First Department Finds IME Observer’s Notes are Privileged

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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First Department Expands Discovery of Social Media Accounts

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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New York Courts Recognize Validity of Biomechanical Experts

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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Second Department Finds Wantagh Bar Is Not Liable For Death from a Fight Outside of Premises

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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Court of Appeals Rules Plaintiff Can Be Granted Partial Summary Judgment, Regardless of Own Liability

On April 3, 2018, the New York Court of Appeals ruled that, in accordance with the CPLR, a plaintiff need not “demonstrate the absence of his comparative negligence to be entitled to partial summary judgment as to a defendant’s liability.” Continue reading “Court of Appeals Rules Plaintiff Can Be Granted Partial Summary Judgment, Regardless of Own Liability”

Facebook Posts Can Serve as Important Information in Head Injury Case

The New York State Court of Appeals recently ruled that information from an injury victim’s private Facebook account can be treated as information used in a legal action and, as such, the victim may have to offer that information to the opposing party in court. Continue reading “Facebook Posts Can Serve as Important Information in Head Injury Case”

Court of Appeals Reviews New York ‘Scaffold Law’

A divided New York State Court of Appeals ruled 4-3 that New York’s “scaffold law” does not automatically make employers liable for injuries their workers suffer an on-the-job fall. The state’s highest court reversed the lower court’s summary judgment ruling in favor of a crane operator who fell down a temporary steel staircase at the World Trade Center Freedom Tower construction project in 2010. Continue reading “Court of Appeals Reviews New York ‘Scaffold Law’”

Venue in case against Suffolk County School District is changed to Kings County

CPLR 504, in part, requires that the venue for all trials against school districts take place in the county in which the school district is located. Courts have further noted that CPLR 504 not only applies to school districts, but also to counties, cities, towns, and villages. The statute’s purpose is to safeguard municipal entities from the inconveniences that result if venue could be placed in another county. However, despite the strict statutory language, courts have held that a venue may, in fact, be changed upon a showing of special circumstances.

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