By William Parra and Thomas Vitucci
On Jun. 3, 2022, both houses of the New York State Legislature passed the Grieving Families Act (S74A/A6770) (the “Act”), during its final session. The legislation proposes to amend Estates, Powers and Trusts Law (“EPTL”) §§ 5-4.1, 4.3, 4.4 and 4.6 to expand the types of damages recoverable in wrongful death suits. New York law presently limits recovery in wrongful death suits to “pecuniary losses” of a decedent’s distributees, generally calculated by the decedent’s future lost earnings. Existing precedent also allows for the recovery of a decedent’s pre-death conscious pain and suffering and loss of support, parental guidance and assistance and inheritance as types of pecuniary loss, although these other damages are often difficult to prove.
The Act’s most significant change allows a decedent’s survivors to recover for their own “emotional anguish” or pain and suffering. It further changes existing law, as follows:
The Act will conform New York law with that in the majority (41) of states. The question is whether this is the right time to enact this change and whether Governor Hocul will sign it. On the first question, the COVID 19 pandemic created unprecedented financial struggles for New York businesses, particularly small businesses, the impact of which continues. Countless businesses failed and those that survived continue to struggle financially. Amending existing law to allow for a new category of damages by an expanded group of beneficiaries, i.e., “close family members,” will greatly expand business owners’ financial exposure and raise insurance costs in a City and State where the cost of doing business is already prohibitively high. For instance, the Act expands standing to bring a wrongful death suit to any “close family member,” including but not limited to spouses, domestic partners, grandparents, step-parents, siblings and children, “based upon the specific circumstances relating to the person’s relationship with the decedent.” Such an expansion of damages in existing actions will be particularly prejudicial to defendants in terms of their expectation of and actual financial exposure.
Whether the Governor will sign the Act into law within the required 10-day period is another question. The rash of bills the Legislature passed in its final session may best be explained as an effort by legislators to show they are working for their constituents’ best interests in an election year. How many of these bills the Governor can and will review for signing within the 10-day period, and whether this Act will be one of them, remains to be seen. Otherwise, it will not go into effect and will need to be voted on and passed again, in the next Legislative session.
Should you have any questions concerning the impact of these amendments, please do not hesitate to contact Howard Klar or William Parra.
Governor Hochul signed the amendments to the NY Comprehensive Insurance Disclosure Act (“CIDA”) into law today. The following constitutes the relevant insurance disclosure requirements in NY State, under the revised law. The CIDA now applies only to cases in which Defendants filed an answer on/after Dec. 31, 2021. It no longer applies retroactively to existing cases. It does not apply pre-suit. In new cases, the CIDA requires every defendant to disclose the following, within 90 days of each defendant’s filing of its answer:
After the initial disclosure, defendants are obligated to re-certify and update the aforementioned disclosure upon the filing of the Note of Issue and before any mediation, settlement conference or trial date(s), and for 60 days after any settlement, entry of final judgment or appeal.
The most significant changes are that the CIDA no longer applies retroactively to existing cases (which were due Mar. 1st) and that policy applications are no longer required to be disclosed.
Should you have any questions concerning the CIDA’s requirements, please do not hesitate to contact Howard Klar or William Parra.
On Jan. 18, 2022, a bill to amend the recently enacted Comprehensive Insurance Disclosure Act (“CIDA”) was introduced in the NYS Senate. The proposed changes in Bill S07882 are virtually identical to those Governor Hochul proposed, which were outlined in our Jan. 6th alert. As you may recall, the Governor qualified her signing of the bill by issuing a “signing memo” stating that she did so after coming to an agreement with the Legislature to “properly tailor” the CIDA for its intended purpose, i.e., ensuring litigants were adequately notified of insurance coverage limits.
The most significant proposed changes to the CIDA include:
It is our understanding that passage of the Bill could take at least several weeks. Therefore, while it appears possible that the proposed amendments will be enacted into law by or very close to the CIDA’s present Mar. 1st compliance deadline for existing cases, we must stress that its significant requirements (also outlined in our Jan. 6th alert) remain the law until that time.
