NYSBA SUMMER 2004 | NO. 49 Trial Lawyers Section Digest A publication of the Trial Lawyers Section of the New York State Bar Association

Important 2003 Decisions By Steven B. Prystowsky

AUTOMOBILES—LEFT HAND TURN—SPEEDING We conclude that defendant established Plaintiff, who was making a left-hand turn directly as a matter of law that plaintiff’s failure onto the path of defendant’s oncoming vehicle, cannot to yield the right-of-way to her was the recover against defendant because plaintiff was negli- sole proximate cause of the accident. gent in failing to see that which under the circumstances Galvin v. Zacholl, 302 A.D.2d 965, 755 N.Y.S.2d 175 (4th she should have seen and in crossing in front of the Dep’t 2003). defendant’s vehicle when it was hazardous to do so. The court rejected plaintiff’s argument that defendant should have looked for approaching vehicles that might AUTOMOBILES—REAR-END COLLISION— encroach on her right-of-way even though defendant NON-NEGLIGENT EXPLANATION admitted that she saw plaintiff’s vehicle in the distance Plaintiff was not entitled to summary judgment, with its left turn blinker activated: although her vehicle was struck in the rear, since defen- dant offered a non-negligent explanation for the colli- Defendant, however, was entitled to sion sufficient to overcome the inference of negligence anticipate that plaintiff would obey the and preclude an award of summary judgment: traffic laws that required her to yield the right-of-way to defendant. Here, plaintiff met her initial burden on the motion by establishing that her vehi- The court also rejected plaintiff’s argument that cle was rear-ended by the vehicle driven there was a triable issue concerning defendant violating by defendant. Defendants, however, the posted speed limit by traveling over 45 miles an raised an issue of fact by submitting the hour in a 45-miles-per-hour speed zone: deposition testimony of plaintiff in Even if defendant was traveling at a which she stated that, because she was speed of four miles per hour over the looking at the street signs she did not posted speed limit, there was no evi- see the vehicle move into the lane dence that defendant’s speed was a directly in front of her vehicle. Plaintiff proximate cause of the accident. The admitted that she slammed on her weather conditions were dry and sunny, brakes to avoid hitting that vehicle, and and the road where the accident that is when the vehicle driven by occurred was flat and straight. There defendant rear-ended her vehicle. We was no evidence that defendant could conclude that defendants thereby have avoided the collision had she been offered a non-negligent explanation for traveling at a speed of 45 miles per hour the collision, rendering partial summary as opposed to 49 miles per hour. judgment on liability and dismissal of the affirmative defenses alleging plain- * * * tiff’s culpable conduct inappropriate. Danner v. Campbell, 302 A.D.2d 859, 754 N.Y.S.2d 484 non-car rental agencies. In Motor Vehicle, the court (4th Dep’t 2003). found constructive consent, reasoning that car rental agencies “rent large numbers of vehicles to the general AUTOMOBILES—VEHICLE AND TRAFFIC LAW public for profit.” It therefore concluded that car rental agencies should be judged on a different standard from § 388—EMPLOYEE RESTRICTED USE a “friendly individual [car] loan.” However, the Murdza Brown and Williamson, who leased van for court rejected the argument of the van’s lessors, D.L. employee, Margaret Scicchitano, is not liable to plaintiff, Peterson Trust and PHH Fleet America Corporation, who was injured when the van, operated by that they are entitled to benefit from B & W’s employee Scicchitano’s boyfriend, struck him because B & W’s handbook restriction: employee manual restricted use of the leased vehicle to employees and spouses rebutting the presumption of Unlike B & W’s role as a bailor-employ- permissive use under Vehicle and Traffic Law § 388: er, however, PHH and the Trust are lessors of the van and therefore fall Here, by permitting an employee’s use squarely within the public policy con- of its vehicle, B & W stands in a very siderations discussed in Motor Vehicle. different position than a car rental As such, they may not benefit as a mat- agency, which “rent[s] large number of ter of law from restrictions adopted by vehicles to the general public for prof- their lessee that they themselves could it.” While it is foreseeable that a rented not use to limit their ownership liability vehicle would come into the hands of under section 388.] any number of operators by the very nature of the quasi-ownership relation- ship created by a lease, the bailment of AUTOMOBILES—VTL § 388—PASSENGER/ a vehicle to an employee spawns a OWNER—SUIT AGAINST CO-OWNERS markedly different relationship with its Injured passenger, who was also statutory owner of own set of expectations. Indeed, an at- vehicle under VTL § 128 [lessee over 30 days], is not will employment relationship and the barred from suing her co-owners, the lessors, Hendel frequent contact between an employee and First Union Auto Finance, Inc.: and employer demand compliance with Assuming without deciding that plain- restrictions on vehicle operation placed tiff is a statutory owner, we hold that on the employee. As a result of this she is not precluded from bringing a relationship, it is reasonable for an section 388 claim against other statuto- employer to expect employees to com- ry owners. Focusing on the language of ply with its use restrictions. Thus, the statute, there is no limitation of the allowing an employer explicitly to class of possible plaintiffs to non-own- restrict those who may operate its vehi- ers. The statute simply says “every cles while simultaneously restricting its owner” shall be liable for injuries “to liability as an owner under Vehicle and person or property” resulting from the Traffic Law § 388, encourages careful negligence of any person using the selection of operators—the curative vehicle with the permission of such policy underpinning of the section. owner. Defendants Hendel and First Even if Scicchitano had consented to Union are owners who do not dispute Zimmerman’s use of the van, B & W’s that they permitted the person whose employee handbook explicitly restrict- alleged negligence caused plaintiff’s ed those who may operate its vehicles injury to drive their vehicle. Thus, and thereby rebutted the presumption regardless of whether plaintiff is also of liability under Vehicle and Traffic an “owner,” the fact that her husband Law § 388 (1). operated the vehicle with the consent of Murdza v. Zimmerman, 99 N.Y.2d 375, 756 N.Y.S.2d 505 Hendel and First Union is sufficient to (2003). bring her within the protection of the statute. [EDITOR’S NOTE: As a matter of public policy, the court refused to extend its holding in Motor Vehicle Hassan v. Montuori, 99 N.Y.2d 348, 756 N.Y.S.2d 126 Accid. Indem. Corp. v. Continental National American (2003), rev’g 291 A.D.2d 375, 737 N.Y.S.2d 625 (2d Dep’t Group Co., 35 N.Y.2d 260, 360 N.Y.S.2d 859 (1974), to 2002).

2 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 CONFLICT OF LAWS—CONN PLAINTIFF— in New York; the car’s ownership by a NJ DEFENDANT—NY LOCUS—CHARITABLE New York domiciliary who was a pas- IMMUNITY LAW senger, the car’s operation by a New York domiciliary who had a New York Connecticut resident attending college in New driver’s license and was killed in the Jersey who was injured at a rugby match in New York accident when the car rolled over, and was barred by New Jersey charitable immunity statute the presence of two passengers in the from suing New Jersey’s Seton Hall University, which car who are New York domiciliaries was charged with negligent supervision. and were injured in the accident. Gilbert v. Seton Hall University, 332 F.3d 105, (2d Cir. Appellants manufacturer and distribu- 2003). tor are Delaware corporations that have their principal places of business in [EDITOR’S NOTE: The court applied the third Neumeier Ohio and Tennessee and conduct busi- [v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64 (1972)] rule ness throughout the world; the tire was because the parties resided in different jurisdictions and apparently manufactured in Georgia. the allegedly tortious conduct occurred in a third juris- Contacts with Quebec are the occur- diction. Under the third Neumeier rule, the court applies rence of the accident and the initial the law of the jurisdiction where the injury occurred treatment of injuries there. The IAS unless it can “be shown that displacing that normally court correctly held that New York‘s applicable rule will advance the relevant substantive interest in having its products liability law purposes without impairing the smooth working of and negligence laws applied to com- the multistate system or producing great uncertainty for pensate its domiciliaries for injuries litigants.” Three factors influenced the court to reject sustained by a defective product sold in the third Neumeier rule: New York is greater than Quebec’s One factor was that the plaintiffs had interest in having its no-fault law uni- benefited from New Jersey’s law of formly applied so as to prohibit com- charitable immunity and the State pensation to United States domicil- therefore had a rightful interest in hold- iaries. ing them to its burdens as well. Mann v. The Cooper Tire Company, 306 A.D.2d 23, 761 * * * N.Y.S.2d 635 (1st Dep’t 2003). A second factor . . . to favor application of New Jersey’s charitable immunity COURTS—DOCTRINE OF LAW OF THE CASE law was that the state had an interest in A defendant whose initial motion to dismiss plain- encouraging the work of charities locat- tiff’s complaint as barred by the Worker’s Compen- ed within its borders. sation Law—an injured worker cannot recover damages from a property owner where the owner is also an offi- * * * cer or shareholder of the corporation which employed A third factor . . . was that while the the worker—was denied because the defendant was a injury had taken place in New York, separate and distinct corporate entity from the plain- most of the relevant contact between tiff’s employer is not precluded under the law of the the parties in that case had occurred in case doctrine from arguing at trial that the plaintiff is a New Jersey.] special employee: The doctrine of law of the case “applies CONFLICT OF LAWS—QUEBEC/NO FAULT only to legal determinations that were necessarily resolved on the merits in Quebec’s no-fault law prohibiting actions to recover the prior decision.” Here, the defen- non-economic loss for injuries sustained in car accidents dant’s prior motion for summary judg- on its roadways cannot be invoked by a manufacturer ment was not based upon the theory of an allegedly defective tire, where the allegedly defec- that a special employment relationship tive tire was purchased in New York and the plaintiffs existed between the parties, and the are New York residents: Supreme Court’s decision denying the Significant contacts with New York are defendant summary judgment on its the purchase of the allegedly defective worker’s compensation defense did not tire in New York; the car’s registration consider or determine this issue.

