New York Civil Law

Appellate Division, Second Department Affirms Rejection of Creative Rear-End Defense

In Carrington-White v. Malvey, the Appellate Division, Second Department recently affirmed  the plaintiff's summary judgment motion on liability.  The matter concerned a rear-end accident, where the defendant struck a cement barrier, causing her vehicle to strike the plaintiff's vehicle.  In opposition to the plaintiff's summary judgment on liability, the defendant contended that she must have been struck from behind by an unidentified vehicle immediately before striking the plaintiff.  The Second Department agreed with the trial court that the defendant's contention was pure speculation and failed to raise a triable issue of fact.

Appellate Division, First Department Addresses Confidential Settlement Agreement Issue

The Appellate Division, First Department in Osowski v. AMEC Constr. Mgt., Inc. addressed a confidential settlement agreement between the plaintiffs and the defendants.  The plaintiffs and defendants entered into a settlement agreement to perform an end-run around a contractual waiver of subrogation contained in an Owner Controlled Insurance Program.  The opinion concerns issues surrounding the disclosure of confidential settlement agreements and the importance of forthrightness where the court orders disclosure.

New York Court of Appeals' Hears Oral Argument on Scaffold Law This Session

New York Civil Law posted about Affri v. Basch earlier this year.  The appeal will be argued this Session.  The Appellate Division decision does not reveal much as to what the novel issue concerns.  As what can be discerned from the terse Appellate Division decision, the issue surrounds the homeowner's exception to Labor Law sec. 240(1).  Affri seems to concern whether the homeowners' aesthetic decisions and general supervisory work regarding the project precluded them from enjoying the homeowner's exception.  When the Court's argument summaries are released, I'll write more about this appeal.

New York Court of Appeals' October Session Starts Next Tuesday

The New York Court of Appeals' October 2009 Session starts next Tuesday, October 13, 2009.  Here is the schedule of oral arguments for the Session.

Happy First Monday

Today, the Supreme Court of United States began its 2009-2010 Term.  C-Span is presenting a great series -- Supreme Court Week -- on the Supreme Court just in time for First Monday.  Here is the schedule.

Here is the Amercian Bar Association's "Preview" for the upcoming Term.

Appellate Division, Second Department Dismisses Appeal Based on Inadequate Record

Let the recent decision in Civil v. Tae Hwa Sim serve as a warning.  In this appeal, the Appellate Division, Second Department dismissed the appeal based on an inadequate record on appeal.  The appellant based its motion to intervene, in large part, on an arbitration decision that was submitted to Supreme Court as an exhibit to the appellant's motion papers and the plaintiff's opposition papers.  The appellant failed to included the arbitration decision in the record on appeal.

Anecdotal Tip for Appellate Division, First Department Practice

What happens when you argue an appeal where there is a different attorney listed on the brief?  In some appellate courts, you just alert one of the clerks of the substitution or change.  However, I experienced something at the Appellate Division, First Department this past week.

If the attorney listed on the appellate brief will be different than the one who is going to appear at oral argument, send six labels with the new attorney's name clearly printed on it to the Clerks' office at least a week in advance.  This will save any confusion when you arrive at oral argument; the Court will likely appreciate the advance notice.

2009-2010 New York Court of Appeals' Term Begins

In the deluge of appeals I've been recently handling, I somehow missed the beginning of the New York Court of Appeals' 2009-2010 Term last week (one of my favorite times of the year).  Oral arguments for the second week of the first session of the new Term are featured here.

Decision on "Additional Insured" Coverage Will Reach New York Court of Appeals

The New York Court of Appeals in Worth Constr. Co. v. Admiral Ins. Inc. interpreted an additional insured endorsement of a commercial general liability insurance policy.  The issue concerned the provision providing that the additional insured was insured only regarding liability arising out of the insured's (subcontractor's) work.  In Worth, the injured worker fell on a stairway that the insured subcontractor had constructed.  However, the general contractor ultimately conceded that the insured was not negligent as to the worker's accident.  As such, the Court of Appeals held that the general contractor did not have coverage under the subcontractor's insurance policy as an additional insured because the injured worker's accident occurred at the situs of the subcontractor's work but was not due to any negligence on the subcontractor's part -- i.e., the liability did not arise out of the insured's work.

The Appellate Division, First Department recently addressed a gloss on Worth in Bovis Lend Lease LMB v. Garito Constr. Inc.  In that case, the injured worker's accident occurred at the situs of the insured subcontractor's work.  A jury found the general contractor and insured subcontractor negligence, but did not find that the subcontractor's work was the proximate cause of the accident.  

The Majority held that the jury's finding that the insured subcontractor was not the proximate cause of the accident was analogous to the general contractor's concession in Worth that the insured subcontractor was not negligent.  Therefore, the First Department held that the general contractor was not entitled to coverage as a general contractor.  The Dissenting Justices disagreed and held that coverage should have been afforded to the general contractor.

Because two Justices dissented on the same issue of law, and the declaratory judgment action is final, the Court of Appeals will hear the appeal.  New York Civil Law will keep you apprised of the results. 

Appellate Division, First Department Labor Law Decision to Watch

In the past few years, the New York Court of Appeals has developed a line of case law strengthening the sole proximate cause defense for Labor Law sec. 240(1).  Two cases in particular -- Montgomery v. Federal Express Corp. and  Robinson v. E. Med. Ctr. LP -- are strong cases for the proposition (very generally stated) that an injured worker can be held as the sole proximate cause of the accident where a enumerated safety device is present on the worksite, the worker knows of the safety device's presence on the worksite, the worker knows to use that safety device for the work, and the accident would not have occurred if the worker had used the safety device.

The Appellate Division, First Department's holding in Cherry v. Time Warner, Corp. now addresses the Court's sole proximate cause case law.   In Cherry, the injured worker fell from a scaffold that only had two sides with guards.  There were scaffolds with guards on all four sides at the worksites, but on different floors.

The Majority concluded that a triable issue of fact existed as to whether the plaintiff's actions were the sole proximate cause of the accident.  Justice McGuire dissented, following the Court of Appeals' holdings.

Irrespective of what you think of the result, the Majority and Dissenting decisions provide an excellent analysis of the issue.