We will continue to monitor and keep you updated as to the Bill’s progress.
By William Parra and Corey Reichardt
Governor Hochul signed the Comprehensive Insurance Disclosure Act (“CIDA”) into law on December 31, 2021. However, she did so subject to a “signing memo” stating that she agreed with the intent of the bill but had reached an agreement with the Legislature to ensure that the scope of the disclosure it required was “properly tailored for the intended purpose,” i.e., to ensure litigants were adequately notified about of the potential limits of insurance coverage.
There are two important points to consider. First, the CIDA is presently the law and effective immediately. Defendants’ compliance in pending actions is presently due in 60 days (March 1st), and within 60 days of answering in new actions. However, the Governor’s agreement with the Legislature refers to chapter amendments modifying the CIDA which must be agreed to and passed by the Legislature and Governor. We understand that proposed amendments have already been drafted that address many concerns raised in our petition against the CIDA’s present form. When passed, the proposed changes should significantly lessen the time, expense and burden to defendants and their insurers, in complying with the CIDA.
Since the CIDA is presently law, the proposed amendments have not been agreed to or passed, and it is unclear when they may be, we summarize the CIDA’s requirements due by March 1st, as well as the proposed modifications. The CIDA significantly expands defendants and their insurers’ obligations, amending CPLR §3101(f) to require the following additional disclosures:
Compliance with these directives will significantly increase the time and expense required of defendants, their attorneys and adjusters alike. There is understandably confusion and concern over whether to immediately begin complying with them in pending matters or wait and see whether less onerous changes will be enacted in time to render the present requirements moot.
The most significant proposed amendments to the CIDA, include:
The difference between the enacted CIDA’s requirements and the proposed changes are significant. We will continue monitoring the legislative and executive branches’ progress in agreeing to and passing less onerous amendments to the CIDA.
In furtherance of our clients’ collective interest in the fair and economical pendency of insurance-related litigation, Gallo Vitucci Klar LLP this week joined other stakeholders in asking Governor Hochul to veto the Comprehensive Insurance Disclosure Act (the “Act”). The Act, which was presented to Governor Hochul for signature on December 20th, significantly expands defendants and their insurers’ required insurance-related disclosures, thereby increasing the time and cost of discovery.
Specifically, the Act amends CPLR §3101(f) to require a host of disclosures and related investigation. In so amending CPLR §3101(f), the Act adds 63 lines (from 8 to 71) of text describing newly-required disclosures. In conjunction with a newly created CPLR §3122(b), the Act also requires that defendants, their insurers and attorneys certify that all such required disclosures are accurate and that they will take reasonable efforts to ensure that they remain accurate, until 60 days after resolution of the litigation, including appeal. The Act requires that such initial disclosures be made within 60 days of answering a complaint, that all stakeholders certify their compliance with CPLR §3101(f) and that they disclose any changes they become aware of to the disclosures within 30 days of receipt of such information. The new disclosure requirements include providing certain information about each lawsuit and the related claim adjusters, TPAs and claims adjusters the TPAs report to, attorneys/law firms and the amount of their attorneys’ fees that may erode the limits of any applicable primary or excess policy. The Act also requires the disclosure of policy applications, which was expressly exempted from disclosure under the present CPLR §3101(f), and which may contain private or otherwise business-sensitive insured information. Of particular concern, the Act will go into effect immediately and require such disclosures in all pending lawsuits within 60 days of the enactment date. The Governor’s deadline for deciding whether to sign the Act is this Friday, December 31st.
In asking Governor Hochul to veto the Act, we argued that passage would impose significant and unreasonable obligations on litigants that we represent of every type, profession and field. It will increase litigation and therefore insurance costs which will disproportionally affect lower income individual and business owner litigants. We also noted that it is a particularly inopportune time to pass legislation which would only serve to significantly and unnecessarily increase the burden on State Court dockets—via related motion practice—which are already overburdened by pandemic-related restrictions.