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 3 Accordingly, the trial court should not awarded $10,998,150 for damages including past and have limited the defendant’s right to future pain and suffering. The trial judge’s reduction of offer evidence of a special employment the total award to $3,629,390 was affirmed as reasonable relationship. compensation]. [See JRV No. 391327.] D’Amato v. Access Manufacturing, Inc., 305 A.D.2d 447, 762 N.Y.S.2d 393 (2d Dep’t 2003). DAMAGES—BURNS/SECOND AND THIRD DEGREE—17% OF BODY—$8 MILLION— DAMAGES—BELOW-KNEE AMPUTATION— NOT EXCESSIVE $9,750,000 An award of $8,000,000 to 37-year-old plaintiff, a laboratory technician who sustained second- and third- Plaintiff’s award of $2.25 million for past pain and degree burns to at least 17% of her body, suffered per- suffering and $7.5 million for future pain and suffering manent scarring to virtually all of her torso, was hospi- for traumatic amputation of the lower left leg of a 35- talized for about one month for debridements and two year-old, who was a passenger on a motorcycle struck skin grafts surgeries and required long-term treatment by a vehicle that crossed over to plaintiff’s side of the for post traumatic stress disorder, is not excessive: road, is not excessive: We find the damages awarded for past The total pain and suffering award of and future pain and suffering do not $9,750,000 does not deviate from what deviate materially from what is reason- is reasonable compensation in light of able compensation under the circum- the evidence that plaintiff, an active 35 stances. year-old woman, lost part of her left leg in the accident, underwent nine surger- Weigl v. Quincy Specialties Company, 1 A.D.3d 132, ies prior to trial, including some very 766 N.Y.S.2d 428 (1st Dep’t 2003), aff’g 190 Misc. 2d 1, painful skin grafts as well as two sur- 735 N.Y.S.2d 229 (Sup. Ct., New York Co. 2001). geries that required the removal and relocation of muscle tissue, and was left [EDITOR’S NOTE: Initially, plaintiff was awarded with pervasive scarring and a wound at $20,000,000 as follows: the area of amputation that may never $9,410,000 for past pain and suffering, heal. $190,000 for past medical expenses, Bondi v. Bambrick, 308 A.D.2d 330, 764 N.Y.S.2d 674 $400,000 for past loss of earnings, and (1st Dep’t 2003). $10,000,000 for future pain and suffer- ing. [EDITOR’S NOTE: $9,750,000 for traumatic amputation of the lower left leg (N.Y.L.J., April 27, 2001), appears to The IAS Court conditionally reduced the awards for be the highest sustained appellate award for a leg past pain and suffering and future pain and suffering to amputation. Previous awards for leg amputations $4,000,000 each, which plaintiff stipulated to accept. In include John v. City of New York, 235 A.D.2d 210, 652 reducing the amount, the IAS Court pointed out that N.Y.S.2d 15 (1st Dep’t 1997) [$2,500,000 for 4½ years of the jury’s verdict in the case was twice as high as the pain and suffering and $4,000,000 for 25 years of future highest verdict awarded in a burn case in New York. pain and suffering for plaintiff who sustained amputa- The IAS Court rejected lower amounts suggested by tion of both legs below the knee]; Hoenig v. Shyed, 284 defendant’s cases: A.D.2d 225, 727 N.Y.S.2d 80 (1st Dep’t 2001) [$2,000,000 While the cases [cited by defendant] for past pain and suffering and $3,600,000 for future involved injuries with superficial factu- pain and suffering to plaintiff for an amputation above al similarities to plaintiff’s injuries, it the knee of right leg]; Sladick v. Hudson General Corp., does not appear from the decisions that 226 A.D.2d 263, 641 N.Y.S.2d 270 (1st Dep’t 1996) the injuries included severe permanent [$2,500,000 for past pain and suffering and $5,000,000 scarring or psychological injuries, and for future pain and suffering for amputation of plain- therefore that the injuries were as tiff’s leg eight inches above the knee and the deteriora- extensive as plaintiff’s. The verdicts in tion of parts of the surviving leg]; Hersh v. New York City the two to five million dollar range Transit Auth., 297 A.D.2d 556, 747 N.Y.S.2d 153 (1st involved extensive injuries with simi- Dep’t 2002) [90-year-old female pedestrian suffered larities to plaintiff’s. However, the bilateral above knee leg amputations when her legs injuries are not capable of precise com- were crushed by defendant’s public bus. Plaintiff was parison, and the jury in this case

4 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 expressed its clear intent to award DAMAGES—FOREIGN OBJECT—FIVE YEARS— plaintiff substantial damages for $500,000—NOT EXCESSIVE injuries which it could, on the evidence, Surgeon who failed to remove a surgical wire from fairly regard as catastrophic. In defer- plaintiff’s breast was liable to her for $500,000 for five ence to the jury and considering plain- years of pain and suffering and to her husband for tiff’s particular injuries, the court con- $100,000 for loss of consortium: cludes that the verdict should not be limited to the two to five million dollar For almost five years after appellant range, but should be reduced to performed surgery to remove an irregu- $8,000,000, with damages for past and larity in plaintiff’s left breast, she suf- future pain and suffering in the amount fered a debilitating “sticking pain” in of $4,000,000 each. Although a verdict that breast because of his negligent fail- in such amount has not previously been ure to remove a surgical wire . . . The approved in a burn case by appellate jury’s awards do not deviate materially courts, the amount is not higher than from what is reasonable compensation the highest level of previous burn ver- under the circumstances. dicts. It is the court’s opinion, based on Chisolm v. New York Hospital the severity of plaintiff’s injuries, that , 304 A.D.2d 342, 757 this amount constitutes reasonable N.Y.S.2d 34 (1st Dep’t 2003). compensation.] DAMAGES—FRACTURES OF RIGHT CALCANEUS, DAMAGES—COLLATERAL SOURCE PAYMENTS— DISTAL TIBIA AND FIBULA—SURGERIES—PLATE UNION PENSION BENEFITS AND SCREWS—$750,000 PAST PAIN AND SUFFERING, $500,000 FUTURE PAIN AND Trial judge erred in allowing collateral source off- SUFFERING—EXCESSIVE sets for union pension benefits: Plaintiff’s award of $750,000 for his past pain and While the Social Security payments suffering was excessive for the injures sustained when received by plaintiff and his family he fell 10 feet from a ladder and landed feet first on the members were intended to compensate ground. $500,000, according to the court, was the maxi- for lost earnings and thus properly mum amount the jury could have found as a matter of treated as collateral source payments, law. The court, however, sustained the award of the same cannot be said about plain- $500,000 for future pain and suffering since it did not tiff’s pension benefits. deviate materially from what would be reasonable com- Hayes v. Normandie LLC, 306 A.D.2d 133, 761 N.Y.S.2d pensation. 645 (1st Dep’t 2003). Patterson v. Kummer Development Corporation, 302 A.D.2d 873, 755 N.Y.S.2d 180 (4th Dep’t 2003). DAMAGES—COMMINUTED FRACTURE OF [EDITOR’S NOTE: The court described plaintiff’s RIGHT RADIUS—$750,000 injuries as follows: Trial judge erred in reducing plaintiff’s award for future pain and suffering from $750,000 to $350,000: Plaintiff sustained a fracture of his right calcaneus, which did not require sur- Plaintiff sustained a comminuted frac- gery, and a fracture dislocation of his ture of the right radius extending into left ankle, including the distal tibia and the right wrist that required the inser- fibula, which required two surgeries tion of a metal plate and screws that and the insertion of a plate and screws. will have to be removed in the future. Plaintiff testified that he was in extreme The award for future pain and suffering pain after the accident and after both is adequately supported by medical surgeries. At the time of trial, plaintiff evidence that future fusion surgery or still experienced pain in both feet, implantation of an artificial wrist joint which increased in intensity when might be necessary to alleviate pain. standing or walking for prolonged peri- ods of time. . . . Plaintiff has a perma- Hayes v. Normandie LLC, 306 A.D.2d 133, 761 N.Y.S.2d nent partial disability, including a 35% 645 (1st Dep’t 2003).

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 5 loss of use of his right foot and a 60% DAMAGES—KNEE INJURY—$1.3 MILLION NOT loss of use of his left foot and ankle. He EXCESSIVE cannot take long walks, and he has dif- Award of $1,300,000 to 55-year-old electrician was ficulty descending stairs. His physi- not excessive: cians opined that he would develop post-traumatic arthritis that would The jury’s awards of $300,000 and $1 worsen over time, along with the pain million for past pain and future pain in his feet, and that he would eventual- and suffering, respectively, do not devi- ly require surgery to alleviate the pain.] ate materially from what is reasonable compensation under the circumstances. DAMAGES—HERNIATED CERVICAL AND Williams v. Turner Construction, Inc., 2 A.D.3d 217, 768 LUMBAR DISCS—2.5 INCH CHEEK SCAR— N.Y.S.2d 314 (1st Dep’t 2003). $1,118,000 PAIN AND SUFFERING—EXCESSIVE [EDITOR’S NOTE: According to the Jury Verdict Reporter Plaintiff’s award of $958,000 for future pain and (See 2000 WL 33394789), plaintiff suffered torn tendons suffering deviated from what would be reasonable com- and cartilage damage to his knee when he fell on fire- pensation—$600,000—for plaintiff’s injuries sustained proofing material.] when he fell from an A-frame ladder after it collapsed. Sozzi v. Gramercy Realty Co. No. 2, L.P., 304 A.D.2d DAMAGES—KNEE INJURY—$800,000—PAST 555, 758 N.Y.S.2d 659 (2d Dep’t 2003). AND FUTURE PAIN AND SUFFERING [EDITOR’S NOTE: The court also reduced plaintiff’s Plaintiff’s award of $100,000 for past pain and suf- future medical expenses from the sum of $150,000 to the fering and $700,000 for future pain and suffering was sum of $80,000. However, the court affirmed plaintiff’s not excessive: damages of $160,000 awarded for past pain and suffer- The award of $100,000 for past pain ing. Plaintiff’s injuries were: herniated cervical and and suffering over a two-year period lumbar discs; laceration to the right cheek, resulting in a for a torn anterior cruciate ligament 2.5-inch scar. See N.Y.L.J., March 30, 2001, p. 5, col. 1.] and a torn medial meniscus does not deviate materially from reasonable DAMAGES—KNEE INJURY—$348,000 FUTURE compensation. Likewise, in view of tes- PAIN AND SUFFERING/$100,000 FUTURE timony that plaintiff will ultimately MEDICAL EXPENSES develop arthritis and require knee replacement surgery, the $700,000 Plaintiff’s award of $100,000 for future medical award for future pain and suffering expenses and $348,000 for future pain and suffering is over a projected 32-year period is not not excessive: so disproportionate to what constitutes The awards for future medical expenses reasonable compensation as to warrant and future pain and suffering do not reduction. deviate materially from what is reason- Calzado v. New York City Transit Authority, 304 able compensation for a knee injury A.D.2d 385, 758 N.Y.S.2d 303 (1st Dep’t 2003). that has required three arthroscopic surgeries to treat torn ligaments and cartilage damage, will require pain DAMAGES—LOSS OF CONSORTIUM—LOSS OF killers, anti-inflammatory medication SERVICES AWARDS/NOT DUPLICATIVE and a new unloader knee brace each The award of $60,000 to plaintiff’s wife for future year for the rest of plaintiff’s 50-year loss of consortium is not duplicative of her award of life expectancy at a per-brace cost of $120,000 for loss of services: $1,200, and will likely require at least two knee replacements and associated The award of damages to plaintiff’s physical therapy at cost of $20,000 each. wife encompasses loss of society and companionship, not merely loss of serv- Kircher v. Motel 6 G.P., Inc. , 305 A.D.2d 261, 761 ices. N.Y.S.2d 19 (1st Dep’t 2003). Patterson v. Kummer Development Corporation, 302 A.D.2d 873, 755 N.Y.S.2d 180 (4th Dep’t 2003).

