New York CM Report of Recent Decisions
2007 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.
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Articles in this report
Scott Stands As Stark Warning: E-Mails Exchanged Over Client's Employer's E-Mail System May Not Enjoy Privileged Status
Scott v. Beth Israel Medical Center, --- N.Y.S.2d ----, 17 Misc.3d 934, 2007 WL 3053351 (N.Y.Sup.), 2007 N.Y. Slip Op. 27429 (October 17, 2007), raised new issues concerning CPLR 4548 - specifically, whether e-mail communications between a client and his/her attorney via the use of employer-based electronic systems enjoys privileged status.
In Toxic Tort Case Court Holds That Defendant Failed To Demonstrate That Plaintiffs Cannot Establish, Based Upon Generally Accepted Scientific Principles, That Their Exposure TO Allegedly Harmful Airborne Substances Caused The Illnesses For Which They Are Seeking Damages
The Appellate Division, Fourth Department, recently determined in B.T.N., an Infant, by his Mother and Natural Guardian, Deborah L. Netti, Deborah L. Netti, Individually, J.L.M., an Infant, by her Mother and Natural Guardian, Patricia A. Marcon, and Patricia A. Marcon, Individually, v. Auburn Enlarged City School District, 2007 N.Y. Slip.Op. 8561, 845 N.Y.S. 2d 614 (4th Dep’t 2007), that Defendant failed to demonstrate that Plaintiffs cannot establish that, based upon generally accepted scientific principles, their exposure to toxic substances in Defendant’s schools caused the illnesses for which they are seeking damages.
Insured's Release In Personal Injury Action Prohibited Carrier's Subrogated Claim For No-Fault Payments
In Progressive Insurance Company as subrogee of Arye Weiner v. Sheri Torah, Inc., 2007 N.Y. App. Div. Lexis 10749 (2d Dep’t 2007), the Appellate Division held that a release executed by an insured prohibited the subrogated insurance carrier’s subsequent action which sought reimbursement for additional personal injury protection (“APIP”) benefits.
Insurer's Failure To Show Reasonableness Of Its Delay In Issuing A Timely Disclaimer Precludes Motion For Summary Judgment
In Those Certain Underwriters at Lloyds, London v. Gray, et al., 2007 WL 3380450 (1st Dep’t 2007), the Appellate Court held that Plaintiff/Insurer failed to establish, as a matter of law, that its delay in issuing a disclaimer of coverage for fifty-six (56) days was reasonable, with respect to an underlying personal injury lawsuit against Defendant/Insured, Cathy Gray.
New York Court Of Appeals Affirms Holding That There Is No Independent Tort Of Third-Party Negligent Spoliation Of Evidence
On October 16, 2007, New York’s highest court answered the long awaited question: whether New York recognizes the tort of third-party negligent spoliation of evidence. The unanimous decision of the Court, in its second sentence of the decision, stated: “We conclude that the tort is not cognizable in this state.” Ortega v. City of New York, 9 N.Y.3d 69 (2007).
New York Court Of Appeals Decides That "Saving Statute" Does Not Apply To Related Insurers
New York’s highest court recently issued a decision that New York’s “Saving Statute,” CPLR 205(a), does not allow a related, but different, corporate entity to commence a new action beyond the expiration of the statute of limitations. Reliance Ins. Co. v. Polyvision Corp., 9 N.Y.3d 52 (N.Y. October 11, 2007). This decision settled a previously unresolved issue of New York law.
New York State Court Of Appeals Holds That A Party May Be Compelled To Provide Adverse Counsel With HIPPA Compliant Authorization for Ex Parte Interview
The New York State Court of Appeals in Arons v. Jutkowitz, --- N.E.2d ----, 2007 WL 4163865, 2007 N.Y. Slip Op. 09309, N.Y., November 27, 2007 (No. 2, 147, 153, 148, 4), and related cases, held that a party may be compelled to provide an adverse party with a HIPAA-compliant authorization permitting an adverse party to conduct an ex parte interview of the party’s treating physician.
The Fine Line Between Diligence And Delay: Insurance Law Section 3420[D] And Its Affect On Disclaiming Coverage For Lack Of Cooperation
Continental Casualty Company v. Terrance D. Stradford, et al, 2007 N.Y. App. Div. LEXIS 12577 at *1 (2d Dep’t 2007), involved a declaratory judgment action, wherein the Second Department provided further insight into what is required to effectively disclaim coverage based on an insured’s lack of cooperation. This action stems from two medical malpractice cases in which Continental provided defense counsel to its insured, Terrance D. Stradford.