Our letter was drafted by William Parra, a partner in our litigation defense and insurance coverage practice groups. Mr. Parra, on behalf of the firm, joined the New York Insurance Association, American Property and Casualty Insurance Association, the National Association of Mutual Insurance Companies and other law firms in requesting that Governor Hochul refrain from signing the Act into law.
On December 7, 2021, New York’s Appellate Division, First Department found that a plaintiff who failed to appear for an independent medical examination (IME) and soon thereafter underwent surgical treatment was not subject to spoliation sanctions. Gilliam v. University Holdings, 2021 N.Y. Slip Op. 06798 (1st Dep’t 2021). The five-justice panel reversed the lower court’s imposition of sanctions for what the lower court found to be willful destruction of evidence. In so doing, the First Department has drastically diminished a personal injury defendant’s ability to obtain critical discovery regarding alleged injuries.
The plaintiff, Jekeya Gilliam, was allegedly injured when a piece of her bathroom ceiling fell and struck her on the head. She brought suit against the building owner, among others, for injuries including a bulging lumbar disc at L4-L5. At a preliminary conference on August 10, 2018, the lower court ordered the plaintiff to appear for an IME within 45 days of her deposition. Following a compliance conference on October 26, 2018, the court ordered the plaintiff to appear for an IME within 45 days of the defendants’ designation of an examining physician.
The plaintiff was deposed on January 7, 2019. In early February 2019, the defendant designated their examining physician and the IME date – March 6, 2019. The plaintiff failed to appear for the IME and underwent a lumbar discectomy on April 2 before appearing for an IME. The defendant served a second IME notice on April 3 for May 15. The plaintiff filed a supplemental bill of particulars on April 9, in which she disclosed the discectomy, and appeared for the IME on May 15. Shortly thereafter, the defendant moved to dismiss the complaint or, in the alternative, for sanctions for the plaintiff’s willful spoliation of critical evidence. The lower court denied the defendant’s motion to dismiss but sanctioned the plaintiff by precluding her from offering any evidence of an injury or surgery to her L4-L5 disc.
In reversing the lower court’s order, the First Department held that “the condition of one’s body is not the type of evidence that is subject to a spoliation analysis.” Instead, a failure to appear for an IME “should be analyzed the same as other failures to comply with court-ordered discovery.” In support of this holding, the First Department reasoned that spoliation analysis should be applied to destruction of inanimate evidence only, that “the state of one’s body is fundamentally different” from such evidence, and that surgery is “entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate.”
The First Department also cast aspersions upon the role of the IME in personal injury litigation. Throughout the opinion, the court referred to such exams as “‘independent’ MEs.” It also noted that “[s]uch examinations, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all … Viewed in this context, an ME is simply one piece of evidence in a personal injury action.”
The court also reasoned that the defendant was not prejudiced by the plaintiff’s surgery because there was other evidence upon which the defendant could rely, including the plaintiff’s pre-surgical and post-surgical medical records. Of course, the court did not explain why such records, which are often prepared by doctors identified and retained by plaintiff’s attorneys, and increasingly funded by litigation funding outfits, are any more reliable than the findings of an IME.
Although the court left the door open for lower courts to treat the failure to appear for an IME like any other failure to abide by a court order, defendants are now left without sufficient recourse should a plaintiff undergo any surgical procedure before the defendants have a chance to examine the plaintiff.
Last week, following a nearly three-week trial, Matthew Vitucci obtained a defense verdict in Supreme Court, New York County before the Hon. Nancy Bannon on behalf of our clients, a cooperative apartment owner and its property manager. Plaintiff alleged she was injured by falling snow and ice while walking on the sidewalk in front of our clients’ building. Plaintiff claimed she sustained severe brain injuries including concussion, post-concussion syndrome with severe cognitive after-effects including: loss of memory, inability to perform basic functions including reading, maintaining relationships and working at her job; plaintiff further alleged that she sustained additional injuries from the impact with the falling ice including loss of hearing, a dislocated jaw, injuries to the cranial nerves resulting in trigeminal neuralgia, fibromyalgia, and traumatic epilepsy with seizures. Plaintiff alleges that she still suffers from the seizures despite treatment by an epitologist and despite being administered anti-seizure medications.
