New York Injury Attorney Blog

New York Appellate Division, Second Department: DeChico v. Northern Westchester Hospital Center et. al.

Gianluca DeChico was born with schizencephaly, “a rare and sever congenital brain defect.” On her own behalf and on behalf of her child, Gianluco’s mother sued all involved with her prenatal care for the “extraordinary costs of the child’s medical care,” basing her case on the failure of her health care providers 1) to fully explain the implications of prenatal sonograms showing a ventricle defect on one side of the baby’s brain, 2) to conduct further tests, and 3) to fully advise mom about the abortion option.

Defendants moved to dismiss. The lower court denied their motion for summary judgment. Defendants appealed.

The Appellate Division reversed and dismissed the case against movants. As the court observed, “It is well settled that no cause of action may be maintained on behalf of an infant plaintiff for wrongful life, ‘i.e., that he or she would never have been born but for the negligence of the defendant…” Accordingly, that part of the child’s action which sounded in wrongful had to be dismissed. A child cannot sue for being born, no matter what his condition. The child can, however, sue for injuries or conditions caused as a result of medical negligence. In this case, however, based on the time line and the allegations made, “any negligence on the part of the defendants did not proximately cause the complained-of damages.”

While the court would not recognize the child’s claim for wrongful life, it acknowledged a cause of action on the mother’s behalf for the costs to be incurred in raising a child with a disability (wrongful expenses rather than wrongful life). In order to prevail on such a claim, mom had to prove a duty owed, breach of that duty, and that the breach caused the injuries, i.e., she had to show medical negligence (malpractice) which deprived her of the opportunity to avoid incurring such expenses. Mom’s argument was that those expenses would have been avoided by an abortion. But even this argument had it limitations. According to the court, she had to show that the doctors denied her the opportunity to terminate her pregnancy “within the legally permissible time period or that the child would not have been conceived but for the defendants’ malpractice.” That, she could not do.

Nothing the doctors did caused the condition. No other tests would have changed the outcome. And the advice given was sufficient, particularly in light of New York’s Criminal Code. As the court observed:

It is undisputed that at the time of the April 21, 2004, ultrasound, the gestation period was 27 weeks and six days, plus or minus 18 days (i.e. at least 25 weeks). Pursuant to Penal Law § 125.05, it is unlawful for a physician, pregnant woman, or other person to terminate a pregnancy after the twenty-fourth week of gestation, unless necessary to preserve the life of the mother.

Given when the condition was discovered, how far along the pregnancy was and the proscriptions of New York’s abortion law, “any negligence by the defendants in connection with treatment, testing, or advice after the April 21, 2004 ultrasound cannot be said to have proximately caused the complained-of injuries, namely, the continuation of the pregnancy and birth of the child.” Movant’s did what they had to do. They did not have to send mom out of state for an abortion or even tell her late term abortions were available elsewhere. They are judged by the standard of care in New York where abortion was not an option this late in the pregnancy and doctors could not be faulted for failing to circumvent New York’s legislative constraints by sending mom elsewhere.

Sometimes life can be cruel and the negligence of others can cause grievous injury. Other times life can be cruel and mysterious: bad things just seem to happen. In the latter case, the courts are grossly inadequate to unravel the mystery and set things right. Perhaps the biblical writers of old said it best and offer the only solace available:

As you do not know the path of the wind,
or how the body is formed in a mother's womb,
so you cannot understand the work of God,
the Maker of all things.

Ecclesiastes 11:5

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Posted In: Damages , Medical Malpractice , New York State Courts

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New York State Appellate Division, Second Department: McCabe v. Dutchess County

The rule in New York is that a child cannot sue his or her parents for damages resulting from negligent supervision. Kids always have accidents growing up. It’s part of life, not part of litigation. What about suing a foster parent? And suing the Department of Social services for placing you with the foster parent who was in charge when you got hurt?

According to the Second Department, the answer is the same: No can do.

Taylor Harris is the biological mother of 6 year old Jacob Harris. The mom had a drug problem. At birth, Jacob was found to have cocaine, opiates, marijuana and methadone in his urine. The hospital contacted Social Services and the child was placed in foster care with Diane Sherwood, one of the defendants to this action. About 16 months later, while living in the Sherwood home, Jacob climbed out of his “sleeping accommodation onto an adjacent dresser and fell to the floor.” Taylor regained custody soon thereafter and, ever the vigilant mom, commenced this action for money damages on the child’s behalf.

Sherwood and Dutchess County both moved for summary judgment. The lower court denied their motions. Both appealed.

