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

Appellate Division, Third Department Addresses Issues of First Impression Regarding "Grave Injury" Under Workers' Compensation sec. 11

The Appellate Division, Third Department in Giblin v. Pine Ridge Log Homes, Inc. recently addressed an issue of first impression regarding whether the loss of an eye constituted, as a matter of law, a "permanent and severe facial disfigurement" as set forth under the definition of "grave injury" in section 11.  As you probably remember, Workers' Compensation Law sec. 11 allows impleader of an employer as a third-party to a tort action of an injured employee in only two instances: where contractual indemnification exists or where the injured worker sustains a "grave injury."  The decision has several important holdings beyond the actual interpretation of "grave injury."

First, the Court held that the plaintiff (the injured plaintiff) could raise issues on the appeal because it was an aggrieved party.  The Court reasoned that the plaintiff had an interest in securing the source of payment for the award that might be ultimately granted.

Second, the Court held that failing to plead that the plaintiff sustained a "grave injury" was not fatal to the third-party plaintiff.

Third, the Court held that the loss of an eye on the record before it did not constitute a "severe facial disfigurement."    The Court reasoned:

Although a surgically removed eye clearly results in a permanent condition, plaintiff wears a prosthesis which is removed only once a year for cleaning. As Supreme Court aptly noted, the photographs of plaintiff wearing the prosthesis demonstrate little difference, if any, in his facial appearance before and after the accident.

This decision fits exactly with the New York Court of Appeals' prior decisions that have stated that courts should narrowly interpret the injuries set forth in sec. 11 with an eye toward the legislative intent  of the statute.  For the Court of Appeals' discussion of the legislative intent, Castro v United Container Mach. Grp. and Rubeis v. Aqua Club Inc. are good places to start.

New York Court of Appeals Will Hear Oral Arguments on Independent Cause of Action for Spoliation

About a year ago, New York Civil Law posted about a Supreme Court, Kings County decision --  Ortega v. City of New York -- that 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.  The Second Department searched the record and granted summary judgment to the City of New York on the plaintiffs' claim for spoliation of evidence.  The New York Court of Appeals recently granted leave to appeal to hear whether an independent cause of action for spoliation exists under these circumstances.

As I stated in the prior post, 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. 

New York Civil Law will keep you apprised of this appeal and will possibly post the motion papers on the application for leave to appeal.

About a year ago, New York Civil Law posted about a Supreme Court, Kings County decision --  Ortega v. City of New York -- that 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.  The Second Department searched the record and granted summary judgment to the City of New York on the plaintiffs' claim for spoliation of evidence.  The New York Court of Appeals recently granted leave to appeal to hear whether an independent cause of action for spoliation exists under these circumstances.

As I stated in the prior post, 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. 

New York Civil Law will keep you apprised of this appeal and will possibly post the motion papers on the application for leave to appeal.

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.

Thyroff v. Nationwide Mut. Ins. Co. -- An Incredibly Forward-Thinking Decision on Conversion

Judge Graffeo wrote an extremely encouraging and forward-thinking opinion regarding whether the common-law cause of action of conversion applies applies to electronic computer records and data.  In Thyroff v. Nationwide Mut. Ins.  Co., the New York Court of Appeals held that the cause of action of conversion can apply to electronic computer records and data, refusing to expand its holding beyond the certified question that specifically stated electronic computer records and data.

The decision is encouraging because Judge Graffeo analyzes the development of conversion through history and recognizes that changing societal attitudes and technology warranted change in how this cause of action encompassed property.  Perhaps courts around the country can look to this decision in thinking about other important topics where the law has not kept up with advancements in technology -- i.e., copyright law.

New York Court of Appeals Will Hear Duty of Care Issue

The New York Court of Appeals in Clementoni v. Consolidated Rail Co. will hear oral arguments this Session concerning interesting duty of care and proximate cause issues.   An automobile driver brought an action against a railroad, the estate of deceased owners of private road, and owners of property abutting railroad tracks and a private road, based on injuries he sustained when his vehicle collided with a train.  The motorist claimed that the owners of the private road owed him a duty to warn or protect him from the dangers of the railroad crossing.  Notably, the motorist stated his deposition that he had passed over the railroad crossing on that day three times before.  The Majority of the Appellate Division, Fourth Department dismissed the claim against the property owners, holding that they did not owe the motorist a duty to erect a gate and, in any event, the lack of protections were not the proximate cause of the accident.

New York Court of Appeals Adheres to Well-Settled Rule Regarding Common Carriers

Last week, the New York Court of Appeals in Bingham v.  New York Trans. Auth. adhered to a long-standing rule regarding the duty of care imposed on common carriers.  Courts have long recognized that the duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers.

