Francis J. Scahill

Keep this case in your pocket when you are in hostile territory, which could be anywhere a Judge is seeking to rush you through jury selection. Zgrodek v. McInerney 61 A.D.3d 1106 Third Department 2009.

"We find merit in plaintiffs' argument that Supreme Court placed unduly restrictive time constraints on the questioning of prospective jurors. Over plaintiffs' objections, both before and after voir dire, the court limited questioning in each round to 15 minutes. While the trial court is accorded discretion in setting time limits for voir dire (see 22 NYCRR 202.33; Horton v Associates in Obstetrics & Gynecology, 229 AD2d 734, 735, 645 NYS2d 354 [1996] [60 minutes for first round and 30 minutes for subsequent rounds upheld]), the 15 minutes allowed for each round under the circumstances of this case was unreasonably short (see Implementing New York's Civil Voir Dire Law and Rules, at 6, here [NY St Unified Ct Sys, Jan. 2009, accessed Feb. 25, 2009] [stating that "(i)n a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire"]).This case involved close factual and medical issues, and evidence from several experts was presented at trial. Issues implicated involved, among others, proof regarding four distinct injuries and four surgeries, challenges to causation regarding each injury, the relevance  and impact of plaintiff's preexisting conditions, the weight to be given evidence from several experts with markedly varying opinions, and consideration of appropriate compensation for a variety of asserted injuries. Notwithstanding that liability was not an issue, the case was not simple and straightforward. We cannot conclude from this record that plaintiffs were not prejudiced by the extremely short time permitted for voir dire."

Read the decision here.

Read the Voir Dire Rules here.  

The Uniform Notice of Claim law was signed by Governor Cuomo in December 2012. The legislation (S.7641-B and A.10657-A) will apply the 90-day limit for filing a notice of claim in the General Municipal Law to filings against all entities, including public authorities and corporations. 

The measure will also allow all notices to be filed through the New York State Secretary of State's office, who is now required to forward the notices within 10 days to the appropriate entity. All actions filed against an entity that is entitled to a notice of claim will be subject to a minimum 1-year, 90-day statute of limitations. 

This act shall take effect on the one hundred eightieth day after it shall have  become  a law and shall apply to all actions and proceedings accruing on or after such date.

Read the full law here.  

 Read the decision here.   

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In certifying the question to the Court of Appeals, the Second Circuit noted, "The New York Court of Appeals has not addressed the state of mind required to constitute malice in the context of an insurance policy covering vandalism especially where the act in question was not directed to the covered property. As we have indicated above, the intermediate appellate courts of New York have not adopted a clear and consistent rule that is necessarily predictive of how the New York Court of Appeals would rule. In the absence of a definitive ruling from the New York Court of Appeals, we cannot accept the district court's conclusion that the plaintiff's claim for vandalism insurance coverage fails as a matter of law because the  actions that caused the damage to the covered property were directed not at the covered property but at the adjacent property. We believe that the question presented in this appeal is sufficiently unsettled to warrant certification." 

Stay tuned for an important  decision on the issue of "malice" required to recover under an insurance policy from the Court of Appeals in 2013.

Read the decision here.

What's the #1 resolution every year: Lose weight and get into shape. Health clubs revenue is based on only a small percentage of clients who show up at their facilities. The rest join and never go. What liability does the health club have for "improper supervision and instruction"? 

Consider the case of Dianne Layden who filed suit against Angela Plante, a certified personal trainer, at No Limits Fitness. She advised Angela Plante before her training session that she had a history of back problems and a herniated disc. The trainer then instructed plaintiff in a program of weight-lifting moves that plaintiff performed under her supervision. Two days later, plaintiff used the trainer's written  instructions to repeat the program without supervision. While performing a maneuver called a Smith squat, plaintiff experienced lower back pain, and ultimately thereafter underwent surgery to correct two herniated discs. Plaintiff claimed that the injury to her back was caused by the trainer's improper supervision and instruction, by the health club's negligence in failing to provide a safe place and properly trained staff, and also upon the doctrine of respondeat superior based on the trainer's acts as an agent or employee.

The Appellate Division, Fourth Department in Layden v Plante, 2012 NY Slip Op 9126, issued on December 27, 2012, overturned summary judgment for the health club and trainer. Applying the doctrine of assumption of risk, the Court stated, "We find that defendants met their initial burden on summary judgment to establish on a prima facie basis that plaintiff knew of the risks, appreciated their nature and voluntarily assumed them" However, the Court ruled a trial was necessary as, "We find triable issues of fact presented as to whether the trainer's actions 'unreasonably heightened the risks to which [plaintiff] was exposed' beyond those usually inherent in weight-lifting."

