When New York State Court of Appeals Chief Justice, Janet DiFiore, assumed her position, she set the goal of reducing the backlog of cases across the state. In the case of Melendez v. Stack, the Second Department decided in line with that goal in refusing to vacate a dismissal after a Plaintiff’s attorney did not have a reasonable excuse for their failure to proceed to trial.
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In a 3-2 Decision, a panel of Second Department Justices held that a defendant’s medical records were not subject to discovery. In the case of Peterson v. Estate of John Rozansky, the panel of Justices upheld a trial court’s decision to grant a protective order in regards to the deceased defendant’s medical records. The case was initiated after the plaintiff, who was working at a toll plaza for the Queens Midtown Tunnel, was struck by an oncoming vehicle. The accident occurred in 2004, and in 2005, the plaintiff brought suit against the driver of the vehicle, John Rozansky.
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The Appellate Division Second Department reversed an Order of the Supreme Court, Richmond County, denying the defendants’ motions for summary judgment in a products liability case. The case involved a food preparation worker at a restaurant who lost several fingers in a cheese grater. The worker intended to dislodge a piece of cheese from a cheese grater by placing his fingers in the hopper of the grater without turning it off. The plaintiff’s fingers then struck the spinning blade of the grinder, causing him to sustain the loss of several fingers. The plaintiff then commenced an action against the restaurant, its owner, as well as the distributor and seller of the meat grinder.
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On March 13, 2019, a panel of the Appellate Division Second Department issued an opinion in which they overturned a lower Court’s award of future loss of household services. In the case of Finney v. Morton, Jr., the Second Department reviewed the decision of the Supreme Court of Dutchess County and remanded the case for a re-determination of the proper award.
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On March 19, 2019, the Appellate Division First Department issued a decision in which they held the notes of an IME observer were privileged. The Court’s decision settled the variance between the trial Courts of whether the notes of an IME observer are protected by the attorney-client privilege. In the case of Markel v. Pure Power Boot Camp, Inc., the Plaintiff sought damages for a knee injury she sustained while participating in an exercise drill at defendants’ gym. As part of the discovery process, the Plaintiff was asked to appear for an independent medical exam (IME) by an orthopedist to ascertain the extent of her injuries, if any.
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Just last year, the New York Court of Appeals ruled in the case of Forman v. Henkin, that a litigant’s public posts on Facebook were subject to discovery. The decision was based on the premise that any limitation on the discovery of social media accounts would run counter to New York’s “tradition of liberal discovery.” On January 24, 2019, the First Department expanded on that premise.
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In the age of developing technology, biomechanical experts have more tools at their disposal when examining how a motor vehicle accident may have occurred. In general, biomechanics is the science of how the human body responds to applied external and internal forces. In litigating a motor vehicle accident, a capable biomechanical engineer may be able to examine specific injuries and use reverse engineering to determine if the event in question caused the purported injuries.
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On December 26, 2018, the Appellate Division Second Department upheld the dismissal of a wrongful death suit against a Wantagh bar. The case involved a 2012 fight in a public roadway outside of Shoooters Tiki Bar & Sports Grill between a Levittown volunteer firefighter and another man. The firefighter suffered brain injuries in the fight and was in a coma for 17 days before passing. The criminal trial against the other man resulted in an acquittal due to a self-defense claim. However, the executor of the firefighter’s estate brought a civil claim against Shooters, claiming that they owed a duty to prevent harm to the firefighter.
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On August 28, 2018, a change to article 45 of the CPLR was enacted after being proposed by the Chief Administrative Judge and being recommended by the Advisory Committee on Civil Practice. That change, involving the admission of opposing party documents, is set to go into effect on January 1, 2019. The new CPLR §4540(a) is designed to make the admission of documents created by an opposing party admissible without going through additional steps.
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In New York State, a defamatory statement is defined as “a false statement that is published or made known to a third party – deliberately or with negligence – without the knowledge or consent of the subject. Under the doctrine of defamation, an individual who makes such statement may claim a defense by proving either that (1) the statement is true; (2) that the statement was an expression of pure opinion; or (3) that the statement is protected by an absolute privilege. In the case of Stega v. New York Downtown Hosp., the New York Court of Appeals determined that defamatory statements made during an administrative proceeding are not protected by an absolute privilege.
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