In Bingham, the plaintiff fell while descending a stairway leading to a subway station, alleging that a dangerous condition caused her fall.  She brought suit against the New York City Transit Authority and the Metropolitan Transit Authority, asserting, among other things, failure to keep and maintain the stairway in a proper and safe condition and failure to provide notice or
warning of the defective condition.  The Transit Authority neither owned nor maintained the stairway.   It requested that Supreme Court charge the jury that, unless the plaintiff
had established that the stairway was used exclusively for subway purposes, she had failed to state a cause of action and her suit should be dismissed.  The Supreme Court rejected the Transit Authority's request.

In upholding the jury charge requested by the plaintiff, the Court of Appeals fashioned this rule regarding common carriers: Where a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger.  Whether those means of ingress or egress are used primarily for that purpose would generally be a question of fact.

The procedural posture of this particular case is interesting because this was the second time that the case was before the Court.  In Bingham I, the Court observed that the Transit Authority failed to preserve the argument regarding a common carrier's duty within the context.  The Bingham I decision is an excellent discussion of the preservation rule.

Appellate Division, Second Department's Automobile Chain-Reaction Holding Redux

A recent post regarding an automobile chain-reaction accident stirred up a lot of discussion here at New York Civil Law (see post here).  In Park v. Kim, the Appellate Division, Second Department revisited a similar situation, but ironically not citing Ali v. Daily Pita Bakeries (the case that raised the hackles of a few NYCL readers).

In Park, defendant Park apparently stopped his automobile short on a roadway (unidentified in the decision) and defendant Kam was able to stop behind Park without hitting his automobile.  Defendant Kim rear-ended Lam (the one who successfully stopped behind Park), causing Kam (the second in line) to crash into Park (you following this?).  The defendants asserted cross-claims against Park his negligence proximately caused the accident.  The Court disagreed, observing that since Lam was able to safely bring his vehicle to a complete stop behind the Park vehicle prior to the collision, any purported negligence on the part of Park was not a proximate cause of the collision or the injuries.  Where's the citation to Ali?

More importantly, it appears that the Second Department is cutting off liability in a chain-reaction automobile accident where the automobile behind the lead automobile is able to successfully stop without hitting the lead automobile, irrespective of the negligence of how the lead automobile driver acted.

Appellate Division, Second Department Hold Defendant is Not Entitled to Post-Note of Issue Interview with Plaintiff's Treating Physician

In Arons v. Jutkowitz, the Appellate Division, Second Department held that Article 31 of the CPLR does not provide a mechanism for defense counsels' informal practice of interviewing ex parte a plaintiff's non-party treating physician post note of issue.  Although the Court framed the issue as one of first impression regarding the interplay of the Federal Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.; hereinafter HIPAA) and the defense bar's informal practice of privately interviewing plaintiffs' nonparty treating physicians after a note of issue has been filed, the Court refused to direct the plaintiff to sign authorizations for interviews of plaintiff's physicians based on Article 31 (New York's discovery rules).  The case arose in the context of a malpractice action.

A read of this decision is important to supply a background of this informal practice, as well as a background of HIPAA.

Does the Emergency Doctrine Need to be Pled as an Affirmative Defense?

Seems like a basic question: Does the "emergency doctrine" need to be pled as an affirmative defense?  Well here's a typical answer: "It depends."

The Appellate Division, First Department recently addressed this threshold issue in Edwards v. New York City Tr. Auth.  The emergency doctrine stands for the proposition that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, the actor may not be found negligent if the actions are "reasonably prudent" under the emergency circumstances with which he or she is confronted.

Frequently, defendants forget to plead the doctrine as an affirmative defense.  Is this omission fatal? The Edwards Majority and Dissent both conclude that the omission is not fatal where there is evidence that such a defense will not pose a surprise to the plaintiff or co-defendant.  The Majority and Dissent disagreed as to whether an issue of fact existed as to whether the bus driver in this case was actually confronted with an emergency situation.

Discovery of Derivative Plaintiff's Psychiatric Records

The decision in Heines v. Minkowitz (Supreme Court, Richmond County) addresses an extremely interesting question: Can a defendant seek discovery as to the psychiatric records of a plaintiff who is merely suing derivatively.  In Heines, the infant plaintiff commenced a malpractice action against one of his doctors concerning a surgery to the infant's leg.  The infant's mother is suing derivatively for loss of services.

The defendant sought authorization and disclosure of the medical records of the infant's mother, arguing that the mother was suffering from Munchausen Syndrome By Proxy (MSBP).  Because the infant's mother had waived her privilege to preclude discovery of this information (one during her testimony at a deposition), Supreme Court Justice Maltese ordered the infant's mother to submit her psychiatric records to the Court to be examined in camera to ascertain whether she is suffering from Munchausen Syndrome By Proxy (MSBP), or such other factitious disorder or condition that has contributed to the medical treatment history of her son in this medical malpractice action.

Given that there is a fine line for the discovery of such privileged information (see prior post), this case makes for an extremely interesting read.