Relying on Holodook v. Spencer, the Court of Appeals decision that held a child could not sue his folks for negligent supervision, the Second Department reversed and dismissed the case. As the high court observed in Holodook, “We can conceive a few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example,” but, “[i]f the instant negligent supervision claims were allowed, it would be the rare parent who could not conceivably be called to account in the courts for his conduct towards his child…” Loosely translated: Kids get hurt, even when raised by the most diligent parents. Such accidents are not actionable.

“These same considerations apply to foster parents,” the McCabe court said, and “[w]e decline to impose such a heavy burden on foster parents.” To do so would discourage qualified and much needed individuals from becoming foster parents in the first instance, and would open the door to retaliatory suits brought by disgruntled biological parents or by difficult foster children.

Similarly, the Department of Social Services can hardly be held responsible for the type of accident that can happen in any home, even if it results in serious injury. Only when there's “sufficiently specific knowledge or notice of the dangerous conduct which caused the injury,” can the foster care agency be held liable.

The actions by Ms. Harris were dismissed.

If this had gone the other way, one wonders whether young Jacob Harris could have filed suit against mother Taylor Harris for the drug problem he was born with, the injury which landed him in foster care to begin with. Ms. Taylor may not have thought her course of action all the way through to its logical end, but there might have been some measure of justice had her son obtained a judgment against her.

The victory here goes to common sense. Unmitigated gall takes the loss. And along the way, the court fosters a new appreciation for how difficult it is to raise kids, no matter who's taken on the job.

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Posted In: Damages , Injuries , Minors , New York State Courts , Strange but True

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New York State Appellate Division, 3rd Department: Detraglia v. Grant

Cell phones continue to make law. Last month we looked to Ohio where the court concluded it is a crime to destroy the cell phone of someone calling authorities for assistance in an emergency where life or property are at risk. So how does New York view cell phone records after there’s been property damage and injury as a result of an auto accident.

Robert Grant was driving a company car owned by Hawkeye, his employer. His vehicle collided with defendant Detraglia’s car. Stephanie Detraglia, an infant passenger, was injured and brought this action against both drivers. Demand was made that defendants Grant and Hawkeye “produce billing records for all three of Grant’s cellular telephones and the Verizon wireless air card for his company-issued laptop computer for the date of the accident between 12:00 PM and 4:00 PM” (the accident happened at 2:57 PM). Defendants refused to comply. A motion to compel discovery followed.

Although Grant testified at deposition that he wasn’t using his cell phone or lap top at the time of the accident and that the lap top was secure in a bag, the tow truck driver at the scene submitted an affidavit stating that “he saw the laptop on the vehicle’s computer desk, with the screen flipped up and turned on” indicating recent use. That raised enough of an issue for the lower court to order defendants to turn over the records. Grant and Hawkeye appealed.

The Appellate Division agreed with the lower court, finding that “conflicting evidence raised questions as to whether Grant used any technological devices while driving, rendering the records relevant to the question of his negligence.” The court narrowed the window of discovery of such records to 2:30 PM to 3:30 PM and directed that the court do an in camera review first to protect privacy interests. If it turns out Grant was on the phone or on the computer at the time of the accident, he might have to hang up his defense.

Given how easy it is while driving to use a cell phone to text, get or send emails, surf the web, watch videos, and even make phone calls, such technological distractions are as likely to cause an accident as glancing at a map on the passenger seat or speeding through an intersection. Obtaining the details of a driver’s phone use seems fair game when trying to figure out what caused an accident. In fact, given the ubiquitous use of cell phones and the tendency of people to leave out important facts while being questioned under oath, it would seem that discovery of such records should be a matter of routine, denials of use notwithstanding. One suspects phone record discovery in accidents is well on the way to becoming the law of the land.

The Appellate Division's use of in camera inspection to limit intrusion into the individual's phone or lap top stored data and contacts is entirely in keeping with the value we place on our right to privacy. In Ohio v. Smith, an unrelated case decided the same week, that state’s high court ruled that there is a “high expectation of privacy in a cell phone’s content” particularly because they are “capable of storing tremendous amounts of private data.” Under the circumstances, “an officer may not conduct a search of a cell phone’s contents incident to a lawful arrest without first obtaining a warrant.” In Smith’s case, looking at who he called (supposed drug dealers he was negotiating with) at the time of the crime without first obtaining a warrant, and introducing such evidence at the time of trial, violated his Fourth Amendment right to be free from unlawful search and seizure. Absent exigent circumstances which require an immediate search of phone records for the safety of law-enforcement officers, a warrant is required.

