New York Civil Law

New York State Governor Kathy Hochul Vetoes "Grieving Families Act" - Proposed Amendment to New York's Wrongful-Death Statute

Gerber Ciano Kelly Brady LLC's Brendan Fitzpatrick reports on the recent development on the proposed "Grieving Families Act" in New York:

New York’s Governor Kathy Hochul vetoed the “Grieving Families Act” (Senate Bill S74A), which would have amended New York’s wrongful-death statute. According to the Governor’s veto, the proposed bill would have “substantially” changed the nature of wrongful death claims in New York by expanding (1) the persons entitled to seek damages, “distributees,” to “surviving close family members” as determined by a jury; and (2) the categories of recoverable damages because damages would no longer be limited to pecuniary loss and would include losses for grief, anguish, loss of love, society, protection, comfort, and consortium, loss of guidance and counsel. The bill would have also extended the statute of limitations for wrongful-death claims from two years after the decedent's death to three years and six months.

Governor Hochul stated in the veto that while the bill is “well-intentioned, [it] represents an extraordinary departure from New York’s wrongful death jurisprudence and may result in significant unintended consequences.” The Governor identified the “indefinite class of beneficiaries” and the “broad and perhaps overlapping, categories of damages” that would have caused confusion. Governor Hochul recognized the potential for confusion because the bill applied to pending cases, possibly resulting in “claimants and courts” being “forced to grapple with new competing claims asserted by ‘close family members’ as well as protracted discovery and increased litigation costs, potentially upending cases far along the judicial process.” The Governor acknowledged that the bill “would increase already-high insurance burdens on families and small businesses and strain already-distressed healthcare workers and institutions. The increased costs would be particularly challenging for struggling hospitals in underserved communities.”

The Governor noted that the bill passed “without a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the State’s complex health care system.”  While the Governor expressed support for the intent of the bill, she cautioned that there needed to be more investigation into the potential impact on the State.

We fully expect the New York Legislature to re-visit this statute. What remains to be seen is whether the Legislature will pass a version of the statute that includes some of the changes requested by the Governor to amend New York’s existing, 170-year-old, wrongful-death statute.  

Brendan is the chair of Gerber Ciano Kelly Brady LLP's Appellate Advocacy Practice Group.

Photo credit: KC Kratt

Trivial Defect & New York Premises Liability - Appellate Division, Second Department Hands Down Recent Decision on Trivial Defect Defense

Justice Mark Dillon's opinions are the gold standard for New York's common law on torts. He authored a recent decision for the Appellate Division, Second Department, addressing the trivial defect defense within the context of premises liability.

In Snyder v AFCO Avports Management, LLC, the defendants sought summary judgment on the grounds that the sidewalk defect where the plaintiff tripped was trivial as a matter of law and not actionable. They relied on photographs, deposition testimony, and an affidavit from a human factors expert, but did not provide objective measurements of the elevation differential between the sidewalk slabs. The trial court granted the motion, holding that the defect was trivial and the plaintiffs failed to raise a triable issue of fact.

On appeal, the plaintiffs argued that the defendants failed to meet their prima facie burden because they did not submit objective measurements of the defect. The Appellate Division addressed three questions:

1. Whether a defendant must present objective measurements of a defect’s dimensions to establish triviality.
2. How courts should analyze photographic evidence in determining whether a defect is trivial.
3. Whether a human factors expert's opinion is conclusory and inadmissible if it lacks objective measurements.

The court held that objective measurements are not strictly required for a defendant to establish prima facie that a defect is trivial. However, the burden remains high when no objective measurement is provided, and the photographic evidence must be sufficiently clear to allow the court to infer that the defect is trivial. In this case, the photographs and other evidence failed to conclusively demonstrate that the defect was insignificant, and the court found that the expert's opinion was inadmissible as it lacked objective data or reasonable inferences from the evidence.

