In Rozmyslowicz v. Keyspan Generation, LLC, the plaintiff, an employee of an asbestos removal company, was assigned to construct a wooden tunnel through which workers would pass on their way to a “mobile decontamination unit.” While trying to climb atop the decontamination unit, the plaintiff fell and was injured. He brought an action based upon a violation of Labor Law § 240(1), for failure to provide proper safety devices. At trial, the jury concluded that the defendant had not failed to provide the plaintiff with proper protection from height-related risks. After trial, the plaintiff moved to set aside the verdict as against the weight of the evidence. His motion was denied at the trial level and again on appeal. The appellate court held that the jury could have rationally and fairly concluded that the plaintiff’s assigned task neither required, nor contemplated, that he climb onto the roof of the decontamination unit, and, further, that the equipment he was provided was adequate to the task he was assigned.

Thanks to Cheryl Fuchs for her contribution to this post.

http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D22240.pdf

The “forced sale” by the Nazis of art owned by Jewish dealers and collectors is once again in the legal news. In Schoeps v. The Andrew Lloyd Webber Art Foundation (Appellate Division, First Department, August 11, 2009), the court addressed a rather routine procedural question: Whether plaintiff had standing to pursue recovery of Picasso’s “Absinthe Drinker” without first becoming appointed a representative of the estate of the original owner. The appellate court decided that Schoeps did indeed lack standing to bring the action, and thus affirmed dismissal of the complaint.

But the underlying facts are fascinating and likely will re-surface in the very near future. In 1935, Paul von Mendelssohn-Bartholody, a German-Jewish banker, was forced to sell a valuable Picasso to a German art dealer. According to Julius Schoeps, a great-nephew of Bartholody and one of the heirs to the Bartholody estate, Bartholody was compelled to sell the painting under duress resulting from Nazi persecution. Schoeps claimed — albeit without written proof — that all of the Bartholody heirs had assigned their rights to him in respect of the Picasso.

As such, Schoeps brought an action against The Andrew Lloyd Webber Art Foundation, as the current owner of the artwork. The foundation bought the painting in 1995 in an open auction by Sotheby’s in New York. The disputed claim to ownership came to light when the Foundation sought to sell the painting at a November 8, 2006 auction at Christie’s in New York. Ultimately, because of the controversy, the Foundation withdrew the painting from the Christie’s auction and returned it to London.

The sole issue before the court was whether Schoeps could bring the action to challenge ownership without first being appointed a representative. In ruling for the Foundation on the “standing” issue, the court made plain that its decision rested on Schoeps’ failure to establish by expert evidence or otherwise that he had the right to bring the action. As the court stated: “Clearly, we do not seek to limit the manner by which a foreign legal representative can establish standing; our decision is limited to the holding that merely being vested with title at the time of the decedent’s death is insufficient grounds for permitting a party to pursue a claim in this jurisdiction.”

http://www.nycourts.gov/reporter/3dseries/2009/2009_06155.htm

On November 1, 2003, Julio Cesar Severino (Severino) and Yavalier Rodriguez (Rodriguez) drove to Jersey City in a 1980 Toyota owned by Severino’s fiancé, Viviana Muniz (Muniz). Severino and Rodriguez exited the vehicle and were struck by an automobile. Severino and Rodriguez died as a result of injuries sustained in the accident.

Severino’s estate filed these actions in the trial court and asserted various claims for underinsured motorist (UIM) and personal injury protection (PIP) benefits under an insurance policy covering the Muniz vehicle. The trial court found that Severino was not entitled to coverage under the Muniz policy as a “named insured,” but that plaintiffs were nevertheless entitled to UIM and PIP benefits because, at the time of the accident, Severino and Rodriguez were “occupying” the Muniz vehicle. Defendants appealed.

The Appellate Division concluded that plaintiffs were not entitled to UIM or PIP benefits under the Muniz policy because Severino was not a “named insured” under the policy, and because Severino and Rodriguez were not “occupying” the covered vehicle at the time of the accident.

Thanks to Sheila Osei for her contributions to this post!

http://www.judiciary.state.nj.us/opinions/a0248-07a0299-07.pdf

In Seymour v. Life Care Retirement Communities, Inc., the decedent owned a residential unit and storage garage at a retirement community. Plaintiffs (the decedents’ children) alleged that representatives of the retirement community entered their father’s storage unit subsequent to his death and discarded his personal property. Plaintiffs further alleged that the retirement community failed to provide them with notice that its representatives would be entering the storage facility. They therefore asserted claims for conversion and intentional infliction of emotional distress, and sought both compensatory and punitive damages.