Used to be you were entitled to one phone call when charged with a crime. Nowadays, a valid warrant to search your one cell phone could be your downfall.

And in a civil action, if the evidence of phone use at the time of the accident is in there, it could turn out to be the ultimate collect call, at least for the plaintiff seeking money damages.

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Posted In: Auto Accidents , Brave New World , Crime and Punishment , Evidence , New York State Courts , Other State Courts

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New York State Court of Claims: DePaula v. State

Like they say on TV, don’t try this at home if you’re not a professional.

Claimant is an attorney. He was a little late for Civil Court in Queens, having missed the first call of the calendar. Like many of us, he had a few cases on in court that morning. While sitting in the back of the crowded courtroom as the judge conferenced cases at the bench, his cell phone rang. Unfortunately, it was not set on vibrate. After less than a half minute of talk, he was approached by a court officer.

Rather than admonish Mr. DePaula, the officer confiscated his phone. As irritating as that may have been, he also advised the busy barrister that he could “get the phone back at about 1:00 PM” when court was in recess. Apparently, they really take the turn-off-your-cell-phone rules seriously in Civil Queens.

There is some discrepancy about what happened next: Attorney DePaula says that while he waited for his case to be called, the officer walked toward him. The officer claims that after he took the phone and was attending to his courtroom duties, DePaula was “staring at him” before he walked over. Both sides agree that when the officer approached, he told DePaula “you should know better.” In response, the attorney admits saying, “You’re just being a prick ” (by which he meant to convey that the officer was a “contemptible, disagreeable, obnoxious person”), while the officer claimed Depaula said, “in a loud nasty tone: ‘You know something, you’re a prick’” (which he treated as a “disruption” of the court proceedings taking place), whereupon DePaula was asked, but refused, to leave the courtroom. Both do agree, however, that DePaula was immediately arrested, handcuffed, removed from the courtroom and confined in a security office in the courthouse, giving new meaning to the term call waiting.

After fifteen or twenty minutes handcuffed incommunicado in the cooler, the officer returned. The cuffs were removed, the cell phone returned and a summons for disorderly conduct was issued. DePaula pleaded not guilty, went to trial on the discon charge, and was acquitted. He then sued in the Court of Claims for False Arrest and Malicious Prosecution.

According to the Court of Claims, “the elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.” When there’s an arrest without warrant, the burden shifts to the defendant to “establish that the arrest was privileged,” thus validating a charge of disorderly conduct under Penal Law §240.20 (3). As it turns out, the court officer had a wrong number, and the arrest was held not to be privileged.

As the court politely put it, “however reprehensible the utterance Mr. DePaula chose to make, in a courtroom and addressed to a Court Officer, the statement alone did not, as a matter of law, amount to disorderly conduct. The law is well settled that the mere use of 'abusive or obscene language' in a public place does not constitute a violation of Penal law §240.20 (3),” as the Court of Appeals has already held. As for the claim of malicious prosecution, the court did not find the requisite “actual malice” and so dismissed that count. A hearing on damages was scheduled to follow.

It’s reassuring to know that the breakdown of civility in our society has transcended the streets, giving us all the right to speak our mind to whomever we want wherever we are, even within the hallowed halls of justice. That’s probably a good thing legally (and maybe it’s an inroad of sorts into the constraints of political correctness), but culturally it may leave something to be desired.

Still, if you’re going to speak your mind, be prepared to put in the time. Your rights often come at a cost. And sometimes, especially when it involves going to court, the cost is billed by the hour. Which is why such bold speech is probably best left to the professionals.

Just ask Mr. DePaula. But ask him nicely.

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Posted In: Crime and Punishment , Culture War , It's My Right! , New York State Courts , Speech

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New York State Court of Appeals: People v. Buchanan

It was Mr. Bumble in Charles Dickens’ Oliver Twist who first said “the law is an ass” after he was told “the law supposes that your wife acts under your direction.” His point was plain: reality and the law frequently don’t see eye to eye.

There are times when courts make rulings based on constitutional law, state law or even some ethereal philosophy that causes us to raise an eyebrow rather than see the point. Perhaps this is such a case.

As the dissent describes him, defendant Ingvue Buchanan was “a man in his thirties who apparently stands more than 6 feet tall and weighs over 300 pounds.” Defendant was accused of murdering a 14-year-old girl by strangling her. He was tried before a jury and convicted of second degree murder (the highest count chargeable in New York State).

Buchanan appealed and the case made its way to New York’s highest court. The basis for the appeal: the trial judge made Mr. Buchanan wear a stun belt during trial. It is a form of electrical restraint that “can deliver a shock should there be a problem.” The stun belt was worn beneath defendant’s clothes, and unlike shackles, could not be seen by the jury.