6 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 DAMAGES—PUNITIVE DAMAGES—$7 MILLION (EMCO), which required catheteriza- Plaintiff’s award of $7,000,000 for punitive damages tion through the neck into the heart in when the motorcycle she was a passenger on was order to bypass her damaged lungs. struck by an intoxicated driver who crossed lanes is The EMCO incubated a secondary excessive. The court held that $1,000,000 was “sufficient Candida infection that resulted in slow to punish appellant and to deter future misconduct”: respiratory decomposition and death. The trial evidence demonstrated that Cepeda v. New York City Health and Hospitals appellant, although previously convict- Corporation, 303 A.D.2d 173, 756 N.Y.S.2d 189 (1st ed of driving while intoxicated, know- Dep’t 2003). ingly and willingly operated his car, [EDITOR’S NOTE: In Cramer v. Benedictine Hospital, 301 which he understood to be a dangerous A.D.2d 924, 754 N.Y.S.2d 414 (3d Dep’t 2003), the court instrumentality, while intoxicated at the found that a $1,000,000 award for decedent’s pain and time of the subject accident, and, suffering is excessive and conditionally reduced it to indeed that his blood alcohol level in $350,000. the immediate aftermath of the accident was .42, the highest such level ever Plaintiff’s decedent, William Cramer, 30 years old, recorded by the Suffolk County District was admitted to Benedictine Hospital for complaints of Attorney’s office. lethargy, vomiting and abdominal pain. The next day he lapsed into a coma for five days but resumed con- Bondi v. Bambrick, 308 A.D.2d 330, 764 N.Y.S.2d 674 sciousness for five days before dying. The jury awarded (1st Dep’t 2003). plaintiff $1,000,000 for decedent’s pain and suffering. The court reasoned: DAMAGES—WRONGFUL DEATH/CONSCIOUS Decedent was in a profound coma from PAIN AND SUFFERING—NEWBORN—12 DAYS— April 6, 1995 to April 11, 1995, and that, $175,000—INADEQUATE in such a state, it would have been dif- Award of $175,000, reduced from $12,000,000 for ficult for him to have perceived pain. conscious pain and suffering of a newborn, who died 12 With respect, however, to the period days after a delayed Caesarian delivery, was inadequate between April 11, 1995 and April 16, and a new trial is ordered unless plaintiff stipulates to 1995, the time during which decedent reduce the jury’s award to $750,000. was alert, the jury could have found that decedent endured significant pain The trial court erred in reasoning that, as a new- and suffering as a result of severe peri- born, the decedent could not have had any cognitive tonitis, sepsis, the surgery, edema, skin awareness of her impending death: ulcerations and subsequent organ fail- While “some level” of cognitive aware- ure and respiratory problems. On this ness is a prerequisite to recovery for record, where decedent’s pain and suf- loss of enjoyment of life, the fact finder fering was limited to a period of is not required “to sort out varying approximately six days, we conclude degrees of cognition and determine at that an award of $1 million deviates what level a particular deprivation can materially from what would be reason- be fully appreciated.” Thus, given the able compensation and should be evidence of the decedent’s conscious- reduced to $350,000.] ness for most of her short life, we find the trial court’s reduction of the jury’s EXPERT—QUALIFICATIONS—PODIATRIST verdict excessive. The trial court’s refusal to permit a podiatrist who The court was apparently influenced by decedent’s treated burns during his residency to testify concerning condition during her short 12-day life: a burn injury to plaintiff’s calf because he was not a medical doctor was reversible error: The decedent’s compromised condition required constant invasive procedures A witness may be qualified as an expert during her 12-day life, including intu- based upon “[l]ong observation, actual bation and placement in a heart-lung experience and/or study.” “No precise machine for a therapy known as Extra rule has been formulated and applied Corporeal Membrane Oxygenation as to the exact manner in which such

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 7 skill and experience must be acquired. INDEMNITY—CONTRACTUAL—DUTY TO Moreover, the lack of a medical license DEFEND does not, in and of itself, disqualify a Where there is a factual issue whether an indemnity witness from testifying as an expert on clause in a contract is triggered, the indemnitor is not a medical question.” obligated to defend the indemnitee since the indemni- In the instant case, the trial court tor is not an insurer whose duty to defend is greater abused its discretion in disqualifying than its duty to indemnify: the proffered expert because he did not It was premature to grant that branch have a medical degree. The court was of the motion of the defendant third- required to assess his qualification as party plaintiff which was for summary an expert based upon his professional judgment on its cause of action for a background, training, study, and expe- defense in the main action, and to rience. The court did not attempt to direct the third-party defendant to pro- make this kind of assessment and erro- vide a defense to the defendant third- neously ruled that only a physician party plaintiff in the main action since with a medical degree could testify the third-party defendant is not an with respect to causation. insurer and its duty to defend is no The proffered expert, established, inter broader than its duty to indemnify. alia, that while New York State podia- Moreover, since the third-party defen- trists are only licensed to treat below dant is not an insurer, it was inappro- the ankle, he had experience in diag- priate to require the third-party defen- nosing and treating many burns both dant to provide a defense to the defen- above and below the ankle. Thus, we dant third-party plaintiff in the main find under the particular circumstances action since the obligation of the third- of this case, that he was sufficiently party defendant to indemnify the qualified to offer expert testimony as to defendant third-party plaintiff has yet the respondent’s alleged malpractice in to be determined. his treatment of the plaintiff’s burn injury. Furthermore, the trial court Brasch v. Yonkers Construction Company, 306 A.D.2d erred in not affording the plaintiff an 508, 762 N.Y.S.2d 626 (2d Dep’t 2003). opportunity to lay a foundation for qualification of her witness. [EDITOR’S NOTE: This decision superseded an earlier decision at 298 A.D.2d 345, 751 N.Y.S.2d 200 (2d Dep’t Steinbuch v. Stern, 2 A.D.3d 709, 770 N.Y.S.2d 106 (2d 2002), where the court had directed the third-party Dep’t 2003). defendant to provide a defense to the third-party plain- tiff because “the duty to defend is broader than the EVIDENCE—CROSS EXAMINATION—REFRESH duty to indemnify, and allegations herein give rise to a reasonable possibility of coverage.”] RECOLLECTION/PRIOR COMPLAINT Trial court erred in refusing defendant’s counsel’s application to refresh plaintiff’s recollection with a copy INDEMNITY—DEFENSE COSTS of the witness’s complaint against the manufacturer of Subcontractor who agreed to indemnify and hold the metal grinding machine which injured him when harmless contractor is obligated to reimburse contrac- his hand became caught: tor’s insurer [Home Insurance] for fees, costs and dis- bursements, where the contractor was held to be free The trial court should have allowed from negligence even though the contractor had no defense counsel to show the plaintiff a damages—their out-of-pocket expenses being paid by copy of the complaint he had filed in Home Insurance: another action to refresh his recollection as to whether he had commenced a Although Home Insurance paid the lawsuit against the manufacturer of the defense costs incurred by American grinding machine. and Resource in the underlying action, leaving them with no damages other D’Amato v. Access Manufacturing, Inc., 305 A.D.2d 447, than the out-of-pocket costs of obtain- 762 N.Y.S.2d 393 (2d Dep’t 2003).

8 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 ing and maintaining substitute insur- Jerome’s employee was not acting with- ance coverage, the subrogation doctrine in the scope of the employer’s behalf permits Home Insurance to obtain when he committed the assault, it was reimbursement for these costs from not intended or expected by the insured Universal, whose negligence was and is, therefore, a covered occurrence responsible for the loss. Furthermore, under the policy. the Supreme Court properly concluded Siagha v. National Fire Insurance Company of that the rationale of the Inchaustegui [v Pittsburgh, PA, 306 A.D.2d 60, 762 N.Y.S.2d 46 (1st 666 5th Ave. Ltd. Partnership, 96 N.Y.2d Dep’t 2003). 111, 725 N.Y.S.2d 627 (2001)] decision is not controlling because in this case, [EDITOR’S NOTE: The policy applied to “bodily Home Insurance seeks to recoup injury” caused by an “occurrence,” which is defined as defense costs through enforcement of “an accident, including continuous or repeated expo- the indemnification rights of its sure to substantially the same general harmful condi- insureds. In contrast, the issue present- tions.” The policy did not explicitly contain an assault ed in Inchaustegui was whether the and battery exclusion, but contained a provision that damages caused by breach of an insur- coverage does not apply to “’bodily injury’ or ‘property ance procurement provision could be damage’ expected or intended from the standpoint of minimized where other insurance cov- the insured.”] erage was available. Accordingly, we do not find that the Inchaustegui deci- sion bars Home Insurance from recov- JUDGMENT—SUMMARY JUDGMENT— ering its reasonable defense costs in its DEFENDANT’S BURDEN—ATTORNEY’S capacity as subrogee for its insureds, AFFIRMATION who established their right to indemni- Defendant supermarket failed to carry its burden to fication from Universal in the underly- establish the absence of notice as a matter of law where ing action. plaintiff was alleging that the deli display case door, which caused her injury, was defective: American Ref-Fuel Company of Hempstead v. Resource Recycling, Inc., 307 A.D.2d 939, 763 N.Y.S.2d 657 (2d As the movant in this case, the defen- Dep’t 2003). dant was required to make a prima facie showing, inter alia, “to establish INSURANCE—DUTY TO INDEMNIFY— the absence of notice as a matter of ASSAULT—OCCURRENCE/EXCLUSION law.” The defendant failed to carry its burden in this regard. (“EXPECTED OR INTENDED”) Insurance company is obligated to satisfy plaintiff’s * * * judgment against its insured, a café, whose bartender Beyond the issue of notice, the defen- assaulted plaintiff with a metal pipe kept in plain view dant’s prima facie burden faltered on behind the bar. The court rejected the carrier’s argu- the issue of whether the condition of ment that the policy excluded the claim because plain- the display case was dangerous or tiff’s injuries were intentionally caused by an employee defective. The defendant’s sole support who wielded a pipe: for its claim that the display case was In Agoado Realty Corp. v. United not dangerous or defective consisted of International Insurance Company, 95 a conclusory statement in its attorney’s N.Y.2d 141, 145, 711 N.Y.S.2d 141 (2000), affirmation to the effect that the plain- the Court of Appeals reaffirmed its tiff had not demonstrated the existence holding that a court, when deciding of a defect in the door. However, a “whether a loss is the result of an acci- defendant moving for summary judg- dent . . . must . . . determine[] from the ment does not carry its burden merely point of view of the insured, whether the by citing gaps in the plaintiff’s case. loss was unexpected, unusual and Kucera v. Waldbaums Supermarkets, 304 A.D.2d 531, unforeseen” (emphasis supplied in 758 N.Y.S.2d 133 (2d Dep’t 2003). original). Since, in this matter, Salant-

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 9 JUDGMENT—SUMMARY JUDGMENT—EXPERT’S JURISDICTION—CPLR 302—OUT-OF-STATE AFFIDAVIT/SPECULATIVE AND CONCLUSORY HOSPITAL—SOLICITATION Plaintiff’s expert’s affidavit that defendant was New Jersey hospital cannot be sued in New York by speeding, traveling 55 miles per hour in a 40 mile-per- New York resident for medical malpractice occurring in hour zone, was a contributing cause to her inability to New Jersey even if hospital solicited business in New avoid colliding with plaintiff’s vehicle was not suffi- York, since the hospital did not have any “presence” in cient to raise a triable issue of fact: New York: We find this expert affidavit to be insuf- Solicitation limited to the defendant ficient. The expert’s affidavit failed to maintaining a telephone listing in New provide any data upon which the opin- York is insufficient and, as noted, ion is based and is, therefore, specula- defendant herein does not have a New tive and conclusory. Accordingly, the York telephone number or another New Supreme Court should have granted York point of contact in furtherance of [defendant] Rubino’s motion. the solicitation. Nor would the New York residence of patients or the New Youthkins v. Cascio, 298 A.D.2d 386, 751 N.Y.S.2d 216 York licensing of its physicians, factors (2d Dep’t 2002), aff’d, 99 N.Y.2d 638, 760 N.Y.S.2d 91 likely resulting from the hospital’s geo- (2003). graphic proximity to New York, confer [EDITOR’S NOTE: Plaintiff’s expert calculated defen- jurisdiction, the issue being the nature dant’s rate of speed by examining: of the hospital’s actual business trans- actions within the state. the vehicle crush damage patterns to the vehicle involved, the point of * * * impact between the Honda and the The purported solicitation in the pres- motorcycle driven by Mr. Youthkins, ent case, even accompanied by what the initial traveling path directions of really amounts to treatment of New the vehicles and their positions on the York residents in New Jersey, does not roadway and the final resting position provide a stronger case for finding that of the motorcycle driven by Mr. defendant transacted business in New Youthkins and the Honda driven by York. Finally, it is well established that Lisa Rubino.] the situs of the injury is the location where the event giving rise to the JUDGMENT—SUMMARY JUDGMENT— injury occurred, and not where the PRECLUSION ORDER/TESTIFY resultant damages occurred. In a med- ical malpractice case, the injury occurs Although the plaintiff was precluded from testify- where the malpractice took place. ing at trial, defendant was not entitled to summary judgment since the preclusion order did not relate to all O’Brien v. Hackensack University Medical Center, 305 aspects of plaintiff’s proof: A.D.2d 199, 760 N.Y.S.2d 425 (1st Dep’t 2003). Plaintiff was precluded only from testi- fying at trial. Inasmuch as plaintiff LIEN—MEDICAID—REDUCTION seeks to recover not only for negligence The IAS Court erred in reducing a $116,000 medical but also for violation of absolute liabili- assistance lien to $11,600 on the proceeds of a medical ty provisions of the Labor Law, it can- malpractice settlement between plaintiff and defendant not be said that plaintiff necessarily will doctor: not be able to prove his case without testifying and that defendants are enti- The Court of Appeals has held that all tled to judgment as a matter of law. settlement proceeds are available to sat- Since defendants failed to make a isfy a Medicaid lien. “Once a Medicaid prima facie showing of entitlement to lien is in effect, only the local public judgment as a matter of law, the suffi- welfare official may release and dis- ciency of plaintiff’s opposition is imma- charge it, and ‘no release, payment, dis- terial. charge or satisfaction of any . . . claim, demand, right of action, suit or coun- Rosario v. Humphreys & Harding, Inc., 301 A.D.2d 406, terclaim shall be valid or effective 752 N.Y.S.2d 865 (1st Dep’t 2003). against such lien.’” Consequently, we

