Chop, Chop, Chop: Property Line Dispute Gets Expensive

In his great American poem, “Mending Fences,” Robert Frost wrote that “Good fences make good neighbors.” Well said. However, much litigation has been spawned by disputes between neighbors about who owns the fence, hedges or tree line between two properties or where one property begins and the other ends.

What happens when one neighbor cuts down the hedges or trees of a neighbor in error? Can the offended neighbor require the other to replace a mature tree with another of equal size no matter what costs? In other words, what is the standard for damages where the property is of no “peculiar value” to its owner and the defendant acted without malintent?

In Mosteller v. Naiman, plaintiff was an absentee landlord whose property was separated from his neighbor’s by a chain link fence and a row of six mature trees. The defendant neighbor contracted with a landscaper to remove the trees much to the consternation of plaintiff who promptly commissioned a survey to determine who actually owned the denuded trees. After confirming that he owned the trees, plaintiff sued his neighbor seeking the replacement value of replacing the trees, one of which was about $130,000.

In a triumph of common sense and good judgment, the New Jersey Appellate Division held that the customary measure of damages for injury to land is the diminution of the value of the property because of the damage, in this case, the wrongful removal of the trees. This ruling was critical, limiting plaintiff to about $20,000 in diminution of value as compared to about $440,000 to replace the trees and restore the property to its prior condition.

If you have any questions or comments about this post, please contact Paul at

http://pdf.wcmlaw.com/pdf/mosteller.pdf

Risk of Falling Masonry Subject to 240 Claim

A New York motion court has held that falling masonry and other structural components, unsecured as a part of demolition work, is not an inherent or ordinary risk of the workplace and is therefore covered by the Labor Law §240(1) statute.

In Castro v. JK USA Group, Inc., (19396/08), plaintiff, a demolition worker who was in the process of dismantling a wall by striking cement blocks with a hammer, allegedly sustained injuries when a co-worker ”hit something” that caused a cement block to fall on plaintiff’s left hand. Kings County Justice Jack Battaglia held that defendants are not entitled to a dismissal of Labor Law §240(1) claims on the grounds that the falling objects were not being hoisted or secured at the time they fell and there was a minimal height difference between where the brick was situated and where it struck the plaintiff.

The court added that defendants failed to establish that the cement block did not “require securing for the purposes of the undertaking” or that there was any protective device designed to catch the cement blocks as the wall was being dismantled. Rulings such as these continue to expand the scope of strict liability Labor Law claims owner defendants face in New York.

Special thanks to Chris O’Leary for this post. If you have any questions or comments, please email Paul at

http://www.law.com/jsp/nylj/CaseDecisionNY.jsp?id=1202475940334

Too Sexy for Bank = Bank Dress Code?

You might have followed the story about the Citibank employee who claimed that she was fired for being “too sexy” — http://abclocal.go.com/wabc/story?section=news/local&id=7525073 She is now pursuing her legal options. Perhaps in direct response to this problem UBS has just announced a bank dress code — http://views.washingtonpost.com/leadership/post_leadership/2010/12/ubs-bank-dress-code.html?hpid=topnews. The code is quite specific and details such things as hair coloring (okay for women (so long as the roots don’t show), but not okay for men (because it makes them look old) and what types of food are acceptable to eat at lunch (avoid garlic and onions). While the policy no doubt was well-intended, it seems certain that some type of discrimination claim will arise from its publication and/or enforcement.

If you would like more information about this post or WCM’s employment practice, please contact Paul Clark at or Bob Cosgrove at .

NJ Court: Dogs Aren’t People

Under New Jersey law, a party can recover damages for emotional distress when they witness the death of a loved one. However, a New Jersey appellate court recently held that such a claim does not apply when the loved one is a dog.

In McDougal v. Lamm, plaintiff described in detail the attachment she had for Angel, a “maltipoo”, including the fact that she and Angel lived in their home alone and slept in the same bed. Plaintiff was understandably upset when she witnessed Angel mauled and killed by the defendant’s larger dog.

