May 5, 2014

Court of Appeals Decides to Adopt Broader Disclosure Standard For Non-Party Subpoenas

By Brian C. Stehn

In the recent case of Matter of John Kapon, et al. v. William I. Koch, the Court of Appeals decided to adopt a broader interpretation of the “material and necessary” standard for non-party subpoenas.
April 28, 2014

Update on Falling Object in Labor Law

By Sterling E. Tipton

The Court of Appeals recently decided a case involving a claim of a “falling object” under the Labor Law, and effectively reaffirmed earlier caselaw that requires the plaintiff to prove the absence or inadequacy of a safety device in order to succeed on such a claim.
April 28, 2014

Recent Decision Concerning Admissibility of Expert Testimony of Biomechanical Engineer

By Barbara A. Hayes

The Appellate Division, First Department recently issued a decision broadly expanding the admissibility of the expert testimony of a biomechanical engineer. In Vargas v Sabri, 115 AD3d 505 [1st Dept 2014], the First Department upheld the decision denying plaintiff’s request for a Frye hearing to determine the admissibility of the testimony of Dr. Callum McRae.
April 15, 2014

Liberal Interpretation of Labor Law § 240(1) in Fernandez And The Need For Thorough Deposition Questioning

By Jon P. Pisiewski

On occasion, when conducting a deposition, attorneys find themselves confronted with an opposing counsel improperly objecting to “irrelevant” or follow-up questions about something the witness denied. However, thorough questioning anticipating potential pitfalls may often lead to asking the crucial question that can turn a case.
March 13, 2014

First Department Limits Discovery for Prior Injuries

By Jessica G. Price

In this week’s decision of Gumbs v. Flushing Town Ctr.III, L.P., 2014 NY Slip Op 01267, the First Department upheld a decision denying the defendants’ motion to compel authorizations based on the plaintiff’s claims for “loss of enjoyment of life” and past pain and suffering.
February 25, 2014

Recent Decision Concerning “Spoliation Sanctions”

By Barbara A. Hayes

The First Department recently issued a decision on a case involving the issuance of sanctions for spoliation of evidence. In Malouf v Equinox Holdings, Inc., 113 AD3d 422 [1st Dept 2014], the plaintiff brought a personal injury action against a health club operator, alleging she was injured on a treadmill in the health club.
February 20, 2014

Applicability of NY Labor Law §240(1) To a Worker Struck By Overhead Equipment

By Michael J. White

Lately, we have been seeing a trend where plaintiff’s attorneys are trying to recover under Labor Law § 240 for injuries to construction workers who have been struck by heavy equipment that had been operating above them on the job site. A recent Appellate Division case clearly holds that Labor Law § 240 does not apply to these types of situations.
January 27, 2014

Recent decisions concerning “Cleaning” under Labor Law §240

By David P. Feehan

In October 2013 the Court of Appeals clarified the definition of “cleaning” under Labor Law §240. The case of Soto v J. Crew Inc., 21 NY3d 562 (2013) presents a test for the determining whether an activity may be characterized as cleaning under the statute. The Soto case involved a plaintiff who was performing dusting on a six-foot high display shelf in a J. Crew retail store when he fell from the 4 foot ladder.
January 16, 2014

Making Full Use of Defenses to Respondeat Superior

By Matthew J. Zizzamia

Under the doctrine of respondeat superior, an employer is responsible for the actions of an employee if it falls within the course and scope of the duties of the employee. Accordingly, an employer will be held liable for the negligence of a delivery driver who rear ends another vehicle, just as a building owner may be liable for damages sustained by a plaintiff who slips on a puddle of water that a building superintendent failed to clean.