New York Appellate Law Blog

Court Orders New Trial Based on Improper Conduct of Trial Justice

2013-05-20T17:43:00.001-04:00

In Porcelli v. Northern Westchester Hospital Center, the plaintiffs sued Dr. Tsai and Northern Westchester Hospital Center for alleged medical malpractice after their infant daughter developed respiratory problems and a pharyngeal tear when Dr. Tsai inserted an endotracheal tube to check for the presence of meconium after the birth. The court dismissed the claim against the hospital pursuant to CPLR 4401, and the jury returned a verdict for Dr. Tsai. However, the Second Department reversed and granted a new trial on the issue of liability against Dr. Tsai, because of the excessive intervention and improper conduct by the trial justice. The court held that the trial justice "unnecessarily injected personality issues into the case" and "demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel." For example, among other things, the trial justice likened plaintiff’s council to "a leech on a horse" in the presence of the jury. As a result, the court concluded the jury could not have considered the issues at trial in an unprejudiced and fair manner, and ordered a new trial against Dr. Tsai. In addition, the Court reinstated the claim against the hospital for vicarious liability because the hospital’s 4401 motion did not request dismissal of the vicarious liability claim. Since the Court reinstated the cause of action against Dr. Tsai, the Court reinstated the vicarious liability claim against the Hospital.

Court Finds Repeated Acts of Molestation Constitute Separate Occurrences Under Insurance Policies

2013-05-08T17:31:00.001-04:00

In Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Co. of Pittsburgh, PA., a declaratory judgment action, the Court of Appeals addressed four insurance coverage issues raised by repeated instances of sexual molestation of one child by a Queens priest from August 1996 to May 2002. In doing so, the Court of Appeals issued three opinions and Judge Lippman took no part. The result was Judge Rivera writing for a three-judge plurality, Judge Smith issuing a concurrence in the outcome, and Judge Graffeo issuing a partial concurrence and partial dissent. Judges Smith and Graffeo, writing separately, joined the plurality on only two of the four issues, leaving the remainder without precedential weight.

The Diocese brought this action to recover from its insurers after settling the child’s molestation claims for $2 million and “additional consideration.” The principal dispute concerned a $250,000 self-insured retention (“SIR”) applicable to each occurrence and to each of multiple policies. The parties contested (1) whether defenses concerning the SIR or allocation among the policies and insurers were waived when they were not mentioned in a disclaimer letter; (2) whether the claims of molestation should be considered a single occurrence or multiple occurrences; (3) how many SIRs the Diocese would need to exhaust; and (4) whether the Diocese could recover on a joint and several basis or pro rata among the insurers.

First, the Court of Appeals considered the argument that National Union waived its defense of the self-insured retention because it was not mentioned in a disclaimer letter. The Court disposed of the argument, holding that National Union was not obligated to raise the SIR issue in its disclaimer letter because it was a limit on liability and not an exclusion. This part of the plurality’s opinion essentially confirmed earlier Court of Appeals case law that coverage cannot be created by estoppel. Judges Smith and Graffeo joined this part of the opinion.

Second, the plurality reasoned that the claims of molestation were multiple occurrences rather than a single occurrence under the policy. Judge Rivera wrote that the Court applies the “unfortunate event” test when the policies themselves do not indicate an intent to aggregate separate incidents into a single occurrence. In that test, the Court looks to whether the claims share a close “temporal and spatial relationship” and whether the claims were part of a “singular causal continuum.” The plurality noted throughout its opinion that the claims of molestation were distinct, spanned six years, and occurred in various and unique locations such as the rectory, a vehicle, as well as more than one home. Thus, the claims did not share a close temporal and spatial relationship, and they were not part of a singular causal continuum. Judges Smith and Graffeo disagreed, leaving the plurality short of the four votes needed to create precedent for finding repeated instances of sexual misconduct as multiple occurrences.

