Category Archives: New York

NYAD2: Plaintiff cannot repudiate settlement made by counsel of record at mediation.

Plaintiff was not present at a mediation when her lawyers settled her trip and fall case for $ 150,000 at mediation. She refused to sign closing papers, and claimed she was unaware of the settlement. The Supreme Court saw things her way, but the Appellate Division reversed and said the settlement must be enforced.

The appeals panel noted that lawyers from the firm that was counsel of record were cloaked with apparent authority, and that the plaintiff failed to demonstrate that terms of the settlement agreement were so unfair or one-sided as to “shock the conscience and confound the judgment of any person of common sense” or that it was based on a mistake made despite the exercise of ordinary care.

Amerally v Liberty King Produce, Inc. (03/06/2019).

A Wee Dram for Naught

In his 1785 poem Scotch Drink, the great Robert Burns urged displacement of lawyers by alternative dispute resolution in the form of alcoholic beverage:

When neibors anger at a plea,

An’ just as wud as wud can be,

How easy can the barley brie

Cement the quarrel!

It’s aye the cheapest lawyer’s fee,

To taste the barrel

 It didn’t work out that well for the plaintiff in Esposito v Rail Bar & Grill Corp, decided 2/20/2019 by the Appellate Division, Second Department.

Espositio got into a verbal disagreement with Kral in the defendant bar. Espositio then bought Kral a drink. It seems that didn’t patch things up, because “tensions . . . erupted again” leading to an altercation with Kral and another person.

Espositio sued the bar, claiming Dram Shop Act violations because Kral was too intoxicated to be served.

Alas, not only did Espoito’s generosity fail to “cement the quarrel”, it also put him out of court, since “plaintiff’s procurement of the allegedly unlawful drink for Karl precludes the plaintiff from recovering under the Dram Shop Act.”

NY AD 1 Takes Dim View of Doctor Non-compete

A medical group, an employed physician and the physician’s new group wound up in court arguing about restrictive covenants in an employment contract. The old group asked the court to stop the doctor from violating the restrictions, and to order the  new group not to interfere, while the lawsuit progressed.

The Appellate Division, First Department, said the old employer was not entitled to the preliminary injunction. The court said that non-compete clauses will not be enforced against individual doctors unless it is necessary for the protection against misappropriation of the employer’s trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary. 

While the doctor was probably happy to hear that the court would not stop her from working for the new practice,  the court based it decision on a finding that her ob/gyn services were not so unique or extraordinary as to give her an unfair advantage.

Harris v. Patients Med, P.C. (Feb 7, 2019).

“Quixotic”, “self-absorbed”, “narcissistic”, “ungrateful”, “delusional”, and a “paranoid pompous ass” (sorry, it’s not who you think).

These words were not used to describe a public figure. The operator of an apartment complex allegedly used them to describe a resident after a dispute over entitlement to a third parking space.  The resident sued for defamation, harassment, and intentional infliction of emotional harm.

The New York Appellate Division, Second Department, said these terms were not defamatory per se since they did not connote a serious crime or loathsome disease, and did not tend to injure the resident in his trade or profession. Furthermore, they were readily understood as expressions of opinion, and were not statements of fact. Statements of opinion are not actionable.

The court threw out the harassment claim because, in this context, no such claim exists under New York law.

The court also held that these expressions were no so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Thus, there was no case for intentional infliction of emotional distress.

Scialdone v DeRosa  (March 1, 2017)


The Empire State will implement licensure of pathologists’ assistants on November 28, 2017, under new Article 168 of the New York Education Law approved on November 28, 2016. Applicants for the new license will need at minimum a bachelor’s degree in an approved program and will have to pass an examination.

Licensees will be authorized, under the supervision of a physician who practices anatomic pathology, to prepare tissues samples, perform post-mortem examinations, and perform other related tasks to be determined by the State Education Department.

The bill’s sponsor explained that individuals currently doing this work often try to qualify as laboratory technicians under a law that soon going to sunset, even though they are certified by national bodies or hold international medical degrees.

2016 NY Laws Ch. 497




I am admitted to the bar in two great states, Arizona and New York.

I have enjoyed hockey since my youth. I well remember listening to Marv Albert call Rangers’ games on our small radio. There were only six teams in the league, New York being the southern-most. That I would one day attend NHL games in Glendale, AZ, was beyond all imagination.

