New York

Make Sure Your Expert Backs Up Their Findings (NY)

In Augustus v. Negron, 2022 NY Slip Op 06255 (2nd Dep’t, Nov 9, 2022), plaintiff brought suit after a motor vehicle accident. Pursuant to New York State Insurance Law, a plaintiff has to establish that he/she suffered a serious injury pursuant to Insurance Law § 5102(d). A failure to do so in motor vehicle accident means the plaintiff would not be able to sustain a lawsuit in New York. After...Read More

Let’s Go To The Videotape-Plaintiff’s Case Dismissed Because Testimony Doesn’t Match The Video Camera Tape (NY)

In Batista v. Metropolitan Transp. Auth., 2022 NY Slip Op 06419 (1st Dept. 2022), plaintiff sued the MTA alleging that he made a left-hand turn in front of a bus, which collided with his rear bumper. Plaintiff testified that the bus was “halfway down the block when he started to make his left-hand turn.”  However, plaintiff’s testimony contradicted the bus driver’s testimony and the video...Read More

Sanctions Or A Slap-On-The-Wrist? (NY)

In Castillo v. Charles (2022 NY Slip Op 06103), an action to recover damages for personal injuries, the Appellate Division Second Department, department modified the lower courts order striking the plaintiff’s pleadings, as it was “too drastic of a remedy”  (see Turiano v. Schwaber, 180 AD3d 950, 952; see also Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 211). Here, plaintiff...Read More

Does The Homeowners Exemption Under The Labor Law Extend To A Detached Garage On A Separate Lot? (NY)

New York Labor Law Sections 240 and 241 give workers the right to sue for construction accidents and can impose strict liability on contractors and property owners who violate these sections. Both sections contain exemptions for “owners of one and two-family dwellings who contract for but do not direct or control the work.” In Rendon v. Callaghan, the Appellate Division, Second Department...Read More

A Tale Of Two Transit Authorities: Relation Back Doctrine Found Not to Apply Where Defendants Were Not United In Interest

In New York, a claim asserted against a new defendant will “relate back” to the date of the original claim if plaintiff establishes that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that the...Read More

On The Fence: Jury To Decide Whether A Makeshift Fence Is An Open And Obvious Or Dangerous Condition (NY)

It is well settled in New York that while an owner of real property has a duty to maintain a reasonably safe premises, it has no duty to protect or warn against open and obvious conditions that are not inherently dangerous. Whether a condition is dangerous or defective is generally an issue of fact for the jury. In Crowley v. 585 Route 25A Holding LLC., Suffolk County Supreme Court addressed...Read More

Can A Verdict Render An Appeal Moot? (NY)

In a noteworthy decision, the Court of Appeals recently held that where a triable issue of fact is litigated and a final verdict reached, that issue of fact is rendered moot on pending appeal.  Meaning, if 1) a party moves for summary judgment on liability, 2) that motion is denied, 3) the movant appeals that decision, and 4) a trial verdict decides liability before the appeal is heard, that...Read More

A Lift Is Not A Safety Device In NY Labor Law

In Carlson v. Tappan Zee Constructions, LLC., et al. Index No. 58719/2019, the Hon. Damaris E. Torrent denied a plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1). Plaintiff was working on an aerial boom lift attached to a barge when the wakes of two passing boats had caused the barge to rock. As a result, the lift platform swung and crashed into a...Read More

Court Dismisses Defamation Suit Stemming From Negative Google Review (NY)

This past week, in DeRicco v Maidman, the First Department of the Appellate Division of the Supreme Court of New York reversed a trial court decision that denied a defendant patient’s motion to dismiss an orthodontist’s defamation claims against them.  The claims were brought by the orthodontist and his professional corporation against the patient and his parents after the parents posted an...Read More

NY High Court Upholds “Best Interest” Standard of Care for Insurance Producers

Finally, some clarity. A unanimous New York high court decided this week to uphold the Suitability and Best Interests in Life Insurance and Annuity Transactions Amendment to Insurance Regulation 187. The Department of Financial Services (DFS) in 2018 added this amendment because of concerns that the increasing complexity involved in purchasing annuities and life insurance made consumers more...Read More