10 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 reverse the order and reinstate the orig- tlement negotiations and then sought inal lien. an extension of time for an answer to be served. In the latter communica- Veno v. Saleh, 306 A.D.2d 876, 760 N.Y.S.2d 913 (4th tions, Zurich-American represented Dep’t 2003). through its conduct that defendant was “the Albany Marriott,” i.e., the respon- LIMITATIONS OF ACTION—ESTOPPEL sible party. Plaintiff is entitled to serve a supplemental sum- Hart v. Marriott International, Inc., 304 A.D.2d 1057, mons and amended complaint naming the correct hotel 58 N.Y.S.2d 435 (3d Dep’t 2003). franchisee even though the Statute of Limitations had expired where (a) plaintiff was injured at the Albany [EDITOR’S NOTE: Two judges dissented: Marriott and the hotel referred plaintiff’s counsel to its No insurance company has a duty to insurance carrier and claims agent Zurich American aid its insured’s adversaries. Indeed, if Insurance Company, (b) Zurich conducted settlement Zurich-American or its attorneys had negotiations with plaintiff’s counsel, (c) Zurich so advised plaintiff’s attorneys, they obtained a stipulation from plaintiff for an extension of would have violated the duty of undi- time to answer on “behalf of Albany Marriott” and (d) vided loyalty owed to their insured. franchisee’s counsel asserted the affirmative defense of statute of limitations: * * * Plaintiff is essentially alleging that In addition, Zurich-American’s conduct Interstate [Albany Marriott] should be of generally identifying its insured as estopped from asserting the affirmative “the Albany Marriott” in correspon- defense of statute of limitations based dence is without significance. Plaintiff’s upon, among other things, the actions attorneys surely knew any reference to of Zurich-American. Notably, “a defen- “the Albany Marriott” was not intend- dant may be estopped to plead the ed to identify the corporate owner/ Statute of Limitations where [the] operator of the hotel since they them- plaintiff was induced by fraud, misrep- selves sued Marriott International, Inc., resentation or deception to refrain from not “the Albany Marriott.”] filing a timely action.” Here, the record demonstrates that Zurich-American, MOTIONS—RENEWAL while continually maintaining that it represented Albany Marriott and could The IAS Court erred in granting plaintiff’s motion act on its behalf, received a “courtesy” to renew after it granted defendant’s motion for sum- copy of a summons and complaint mary judgment. The court should not have received specifically directed solely to defen- plaintiff’s expert’s revised affidavit when earlier it dant, a purportedly separate entity rejected it as conclusory: from the Albany Marriott franchise. An application to renew must be based Zurich-American did not simply ignore upon additional material facts which the courtesy copy of the papers as it existed at the time that the prior motion presumably could have done had it was made but which were not then solely represented the interests of known to the party seeking leave to “Albany Marriott” as indicated in its renew and a valid excuse must be correspondence. Instead, it affirmative- offered for not supplying such facts. A ly negotiated an extension of defen- request for renewal should be rejected dant’s time to answer which was fully when the moving party fails to offer a taken advantage of by the defendant. reasonable excuse for not submitting By doing so, Zurich-American clearly the new material on the previous misrepresented that the interests of the motion. Plaintiff never explained why Albany Marriott and defendant were the expert engineer was not able, when one and the same. Simply, Zurich- providing an affidavit on defendant’s American consistently set forth that it motion, to make the same inspection he was acting solely for the party liable for performed and incorporated into his any negligent acts by Albany Marriott revised affidavit for the renewal employees when it first engaged in set- motion. There still had been no actual

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 11 examination of the vault area which is improvidently exercised that discretion, assumed to lie beneath the sidewalk where, as here, the delay of just over and near the curb in question. Plaintiff one month was minimal, plaintiff failed did not provide any construction plans, to demonstrate that he was prejudiced schematics or other evidence which by the delay and, because the motion would support the still-conclusory addressed a potentially determinative statements of the expert that the vault matter, its consideration was warranted space is a special use and that any dete- in advance of trial in the interest of rioration of the curb has a relationship judicial economy. to the vault space. Burns v. Gonzalez, 307 A.D.2d 863, 763 N.Y.S.2d 603 Cuccia v. City of New York, 306 A.D.2d 2, 761 N.Y.S.2d (1st Dep’t 2003). 31 (1st Dep’t 2003). [EDITOR’S NOTE: A party whose summary judgment motion is late must establish “good cause.” If no “good MOTIONS—RENEWAL—ABUSE OF DISCRETION cause” is demonstrated, the motion must be denied The court abused its discretion in failing to grant even if the motion has merit and there is no prejudice. defendants’ motion to renew even though they gave no See Brill v. City of New York, __ N.Y.3d __, __ N.Y.S.2d __, excuse for failing to offer the newly submitted evidence 2004 WL 1263 754 (2004): in support of the initial motion: We conclude that “good cause” in We agree with the IAS court that defen- CPLR 3212(a) required a showing of dant’s second motion, denominated as good cause for the delay in making the one for reargument, was actually a motion—a satisfactory explanation for motion for renewal, since it was based the untimeliness—rather than simply on evidence not presented on the prior permitting meritorious, non-prejudicial motion, i.e., defendants’ affidavits and filings, however tardy. That reading is the invoices addressed to their supported by the language of the Westchester County address. Although statute—only the movant can show renewal motions generally should be good cause—as well as by the purpose based on newly discovered facts that of the amendment, to end the practice could not be offered on the prior of eleventh-hour summary judgment motion (see CPLR 2221[e]), courts have motions. No excuse at all, or a perfunc- discretion to relax this requirement and tory excuse, cannot be “good cause”.] to grant such a motion in the interest of justice. On this record, in which the NEGLIGENCE—FORESEEABILITY—SUPERSEDING only competent evidence is that both CAUSE defendants reside in Westchester County, we deem it appropriate to Verdict in favor of plaintiff who was injured while reverse and grant renewal of the attempting to exit stalled elevator through three-foot motion to change venue in the exercise opening was not barred by the intervening and super- of our discretion, and thereupon direct seding cause doctrine: a change of venue. Under these circumstances [plaintiff Mejia v. Nanni, 307 A.D.2d 870, 763 N.Y.S.2d 611 (1st stuck with young children in malodor- Dep’t 2003). ous, dirty and poorly ventilated eleva- tor with children complaining they could not breathe], we cannot accept MOTION—SUMMARY JUDGMENT— defendant’s contention that plaintiff’s LATE/ONE MONTH actions were so extraordinary as to Defendant’s motion for summary judgment should interrupt the causal chain stemming have been granted notwithstanding that it was one from its negligence and constitute an month late: intervening and superseding cause of her injury. Rather, the evidence war- Initially, we find that the motion court, rants the conclusion that plaintiff’s con- which is afforded wide latitude in exer- duct in attempting to extricate herself cising its discretion to entertain a later from the fetid elevator in which she motion for summary judgment, had been trapped without assistance

12 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 for some 40 minutes was a foreseeable history of mental illness, she had no response to the hazardous situation history of violence, nor had she threat- that had developed by reason of defen- ened agency staff or the foster parent in dant’s negligence. the past. The agency therefore had no reason to anticipate a violent outburst Wiggins v. City of New York, 1 A.D.3d 116, 766 N.Y.S.2d or to take steps to prevent contact 202 (1st Dep’t 2003). between the biological mother and the [EDITOR’S NOTE: The holding in this case should be foster parent. In addition, due to the distinguished from the Court of Appeals finding in suddenness of the attack and its loca- Egan v. A.J. Construction Corp., 94 N.Y.2d 839, 702 tion, the agency’s security staff had no N.Y.S.2d 574 (1999), where the court held that a worker opportunity to intervene to assist the who, after 10 to 15 minutes in a stalled freight elevator, foster parent. Under the circumstances jumped six feet above the lobby floor had no cause of of this case, defendants-appellants were action since his jumping from a stalled elevator was not entitled to summary judgment dismiss- foreseeable in the normal course of events. The Court of ing the complaint against them.] Appeals ruled that plaintiff’s jump superseded defen- dants’ conduct and terminated defendants’ liability for NEGLIGENCE—FRANCHISOR his injuries.] Issues of fact exist whether franchisor is an out-of- possession landlord who relinquished supervisory con- NEGLIGENCE—FORESEEABILITY—STABBING trol over franchisee/lessee’s operation of a mini-mart OUTSIDE PREMISES where plaintiff fell allegedly because of a missing floor Foster care agency may be liable to plaintiff, foster tile: mother, for a stabbing by biological mother [Alves] out- Such issues are raised by evidence that side agency building, since agency scheduled a visit appellants [franchisor] had the right to between foster mother and the biological mother: enter and inspect the mini-mart at all This “confluence of factors” raises an reasonable times to ensure compliance issue of fact as to whether the attack with franchise standards, and exercised was reasonably foreseeable, “triggering that right regularly and vigorously. the need for protective action.” That Indeed, one of appellants’ inspectors Alves had only expressed anger in the testified that if she had seen a missing past without acting on it did not make floor tile at the entrance of the mini- the attack unforeseeable as a matter of mart, as alleged, she would have made law. a note of it and required the fran- chisee/lessee to fix it. There is even evi- Waldon v. Little Flower Children’s Service, 308 A.D.2d dence tending to show that the inspec- 320, 764 N.Y.S.2d 49 (1st Dep’t 2003). tor did make such a note. [EDITOR’S NOTE: Justice Tom dissented stating that Gerber v. West Hempstead Convenience, Inc., 2 A.D.3d the agency cannot be responsible as a premises owner 260, 769 N.Y.S.2d 527 (1st Dep’t 2003). under common law negligence since the assault occurred on a public street over which the agency exer- cised no control. Justice Tom also found that there was NEGLIGENCE—LABOR LAW § 240(1) no evidence of criminal history that would have alerted Plaintiff’s fall from a roof while inspecting it as a the agency to potential violence. Plaintiff’s failure to potential site for a condenser unit relative to the work demonstrate foreseeability required dismissal. he was performing nearby was not covered under Labor Law § 240(1): The Court of Appeals reversed the Appellate Division’s order finding a question of fact. See 1 N.Y.3d Here, as in Martinez [v. City of New York, 612, 776 N.Y.S.2d 532 (2004): 93 N.Y.2d 322, 690 N.Y.S.2d 524 (1999)], the activity in which plaintiff was Assuming the agency owed the foster engaged at the time of his fall was parent a duty of care, no evidence was merely investigatory, i.e., it entailed proffered raising a question of fact on merely planning for future construction the issues of breach or causation. work, before defendants had the incen- Although the biological mother had a tive to install safety devices. Plaintiff’s