The court reversed the trial court’s decision and denied the defendants' motion for summary judgment, concluding that the defect was not clearly trivial as a matter of law. This ruling reaffirms that defendants must present comprehensive and conclusive evidence when relying on the trivial defect doctrine, especially in the absence of objective measurements.

The New York Court of Appeals' decision in Hutchinson v Sheridan Hill House Corp. provides a good background for the trivial defect defense.

New York Courts, The Affordable Care Act, and CPLR 4545

The New York Appellate Division recently addressed whether health insurance available under the Affordable Care Act could offset the costs of an award for future medical expenses in personal injury lawsuits. In Liciaga v New York City Tr. Auth., the Court concluded that the defendant should have the opportunity to raise the issue at a collateral source hearing, potentially allowing the defendants to reduce future medical expenses awards. An offset in a catastrophic injury case can be a game changer. In Liciaga, a reduction of $3.75 million was on the line.

The plaintiff in Liciaga sustained severe injuries that required significant future medical care,  and a Kings County jury awarded $40 million for the plaintiff’s future medical expenses. Post-verdict, the defendant argued that since the ACA guarantees access to health insurance for individuals with preexisting conditions, the plaintiff could secure a policy to reduce his future medical costs substantially.

The Appellate Division agreed with the defendant’s argument. The Court concluded that the defendant showed that this insurance would reduce future medical costs by millions, satisfying the CPLR 4545 standard that offsets should be applied when reasonably certain collateral sources could cover future costs. The Court held as such even though the plaintiff did not have the coverage. Stating that the plaintiff had a duty to mitigate damages, the Court concluded that the duty included obtaining insurance to offset medical costs when such coverage was reasonably available.

To be clear, the Court did not conclude that the defendant was entitled to the offset. Because the trial court had denied the defendant’s request to hold a collateral source hearing, the Appellate Division remitted the matter to the trial court to hold a hearing on the issue of future medical expenses and a determination as to any collateral source offsets to which the defendant may be entitled.

The Liciaga decision is important for post-judgment litigation and can reduce a future medical expense award by several thousands or millions of dollars.

Appellate Division, First Department Applies Salazar versus Novalex Contracting Corp. in Recent Labor Law sec. 240 (1) Case

Labor Law § 240 (1), New York's Scaffold Law, certainly has a broad reach. A recent New York Appellate Division, First Department case—Marte v Tishman Constr. Corp.—provides one example of the limits of the statute.

Before discussing Marte, a short discussion of    Salazar v Novalex Contracting Corp. is necessary. Salazar stands for the proposition that a court will not find a Labor Law § 240 (1) violation when the use of a safety device would have been impractical and contrary to the very work at hand. The plaintiff's work in Salazar was to pour and spread concrete on a basement floor. The outer sections on the floor had a trench system with holes. The plaintiff's accident happened when he was "pulling" the concrete and walking backwards, ultimately stepping into one of the holes in the trench and injuring himself. The plaintiff argued that there should have been some type of protective device covering the trench to prevent workers from stepping into holes.

The New York Court of Appeals cut to the heart of the issue, stating that it was not going to quibble about whether there was actually a device to cover the trench system and, if so, whether the device would come within the term "other devices" stated in the statute. Instead, the Court focused on whether such a device would frustrate the task at hand. The plaintiff was tasked with spreading concrete across the entire basement floor, including the trenches. The Court stated, "[I]t would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete." Stating that there should be a common-sense approach to the realities of the workplace at issue, the Court concluded that Labor Law § 240 (1) did not apply.

That brings us to Marte. The plaintiff in Marte was laying rebar and somehow fell four feet below the rebar deck he was standing on while working. In support of his section 240 (1) claim, the plaintiff argued that there should have been plywood or wooden plank on top of the rebar deck to protect him from falling through it. Noting that there was testimony that concrete was going to be poured over the rebar following the work in which he was engaged, the First Department concluded that the motion court properly denied the motions of all parties on the Section 240 (1)  claim. The First Department cited Salazar for its conclusion, indicating the realities of the plaintiff's work made it impractical to place plywood and wooden planks on the rebar deck.  