Third, the plurality decided that the Diocese would be required to exhaust a SIR for each occurrence under an implicated policy. Looking to the policy, the plurality noted that a SIR “shall apply separately to each occurrence” and only to “occurrences covered under [the] policy” (alteration in original). Judge Graffeo, arguing that there was only a single occurrence under the policy, concluded that the Diocese needed to exhaust only a single SIR, regardless of the number of policy periods through which that occurrence carried. Judge Smith, also arguing for a single occurrence, concluded however that a SIR should be exhausted for each policy year in which the single occurrence and injury continued.

Summing up the number of SIRs to be applied, Judge Smith put it succinctly: “To clarify the point, imagine a case where a priest committed twenty acts of abuse of one victim over five years, and five one-year policies were successively in force, each with a self-insured retention. How many retentions are to be applied? The plurality’s logic gives the answer twenty. Judge Graffeo would say one. The Ninth and Fifth Circuits would say five, and I think they are correct.” As none of the opinions garnered the required four votes, this opinion also lacks precedential weight.

Fourth, and finally, the Court unanimously agreed that the Diocese could not recover for the repeated claims of molestation by proceeding against one insurer on a joint and several theory of liability. Under such a theory, the insured could recover against one insurer and the insurer could then proceed against remaining insurers. The plurality, joined by Judges Smith and Graffeo, instead decided that the proper means of recovery would be to allocate the losses pro rata.

Court Of Appeals Grants Leave In Products Liability Action

2013-04-30T18:34:00.003-04:00

On April 30, 2013, the Court of Appeals granted leave in Hoover v. New Holland North America, Inc., a products liability action involving an alleged design defect. In Hoover, the sixteen year old plaintiff suffered an above-the-elbow amputation because her coat became tangled on a bolt protruding from a driveline that connected a tractor to an implement used to dig post holes. The device had been designed with a plastic shield that covered the protruding bolt. Notably, however, the plastic shield had been removed from the device by its owner (not the plaintiffs) because the shield was “damaged beyond repair during use.”

The jury found that a design defect caused the plaintiff's injuries, and the Appellate Division, Fourth Department affirmed. The Fourth Department noted that there was sufficient evidence that the protruding bolt was an entanglement hazard and that there were design alternatives that would reduce or eliminate the hazard at only a nominal increase in cost. The court also rejected defense arguments that the verdict was against the weight of the evidence or that there was insufficient evidence of causation.

With respect to the owner’s removal of the plastic shield, the Fourth Department noted that a manufacturer will not be liable when a safely designed and produced product is substantially altered or modified by a third party. Nevertheless, the Fourth Department wrote that a modification defeats such a claim only where the modification made a safe product defective and caused the injuries. In that vein, the Fourth Department acknowledged that the device was designed with a plastic shield, but noted that there was sufficient evidence that the shield “could be damaged by normal use or foreseeable misuse.” Given the evidence concerning the bolt and the shield, the Fourth Department held that “plaintiffs presented sufficient evidence that the digger was defectively designed, and we further conclude that they presented sufficient evidence that [the owner’s] removal of the damaged gearbox shield did not constitute a substantial modification.”

This Week At The Court Of Appeals

2013-04-30T18:28:00.003-04:00

J. P. Morgan Securities Inc. v. Vigilant Insurance Co.:

The plaintiffs commenced this insurance coverage action after their insurers disclaimed coverage for more than $200 million in damages related to an underlying SEC investigation, settlement, and shareholder lawsuits. The claimed damages stem from allegations that the plaintiffs facilitated late trading in violation of various securities laws. As a result of the investigation, the plaintiffs agreed to pay $160 million as “disgorgement” in a settlement that neither admitted nor denied the SEC’s findings. The $160 million itself allegedly represented disgorgement of an estimated $20 million in fees and commissions and $140 million of profits that customers made on illegal trades.

The defendant insurers provided professional liability policies covering loss incurred from “any Wrongful Act,” which included settlements and compensatory damages but not fines or penalties imposed by law or costs that are legally uninsurable. The policies also excluded claims based upon or arising out of the insured “gaining in fact any personal profit or advantage to which [it] was not legally entitled.” The insurers disclaimed, claiming the disgorgement was not an insurable loss and was excluded from coverage.

