Findlaw Case Summaries: New York Court of Appeals. 04/03/2009

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ATTORNEY’S FEES, INSURANCE LAW LMK Psych. Servs., P.C. v. State Farm Mut. Auto Ins. Co., No. 31 In an action for no-fault insurance proceeds, the attorneys’ fee award in favor of Plaintiffs is reversed, where: 1) attorneys’ fees in an insurance claim are to be calculated based on the aggregate of all bills for each insured; and 2) an insurer who issues a proper and timely denial is entitled to tolling with regard to interest on the claim.

CONSTRUCTION, INJURY AND TORT LAW, PROPERTY LAW & REAL ESTATE Kerusa Co. v. W10Z/515 Real Estate Ltd. Pshp., No. 36 In a fraud action stemming from construction defects, the dismissal of the complaint is affirmed where a purchaser of a condominium apartment may not bring a claim for common-law fraud against the building’s sponsor when the fraud is predicated solely on alleged material omissions from the statutorily mandated offering plan amendments

INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW Ferluckaj v. Goldman, Sachs & Co., No. 45 In a tort action based on Plaintiff janitor’s accident while cleaning a building leased to Defendant, the denial of Defendant’s summary judgment motion is reversed, where Defendant did not hire Plaintiff’s employer and exercised no control over Plaintiff’s work. .

PROBATE, TRUSTS & ESTATES, SPORTS LAW Golden Gate Yacht Club v. Societe Nautique de Geneve, No. 25 In an action seeking to exclude a challenger from the America’s Cup yacht race, summary judgment for Plaintiff is affirmed where the phrase “having for its annual regatta” in the trust instrument required a yacht club to hold an annual regatta on the sea prior to issuing its challenge to participate in the race
ATTORNEY’S FEES, CONTRACTS, ETHICS & PROFESSIONAL RESPONSIBILITY Samuel v. Druckman & Sinel, LLP, No. 39 In an action seeking a declaratory judgment that a fee-sharing agreement between lawyers was invalid, the Appellate Division’s order that Defendant referring attorney was not entitled to attorney’s fees awarded in connection with a judgment is reversed, where the plain terms of the agreement entitled Defendant to such fees.

CIVIL PROCEDURE, PROFESSIONAL MALPRACTICE Duffy v. Vogel, No. 42 In Plaintiff’s appeal from judgment for Defendant in a medical malpractice trial in which the jury’s verdict was apparently contradictory, the trial court’s order denying Plaintiff’s request to poll the jury is reversed, where the denial of a request to poll the jury cannot be harmless error.

CRIMINAL LAW & PROCEDURE People v. Kalin, No. 34 Defendant’s drug possession conviction is affirmed, where: 1) Defendant’s entry of a guilty plea forfeited his claim that the misdemeanor information was deficient; and 2) the information, in any event, adequately described the controlled substances at issue.

GOVERNMENT LAW, INJURY AND TORT LAW McLean v. N.Y., No. 46 In an action for negligent supervision of a day care center by Defendant city, the denial of Defendant’s motion for summary judgment is reversed, where there was no special relationship between Plaintiff and the city that would permit a tort action.

GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE 10 East Realty, LLC v. Valley Stream, No. 32 In an Article 78 proceeding to annul a purchase-money mortgage in connection with the sale of municipal property to a private entity, judgment for Plaintiffs is reversed, where a purchase-money mortgage is not a “loan” under the Gift or Loan Clause of the New York Constitution.

INJURY AND TORT LAW, PRODUCT LIABILITY Jaramillo v. Weyerhaeuser Co., No. 29 On a certified question from the U.S. Court of Appeals for the Second Circuit, the N.Y. Court of Appeals held that Defendant company that sold one of its used machines (itself purchased used) to a different company could not be held strictly liable for a workplace accident involving that machine, because Defendant was a casual seller.

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