At trial, the judge told defendant Buchanan he was requiring him to wear the device as a matter of policy because of the seriousness of the charges against him. Defendant personally objected, telling the court “I have done nothing to warrant this." While the trial judge did not disagree with defendant, he still required him to wear the belt “in the interest of being overly cautious for security.” Seemingly not unreasonable given defendant’s size and the charges against him.

After a day of trial, Buchanan complained that the device was “uncomfortable.” So the court had it examined. Then the next day, out of an abundance of caution and judicial sensitivity, the judge obtained a report confirming that there was no medical reason that would prevent Buchanan from wearing the belt. And so he wore it through the duration of the trial and the guilty verdict rendered, with no shock ever having been administered, except, perhaps, to the parents of the murdered 14 year old.

Anyway, defendant argued that the stun belt “deprived him of due process of law” under both the US Constitution and state law because the US Supreme Court has held that “the Due Process Clause prohibits a state from confining a defendant in ‘visible shackles’ during a criminal trial, unless a ‘special need,’ based on facts specific to the case is shown.” The prosecutors argued that unlike shackles which can be seen, no one saw the stun belt and no jurors knew about it, so there could be no violation of defendant’s rights.

In its infinite wisdom, New York’s highest court concluded that it need not reach the constitutional issue since “as a matter of New York law...it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason.” Since the stun belt was a matter of the trial judge’s “policy,” and not a stated finding with respect to this defendant’s need for potential restraints, a new trial was ordered.

Simply put, a 6 foot 300 pound man accused of strangling a 14-year-old girl had his conviction overturned because he had to wear a hidden restraining device that was never activated and never administered a shock.

It’s hard to know how to process this decision, but some perspective is warranted: Is wearing the device so offensive—like making a man wear women’s underwear—that it’s even more offensive than a 300 pound man strangling a 14-year-old child, as the jury concluded? Does such an insult to Mr. Buchanan’s sensitivities warrant having his conviction reversed? Does due process under state law guarantee a defendant the right to be free from any inconvenience or precaution beyond confinement? Or are our sensibilities so exaggerated in these politically correct times that defendant’s offendedness from being made to wear the device actually outweighs the offense of murder?

As the lone dissent put it: “Defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that defendant has shown any actual prejudice, I would affirm his conviction.”

So would most people. But the law is what the law is.

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Posted In: Brave New World , Crime and Punishment , It's My Right! , New York State Courts , Strange but True

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Niagara County Court, New York: People v. Ryan S. Smith

Tasers electrified the nation last year with the famous, “Don’t tase me, bro” incident out of the University of Florida. The device is back in another story that is electrifying court watchers.

Defendant Ryan Smith was a suspect in a kidnapping and an armed robbery. DNA evidence had been obtained from a can of soda the kidnapper had helped himself to during the course of the crime. Through good detective work and a series of procedural moves, the DA’s office had a court order to take a buccal swab for DNA from the defendant’s mouth, obtained and lost the sample, then applied for and received a second order to do it again.

Defendant declined to submit to the swab when cops approached him on the street, so they took him to police headquarters. Detectives tried to convince defendant to cooperate but Smith “firmly and obstinately objected to submitting to the authority of the Order. He said he had already given a sample and that they would have to ‘tase’ him to get another swab.”

Wrong thing to say.

The detective on the case called and conferred with the ADA in charge, who approved the use of necessary “minimum force” to obtain the sample. Considering their options, the cops ruled out holding the defendant down and forcing his mouth open, believing it potentially injurious to defendant and risky for them. So they set their taser on stun (“drive stun,” the least powerful setting) and asked Smith to reconsider. They told him it would be unpleasant, but he refused to allow them to take a swab. They told him they didn’t want to hurt him. He still refused. And after a final warning and refusal, they tasered as needed (four seconds), recorded the proceeding and got their swab. They then arrested Smith for Obstructing Governmental Administration (as if he didn’t have enough problems).

Citing cases which authorize the use of reasonable force in other circumstances, the court ruled that no Constitutional prohibitions were violated by use of the taser to obtain the swab. This was reasonable force (even if during their pre-taser conference with the DA’s office detectives neglected to mention that they were considering using the device). Now had the taser been used to cause pain to obtain the desired result, this would have drifted into unlawful use of torture. But as the court stated, “The defendant was forewarned, steps were taken to limit his risk of injury, and the device was used one time for a brief burst. There was no lasting damage or injury.”

