue of fact on both negligence (a departure from the standard of care) and causation elements. Thus, the First Department reversed the Supreme Court's grant of the defendant's summary judgment motion dismissing the complaint. 

Justice Singh, with Justice Tom concurring, dissented concluding the defendants met their burden, and that the plaintiff failed to raise a material issue of fact on causation because her expert failed to explicitly state that the departures she highlights proximately caused decedent's death, and that decedent would have had a substantial probability of survival had a thrombolytic drug been administered.

In its memorandum decision, Judges Rivera, Fahey, Stein, Wilson, and Feinman concurred with the First Department's holding that the plaintiff rebutted the defendants' prima facie showing and raised a triable issue of fact. Chief Judge DiFiore and Judge Garcia dissented for the reasons stated in Justice Singh's dissenting opinion.

¹ The Court of Appeals addressed the appeal on the sua sponte merits track. The SSM track decides the appeal on the parties' submissions only, and generally renders a short memorandum decision. Therefore, my characterization of the memorandum as "cryptic" comments on the nature of decisions resulting from the SSM track and not on any ulterior motive by the Court. (see 22 NYCRR 500.11).

(see Appellants' Brief Download Appellant's Brief)

(see Respondent's Brief Download Respondent's Brief)

New York Appellate Division, First Department Addresses Spoliation of Evidence

Spoliation of evidence is an interesting issue. The Appellate Division, First Department recently worked through interesting issues in a product liability case -- Rossi v Doka USA, Ltd. The lesson to both parties is "spoliation" isn't a magic word you say and expect a dispositive result.

The details of the plaintiff's work as a carpenter on a worksite are important to understand the design defect claim against Doka USA Ltd. Plaintiff was injured while installing concrete walls at a building. The walls were created using a reusable form system distributed to the plaintiff's employer by Doka.

Doka's system employed tracks, so that a form could be filled with concrete, pushed into place along the track, and then pulled out again once the concrete had set. The form was moved back and forth on the track by use of a ratchet, approximately three feet in length, that attached to a bolt. Doka supplied the ratchets to the plaintiff's employer. The plaintiff testified at his deposition that the ratchets frequently broke, and he remembered this happening at least 10 times. In a December 2010 email, approximately one month before the accident, a Doka employee told two other employees that he had been informed that there were several defective ratchets at the work site at issue.

The forms sometimes were difficult to move. The plaintiff claimed that he and his fellow workers were trained to apply as much force to the ratchet as necessary when the forms were difficult to move. The plaintiff serious injured his knee when he used his right foot to apply as much pressure on the ratchet as possible to move a difficult to move form. The plaintiff did not know whether the ratchet was new, or whether it had any particular marking on the labels on it. Based on past experience, the plaintiff claimed he was certain that the ratchet he was using was a Doka ratchet because it had come in a package that contained other Doka materials.

Immediately after the accident, the plaintiff went to a medic on the worksite. He did not know what happened to the ratchet after the accident, and the ratchet has never been recovered.

The plaintiff commenced the personal-injury action two years after the accident. Doka served a notice of inspection demanding the plaintiff produce the ratchet at issue. In response, the plaintiff admitted he did not possess the ratchet.

The plaintiff served a discovery demand seeking emails about any complaints of defective or malfunctioning Doka ratchets. Doka claimed to have searched for emails responsive of the plaintiff's demand  and failed to identify any emails. One year after the plaintiff commenced the action, Doka replaced its email system company wide. Any emails predating the replacement became irretrievable.

Doka moved for spoliation sanctions, arguing the missing ratchet at issue entitled Doka to the dismissal of the complaint. The plaintiff cross-moved to strike Doka's answer for the alleged spoliation of relevant emails. Supreme Court granted Doka's motion and dismissed the complaint as against it.

The First Department considered Doka's motion by parsing the requirement to obtain sanctions for spoliation -- i.e., a party must establish (1) that the non-moving party had an obligation to preserve the item in question, (2) that the item was destroyed with a "culpable state of mind," and (3) that the destroyed item was relevant to the party's claim or defense.

