Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

In Heslin v. County of Greene, 2010 N.Y. Slip Op. 01010 (Feb. 11, 2010), the Court of Appeals determined that the special infancy toll applicable in wrongful death actions involving sole infant distributees is not available for personal injury claims.  The Court drew a distinction between this case and the holding in Hernandez v. New York City Health & Hosps. Corp., 78 N.Y.2d 687 (1991), which allowed the infancy toll to be applied to save the late wrongful death claim.  The Court qualified that a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act. The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries. In comparison, a personal injury action on behalf of the deceased under EPTL 11-3.2(b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate.  Such a claim is personal to the deceased and belongs to the estate, not the distributees.

Accordingly, in Heslin, the infancy of a deceased child’s sole distributees did not toll the limitations period applicable to personal injury claims brought by the personal representative of the child’s estate against county defendants who allegedly contributed to the child’s death at the hands of her mother’s boyfriend. As a result, the action was time-barred, although the personal representative was not appointed until after the statute of limitations had expired.

            The “firefighter rule� bars police officers and firefighters from recovery in “common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment.�  Zanghi v. Niagara Frontier Transp. Comn., 85 N.Y.2d 423, 436 (1995). 

In Wadler v. City of New York, et al., 2010 Slip Op. 01373 (Feb. 18, 2010), plaintiff police officer was injured as he was entering his place of work at the New York City Police Headquarters in Manhattan.  The parking lot to this facility is protected by an unusual kind of gate, designed to thwart car bombs and similar acts of terrorism.  The gate can be retracted into the ground to allow entry to the lot, but, if necessary, the gate can be raised automatically to stop an entering vehicle, with enough force to lift a car off the ground.  In the Wadler case, the gate worked as it was designed to do.  The driver of the car, however, was not a terrorist but plaintiff police officer.  Plaintiff showed his credentials and was allowed access into the lot.  The barrier was lower but then, it was accidentally raised again while plaintiff was driving over it, causing plaintiff injury. 

The Court, in affirming the dismissal of this action, determined that the cause of the injury to plaintiff was plainly a risk “associated with the particular dangers inherent� in police work. 

In Tracy v. Tray, 2010 Slip Op. 00452 (3d Dept. Jan 21, 2010), plaintiff failed to satisfy the permanent loss of use category of Insurance Law § 5102(d).  Under this provision, a plaintiff must establish that the loss of use is total.   To meet this burden, “the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system.â€�

In an attempt to satisfy her burden, plaintiff proffered the affidavit of her treating physician, Dr. Bennett. Bennett did not, however, opine that plaintiff’s loss of use was total, but instead concluded only that she “has a permanent moderate loss of use of her lumbar spine.â€�   In his affidavit, Bennett opined that the force of the accident caused plaintiff’s preexisting degenerative disease of the lumbar spine to become symptomatic, requiring surgery and leaving plaintiff with a permanent moderate loss of function of the lumbar spine. Bennett did not explain how the accident aggravated plaintiff’s condition nor did he set forth any qualitative or quantitative evidence of a limitation in plaintiff’s range of motion.

Inasmuch as plaintiff failed to submit any objective evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury pursuant to Insurance Law § 5102(d), the court concluded that the complaint was properly dismissed.

The United States Department of Transportation announced on January 26, 2010 that it is prohibiting truck and bus drivers from sending text messages on hand-held devices while operating commercial vehicles weighing over 10,000 pounds.  The prohibition is effective immediately and is the latest in a series of actions taken by the Department to combat distracted driving since the September 2009 Distracted Driving Summit.

Interstate truck and bus drivers who text while driving may be subject to civil or criminal penalties of up to $2,750.  For further information, please visit www.dot.gov.

 

The Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009.  The new provisions address the privacy and security concerns associated with the electronic transmission of health information, in part, through several provisions that strengthen the civil and criminal enforcement of the HIPAA rules.  

Previously, HIPAA’s strict confidentiality and computer security requirements applied only to covered entities (defined as a health plan, a health care clearinghouse, or a health care provider who transmits any health information in electronic form in connection with identified transactions), which could choose to enter into “business associate agreements� with any company to which they disclosed patient or employee health information. These business associates (defined as an individual or corporate person that performs on behalf of the covered entity any function or activity involving the authority to access, maintain, retain, modify, record, store, destroy, or otherwise hold, use, or disclose protected health information) promised the covered entity that they would keep the patient information confidential, but were not directly subject to HIPAA’s regulations or penalties. 

Under the recent HIPAA amendments, effective, February 17, 2010, HIPAA’s security requirements and financial penalties apply directly to both business associates and covered entities.  As a result, business associates must now comply with HIPAA’s strict confidentiality and computer security requirements. Violators are subject to a tier of penalties imposed by the Secretary of Health and Human Services, with a maximum fine of $1.5 million if the violations are willful and continue for more than 30 days.

 

Please find additional information at, www.hhs.gov

            In Begor v. Holmes, 2010 Slip Op. 00324 (3d Dept. Jan. 14, 2010), claimant was injured in a logging accident while employed by Four Seasons Logging (Four Seasons) and later died from complications of his injuries.  The general contractor of the project, Brenner & McHugh entered into a subcontract with Mid Hudson Hardwood (Mid Hudson).  Mid Hudson in turn, subcontracted with the claimant’s employer, Four Seasons. 

