New York Civil Law

New York Civil Law --- Back In the Swing of Things

Since January 2008, things have impinged my ability to blog on a regular basis.  I've had 5 presentations in the span of a month-and-a-half and just finished co-writing a chapter on the trade secret privilege for a compendium.  Other things have also kept me busy working and not blogging half as much as I wanted to.

So what's with this post?  It's a bit of a celebration.  I've gotten through a busy couple of months and am ready to start blogging about some great cases that I've neglected in the past months and cases that have been recently handed down.  I'm also going to a bit of spring-summer cleaning on the blawg.

So, thanks for your patience and continued dedication to reading "New York Civil Law."

Tenuous Case of Respondeat Superior?

The decision in Campbell v. Munoz concerns an interesting fact pattern on whether an employee was acting within the scope of his employment when his actions allegedly caused the injury of the plaintiff.
The facts are odd.  The plaintiff injured herself while running away from a falling tree originating in her neighbor's yard.  Her neighbor's relative, the employee, was removing a tree free-of-charge.  The defendant Reliable Tree Service, Inc. allowed the employee to use its truck and equipment to perform the work.  Reliable also encourage the employee to engage two other crew members with the tree removal.

Nassau County, Supreme Court (Feinman, J.), concluded that an issue of fact existed as to whether Reliable's employees were engaged in the business of Reliable or acting within the express or implied authority of Reliable.

New York County Bar Association's Ethics Opinion on Metadata

The New York County Lawyers'  Association issued this ethics opinion on mining an adversary's responding documents in discovery for metadata (see opinion).  Here's a press release on the opinion.  The New York State Bar Association issued an opinion on the same subject several years ago (see opinion).

I agree with the view that an adversary should not mine a document for metadata; I compare it to the disclosing party inadvertently handing over a privileged document.  If it's obvious that the disclosure is inadvertent, professional courtesy (especially in today's practice of large volume of e-mails and faxes) and ethical considerations warrant returning the privilege document (and ceasing analyzing the document once the inadvertent disclosure becomes clear).

Hat Tip to Sui Generis and Legalethics.com.

New Legal Resource -- Alltop's Law Aggregation

Alltop Law is reminiscent of the aggregators that attracted me to weblogs and blawgs years ago.  popurls, another one of my favorites, inspired the creators of Alltop Law.  I'm hooked already.

Recent New York Court of Appeals' Insurance Coverage Decision

The New York Court of Appeals decided Worth Contr. Co. v. Admiral Ins. Co. last week.  The issue on appeal addresses the interpretation of an additional insured endorsement, stating:

The additional insured endorsement of the Farm Family/Pacific policy provides in relevant part as follows: "WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you." Under paragraph 21 of the policy, the term "Your work" is defined to mean "(a) Work or operations performed by you or on your behalf; and (b) Materials, parts or equipment furnished in connection with such work or operations."

The plaintiff Worth Construction was general contractor on a construction site in White Plains.  Defendant Farm Family insured subcontractor Pacific Steel, hired by Worth to build a staircase.  Farm Family's insurance policy contains the already referenced additional insured endorsement covering Worth for liability arising out of its insured's operations at the White Plains project.

An injured worker, who was employed by a sub-subcontractor brought an underlying action against Worth in Westchester County for injuries allegedly sustained when he slipped on the stairs built by Pacific. At the time of the accident, Pacific had finished installing the metal pans on the stairs and was not scheduled to come back to the site to put up handrails until other trades had filled in the metal pans with concrete.  In the underlying Westchester action, Worth formally admitted that no negligence on Pacific's part contributed to the accident, resulting in Pacific's dismissal from the underlying action.

The Court of appeals reversed the Appellate Division's Order and reinstated the order of Supreme Court granting summary judgment to Farm Family.  Notably, the Court stated:

The allegation in the complaint that the stairway was negligently constructed was the only basis for asserting any significant connection between Pacific's work and
the accident. Once Worth admitted that its claims of negligence against Pacific were without factual merit, it conceded that the staircase was merely the situs of the accident. Therefore, it could no longer be argued that there was any connection between Murphy's accident and the risk for which coverage was intended.

Justice Scalia Interview

In case you missed it earlier today, here is the Justice Scalia interview on 60 Minutes (Part I and Part II). 

Justice Scalia's new book (written with Bryan Garner), "Making Your Case: The Art of Persuading Judges" was featured in the interview.

Quick Post About Admissibility of Accident Report

Nunez v.  Levy is an interesting Labor Law case that contains an issue regarding the admissibility of  an accident report.  The defendants attempted to preclude the admission of the post-accident report into evidence because, among other things, it addressed opinions about post remedial repairs or measures.  Supreme Court, New York County held that the report was admissible, describing it as a post-accident evaluation of what caused the accident and how it occurred.

Appellate Division, First Department Rejects Negligent Design Theory Regarding Cigarettes

The Appellate Division, First Department's recent decision in Rose v. Brown & Williamson Tobacco Corp. is an important for New York's products liability jurisprudence.  The plaintiffs' contention was that, during the years in question, the relevant tobacco companies should have sold only "light" cigarettes (which contain relatively low levels of cancer-causing tar and addictive nicotine) and should not have sold regular cigarettes of the kind Ms. Rose smoked (which contain significantly higher levels of the aforementioned harmful substances).  The plaintiff's theory was grounded on a negligent design cause of action.

The First Department analyzes the all-important feasible alternative product design prong of any design defect allegation.  Justice Nardelli and Catterson dissented and, thus, the Court of Appeals will have a crack at the case. 

NYCL will keep you informed of developments in the case.

New York Court of Appeals Will Hear Oral Argument In Yet Another No-Fault Appeal

Surprisingly, the New York Court of Appeals has heard several appeals in the No-Fault Law context this Term.  Next week, the Court will address another No-Fault appeal -- Fair Price Med. Supply Corp. v. Travelers Indem. Co. (Appellate Division, Second Department Decision and Order).  The question presented on the appeal is whether an insurance carrier is precluded from interposing a defense in an action to recover assigned first-party no-fault benefits if it fails to pay or deny the claim within 30 days, where it has reason to believe that the claim fraudulently seeks reimbursement for medical supplies that were never delivered to the insured.  The Second Department held that an insurer must do so because  its proposed defense in this case is not based on a lack of insurance coverage.

For a good discussion of the Second Department Decision and Order, see No-Fault Paradise's post here.

NYCL will keep you abreast of developments in this case.

Form for Ex Parte Interviews of Treating Physicians

The New York Court of Appeals' decision in Arons v. Jutkowitz and Kish v. Graham raised quite a stir.  In Arons and Kish, the Court held that opposing counsel may conduct an ex parte interview of the adversary's treating physician post-note of issue where that party puts his or her medical condition at issue (see prior post and comments).

Litigants are now required to provide their adversary with HIPAA compliant authorizations that permit the interview.

The Chief Administrative Judge, by order dated February 27, 2008, promulgated an official form to be used as the litigant's authorization to allow the treating physician to submit to an ex parte interview. The authorization is addressed to the physician. You can obtain this form here.