For the court, defendant amped up the problem and was shocked by the solution.

As the court noted,

This case is perhaps best described as the “perfect storm” where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion required was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was not malice or desire to injure the defendant.

Accordingly, defendant’s motion to suppress was denied and the People could use the evidence obtained from the swab.

A stunning decision which will no doubt cause sparks to fly all over the political spectrum.

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Posted In: Brave New World , Crime and Punishment , Evidence , New York State Courts , Strange but True

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Supreme Court, New York County: Schoneboom v. B.B. King Blues Club

What do Kill Your Idols, Sub Zero and the Crumb Suckers have in common? They were all heavy metal bands (no offense to the bands if they take issue with the court’s characterization) playing B.B. King’s on August 3, 2006. Mr. Schoneboom was a big-bad-band fan. For him, you’re never too old for a little “slam dancing,” the more “aggressive” form of the ever-popular and intimate “moshing.” 36-year-old Schoneboom was a veteran of the slam-dance two step, having attended more than a hundred concerts where he frolicked in the mosh pits at least thirty to forty times.

The events in question took place during the Crumb Suckers set (in case you were wondering).

The night had begun pleasant enough. While Kill Your Idols was performing, plaintiff went to the lower level to get a better view of the slam dancing going on. A “good time” was being had by all as the fans bounced around off each other in a kinetic frenzy of fun and fisticuffs. After the set, plaintiff returned to his seat in the upper level, away from mosh central. Then Sub Zero came on. As Schoneboom describes it, the slam dancing now seemed “quite a bit more malicious.” Dancers were throwing themselves into non-participants, elbows were being thrown and celebrants were "taking potshots at perimeter people.” For this set, plaintiff remained in the demilitarized zone of the upper level.

But when the Crumb Suckers were about to come on, Schoneboom threw caution to the wind. He found his way to a spot 10 -12 feet from stage, directly in front of the moshkateers. At seven minutes into the performance, plaintiff “felt a shove from behind into the side of his knee which felt like a kick,” but didn’t see which mosher had mashed him. Plaintiff ended up with a knee injury and surgery. He then sued B.B. King’s.

Much to his dismay, the court slam-danced Schoneboom right out of court.

“If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed his duty” to exercise reasonable care. This is a longstanding rule of law that applies to all sorts of activities, including ball games, horseback riding and even samba dancing.

Schoneboom staked out his turf near the stage and the mosh pit only moments after having observed the more “malicious” slam-dancing that occurred when Sub Zero was performing. “Here, plaintiff not only elected to assume the risk of concert-going in a mosh dancing venue but was in the position, given his experience, to fully appreciate the risk.”

As for the injury, that he did not appreciate.

For Schoneboom court was a bust and there would be no dancing for dollars.

Case dismissed.

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Posted In: Culture War , Injuries , It's My Right! , New York State Courts

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Supreme Court, New York County: Sugarman v. Equinox Holdings, Inc.

For all the Gym-rats out there who prefer the health club to the basement or your building's own work-out room, rider beware.

Plaintiff Stuart Sugarman is a Spin Class enthusiast. His indoor cycling regimen brought him regularly to the Equinox Gym in the Wall Street area downtown. For the uninitiated, and if we take Mr. Sugarman at his word, spinners customarily like to cheer and shout during the class to pump up their psyche along with their sprocket. It was during one of these classes that Sugarman’s cheering got under the skin of fellow spinner Christopher Carter. Apparently, Mr. Carter was either having a bad day or he thought it bad form by the whooping Mr. Sugarman to disturb his peddling peace.

Carter first took it directly to Sugarman by yelling and cursing at him. When that diplomatic approach failed to dampen Sugarman’s enthusiasm, Carter dismounted and complained to the instructor about the boisterous biker. The instructor declined to intervene. This was followed by more yelling and cursing by Carter (who must have thought the first round of peace talks was too insubstantial to be effective), which was followed by even more enthusiastic cheering and shouting by Sugarman. Having apparently concluded that their conflict was at a stalemate, Carter “got off his bike again and ‘picked up the front of plaintiff’s cycle with plaintiff upon the unit and pushed him into the wall of the classroom leaving a hole in the sheetrock,’” injuring Sugarman’s back and neck and leaving him prone in the no-spin zone.

Sugarman sued and filed criminal charges against Carter. In the criminal case, Carter coasted and beat the rap. His civil case for damages is still pending. The same can no longer be said about the case of negligence against the Equinox Health Club.