But the trial court held plaintiff was only entitled to $5,000, the replacement value of the dog. The Appellate Division affirmed the decision, looking to other areas of New Jersey law where the loss of a pet’s life was not compensable in the same way as a person. The Court also found that the judiciary enacted other statutes to deter dog owners from allowing their pets to run loose. In the end, it found that it should be up to the Supreme Court or Legislature to extend such relief.

If you would love more information about this post, please email .

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20NJCO%2020101210327.xml&docbase=CSLWAR3-2007-CURR

Failure to Prevent Bullying = Liability for Discrimination?

Last week New Jersey legislators passed an “Anti-Bullying Bill of Rights.” The bill revised the 2002 New Jersey law on harassment, intimidation, and bullying in public schools. According to one legislator, the Bill “makes it clear that preventing and responding to incidents of harassment, intimidation and bullying are not optional.” Rather the Bill sets forth specific protocols for investigating, reporting and training necessary to deal with bullying. The question for schools and courts to consider going forward is whether implementation of the protocols and/or the failure to do so, will render the schools liable in discrimination suits commenced by/on behalf of the bullied students.

Thanks to Cheryl Fuchs for her contribution to this post.

http://www.nj.com/news/index.ssf/2010/11/nj_legislature_sends_anti-bull.html

http://www.njleg.state.nj.us/2010/Bills/A3500/3466_S1.PDF

The Anti-Bullying Bill is now law — http://www.nj.com/news/index.ssf/2011/01/nj_gov_christie_approves_tough.html While it does not provide a private cause of action, the question is — will plaintiff’s counsel attempt to use evidence of its violation as evidence of negligence in a personal suit against a school where bullying takes place? I think the safe answer is “yes” and we shall have to see how successful such endeavors are.

The full teeth of the anti-bullying law in NJ are bared this school year. Thisarticle explores how schools are coping with it. We’ll see what happens when the first incidents of bullying inevitably occur this first school week of the year.

1st Dep’t: An Erased Hard Drive Can Give Rise to Adverse Inference Against Defendant

In Ahroner v Israel Discount Bank of N.Y., the trial court granted the plaintiff an adverse inference instruction with respect to e-mails on the defendant’s erased hard drive. The Appellate Division affirmed the decision, stating that spoliation sanctions were properly granted. The evidence demonstrated that defendants controlled hard drive, were aware of their obligation to preserve it, and were subsequently directed by the court to do so. Defendants informed the court that they would comply with their obligations and would produce the hard drive for inspection by a forensic expert. However, the hard drive was erased before plaintiff was able to inspect it. Although the record was unclear as to when the hard drive was erased or whether it was preserved, the court concluded that since the drive was destroyed either intentionally or as the result of gross negligence, the court properly drew an inference as to the relevance of the e-mails stored on the drive.

Special thanks to Bill Kirrane for his contributions to this post.

http://www.nycourts.gov/reporter/3dseries/2010/2010_09013.htm

Form Over Substance? Not in NY.

In Ruffin v. Lion Corp., New York’s Court of Appeals held that a defect in the service of a summons and complaint related to the residence of the process server is a mere technicality that does not render service ineffective and does not raise any jurisdiction questions — http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08767.htm

Plaintiff was injured in a December 2000 bus accident, and brought a suit in New York against the bus driver and bus company, headquartered in Pennsylvania. Plaintiff effectuated service through a process server who resided in Pennsylvania. The defendant bus company failed to respond to the summons and complaint, and plaintiff obtained a default judgment, and the trial court awarded $450,000 at an inquest. Two years later, the bus company moved to vacate the default on the grounds that the process server was not a New York resident, so plaintiff never obtained proper jurisdiction over the bus company. Plaintiff pointed out that CPLR 2001 allows courts to disregard technical defects in the filing process, but the defendant bus company argued that the process server’s residency was a jurisdiction issue that could not be overlooked pursuant to CPLR 2001.