In response to the complaint, the insurers moved to dismiss the action under CPLR 3211 (a)(1) & (7), claiming there was documentary evidence precluding recovery, highlighting the SEC findings, or that the pleadings failed to state a claim. The trial court denied the motion to dismiss and the defendants appealed. The Appellate Division, First Department, reversed and dismissed the complaint, holding that the “disgorgement of ill-gotten gains . . . does not constitute an insurable loss.” The First Department wrote that wrongdoers should not be permitted to shift the cost to an insurer and “retain the proceeds of his or her illegal acts.” The plaintiffs argue, among other things, that the disgorgement is a covered loss because it did not receive ill-gotten gains and was not unjustly enriched.

Oral argument will be Wednesday, May 1, 2013. The Court streams oral arguments online. To watch live, you can visit the New York Court of Appeals website on Wednesday around 3:30 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

This Week At The Court Of Appeals

2013-04-22T18:13:00.000-04:00

Wild v. Catholic Health System:

In this medical malpractice action, the Court of Appeals will have the first opportunity in almost forty years to address the rule about loss of a chance of a better outcome. At Mercy Hospital, the plaintiff’s decedent had difficulty breathing and emergency room doctors decided to insert a breathing tube. The doctors unsuccessfully attempted to intubate the decedent multiple times before inserting the tube properly. The decedent suffered a perforated esophagus that was not diagnosed until days later. When eventually diagnosed, the damage was irreparable and the plaintiff needed a permanent feeding tube.

The trial court gave a “lost chance” instruction based on the theory that had the perforated esophagus been timely diagnosed, the perforation might have been fixed by immediate surgery. The instruction at issue allowed the jury to find for the plaintiff where “the defendant’s actions or omissions deprived Mrs. Horn of a substantial possibility of avoiding the consequence of having a permanent feeding tube. The instruction noted that “to be substantial, [the chance of avoiding the need for a permanent feeding tube] does not have to be more likely than not and it does not have to be more than 50 percent, but it has to be more than slight.” The defense will argue in the Court of Appeals, among other things, that this instruction improperly reduced the plaintiff’s burden for proving causation to “more than a slight chance.”

The Appellate Division, Fourth Department, had partially rejected that argument, noting that the instruction was partly in error but that the error was harmless. The Fourth Department held that the lost chance instruction was appropriate for the plaintiff’s failure to diagnose the perforation but was not appropriate for creating the perforation. In the Fourth Department’s view, though, the finding of negligent intubation “necessarily entailed a finding of proximate cause,” making the causation instruction harmless as to the intubation.

Oral argument will be Wednesday, April 24, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

First Department Dismisses a $5.5 Million Medical Malpractice Verdict

2013-04-16T12:42:00.000-04:00

Disclaimer: This is an MLN case

In Bustos v. Lenox Hill Hospital, the jury determined that the defendant Hospital departed from accepted practice in connection with (1) the dosage of an epidural block administered during plaintiff’s delivery of her infant child and (2) the maneuvers performed on plaintiff during the delivery. The jury also concluded that such departures from accepted practice caused the plaintiff’s claimed injury, which consisted of a 9.5 centimeter pubic symphysis diastasis, and awarded plaintiffs $5.5 million ($4.5 million for her past and future pain and suffering and $1 million for her husband’s loss of services). The Supreme Court denied the Hospital’s motion to set aside the jury’s verdict.

Based upon the insufficiency of the expert testimony proffered by the plaintiffs, the First Department unanimously reversed the trial court’s Order, and directed that the plaintiffs’ complaint be dismissed. With respect to the alleged departure from accepted practice in connection with the epidural dosage, the Court concluded that the plaintiffs’ “own expert conceded that the dosage was standard and appropriate.” Concerning the birthing maneuvers, the Court noted that the “only testimony plaintiffs’ expert gave as to the alleged deviation from the accepted standard of medical care in the performance of the birthing maneuvers was that the maneuvers ‘were excessive and caused th[e] injuries’ and deviated from the appropriate standard of care.” Noting that the plaintiffs’ expert failed to “explain or in any other way support his opinion,” the Court concluded that the opinion “was speculative and conclusory and without probative force.”

