Appellate Practice Archives

July 11, 2007

New York Court of Appeals Will Address Landowner's Liability Next Term

The New York Court of Appeals recently granted a motion for leave to appeal in Yarborough v. City of New York.  The matter involves a plaintiff who injured himself on a pothole on a New York City street.  The leaveworthy issue apparently involved in the case was what evidence was the plaintiff required to proffer to raise an issue of fact to establish that there was an affirmative act of negligence of New York that created the defect. 

The Court in Yarborough observed:

The plaintiff's engineers submitted sufficient evidence that the City was the only entity that could have been responsible for the allegedly defective street repair, and outlined the manner in which the repair deviated from relevant construction industry practices.  However, the plaintiff submitted no evidence as to when the street repair occurred in relation to the accident or that the repair immediately resulted in a dangerous condition.  The mere “eventual” emergence of a dangerous condition as a result of wear and tear and environmental factors, as described by one of the plaintiff's experts, does not constitute an affirmative act of negligence that abrogates the need to comply with prior written notice requirements.

NYCL will keep you abreast of developments in this case.

July 28, 2007

Appellate Division, Third Department Addresses Case of First Impression Regarding Workers' Compensation Law sec. 11

The days of Dole v. Dow are long gone.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 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. 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 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. is a good place to start.

October 17, 2007

New York Court of Appeals Agrees with Third Department in Burns v. Varriale

Agreeing with the Appellate Division, Third Department, the New York Court of Appeals last week in Burns v. Varriale held that the value of future workers'compensation benefits for a claimant with a nonschedule permanent partial disability is speculative, that the present value of these benefits cannot be ascertained at the time claimant recovers damages in a third-party action, and that claimant is not entitled to an apportionment of attorney's fees based on such future benefits.  Here is the Third Department's decision below.

October 29, 2007

Update Regarding New York Legislature's No-Prejudice Rule

Dan Kohane of Hurwitz and Fine P.C. has written this summary about activity on possible bills on New York's no-prejudice rule. See prior posts about no-prejudice legislation here and here.

November 4, 2007

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

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

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

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

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

November 26, 2007

New York Court of Appeals Settles Split In Departments Regarding SUM Coverage and the "Serious Injury" Requirement

In an eerily similar decision as the Appellate Division, Fourth Department's decision in Meegan v. Progressive Ins. Co., the New York Court of Appeals in Raffellini v. State Farm Mut. Auto. Ins. Co. held that a "serious injury" exclusion in a supplementary uninsured/underinderinsured (SUM) motorist endorsement to an automobile liability policy is enforceable (see this prior post for background of case).

The Court's decision is important for the obvious reason, but also for its discussion of the statutory framework of the Insurance Law.  Equally important is the Court's discussion of the powers of regulatory agencies regarding filling in the gaps that certain legislation has left open.  In Raffellini, the Court recognized that the Superintendent of Insurance's enactment of Regulation 35-D, which interpreted New York's insurance law regarding supplementary coverage.

I am seeking your opinion regarding certain questions I think this decision left open regarding SUM coverage and the "serious injury" requirement.  The Court did not address the preclusive impact a finding of "serious injury" would have on a SUM insurer where the determination was made below and the tortfeasor and the injured plaintiff ultimately settled for the policy limits.  Will the injured plaintiff be required to demonstrate a "serious injury" twice or will the SUM insurer (not a party to the underlying action) be bound be the "serious injury" determination?  If the SUM insurer agrees to the underlying settlement or does not respond to the injured plaintiff's request to settle the underlying action, do those actions demonstrate the SUM injurer's agreement with the "serious injury" findings?

Check out Ken Krajewski's material on TICL's Automotive Liability Committee page here.

December 9, 2007

A Divisive Decision -- Arons v. Jutkowitz & Kish v. Graham -- Which Side Are You On?

Most of you have already trudged through the New York Court of Appeals' 32-page decision in Arons v. Jutkowitz and Kish v. Graham.  For those who didn't, the Court held that defense counsel may conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  A plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  The defense attorney need not hand over to the plaintiff's attorney notes, memoranda or recordings of the informal interview; the treating physician is not compelled to cooperate.  Judge Pigott dissented, arguing that Article 31 of the CPLR does not provide for this type of discovery and its silence on the matter indicates that the Legislature did not authorize it.

Numerous bloggers have weighed in on this case:  this post at New York Personal Injury Law Blog (with comments), this post at A Buffalo Lawyer, this post at Outside Counsel, this post at HealthBlawg, and this post at Drug and Device Law.

January 7, 2008

Appellate Division, Third Department Recent Decision on Attorneys' Fees in No-Fault Context

Within the No-Fault context, how should the arbitrator or court award counsel fees where a medical provider seeks reimbursement on multiple claims?  Is counsel entitled to an attorney's fee in the amount of $60 or 20% of the amount of the bill, plus interest thereon, subject to a maximum of $850 per assignor or per claim?

The New York Superintendent of Insurance states in this opinion that counsel fees should apply per assignor, not per claim.  In Alpha Chiropractic P.C. v. State Farm Mut. Auto. Ins. Co., Civil Court, Queens County (Siegal, J.), parted ways with the Superintendent and held counsel fees should apply per claim.   Civil Court, New York County in Marigliano v. New York Cent. Mut. Fire Ins. (Hagler, J.), also parted ways with the Superintendent.

Just recently, the Appellate Division, Third Department in LMK Psychological Servs. v. State Farm Mut. Auto. Ins. Co. also held that attorneys' fees should be calculated on a per claim basis.  The Court concluded that the Superintendent's interpretation was not a proper one under Insurance Law sec. 5106 and, therefore, the Court did not give the Superintendent's opinion deference.

Dave over at No-Fault Paradise makes a very poignant observation about the impact of LMK (see post here).  Because the Third Department is the only appellate court in the state to opine on the issue, all trial courts throughout the state must follow the holding until an appellate court within their Department rules otherwise.

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This page contains an archive of all entries posted to Torts, Insurance and Compensation Law Weblog in the Appellate Practice category. They are listed from oldest to newest.

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