The Court questioned whether the plaintiff should be held responsible at all for the missing ratchet because the accident happened at a major construction project, noting those work sites are "chaotic" under the best conditions. The Court made a practical observation -- i.e., the plaintiff was focused on his injuries and not preserving the ratchet for future litigation.

The First Department also noted an important point on spoliation in defective design cases -- i.e., whether the missing product truly frustrated Doka's ability to provide a defense. The Court pointed out that there were multiple ratchets at the worksite when the accident happened and, to the extent any ratchets still existed, an expert could have tested one or several. It also noted that the simplicity of the tool distinguished the case from other design defect cases where the court dismissed the action based on spoliation because of the complexity of the product's design.

Most important, the Court noted that Doka did not argue in any meaningful way why its inability to inspect the subject ratchet prevented it from defending against the products liability claim. This is an important point. A party can't utter "spoliation" and expect a drastic remedy. The Court also shut down Doka's speculative argument that it could not be sure that the subject ratchet was a Doka ratchet. The record was clear, even from Doka's witnesses, that it was responsible for the ratchets that were available at the worksite. Also, Doka did not identify any other possible entities which could have made the ratchets available to the plaintiff and his fellow workers. Accordingly, the Court concluded that the record did not support that Doka was prejudiced by the absence of the ratchet and Supreme Court should not have penalized the plaintiff and certainly should not have resorted to the drastic remedy of dismissing the complaint.

The First Department also rejected the plaintiff's spoliation claim. The Court concluded that the plaintiff was speculating that Doka's email servers could have held emails that could have assisted him in establishing his design defect claim. The one relevant email that Doka produced to the plaintiff was generated one month before the accident and two-and-a-half years before the plaintiff commenced the action. The Court stated, "There is no way of knowing whether the email, and any emails responding to it, were deleted outside course of Doka's business operations. It concluded that the plaintiff had not carried his burden of establishing that there were still emails on the served when Doka switched its email provider and that were relevant to his claim.

This case is a great addition to the spoliation caselaw.

Run DMC & Depression - Attorney Burnout, Depression, & Anxiety

This post is the first in series of weekly posts about attorney burnout, anxiety, and depression.

 

Run DMC and depression, who would have thought those words shared the same space?

 

I have noticed the stigma of mental-health issues diminish in the last few years. A recent podcast featuring a hip-hop icon supports my anecdotal observation. Recently, I listened to a stunning Pushkin Industries' "Broken Record" podcast episode featuring DMC (Darryl McDaniels) of Run DMC. For over an hour, McDaniels spoke openly about his struggles with depression. This is a breakthrough for those who suffer with depression and anxiety, with a heavy emphasis on the word suffer.

 

I am a huge fan of old-school hip hop. Well before the gangsta' rap and the rap music of today's milieu, old-school hip hop rappers built confident caricatures of themselves through their lyrics. In fact, rap has its origins in"boasting" Calypso music. Braggadocio was the currency of old-school hip hop.

 

McDaniels' revelation is raw. His voice quivers as he recounts how Sarah McLachlan's song "Angel" saved his life. Sarah McLachlan! This is one of pop culture's coolest icons admitting to grasping at a syrupy but beautiful, well-crafted, lite-Fm song to prevent him from suicide. The podcast is compelling for many reasons and is worth listening to in its entirety.

 

There are three subtle points worth mentioning. First, McDaniels describes his confusion with why he was depressed and anxious. You might be struggling with the same confusion. You met your long-term goals of becoming a successful attorney. You have accomplished a lot but you're still depressed. McDaniels' revelations on the podcast show that you can suffer depression even when you are successful in your business and personal life. 

 

Second, McDaniels discussed how he visualized killing himself by jumping off a building because the pain of depression was too much. It is important to note that McDaniels did not harm himself and fought hard to live to tell the story of how he overcame the pain of depression.

