Legal Blog of Attorney Greg Curry

There has been a lot of news about the terrible crash of Germanwings Flight 9525, which resulted in the death of 150 people when the co-pilot, Andreas Lubitz, (apparently) intentionally crashed the plane into the French Alps. Reports are that Lubitz had suicidal tendencies and had been declared medically unfit to fly . What may soon follow are lawsuits against Germanwings and Lufthansa (which owns Germanwings) for claims similar to what New York calls "negligent retention": A claim for negligent supervision or retention arises when an employer places an employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in supervising or retaining the employee. Vione v. Tewell,  12 Mic.3d 973, 979, 820 N.Y.S.2d 682 (Sup.Ct., New York County, 2006). Under New York law, a claim for negligent hiring, supervision or retention, "in addition to the standard elements of negligence,...

When you are sued, the lawsuit documents are called a summons and a complaint. When you are served with a summons and complaint, you can either move to dismiss the complaint, or you have to serve an "answer" within 20 or 30 days of being served. If you don't make a motion or serve an answer, a "default judgment" will be entered against you, which can mean that whatever relief the complaint was asking for, the plaintiff will get. This happens a lot in debt collector lawsuits. Debtors get sued, ignore the lawsuit documents, then wake up one day to find that their bank account has been frozen because the debt collector served a restraining notice on the debtor's bank. Default judgments are often vacated because cases should proceed on their "merits". But in a recent case an appeals court refused to vacate a default for a pro se (she had no lawyer) plaintiff. The plaintiff was served by "leave and mail" service where the papers were lef...

In a decision issued on March 25, 2015 , the appeals court that covers Long Island and parts of NYC reversed   a decision by a lower court that threw out a car accident case brought by an injured plaintiff. The plaintiff was a passenger in a car that was struck in the rear by someone driving a vehicle with dealer plates for Bay Ridge Lexus. As is not unusual, the driver of the dealer car (who could be an employee or manager at Bay Ridge) apparently told the driver of the other car, no, don't call the cops; this is a dealer car; take your car to Bay Ridge, and they'll fix it. However, the plaintiff passenger was physically injured and eventually sued Bay Ridge, its related companies, and the other driver. Because the cops were not called, and for whatever other reason, Bay Ridge had no record of the accident. The defendants then used this lack of a record on their end to make a motion to dismiss plaintiff's case. (Did they think the plaintiff was making the whole thing u...

I'm sure most people think that "of course" big businesses are constantly, intentionally, ripping people off and are engaged in deceptive business practices. As a lawyer, my inclination is I can't believe a big business, with lots of executives and lots of lawyers looking things over, could possibly offer promos or services that are so misleading or deceptive that they are illegal. They can't possibly be that dumb. Sometimes I'm wrong. For instance, the Federal Trade Commission has sued DIRECTV in San Francisco federal court for engaging in deceptive and misleading business practices in violation of federal law. DIRECTV was telling consumers, hey, look at our low monthly rates and look at all the great stuff you get, come sign up with us! However, DIRECTV failed to adequately disclose that, oh, by the way, in order to get that great deal, you have to sign a two-year contract; those low rates are only good for the first year; your monthly bill could go ...

In a decision issued on March 18, 2015 , a New York appeals court reversed a lower court decision dismissing a slip and fall case. The plaintiff was a 12-year-old boy. He was injured when he slipped and fell on "loose and broken pieces of asphalt" as he was running towards an ice cream truck near an Ikea store in Brooklyn. There were two interesting things about the decision. First, like many slip and fall cases, the case turned on constructive notice--how long was the loose/broken asphalt on the ground before the accident so that the defendants should have seen it and corrected the dangerous condition? The appeals court said the defendants failed to show when they last cleaned or inspected the area, so they did not establish lack of constructive notice. The more interesting thing is that apparently the boy told staff at the hospital where he was taken that he tripped over his shoelaces. The defendants found this in the hospital records and basically said, "Ha! He di...

