New York Injury Attorney Blog

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.

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

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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