Jose Colon was shot and killed by Suffolk County Police in April of 2002 when he was 20 years old. Seven months later, his girlfriend had a child, Jose Feliciano-Colon, and a posthumous order of filiation was entered. The County moved to dismiss the claims for wrongful death alleged by the son, claiming, "...that a child who is in utero at the time of the parent's death suffers no pecuniary loss."

In Seaton v County of Suffolk, (2010 NY Slip Op 8926), the Appellate Division, Second Department held on November 30, 2010, "The right of a nonmarital child to recover in an action alleging the wrongful death of his or her father is coextensive with the child's right to inherit from the father under EPTL 4-1.2" EPTL 4-1.2(a)(2)(C) was amended, effective April 28, 2010, to provide that a nonmarital child is the legitimate child of his father if "paternity has been established by clear and convincing evidence, which may include, but is not limited to: evidence derived from a genetic marker test, or (ii) evidence that the father openly and notoriously acknowledged the child as his own." The in utero child therefore can proceed with a claim for pecuniary loss when the posthumous DNA test constituted clear and convincing proof of paternity.

Read full decision here.
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Shopping, oh we hate thee so!

Grace Adsit was shopping in Wal-Mart and was injured when she was struck by a metal rod that was left in a shopping cart, allegedly by an employee of Wal-Mart. She claimed she suffered a contusion to her back and now has Reflex Sympathetic Dystrophy (RSD) which requires her to be in a wheelchair (all defense counsel eyebrows are now raised in unison). At mediation, the claim was settled for $240,000. The plaintiff thereafter claimed that she was not "of clear mind" when she signed the mediation settlement papers and did not want to accept the settlement. She thought she would receive $240,000 a year for life, not just the one payment. Perhaps she had just re-read the line from the Sun of New York, "Yes, Virginia, there is a Santa Claus".

The Appellate Division, Third Department, in Adsit v. Wal-Mart Stores Inc. (2010 NY Slip Op 8812) issued on December 2, 2010, disagreed. At the hearing on this matter, plaintiff and her companion, Leonard Pardo, testified that she became light-headed, weak and confused during the five-hour settlement negotiations due to the failure of the batteries in the pump for her oxygen tank, lack of a lunch break, poor sleep the night before and her heavy medication regimen. Plaintiff further testified that she had no memory of signing the settlement agreement, and presented letters from two physicians indicating that her medications could cause disorientation and confusion. Plaintiff and Pardo admitted, however, that they did not alert anyone of their concerns regarding plaintiff's mental state or her ability to understand the settlement" The Appellate Court upheld the Supreme Court determination to enforce the stipulation, stating, "According deference to Supreme Court's credibility determinations, we conclude that the court properly determined that plaintiff failed to meet her burden of demonstrating that the settlement agreement was invalid (see Lansco Corp. v NY Brauser Realty Corp., 63 AD3d at 514-515; Bell v White, 55 AD3d at 1214; Sears v First Pioneer Farm Credit, ACA, 46 AD3d at 1285). Nice try, but $240,000 a year for life from Wal-Mart, come-on!

Read full decision here.

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Anyone who grew up in "The City" would find this fact pattern familiar: a group of boys are playing basketball in a town park and three other youths (as in "yuts" from my cousin Vinny) from outside the neighborhood came on to the court, and a fight ensued. William Salone sued the Town of Hempstead for failure to provide adequate security following a fight at Shell Creek Park in Island Park on May 15, 2005.

Judge Marber, of Nassau Supreme Court, in her decision of December 2, 2010, Salone v. Town of Hempstead (2010 NY Slip Op 52166U) held "The Defendant's argument that a "special relationship" must exist between the Plaintiff, Salone, and the municipality in order for liability to be imposed is misplaced. The function of operating, maintaining and supervising a park is not a governmental function and a "special relationship" is not a necessary prerequisite for the imposition of liability upon the municipality. The duty of a municipality, to those who are invited to avail themselves of such facilities, is more than that owed by a private landholder to a trespasser or licensee."

Caldwell v. Village of Island Park, 304 NY 268, 107 N.E.2d 441 (1952). "Here the Town's dismissal motion was denied with the Court ruling "The Plaintiff raised an issue of fact as to whether the minimal security was provided and whether the procedure for checking the identification of residents was followed."" Could anyone imagine a park in the old neighborhood where someone would be "checking the identification" of players? That would be about as farfetched as someone filing a lawsuit after a fight in the park. Well those days are gone, for sure!

Read full decision here.