New York Civil Law

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.

New York Court of Appeals Will Examine Burdens in Products Liability Context

During the February Session, the New York Court of Appeals will hear oral arguments in Ramos v. Howard Indus. Inc. -- a products liability case concerning an electrical transformer.  The novel issue concerns the burden a manufacturer has on summary judgment to make a prima facie showing that no manufacturing defect existed where the product has been spoliated.

The plaintiff in Ramos commenced a products liability action seeking damages for injuries he allegedly sustained when a transformer designed and manufactured by the defendant exploded.   Initially, the plaintiff reported to his employer and doctors that he was injured when he reached out of an aerial bucket while installing the transformer on a utility pole.  The plaintiff later claimed that his injuries occurred as a result of the transformer explosion, but at that time the transformer could not be located for inspection or testing concerning the cause of its failure.

In support of its motion the defendant manufacturer proffered evidence that its transformers generally were designed and manufactured under state of the art conditions according to power company's specifications and complied with all applicable industry standards.  The evidence also demonstrated that the transformer which allegedly exploded and injured the plaintiff would have been individually tested to ensure compliance with customer specifications and industry requirements.

The Appellate Division, Fourth Department Majority agreed with the trial court that the defendant manufacturer did not meet its burden on summary judgment because it merely pointed to gaps in the plaintiff's proof. 

Justice Peradotto dissented, offering a well-reasoned opinion on the impossible standard the Majority required of a defendant in defending a circumstantial products liability case where the product was missing.

NYCL will keep you apprised of the decision when the Court hands it down.

Supreme Court, Queens County Orders In Camera Inspection of Driver's Cell Phone Records in Motor Vehicle Accident

As many lecturers will tell you, the proliferation of electronically stored information makes its impact on litigation inevitable.  The recent case of Morano v. Slattery Skanska, Inc. out of Supreme Court, Queens County is a good example.

The injured plaintiff was driving a motorcycle and saw a motor vehicle stopped on the side of the road.  He thought the person was broken down and calling for help on her cell phone.  He stated in an affidavit in support of a subpoena for the driver's cell phone records that he saw the driver "with an object in her hand held to her head."  The defendant moved to quash the subpoena for the records, citing privacy issues.

Justice Ritholtz denied the motion to quash the subpoena, ordering an in camera review to determine what calls, if any, should be discoverable by the accident victim.  Notably, Justice Ritholtz observed that the justification for allowing the injured plaintiff to even gain the benefit of obtaining any part of the cell phone records was his statement that he saw the defendant holding something to her head that looked like a cell phone just before the accident happened.  Justice Ritholtz indicated in the decision that a party would not be able to discover such records without some indication that a cell phone was a possible factor in the accident.

Appellate Review and Judicial Notice

Every appellate attorney knows that appellate courts only review submissions that were presented to the trial court below (except in narrow circumstances) -- nothing outside of the record.  The recent appeal in Walker v. City of New York really drives that point home, rejecting the plaintiff's request for the Court to take judicial notice of an affidavit filed in a submission that was unrelated to the motion on appeal.

The plaintiff in Walker was attempting to vacate a dismissal of his action.  In support of the vacatur motion, the plaintiff failed to submit to the trial court an affidavit of a medical expert to opine on the merits of the malpractice action.  To avoid the consequences of this failure, the plaintiff requested that the Court take judicial notice of a medical expert affidavit that was filed in support of a prior motion for leave to serve a late notice of claim.  In an excellent discussion of judicial notice in the context of appellate review, the Appellate Division, Second Department refused to do so.   The Court noted that the affidavit, which contained disputed facts, was not the type of factual material of which it could take judicial notice.

Thank you to the excellent blawg New York Legal Update for calling my attention to the appeal (see post here).

New York Court of Appeals Does Not Recognize A New Tort for a Third-Party's Negligent Spoliation of Evidence

Just yesterday, the New York Court of Appeals in Ortega v. City of New York refused to expand MetLife
Auto & Home v Joe Basil Chevrolet and determined that a cause of action for a third party's negligent spoliation of evidence is not cognizable in this State.  As New York Civil Law wrote in prior posts, this case was riddled with unexplained issues. 

The plaintiffs were severely burned when one of the plaintiffs' automobiles caught fire for an unexplained reason.  One of the plaintiffs obtained a pre-action order for the City of New York (a third-party not responsible for the automobile fire) to preserve the subject automobile for inspection; however, the automobile was destroyed.  The plaintiffs commenced an action against the City based on spoliation and contempt of court.

Supreme Court, Kings County in its decision recognized the viability of an independent cause of action for spoliation.  The Appellate Division, Second Department rejected in their opinion the plaintiffs' contention that they could recover damages for spoliation of evidence against the third party.

The Court of Appeals agreed, carefully analyzing why recognizing such a tort was not viable and would lead to too much speculation for the jury.  Perhaps the most interesting part of the decision was the Court's observation that not every wrong can have a remedy.

New York Court of Appeals to Address Interplay Between SUM Coverage and No-Fault Law

The New York Court of Appeals will address the following question on October 9, 2007: Does an injured plaintiff have to establish he or she sustained a "serious injury" under Insurance Law sec. 5102 to recover supplementary underinsurance motorist coverage (SUM) from his or her insurance carrier?  The Appellate Division, Second Department in Raffellini v. State Farm Mut. Auto. Ins. Co. held that the injured plaintiff did not have to do so.  The Court of Appeals will hear oral argument on the 9th, and will likely issue a decision in November 2007.