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 13 work did not take place during the mantling of electrical and plumbing “erection, demolition, repairing, [or] components of the cooling system, and altering . . . of a building or structure,” involved the use of a mechanical lift to nor did it involve any such activities. support the weight of the air handlers. Thus, plaintiff was not “a person That plaintiff performed this substan- employed to carry out the [construction tial modification on a building ulti- work] as that term is used in section mately scheduled for demolition does 240(1).“ not change the nature of the work proj- ect at the time of his accident. McMahon v. H S M Packaging Corporation, 302 A.D.2d 1012, 755 N.Y.S.2d 186 (4th Dep’t 2003), appeal with- Panek v. County of Albany, 99 N.Y.2d 452, 758 N.Y.S.2d drawn, 99 N.Y.2d 652, 760 N.Y.S.2d 105 (2003). 267 (2003), rev’g 286 A.D.2d 86, 731 N.Y.S.2d 803 (3d Dep’t 2001). [EDITOR’S NOTE: There was a vigorous dissent by two judges because the plaintiff’s inspection of a potential construction site NEGLIGENCE—LABOR LAW § 240(1)— FALL FROM FIRE ESCAPE was within the general scope of the project for which plaintiff’s company Decedent, who was fatally injured when a fire was hired, and the inspection was escape railing that he was leaning over while painting essential to the project. Thus, we con- the outside of the fire escape collapsed, was covered clude that plaintiff was engaged in an under Labor Law § 240: activity within the protection of Labor The evidence that the decedent’s fall Law § 240(1) when he was injured. was caused by the collapse of the safety This case was decided before the Court of Appeals’ device upon which he was working decision in Panek v. County of Albany, 99 N.Y.2d. 452, 758 established a prima facie case of liabili- N.Y.S.2d 267 (2003), where the court held that plaintiff’s ty under Labor Law § 240(1). injury sustained during his removal of air handlers * * * weighing 200 pounds before demolition work was to start was covered under the statute even though the The fire escape was being used as the removal of the air handlers was not part of the sepa- functional equivalent of a scaffold to rately contracted future demolition project.] protect the decedent from elevation- related risks and therefore constituted a safety device within the meaning of NEGLIGENCE—LABOR LAW § 240(1)— Labor Law § 240(1). The fact that the ALTERATION fire escape was a permanent rather Plaintiff’s fall from a ladder while removing an air than temporary structure does not pre- handler attached to the Albany International Airport’s clude Labor Law § 240(1) liability. cooling system, which was scheduled for demolition De Jara v. 44-14 Newtown Road Apartment two weeks later, is covered under Labor Law § 240(1) Corporation, 307 A.D.2d 948, 763 N.Y.S.2d 654 (2d since plaintiff was engaged in altering, a protected Dep’t 2003). activity.

The court rejected the Appellate Division’s reason- NEGLIGENCE—LABOR LAW § 240(1)— ing that altering, like any other enumerated protected INCOMPLETE FALL activity other than demolition, logically contemplates the continued use of the building or structure whose Plaintiff’s slide down the roof, rather than off the composition or configuration is being substantially roof, is the type of hazard that Labor Law § 240(1) changed physically: covers: Here, plaintiff was clearly engaged in a The simple fact is that plaintiff was significant physical change to the build- subject to an elevation-related risk. He ing when he was injured, thus satisfy- fell from the top of the roof all the way ing the Joblon [v. Solow, 91 N.Y.2d 457, down to the eaves, a distance of about 672 N.Y.S.2d 286 (1998)] standard for 15 to 20 feet. Safety devices could have alteration. The removal of the two 200- prevented him from falling as he did. pound air handlers required two days Defendant does not dispute that under of preparatory labor, including the dis- 22 N.Y.C.R.R. 23-1.24, plaintiff should

14 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 have been provided with roofing brack- hammer strokes, pauses to see where to ets, crawling boards or safety belts. The hit the next nail is at that moment application of section 240(1) does not “inspecting.” But this is very different hinge on whether the worker actually from an inspection conducted by some- hit the ground. This argument, accept- one carrying a clipboard while survey- ed by the dissent below, represents an ing a possible construction site long overly strict interpretation of section before a contractor puts a spade in the 240(1). It would exclude from section ground. Here, AWL employed the 240(1) workers who succumb to eleva- plaintiff mechanic substantially to per- tion-related risks but, for whatever the form work that involved alteration of a reason, do not make it to the ground. building, and, under the facts of this For instance, a window washer who is case, he enjoyed the protection of § injured when a scaffold drops 20 floors 240(1) even though he was inspecting, but stops before hitting the ground or more precisely, climbing a ladder, at would not be covered. the moment of the accident. In short, plaintiff was subject to an ele- Prats v. Port Authority of NY and NJ, 100 N.Y.2d 878, vated-related risk while working on 768 N.Y.S.2d 178 (2003). this particular roof, and he was not pro- vided with any safety devices. In addi- NEGLIGENCE—LABOR LAW § 240(1)— tion, the failure to provide any safety INTERVENING CAUSE devices was a proximate cause of plain- tiff’s injuries. He was within the protec- Plaintiff who (a) knew that the permanent stairs to tive ambit of Labor Law section 240(1). the motor room above the roof were removed, (b) used a bucket to gain access to the motor room, and (c) was Striegel v. Hillcrest Hgts. Dev. Corp., 100 N.Y.2d 974, injured after jumping from the motor room to the roof 768 N.Y.S.2d 727 (2003). has no Labor Law § 240(1) claim. The court rejected the IAS finding that the accident occurred as a result of NEGLIGENCE—LABOR LAW § 240(1)— defendant’s failure to provide plaintiff with a ladder or INSPECTIONS—COVERED PERSONS other safety device to enable him to descend from the machine room, which failure was a proximate cause of Plaintiff, injured when the ladder slid from under his injuries: him and bounced off the floor striking him in the face before he fell to the ground, is covered under Labor Plaintiff’s jump from the motor room to Law § 240(1) even though at the time he was only the roof under the circumstances pre- readying air-handling units for inspection because (a) sented was not reasonably foreseeable the inspections were ongoing and contemporaneous and, thus, was an intervening act which with other work that formed part of a single contract constituted a superseding cause for the and (b) plaintiff’s company was performing construc- knee injury he sustained as he landed. tion and alteration work pursuant to a contract. The court distinguished this case from Desousa v. The court distinguished this case from Martinez v. City of New York, 267 A.D.2d 195, 699 N.Y.S.2d 475 (2d City of New York, 93 N.Y.2d 322, 690 N.Y.S.2d 524 (1999), Dep’t 1999): because the work plaintiff’s company was performing However, this is not a situation similar went beyond inspection; it covered Labor Law § 240(1) to Desousa, where plaintiff was working activities including construction and alteration: on an elevated pier from which he The Second Circuit questioned whether could only descend by jumping onto a our holding in Joblon v. Solow, 91 N.Y.2d platform several feet below and where 457, 465, 672 N.Y.S.2d 286 (1998) bars defendants only argued that ladders plaintiff’s recovery. There, we looked to were unnecessary. Nor is it a situation the “time of injury” to determine where, after plaintiff and his supervisor whether plaintiff’s work fell within § ascended to the elevated work site, the 240(1). Defendant would have us read stairs or ladder used to access the site that phrase in an overly literal manner. were removed without notice, thus In our view, however, the words must stranding the two men in a precarious be applied in context. At one extreme, a or dangerous location. construction worker who, between

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 15 Montgomery v. Federal Express Corporation, 307 Eastern Railway Supply, Inc., 82 N.Y.2d 555, 606 N.Y.S.2d A.D.2d 865, 763 N.Y.S.2d 600 (1st Dep’t 2003). 127 (1993) and Coleman v. City of New York, 91 N.Y.2d 821, 666 N.Y.S.2d 553 (1997), where the court held that NEGLIGENCE—LABOR LAW § 240(1)— liability rests upon the fact of ownership and it is legal- ly irrelevant whether the owner had contracted for the LADDER TIPPED work or benefited from it. Plaintiff, who fell from second rung of six-foot fold- ing fiberglass stepladder that was “placed in an open Justice Mazzarelli also relied on Otero v. Cablevision and locked position” is covered under Labor Law § of New York, 297 A.D.2d 632, 747 N.Y.S.2d 46 (2d Dep’t 240(1). The court rejected defendants’ argument that the 2002), where the court, contrary to the Third Depart- ladder was safe: ment in Marchese v. Grossarth, 232 A.D.2d 924, 648 N.Y.S.2d 810 (3d Dep’t 1996), held an owner liable for a Defendant[s’] contention that the lad- cable technician’s injury: der provided to plaintiff was an ade- quate safety device lacks merit; the fact On July 1, 2004, the Court of Appeals affirmed the that the ladder “tipped” establishes that Appellate Division order. Judge Ciparick found: it was not so “placed . . . as to give Common to Celestine [v. City of New proper protection” to plaintiff. York, 86 A.D.2d 592, 446 N.Y.S.2d 131 Petit v. Board of Educ. of West Genesee School District, (2d Dept. 1982), aff’d., 59 N.Y.2d 938, 307 A.D.2d 749, 762 N.Y.S.2d 557 (4th Dep’t 2003). 466 N.Y.S.2d 319 (1983)—and to all cases imposing Labor Law § 240(1) lia- bility on an out-of-possession owner— NEGLIGENCE—PREMISES—LABOR LAW is some nexus between the owner and § 240(1)—OWNER’S LIABILITY/CABLE the worker, whether by a lease agree- TELEVISION TECHNICIAN INJURY ment or grant of an easement, or other A cable television technician, called by a building property interest. Here, however, no tenant to the premises, cannot sue the building’s owner such nexus exists. The injured plaintiff under Labor Law § 240(1) for injuries sustained where was on the owner’s premises not by the tenant (a) was not acting as the owner’s agent and reason of any action of the owner but (b) the owner did not otherwise authorize the work: by reason of provisions of the Public Service Law. We are not persuaded that defendants owners otherwise authorized the work * * * requested by their unnamed tenant, Lancaster [owner] is powerless to and third-party defendants’ unnamed determine which cable company is enti- subscriber, by virtue of Public Service tled to operate, repair or maintain the Law § 228, which prohibits landlords cable facilities on its property, since from interfering with the installation of such decision lies with the municipali- cable television facilities. The equip- ty—the franchisor. The City of New ment that plaintiff was working on at York gave Paragon the franchise, and the time of the accident was not being the right to install its cable facilities. “installed” and was not owned by This included the right to maintain the defendants but by third-party defen- premises free from interference after dants. In addition, as the motion court installation. stated, section 228 was enacted to assure that tenants have access to cable See __ N.Y.3d __, __ N.Y.S.2d __ (2004) [2004 WL television (see Public Service Law § 1472625.] 211), not to impose liability on land- lords for personal injuries where such NEGLIGENCE—LABOR LAW § 240(1)— liability would not otherwise exist. ROUTINE MAINTENANCE Abbatiello v. Lancaster Studio Associates, 307 A.D.2d Plaintiff, who was injured in fall from ladder while 788, 763 N.Y.S.2d 44 (1st Dep’t 2003). performing monthly maintenance check on the air-con- [EDITOR’S NOTE: Justice Mazzarelli dissented, relying ditioning units, is not covered under Labor Law § primarily on two Court of Appeals cases: Gordon v. 240(1):

