Committee On The Development Of The Law

Since 1997, the Committee on the Development of the Law of the Defense Association of New York Inc. has been submitting amicus curiae briefs to the New York Court of Appeals on issues of vital concern to the defense community in this State.

Among the cases in which the Committee has filed amicus curiae briefs with the Court are the following:

Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615 (1997) - In this case, the Court of Appeals held that landowners are not responsible for trivial defects in walkways. The Court affirmed the Appellate Division, Second Department which held that differences in elevation of approximately one inch, without more, are not actionable.

Capparelli v. Zausmer Frisch Associates, Inc, 96 N.Y.2d 259, 727 N.Y.S.2d 37 (2001) - This case resulted in a landmark opinion on the scope of the absolute liability provisions of Labor Law §240 as it applies to falling objects. The Court's decision contains language that is highly beneficial for defendants in cases of this nature.

Tyrrell v. Walmart Stores, Inc., 97 N.Y.2d 650, 737 N.Y.S.2d 43 (2001) - Here, the Court of Appeals refused to abolish the "speaking agent" rule. Under that rule, the statement of an employee may be received as an admission against the employer only if the proponent of the statement can establish that the employee has the authority to speak on the behalf of the principal. This rule makes it much more difficult for plaintiffs to prevail, especially in slip and fall cases.

Peralta v. Henriquez, 100 N.Y.2d 139, 760 N.Y.S.2d 741 (2003) - In this case, the Court issued a favorable ruling for defendants on the issue of a landowner's duty concerning exterior lighting. The Court rejected the plaintiff's assertion that an unlit parking lot is per se dangerous.

Desiderio v. Ochs, 100 N.Y.2d 159, 761 N.Y.S.2d 576 (2003) - At issue here were the structured judgment statutes pertaining to medical malpractice cases. In this case, the jury awarded the plaintiff $40,000,000 for future nursing care. Application of the statutes resulted in a total payout to the plaintiff of $120,000,000. The Court was constrained to affirm this result by the statutory language and its prior precedents. Significantly, however, the Court's opinion contained strident calls for an amendment to the statutes to avoid absurd results such as ensued in this case. Shortly thereafter, the Legislature amended the statutes, intending to ameliorate results such as in Desiderio.

Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484 (2003). This case resulted in a landmark opinion concerning the strict liability provisions of Labor Law §240, which is extremely favorable to defendants. The decision expands the scope of the defense concerning the plaintiff's actions as being the sole proximate cause of the accident.

Toefer v. Long Island Railroad, 4 N.Y.3d 399, 795 N.Y.S.2d 511 (2005). This was another significant victory for defendants on the issue of Labor Law §240. Resolving a split between the Appellate Divisions, the Court of Appeals held that a fall from a flatbed truck does not implicate the absolute liability provisions of Labor Law §240.

Morejon v. Rais Const., 7 N.Y.3d 203, 818 N.Y.S.2d 792 (2006).  In a favorable result for defendants, the Court held that "only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict."

Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 848 N.Y.S.2d 585 (2007).  This was a significant case concerning the duty of a defendant to a non-contracting third party.  The court held that a New York State certified inspection station did not owe a duty to a motorist who was injured in a subsequent collision with the inspected vehicle.  The decision in this case was the subject of an article on the front page of the New York Law Journal, and the article discussed the Defense Association's brief and the contentions that it raised on behalf of the defendant's position.

Ferluckaj v. Goldman Sachs & Co., ___ N.Y.3d ___, ___ N.Y.S.2d ___, 2009 WL 856304 (2009).  Here, the New York Court of Appeals held that a lessee, who does not hire a contractor and thus does not have the right to control the injury-producing work being done, is not an "owner" within the meaning of Labor Law §240(1).

In addition to the above Court of Appeals cases, the Defense Association successfully submitted an amicus curiae brief to the Appellate Division, Second Department in Graham v. Dunkley, 50 A.D.3d 55, 852 N.Y.S.2d 169 (2d Dep't 2008).  At issue was the constitutionality of the Graves Amendment, which is the federal statute that prohibits vicarious liability actions against professional lessors and renters of motor vehicles.  This case involved review of a decision of the Supreme Court, Queens County which declared the statute to be unconstitutional.  The Appellate Division, Second Department reversed that determination, and held that the Graves Amendment was a valid exercise of Congress' power under the Commerce Clause of the United States Constitution.  This is an extremely beneficial decision for professional renters and lessors of motor vehicles.

The Committee is currently comprised of Andrew Zajac and Dawn DeSimone of Fiedelman & McGaw, Rona L. Platt, Corporate Counsel-WRM America, Brendan T. Fitzpatrick of Ahmuty, Demers & McManus and David B. Hamm, Esq. of Herzfeld & Rubin, P.C.  The members of the Committee provide their services on a voluntary basis, free of charge. Printing costs have generally been borne by the Defense Association.

Any inquiries regarding the Committee should be directed to its Chair, Andrew Zajac, Fiedelman & McGaw, Two Jericho Plaza, Jericho, New York 11753-1681, (516) 822-8900.

Any suggestions for an amicus brief to the Court of Appeals are welcome, as is assistance in defraying the cost of printing expenses.