Plaintiff brought a negligence action against the building owner and property manager, alleging that our clients had notice of a hazardous condition caused by snow and ice accumulating on exterior surfaces of the building. Plaintiff further argued that our clients should have installed ‘ice guards’ to prevent snow and ice from falling to the sidewalk below, and that our clients should have closed off the sidewalk around their building. Despite unambiguous law preventing the admission of evidence of post-accident remedial measures, and Mr. Vitucci’s vehement objections, Judge Bannon even allowed plaintiff to introduce security video footage of our clients closing the sidewalk and clearing snow and ice.
On behalf of our clients, Mr. Vitucci argued that, in fact, the snow and ice had fallen from two large trees that overhung the sidewalk. Furthermore, even if the snow and ice did come from the building, Mr. Vitucci argued, our clients had no notice that such an event could occur as there had never been a similar incident prior to the date of loss. Therefore, our clients had no duty to install ice guards or close the sidewalk on the day of the accident. Mr. Vitucci also deftly used the evidence of our clients’ post-accident remedial measures to demonstrate that our clients were careful, conscientious property owners and managers.
Plaintiff asked the jury for $9.1M in summations. $225k was offered before testimony began. Following two full days of deliberations, the jury found that our clients had not acted negligently and returned a defense verdict.
Following a two week trial, GVK Partner, Patrick J. Cooney, obtained a defense verdict in Supreme Court, Queens County before the Hon. Darrell Gavrin on behalf of our client Con Ed, the sole defendant. The accident occurred when the 40,000 pound excavator plaintiff was operating, slid into a creek and began to sink before plaintiff could escape. Plaintiff alleged lumbar and cervical herniations, as well severe PTSD because of the the incident.
Plaintiff brought a NY State Labor Law action against Con Ed, alleging a failure to provide a safe place to work and failing to supervise the means and methods of plaintiff’s work. Specific Code sections under LL241(6), the Industrial Code, were submitted to the jury for consideration. The first section cited Con Ed’s alleged failure to provide a spotter. The second, failure to provide secure footing for the excavator and the third section alleged a failure to properly shore the excavation. On behalf of Con Ed, Pat argued that a spotter was not required for the work being performed and the use of spotter in an area where the boom of an excavator could swing 360 degrees coupled with the fact that the excavator was on unsecured cribbing weighing hundreds of pounds made the use of a spotter too dangerous. Pat also maintained that the excavator should have been operated in a perpendicular direction to the creek so as to permit the plaintiff to power out when the excavator started to slide. It was further contended that there was sufficient materials available to build a platform for the excavator if the plaintiff felt the footing was unstable. Lastly, Pat argued that the accident was caused 100% by operator error in placing the excavator parallel to the creek and walking it across wet, slippery timbers. The Health and Safety Plan and the Operator’s Manual also provided that if an operator felt the area was not safe, he should not proceed until any alleged danger was corrected.
Plaintiff demanded 6.5M which was reduced to 4.5M during the trial. 500k was offered. Following a full day of deliberations, the jury found the workplace was safe and returned a defense verdict.
On March 6, 2019, Kenneth S. Merber successfully obtained summary judgment and the complete dismissal of all claims asserted against Wawa in multiple lawsuits involving serious injuries and a fatality. On August 17, 2021, the dismissals were affirmed by New Jersey’s Appellate Division finally resolving the lawsuits commenced in 2016 while obtaining decisions completely vindicating Ken’s clients.
The lawsuits arose from two motor vehicle accidents that occurred one year apart at the same location on a public roadway in front of a Wawa franchise. In both instances, a driver traveling westbound on Route 322 made an illegal left turn while attempting to enter one of the entrances to the store’s parking lot and struck a motorcycle traveling eastbound on the highway. In the first accident, the motorcycle driver was killed and his wife, a passenger, was seriously injured. In the second accident, the motorcycle driver was seriously injured. The injured parties and the estate of the decedent filed suits against Wawa, the entity that owns the convenience store and the State which owns the highway and the land on which the store’s driveway entrances are located. Plaintiffs’ claims against Wawa were predicated on their contentions that Wawa negligently designed and maintained its property and signs and thereby, caused or created hazardous conditions that resulted in multiple similar accidents. They further argued that a commercial landowner had a duty to protect its invitees and that duty may extend beyond its premises for activities from which it directly benefits. Plaintiffs argued and the Court found that it was reasonable to conclude Wawa could have received an economic benefit from drivers accessing its parking lot by making an illegal left turn from the highway.