Governor Cuomo Nominates First Department's Justice Abdus-Salaam for Court of Appeals

2013-04-05T16:09:00.000-04:00

Governor Andrew Cuomo has announced his nomination of Appellate Division, First Department, Associate Justice Sheila Abdus-Salaam to the New York State Court of Appeals. Here is the link to the Governor's press release. The Senate now has thirty days to confirm or reject the appointment.

Court of Appeals Judges Share Their Practice Tips

2013-04-01T11:38:00.000-04:00

On Monday, the New York Law Journal highlighted a two-hour symposium held on March 21, 2013 at Albany Law School involving the Judges of the Court New York State Court of Appeals. The program was titled “The New York Court of Appeals: The Untold Secrets of Eagle Street." Among other things, the Judges discussed how they prepare for cases, what appellate practitioners should know about appearing before the court, and offered a little insight into how they work behind closed doors.

Video of the two-hour symposium is available online. The video includes recently sworn-in Judge Rivera sharing her perspective as the newest Judge on the court (around the 95 minute mark).

Court Applies Relation Back Doctrine Where Plaintiffs Were Negligent In Failing To Add Doctor Sooner

2013-03-29T18:22:00.003-04:00

In Kirk v. University OB-GYN Associates, Inc., the plaintiffs commenced a medical malpractice action for injuries to their infant during delivery, but did not correctly name the doctor that delivered their infant. After the statute of limitations expired, the plaintiffs moved to add the doctor that delivered the infant, claiming that they learned who delivered the infant after filing the complaint. At issue was whether the amendment was timely under the relation back doctrine. The Fourth Department concluded that plaintiffs were entitled to relation back because "even if [plaintiffs] were negligent, there was still a mistake by plaintiffs" in failing to identify the right doctor.

DOMA Oral Argument

2013-03-27T13:54:00.001-04:00

The audio recordings and transcripts of today's oral argument in United States v. Windsor are available here.

Expert Affidavit Needed to Make Prima Facie Case of Lack of Causation in Medical Malpractice Cases

2013-03-27T10:24:00.001-04:00

On February 13th, we previewed Orsi v. Haralabatos, a medical malpractice case where the Second Department held that the plaintiff failed to raise a question of fact regarding causation. The Court of Appeals has now reversed, holding that because the issue of proximate cause was not addressed in the defendants’ experts’ affidavits, the burden never shifted to the plaintiff. The decision is here.

Supreme Court Arguments on Prop 8 and DOMA

2013-03-26T13:03:00.001-04:00

Today, the United States Supreme Court held its first of two days of oral arguments on the Constitutionality of California's Proposition 8, banning same-sex marriage, and the Defense of Marriage Act. The audio recordings and transcripts of today's oral argument in Hollingsworth v. Perry are available here. The Court will release the audio and transcripts for tomorrow's oral argument in United States v. Windsor no later than 2 p.m.

Second Department Affirms Finding of Questions of Fact As to Whether Plaintiff Was A Worker Entitled to Labor Law Protection

2013-03-15T09:42:00.001-04:00

In Vega v. Renaissance 632 Broadway, LLC, the plaintiff was injured while standing on a ladder cutting brackets to free a pipe during demolition work. The pipe broke free and struck the ladder, allegedly causing the ladder and plaintiff to fall to the floor. Although plaintiff testified that his boss had instructed him to perform this work, plaintiff's boss testified that he had instructed plaintiff to perform only clean-up work. On these facts, the trial court and the Second Department found that a question of fact existed as to whether the plaintiff had been "suffered or permitted to work on a building" within the meaning of the Labor Law, or whether he was acting outside the scope of his employment.

