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Torts, Insurance & Compensation Law Section Journal NYSBA WINTER 2010 | VOL. 39 | NO. 1 Torts, Insurance & Compensation Law Section Journal A publication of the Torts, Insurance & Compensation Law Section of the New York State Bar Association IInsidenside • Overcoming Roadblocks on the Way to the Appellate Division • Use of Computer-Generated Animation or Simulation at Trial • Liability for Criminal Acts of Third Parties • Use of Unsigned Deposition Transcripts in Summary Judgment Motions • The Business Judgment Rule • The Graves Amendment • Cuntan v. Hitachi Koki USA From the NYSBA Book Store TThehe PPlaintiff’slaintiff’s PPersonalersonal IInjurynjury AActionction IInn NNewew YYorkork SStatetate EDITOR-IN-CHIEF Patrick J. Higgins Powers & Santola, LLP The New York State Bar Association has created the most up-to-date, focused and comprehensive review of the plaintiff’s personal injury practice in New York. This treatise answers the tough questions faced by the plaintiff’s personal injury attorney every day – liens, special needs trusts, structures, Medicare and Medicaid, confl icts of interest, workers’ compensation, no-fault, bankruptcy, representing a party in infancy, incompetency, and PRODUCT INFO AND PRICES wrongful death. 2009 / 1,734 pp., looseleaf, two volumes PN: 4181 New York’s most experienced personal injury lawyers, and nationally recognized experts, teach NYSBA Members $175 cutting-edge skills for the practicing trial lawyer, Non-members $225 while also laying out the most current substantive Free shipping and handling within the continental U.S. The cost for shipping and handling outside the law – from medical malpractice to mass torts. continental U.S. will be added to your order. Prices do not include applicable sales tax. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0726 TICL Journal Vol. 39, No. 1 Winter 2010 Issue Copyright 2010 by the New York State Bar Association ISSN 1530-390X (print) ISSN 1933-8503 (online) Torts, Insurance and Com pen sa tion Law Section Offi cers and Committee Chairs Chair TICL Journal Co-Editors Committee Chairs Laurie A. Giordano Paul S. Edelman Alternative Dispute Resolution Leclair Korona Giordano Cole LLP Kreindler & Kreindler LLP James E. Morris 150 State Street, Suite 300 100 Park Avenue, 18th Floor Morris and Morris, Attorneys Rochester, NY 14614 New York, NY 10017-5516 120 Corporate Woods, Suite 240 [email protected] [email protected] Rochester, NY 14623 [email protected] Vice-Chair David A. Glazer Automobile Liability Shafer Glazer LLP Kenneth A. Krajewski Thomas J. Maroney 90 John Street, Suite 701 Brown & Kelly, LLP Maroney O’Connor LLP New York, NY 10038 1500 Liberty Building 11 Broadway, Suite 1060 [email protected] Buffalo, NY 14202-3663 New York, NY 10004 [email protected] tmaroney@maroneyoconnorllp. TICL Newsletter Editor com Business Torts and Employment Jean F. Gerbini Litigation Secretary Whiteman Osterman & Hanna LLP Heath J. Szymczak One Commerce Plaza Jaeckle Fleischmann & Mugel, LLP Jean F. Gerbini 12 Fountain Plaza, Suite 800 Albany, NY 12206 Whiteman Osterman & Hanna LLP Buffalo, NY 14202-2222 [email protected] One Commerce Plaza [email protected] Albany, NY 12206 Division Chairs [email protected] Class Action Thomas A. Dickerson Construction and Surety Law Appellate Division - Second Treasurer Division Department Kenneth Thomas Boyd Brendan F. Baynes 111 Martin Luther King Boulevard Polin Prisco & Villafane White Plains, NY 10601 The Baynes Law Firm PLLC One School Street, Suite 206 [email protected] 130 Main Street Glen Cove, NY 11542 Ravena, NY 12143 [email protected] Continuing Legal Education [email protected] Elizabeth A. Fitzpatrick Workers’ Compensation Law Lewis Johs Avallone Aviles, LLP Division 425 Broadhollow Road, Suite 400 Christopher R. Lemire Melville, NY 11747 Lemire Johnson LLC eafi [email protected] PO Box 2485 2534 Rte. 9 Malta, NY 12020-2485 [email protected] John H. Snyder Governmental Regulations Municipal Law Gitto & Niefer LLP Jeremy Brad Cantor Shawn P. Martin 605 French Road London Fischer LLP Hurwitz & Fine, PC New Hartford, NY 13413 59 Maiden Lane 1300 Liberty Building [email protected] New York, NY 10038-4502 Buffalo, NY 14202-3670 jcantor@londonfi scher.com spm@hurwitzfi ne.com Diversity Mirna E. Martinez Information Technology Premises Liability/Labor Law Nationwide Mutual Insurance Charles J. Siegel Glenn A. Monk Company Law Offi ces of Charles J. Siegel Harrington Ocko & Monk LLP PO Box 10405 40 Wall Street, 7th Floor 81 Main Street Des Moines, IA 50306-0405 New York, NY 10005 White Plains, NY 10601 [email protected] [email protected] [email protected] Joanna L. Young Insurance Coverage Products Liability Carroll, McNulty & Kull LLC Stephen M. Lazare Dennis J. Brady 570 Lexington Avenue, 10th Floor Lazare Potter & Giacovas LLP Mackay Wrynn & Brady LLP New York, NY 10022 950 Third Avenue, 27th Floor 40-26 235th Street [email protected] New York, NY 