Mr. Merber and his trial team initially successfully persuaded the Court to deny the plaintiffs’ motions to consolidate the lawsuits arguing defendants would be unfairly prejudiced by the consolidation. Ken and his team then obtained summary judgment in all lawsuits by successfully arguing that Wawa was not negligent and that the duty to maintain and control traffic on public roadways, including all signage, rested with public entities and not private property owners. Ken argued and Wawa’s experts opined that Wawa had no duty to provide signage or to take prohibitive measures to prevent motorist from violating the motor vehicle laws and/or disregarding the jug handle at the location. After obtaining summary judgment and dismissal of all claims, the plaintiffs’ appealed. Having successfully coordinated many trials and appeals together, Ken and Wawa engaged Matthew Naparty and his firm to handle the appeal. The Court’s rulings affirm the precedents that a commercial landowner has no duty to regulate or control the conditions of property it does not own.
Commentary by Krystina Maola, Esq.
The pandemic-related tolling of the statute of limitations in New York has caused great uncertainty over the interpretation of the applicable Executive Orders issued by Governor Cuomo. On June 2, 2021, the New York Appellate Division, Second Department issued a decision and order in Brash v. Richards concluding that the Executive Orders issued by Governor Andrew Cuomo constituted a true toll of filing deadlines and not a suspension of the same. This decision represents the first binding decision relating to the Executive Orders and will likely guide the trial courts in each of the remaining appellate departments in the state.
Governor Cuomo first tolled the limitations periods on March 20, 2020, when he issued Executive Order No. 202.8, providing in pertinent part that:
“any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020…”
Executive Order No. 202.8.
Thereafter, Governor Cuomo issued a series of subsequent Executive Orders which extended the suspension or tolling period set forth in Executive Order No. 202.8 through and including November 3, 2020. Executive Order No. 202.67.
Although the Second Department determined that the language of the Executive Orders constituted a true toll of filing deadlines (naturally including statutes of limitations), time will tell if the remaining Appellate Departments will follow suit or determine that the language was intended to be merely a suspension of deadlines.
Under the suspension framework, which the Second Department held was not applicable, the statute of limitations would have merely been suspended from March 20, 2020 through November 3, 2020. Once the suspension was lifted, all filing deadlines that expired during the suspended period would have been delayed until the end of the suspension. These deadlines would have subsequently expired on November 4, 2020. Brash v. Richards, — N.Y.S.3d —, 2021 WL 2213786, 2021 N.Y. Slip. Op. 03436 (App. Div. 2d Dep’t June 2, 2021) (citing Foy v. State of New York, 71 Misc. 3d 605, 608 (Ct. Cl. February 16, 2021)).
Should the remaining appellate courts follow the holding in Brash and decide the Executive Orders were meant as a toll of filing deadlines, this would extend filing deadlines for a period of 228 days. See McLaughlin v. Snowlift Inc. et al, 71 Misc. 3d 1226(A), 2021 WL 2173276 at *2 (N.Y. Sup. Ct. Kings C’nty 2021). Therefore, any statute of limitations that was set to expire on November 3, 2020 (the last day the Executive Orders provided for tolling) will now expire on June 19, 2021.
Based on decisions being made by various trial courts across the state, it is likely that the Executive Orders will be read as a toll of filing deadlines, rather than a suspension, should the issue be appealed. Nevertheless, until the Court of Appeals weighs in on the issue, litigants who filed late actions in reliance on the Executive Orders continue to be in jeopardy of their cases being dismissed based on the expiration of the statute of limitations.
For more information, please contact Krystina Maola at kmaola@gvlaw.com or by phone at the firm’s New York office at 212-683-7100.