16 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 Section 240(1) applies where an NEGLIGENCE—PARENT/SON—AGENCY employee is engaged “in the erection, A parent who allegedly consented to his adult chil- demolition, repairing, altering, paint- dren hosting a party at his home in his absence is not ing, cleaning or pointing of a building liable based on alleged agency relationship between the or structure.” Although repairing is parent and his children for the negligent failure of the among the enumerated activities, we children to control the conduct of others at the party have distinguished this from “routine causing injury to plaintiff because of horseplay engaged maintenance.” The work here involved in by two other guests: replacing components that require replacement in the course of normal We conclude that no agency relation- wear and tear. It therefore constituted ship existed between defendant and his routine maintenance and not “repair- sons as a matter of law. “The existence ing” or any of the other enumerated of a parent-child relationship is insuffi- activities. cient to establish an agency relation- ship; the proof must establish that the Esposito v. New York City Industrial Development child is in fact an agent of the parent.” Agency, 1 N.Y.3d 526, 770 N.Y.S.2d 682 (2003). * * * NEGLIGENCE—LABOR LAW § 240(1)— Furthermore, unlike Comeau [v. Lucas, TWO DISTINCT JOBS 90 A.D.2d 674, 455 N.Y.S.2d 871 (4th Plaintiff, who, after making repairs to an air-condi- Dep’t 1982)], which should be limited tioning unit, climbed ladder to obtain air conditioner’s to its particular facts, defendant herein serial and model numbers and fell 10 feet from the lad- was not involved in the planning of the der when a gust of wind moved his ladder while party and gave no direction concerning descending, is not covered under Labor Law § 240(1): the manner in which it was to be con- ducted. Because there is no triable issue Although the repair of the malfunction- of fact whether Jonathan and Timothy ing air conditioning unit did not consti- Nagowski were acting as defendant’s tute mere routine maintenance, plaintiff agents, defendant’s motion for summa- was not engaged in that repair work at ry judgment should be granted. the time of his injury. Plaintiff had two distinct jobs to perform on the day that Dynas v. Nagowski, 307 A.D.2d 144, 762 N.Y.S.2d 745 he was injured, i.e., repairing the air (4th Dep’t 2003). conditioning unit and obtaining the NEGLIGENCE—PLAINTIFF’S VIOLATION/PENAL LAW— serial and model numbers of the unit, BB GUN and it is undisputed that he was obtain- ing the serial and model numbers of Eleven-year-old plaintiff, who violated Penal Law § the unit at the time of his injury. 265.05 while playing with friends (defendants), is not Because obtaining that information was precluded from suing them under Barker v. Kallash, 63 not part of the repair work, plaintiff N.Y.2d 19, 479 N.Y.S.2d 201 (1984): was not engaged in a protected activity Supreme Court properly denied defen- under Labor Law § 240(1) when he fell dant’s motion seeking a directed ver- from the ladder. dict on the ground that plaintiff is pre- Beehner v. Eckerd Corporation, 307 A.D.2d 699, 762 cluded from recovery because the N.Y.S.2d 756 (4th Dep’t 2003), appeal withdrawn, 100 injuries sustained by Mark resulted N.Y.2d 617, 767 N.Y.S.2d 399 (2003). from Mark’s own violation of Penal Law § 265.05. Mark’s possession of the [EDITOR’S NOTE: Two justices dissented. They main- BB gun does not constitute the type of tained that since the plaintiff was required to obtain the serious criminal or illegal conduct that air conditioning serial and model numbers before the would bar plaintiff from bringing this repair of the unit would be deemed completed, this was lawsuit, nor is the illegal possession of not a “separate and distinct” task assigned by plaintiff’s the BB gun by Mark a direct cause of employer but rather was “incidental to the repair work his injuries. that plaintiff completed earlier and therefore is a pro- tected activity under Labor Law § 240(1).”] Rokitka v. Barrett, 303 A.D.2d 983, 757 N.Y.S.2d 184 (4th Dep’t 2003).

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 17 NEGLIGENCE—PREMISES—SLIP AND FALL— NEGLIGENCE—RES IPSA LOQUITUR— OPEN AND OBVIOUS/DUTY TO MAINTAIN ELEVATOR—MAINTENANCE COMPANY PROPERTY Doctrine of res ipsa loquitur was not applicable to Plaintiff, who tripped on a sidewalk crack, has a elevator passenger’s negligence action against elevator viable claim against the City of Schenectady even repair company for injuries he sustained when elevator though the allegedly dangerous condition was readily malfunctioned during its descent, since the alleged observable and plaintiff was well aware of it: cause of the accident, a malfunctioning “safe edge,” was not in the exclusive control of the elevator mainte- Policy considerations lead us to con- nance company: clude that the open and obvious nature of an allegedly dangerous condition The doctrine requires that a plaintiff does not, standing alone, necessarily establish the following conditions: obviate a landowner’s duty to maintain “first, the event must be of a kind that his or her property in a reasonably safe ordinarily does not occur in the absence condition (citing Tagle v. Jakob, 97 of someone’s negligence; second, it N.Y.2d 165, 737 N.Y.S.2d 331 [2001]). must be caused by an agency or instru- mentality within the exclusive control * * * of the defendant; and third, it must not The societal benefit to imposing a duty have been due to any voluntary action to maintain one’s premises in a reason- or contribution on the part of the plain- ably safe condition remains even where tiff.” The second prong of the test the dangerous condition is obvious. requires “that the evidence must afford Notably, this Court has repeatedly a rational basis for concluding that the articulated the fact that a landowner’s cause of the accident was probably duty to maintain its premises is sepa- such that the defendant would be rate and distinct from the duty to warn responsible for any negligence connect- of latent, hazardous conditions. ed with it.” In other words, the likeli- hood of other causes “’must be so A contrary rule of law would permit a reduced that the greater probability lies landowner to persistently ignore an at defendant’s door.’” extremely hazardous condition— regardless of how foreseeable it might * * * be that injuries will result from such We conclude that plaintiff did not condition—simply by virtue of the fact establish sufficient exclusivity of con- that it is obvious and apparent to trol over the safe edge here. Unlike onlookers. In our view, the extent that a cases involving breakdown of operat- danger is obvious is a factor which, like ing mechanisms that are relatively inac- the status of the plaintiff on the proper- cessible to the general public, the safe ty, will impact the foreseeability of an edge, which plaintiff asserts caused the accident and the comparative negli- accident, is designed to come into con- gence of the injured party, but will not, tact with the public and, thus, subject to as a matter of law, relieve a landowner potentially damaging misuse or vandal- of all duty to maintain his or her prem- ism. Accordingly, plaintiff is not enti- ises. tled to have res ipsa loquitur charged to MacDonald v. City of Schenectady, 308 A.D.2d 125, 761 the jury. N.Y.S.2d 752 (3d Dep’t 2003). De Sanctis v. Montgomery Elevator Company, Inc., 304 [EDITOR’S NOTE: All four departments now agree that A.D.2d 936, 758 N.Y.S.2d 419 (3d Dep’t 2003). the open and obvious doctrine negates only a duty to [EDITOR’S NOTE: Where, however, the control mecha- warn. Plaintiff, however, is not precluded from estab- nism of the elevator is in the sole control of the elevator lishing liability based on the premises owner’s failure to maintenance company, the doctrine of res ipsa loquitur is maintain his or her property in a reasonably safe condi- applicable. See Rodriguez v. Serge Elevators Co., 99 N.Y.2d tion. See Westbrook v. W.R. Activities-Cabrera Markets, 5 587, 757 N.Y.S.2d 809 (2003); Carrasco v. Millar Elevator A.D.3d 69, 773 N.Y.S.2d 38 (1st Dep’t 2004); Cupo v. Industries, Inc., 305 A.D.2d 353, 758 N.Y.S.2d 679 (2d Karfunkel, 1 A.D.3d 418, 767 N.Y.S.2d 40 (2d Dep’t 2003); Dep’t 2003); Walden v. Otis Elevator Co., 178 A.D.2d 878, and Pelow v. Tri-Main Development, 303 A.D.2d 940, 757 577 N.Y.S.2d 732 (3d Dep’t 1991) and Burgess v. Otis N.Y.S.2d 653 (4th Dep’t 2003).]

18 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 Elevator Co., 114 A.D.2d 784, 495 N.Y.S.2d 376 (1st Dep’t While a violation of the Code may be 1985), aff’d, 69 N.Y.2d 623, 511 N.Y.S.2d 227 (1986).] considered as some evidence of negli- gence, the appellant demonstrated that NEGLIGENCE—TRIP AND FALL—TRIVIAL DEFECT the provisions of the Code cited by the plaintiff were enacted after the con- Plaintiff’s trip and fall on a concrete stairway land- struction of the subject premises. The ing with a height differential of less than one inch is plaintiff failed to demonstrate that trivial and, absent plaintiff establishing a significant these Code provisions were intended to hazard, it is not actionable: be applied retroactively. Thus, there is The defect to which plaintiff now no basis to find that the appellant was attributes the accident—the height dif- required to provide a second means of ferential of less than one inch between egress from the subject premises. the defective area and the rest of the White v. Jeffco Western Properties, Inc., 304 A.D.2d 824, landing—was trivial, and plaintiff has 759 N.Y.S.2d 138 (2003). not presented any evidence to show that such defect presented a significant [EDITOR’S NOTE: The non-applicable Building Code hazard, notwithstanding its minimal defense did not save the premises owner in Swerdlow v. dimension, by reason of location, W.S.K. Properties Corp., 5 A.D.3d. 587, 772 N.Y.S.2d 864 adverse weather or lighting conditions, (2d Dep’t 2004). In Swerdlow, the court held: or other circumstances giving it the W.S.K. and Beneficial correctly contend characteristics of a trap or snare. We that their evidence established that the note that the trivial defect argument subject building was not under the was properly raised in defendant’s purview of the New York State Fire reply papers in further support of the Prevention and Building Code (here- motion for summary judgment, since inafter Code), since it was built more plaintiff first asserted in her opposition than 50 years before the enactment of papers that she lost her footing due to the Code. the height differential at the edge of the defective area. * * * Gaud v. Markham, 307 A.D.2d 845, 764 N.Y.S.2d 241 The fact that the subject building did (1st Dep’t 2003). not fall under the scope of the Code only absolved the defendants of the [EDITOR’S NOTE: Justice Tom dissented: mandatory duty that the Code might While the height differential of the otherwise impose. WSK and Beneficial, defect appeared minimal, a factual nevertheless, had continuing duties, as issue remains as to whether plaintiff an owner and a possessor, respectively, lost her footing due to loose pieces of to maintain the property in a reason- cement on a large part of a landing ably safe manner. Under the circum- which one must cross to gain entry or stances of this case, questions of fact whether the defect was so minor as to exist as to whether, among other things, warrant judgment for the premises the absence of handrails and the pres- owner. Further, the defective condition ence of steps of unequal height con- appeared to have existed for a substan- tributed to the plaintiff’s accident and tial period of time, thus putting the whether WSK and Beneficial were neg- owner on notice.] ligent in failing to correct those condi- tions.] NEGLIGENCE—STATUTORY VIOLATION— RETROACTIVITY NEGLIGENCE—TENANT-IN-COMMON— POSSESSION AND CONTROL Plaintiff is not entitled to invoke the Administrative Code to establish out-of-possession landlord’s negli- Tenant-in-common [Brian Rafferty] of residential gence in failing to have a second means of egress from structure is not liable to plaintiff who injured herself premises—that caused decedent’s fatal injuries when a when she fell off a bunk bed that was in the property fire was intentionally set by an unknown arsonist— exclusively used and controlled by the co-tenant-in- because the Code provisions were enacted after the con- common because he had surrendered possession and struction of the premises:

