New York Court Applies Doctrine of Estoppel Against Inconsistent Positions and C.P.L.R. Section 105(u) to Dismiss Civil Lawsuit Against a City Contractor

Pisciotti Malsch recently secured summary judgment for its client, a construction company, based upon the doctrine of estoppel against inconsistent positions and C.P.L.R. § 105(u).

Plaintiff, a passenger in a car, brought suit against the City of New York and its contractor due to a one-car accident allegedly caused by the contractor’s negligent work in a construction zone.  Through investigation, it was discovered that Plaintiff had previously brought suit against the driver of the automobile and in a Verified Complaint, the plaintiff had alleged that “the aforesaid motor vehicle collision was caused solely by the negligence of the [driver] in the ownership, management, operation, maintenance, and/or control of the motor vehicle.”  This lawsuit was settled for the full policy limits ($25,000). Read the rest of this entry »


“Joint Employment” Argument Utilized to Secure Dismissal of Personal Injury Lawsuit Pursuant to New Jersey’s Workers’ Compensation Act

In a recent case in Hudson County, New Jersey, Pisciotti Malsch successfully argued that a plaintiff’s civil lawsuit against its client was barred pursuant to New Jersey’s Workers’ Compensation Act.

The plaintiff was employed as a maintenance worker for a nonprofit organization (the Charity) that supports and provides assistance to developmentally disabled adults.  The Charity leased a building on the property owned by Pisciotti Malsch’s client (the Church).  While repairing a wheelchair ramp leading to the Charity’s offices, the plaintiff fell and suffered severe injuries (back injuries and torn rotator cuff requiring multiple surgeries).  Plaintiff sued the Church, arguing that the Church owned the ramp at issue and had a duty to properly maintain the ramp. Read the rest of this entry »


Table Saw Manufacturer’s Failure to Include Automatic Guard is Not a Design Defect Under New York Law

On July 8, 2015, New York’s Second Department held that a design defect claim cannot be based upon a table saw manufacturer’s failure to include an automatic guard.

In Chavez v. Delta International Machinery Corp., 2014-05235, 2015 N.Y. App. Div. LEXIS 5769 (N.Y. App. Div. [2d Dep’t] July 8, 2015), the trial court denied the branch of the defendant’s motion for summary that sought to dismiss all claims based upon allegations that a table saw was defective for not including an automatic safety device – an interlock device that would prevent the saw from operating unless the blade guard was properly in place. Read the rest of this entry »


Two Recent Decisions From New York’s First Department Regarding Premises Liability

Today, two decisions were issued from the First Department pertaining to premises liability.  The first decision concerns the “sole proximate cause” defense and the second decision reiterates the notion that an owner of premises will not be insulated from liability merely because it complies with the building codes.
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NJ Appellate Division Cracks Down on the Practice of Bootstrapping Expert Opinions

Last week, primarily relying on Evidence Rules 703 and 808, the New Jersey Appellate Division struck a blow to the practice of bootstrapping, which is when a testifying expert at trial improperly presents a non-testifying expert’s opinion to the jury.

In James v. Ruiz, the New Jersey Appellate Division addressed whether lawyers are allowed to ask an expert witness at trial whether his or her findings are consistent with those of a non- testifying expert. In other words, the Appellate Division confronted the practice of utilizing expert testimony to “bootstrap” into evidence unauthenticated hearsay studies, reports, or other documentary evidence.

Judge Sabatino, writing for the Court, held that such questioning is inappropriate when the purpose is to have the jury consider an absent expert’s hearsay opinions about “complex and disputed matters.”
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Redacting Confidential Personal Information From Court Filings is Now Mandatory in New York

As of March 1, 2015, parties to litigation in New York Courts are required to redact confidential personal information (“CPI”) on any documents filed in the Supreme and County Courts.  Given the number of deposition transcripts and Bills of Particulars that I have seen submitted without redacting personal information (such as social security number, taxpayer identification number, or birth date), it appears that many practicing attorneys have not received the memo.

To paraphrase the New Age Outlaws, “Oh you didn’t know, well then you better call somebody!”

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The Reach of the Communications Decency Act’s “Good Samaritan” Clause

Two recent local cases, one from the Second Circuit and one from the District of New Jersey, serve as reminders regarding the reach of the “Good Samaritan” clause of the Communications Decency Act (“CDA”) and demonstrate that the CDA is a powerful defense against tort claims brought against operators of websites. Read the rest of this entry »