News & Blog

Addressing coverage and insurance issues at mediation can present challenges, in particular other parties and the mediator can view discussions regarding coverage as an impediment to the mediation, especially if the position threatens settlement.  Nevertheless, coverage issues at mediation can be successfully raised to bolster the likelihood that the carrier’s position will be appropriately considered.

On February 16^th, 2012, the Supreme Court Appellate Division of the Third Department overturned the Department’s previous interpretation of Article 10(a) of the Hague Convention, which did not allow service by mail on foreign defendants.  The issue arose in a suit filed by the New York State Thruway Authority against Nathan Fenech and Silver Creek Transport, Ltc, Canadian residents.  Both defendants were served via mail and sought dismissal of the complaint on the grounds of invalid service.  The Supreme Court’s Judge Platkin granted the motion to dismiss, however, in his opinion, Judge Platkin suggested a revisit of the precedent relied upon.   Naturally, New York Thruway appealed the ruling, allowing the Appellate Division to review the court’s 1985 ruling in Reynolds v. Wossop Koh which has disallowed foreign service by mail for almost three decades.

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.

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.

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.

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. 

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.

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