The retirement community moved to dismiss plaintiffs’ emotional distress claim as well as plaintiffs’ claim for punitive damages.

The United States District Court, Western District of Pennsylvania, denied the defendant’s motion in its entirety. In its opinion, the court stated that it could find no edict in Pennsylvania law precluding a claim for the intentional infliction of emotional distress based upon the fact that only personal property was damaged. The court stated that the merits of plaintiff’s claim for intentional infliction of emotional distress depended on the facts of the case and the state of mind of the retirement community’s representatives at the time they discarded the decedent’s belongings.

With regard to the plaintiffs’ claim for punitive damages, the court held that the plaintiffs sufficiently alleged that the conduct of the retirement community’s representatives was outrageous, reckless and/or wanton and caused them great emotional distress. As such, based upon the pleadings, the court held that it could not grant the defendant’s motion as to plaintiffs’ claim for punitive damages.

Thanks to Brad Thelander for his contributions to this post!

http://www.palawweekly.com/printarticle.aspx?ID=29705

In the case of Owens v. Freeman, plaintiffs commenced an action in New York for breach of contract against defendant, last known to be a New Jersey resident. Plaintiffs were unable to serve the summons and complaint until 130 days after commencement, when process was served pursuant to CPLR 308(2) at defendant’s last known address in New Jersey. A month later, after defendants failed to appear in the action, plaintiffs moved for and were granted a nunc pro tunc extension of time for service, thus making service of process on defendant timely. Plaintiffs then moved for a default judgment that the court granted. Two months later, defendant moved to vacate the default judgment pursuant to CPLR 317 and 5015(a) (1) and (4), stating that he was not subject to the court’s jurisdiction and that he had a meritorious defense. The Supreme Court denied defendant’s motion. He appealed to the Third Department.

The Third Department held that defendant’s contention that the court lacked jurisdiction to enter a default against him was without merit. Defendant argued that the court erred in granting the plaintiffs an extension of time for service. The court noted that defendant did not move to vacate the extension of time, nor did he request leave to appeal. Further, the court stated that defendant did not allege either that plaintiff lacked good cause for the delay and/or that defendant was prejudiced by the delay in service of process.

Defendant next argued that he was not subject to the court’s jurisdiction under New York’s long-arm statute. The Third Department disagreed. Citing CPLR 302(a)(1) the court noted that personal jurisdiction may be obtained over a nondomiciliary “who in person, or through an agent…transacts any business within the state or contracts anywhere to supply goods or services in the state.” The court held that because defendant’s agent negotiated the material terms of the contract with plaintiff in New York, defendant was subject to the state’s jurisdiction under the long-arm statute.

Finally, the Third Department held that an uncorroborated denial that service of process was completed was insufficient to dispute the process server’s affidavit that service had been completed on defendant’s wife. Because defendant offered no other excuse for his default, the Third Department found that his arguments lacked merit, and thus affirmed trial court’s entry of default.

Thanks to Alison Weintraub for her contributions to this post!

http://decisions.courts.state.ny.us/ad3/Decisions/2009/506405.pdf

In Nussbaum Diamonds, LLC v. Hanover Insurance Co., 2009 NY Slip Op 05982 (July 28, 2009), Plaintiff had a $4M policy with defendant that included “all risk” coverage up to $500,000 for losses occurring outside the premises when jewels were entrusted to a named individual. The policy contained a “mysterious disappearance” exclusion limiting coverage to $250,000 less the $10,000 deductible.

While on a sales trip, a named individual discovered that he lost plaintiff’s jewels somewhere along the route. Defendant disclaimed the full $500,000 coverage, citing the “mysterious disappearance” exclusion, but agreed to pay $240,000 ($250,000 less the deductible).

Plaintiff commenced an action for breach of contract and moved for summary judgment, contending that it was entitled to full $500,000 “all risk” coverage. The lower court denied the motion for full coverage, but granted partial summary judgment to the extent of $240,000. On plaintiff’s appeal, the Appellate Division, First Department, affirmed.

