News & Blog

Category: Trial Practice

A Re-Examination Of What Is A Structure Under Labor Law 240(1)

November 28, 2012 • Posted By Joseph A. French • Construction Claims, Trial Practice

The Second Department recently examined what a structure is under Labor Law 240 in the case of McCoy v. Kirsch at Tappan Hill, Inc., 2012 NY Slip Op 06128 (2d Dept. 2012).  The trial court had granted plaintiff’s cross-motion for summary judgment on the issue of liability on the cause of action pursuant to Labor Law 240(1).  The Second Department affirmed the order.

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First Department’s Instructions To Defense Attorneys Seeking Fully Executed HIPAA Authorizations

November 15, 2012 • Posted By Karen M. Mahon • Trial Practice

Med Records

Compelling a plaintiff to authorize release of medical records pertaining to alcohol and drug treatment, mental health information, and HIV-related information is possible if one provides the court with sufficient documented evidence that the information being sought is reasonably connected to the plaintiff current claim and/or injuries.

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Jury Instructions Regarding Social Media

October 12, 2012 • Posted By Joseph A. French • Trial Practice

Over the past several  years, when selecting a jury, we have always discussed with prospective jurors the fact that they would be unable to use any social media to check on the parties, the witnesses, the accident site, news accounts, etc.  Jurors were asked to commit to not using social media for these purposes, and, of course, each time all agreed to not do so.  We found it surprising how frequently other colleagues did not raise these issues during jury selection and even more surprising when the issues were raised with the trial judges that they had not seemed to consider the possibility either.

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Do Not Delete

May 1, 2012 • Posted By Barry Meade • Trial Practice

Recently in Voom HD Holdings LLC v. EchoStar Satellite LLC, 93 A.D.3d 33, 939 N.Y.S.2d 321, 2012 WL 265833 (1st Dep’t 2012), the First Department affirmed a lower court’s holding that an “adverse inference” charge at trial is the appropriate sanction for a grossly negligent failure to preserve relevant electronically stored information (“ESI”).  The First Department suggested that had the lower court found the level of defendant’s misconduct more egregious, it could have properly imposed the ultimate sanction of default.

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The Use of Expert Affidavits in the Second Department for Summary Judgment Motions

April 9, 2012 • Posted By Lance E. Benowitz • Trial Practice


The Second Department decisions regarding the use of an expert affidavit to oppose a motion for summary judgment had been quite predictable. The Second Department was known for their preclusion of experts offered in opposition to summary judgment motions where the experts were not exchanged prior to the filing of the Note of Issue. The Second Department had consistently held that it is a proper exercise of the trial court’s discretion to bar expert affidavits submitted for the first time in opposition to a summary judgment motion. 

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First Department Issues Reminder Regarding Expert Affidavits

January 6, 2012 • Posted By Joseph A. French • Trial Practice

Expert Witness

Recently, in the case Cassidy v. Highrise Hoisting, et al., 2011 NY Slip Op 07936, 932 N.Y.S.2d 456 (1st 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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Defense Victory in War for Facebook Authorizations

December 8, 2011 • Posted By Douglas R. Rosenzweig • Trial Practice


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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Expert Preclusion

September 21, 2011 • Posted By Jenna E. Elkind • Trial Practice


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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Ex Parte Interview Of Plaintiff’s Treating Physicians

July 19, 2011 • Posted By Susan A. Romano • Trial Practice


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 (4th Dep’t 2011).

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