First Department Uses "Unpreserved" Argument to Support Finding of Labor Law 241(6) Liability

2013-03-15T09:42:00.000-04:00

In Velasquez v. 795 Columbus LLC, the plaintiff was injured in a slip and fall on a muddy condition that had formed on a concrete floor at a construction site due to rain and a nearby water main break. He was granted summary judgment against defendants on his Labor Law 241(6) claim. On appeal, the First Department found that Industrial Code 23-1.7(e), which protects against "tripping" hazards, did not apply. However, the Court found that 23-1.7(d), which applies to "slipping" hazards and was asserted in plaintiff's complaint and bill of particulars, but not his summary judgment motion, supported plaintiff's claim. The Court observed that it reached the unpreserved argument "because it is a legal issue that is apparent on the record." Since the muddy condition was not a part of the work, it constituted a "foreign substance" that caused a slipping condition.

Third Department Applies Labor Law "Residential Use" Exemption to Home For Disabled Individuals

2013-03-14T11:30:00.000-04:00

In Sanchez v. Marticorena, the plaintiff's decedent was tragically killed in a fall from the defendants' roof. The defendants owned a residential home that was certified by the Office for People with Developmental Disabilities as a "family care home." Four disabled individuals resided at the home, along with the defendants, for which defendants received a stipend. Plaintiff argued, therefore, that the "home" also served a "commercial purpose" and as such the roof repair work was subject to the Labor Law.

The work, however, was for the benefit of an attic bedroom where one of the defendants slept and the repairs were paid for from the defendants' personal funds.

The Third Department held that the receipt of a stipend did not transform the residence into a purely commercial enterprise to render the "residential use" exemption under the Labor Law inapplicable (Bartoo v. Buell, 87 N.Y.2d 362 [1996]). The Court also held that plaintiff had failed to rebut the fact that the subject repair benefited the defendants' residence, and not an area of the home that allegedly served a commercial purpose. Finally, the Court observed that the homeowner's exemption "'was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by' the Labor Law (Lombardi v. Stout, 80 N.Y.2d 290, 296 [1992)." Here, becoming licensed family care providers did not transform the defendants into sophisticated business persons.

Possible "Theft" of Scaffold Planks Not An Intervening Cause of Plaintiff's Subsequent Fall

2013-03-11T15:57:00.000-04:00

In Susko v. 337 Greenwich LLC, the plaintiff fell from a scaffold on which plywood sheeting had been placed over the scaffold planks. The plaintiff alleged that in one area there were two planks missing beneath the plywood. The owner argued that the planks were possibly stolen and that he was aware that other subcontractors on the site were moving and removing construction tools and materials. The First Department found, therefore, that the possible theft of scaffold planks was not "an extraordinary or unanticipated intervening act that constituted a superseding cause for plaintiff's injuries," thus entitling plaintiff to partial summary judgment on liability pursuant to Labor Law 240(1).

Plaintiff's Future Damages Claim Limited by Workers' Comp Decision

2013-02-14T22:44:00.003-05:00

Disclaimer: This is a MLN case

In Auqui v. Seven Thirty One Limited Partnership, the defendants moved to preclude the plaintiff from claiming future damages in a personal injury action based on a finding by the Workers' Compensation Board that the plaintiff had no further disability after January 24, 2006 and no need for further medical treatment. The Supreme Court granted the motion, but the First Department reversed finding that the issue of further causally related disability presented a mixed question of law and fact that could not be given collateral estoppel effect. The Court of Appeals has now reversed and granted the defendants' motion.

According to the Court, factual determinations made by quasi-judicial agencies, such as the Workers' Compensation Board, are entitled to preclusive effect in subsequent proceedings. Here, "[t]he issue of continuing benefits before the administrative agency necessarily turned upon whether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact." The Court further found that the plaintiff had a full and fair opportunity to litigate the issue in the Workers' Compensation proceedings. He was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants' experts. As such the Court held that the plaintiff should be precluded at trial from arguing the duration of his injury as it relates to future lost earnings and future medical expenses. Finally, the Court held that the plaintiff's attempt to use a subsequent guardianship order to raise a question of fact as to ongoing disability should fail because the issue of the plaintiff's incapacity was not opposed at the guardianship proceeding.

Judge Pigott issued a dissent in which he argued that the issue of the plaintiff's ongoing disability was a mixed question of law and fact. As a mixed question of law and fact, he would not have given it preclusive effect.