NYCL will keep you apprised.

Appellate Division, First Department Analyzes Interesting Frye Question

What happens when an expert's opinion is based on a generally accepted methodology but his or her conclusion using that methodology is not generally accepted? 

The Appellate Division, First Department in Marso v. Novak answered the question, holding that a ""methodology-only, ignore-the-conclusion" approach circumvents the Frye analysis.  Marso involves a medical malpractice case where the plaintiff's expert witness on causation at trial, testified that all other possibilities for causation of the stroke were excluded by testing.  He admitted, however, that it is not generally accepted in the scientific community that bradycardia is a risk factor for the type of embolic stroke suffered by the plaintiff. 

On appeal from the trial court granting the defendant's motion for judgment notwithstanding the verdict, the plaintiff claimed that the theory does not implicate Frye because it resulted from the generally accepted methodology of  "differential diagnosis," which is essentially a process of elimination by diagnostice testing.   The Court rejected the proposition that analyzing an issue pursuant to the generally accepted "differential diagnosis" led to admissible expert conclusions. 

This is a short opinion that is worth a read.  I find New York's continual embrace of Frye frustrating in practice; I am more a Daubert guy.  Nevertheless, within the Frye framework, this holding is logically sound.

Dissenting Opinion Offers Helpful Analysis Regarding Spoliation and Circumstantial Evidence Analysis

Justice Perradotto's Dissenting Opinion in the Appellate Division, Fourth Department's opinion in Ramos v. Howard Indus., Inc. really hits the nail on the head.  The case concerns a very difficult analysis practitioners frequently face when a product is discarded or destroyed, and the manufacturer is attempting to move for summary judgment to demonstrate no defect existed with the product.

In Ramos, the plaintiff was injured by a transformer -- manufactured by the defendant -- when it exploded.  The transformer was no longer available, and the plaintiff claimed that the explosion occurred because of a design or manufacturing defect.  The Majority denied the manufacturer's summary judgment motion, holding that  the manufacturer did not  even meet its burden on the motion because it merely pointed to gaps in the plaintiff's evidence.  The defendant submitted evidence establishing that its transformers generally were designed and manufactured under state of the art conditions according to Niagara Mohawk's specifications and complied with all applicable industry standards, and that the transformer in question would have been individually tested to ensure compliance with customer specifications and industry requirements.

Justice Perradotto disagreed, noting

the majority is requiring defendant to make that same showing [one where the product is available] where the product is unavailable for inspection and testing. In my view, the majority thus is disregarding the particular facts of this case and is thereby creating a burden that is impossible for [the] defendant to meet and that is greater than that required by precedent.

She also points out that the Majority incorrectly required that the manufacturer eliminate a manufacturing defect as a cause of the accident.

Justice Peradotto's Dissenting Opinion crystallizes the exact issue and difficulty that arises when a product is spoliated, the plaintiff is attempting to prove the case circumstantially, and the defendant is left to defend itself without the product.  The opinion is a required read.

New York's Prevailing Wage Applies to Unpaid Wages of Illegal Aliens

Yesterday's New York Law Journal prominently featured Justice Moskowitz's decision Pineda v. Kel-Tech Construction, concerning prevailing wages and paying illegal aliens prevailing wages.  Several plaintiffs, who are illegal aliens, sued their employer because the employer failed to pay them certain funds for work they performed as part of several public contracts.

It is important to read Justice Moskowitz's decision because she analyzes the defendant employer's various arguments regarding the aliens' inability to recover on these claims based on their immigration status.  Two standouts of the holding include Justice Moskowitz's observation that discovery of an illegal alien's immigration status regarding unpaid wages is irrelevant because the wages have already been earned.  Also, Justice Moskowitz held that the defendant employer's argument that the aliens' had broken the law by providing false documentation as to their status created an issue of fact because it was unclear whether the defendant employer checked the aliens' immigration status as required under the Immigration Control and Reform Act ("IRCA").

As background for this post, it might be helpful to read  Hoffman Plastics Compounds, Inc. v. Nat'l Labor Relations Bd.,  Balbuena v. IDR Realty LLC and Majlinger v. Cassino Contracting Corp., and Labor Law sec. 220.

Appellate Division, First Department Finds Spoliation But Does Not Dismiss Design Defect Action

In McMahon v. Ford Motor Co., the Appellate Division, First Department was faced with the defendant's argument that the destruction of the subject automobile impaired its ability to defend itself in an adequate fashion against a design defect claim.  The plaintiff alleged that he was injured in an automobile accident due to the subject automobile's defectively designed seat belt.  The insurance company destroyed the subject vehicle,  apparently informing the plaintiffs in advance of the planned destruction.  The plaintiffs raised no objection.

The Court held that spoliation occurred but a dismissal of the plaintiff's claim of defective seat belt design was too drastic of a remedy.  The Court observed that prior to the vehicle's destruction, the seat belt buckle the plaintiff allegedly used at the time of the accident was removed from the vehicle in a documented procedure performed by an insurer, was preserved, and the defendants had since inspected it.   The Court also noted that the plaintiffs submitted an unrebutted expert affidavit explaining that the entire vehicle was not necessary to the defense of their claim, as narrowed.