Although New York has been fortunate to escape the path of a catastrophic hurricane in recent years, the state’s Insurance Department is taking measures to prepare itself for such a disaster. New York is contemplating a plan that would require insurers to fund a pool that would cover claims from disasters such as hurricanes. In addition, insurance companies soon may not be permitted to apply a special deductible for wind damage unless a hurricane actually makes landfall in New York.
These actions come as a result of increased volatility in the market for property insurance in New York, including some insurers dropping coverage to those customers most vulnerable to storm damage.
In the wake of Hurricane Andrew in 1993, Florida created a similar catastrophe fund which is financed by premiums charged to insurers, investment earnings and emergency assessment. New York ranks second only to Florida in the amount of insured coastal property in the United States.
During jury selection, litigants are permitted a certain number of “peremptory challenges” which allow them to reject a potential juror without cause or explanation. The United States Supreme Court, however, held in Batson v. Kentucky that an attorney cannot exercise such a challenge in a manner that discriminates against potential jurors due to their race, gender or ethnic background.
Recently, in People v. Robar, a judge in upstate New York said that, pursuant to Batson, an attorney could not use peremptory challenges to systematically excluded hunters. During a hunting incident, Robar shot another hunter with his high-powered rifle, and was charged with assault and reckless endangerment.
During jury selection, Robar’s attorney used six of ten challenges on hunters. The Court found that hunters were “a class of people recognized by law” who are licensed “to bear arms,” pursuant to the Second Amendment but were “systematically excluded.”
We doubt this decision will stand, as an appellate court is likely to agree with defense counsel’s arguments that hunters are not a cognizable class under Batson and that hunting is a hobby that is not protected in the same manner as race or gender. We’ll keep you posted.
Please contact Mike Bono at if you would like more information about this post.
Pursuant to CPLR 5003(a), defendants have 21 days from the plaintiff’s tender of a release and stipulation of discontinuance to pay the proceeds of a settlement. If the defendant fails to timely pay the settlement the plaintiff can enter judgment entitling him or her to recover interest, costs and disbursements. In Klee v. America’s Best Bottling Co., a pedestrian knock down case, the plaintiff settled his claims for $400,000 and promptly mailed a release and stipulation of discontinuance to the defendant. The closing papers were accompanied by a cover letter disclosing the plaintiff’s tax identification number, but not a completed W-9 form. The defendant requested the form, but the plaintiff failed to provide it.
Because the plaintiff did not comply with defense counsel’s request, the settlement proceeds were not paid within 21 days. Once the 21 days lapsed, the plaintiff entered judgment and the defendant subsequently moved to vacate the judgment, arguing that the Internal Revenue Code requires that the plaintiff provide a W-9. The lower court vacated the judgment. On appeal, however, the Appellate Division, Second Department reversed, holding that the plaintiff fulfilled his obligations under CPLR 5003(a) by tendering a release and stipulation of discontinuance and further held that there is no statutory authority that makes submission of a completed W-9 a condition precedent for payment of the sum due in settlement of a personal injury claim.
I note that the Appellate Division, First Department, reached a different conclusion in Cely v O’Brien & Kreitzberg , 45 AD3d 368.
Thanks to Ed Lomena for his contribution to this submission.
In Maldonado v. City of New York, the plaintiff tripped and fell over a tree branch that was laying on the ground of a picnic area within Prospect Park in Brooklyn. The City moved for summary judgment arguing that the branch was open and obvious and not an inherently dangerous or defective condition. Plaintiff opposed the motion by arguing that while a condition may be open and obvious, it does not obviate the defendant’s duty, but merely creates a question of comparative negligence for a jury. In citing a prior decision, the court stated, “landowners will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.” Here, plaintiff testified that though she did not see the branch she tripped over, “we were surrounded by trees so you could see branches scattered around.” Accordingly, the court granted the City’s motion holding that the branch, like the others scattered around, was “inherent or incidental to the nature of the property such that its presence could have been reasonably anticipated by the party using it.”
Thanks to Cheryl Fuchs for her contribution to this post.
In Sweeny v. Riverbay Corp., the First Department reversed the lower court’s order that granted the defendant’s motion for summary judgment. The plaintiff tripped and fell over a garden hose that had been placed across the sidewalk in front of a building that the defendant managed. Although the evidence established that the hose was an open and obvious hazard, the First Department held that there remained a question as to whether the defendant breached its duty to maintain the premises in a reasonably safe condition. Specifically, the record established that the hose might have been left on the sidewalk for a long enough period of time to establish notice. Thus, even if a condition is open and obvious, a defendant still has a duty to remove and/or remedy the condition once placed on notice of the hazard.
Thanks to Lora Gleicher for her contribution to this submission.
Technology often times comes slow to the legal process. Many courtrooms are not wired for wi-fi and do not have the capability to project documents or digital images. To say that there are very few “smart” courtrooms is an understatement. Yet slow, incremental changes are coming. Many attorneys bring their own technology to the courthouse through the use of laptops at depositions and trials to access and publish documents. Smartboards and ELMOs are now part of a sophisticated attorney’s arsenal. Rather than carting around thousands of documents, the use of a “thumb” drive or the internet can put the services of the attorney’s office at her fingertips.
How far can an attorney go in using available technology in the courtroom during a trial? is it proper to “google” prospective jurors while sitting at counsel table during the court’s questioning of the jury panel? What if only one attorney has brought an internet enabled laptop while the other is using an old fashioned legal pad?
