New York CM Report of Recent Decisions (2004v1-2)
2004 Volume 1, 2
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.
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Articles in this report
If a potential adversary or someone on behalf of a potential adversary is going to preserve evidence that you have an interest in, you must send a letter to that potential adversary, or to the entity acting on behalf of the potential adversary, clearly and unambiguously advising them that: (1) the evidence will be used in an impending litigation; (2) they have a duty to preserve the evidence for your benefit; (3) you are willing to pay for any storage costs, on a pro rata basis; (4) failure to preserve the evidence will constitute a breach of their duty to preserve the evidence; and (5) failure to preserve the evidence will result in a claim being filed against them in a court of law relative to their spoliation of the evidence.
New York's Highest Court Enlarges Malpractice Liability--Mother May Recover Emotional Damages When Medical Malpractice Causes Miscarriage Or Stillbirth
In a split decision, the New York Court of Appeals has held that, even absent a showing of independent physical injury to her, a mother may recover damages for emotional harm when medical malpractice causes miscarriage or stillbirth. In Broadnax v.Gonzalez, 2004 WL 635298 (April 1, 2004), the majority overturned the Court of Appeals’ opinion in Tebbutt v. Virostek, 65 N.Y.2d 931 (1985), which had held that emotional damages resulting from miscarriage or stillbirth could be recovered by a mother only where she herself suffered an independent physical injury as a result of the medical malpractice.
New York’s “No-Prejudice” Rule In Late Notice Coverage Cases Appears To Be Changing
New York is one of the few states that continues to allow an insurer to disclaim coverage for late notice of an occurrence and of a lawsuit without proving prejudice. The majority of states do not allow an insurance company to disclaim for the mere passage of time between the date of the occurrence, claim or lawsuit and the date the insured notifies the insurance carrier.
Non-Party Subsequent Remedial Repairs Held Admissible
Where a non-party operator has performed subsequent remedial improvements, which could have prevented an injury, the change will form powerful evidence that the product was defective and an injury could have been prevented. It is possible to preclude this evidence by making the operator a party to a claim of indemnity. When analyzing a product defect claim, keep in mind that because of worker’s compensation law, the product’s operator is not likely to be sued by its employee.
Sidewalk Liability Shifts To New York City Property Owners Under New Law
As a result of § 7-210, commercial property owners will now be liable for an abutting sidewalk which is negligently maintained, defective, or in a dangerous condition. Prospectively, it will be necessary for property owners to retain contractors to repair any sidewalk problems because the City of New York no longer will be responsible for repairing the sidewalk. The owner of the property is now responsible for all repairs and maintenance. Insurance carriers should consider informing their New York property owners, if not already, of the new law and instruct their insureds to give immediate notice of any and all potentially covered claims. In addition, property owners must be cognizant of existing and new sidewalk problems and immediately repair, as well as maintain appropriate insurance coverage.
