New York CM Report of Recent Decisions (2008v4)
2008 Volume 4
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
Articles in this report
Court Declines To Dismiss Engineer Where Collapse Occurred Nearly Two Decades After Alleged Design Defect
A 250-foot section of a retaining wall bordering the Castle Village co-op complex collapsed onto the Henry Hudson Parkway (a major artery providing access into and out of Manhattan). The collapse closed the Parkway and damaged other property nearby. Castle Village sued, among others, Langan Engineering & Environmental Services, Inc. (“Langan”), the engineers who monitored the retaining wall since 2002.
New York’s Highest Court, the Court of Appeals, reversed the Appellate Division, in part, and held that Continental Casualty Company’s (“Continental”) disclaimer of coverage was not untimely as a matter of law and that further questions of fact remained.
Dismissal Of Claims Alleging Injury From Use Of Lipitor
Michigan citizens sued Pfizer, Inc. (“Pfizer”) for alleged injuries resulting from the use of Lipitor. Pfizer moved to dismiss the complaints, asserting that Michigan law governed Plaintiffs’ claims because Plaintiffs were Michigan residents claiming personal injuries resulting from their use of Lipitor in Michigan.
Plaintiff Not Required To Submit Expert Affidavit To Defeat Defendant Nursing Home's Motion For Summary Judgment As Plaintiff's Complaint Sounds In Ordinary Negligence And Not Malpractice
Plaintiff’s decedent, a ninety one year old resident at the Defendant nursing home facility, was discovered on the floor in the middle of her room, where she apparently had fallen while trying to reach the bathroom unattended. Plaintiff’s decedent was transferred to a hospital and was diagnosed with a broken hip. She died later that day of renal and heart failure.
Waiver Of Subrogation Defense Not Waived Even If Not Pled By Defendants
Defendants moved for Summary Judgment seeking to enforce a waiver-of-subrogation provision contained within the pertinent contract and dismiss Plaintiff’s subrogation action. Plaintiff argued that Defendants were not entitled to enforce the waiver-of-subrogation provision because they did not raise it as an affirmative defense in their Answers.