Equinox moved for summary judgment to dismiss Sugarman’s case, claiming, among other things, that Equinox could not be held responsible for Carter’s violent outburst. Sugarman opposed. According to Sugarman the club failed to intercede at the argument stage and failed to remove Carter when he showed aggressive tendencies just before his “spin rage” occurred. It also failed to call the cops or EMS and was otherwise negligent in the way it ran the club, as demonstrated by Carter’s cycle sneak attack. But there in lies the rub.

In an unusually lengthy and involved decision, the court dismissed the case against Equinox. In order to hold the club responsible for Carter’s assault, it had to have notice that he had criminal tendencies, a pattern of criminal behavior or what the court considered a clue that an attack was imminent. The problem with making such a finding, however, was that plaintiff himself never feared for his safety or was ever intimidated by Carter, as demonstrated by Sugarman’s remonstrative good cheer in response to Carter’s vituperations. As the court observed, “Plaintiff’s own testimony fails to establish that even plaintiff foresaw the alleged assault by Mr. Carter.” So how could the club be responsible?

The court went on to find that “verbal tirades” don’t put the club on notice of a potential physical assault, that “heated words” without more don’t put the club on notice and that the exchange of jeers for cheers never rose to the level of dispute or argument, which might have created liability for the gym. According to the court, nothing that happened between Sugarman and Carter gave warning of the impending attack (which is a stretch in New York, since merely looking at someone the wrong way can get you killed). Under the circumstances, Equinox was not liable.

As for not calling the police or EMS at Sugarman’s request, the court observed the general rule that, “from time immemorial our courts have held that there is no legal responsibility to do so.” Well that’s a relief.

And as for the claim that Equinox negligently hired an instructor who failed to intervene before words turned to action, the same lack of notice that these exchanges were about to erupt into violence applies to the instructor, which means Equinox is off the hook on this theory as well.

No matter how you spin this case, Sugarman is not left with much to shout about. We’ll see if Carter steers clear of liability when he rides into court, or whether the ebullient Mr. Surgarman will finally get to salute Carter with a Bronx Cheer of victory.

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Posted In: Damages , Evidence , Injuries , New York State Courts , Speech , Strange but True

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New York Supreme Court: Bossy v. Camelback

Solicitation Plus. It sounds like what brought down the former governor of New York. It's not quite as juicy, but without it, your New York case against a foreign corporation with a website on the net goes nowhere.

Why is this important? It depends how you use the internet.

In this case, Evan Bossy was injured when he skied into an unpadded pole on the beginner trail at Camelback, a ski resort located in Pennsylvania. Evan’s parents brought suit in New York on Evan’s behalf, suing Camelback for negligence.

Camelback moved to dismiss the case, claiming it could not be sued in New York because the court had no personal jurisdiction over this out-of-state corporation. Camelback runs a ski resort in Pennsylvania. It is not a New York corporation (any business incorporated outside of New York is a foreign corporation). It has no employees or offices in New York, was not negligent in New York and does not transact business in New York.

It does, however, have a website. Plaintiffs claim that Camelback is always “doing business” in New York “by virtue of its constant presence here through its interactive website” where skiers can book reservations and purchase lift tickets on line. Moreover, Camelback “solicits” New York customers by “placement of advertising flyers in New York retail ski shops.”

The question is whether this is enough business to be considered doing business as that is defined by New York law. According to the court, it’s not enough and it dismissed the case. An interactive website alone will not give you jurisdiction over a foreign corporation. You need more. You need “the presences of traditional indicia of doing business” or substantial and continuous solicitation...coupled with financial and commercial dealings or other activities of substance in New York,” i.e., solicitation plus.

Even if the court treated Camelback's interactive website as a constant solicitation, absent other factors such as engagement in financial or commercial dealing or other activities of substance in New York, such cyber-office-space does not meet the solicitation plus threshold which would confer jurisdiction on this foreign corporation. Under the circumstances, proper venue would either be Federal Court or Pennsylvania.

So back in New York, case dismissed. Such is the result of applying Flintstone rules to Jetson-age problems. One suspects the state legislature and the higher courts will eventually have to sort through all the nuances of cyber commerce, but until then these matters will be resolved on a website by website basis.

What does that mean for web browsers and shoppers in the Empire State? The home page may get the home court advantage if there’s a problem on line. And it means buyer beware when you add to your cart.

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Posted In: Damages , Injuries , New York State Courts , The Internet

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Supreme Court of the State of New York, Appellate Division, Second Department: State Farm v. Langan

In politics you have to “follow the money” to figure out why some laws pass and others don’t. In automobile accidents, you have to figure out if there’s insurance coverage to compensate the injured party. That’s especially tricky if the car is a murder weapon.