 

Third, and, perhaps most important, McDaniels openly talks about psychotherapy and how it healed him. When you're in the depths of depression, you will probably tell yourself that nothing can stop the pain of depression. McDaniels is one of many who have been helped by therapy.

 

If you stumbled on this post, it is likely you are searching for answers. Listen to the podcast. Make an appointment with a therapist. Know that you're not alone. And take a little wisdom from Run and DMC:

 

"One thing I know is that life is short. So listen up homeboy [and homegirl], give this a thought. The next time someone's teaching why don't you get taught?"

 

Here are some helpful links:

Lawyers Depression Project - https://www.lawyersdepressionproject.org/

Lawyer Assistance Programs = https://www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/

National Suicide Prevention Lifeline - https://suicidepreventionlifeline.org/

Lawyers With Depression Blog - http://www.lawyerswithdepression.com/

*This post is based on anecdotes. It cannot and does not constitute medical advice. Always seek the advice of your mental health professional or other qualified health provider with any questions you may have regarding your condition.

New York Court of Appeals Answers Two Certified Questions on General Business Law section 349 (GBL sec 349)

The New York Court of Appeals answered the following two certified questions from the US Court of Appeals for the Third Circuit concerning General Business Law sec. 349 in Plavin v Group Health Inc.:

"Where a contract of insurance is negotiated by sophisticated parties such as the City of New York and an insurance company, and where hundreds of thousands of City employees and retirees are third-party beneficiaries of that contract, and where the insurance company's policy created pursuant to the contract is one of several health insurance policies from which employees and retirees can select, has the insurance company engaged in "consumer-oriented conduct" under the GBL when:

(1) The insurance company drafts summary plan information that allegedly contains materially misleading misrepresentations and/or omissions about the coverage and benefits of the insurance policy and sends these summary materials to the City, and the City does not check or edit these materials before sending them on to the City employees and retirees; or

(2) The insurance company directs City employees and retirees to information on the insurance company's website that allegedly contains materially misleading misrepresentations and/or omissions about the coverage benefits of the insurance policy?"

The Court answered both certified questions in the affirmative. The decision is helpful because the Court analyzes important General Business Law sec. 349 precedent -- e.g., Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, Gaidon v Guardian Life Ins. Co. of Am., and New York Univ. v Continental Ins. Co. (NYU). It is also helpful because the Court explains the boundaries of the first allegation a plaintiff must set forth to state a claim under GBL 349 -- i.e., a defendant has engaged in consumer-oriented conduct.

The plaintiff alleged that the defendant, a health insurance company, made materially misleading misrepresentations to City of New York employees and retirees about the terms of its insurance plan to induce them to select its plan over several other health insurance plans that were available to more than 600,000 current and former City employees. The alleged deception was targeted to a defined group of consumers -- the current and former City employees -- and was not consumer-oriented conduct to all members of the public. The Court concluded that the statute does not require deceptive conduct directed to all members of the public and noted that its precedent does not imply that such requirement exists. 

The Court also discussed the difference between a private contract dispute and a dispute arising from a contract negotiated by sophisticated entities that impacts third-party beneficiaries. It recognized that neither the plaintiff nor the other hundreds of thousands of employees and retirees participated in the contract negotiations between the defendant and the City of New York. In concluding that the City employees and retirees were exposed to marketing resembling a traditional consumer sales environment GBL sec. 349 contemplates, the Court noted that the contract negotiation followed an open enrollment period that exposed the City employees and retirees to misleading information about insurance benefits and coverage summaries. The Court's conclusion places the conduct in a different category than single-shot transactions like, for example, insurance coverage disputes between insurer and insured (see New York Univ.). 

The Court's decision in Plavin adds helpful guidance on allegations pursuant to GBL sec. 349, a statute that plaintiffs frequently try to expand and defendants frequently try to narrow in their respective lawsuits. 

Finally, it is also nice to see a court other than the Second Circuit certify questions to the New York Court of Appeals.