The trial court denied the motion, the Appellate Division reversed and granted the motion, and the Court of Appeals reversed again, denying the motion. The court held that the process server’s residence was a technical defect that did not raise jurisdiction questions because the server’s residency had no effect on the likelihood that the defendant bus company would have received actual notice of the lawsuit. It further held that although CPLR 2001 explicitly excused mistakes in the “filing” process, there was nothing to suggest that the legislature intended to treat mistakes in “service” any differently, and the broad language of the statute allowed for such a result.

Special thanks to Alex Niederman for his contributions to this post. If you would like more information, please contact Bob Cosgrove at .

Excluded or Not Covered? That is the Question

New York Insurance Law §3420(d)(2), which requires written notice of coverage denials “as soon as is reasonably possible,” has vexed the insurance industry. Courts have ruled that delays as short as 30 days violate the statute’s reasonableness standard. A failure to give timely notice results in a waiver of the potential coverage defense.

But what happens if the occurrence giving rise to the claim is not covered at all under the policy form? Does late notice stymie the insurers ability to avoid a defense and indemnity obligation? Recently, the Second Circuit took up that issue in NGM Insurance Company v. Blakely Pumping, Inc., 593 F.3d 150 (2010). There, relying on the “auto” exclusion to a business owner’s policy, NGM disclaimed coverage to a company executive who crashed his pickup truck into plaintiff’s car.

After publication of the disclaimer, the executive reminded NGM that the policy contained an endorsement extending coverage for the use of a “Hired Auto” or “Non-Owned Auto.” With that pushback, NGM issued a supplemental disclaimer, contending that the executive’s personal pickup was neither a “Hired Auto” nor a “Non-Owned Auto.”

The trial court ruled that NGM had waived its right to disclaim coverage because, on the known facts, it had violated Insurance Law § 3420 (d)(2). But the Second Circuit, following Zappone v. Home Insurance Co., 55 N.Y.2d 131 (1982), determined that Insurance Law §3420(d)(2) applies only when the denial of liability is based upon an exclusion in the policy which, without the exclusion, would provide coverage. Then, the court determined that the definitions of “Hired Auto” and “Non-Owned Auto” did not qualify as exclusions, and thus held that NGM had not waived its right to assert that its policy did not cover the auto accident.

The question of what constitutes an “exclusion” is often fact sensitive. But the critical distinction between an exclusion and an occurrence that is simply not covered must be kept in mind when facing the jeopardy of “late notice” in New York.

If you would like more information about this decision, please contact Dennis Wade.

http://caselaw.findlaw.com/us-2nd-circuit/1506043.html

Pay Attention To Your Expert Reports

In Kharzis v. PV Holding Corp., et al., the plaintiff-passenger sustained injuries in a motor vehicle collision involving a car owned by the defendants. The defendants moved for and were granted summary judgment on the basis that the plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102(d). The Second Department subsequently reversed the trial court’s decision, citing the defendants’ neurological expert report that concluded that the plaintiff sustained sprains of the lumbar and cervical spine, as well as significant limitations in range of motion, casually related to the underlying accident. Thus, the sufficiency or lack thereof of the plaintiff’s opposition made no difference; indeed, the defendants’ very own expert attributed serious injuries, within the meaning of the Insurance Law, that warranted denial of the summary judgment motion.

Thanks to Lora Gleicher for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08901.htm

“Wet Floor” Signs and Mats May Not Be Proof of Notice

In Snauffer v. 1177 Ave of the Americas LP, Plaintiff suffered personal injuries after slipping and falling on a wet floor in his office building. Defendant moved for and was granted summary judgment after claiming it had no actual or constructive notice of the dangerous condition. Plaintiff appealed, arguing that it was a rainy day, and that defendants had mats out and signs up in other portions of the building thus proving defendants had notice of the conditions.

The First Department agreed with the trial court, finding that the signs and mats were out as a safety precaution and not in response to complaints about a dangerous condition where plaintiff fell. Moreover, the First Department discounted the affidavits of plaintiff’s co-worker and expert on the grounds that neither had stated the date which their observations were made. As such, the First Department affirmed unanimously.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08773.htm