So as I often do when I am not diligently pursuing my clients’ matters, I was amusing myself by reading the output of appellate courts (I admit it: I’m sick). I discovered that, on the same day, courts in both states issued opinions about hockey fan fights.

A youth hockey tournament of 13-year-old players took place in Rome, New York, a/k/a the “Copper City”. The spectators were mostly relatives of the players. The game was marked by on-ice fisticuffs and ejection of one of the coaches.

After the game, two female spectators got into a fight. Although the opinion does not tell us their relationship to the on-ice combatants, it does bring to mind Sara Palin’s speech about hockey moms and pit bulls with lipstick. In the ensuing melee, the plaintiff tried to break up the fight only to get clocked by one woman’s brother.

The plaintiff sued the youth hockey association for failing to maintain order and to enforce its “zero tolerance” policy. New York’s high court held that the criminal conduct of the adults was not a foreseeable consequence of the league’s failure to eject any particular spectator, and so the league was off the hook.

Pink v Rome Youth Hockey Assn (Oct. 25, 2016).

Meanwhile, back in the “Copper State” of Arizona, a Mr. Franklin was intoxicated at a hockey game and began to direct insults and profanities as some of the other spectators. One Blanchard felt a “thud” on his head, and turned to see Franklin making obscene gestures and otherwise acting in a disordered manner. Blanchard punched Franklin in the head, Franklin then spit on Clemett, and Clemett responded by punching Franklin twice in the head.

Franklin then sued Blanchard and Clemett (in New York they call that “chutzpah”). Blanchard and Clemett raised the defense of Franklin’s drunkenness. By Arizona statute (A.R.S. § 12-711), you can’t collect anything for your injury if you are at least half at fault due to intoxication. The judge instructed the jury on this law and Franklin got zilch.

Franklin told the Arizona Court of Appeals that the jury instructions violated a provision in the Arizona constitution that requires questions of contributory negligence to be decided by a jury. The Court of Appeals found that there was “ample evidence Franklin was under the influence of an intoxicating liquor”, and that the jury properly applied the intoxication defense. So, for now, Franklin still gets zilch, and owes appeal costs to boot.

Franklin v Clemett (Oct. 25, 2016).

So in the Empire State and the Copper State, from the Copper City to the Valley of the Sun, players play their hockey, fans get out of hand, and justice is dispensed. It makes me feel somehow whole and connected.


The insurance company for the snow removal contractor was notified of the occurrence when the plaintiff slipped and fell. The claim was not resolved and the plaintiff sued the contractor. The contractor did not respond to the lawsuit and did not send the lawsuit papers to the insurer.

A few months later, before asking for a default judgment against the contractor, the plaintiff forwarded the suit papers to the insurer, together with medical information and authorizations for medical records. The insurer responded with a disclaimer, citing the contractor’s failure to give timely notice of the suit.

The underlying case went to trial and the plaintiff got a $3 million + judgment against the contractor. When the judgment went unsatisfied, the plaintiff sued the insurer as provided by New York statute.

The court held that the disclaimer was ineffective because it did not specify that the notice of lawsuit given by the injured party, as opposed to the policyholder, was untimely:

Where the required notice of suit is not provided by the insured, but rather by the injured party, the insurer’s notice of disclaimer must address with specificity the grounds for disclaiming coverage applicable to the injured party as well as the insured . . .

The opinion does not discuss the presence or lack of prejudice to the insurer at the time of the late notice.

Pollack v Scottsdale Ins. Co. (Oct. 12, 2016)


The construction company had an endorsement on its CGL insurance policy that said:

WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization with whom you have agreed to add as an additional insured by written contract but only with respect to liability arising out of your operations or premises owned by or rented to you.

The construction company signed a contract with DASNY, in which it promised to make the third-party construction manager an additional insured on the policy.

The majority of a panel of the New York Appellate Division, First Department, said that the manager is not covered under the policy, despite the construction company’s promise to DASNY. The court reasoned that the construction company had no agreement with the manager, and the agreement to obtain insurance for the manager was insufficient under the express terms of the insurance policy endorsement.

One justice dissented, noting that the sentence in question was

poorly drafted in terms of its syntax . . . in that the word “whom” is the object both of the preposition “with” and of the infinitive “to add.”