Today At The Court Of Appeals: Oakes v. Patel

2013-02-14T08:36:00.000-05:00

Oakes v. Patel:

In this medical malpractice action, doctors failed to diagnose and treat a sentinal bleed from a cerebral aneurysm and the plaintiff eventually suffered a massive stroke. That stroke caused, among other things, a traumatic brain injury with cognitive deficits, initial quadriplegia, and residual hemiplegia. After a jury awarded the plaintiff $5.1 million in damages, the trial court set the award aside. The trial court conditionally ordered a new trial unless the defendants agreed to an additur to increase the plaintiff’s award to $17.4 million, which the defendants rejected. After a second trial, the jury awarded the plaintiff $17.8 million. In addition, the trial court denied the Kaleida defendant’s motion to amend its answer to raise an affirmative defense that the plaintiff released the claim against them during a 2003 liquidiation proceeding against Kaleida’s insurer.

The defendants appealed and the Fourth Department affirmed in a three-member majority opinion. The majority concluded that the defendant’s challenge to the amount of the trial court’s proposed additur was not preserved as it was not challenged “before, during or after the second trial, and [they] did not raise that issue on appeal.” In addition, the majority found that damages at the second trial were not excessive. Finally, the majority also rejected the argument that the trial court should have permitted Kaleida to add an alleged affirmative defense of release, explaining that the release did not include the claims. In relevant part, the majority concluded that the release was null and void because the insurer “avoided, or announced that they would avoid, coverage of that portion of the claim.”

In partial dissent, Justice Smith agreed with the majority that whether the trial court’s additur was appropriate was unpreserved, but argued that the majority should have reduced certain categories of damages as excessive. Also in dissent, Justice Peradotto argued that the propriety of the trial court’s additur was preserved when the defendants rejected the additur. Justice Peradotto reasoned that while the trial court properly issued an additur for certain categories of damages, the trial court did not apply the proper standard to conditionally increase the awards to the “minimum amounts the jury could have awarded as a matter of law based on the evidence at trial.”

Oral argument will be this Thursday, February 14, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

Today At The Court Of Appeals: Orsi v. Haralabatos

2013-02-13T04:14:00.000-05:00

Orsi v. Haralabatos:

In this medical malpractice action, a 4-year-old plaintiff claims that he developed chronic osteomyelitis at some point after surgery to treat a fractured elbow. At issue, the Second Department reversed and dismissed the claim, concluding that the plaintiff failed to raise a triable issue of fact about whether the defendant’s conduct was a proximate cause of the injuries alleged.

The plaintiff claimed that days after surgery, on March 20, he returned to the hospital with signs of an infection. He was admitted to the hospital, treated with intravenous antibiotics and released two days later. At a March 25 follow-up visit with the surgeon, the plaintiff showed no signs of infection. Nevertheless, the surgeon prescribed a topical antibiotic for use around the pins protruding from the surgical site.

On April 15, the plaintiff again saw the surgeon and had the pins and cast removed. At that visit, plaintiff had a blood test, which showed that infection had cleared and X-rays similarly showed no signs of osteomyelitis. The surgeon did note pus at the site of the wires, but attributed it to irritation from movement and did not prescribe another antibiotic at that visit. On April 19, the next visit, the surgeon did prescribe further topical antibiotics, but no x-ray was taken and no blood was drawn for re-testing. The plaintiff then missed three scheduled appointments and next returned on May 4, where an x-ray and biopsy later confirmed that plaintiff had developed osteomyelitis.

The defense argues that the plaintiff was told to return twice a week after the April 19 visit for close monitoring and treatment of the condition. But, as plaintiff missed the appointments during this critical time, the surgeon was prevented from monitoring and treating the condition, which they claim broke the chain of causation. By contrast, the plaintiff argues that the surgeon’s malpractice occurred at the last two visits in April and before the missed appointments, making the missed appointments irrelevant.

