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A seller’s concession, which is typically negotiated between the buyer and seller, and ultimately the tool most frequently relied upon by mortgage brokers to facilitate a purchase has been the subject of much scrutiny after the real estate bubble burst in 2008.  This tool, which is so widely used to make a buyer’s dream of owning a home a reality, has placed additional obligations on practicing real estate attorneys.  No longer should the terms of that seller’s concession be merely built into the purchase price and noted as the last item in the contract of sale rider.  The concession should be clearly noted on the face of the contract where the contract amount and balance due at closing are set forth and in all transfer documents, including but not limited to the HUD-1 Settlement Statement.

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Recently, in the case Cassidy v. Highrise Hoisting, et al., 2011 NY Slip Op 07936, 932 N.Y.S.2d 456 (1^st Dep’t 2011), the First Department addressed the issue of expert opinions in regard to summary judgment motions.  The underlying action involved a company which had installed a sidewalk bridge, hoistway and temporary loading dock.  The platform was approximately four to five feet above the ground or about the “height of a trailer truck”.  Near the loading area, there was a removal horizontal pipe railing that was eight feet long.  Plaintiff was a laborer, who while waiting for the hoist to come to the loading dock level, leaned against the dock railing which became dislodged and fell from a vertical post.  He, in turn, fell.  The Court upheld the lower court’s finding that plaintiff’s work was protected by Labor Law §240(1), but found that plaintiff could not recover under Labor Law §241(6).  The Court also noted that plaintiff’s common law Labor Law §200 claims were properly dismissed due to the fact that defendants were not on notice about the railing which, although it had been detached for a delivery, had been improperly re-attached.

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Earlier, we posted on efforts by defense counsel to obtain information posted by plaintiffs on social networking sites such as Facebook.  Now, defense counsel has a new weapon in its arsenal.  A recent decision in Pennsylvania permitted defense counsel to obtain plaintiff's Facebook username and password holding that "there is no reasonable expectation of privacy on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information." Largent v. Reed, No. 2009-1823, slip op (Pa. C.P. Franklin Co. Nov. 8, 2011).  Please follow this link for additional information Blog Post. 

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In June 2010, the New York Court of Appeals rendered a controversial decision in Estate of Schneider, 15 N.Y.3d 306, 907 N.Y.S.2d 119 (2010), wherein the Court overturned long-standing precedent that the fiduciaries of an estate had no standing to bring a legal malpractice action against a decedent’s estate-planning attorney.  In Schneider, the Court held that the personal representative of a decedent’s estate had the capacity to maintain a malpractice action against an attorney for negligently causing the estate to incur enhanced tax liability.  The Court stated that the decedent’s estate essentially stood in the shoes of the decedent and thus, privity, or a relationship approaching privity, existed between the personal representative of the estate and the estate-planning attorney.  While the Court limited its holding to the fiduciaries and declined to extend a cause of action to the decedent’s beneficiaries, the decision nonetheless raised serious concerns amongst estate-planning practitioners.

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Here are some tips on how to prepare for an estate planning consultation with an attorney that will save you time and money:

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CPLR §3101(d) lays out the rule for expert witness disclosure and states that “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on the grounds of noncompliance with” §3101(d)(1)(i).  Because CPLR §3101(d) fails to provide a time frame for expert disclosure, courts look to the facts of each case to determine whether the disclosure complies with the CPLR.  The only guidance given in the CPLR is that parties should give “appropriate” notice of their expert, but that failure to do so does not have to mean preclusion of the expert if “good cause” for the late notice is shown.

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The use of either a ramp or plank at a construction site is a common occurrence. Both are used to move materials from one area to another, while at times both are utilized in the same fashion as a ladder or scaffold or like other safety devices to help the worker perform his work at the site. At other times, the plank or ramp is simply used as a passageway to allow the worker to access another work area or enter the construction site. The question arises, what happens when a worker is injured while walking up or down the plank or ramp? The answer lies in how the ramp is utilized and in what department and/or county the case is being litigated.

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New York Courts have long had to answer the question of what duties are owed to a participant in a sporting activity.  Courts have consistently held that “risks involved with sporting events are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes.”  Conning v. Dietrich, 2011 NY Slip Op 513404, citing Turcotte v. Fell (Sup. Ct. Kings Cty. July 15, 2011), 68 N.Y. 2d 432 (1986).  Because participants are free not to engage in the activity, defendant’s only duty is “to make the conditions [of the event] as safe as they appear to be.”  Id.  “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff [is deemed to have] consented [to the risks] and defendant has performed its duty.” Id.

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French & Casey, LLP travelled to Citi Field for the Padres v. Mets on August 11, 2011.  The weather was spectacular and partners, associates and support staff had a great opportunity to interact outside of work.  Special thanks to Joe French for organizing the outing. 