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 19 control over the portion of the property where the that the accident occurred in Westport, injury occurred: Connecticut. For purposes of imposing personal lia- Florio v. Fisher Development, Inc., 309 A.D.2d 694, 765 bility for defective conditions on the N.Y.S.2d 879 (1st Dep’t 2003). premises, a co-tenant’s right to use and enjoy the entire premises translates into PRE-TRIAL DISCOVERY—SURVEILLANCE VIDEO a duty to maintain it safely. Indeed, TAPES—PLAINTIFF’S DEPOSITION because the common law doctrine of tenancy-in-common presumptively Under CPLR 3101(i), plaintiff is entitled to immedi- gives each co-tenant full possession of ate production of all surveillance video tapes even the entire premises, a defective condi- before he is deposed: tion causing injury to a third party The plain language of section 3101(i) results in joint and several liability as to eliminates any qualified privilege that each co-tenant. previously attached to surveillance * * * tapes under DiMichel [v. South Buffalo Ry. Co., 80 N.Y.2d 184, 590 N.Y.S.2d 1 This does not mean, however, that all (1992)]. Under the new provision, sur- co-tenants will inevitably be liable any veillance tapes (and other specified time an injury occurs on the premises. materials) are subject to “full disclo- Although co-tenants generally have the sure.” Thus, parties seeking disclosure right to use and enjoy the entire proper- of any of the specified items under sec- ty, they may contract otherwise. tion 3101(i) need not make a showing * * * of “substantial need” and “undue hard- ship.” Moreover, section 3101(i)’s “full When co-tenants enter into such an disclosure” requirement is not limited agreement and are faithful to its terms, to those materials a party intends to use liability for personal injuries will fall at trial. The provision compels disclo- only on the tenant who exercises pos- sure of all the listed materials—includ- session and control over the area in ing “out-takes”—whether or not they question. Predicating liability on a will be used at trial. landowner’s possession and control of the premises is firmly entrenched in * * * our case law. Even more revealing however, is the Butler v. Rafferty, 100 N.Y.2d 265, 762 N.Y.S.2d 56 placement of subdivision (i) within the (2003). statutory scheme. After DiMichel, the Legislature chose to create an entirely new subdivision within section 3101 to PLEADINGS—AFFIRMATIVE DEFENSES—CHOICE deal exclusively with videotapes and OF LAW similar materials. We must assume that Defendant did not waive its right to invoke the Legislature was fully aware that the Connecticut law if it failed to assert choice of law as an timing rule we announced in DiMichel affirmative defense: was premised on surveillance tapes falling within section 3101(d)(2). Contrary to plaintiff’s contentions, it Indeed, it is evident that the Legislature was not necessary for defendant to enacted section 3101(i) in reaction to plead, as an affirmative defense, that DiMichel. The Legislature’s decision to Connecticut, rather than New York, law create this separate subdivision, subject should be employed. This choice of law to no qualified privilege and imposing claim was not “likely to take [plaintiffs] no express timing requirement, satisfies by surprise” and did not “raise issues us that the lawmakers did not intend to of fact not appearing on the face of a adopt the DiMichel timing rule. prior pleading” (CPLR 3018[b]). Plaintiff was presumably aware of the Tran v. New Rochelle Hosp. Medical Center, 99 N.Y.2d potential applicability of Connecticut 383, 756 N.Y.S.2d 509 (2003), rev’g 291 A.D.2d 121, 740 law, as its complaint asserted the fact N.Y.S.2d 11 (1st Dep’t 2002).

20 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 PRODUCTS LIABILITY—METAL FABRICATOR— former Deputy Chief of the New York CASUAL MANUFACTURER—STRICT LIABILITY IN City Fire Department. TORT * * * VF Conner, who was engaged in a one-time, custom fabrication of a retractable floor at a General Electric Plaintiffs’ experts consistently asserted plant, is strictly liable because it is in the business of that the fire originated in the upper manufacturing specialty sheet metal products and the right quadrant of the refrigerator and retractable floor was just such a product—specifically each contended the stove was not the manufactured for market sale to General Electric: source of the blaze. Both parties sup- ported their positions with detailed, Like other manufacturers, custom fabri- non-conclusory expert depositions and cators engaged in the regular course of other submissions which explained the their business hold themselves out as bases for the opinions. having expertise in manufacturing their custom products, have the opportunity Speller v. Sears, Roebuck and Co., 100 N.Y.2d 38, 760 and incentive to ensure safety in the N.Y.S.2d 79 (2003). process of making those products, and [EDITOR’S NOTE: The court specifically noted that are better able to shoulder the costs of plaintiffs were not required to produce evidence of a injuries caused by defective products specific defect to survive summary judgment even than injured consumers or users. though defendants came forward with evidence sug- * * * gesting an alternative cause of the fire. The court noted that where causation is disputed, summary judgment is The fact that Conner had not previous- not appropriate unless “only one conclusion may be ly built such a floor should not pre- drawn from the established facts” (Kriz v. Schum, 75 clude the application of strict liability. N.Y.2d 25, 550 N.Y.S.2d 584 [1989]). Since a reasonable So long as the product was built for jury could credit plaintiffs’ proof and find that plaintiff market sale in the regular course of the excluded all other causes of the fire not attributed to the manufacturer’s business, as it was here, defendants, there were material issues of fact requiring strict liability may apply. a trial. Sprung v. MTR Ravensburg Inc., 99 N.Y.2d 468, 758 In its decision, the court also noted that New York N.Y.S.2d 271 (2003), rev’g 294 A.D.2d 758, 742 N.Y.S.2d law is consistent with Restatement [Third] of Torts: 438 (3d Dep’t 2002). Products Liability § 3 [1998]: It may be inferred that the harm sus- SUMMARY JUDGMENT—EXPERT’S AFFIDAVIT— tained by the plaintiff was caused by a CIRCUMSTANTIAL EVIDENCE/EXCLUDING ALL product defect existing at the time of OTHER CAUSES sale or distribution, without proof of a Plaintiffs’ three experts sufficiently rebutted the Fire specific defect, when the incident that Marshal’s conclusion that the house fire in which plain- harmed the plaintiff: (a) was of a kind tiffs’ decedent died was caused by a stovetop grease that ordinarily occurs as a result of fire, thereby raising a question of fact whether defen- product defect; and (b) was not , in the dant’s refrigerator was the cause of the fire. In reversing particular case, solely the result of caus- the Appellate Division’s finding that plaintiffs’ expert es other than product defect existing at witnesses’ testimony that the fire could have originated the time of sale or distribution.] from the refrigerator was equivocal, the Court of Appeals held: TRIAL—JUROR MISCONDUCT—CONCEALMENT In order to withstand summary judg- OF FRIENDSHIP/ADA ment, plaintiffs were required to come Trial judge correctly denied defendant’s motion to forward with competent evidence set aside verdict because a juror, during voir dire, failed excluding the stove as the origin of the to reveal his friendship with an assistant district attor- fire. To meet that burden, plaintiffs ney. The court rejected defendant’s argument that a offered three expert opinions: the depo- juror’s concealment deprived him of the opportunity to sitions of an electrical engineer and a question the juror more fully and possibly remove him fire investigator, and the affidavit of a from the jury:

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 21 In addressing [juror conduct] motions, along with a single question as to we have held that “[a]bsent a showing whether she was able to understand of prejudice to a substantial right, . . . and communicate in English. Invoking proof of juror misconduct does not enti- the Judiciary Law § 510 standard, the tle a defendant to a new trial.” We court then concluded that she was apply this standard because “not every qualified to serve. misstep by a juror rises to the inherent- The issue before the court was not ly prejudicial level at which reversal is whether the juror fulfilled the dictates required automatically.” Indeed, the of Judiciary Law § 510 with regard to fact-intensive nature of these kinds of general qualifications. Rather, the prob- issues requires that “[e]ach case . . . be lem was whether this particular juror examined on its unique facts to deter- should have been entrusted with the mine the nature of the misconduct and responsibilities of fact finding, after she the likelihood that prejudice was told the court officer that she “didn’t engendered.” Accordingly, trial courts understand what was going on” and are vested with discretion in deciding did not understand the lawyers or the CPL 330.30(2) motions, and this Court judge. The court thus failed to make will uphold a trial court’s undisturbed any inquiry—let alone a tactful, prob- findings of fact if they are supported by ing inquiry—to elicit what the juror evidence in the record. meant by her statement. We caution People of the State of New York v. Rodriguez, 100 that it would have been unnecessary N.Y.2d 30, 760 N.Y.S.2d 74 (2003). and indeed inappropriate to subject the juror to questions relating to her [EDITOR’S NOTE: The juror and the ADA were friends thought processes, the deliberations or during high school but lost touch for about 10 years other matters that lie within the con- after graduation. Although the juror contacted the ADA fines of the jury room. a few weeks before the trial, there was no contact with him during the trial and the juror unequivocally stated People of the State of New York v. Sanchez, 99 N.Y.2d that his relationship with the ADA did not influence his 622, 760 N.Y.S.2d 391 (2003). deliberations in the slightest. Based upon this testimo- ny, the trial court determined that although the juror’s TRIAL—MISSING WITNESS CHARGE failure to disclose the friendship constituted miscon- duct, it was “harmless” and did not result in substantial Missing witness instruction was warranted for fail- prejudice to defendant.] ure to call defendant’s friend as a witness where prose- cution met its burden to qualify for such charge: TRIAL—JURY—UNDERSTAND AND First, the witness’s knowledge must be COMMUNICATE IN ENGLISH material to the trial. Second, the wit- ness must be expected to give noncu- Trial judge committed reversible error in failing to mulative testimony favorable to the inquire from a juror what she meant when she stated to party against whom the charge is court officers that during deliberations “she did not sought. This has been referred to as the understand what was going on.” Limiting the inquiry “control” element, which requires the to the juror’s satisfying Judiciary Law § 510—that a per- court to evaluate the relationship son must “be able to understand and communicate in between the witness and the party to English language”—is insufficient: whom the witness is expected to be The court’s inquiry, however, was both faithful. Third, the witness must be misdirected and incomplete, falling available to that party. short of the “probing and tactful People v. Savinon, 100 N.Y.2d 192, 761 N.Y.S.2d 144 inquiry” that a court must undertake (2003). when it appears that a juror may be grossly unqualified. The court did not [EDITOR’S NOTE: In addition, to qualify for a missing ask the juror what she meant by her witness charge, the request for such charge must be extraordinary statements to the court timely. Where the request for such charge was made officer but asked her questions as to her after the close of all the evidence, the court held the age, address, citizenship and whether request was untimely. See Buttice v. Dyer, 1 A.D.3d 552, she was ever charged with a crime, 767 N.Y.S.2d 784 (2d Dep’t 2003).]