Oral argument will be later today, Wednesday, February 13, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

Confirmed: Professor Rivera Is Newest Court Of Appeals Judge

2013-02-11T18:26:00.000-05:00

The New York State Senate has confirmed Professor Jenny Rivera as the newest Associate Judge of the Court of Appeals. Reports indicate she will be immediately sworn in and will begin hearing oral arguments on Tuesday, February 12, 2013.

This Week At The Court Of Appeals

2013-02-05T01:34:00.001-05:00

Marinaccio v. Town of Clarence:

Principally at issue in this action for trespass and private nuisance is whether punitive damages were appropriate when the development of a new residential subdivision intentionally resulted in water diverting to the plaintiff's 42-acre property. The diverted water increased the size of wetlands on the plaintiff’s property from about 6 acres to over 30 acres. The jury found that the Town and the subdivision developer were liable for compensatory damages, but the jury also awarded $250,000 in punitive damages against the subdivision developer.

The Fourth Department affirmed the punitive damages award in a 3-2 decision, citing evidence that both the Town and developer were aware the next phase in construction would cause more water to divert onto plaintiff’s property and did nothing to address the situation. The Town even promised the developer to get an easement from the plaintiff, but did not even attempt to obtain it. As a result, the Fourth Department held that a jury could find that the defendant “intentionally disregarded plaintiff’s property rights in a manner that was either ‘wanton, willful or reckless.’”

The dissent maintained that despite knowingly diverting water onto plaintiff’s property, the developer did not do so with malicious intent. The dissent noted that the developer retained an engineering firm to prepare a drainage plan concerning the water flow, the Town’s engineering department approved the plan, the development satisfied the Town’s requirements, and the developer was unaware that the Town failed to obtain the promised easement from the plaintiff. Given that, the dissent felt that this was not the exceptional tort case where punitive damages would be warranted.

Oral argument will be this Tuesday, February 5, 2013.

Hecker v. State of New York:

In this Labor Law § 241(6) action, the plaintiff claimed he was injured in a slip-and-fall while shoveling snow on a lift bridge. Plaintiff alleged a violation of 12 NYCRR 23-1.7(d) of the Industrial Code, which states, “Ice, snow, [and] water . . . which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” The Court of Claims had granted the defendant summary judgment, holding that the plaintiff could not sue for the snow’s lack of removal since removing the snow was an integral part of his job.

The Fourth Department uniformly rejected the Court of Claims’ view, but nevertheless affirmed on other grounds in a 3-2 decision. The Fourth Department concluded that the Code did not apply as the plaintiff was not using the area that he fell in as a “floor, passageway or walkway” at the time. At issue, however, both parties failed to argue the applicability of the regulation. Nevertheless, the majority felt comfortable making this determination, noting that the issue was raised in the plaintiff’s bill of particulars and cross motion, which alleged that the statute applied, and both came up on appeal from the entire order.

By contrast, the dissent would have modified to deny the defendant summary judgment on the section 241(6) claim. The dissent not only believed that it would be unfair to decide the appeal on a rationale that neither party advanced, but also believed the regulation did in fact apply. The dissent reasoned that the plaintiff was clearing snow off a sidewalk that was the only means of access to the underground work site and, for this reason, was a ‘passageway or walkway’ within the meaning of the Code.

Oral argument will be this Thursday, February 7, 2013.

Court Rejects Attempt to Expand Broadnax

2013-01-28T10:00:00.001-05:00

In Nadal v. Jaramillo, the plaintiff learned that she was pregant after a CT scan. She brought a medical malpractice against her physician claiming that her physician knew she was pregant before the CT scan, but failed to inform her that she was pregnant. The only damages alleged were that the plaintiff suffered emotional distress from the fear that her unborn child might be harmed by the CT scan. The Second Department noted that New York courts "have been reluctant to recognize claims grounded in negligence when the damages are solely emotional" and dismissed, holding that New York has never recognized a theory as broad as plaintiff stated here.