Anand v Kapoor, 15 NY3d at 948). Given plaintiff's admitted awareness of the risk, any assertion that Plante's exercise program unreasonably enhanced the risk is meritless inasmuch as plaintiff's reliance on Plante to negate the danger of further injury was not justifiable (see Feeney v Manhattan Sports Club, 227 AD2d at 294). Despite the parties' dispute over whether Plante told plaintiff to stop any exercise that caused her pain and whether the Smith Squat was contraindicated for anyone with a herniated disc, there is no evidence that Plante or anyone else either urged plaintiff to continue with that exercise or reassured her that performing it was safe despite her discomfort."

 Read the decision here.  

I submit social media investigations will change the face of the defense of personal injury claims in the next decade.  Facebook reports it now has 1.01 billion subscribers worldwide with 584 million active users each day and 604 million people using Facebook from a mobile device each month. In its sixth year, Twitter reports 500 million users with 340 million "tweets" each day. Myspace reports 25 million visitors in the United States per month. What have the entrepreneurs who have developed these social networking sites discovered about the human condition that has made them billionaires?  People love to write about themselves. People have an insatiable desire to share information about themselves. They love to post photographs and videos on Facebook. They love to tweet about their vacation. They love to report their every activity from the ordinary to the ridiculous to the world. How can insurance carriers and defense counsel capitalize on this urge to post your every activity on Facebook? The answer is obvious:  What is there for the world to see is fair game for defense counsel to use at trial. 

Judge Jeffrey Spinner in a 2010 Supreme Court Suffolk County case, Romano v. Steelcase (907 N.Y.S. 2d 650) set the bar high for a plaintiff looking to protect his internet indiscretions as privileged material stating:

"Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action (see Hoenig v Westphal, supra). Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury (see Walker v City of New York, 205 AD2d 755, 614 N.Y.S.2d 31 [2 Dept 1994]) including a plaintiff's claim for loss of enjoyment of life (see Orlando v Richmond Precast Inc, 53 AD3d 534, 861 N.Y.S.2d 765 [2 Dept 2008] in an action to recover damages for personal injuries, records sought were material and necessary to the defense regarding plaintiff's claim of loss of enjoyment of life); Vanalst v City of New York, 276 AD2d 789, 715 N.Y.S.2d 422 [2 Dept 2000); Mora v St Vincent's Catholic Med Ctr, 8 Misc 3d 868, 800 N.Y.S.2d 298 [Sup Ct NY Co 2005).

Both Facebook and MySpace are social networking sites where people can share information about their personal lives, including posting photographs and sharing information about what they are doing or thinking. Indeed, Facebook policy states that "it helps you share information with your friends and people around you," and that "Facebook is about sharing information with others."

Likewise, MySpace is a "social networking service that allows Members to create unique personal profiles online in order to find and communicate with old  and news friends;" and, is self-described as an "online community" where "you can share photos, journals and interests with your growing network of mutual friends," and, as a "global lifestyle portal  that reaches millions of people around the world." Both sites allow the user to set privacy levels to control with whom they share their information. The information sought by defendant regarding Plaintiff's Facebook and MySpace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence."

Judge Paul Marx of Orange County Supreme Court has weighed in on the subject in his October 19, 2012 decision in Winchell v. Lipiccolo, 2012 NY Slip Op 22337. The defendants sought access to the plaintiff's Facebook pages arguing, "the manner in which Plaintiff uses her Facebook page, including photo layouts and captions, expressiveness of language and lucidity of her statements will illuminate the nature and extent of her claimed neurological and psychological injury." The lack of specificity in the defendant's disclosure demand was fatal to the application. Judge Marx noted, "The Court is troubled by the breadth of Defendants' Request for authorization for Plaintiff's Facebook page because it seeks unrestricted access. While the Court recognizes Defendants' attempt to establish a factual predicate for their request, the fact is that every bit of information Plaintiff enters onto her Facebook page demonstrates some level of cognitive functioning. This Court's review of reported decisions in this area has not disclosed any instance where such unfettered access was allowed, unless the requesting party first showed that information on the other party's public page contradicted their claims of injury or damages....Defendants have not made that contention here. They hope to discover such information in their search. Defendants cannot point to anything concrete. Instead, they hope to divine the extent of Plaintiff's cognitive injuries from reading every bit of information on her Facebook page."

Read the decision here.