22 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 TRIAL—SURVEILLANCE FILMS—ORIGINAL— This is not a case where the only evi- FAILURE TO DISCLOSE dence before the IAS Court consists of the residence listed on a driver’s license The trial court did not abuse its discretion in grant- or where such information is only con- ing plaintiff’s motion to preclude defendant from pre- troverted by a self-serving affidavit of a senting his surveillance of plaintiff allegedly shoveling party. Plaintiff provided a detailed nar- snow after the accident: rative of his address change, document- Prior to trial plaintiffs requested full ed it with the types of communications disclosure of any and all existing video- one would typically receive at one’s tapes pursuant to CPLR 3101(i), and the residence and offered the additional defendant provided plaintiffs with a verification of the two individuals who copy of a surveillance videotape that lived, respectively, at the Manhattan contained two breaks in motion. and Bronx residences. Where resolution Plaintiffs sought preclusion upon dis- of such a factual issue ultimately covering during trial that the original depends on evaluating the credibility of eight-millimeter surveillance tape of the affiants, a hearing should be held to plaintiff had not been disclosed, and resolve any inconsistencies. the court properly granted plaintiff’s Rivera v. Jensen, 307 A.D.2d 229, 762 N.Y.S.2d 387 (1st motion. Dep’t 2003). Zegarelli v. Hughes, 303 A.D.2d 916, 756 N.Y.S.2d 674 (4th Dep’t 2003). WRONGFUL DEATH—DAMAGES—LOSS OF [EDITOR’S NOTE : On July 1, 2004, the Court of PARENTAL GUIDANCE Appeals reversed. Judge Smith concluded that defense The jury verdict rejecting the claim of plaintiff’s counsel complied with CPLR 3101(i), since the section decedent’s two sons, ages five and eight, for damages does not require parties making disclosure of surveil- for loss of parental (father) guidance, could not have lance tapes to be more forthcoming than they would been reached “on any fair interpretation of the evi- with any ordinary discovery material: dence”: In the case of “documents and [I]t has “long been recognized that things”—a term that includes video pecuniary advantage results as well tapes—a party’s obligation is “to pro- from parental nurture and care, from duce and permit the party seeking dis- physical, moral and intellectual train- covery, or someone acting on his or her ing, and that the loss of those benefits behalf, to inspect, copy, test or photo- may be considered within the calcula- graph” the items produced. This sec- tion of ‘pecuniary injury.’” Here, tion may be satisfied by telling the although the plaintiff testified that the party seeking the discovery where the decedent’s work schedule often kept materials are and providing a reason- him away from home, the decedent able opportunity for that party to look generally spent several hours during at them and make copies; but it is often weekday evenings and entire weekends more convenient, and very common, with his children. The plaintiff also tes- for counsel for the producing party to tified that the decedent was a “wonder- make copies and send them to the other ful dad” who always helped out when- side. Where that is done, it is under- ever he could, and that during the stood that the originals must be avail- years before his death, he taught his able for inspection on request. children to play baseball, read to them, See __ N.Y.3d __, __ N.Y.S.2d __ (2004) [2004 WL and took them to the movies, bowling, 1472621.] ice skating, to the park, to the zoo, and to any place “a child would enjoy.” Such testimony, which was unrefuted, VENUE—OPPOSITION—HEARING established that the decedent played a Where plaintiff controverts defendant’s motion for role in providing the children with nur- change of venue based upon improper venue, the court ture and care, and physical, moral, and should not have granted the motion but ordered a hear- intellectual training. ing to resolve disputed facts: Zygmunt v. Berkowitz, 301 A.D.2d 593, 754 N.Y.S.2d 313 (2d Dep’t 2003).

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 23 State Bar to Present CLE Program on Commercial Litigation

The New York State Bar Association will present a Richard L. Posen, James W. Quinn, Jay G. Safer, Herbert CLE program on Friday, October 22, 2004. The title of M. Wachtell, John L. Warden, Melvyn I. Weiss, and the program is “Advice From More Experts: More Robert F. Wise, Jr. Also speaking will be the following Successful Strategies for Winning Commercial Cases in prominent in-house counsel for major corporations: Federal Courts.” Chester Paul Beach, Jr., Associate General Counsel, United Technologies Corporation; Hannah Berkowitz, This program is the 2004 version of the highly suc- General Counsel-Litigation and Senior Vice President, cessful CLE program on commercial litigation in federal UBS Financial Services Inc.; Lawrence J. Hurley, courts that the New York State Bar Association present- Corporate Counsel, Lucent Technologies, Inc.; ed on October 24, 2003. At this year’s program, an Stephanie A. Middleton, Chief Counsel, Litigation and extraordinary panel of seven distinguished federal Human Resources Law, CIGNA Companies; Mark E. judges, 21 well-known commercial litigators, and six Segall, Senior Vice President and Associate General prominent in-house counsels for major corporations will Counsel, J.P. Morgan Chase & Co.; and Richard H. offer practical advice and strategies for winning busi- Walker, Managing Director and Global General ness and commercial cases in federal courts. The pro- Counsel, Deutsche Bank AG. gram will begin with discussion of the strategic issues involved in forum selection, removal, and transfer as This program is designed for both newly admitted well as in preliminary injunctions and temporary attorneys seeking an overview of business and commer- restraining orders. The next topics will be the effective cial litigation in federal courts and experienced attor- handling of motions to dismiss and for summary judg- neys seeking to refine and update their litigation skills. ment, and class actions. The program includes discus- The program will take place from 9:00 a.m. to 4:30 p.m. sion of discovery of electronic records and of deposition on Friday, October 22, 2004 in the Jury Assembly Room techniques. Also covered will be mediation and arbitra- of the United States Courthouse at 500 Pearl Street in tion, and attorney-client and work-product privileges. downtown Manhattan. Attendees will receive 7.0 MCLE Trial advocacy and the use of expert testimony will be credits. In addition to the New York State Bar Assoc- discussed in detail. The program covers appellate advo- iation, the American Bar Association’s Section of cacy and settlement strategies, and concludes with Litigation is co-sponsoring the program. The program insights into the client’s perspective of business litiga- fee will be $290 for NYSBA and ABA Section of Liti- tion. gation members and $345 for non-members. For reser- vations, call (800) 582-2452 or go to www.nysba.org/ This program will employ an exciting, interactive advice. format. The speakers will focus on strategies and practi- cal advice for maximizing the effectiveness of each All registrants for the program will receive includ- stage of the litigation. In particular, they will discuss ed in the price of their registration a copy of the critical- techniques for advancing a client’s interests as well as ly acclaimed six-volume treatise Business and Commercial potential pitfalls or traps for the unwary. Litigation in Federal Courts. This publication was written by 152 outstanding attorneys and federal judges The program chair is Robert L. Haig of Kelley Drye throughout the United States and provides valuable & Warren LLP in New York City. The speakers include information and tips on how to handle all stages of United States District Judges Naomi Reice Buchwald, commercial cases—from initial assessment, through Miriam Goldman Cedarbaum, Denny Chin, Denise L. pleadings, discovery, motions, trial, and appeal. Great Cote, Victor Marrero, Colleen McMahon, and Shira A. emphasis is placed on strategic considerations specific Scheindlin. Other speakers are the following leading lit- to commercial cases. Sample forms are provided as well igators: Robert M. Abrahams, Jeffrey Barist, James N. as procedural checklists. In addition, there is compre- Benedict, David M. Brodsky, John M. Callagy, Evan A. hensive coverage of 28 areas of substantive law, includ- Davis, Jeremy G. Epstein, Bruce E. Fader, William P. ing strategy, checklists, forms and jury charges. Also Frank, Robert D. Joffe, David Klingsberg, Harvey covered are compensatory and punitive damages and Kurzweil, Gregory A. Markel, William G. McGuinness, other remedies.

24 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 Section Committees & Chairpersons

The Trial Lawyers Section encourages members to participate in its programs and to contact the Section Officers listed on the back page or the Committee Chairs for further information.

Committee on Arbitration and Alternatives to Committee to Preserve and Improve the Jury Dispute Resolution System John P. Connors, Jr. James H. Kerr 766 Castleton Avenue 172 Arnold Drive Staten Island, NY 10310 Kingston, NY 12401 718/442-1700 845/338-2637

Committee on Continuing Legal Education Committee on Products Liability, Construction Arlene Zalayet and Motor Vehicle Law 200 Old Country Road Howard S. Hershenhorn Suite 375 80 Pine Street, 34th Floor Mineola, NY 11501 New York, NY 10005 516/294-4499 212/943-1090

Committee on Internet Coordination Committee on Trial Advocacy Competition Vacant Stephen O’Leary, Jr. 88-14 Sutphin Boulevard Committee on Legal Affairs Jamaica, NY 11435 718/657-5757 Prof. Michael J. Hutter, Jr. 80 New Scotland Avenue John P. Connors, Jr. Albany, NY 12208 766 Castleton Avenue 518/445-2360 Staten Island, NY 10310 718/442-1700 Committee on Legislation John K. Powers Committee on Trial Lawyers Section Digest 39 North Pearl Street, 2nd Floor Steven B. Prystowsky Albany, NY 12207 120 Broadway 518/465-5995 New York, NY 10271 212/964-6611 Committee on Medical Malpractice Thomas P. Valet 113 East 37th Street New York, NY 10016 212/684-1880

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 25 Torts, Insurance and Compensation Law Section and Trial Lawyers Section Annual Dinner Wednesday, January 28, 2004 • Tavern on the Green • New York City Dinner Speaker: Political Consultant James Carville

26 NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 Torts, Insurance and Compensation Law Section and Trial Lawyers Section Annual Meeting Program Thursday, January 29, 2004 New York Marriott Marquis • New York City

NYSBA Trial Lawyers Section Digest | Summer 2004 | No. 49 27 Publication of Articles TRIAL LAWYERS The Digest welcomes the submission of articles of time- SECTION DIGEST ly interest to members of the Section. Articles should be submitted on a 3½" diskette (preferably in WordPerfect or Liaison Microsoft Word) along with two laser-printed originals. Steven B. Prystowsky Please submit articles to Steven B. Prystowsky, Esq., 120 120 Broadway Broadway, New York, N.Y. 10271. New York, NY 10271 Contributors Unless stated to the contrary, all published articles Jonathan A. Dachs and materials represent the views of the author(s) only 250 Old Country Road and should not be regarded as representing the views of Mineola, NY 11501 the Section officers, Executive Committee or Section mem- Harry Steinberg bers or substantive approval of the contents therein. 120 Broadway New York, NY 10271 Section Officers Chair John P. Connors, Jr. 766 Castleton Avenue Staten Island, NY 10310 718/442-1700 Vice-Chair John K. Powers 39 North Pearl Street, 2nd Floor Albany, NY 12207 Visit Us 518/465-5995 Secretary on Our Stephen O’Leary, Jr. 88-14 Sutphin Boulevard Web Site: Jamaica, NY 11435 718/657-5757 www.nysba.org/trial Treasurer David S. Howe 1500 MONY Tower Syracuse, NY 13202 315/471-3151 The Digest is published for members of the Trial Lawyers Section of the New York State Bar Association. Members of the Section receive a subscription free of charge.

©2004 by the New York State Bar Association. ISSN 1530-3985

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