My law partner at Gerber Ciano Kelly Brady LLP, Brendan Fitzpatrick, wrote the appellate brief and argued the appeal. 

The New York Court of Appeals Decides Recent Appeal About Labor Law § 240 (New York's Scaffold Law) and Repairing A Commercial Vehicle

The pendulum is an apt metaphor to analyze developments in the caselaw. New York's Scaffold Law—Labor Law § 240 (1), in particular—has the pendulum swinging back-and-forth more frequently than New York courts' interpretation of other statutes.

The New York Court of Appeals recently addressed an appeal concerning the repair of a commercial vehicle and whether the plaintiff's injuries were proximately caused by a violation of Labor Law § 240 (1). In Stoneham v Barsuk, the plaintiff was severely injured while lying underneath a commercial trailer to repair its air brake system. The plaintiff used a front loader with a bucket attachment to lift the trailer approximately five-and-a-half feet off the ground. At some point during the repair, the front loader rolled backward and the trailer fell on the plaintiff.

Does Labor Law § 240 (1) apply to the accident in Stoneham?

In the early 2000s, the Court of Appeals narrowed the reach of the Scaffold Law, especially in the realm of the sole proximate cause defense (Blake v Neighborhood Services of New York City, Inc.). Later in the decade, the pendulum swung toward a more liberal view of the Scaffold Law in Runner v New York Stock Exchange Inc. Has the pendulum swung back to a narrower view of the statute?

The Court's majority in Stoneham concluded that the "plaintiff was engaged in ordinary vehicle repair, which is not a protected activity under Labor Law § 240 (1)." Notably, the Court's majority stated that it was "[e]mploying a holistic view of the statute" in deciding whether the plaintiff was engaged in an activity that came within the extraordinary protections of New York's Scaffold Law. The majority stated that applying Labor Law § 240 (1) to "ordinary vehicle repair" would extend the statute far beyond the purposes the statute was designed to serve.

Judge Cannatoro disagreed, stating that the majority "ha[d] not provided any authority for its novel view that the legislature did not intend 'ordinary vehicle repair' to qualify as a protected activity." He noted that the Court looks to the specific safety devices enumerated in the statute "[t]o determine what type of hazards are protected" under Labor Law § 240 (1). Judge Cannataro concluded that there is a least a question of fact in Stoneham as to whether the protections of Labor Law § 240 (1) are available because the plaintiff sustained an injury from a "'significant elevation differential' which could have been avoided by the provision of appropriate safety equipment."

Although Judge Cannatoro was the lone dissenter in Stoneham, his analysis may gain traction in future cases.

Because there is no shortage of Scaffold Law cases reaching the New York Court of Appeals, we will soon learn whether the pendulum has swung back to a more narrow reading of Labor Law § 240 (1). One thing I'm sure of, practitioners will be using the phrase "employing a holistic view of the statute" in many motions and appeals going forward.

 

New York State Governor Hochul Vetoes New York Bill on Wrongful Death Statute - The Grieving Families Act

New York's Governor Kathy Hochul recently vetoed The Grieving Families Act of 2023  (Download NY Gov. veto message on 2023 wrongful death bill). Governor Hochul vetoed a similar bill in 2022. The Act aimed to allow families of wrongful death victims to receive compensation for emotional anguish. New York's wrongful death statute currently limits compensation in a wrongful death action to pecuniary losses -- i.e., damages calculated based on the monetary contributions that the deceased person would have made to their family had he or she lived. The 2023 Act also sought to extend the time to commence a wrongful death action and expand the scope of eligible family members who could recover in a wrongful death action.

The justification for the Act stemmed from the claimed shortcomings of New York's wrongful death statute, which denies families the ability to seek compensation for emotional suffering caused by the loss of a loved one. The justification section of the bill stated, "The current law, over 170 years old, only awards damages for pecuniary loss, disproportionately affecting children, seniors, women, and people of color who may have little or no income. The law's narrow and inhumane language values family members solely based on their financial contributions, disregarding the emotional support, love, companionship, advice, and guidance they provide."

