In the recent case of McGough v. Leslie, the Second Department ruled that the children of artist Alfred Leslie may not have their artwork back. The children commenced an action in both conversion and replevin against their father, whom they claimed previously gifted some of his artworks to them. Defendant Leslie countered that the claim was time barred, and the lower court disagreed. The appellate court, reversing the lower court held the claim was in fact time barred under the law of simple conversion.

The Second Department held that this was not a case of replevin, but one of simple conversion. Relying on the Court of Appeals decision in State of New York v. Seventh Regiment Fund, the Second Department held that the statute of limitations for bringing an action sounding in conversion had already expired. The court stated: “The Seventh Regiment Fund Court reversed this Court, remitted the case to Supreme Court, and held that: ‘Supreme Court must determine upon remittal whether the Fund was a bona fide purchaser. If so, the State’s claim will have accrued only after demand and refusal. If not, or if demand would have been futile, the claim will have accrued when the Fund actually interfered with the State’s property” (98 NY2d at 261).’”

Analogizing this claim to that of the plaintiffs in Seventh Regiment Fund, the court found that there had been interference by defendant to his children’s property since 1991. Despite pleadings by his children and ex-wife to turn over the artwork, defendant never did. The court stated that the claims are time-barred by more than a decade and dismissed plaintiffs’ complaint in its entirety.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06385.htm

A fan with good seats near third base at the Brooklyn Cyclones ballpark was injured when a player was horsing around on the field before the game and lost control of his bat, which sailed into the stands and hit the plaintiff in the nose. The plaintiff conceded that he assumed the risk of flying balls and bats during the game but took issue with being struck before the game when players were just warming up/horsing around. The court dismissed the case, ruling that the risk of such a pre-game injury is assumed by spectators equally with similar in-game risks. The negligent player, a 44th round pick in 2002, now works as a salesman for a medical supply company.

In Butterfield v. Lucas Electric, the appellate division affirmed the dismissal of plaintiff’s claim for emotional distress arising out of her observing her 16 month old son falling into a 10 foot deep hole dug by the defendant. The boy was extricated from the hole 12 minutes later and was determined to have superficial abrasions and contusions only. The Court agreed that plaintiff had failed to prove ” the death or serious physical injury of another” to establish a claim for negligent infliction of emotional distress. Further, plaintiff failed to prove a “reasonable fear of her owm immediate personal injury ” to establish a claim for bystander emotional distress.

http://www.judiciary.state.nj.us/opinions/a1568-08.pdf

In Brady v. Pulgar, the defendant appealed from a $12M verdict alleging in part that the trial court improperly barred the defense neurological expert from referring to the opinions of several non-testifying physicians who had concluded that the plaintiff was malingering. The Appellate Division held that because the defense expert had not relied on the diagnosis of malingering made by the other physicians, had not made the diagnosis in his own report and had testified at a deposition that he had not made any determination as to malingering, the trial court properly granted plaintiff’s motion in limine preventing him from testifying about the opinions of the non-testifying experts.

http://www.judiciary.state.nj.us/opinions/a4858-06.pdf