Court of Appeals to Put Briefs and Records Online

2013-01-18T14:20:00.001-05:00

As of February 1, 2013, the New York Court of Appeals is introducing Court-PASS: The Court of Appeals Public Access and Search System. For the first time, this new system will give the public free access to digital copies of the records and briefs for all cases pending in the Court of Appeals on or filed after January 1, 2013. In addition, Court-PASS will provide pertinent information about pending cases, including the due dates for briefs, schedules for oral arguments, and attorney contact information. Court-Pass will also make it easier for attorneys to file digital copies of briefs and records. While attorneys will still be required to provide hard copies to the Court, the number of hard copies has been reduced from nineteen to nine, "when the papers are being filed on behalf of parties with appeals, certified questions pursuant to section 500.27 of the Court of Appeals Rules of Practice, or judicial conduct matters."

The Court's full Notice to the Bar is here.

Cuomo Nominates Professor Jenny Rivera for Court of Appeals

2013-01-15T16:12:00.000-05:00

Governor Andrew Cuomo has announced his nomination of CUNY Law Professor Jenny Rivera to the New York State Court of Appeals. Here is the link to the Governor's press release. The Senate now has thirty days to confirm or reject the appointment. If confirmed by the Senate, Professor Rivera would replace Judge Carmen Beauchamp Ciparick who retired in December due to reaching the state's mandatory retirement age.

Court of Appeals Watch: Morris v. Pavarini Construction

2013-01-14T02:23:00.000-05:00

In Morris v. Pavarini Construction, a Labor Law § 241(6) action, the First Department granted leave to appeal to the Court of Appeals. This will be the second time that this case and same issue are before the top court. At issue is the interpretation of an Industrial Code provision requiring “forms” to be “braced or tied together so as to maintain position and shape” (12 NYCRR 23-2.2[a]).

Adding to the difficulty is ambiguous word usage. The plaintiff contends that the object that fell on his hand is a “form.” What fell, however, is one panel of what would make up a two-panel “form” used to contain poured concrete when making concrete walls. Both the part and the whole were referred to as a “form.” And so, the plaintiff argued that the Code includes the “form” that fell on his hand. But, the defendants argued that the Code refers to a completely constructed “form” only.

Previously, in 2006, the Appellate Division unanimously dismissed plaintiff’s case, reasoning that the Industrial Code provision did not apply to a form that was “in the process of being created.” Then, the Court of Appeals granted leave only to decline to interpret the provision because the question could not “be answered on this record.” And so, the matter was remitted for a framed issue hearing to develop an appropriate record as to “the nature of the object that caused the injury” and “whether the words of the regulation can sensibly be applied to anything but completed forms” (emphasis added).

The trial court then held the framed issue hearing and heard from experts on both sides. The trial court granted the defendant’s motion for summary judgment, dismissing the action. The Appellate Division then reversed, searched the record, and granted plaintiff summary judgment in a 4-1 decision.

The majority opined that the provision was not limited to completed forms, noting that “[i]t defies common sense to think that the form could be structurally safe and maintain its final position and shape, if the back wall that anchors the structure is prone to falling over and collapsing because there is no requirement that it ‘be properly braced.’” In granting the plaintiff summary judgment then, the majority concluded that, “[t]he experts all agreed that once upright, the back form wall must be braced to maintain that position. Indeed, that the back wall fell on plaintiff indicates that it did not maintain its position and could not have ultimately maintained its shape, making it clear that it was not ‘properly braced’ as required by the regulation.”

The dissent countered that the provision “can only be read to apply to fully-assembled concrete forms.” In doing so, the dissent looked to the words of the provision (“tie” and “shape” cannot apply to a single wall) and the nature of the neighboring provisions (subdivision [b] of the same subsection calls for inspections of “forms . . . including all braced and other supports during the placing of concrete”). The dissent also argued that the majority gave undue significance to the expert opinions when deciding how to interpret the words of the provision. In short, the dissent argued that the meaning of a statute is a question of law and an expert’s opinion that a partially constructed form should be braced does not answer whether the regulation is what compels that conduct. In other words, plaintiff’s expert can be right that a single wall should be braced, but still not have an action against the defendant under section 241(6).

The Court of Appeals will now have a more developed record and lengthy majority and dissenting opinions on which to hear the case.