On February 12, 2008 Neil Spicehandler was struck and fatally injured by a car driven by Ronald Popadich. Popadich was on a murderous spree which included killing a neighbor, shooting a cabbie, attempting and then succeeding in running down a pedestrian, namely, the late Mr. Spicehandler. In September 2005 Popadich pleaded guilty to second degree murder.

The guilty verdict presented a tough issue for John Langan, Administrator of the Estate of Mr. Spicehandler. How can you collect in a civil suit from a driver who intends to kill the victim? Intentional criminal acts are not covered by automobile insurance. Accidents are. Since this was no accident, there was no way to collect from any policy issued for the murderous driver’s vehicle. So Langan looked to his own State Farm auto policy, which he claimed covered Spicehandler in two ways. State Farm, in turn, sued to have the case dismissed and to free it from any financial responsibility under Langan’s auto policy since this was murder, plain and simple.

Maybe not so plain or simple. First, the court agreed that Spicehandler’s Estate could not collect under the uninsured motorist endorsement of Langan’s policy. The uninsured motorist endorsement (of the injured party’s insurance policy) provides coverage for a person when the offending car has either no insurance or limited insurance; it then kicks in as if it were the coverage for the other car, or it kicks in to provide additional coverage above what the other car carried. As the court said, since Popadich couldn’t have coverage for his intentional act of murder, “it follows, then, that, because no coverage would have been provided under a standard automobile liability policy issued to Papadich, State Farm is not obligated to provide benefits under the uninsured motorist endorsement of its policy with Langan.”

So State Farm is clear? Not quite.

Langan pointed to his State Farm policy’s “mandatory personal injury protection endorsement and its death, dismemberment, and loss of sight provisions” and said this was still an accident as that’s defined in his policy and State Farm had to pay. The court agreed.

Even though Mr. Spicehandler was murdered, an intentional act from the viewpoint of the murderer, from the viewpoint of the one murdered “the event was ‘unexpected, unusual and unforeseen’ and not brought about by the insured’s own ‘misconduct, provocation or assault.’” And it was the covered individual’s perspective that governed. Without a specific exclusion for injury or death caused by an intentional act in the State Farm Policy, the insurance company was on the hook and obligated to provide benefits because murder or not, Mr.Spicehandler didn't see death coming.

The old TV show was called Murder, She Wrote. For the Insurance carrier, unless it writes an exclusion for murder, the events are seen from the victim’s eyes, and one thing everyone can agree on is that from the victim’s perspective, murder is “unexpected, unusual and unforeseen.”

One suspects that to State Farm Insurance this decision was also “unexpected, unusual and unforeseen” and that it never knew it was going to get murdered in court.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Auto Accidents , Damages , Injuries , New York State Courts , Wrongful Death

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Appellate Term, First Department: Taylor v. New York University Medical Center (NYUMC) et. al.

In 1994, Mark Taylor’s secret was out big time. A book published that year— Leonard Bernstein by Humphrey Burton—detailed his intimate relationship with the late composer of West Side Story fame. It was very juicy stuff for the office. As the court put it, plaintiff became the hot topic at the water cooler. Two years later he was fired as Director of External Affairs for NYUMC.

Unfortunately for Mr. Taylor, juicy gossip does not a discrimination suit make and his Civil Court award in the amount of $1.4 million (the trial court had already reduced the $2 million jury verdict) was reversed and his case dismissed.

Plaintiff claimed that one of the bosses, defendant Peter Ferrara, had an “anti-gay” animus and that he was responsible for the decision to fire him. While plaintiff showed that there was “no love lost” between the two men and that he had filed a complaint about Ferrara in 1995 for some off-color comment he made (which resulted in counseling for Ferrara), Mr. Taylor still failed to prove discrimination.

According to the court, Mr. Taylor was not fired because he was gay. Defendants showed that terminating Mr. Taylor was the end result of an ongoing budgetary and reorganization process, neither of which was a pretext for plaintiff’s discharge. Once the defendants showed the firing was a legitimate business decision, it became Mr. Taylor’s burden to prove that discrimination was their real motive and that “their business decisions would not have been made but for a discriminatory motive.”

As the court also noted, “mere personality conflicts must not be mistaken for unlawful discrimination” and being openly gay (or famously gay by being outed in print) does not insulate the employee from legitimate business decisions that result in his termination. It was not enough for Mr. Taylor to believe he was fired because he was gay; he had to have the proof. The Appellate Term said he came up short, particularly since it turned out defendant Ferrara had nothing to do with the decision to fire him. Taylor's case was dismissed.