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As all owners and general contractors operating in New York State have become aware, the Labor Law, particularly Labor Law § 240(1) is an extremely onerous statute and leaves a defendant with few moves to avoid an adverse judgment.  Although case law has developed which will shield an owner, general contractor or statutory agent from Labor Law 240(1) liability if the worker is found to be “recalcitrant” or the “sole proximate cause of his accident”, the factual predicate necessary to support these claims can be downright difficult to prove.  Given the First and Second Departments apparent willingness to expand the protections of the Labor Law, defendants are left with more and more cases in which damages become the only point of contention.

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The Court of Appeals in Arons v. Jutkowitz examined the question of whether defense attorneys may conduct informal ex parte interviews of plaintiff’s non-party treating physicians pursuant to HIPAA compliant authorizations.  Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d 345 (2007).  This tool permits defendants to interview treating physicians with respect to the medical information relevant to the case.  These interviews are voluntary and the physician is free to decline the request.  Grieco v. Kaleida Health et al., 82 A.D.3d 1671, 1672, 919 N.Y.S.2d 443 (4^th Dep’t 2011).

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Under the “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010”, the federal estate exemption is $5 million for decedents passing away in 2011 and 2012.  Amounts in excess of $5 million will be taxed at a rate of 35%.  Estates of individuals who pass away in 2011 and 2012 will be entitled to a full step-up in basis, so no capital gains taxes will be owed on inherited assets.  This eliminates 2010’s carry-over basis regime and the accounting nightmare of calculating basis on assets purchased decades ago.

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The First Department recently ruled in Angamarca v. New York City Parnership Housing Development Fund, __ A.D.3d __, 2011 NY Slip Op 5361 (1^st Dep’t 2011) that the lower court was correct to bar any testimony of the plaintiff’s illegal immigration status because that testimony would be unfairly prejudicial and was not relevant to the issue of damages.

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Many of our construction clients become embroiled in litigation by way of a “permit pull” where plaintiff’s counsel will simply sue everyone who was issued a permit for work on a certain city block.  Clients are forced to participate in lengthy discovery, even though they did not perform any work in the area where the accident allegedly occurred.  Often, our clients did not perform any work under the permit and are still named as defendants simply because the permit exists and plaintiffs’ attorneys are leery of potential malpractice claims by their clients.

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Recently, we have noted the varied opinions of the Courts in addressing the scope of gravity-related injuries subject to Labor Law 240(1). In 2009, the Runner Court expanded the application to include injuries resulting from the forces of gravity, even when neither a fall nor a dropped object was involved. Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 (2009). In the First Department, too, the scope recently was expanded to allow for any accident where gravity played a role, regardless of whether gravity was the sole proximate cause.

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In a decision dated March 31, 2011, the New York Court of Appeals re-visited Labor Law §241(6).  This decision appears to broaden the scope of 241(6) beyond the defined terms that the legislature had required when it passed this law. 

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Recently in the case of Plaza Construction v. Rite-Way Internal Removal, Inc. (NYLJ p. 19, 3/14/11), the First Department came down on the side of Plaza Construction and reversed the lower court’s decision precluding it from obtaining summary judgment.

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Recent trends in the courts have given the defense bar the impression that defeating class certification in Fair Labor Standard Act cases is highly unlikely.  But then there is the decision in Kopera v. Home Depot, 2011 U.S. Dist. LEXIS 3382, *7 (S.D.N.Y. 2011), that demonstrates that when the defendants are able to put forth sufficient evidence to contest the underlying facts relating to class certification, defendants can successfully defeat class certification, a huge victory because it significantly reduces the number of potential claims against a defendant-corporation. 

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As discussed in our Blog of June 1, 2010, the Court in Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 (2009), held that in Labor Law 240(1) matters, the “the relevant inquiry—one which may be answered in the affirmative even in situations where the object does not fall on the worker—is rather whether the harm flows directly from the application of the force of gravity to the object.”  A recent holding by the Court of Appeals, which confirmed an Appellate Division order dismissing plaintiff’s Labor Law 240(1) claim, may serve as a valuable tool in defense of certain 240(1) claims and as a means of distinguishing particular cases from Runner.

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After conclusion of settlement negotiations (or upon a decision of a binding arbitration), pursuant to CPLR § 5003-a, a defendant has twenty-one (21) days from tender of a duly executed release and stipulation discontinuing an action to provide the settlement check to plaintiff.  However, if plaintiff is a recipient of Medicare benefits, and Medicare had paid for any treatment underwent as a result of the subject accident, Medicare is entitled to receive repayment of the expended amounts pursuant to the Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”).  Medicare will, therefore, hold a lien on any settlement or recovery proceeds. 

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The future of estate tax legislation is uncertain.  The $5 million per head exemption is only for two years.  We have no idea what will happen at the end of 2012 when President Obama and much of Congress runs for re-election.    The law could still revert back to $1 million per person starting in 2013.  The law could be extended one or two more years.  The law could be amended to pass what we all thought would happen-a $3.5 million per person estate tax exemption.  It is hard to know what the prospective estate tax exemption will be, but it appears likely that people in the future will continue to pay estate taxes.  Of course, in New York State, we have and will continue to have a state estate tax on estates worth over $1 million dollars.   Thus, many estates will be diminished by estate taxes if the proper planning is not put in place.