In New Jersey, absent a specific court rule, an attorney is free to “google” prospective jurors according to a recent unpublished Appellate Division decision. In Carino v. Muenzen, the defense attorney objected that his adversary appeared to be “googling” jurors during the voir dire process. When questioned by the judge, the attorney readily admitted his activities but protested that there were no rules prohibiting such conduct. In response, the trial judge directed that the attorney cease his “googling” in the courtroom, relying on a vague sense that there was an “unlevel playing field” because one attorney had a laptop while the other did not. The jury eventually rendered a defense verdict and the plaintiff appealed.
The Appellate Division held that there was nothing improper about “googling” a prospective juror during the jury selection process. The courthouse had a wireless internet connection that was accessible to the public for about 1 year before the trial, which was equally available to both sides. The court rules did not address the issue and there was no written requirement that parties seek prior approval of their intent to use the internet. Accordingly, the Appellate Division held that the trial court’s order was erroneous.
Sometimes, you can win the battle but lose the war. The Appellate Division also found that although the trial judge was wrong in ordering the plaintiff’s attorney to close his laptop, the error was harmless. The jury verdict of “no cause’ was affirmed and the case dismissed.
If you have any questions or comments about this post, please email Paul at
One of the constant issues a carrier must face is whether, by issuing a ROR, it has granted the insured the right to choose its own counsel. In the case of Eckman v. Erie Ins., a Pennsylvania trial court was confronted with just this issue — http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1202470836794. In Eckman, the carrier assigned defense counsel to represent Eckman in a defamation lawsuit (under a ROR) while it investigated coverage. The Eckmans objected and argued that the ROR created a conflict of interest between themselves, assigned defense counsel and the carrier. They argued that the ROR entitled them to choose their own counsel at Erie’s expense. The court rejected this plea. It held that in the absence of an actual conflict of interest, the Eckmans were not entitled to choose their own attorney since the assigned defense counsel (under PA’s rules of professional responsibility) was ethically bound to exclusively advocate on behalf of the insured client.
If you have any questions about this post, please contact Bob Cosgrove at .
In Chabad of Mid-Hudson Val. v. City of Poughkeepsie, a menorah display on the street corner in front of a privately owned building was the center of a constitutional lawsuit. The street corner location had been historic, however, in 2007, the City told plaintiffs they would have to move their menorah to a City-owned public lot. Plaintiffs sued under 42 USC §1983, claiming that the City’s conduct violated the Establishment Clause of the First Amendment of the United States Constitution. After the suit was commenced, a group of intervenors claimed that the use of the City’s labor and materials as well as municipal funds to set up the menorah display was a violation of the Establishment Clause, and as such the original complaint should be dismissed.
After a decision largely in favor of the plaintiffs, dismissing the intervenors contentions and ordering both the City and plaintiffs to appear for a conference to develop a uniform policy for all of the City holiday displays, the intervenors appealed. The Second Department, upon conducting an Establishment Clause analysis found, again, in favor of the Plaintiffs in that the display on the street corner against the backdrop of a privately owned large building did not send any message to a reasonable observer that the government was endorsing one particular religion. Rather the court considered that there were Christmas wreaths, lights and displays all over the downtown area, as well as a Christmas tree on the same block as the Menorah. The court described the scene as a celebration of religious diversity during the holiday season, rather than government endorsement of any particular religion. However, the Appellate Division did find, consistent with the intervenors contentions, that the City workers’ labor and the use of municipal funding toward the menorah display was a violation of the Establishment Clause.
Thanks to Alison Weintraub for her contribution to this post and Happy New Year to all those celebrating.
Ansel Adams is one of the most well-known American nature photographers — http://en.wikipedia.org/wiki/Ansel_Adams . Original works by him are thus quite valuable. It was thus quite exciting when Rick Norsigian bought a box of negatives at a California garage sale for $45 and, through the assistance of experts, was able to authenticate the negatives as original Adams’s works with a value of more than $200,000,000. Robert Moeller III was the lead expert who authenticated the find.
Now, just as the prints are about to go on sale, Moeller has changed his mind — http://www.nytimes.com/2010/08/31/arts/design/31adams.html?ref=arts. He no longer believes that the works are Adams, but rather are the works of Earl Brooks, an unheralded photographer. Since the $200,000,000 valuation is nowhere close to the value of Brooks’s originals – a Brooks negative might sell for $25 whereas an Adams negative might fetch $7,500 – the authenticity dispute is only likely to increase. It should make for an interesting diminution in value claim if a loss ever results!
If you have any questions about this post, please contact Bob Cosgrove at .
Typically, employees are barred form pursuing legal action against their employer, and must instead seek redress under the Workers’ Compensation Act. However, there are certain types of conduct between the employer and employee which render the Worker’s Compension Act void. Specifically, employees can take legal action against their employer for an “intentional wrong”, a term which has typically been interpreted quite narrowly by the courts. The Court has now grappled with the proof required for an “intentional wrong.”
In the case of Kenneth Van Dunk , Sr. and Deborah Van Dunk vs. Reckson Associates, et al., the Court articulated a two-prong test that must be satisfied before an employee can file a lawsuit against their employer. First, the employer must know that his actions are substantially certain to result in injury or death to the employee; and second, the resulting injury and the circumstances of its infliction on the worker must be more than a fact of life of industrial employment, and plainly beyond anything the legislature intended the worker’s compensation act to immunize.
The plaintiff in the subject case, Kenneth Van Dunk, was injured on a construction site when a twenty foot trench collapsed on him. Plaintiff was one of six individuals that was installing fabric upon the bottom of the trench. Significantly, a supervisor ordered plaintiff to enter the trench, which eventually caved in. Afterwards, OSHA Investigators found the collapse to be a “willful violation” of federal safety regulations. The Appellate Court found that the circumstances of the case met the above-referenced two-prong test, and thus the case was remanded to the lower court for further proceedings.
Special thanks to Heather Aquino for her contributions to this post. If you have any questions, please contact Bob Cosgrove at .
