Administrative denial of firefighter’s claim for benefits upheld where firefighter changed story of how injury happened and administrative denial was supported by substantial evidence, under collective bargaining agreement and NY Admin. Proc. §306(1) (COA 4/5/2011)

Claimant firefighter changed his description of the cause of his back injury from his original version given to his supervisor in his initial report of injury ( which was a defective air suspension in his seat) to a different version (which was hitting a pothole that caused the air-suspension seat to elevate and then shoot downwards, which he claimed at the collective-bargaining-agreement hearing challenging the district’s denial of his claim for benefits for a work-related injury).  After the firefighter’s initial report, the district had had the seat inspected by the district’s mechanic and the manufacturer’s representative neither of whom found anything wrong.   In its denial, the district attributed the firefighter’s back complaints to his two prior back injuries.   Claimant’s neurosurgeon testified at the hearing that he would not causally related the injury to a work-related injury if the injury did not occur as the firefighter had claimed.  

The district’s denial of benefits was upheld because it was supported by “substantial evidence”.  “Substantial evidence” is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and is less than a preponderance of the evidence.  Substantial evidence requires only that a given inference is reasonable and plausible, not necessarily the most probable.  The firefighter had the burden under the collective bargaining agreement and under NY Admin. Proc. Act §306(1) to prove that the denial was not supported by substantial evidence.  The hearing officer was required to give deference to the district’s determination.  The fact that there was also substantial evidence supporting the firefighter’s position was irrelevant so long as there was substantial evidence supporting the district’s denial. 

Matter of Ridge Road Fire District, v. Michael P. Schiano  http://bit.ly/fsvwSN (Ct. App. April 5, 2011) (four to three decision).

Victim’s murder was an “accident” for UM and no-fault coverage

Victim’s administrator sought UM and no-fault benefits for the victim for an occurrence in which the uninsured driver struck the victim with the admitted intent of killing him. The driver was convicted of second-degree murder. Held: the term “accident” in the UM and no-fault coverage included the subject occurrence because the occurrence must be viewed from the insured’s prospective.  Although the policy excluded some types of events from the definition of “accident”, nothing expressly excluded intentional conduct. State Farm Mut. Auto. Ins. Co. v. Langan (COA 3/29/11)
http://bit.ly/i6m48r.

Long-arm jurisidiction and digital copyright infringement (COA Mar 23 2011)

CPLR 302(a)(3)(ii): In copyright infringement case involving the uploading
of a copyrighted literary work onto the internet, the situs of injury for
long-arm jurisdictional purposes is the location of the copyright holder.
SDNY therefore had jurisdiction over suit since the principal place of
business of plaintiff-copyright holder was New York City. Defendant was an
Oregon not-for-profit corporation whose principal place of business was in
Arizona which had electronically copied and uploaded complete copies of four
of plaintiff’s copyrighted books onto defendant’s website in Oregon and/or
Arizona. The out-of-state location of the infringement was less important
where digital piracy is involved because of the works’ instate availability
to everyone in the country and the world. Penguin Group (USA) Inc., v.
American Buddha, (NY COA 3/24/11). http://bit.ly/eIPBoz.

CPLR 2001: failure to file summons and complaint prior to service on defendant was fatal (COA, Mar 24, 2011)

CPLR 2001: failure to file summons and complaint prior to their service on
defendant was fatal in action. Defendant was a municipal corporation
against upon whom plaintiff had already obtained leave to serve a late
notice of claim, via a petition and proposed complaint in a special
proceeding. Plaintiff then served a summons and a substantively different
complaint on defendant without first having bought an index number or filed
the summons and actual complaint. Dismissal of action on statute of
limitations grounds was affirmed. Goldberg v. Westchester Co. Health Care
Corp., COA 3/24/11; http://bit.ly/ia72bn.

Golf – no duty to warn (4th Dep’t Dec 21 2010)

Defendant hit a “shank” shot out of the rough without calling “fore”. The
errant ball struck plaintiff (a member of defendant’s foursome) in the eye
causing retinal damage. Held: no negligence for failing to call “fore”;
plaintiff assumed the risk. Summary judgment to defendant was affirmed.
Anand v Kapoor, 15 N.Y.3d 946 (Dec. 21, 2010); http://bit.ly/eAPyF4

Attorney-client privilege and emails (matrimonial action) (Third Dep’t Jan. 13 2011)

Wife’s discovery of e-mails between husband and consulted attorney held partly privileged and partly no.  Plaintiff-wife in matrimonial action discovered a page of an e-mail on defendant-husband’s desk.  Email was between husband and attorney with whom he was conferring about his divorce.  Wife, while searching for the remainder of the letter, discovered the user name and password for husband’s e-mail account, which she used to access the account, printed the e-mails correspondence between him and the attorney, and turned them over to her counsel.  Wife then amended the complaint and her attorney subpoenaed Van Ryn for a deposition and to produce documents.  Held: Husband’s email communications with attorney were protected by attorney-client privilege except for the single page which wife found on husband’s desk in the family room and which husband failed to show that he took reasonable steps to maintain the confidentiality of that page.  Husband’s leaving the username and password for his email account, however, on his desk did not waive the privilege vis-à-vis the balance of the emails.  Husband’s email account was newly established and accessed only from his workplace computer.  Leaving the user name and password on his desk was careless but did not waive the privilege.  Parnes v Parnes, 80 A.D.3d 948, 949 (N.Y. App. Div. 3d Dep’t July 13, 2011)