Monday, June 1, 2009

Coming Up in the N.Y. Court of Appeals

This month the New York Court of Appeals will hear argument in 13 cases, all on June 2, 3, and 4. There are eleven civil cases and two criminal cases. 

Civil Cases

The two most interesting civil cases are:

1. Personal injury, statute of limitations

In Bazakos v. Lewis a plaintiff injured in an automobile accident was directed to submit to an "independent medical examination" (IME) conducted by an orthopedic surgeon retained by the defendant driver's insurance company to evaluate the plaintiff's injuries. During the examination the plaintiff claims that the doctor forcefully rotated the plaintiff's head, causing him further injury. 

The plaintiff sued the doctor two years and eleven months after the examination, and the doctor moved to dismiss on the grounds that the two year and six months statute of limitations for medical malpractice actions applies. (CPLR § 214-a). A majority of the Appellate Division, Second Department, ruled that an IME does not create a physician-patient relationship and therefore the three year limitations period for negligence under CPLR § 214 applies. 56 A.D.3d 15. The two dissenters would apply the two year and six months statute of limitations for medical malpractice actions.

Whether an IME creates a physician-patient relationship is a fascinating legal question of enormous significance to the personal injury Bar, to injured plaintiffs, and to doctors who conduct these examinations.

In a second personal injury case, Butler v. City of Gloversville, the Court will consider whether the competing affidavits of the plaintiff's and defendant's expert witnesses entitled the defendant to a grant of summary judgment. 

2. Free Speech

Matter of Parkhouse v. Stringer presents an important freedom of speech issue regarding statements by speakers at public hearings. 

At a 2006 public hearing before New York City's Landmarks Preservation Commission, Virginia Parkhouse read from a letter sent to the Commission by Manhattan Borough President Scott Stringer which reflected his views on whether certain Manhattan property should receive a landmark designation. Her reading, however, omitted the letter's request that the property be calendared by the Commission for a public hearing, and added the assertion that the Commission should "landmark these buildings." She then submitted a copy of the letter to the Commission with her handwritten changes.

Scott had not authorized Parkhouse to represent him before the Commission, and, in fact, his views on landmarking the property had apparently changed since he wrote the letter. Scott then requested that the New York City Department of Investigation (DOI) look into the matter to determine whether there had been a violation of Penal Law § 190.25, New York's criminal impersonation law which prohibits, inter alia, falsely pretending to be acting with the approval or authority of a public servant.

DOI subpoenaed Parkhouse to testify about the matter. Her motion to quash the subpoena on First Amendment grounds was denied, and Supreme Court, New York County, granted DOI's cross motion to compel Parkhouse to testify. The Appellate Division, First Department, affirmed, concluding that Parkhouse did not have a First Amendment right to disseminate false information at a public hearing. 55 A.D.3d 1.  

The large number of public hearings held by a host of government agencies in New York gives this case enormous public importance.

Other civil cases the Court will consider raise such questions as whether the State Controller can audit charter schools; the calculation of pension benefits for Port Authority police officers who were required to cancel all vacations and days off after September 11, 2001; and whether coverage must be provided under certain insurance policies.

Criminal Cases

A defendant has a constitutional right to trial by jury when he is charged with an offense which carries more than six months in prison as the punishment. In People v. Almeter the Court must resolve how the trial is to be conducted when the defendant is charged in a single complaint with a misdemeanor for which he is entitled to trial by jury, and with a violation for which he is not entitled to trial by jury. See, CPL § 340.40.

The second criminal case will address the constitutionality of an inventory search of an automobile by the New York City Police Department. People v. Gomez. 

Note: the United States Supreme Court released two decisions today. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court ruled that the Eighth Amendment's prohibition against cruel and unusual punishment prohibits the execution of mentally retarded defendants. Today in Bobby v. Bies a unanimous Court determined that a defendant who was sentenced to execution years before Atkins is not subjected to double jeopardy when the state is granted a full and fair opportunity to now contest whether the defendant is mentally retarded.

In CSX Transportation, Inc. v. Hensley a divided Court ruled on the correct way to charge a jury in a Federal Employers' Liability Act (FELA) case when there is a claim that the employee's work-related injuries have created a separate fear-of-cancer claim.      

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