Vetoing the bill, Governor Hochul emphasized that the Act had the potential of significant unintended consequences, that is, "increased insurance premiums for the vast majority of consumers, as well as risk the financial well-being of [New York's] health care facilities -- most notably, for public hospitals that serve disadvantaged communities."

Governor Hochul expressed her willingness in the veto memo to consider future legislation to amend the wrongful death statute. The third time's the charm, so expect the Legislature the pass another bill either this term or in the near future. 

 

 

New York's Justice for Injured Workers Act - New York Workers' Compensation Law

New York Governor Kathy Hochul signed a bill at the end of 2022 that impacts workers’ compensation and personal-injury lawsuits in New York. “The Justice for Injured Workers Act” adds a new section of New York’s Workers Compensation Law that bars a court or other forum from granting preclusive or collateral estoppel effect to decisions by the Workers’ Compensation Board in any other action or proceeding. The Act will impact construction-site/Labor Law personal-injury lawsuits.

Consider a litigant who claims he was injured at a construction site as an employee of a concrete subcontractor. The litigant claims he fell from a height because he was not provided with appropriate safety devices. The subcontractor has no record of the litigant’s employment or his presence at the jobsite, and has no record or report of the claimed accident. The Workers’ Compensation Board determines in the litigant’s workers’ compensation claim that he was not the subcontractor’s employee and was not present at the jobsite.

Prior to the Act, the owner, general contractor, or employer could argue in the litigant’s personal-injury action (separate from the workers’ compensation claim) that the Board’s findings precluded the litigant from arguing he was the subcontractor’s employee and was injured at the jobsite. The Act now bars a court from granting preclusive effect to the Board’s decisions except on a determination of whether there was an employer/employee relationship.

The Act cuts both ways for the plaintiffs’ and defense bar. The Act’s stated intent was to protect workers and the “no fault” nature of workers’ compensation claims, thereby favoring plaintiffs in personal-injury actions. The Act’s justification notes the “lightning-fast administrative hearings before a Worker’s Compensation Law Judge” were designed to provide quick and consistent benefits for injured workers. It also notes that the hearings “sacrifice[d]” basic procedures and evidentiary rules of  trials “to swiftly decide the claims.” Thus, the Act seeks to protect workers from having less-formal, quick administrative determinations impinge on a workers personal-injury action. As opposed to workers’ compensation claims, personal-injury actions abide by rules of evidence and allow for discovery to flesh out the issues.

The glass is half full for the defense bar, however. The Act now prevents alleged injured workers from arguing in their personal-injury lawsuits that the Board’s determination on whether the work-related accident happened or how it happened precludes the defense from proffering evidence to demonstrate otherwise. The Act’s unintended effect benefits the defense bar in the construction litigation realm, where there are frequent fraudulent claims of unwitnessed, gravity-related accidents. The plaintiffs’ bar can no longer argue that the Board’s findings on the foregoing issues are final.

The Act certainly gives the plaintiffs’ bar a boon. A plaintiff can now argue that the Board’s determination on the existence of an employer/employee relationship precludes the Supreme Court from ruling on the same issue in the plaintiff’s personal-injury lawsuit. Considering the large number of fraudulent construction-site claims in New York, many of them are questionable on the employer/employee relationship issue. In that respect, the Act helps the plaintiffs’ bar.

The Act’s impact on personal-injury lawsuits is one more reason for the insured (owner, general contractor, and subcontractors), the general liability defense attorney, and the workers’ compensation defense attorney to work closely with each other at the early stages of the litigant’s claim. The defense can stem a fraudulent claim at its inception by proving to the Board that there was no employer/employee relationship between the litigant who is claiming injuries at a construction site and the general contractor or subcontractor. Considering the plaintiff-friendly protections under Labor Law §§ 240 (1) and 241 (6), disputing every meritorious issue counts.