            At the time of the accident, Mid Hudson’s human resource functions were managed by Hudson Valley Staff Limited (Hudson Valley).  Under this arraignment, Hudson Valley selected employees and leased them back to Mid Hudson.  Mid Hudson’s leased employees were covered by a workers’ compensation policy obtained by Hudson Valley and issued by American Zurich Insurance Company (Zurich).  The policy provided coverage for only those employees leased to but not subcontractors of Mid Hudson, including claimant.

            The court determined that Mid Hudson had exposed itself to workers’ compensation liability by subcontracting work to Four Seasons, which had no coverage.  The court noted that Workers’ Compensation Law Section 56 places liability on the contractor nearest in the chain to the uninsured employer in order to encourage contractors to employ only those contractors who have workers’ compensation coverage, or face the financial risk themselves.  Therefore, under the clear language of Workers’ Compensation Law Sections 54(4) and 56, Mid Hudson, as the nearest insured subcontractor to Four Seasons was liable to claimant.   

            In Delta Financial Corp. v. Morrison, 2010 Slip Op. 00216 (2d Dept. Jan. 12, 2010), defendant’s attorney asserted that 55 e-mails were protected from disclosure by the attorney-client privilege, a litigation committee privilege, and/or a common interest privilege. After an exhaustive in camera review of those 55 e-mails, the Supreme Court determined that the attorney failed to satisfy his burden of establishing that the documents contained confidential communications between an attorney and a client during the course of professional employment for the purpose of obtaining legal advice or services and that they were primarily or predominantly of a legal, rather than a business nature.  Thus, the court imposed sanctions, pursuant to Title 22 of the New York Compilation of Codes, Rules and Regulations, Section 130-1.1(c)(1).

The Appellate Division determined that the lower court providently exercised its discretion in imposing a sanction against the attorney, because his claim that the 55 e-mails were privileged was completely without merit and could not be supported by any reasonable argument for the extension, modification, or reversal of existing law.

            The Appellate Division, Third Department, determined that maintenance personnel, Vincent Meyers, employed by defendant owner/landlord of two-family home, did not have speaking authority in which to find his statement admissible as a party admission. 

            In Raczes v. Horne, 2009 Slip Op. 09590 (3d Dept. Dec. 24, 2009), plaintiff asserted that while descending the apartment stairs, the railing she was holding pulled away from the wall, causing her to fall down the stairs and sustain injuries.  Defendant moved for summary judgment and the court found that defendant had satisfied the threshold burden of establishing that the premises was maintained in a reasonably safe condition and defendant neither had actual nor constructive notice of the defect.  Plaintiff failed to raise a triable issue of fact supporting her claim that defendant had actual and/or constructive notice of the faulty railing.  In opposition to defendant’s motion, plaintiff principally relied upon her claim that Meyers told her that “this was the third time that I fixed this railing and I’m getting sick of it!�  However, since plaintiff failed to produce any evidence as to the speaking authority of Meyers, the statement was properly found to be inadmissible hearsay and the court found that the complaint was properly dismissed.

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The law governing settlements states in part that “[a]n agreement between parties or their attorneys relating to any matter in an action other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed to by him or his attorney or reduced to the form of an order and entered.�  CPLR 2104.  Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record.  The Appellate Court upheld this principle in Diarassouba v. Urban, 2009 Slip Op. 09420 (2d Dept. Dec. 15, 2009).

In this medical malpractice action, while the jury was deliberating, plaintiff’s counsel obtained consent from his client to settle the action.  Counsel presented the settlement figure to defendant, however, the parties failed to put the agreement in writing.  Prior to the verdict being read, plaintiff’s counsel requested to put the settlement agreement on the record.  The judge declined to do so until after the verdict was read, which returned an award ten times the amount of the settlement figure.  Plaintiff then argued that a binding agreement had not been made and over defendant’s objections, the Appellate Court held that the jury’s award must stand because the requirements of CPLR 2104 had not been satisfied. 

In Lue v. Finkelstein & Partners, LLP, 67 A.D.3d 1187 (3d Dept. 2009), plaintiff brought a malpractice case against his former attorneys who failed to preserve plaintiff’s claims.  In the initial action, plaintiff was injured when he fell from a scissor lift while working for his employer, an electrical contractor, at a warehouse owned by K-Mart Corporation.  Plaintiff retained new attorneys who commenced an action alleging, among other things, a Labor Law § 240 claim against K-Mart and claims of products liability and negligence against United Rentals, Inc., the lessor of the scissor lift. The Labor Law § 240 claim against K-Mart was dismissed on the grounds of collateral estoppel and res judicata as a result of the failure to preserve the claim in the bankruptcy proceeding. The claim against United Rentals survived and was settled on the eve of trial for $235,000.

In the present action, plaintiff brought this malpractice action against defendants with regard to the dismissed Labor Law claim. He asserted that he settled for an amount that did not fully compensate him because of the loss of the absolute liability cause of action.  During the deposition of plaintiff, he was questioned by defendant regarding conversations plaintiff had with his current attorney regarding settlement of the claims against United Rentals.  The Court held that plaintiff’s settlement discussions with his current attorney were protected by the attorney-client privilege and such privilege was not waived by plaintiff, or put in issue by plaintiff, by initiating the legal malpractice action.