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During a plaintiff's medical treatment, there are many times that a hospital or medical care professional's records include a history of the accident and how it occurred. The history of the accident is at times in direct conflict with the accident description given by plaintiffs in their pleadings, Bill of Particulars and deposition testimony, or even at trial. These inconsistencies could prove a very valuable tool for defense counsel at trial to impeach plaintiffs and attack their credibility.

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Defense attorneys often suspect that plaintiffs exaggerate claims concerning the extent and nature of injuries in general and particularly how those injuries resulted in a significant loss of enjoyment of life.  In an attempt to confirm these suspicions, attorneys have long demanded authorizations for post-accident photographs, videotapes and home movies which demonstrate plaintiffs taking part in activities of daily living inconsistent with claims made in bills of particulars or during depositions.  The current battleground in attempts to obtain information which can be potentially devastating to a plaintiff’s credibility is the internet, particularly social networking sites such as MySpace and Facebook.  These sites have become such an integral part of daily life, particularly for plaintiff’s age 13-40, that plaintiffs will often post pictures of themselves without regard to the ramifications such posts may have on their lawsuit.  As such, it is critical that every effort be used to obtain this information.

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In todays' market, getting a customer to agree to utilize your goods or services may only be half the battle in closing a mutually agreeable deal. Negotiating the terms of the deal can at times prove to be more difficult than convincing a customer to use your services. Conflicts over price, delivery terms, deadlines, materials, labor, or quantity may arise.

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According to a recent New York City Bar Association Formal Ethics Opinion, a plaintiff's counsel may not agree to hold a defendant harmless from claims arising out of the defendant's payment of settlement consideration, and the defendant's counsel may not ask plaintiff's counsel to provide such financial assistance. Click Here for a complete copy of the opinion.  

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During jury selection many prospective jurors often raise the issue of the large award a woman won years ago by suing McDonalds after she spilled hot coffee and scalded herself. This past week, however, the Second Circuit appears to have iced a hot tea claim brought in Federal Court against Starbucks. Moltner v. Starbucks Coffee Company, 09-4943. CV (2d. Cir. 2010).

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The State of New York Court of Appeals, the state's highest court, previously looked at whether the Immigration Reform and Control Act (“IRCA”), a federal law created to regulate immigration, supersedes New York State’s Labor Law and prohibits undocumented alien construction workers injured as a result of a violation of the state Labor Law from recovering lost wages in personal injury lawsuits.  The short answer was NO.

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How do you get paid in this tough economic climate?  This is the rising concern for many businesses today and the starting point in answering this question rests in the terms of your contract.

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Our firm is about to argue an appeal during the Appellate Division, First Department's October Term which will further define the limits of Labor Law 240(1) liability in connection with falling objects. In the underlying claim, it is undisputed that workers were deliberately removing plywood forms from the building under construction. These forms fell to a courtyard below injuring the plaintiff. Plaintiff moved for summary judgment and the motion was denied. Plaintiff has appealed and in our respondent's brief, we argue that the since the plywood was deliberately dropped, there is a question of fact as to Labor Law §240(1) liability.

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In the not too distant past, it was settled law that a fall from a ladder would not necessarily impose liability under Labor Law §240(1). The law was relatively clear that not every worker who fell from a ladder at a worksite would give rise to liability under the strict liability provisions Labor Law §240(1). See Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y3d 280, 803 N.E. 2d 757, 771 N.Y.S.2d 484 (2003).

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Everyone who owns a home has probably wondered what happens if a repair worker they hired gets hurt while working on their property.

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The clause "arising out of your operations" is commonplace in almost all insurance policies and has just recently (June 3, 2010) been interpreted by the Court of Appeals in connection with an injury to the primary insured's employee in Regal Construction Corporation v. National Union Fire Insurance Company of Pittsburgh, 883 N.Y.S.2d 207 (2010).

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In a recent decision, the Court of Appeals in Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 922 N.E.2d 865, 895 N.Y.S.2d 279 (2009), held that Labor Law 240(1) will apply to a worker even if that worker did not fall from a height and was not hit by the object that caused his injury. This decision will be greeted with cheers from the plaintiff's bar and with derision from the defense bar and contractors doing business in New York State.

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Both our corporate and individual clients often ask us whether the waiver they have prepared or signed is valid and binding in a Court of law.  Our clients are specifically interested in the validity of a clause in a release waiving any the rights to sue for any injuries, even if those injuries are caused by the negligence of the party seeking the release.

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In preparing a case for trial, it often comes to pass that one or more of the witnesses in the case have a prior criminal record. In cases where there is a significant amount of money on the line, you can be sure that opposing counsel has done her homework carefully and is chomping at the bit to destroy the witnesses' credibility with an in depth and lengthy cross-examination regarding the prior misdeeds. This can have a significant impact on a case, particularly if the witness's credibility will be a determining factor in obtaining a defense verdict.

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This is the launch of the Liability Defense Blog published by French & Casey so I feel justified in saying "Hello World"

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