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Appellate Division, Second Department Holds Court Approval Necessary Before Recording an Independent Medical Examination to be Used at Trial

This month, the New York Appellate Division, Second Department, considered whether an attorney must obtain permission from the court prior to recording an Independent Medical Examination, and whether failing to provide such a recording to opposing counsel constituted a violation of CPLR 3101. The Court answered both questions affirmatively.

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Appellate Division, First Department, Considers Whether Calling Defense Counsel and Defense Witnesses “Liars” Denied Defendant a Fair Trial

Attorneys are held to a high moral standard of professional conduct. Even though our system of justice is an adversarial one, attorneys must adhere to a code of certain conduct in the courtroom. Statements by an attorney that would result in an unfair trial are prohibited. Witnesses are also held to a high moral standard of truthfulness in giving testimony, whether at a deposition or at trial, and harsh consequences can result from untruthfulness.

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Doctrine of “Danger Invites Rescue” Applied to Permit Recovery by Firefighter of Underinsured Benefits

In a recent ruling, the Appellate Division, Second Department applied the “danger invites rescue” doctrine in an unusual manner. The suit arose from injuries sustained by a firefighter who came to the aid of a car accident victim, who was trapped in his wrecked vehicle. The firefighter was injured while attempting to extract the motorist using the “jaws of life.” The injury occurred to the firefighter’s right shoulder when he and three other firefighters tried to lift the roof from the mangled vehicle in order to save the motorist inside.

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New York Court of Appeals Holds that the Right of Sepulcher Does Not Extend to Tissues and Organs

A recent decision from the New York Court of Appeals held that a Medical Examiner does not have a legal obligation to notify a decedent’s next of kin that any organs or tissues were retained for further medical examination as part of an authorized autopsy. Although the right of sepulcher provides that the next of kin have the right to immediately possess the body of their deceased loved one for burial, the recent holding did not extend that right to include tissues and organs.

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New York Court of Appeals Redefines the Foreign Object Rule in Medical Malpractice Cases

Relying on long-standing precedent, the New York Court of Appeals recently redefined what constitutes a foreign object in medical malpractice cases. The Court reversed the Appellate Division, Fourth Department , and held that a broken piece of a catheter did not meet the statutory and precedential definition of a fixation device, but was a foreign object, and thus not subjected to the fixation device statute of limitations for medical malpractice cases.

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Appellate Division Considers Whether Immigration Status Has Bearing on Applicant’s Bar Admission

It is not easy to enter into the profession of law. One must go through three years of rigorous academic training, endure the difficult bar exam, and pass an ethics panel interview to determine that the applicant requesting admission into the profession possesses integrity, honesty, and good moral character. The panel looks for candor in the applicants, and goes through a lengthy investigation to ensure fitness for membership of the bar.

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Court reviews use the Statute of Limitation Defense in a boilerplate paragraph – Call to the Court of Appeals?

Failure to follow procedural rules can have a detrimental effect on a case.  Recently, the New York Appellate Division, First Department held that the statute of limitations would not bar the plaintiff’s action because the defendant did not assert the defense in accordance with the format required by New York Civil Procedure Rule governing pleadings, CPLR §3040.  The rule provides that each affirmative defense asserted should be numbered and labeled in a responsive pleading.

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The Perils of Falling Asleep in the Jury Box

Jurors comprise one of the most integral components of our legal system.  In criminal cases, a defendant’s life and liberty is at the mercy of those who sit in the jury box.  In civil cases, a plaintiff may or may not get the compensation they deserve for injuries depending upon what transpires during the jurors’ deliberations.  Therefore, when a juror falls asleep during testimony and when evidence is being presented, those whose fates rest upon the outcome of the trial may not see justice served.

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Garden City Proposed Social Host Law Expands Liability

The proposed law expands liability from those 18 and over to include individuals 16 and over.  Therefore, in addition to holding parents liable, the new law would also hold teenage hosts liable.  This is particularly geared at young party hosts whose parents may be out of town when their children decide to throw a party.  Under New York State law, disobeying these proposed social host laws would be a violation, and not considered a crime that would appear on one’s record.

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Proposed Changes to the Federal Rules of Civil Procedure 2015

The amendments were officially proposed on August 15, 2013. Public commentary elicited since then includes over 2,300 remarks on all sides of the spectrum. The commentary period closed on February 18, 2014.  The Judiciary Conference’s Advisory Committee on Civil Rules first explored amending the rules in May 2010 at a conference held at Duke University School of Law. Twenty-eight changes to Rules were proposed to the Supreme Court as a result.

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