In West Side Story, Leonard Bernstein’s Jets put it this way: “You're never alone, You're never disconnected! You're home with your own: When company's expected, You're well protected!” Like it or not, New York is an “at will” employment state. When the ax falls—as long as it falls for legitimate business reasons—you are alone and you’re completely unprotected, and neither skin color, sexual preference, age nor religion will buy you job security. Get fired for the wrong reasons, however, and Riff, the leader of the Jet’s said it best: “We challenge you to a rumble. All out, once and for all.”

You don’t have to be the same as everyone else at work, or even be liked or understood. That’s the stuff of gossip. But if you do your job, you can’t be fired because you’re different. That’s the stuff of discrimination and something worth fighting about, "all out, once and for all."

Posted by Mark A. Eskenazi | Permalink | Email This Post | Comments (0)

Posted In: Employment Discrimination , Homosexuality , New York State Courts

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New York Supreme Court: Smith v. Walsh-Smith

It's a brave new world and YouTube is at the cutting edge. From the same computer you download directions or songs for your iPod, you can upload and stream videos to a worldwide audience. Now that's power! And possible trouble. Tricia Walsh-Smith is a case in point.

Tricia married Philip Smith, a man 25 years her senior. Philip started out as a theater usher and ended up president of the Shubert Organization, "the largest theater owner and operator in the United States." Notwithstanding his success, Mr. Smith is a very private man. Apparently, Mrs. Walsh-Smith had issues about the terms of their prenuptial agreement and about her husband's unwillingness to invest $250,000 in her theatrical production. Without his money, the show would not go on. These issues ripened into heated arguments, flying crockery and threats by the missus to malign Mr. Smith in the New York Post. True to her word, the Post got the dirt on Mr. S. As a result, he filed for divorce on the grounds of cruel and inhuman treatment.

She sued him back. She also availed herself to some self-help. Not satisfied that she was mustering the necessary leverage to obtain a favorable outcome or an out-of-court settlement to her liking, the angry wife took her beef to the internet. Having come to appreciate the value of a good production, she brought a film crew into the marital apartment, added music and subtitles, and trashed her husband on video. She then posted it on YouTube, which turned out to be her big break. The video was an "overnight sensation" and has been viewed more than three million times.

Fame has its cost, however. It is no easy task to prove cruel and inhuman treatment in divorce court, but Mrs. Walsh-Smith's internet histrionics gave Mr. Smith all the proof he needed. As the court stated, "He has been publically humiliated and embarrassed to an unprecedented extent." Mrs. Walsh-Smith claimed "she had no other option" because of her finances. The judge was not moved, noting that other spouses have been similarly challenged without resorting to the internet, and concluded that "it is hard to say defendant had no other choice when no one else before her had ever exercised that choice." Accordingly, the court granted Mr. Smith his divorce. As for Mrs. Smith, she might have gone where no woman has gone before, but she owes YouTube the credit for the outcome in her divorce.

YouTube is power: Become famous (or infamous) overnight. Jump start a career. Or attack your enemies (or your spouse) on a global scale from the convenience of your home. It might seem like a handy tool to advance your interests, but we are learning it comes with responsibilities. You can't use the internet as a weapon to humiliate or embarrass people with impunity. (In an unrelated but similar case, a Florida judge required two teens who had thrown a large drink at the drive-thru cashier—an activity its purveyors call "fire in the hole"—to post a groveling apology on YouTube after they first posted their own home-made video of their mean-spirited carbonated assault.) We'll see what new and inspiring or insipid ways the internet will be used tomorrow, and just how creative the courts will have to become to deal with it.

Until then, post at your own risk.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Brave New World , Damages , New York State Courts , Speech , The Internet

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New York State Court of Appeals: Smalley v. Dreyfus Corporation

New York State’s highest court affirmed that New York is an at-will employment state: absent a specific contract (other than to be hired) or a union agreement, employees can be fired for any reason (but not the wrong reason—see New York Employment Discrimination). The court says employment is a type of contract, and if you get fired you cannot sue the boss for fraud or for inducing you to work for the employer before firing you. The court left open the possibility that with the right facts, there might be a claim of fraudulent inducement if it can be shown that you were damaged and that it was the employer’s plan to fire you all along. But being fired or losing your job from a merger or cutbacks is acceptable in New York, at least according to the Court of Appeals. The bottom line: be careful who you choose to work for.

Posted by Mark A. Eskenazi | Permalink | Email This Post

Posted In: Employment Discrimination , New York State Courts

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