The Act is effective immediately.

Photo credit: Arne Hoel / World Bank (license)

Wrecks, Lies, and Videotape - Two Recent New York Appellate Division Cases Consider Video Record Evidence on Summary Judgment Motions

What do Buggles, George Orwell, Pappas v New York City Tr. Auth. , and Zhong v Matranga have in common? They all recognize the impact of the medium of video.

As technology has advanced in the last ten years, so has the ubiquity of video recordings in our daily lives. Videos aren’t just for Youtube, Tik Tok, and Instagram posting. The medium has found its way into summary judgment motions, too. The decisions in Zhong and Pappas are two recent examples of the power of video recordings.

The facts in Pappas show that, without a video recording, the case would have been a garden-variety motor-vehicle accident with conflicting testimony. The personal-injury action stemmed from a rear-end collision in which the defendant bus driver rear-ended the vehicle the plaintiff George Pappas was driving. George’s wife Donna was a passenger in the car. Both plaintiffs separately testified that they had been stopped for 5 to 10 seconds when the bus struck them from the rear without warning. George testified that he had stopped the vehicle because the traffic light was red.

The bus driver told a different story. He testified at his deposition that the accident occurred because the plaintiffs’ vehicle moved into the bus’s lane in front of the bus. Without warning, the plaintiffs abruptly stopped in front of the bus even though a green light was is in their favor.

The defendants (the bus driver and the owner of the bus) moved for summary judgment to dismiss the negligence action based on the emergency doctrine. Considering the conflicting testimony, the Second Department noted that, without more, triable of issues existed on how the accident happened and who was at fault. The Second Department further noted, however, that the bus surveillance video, which the defendants submitted in support of their motion, eliminated any triable issues of fact. The Court noted that the video recording supported the bus driver’s version of how the accident happened, concluding that the bus operator was confronted with an emergency not of his own making and was left with “virtually no opportunity to avoid a collision . . . .” Accordingly, the Court affirmed Supreme Court’s grant of summary judgment dismissing the complaint.

The video recording in Zhong had an equally damaging result on a motion for summary judgment. The case concerned a bicycle/pedestrian accident. The defendant in Zhong was riding his bicycle in New York City. The collision with the plaintiff pedestrian happened as the defendant was riding his bicycle with the right-of-way through an intersection. He traveled in the marked bicycle lane at a speed of approximately 14 miles per hour, well within the posted speed limit and within the average cruising speed for bicycle traffic proceeding through the intersection.

The accident happened when the plaintiff suddenly entered the marked bicycle lane against a red light for pedestrian traffic and within a few feet of the defendant. The defendant testified at his deposition that when the plaintiff took two steps into the bicycle lane, he (1) “immediately braked and yelled ‘watch out’”; collided with her in the middle of the bicycle lane approximately two seconds later; (3) didn’t have time to stop, change lanes or go around the plaintiff; and (4) jammed on the brakes and yelled at the plaintiff.

The defendant moved for summary judgment, proffering an expert affidavit in which the expert opined on he numerous reasons why the defendant was not negligent. In opposition, the plaintiff also proffered an expert affidavit in which the expert opined that even if the defendant was traveling under the speed limit, he was still negligent because the defendant bicyclist was traveling much faster than the three other bicyclists riding near him. Without a video, this would have been one of those battle-of-the-experts situations where the non-movant raised triable issues of fact to defeat a summary judgment motion.

The parties had proffered a copy of a video of the intersection that captured the incident. The video was the deciding factor in the case. The First Department concluded, “There is only one version of the accident: the one shown in the video, described in [the] defendant’s testimony, and corroborated by [the] plaintiff.” Granting the defendant’s summary judgment motion, the Court reasoned that the video showed that the plaintiff (1) did not look in the direction of the defendant, (2) could not state the distance between her and then defendant when she stepped off the curb, (3) did not remember being struck by the bicycle, and (4) only remembered someone yelling “watch out” while “very, very close” to her right ear. The First Department noted that the plaintiff’s testimony synced with the defendant’s testimony that the plaintiff darted out onto the bicycle’s path when he was within a few feet from her.

