Legal Blog of Attorney Greg Curry

On April 22, 2015, the Second Department appeals court issued a decision affirming a lower court decision that a landowner was entitled to (1) defense [i.e. payment of legal fees] and (2) indemnification [the insurance company has to cover a judgment] in a wrongful death case. I was the lead attorney on that case. The lawsuit was related the tragic case where a young man, Amir Zeqiri, was working at a Dunkin Donuts at a strip mall in Smithtown. Around 9:00 PM on February 28, 2010, he was taking out trash to dumpsters located behind the building when he fell into a cesspool (technically a leaching pool) and drowned a short time after that. The strip mall owner's insurance company was put on notice of the accident. But it turned out the insurance policy had an exclusion that the insurance company would not cover accidents occurring in the "parking lot" of the building. So, the insurance company sued the landowner in what is called a declaratory judgment action, trying ...

The parents of a child "who suffers from severe mental disabilities" sued the Beacon City School District, in Dutchess County, alleging that a bus monitor physically and mentally abused their child. The parents sued the School District for, among other things, assault, battery, and negligent supervision. The case went through the fact-finding phase (called "discovery"), and the School District made a motion to dismiss at least some of the claims. The motion was granted, but an appeals court reversed the lower court.  The appeals court first noted that  [s]chools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision and  [t]he standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same...

Oh, Dutchess County, home of my New York ancestors from 265 years ago, what have you done? In 1977 Dewey Bozella was wrongfully convicted for murder and spent 26 years in prison. He was released in 2009 after a judge ordered that he should have a new trial because prosecutors withheld evidence. But the D.A. did not seek a new trial. Bozella then sued for wrongful conviction (as he should have) and recently settled his case for $7.5 million . Dutchess County isn't rich, and its insurance company refuses to provide coverage, so the County had to borrow the money to pay the settlement. Plus, legal fees and related expenses have been $1.36 million. The settlement, legal fees, and interest in borrowing the money to pay the settlement, have added up to $9.4 million so far. And, for now, the taxpayers of Dutchess get stuck with the bill.

News reports  indicate that Lufthansa (the owner/parent company of Germanwings) did know that Andreas Lubitz had depression problems, even during his pilot training: Lubitz...told his Lufthansa flight training school in 2009 that he had a "previous episode of severe depression," the airline said Tuesday. Despite this knowledge, Lufthansa allowed Lubitz to continue training to be a pilot and eventually put him in a cockpit, in a position where he could cause the mass murder of 149 people. Information like this supports a claim for negligent hiring or retention. Damages to make victims "whole" are called compensatory damages. But could Germanwings/Lufthansa be held liable for additional damages, damages to punish them (called "punitive damages") for allowing Lubitz to complete his training and get in a cockpit, knowing he had mental health issues? From a purely New York law perspective, probably not, because punitive damages are hard to get and usual...

Newsday ($) had an article a couple of days ago noting that Suffolk County has recently lost two fairly large cases in court involving vehicles operated by County employees. One plaintiff was on foot on the side of the road when he was hit by a County Parks truck. A jury awarded him over $5 million in past and future pain and suffering and lost earnings. The judge knocked the award down to $1.3 million, and if both sides don't agree on that number, there will be a new trial. Unless the plaintiff appeals. In another case, a 19-year-old woman was driving her SUV when she was struck and killed by a County bus. A jury awarded her family/survivors $1.67 million. The County is appealing.

In an April 1, 2015 decision , the appeals court for Long Island and parts of New York City reversed a lower court decision that had thrown out "common law" negligence claims against a landlord involving lead-based paint. A "common law" claim means the claim comes from judge-made law, not a statute. The plaintiff was renting an apartment in a Brooklyn brownstone in the early 2000's and lived there with her two small children. In 2005, blood tests showed that the two children had elevated levels of lead in their blood. The NYC Department of Health was called in and found lead-based paint on the walls. On behalf of her two children, the mother sued the brownstone owner, alleging statutory claims and common law claims of negligence for the injuries from the lead-based paint. Ultimately, the defendants made a motion for summary judgment to dismiss the common law claims, arguing they did not know about, and had no reason to know about, the lead-based paint until ...