The Court stated that under an “all risk” policy, plaintiff must demonstrate: 1) the existence of a valid all risk policy; 2) an insurable interest in the subject of the policy; and 3) fortuitous loss of covered property. Although the Court found that the plaintiff met this burden, it also found that defendant raised issues of fact regarding the events preceding the loss, thus meeting its burden under the “mysterious disappearance” clause that there was no plausible explanation for the loss of the jewels.

Thanks to Robin Green for her contributions to this post!

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05982.htm

At the time of his June death, Michael Jackson was about to embark on a final comeback tour in London. As is typical for such high profile concerts, contingency risk insurance was procured through the London market. The Policy excluded from coverage “any loss directly or indirectly arising out of, contributed to, by or resulting from . . . the illegal possession or illicit taking of drugs and their effects.” It appears that the Policy does not define the terms “illegal possession” or “illicit drugs.” It has been widely reported that Michael Jackson’s death resulted, in whole or in part, from his use of a cocktail of prescription medications. The questions Lloyd’s will have to face are: (a) was Jackson lawfully in possession of the medications; and (b) was his use (i.e. taking of them) illicit? Some $18,000,000 in insurance coverage rests in the answers. One thing is for sure — it’s certain to be an insurance “Thriller.”

http://www.latimes.com/news/local/la-me-jackson-insurance7-2009aug07,0,5290158.story?track=rss

In Fischel v. Zarkowky, the defendants, based in Rockland County, New York moved to change venue of the action from Kings County to Rockland County. Plaintiff designated Kings County as the venue for the action based on his residence.

In support of their motion, the defendants produced copies of internet telephone directories indicating that the plaintiff had two phone numbers listed in Rockland County. Moreover, a Kings County phone directory search yielded no listings for the plaintiff. The defendants also submitted a certified copy of the Rockland County Board of Elections Registration report indicating that the plaintiff resided in Rockland County. The plaintiff voted in Rockland County every year since 1994.

In opposition the plaintiff submitted an affidavit stating he had been a Kings County resident prior to commencing the action and a copy of his driver’s license issued prior to commencement of the action, which listed his Kings County address.

The court held that self-serving affidavits are insufficient to establish residence at the time the action was commenced. While the plaintiff submitted a driver license, he did not submit any other documents evidencing his Kings County residence, such as a lease, tax returns or bills. Therefore, venue was improper in Kings County and the case was transferred to Rockland County.

Thanks to Maju Varghese for his contribution to this post.

Although known as the “Garden State,” New Jersey is also home to many riding schools, stables and horse farms. It has the Meadowlands Racetrack, Monmouth Park Racetrack and Freehold Raceway just to name a few. Not surprisingly, New Jersey has a statute limiting the liability of the operators of equine activities. Many experienced operators supplement these statutory protections by requiring participants to sign detailed release and waiver forms to protect the operator from any claims for bodily injury.

Can a release provide protection beyond those provided by statute? In other words, may a release protect an operator from risks that are specifically beyond the scope of immunities provided by New Jersey’s Equine Activities Liability Act? According to Hubner v. Spring Valley Equestrian Center, the answer is “no.” In Hubner, plaintiff was injured when her horse tripped over training poles embedded in the the floor of defendant’s barn. Two issues confronted the appellate court. First, did the statute protect the equine operator under these circumstances? Second, if not, did the release signed by plaintiff release the defendant from liability?

The court decided that the statute did not apply under the facts presented in Hubner. But, more importantly, the court invalidated the release as a violation of public policy. It reasoned that the legislature set forth the circumstances under which an equine operator would be entitled to immunity for claims arising out of equine activities. Thus, the enforcement of the release in a scenario where the operator is not entitled to statutory immunity would undermine “the balance of risks and costs” made by the legislature in the Equine Activities Liability Act.

http://www.judiciary.state.nj.us/opinions/a4723-07.pdf

In Levin v. United Skates of America, Justice Kramer of Supreme Court, Kings County denied summary judgment to the owner of a skating rink in a suit brought by the parents of a child who was injured when he attempted to skate under a barricade that partially blocked an entrance to the rink. Defendants argued that the child’s injuries were the result of a risk the child assumed by skating at the rink. The court rejected this argument and held that the placement of the barricade was not a normal risk associated with skating.

Indeed the court ruled that the barricade presented a “near irresistible challange” to youngsters who wanted to show off their skating prowess. The court held that questions of fact existed as to whether the child, eight years old at the time of the injury, appreciated the risk such that it could be determined that he assumed the risk of possible injury.