NYS Court of Appeals Holds State Not Liable Under Respondeat Superior

The New York State Court of Appeals used a new analysis to determine whether an employer could be held liable for the actions of their employee in an assault and battery action under the doctrine of respondeat superior.  The case of Rivera v. State of New York was commenced following an inmate’s lawsuit against New York State after suffering injuries following an alleged assault and battery by several correction officers. In finding that the state was not liable for the actions of their employee, the state’s highest court utilized what appeared to be a new test which is being referred to by practitioners as the “so egregious” test. Continue reading “NYS Court of Appeals Holds State Not Liable Under Respondeat Superior”

Second Department Reverses Award of Future Loss of Household Services

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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The New Year Marks New Changes Regarding the Admission of Records Produced by an Opposing Party

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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Court of Appeals Finds Statements Made During Administrative Proceeding are Not Protected by an Absolute Privilege

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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Comparative Fault in the Context of a Motion for Summary Judgment in Liability Claims

The Appellate Division, First Department of New York State recently determined that an individual must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability. The decision by the Appellate Division now aligns with the Second Department, and finally sets the standard for the trial courts within the department which were issuing conflicting decisions on the subject.

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Partner in an Unmarried Couple with No Biological or Adoptive Relationship to the Child has Standing as a Parent to Seek Custody/Visitation

On August 30, 2016 the New York Court of Appeals determined that the recently delineated principles of society established a need to overturn a twenty-five year old decision which previously defined the term “parent” in relation to custody and visitation rights. In reviewing two lower-level decisions, the court ruled that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing as a parent to seek visitation and custody.

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New York Appellate Division 1st Department Rules on Discovery of Facebook Posts

The defendant sought to introduce evidence from the plaintiff’s Facebook account to contradict the plaintiff’s claim that her “social network went from huge to nothing.”  During deposition, the plaintiff had admitted to posting photographs depicting her engaged in fun activities.  The plaintiff had deactivated her Facebook account sometime after the accident and after the commencement of the case.  Subsequently, the defendant made a motion to obtain all the plaintiff’s Facebook records without limitation.  This included all text messages sent through Facebook, photographs, and any other content posted.

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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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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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