In affirming the dismissal of a personal injury action in which the plaintiff alleged she fell when she stepped on a one-inch wide and one-half-inch deep hole on the edge of a step, the Second Department wrote: A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over […]
In determining an expert’s testimony that an MRI would have revealed any injury caused by an epidural injection was properly admitted, the Second Department explained the criteria for the admission of (scientific) expert testimony: In determining the admissibility of expert testimony, New York follows the rule of Frye v United States … “that expert testimony […]
The Second Department explained the criteria for professional negligence actions against an accountant, with whom the plaintiffs were not in privity, and against an actuary: Accountants may be “held liable in certain circumstances for negligent misrepresentations made to parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate […]
In finding plaintiffs’ claim for indemnification was not supported by proof plaintiffs had actually paid the debts for which they sought reimbursement, the Second Department noted that the debt-payment-proof submitted in reply papers could not be considered: With limited exceptions not applicable here, a cause of action seeking indemnification is not enforceable until payment is […]
In finding defendant was not plaintiff’s (Vasquez’) “special employer” (and therefore could not take advantage of the exclusive-remedy provision of the Workers’ Compensation Law), the First Department wrote: Defendant’s motion for summary judgment, made on the ground that the complaint is barred by the exclusivity provision of the Workers’ Compensation Law (see Workers’ Compensation Law […]
The First Department determined the respondent, Plaza Residences, could assert the Workers’ Compensation defense even though petitioner believed he was working for a nonparty (Wavecrest Management, Inc) which directed and controlled his work: The Workers’ Compensation exclusivity provision applies to those employers, and their agents, that exercise supervision and control over an employee …. Here, […]
The First Department reversed a conviction because of the prosecutor’s improper cross-examination of the defendant. The defendant was accused of smuggling a knife to her boyfriend while he was incarcerated. The defendant was cross-examined about her boyfriend’s gang membership and criminal history and defendant’s periods of unemployment (among other improper topics). In addressing the cross-examination […]
In a full-fledged opinion by Justice Mazzarelli, the First Department determined that the “safe harbor” provisions in the Digital Millenium Copyright Act (DMCA) did not protect defendant, an Internet-based music streaming service, from a copyright infringement action based upon the uploading of recordings made prior to February 15, 1972. In making this determination, the 2nd […]
In upholding the trial court’s grant of a mistrial because the jury consulted a dictionary, the First Department wrote: …[The court properly determined that the jury’s act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was “confused” about […]
The First Department determined the trial court erred when it did not award damages for breach of contract because the amount of damages was uncertain: Where, as here, “it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good […]
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