The First Department concluded that the plaintiff failed to raise an issue of fact, noting there was no evidence that the defendant operated his bicycle at an excessive rate of speed, in a negligent manner, or without due care to avoid colliding with any pedestrian.

For plaintiffs and defendants alike, the Pappas and Zhong decisions are reminders remind to request all available, relevant video recordings in their respective discovery demands. Early investigation of an accident will help attorneys unearth recordings of the relevant accident or incident. As the Pappas and Zhong decisions demonstrate, a video recording can mean the difference between a dismissal and going to trial with conflicting fact and expert witness testimony.

Thank you to my partner Brendan Fitzpatrick for bringing these cases to my attention.

(40 years ago this week, the Australian band Men at Work was fighting its way up the Billboard 100 charts with the No. 12 song, "Who Can It Be Now?" Cue the obligatory but awesome saxophone solo)

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)

Defamation - New York Court of Appeals' Addresses Long-Arm Jurisdiction Within Context of Defamation Suit

SPCA of Upstate N.Y., Inc. v. American Working Collie Assn. (Motion for leave granted on Dec. 16, 2010) 74 A.D.3d 1464 (3d Dep’t 2010)

 This appeal addresses the almost entirely subjective issue of long-arm jurisdiction in a defamation action.  New York courts construe long-arm category “transacts any business within the state” under CPLR 302(a)(1) more narrowly in defamation cases than they do in other sorts of litigation.

 The defendant published writings on the American Working Collie Association’s web site about her observations about certain rescued dogs housed at the plaintiff SPCA of Upstate New York, Inc in Queensbury, New York.  The SPCA and its executive director commenced an action against the AWCA claiming that they were defamed by the writings on the AWCA web site.  The defendant executive director is a Vermont resident and president of the AWCA, which is an Ohio not-for-profit corporation.  The president contacted the SPCA’s executive director by telephone on three occasions regarding assistance she offered to SPCA.  The AWCA president visited the SPCA on two occasions within a month; the visits amounted to approximate three-and-a-half hours in total.

 The Third Department observed that whether the long-arm statute applied was a close call.  The Court analyzed the purpose of the defendant president’s contacts with the SPCA in New York, not that there was no evidence that any of those contacts garnered funds, yield members or generated publicity for AWCA.  The Court also noted that the alleged defamatory comments were not made in New York and were placed on a Web site for AWCA members (located throughout the country) with no effort to direct the comments toward a New York audience.

 Notably, the Court recognized that the contact could support long-arm jurisdiction for causes of action other than defamation.  Because the Court framed the contacts as “help[ing] with a difficult situation that had developed suddenly regarding a large number of mistreated dogs,” the Court refused to assert long-arm jurisdiction over the defendants under the “transacts any business within the state” prong.

 The Court of Appeals will wrestle with just how narrow it will construe contacts within a defamation context.  The Court of Appeals’ decision no doubt will still leave litigants guessing whether contacts in future cases are too much or too little to assert jurisdicition.

 

Defamation - New York Court of Appeals Addresses Fact Versus Opinion in Summary Judgment Context

Halstead v. Brokaw (Motion for leave to appeal granted on Dec. 10, 2010) 74 A.D.3d 1283 (2010)

The appeal concerns one of three related actions to recover damages for defamation.  The novel issue appears to concern a court’s determination of whether a statement is one of opinion or of fact.  The Court of Appeals will likely re-examine its holding in Gross v. New York Times Co., 82 N.Y.2d 146 (1993), which set forth the following relevant factors for a court to determine whether a statement is an opinion or of fact: “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to 'signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact.' " (Id. [quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 292 [1986]).

 A unanimous panel at the Second Department granted the defendants’ motion for summary judgment dismissing the second action.  The Court held that the plaintiff in action No. 2 failed to raise a triable issue of fact.