10022-2705 Douglaston, NY 11363 [email protected] [email protected] Ethics and Professionalism Robert F. McCarthy Laws and Practices Professional Liability Nationwide Mutual Insurance Thomas P. Cunningham Roderick John Coyne Company Rupp Baase Pfalzgraf Cunningham & McMahon, Martine & Gallagher, LLP 45 Crossways Park Drive, Suite 102 Coppola LLC 55 Washington Street, Suite 720 Woodbury, NY 11797 1600 Liberty Building Brooklyn, NY 11210 [email protected] Buffalo, NY 14202-3694 [email protected] [email protected] General Awards Dennis R. McCoy Membership Hiscock & Barclay LLP Robert H. Coughlin Jr. 1100 M & T Center Flink Smith LLC Three Fountain Plaza 23 British American Boulevard Buffalo, NY 14203-1486 Latham, NY 12110 [email protected] Rcoughlin@fl inksmithlaw.com Table of Contents Vol. 39, No. 1 Page A View from the Outgoing Chair, Looking Back… (Charles J. Siegel) . 6 A View from the Incoming Chair, Looking Forward… (Laurie Giordano) . 7 Articles Roadblocks on the Road to the Appellate Division and How to (Sometimes) Overcome Them (Harry Steinberg) . 8 Use of Computer-Generated Animation or Simulation at Trial (Salvatore J. DeSantis, Alice Spitz and Ayesha Syed) . 15 Liability for Criminal Acts of Third Parties (Glenn A. Monk and Julie C. Hellberg) . 19 The Use of Unsigned Deposition Transcripts in Summary Judgment Motions (David A. Glazer and Melissa Wu) . 26 Everything I Need to Know About the Business Judgment Rule I (Re)Learned from In re Bear Stearns (Anthony Michael Sabino) . 29 The Graves Amendment: Changing the Landscape of Automotive Vicarious Liability (Jeremy Cantor) . 35 Cuntan v. Hitachi Koki USA (Allison N. Fihma) . 38 Section Events Scenes from the Torts, Insurance and Compensation Law Section Annual Meeting, New York City . 42 NYSBA Torts, Insurance & Compensation Law Section Journal | Winter 2010 | Vol. 39 | No. 1 5 A View from the Outgoing Chair, Looking Back… It’s hard to believe that a event was sponsored by our Third and Fourth District year has gone by since I be- representatives, Claudia Ryan, Jim Kelly, Bill Cloonan, came the Chair of our Section. and Ed Flink, who put a lot of time and effort into coor- The active participation and dinating and hosting the event. Brian Rayhill, Ron Balter effort by our Section members and Mike O’Brien did a great job of hosting an event for made it a very productive year. the Thirteenth Judicial District Reception honoring Justice More specifi cally, I would be Judith N. McMahon. Our Fall reception was well at- remiss if I did not thank Laurie tended by attorneys, judges and members of our city and Giordano, our new Section state legislatures. Many thanks to Dennis Brady, Michael Chair, Tom Maroney, our new Tromello and Shawn Downes for the great job they did in Vice-Chair, and the rest of our hosting this event. Section’s Executive Committee Our highly successful and informative Law School for all of their support during for Claims Professionals was held last Fall. It was a great the year. As a result of this teamwork, we were able to success because of the hard work and effort of our Chair, continue the work started by our prior Section Chairs of Lisa Berrittella, and our local Chairs, Shawn Martin, Beth energizing and making our Section one of the best in the Fitzpatrick, Ed Flink, and George Skandalis. New York State Bar Association. Our Section “year” came to a close at our Annual As I look back, one of the strategic goals for our Sec- Meeting this January. Our annual joint dinner with the tion in 2009 was to attract new members by making our Trial Lawyers Section was held at Cipriani Wall Street. Section more attractive to the newly admitted and young It was a great success. It was attended by over 200 law- lawyers of New York. This began in July, 2009 when our yers, judges and insurance professionals. Our dinner Section sponsored and attended the Young Lawyers Sec- speaker this year was the Honorable Luis A. Gonzalez, tion boat ride. Tom Maroney, Rich Dawson and Mirna Presiding Justice of the Appellate Division, First Judicial Martinez Santiago’s efforts made sure that this well- Department. At this dinner, the annual Torts, Insurance attended event was a success. We continued this initiative and Compensation Law Section awards were presented. during our summer meeting at Mohegan Sun in August, Our District Chair of the Year was Brian J. Rayhill and by focusing part of our CLE program for the newly ad- Committee Chair of the Year was Christopher R. Lemire. mitted and young litigation attorneys. This meeting was In recognition of their outstanding contribution to the a great success. We successfully attracted a large group of practice of law in the fi eld of insurance defense, this attorneys, judges, insurance professionals and their fami- year’s Sheldon Hurwitz Young Lawyer Award was given lies from across New York State. Everyone enjoyed the to Mirna Martinez Santiago and Audrey A. Seeley.
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