The dissenter also worried that the majority’s rule was out of step with the customary practices and expectations of people in the construction business.

The majority was not persuaded by the dissenter. The court said the endorsement was unambiguous, and quoted precedents favoring literal interpretation:

As the Court of Appeals has made abundantly clear,                  “[E]quitable considerations will not allow an extension of coverage beyond its fair intent and meaning in order to obviate objections which might have been foreseen and guarded against” (Caporino v Travelers Ins. Co., 62 NY2d 234, 239 [1984]). Ultimately, the dissent’s argument ignores the fact that courts “may not disregard clear provisions which the insurers inserted in [the policies] and the insured [here, a sophisticated business entity that presumably relied on experts to advise it] accepted” (id.).

This may not be the last word from New York courts on this, since the majority recognized conflicts in the trial courts on this issue.

Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co. (Sept. 15, 2016)



You can’t make this stuff up. A man went to the ER with seizures. While he was on the exam table, his dad brought him a cup of coffee. You guessed it – he had another seizure and spilled the coffee on himself. This caused second and third degree burns, which, according to the court opinion, were not diagnosed until three days later. After a plastic surgery consultation, the patient was discharged with instructions to follow up in 1 -2 weeks.

The inevitable negligence and medical malpractice lawsuit resulted in a confusing verdict. The jury rejected the claim that the hospital was negligent for permitting the man to have hot coffee. The jury did find malpractice by the hospital in failing to take immediate measures in response to the coffee spill, and in discharging the patient prematurely. The jury found that the premature discharge was not the proximate cause of the claimed injuries. As to the failure to promptly treat the burns, the jury assigned 90% of the fault to the plaintiff, and 10% to the hospital.

The Appellate Division, Third Department,  refused to disturb the jury’s finding that the premature discharge was not the proximate cause of any injury:

 . . . there was ample other evidence from which the jury could reasonably have found that the severity of plaintiff’s pain was caused by the initial injury rather than the premature discharge, and that his pain was not increased by the timing of his admission to the burn center a week after his discharge . . . Thus, granting defendant the benefit of every favorable inference that can reasonably be drawn from the trial evidence, as we must . . . we cannot say that “the evidence so preponderated in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence . . .

As for the rest of it, the majority panel ordered a new trial on damages in the interest of justice. The appeals court could not figure out how the jury arrived at its $25,000.00 award. Two concurring justices urged that, in light of the finding of no negligence in permitting the coffee in the first place, the jury should be specifically instructed that the hospital is liable only for any exacerbation of the injuries and additional pain caused by lapses in the treatment given while the patient was in the hospital.

Vallone v Saratoga Hospital (July 14, 2016)


Historically, medical treatment could be offered by a physician and surgeon, licensed by the Education Department, or by a hospital licensed by the Department of Health. Over time, in addition to traditional general hospitals, ambulatory surgery centers (among other providers) were also licensed by the Department of Health. Doctors would examine patients in their offices, and then utilize the facilities of a Department of Health licensee if the patient needed an operation. Doctors got paid for their professional services, and facilities got paid for, well, their facilities.

As technology advanced and fewer operations required an overnight stay, many doctors expanded the scope of what they could do in their offices until the office came close to resembling a hospital operating room.  There was nothing specific on the books to limit the scope of what a doctor could offer in her office. So in 2007, the legislature added § 230-d to the Public Health Law, requiring practices where office based surgery takes place to become accredited by an agency, such as JCAHCO (“Joint Commission”), which also accredits hospitals.

Now comes the case of a practice that treated a patient for injuries sustained in a motor vehicle accident. The practice was accredited for office based surgery. The practice billed the no-fault carrier for a professional fee and a facility fee. The carrier balked at the facility fee, and NY’s high court agreed.

The Court of Appeals found that, notwithstanding the accreditation required for office based surgery, there were still differences between OBS practices and facilities licensed by the Department of Health. The court reviewed the applicable regulations, which allowed no-fault payment of facility fees for ambulatory surgery centers, and found they did not provide facility fee payments for office based surgery. The practice argued that there was nothing in the regulation that said it couldn’t get paid, to which the court said “administrators may exercise their administrative authority through silence”.

Score one for the gecko.

Government Empls. Ins. Co. v Avanguard Med. Group, PLLC. (March 31, 2016)