News 12 recently had a story  about a Calverton dog "rescue" operation that was shut down and ordered to repay $24,000 in restitution for "selling" sick dogs. This was a type of fraud on consumers. The allegations  were that the two women who operated Precious Pups Rescue "pulled"/obtained dogs that had health issues from in-state and out-of-state shelters, then sold the dogs to consumers by way of "adoption fees" or "donations" of $200 to $600 per dog. The owners of Precious Pups Rescue told consumers that the dogs were healthy  and had been checked out by a vet when that was not true. The new owners were then faced with thousands of dollars in vet bills: Zambito and Torrillo-Hooghkirk sold consumers dogs that they claimed were healthy, vaccinated, spayed or neutered, and evaluated by a veterinarian, when in fact, they were not. In fact, the dogs had visible signs of illness, such as coughing, scratching, matting and sores. After...

On February 19, 2015, the New York Court of Appeals issued a decision denying two homeowners coverage for water damage caused by a water main that burst ("exploded"?) next to their house in Erie County. The water flooded their finished basement and caused $110,000 in damage. The homeowners filed a claim with their homeowners insurance company, Allstate. Allstate denied the claim, saying the policy did not cover damage caused by water "on or below the surface of the ground, regardless of its source". The homeowners sued Allstate for breach of contract (the insurance policy) and their local town (Hamburg) for negligence. The homeowners argued that the insurance policy does cover water damage caused by "explosions", and the water main "exploded". The homeowners won in the lower court (Supreme Court) and on appeal . But New York's highest court  sided with Allstate and said, sorry for your $110,000 in damage, homeowners, but the policy langu...

From press accounts (I make no representation of the accuracy of anything in the press accounts): A New York investment banker (Hugh Levey)  worth $29 million  has a judgment against him for $1.3 million for making a bad investment. The "judgment creditor" (the person or organization that has the judgment) is a company called Pensmore, which gave Mr. Levey the money to invest. Once you have a money judgment against another party (called the "judgment debtor"), you can do things like restrain bank accounts and send restraining notices to other people who owe the judgment debtor money or may be giving the debtor money. The notice says you can't give any money to the judgment debtor, etc., because any such money should be used to satisfy the judgment. New York law gives judgment creditors very broad powers to look for money to satisfy judgments. Apparently, Mr. Levey has not paid the judgment , which has now opened up aspects of his personal life that I'm...

Under New York law, there are several ways that consumers can recover damages (money) or other relief against businesses that ripped them off, deceived them, or otherwise treated them improperly. One of these ways is New York's Consumer Protection Statute (General Business Law § 349). Under GBL §349, a consumer can sue a business if he or she can show that the subject act or practice (1) was consumer-oriented; (2) was misleading in a material way; and (3) the consumer suffered injury as a result of the deceptive act. If successful, a consumer can recover their actual damages (money they lost), their reasonable attorney fees, and "treble" (triple) damages up to $1,000 (if the business acted willfully and knowingly in deceiving the consumer). The $1,000 cap on treble damages needs to be eliminated. It is no deterrent to businesses behaving badly. 

If you slip and fall on snow or ice (even black ice), and you are injured, you can sue the property owner for your injuries. In New York, the property owner, or the person or company in possession or control of the property, can be held liable for slip and falls on snow and ice when it (1) created the dangerous condition, or (2) had actual notice of the condition, or (3) should have known about the dangerous condition because it was visible and apparent and had existed long enough to be discovered and remedied (called "constructive notice"). This is true even for slip and falls on "black ice" , which by definition is more or less invisible.  Most slip and fall cases turn on the third theory, constructive notice. How can a property owner be held liable for slip and falls on black ice, which is invisible, yet the dangerous condition is supposed to be "visible and apparent"?  That's what the insurance defense firms like to argue, anyway. T...

As reported in several news articles ( this one  is free), in the aftermath of superstorm Sandy, engineering firms were hired by insurance companies to inspect the homes of people making claims for flood damage.  There have been allegations that two of the engineering firms, U.S. Forensic out of Louisiana, and GEB HiRise out of Uniondale, forged property damage reports in order to deny claims. The NY State Attorney General is investigating those allegations and wants to talk to the homeowners.  At the same time, there are about 1,800 lawsuits in federal court involving the insurance coverage claims. A three-judge panel is trying to expedite resolution of the cases.  Last week it was revealed that one of the insurance companies, The Standard Fire Insurance Company, which is a subsidiary of Travelers Insurance, drafted language in a settlement document saying that any homeowner who accepts a payout of their claims cannot cooperate with the criminal invest...