Daylight Savings Time March 13

The time when we advance the time one hour to enjoy more daylight as spring emerges.  I usually set my clocks ahead on the Friday night before the weekend starts to get some adjustment started.  Below are some suggestions from the Cleveland Clinic.

1. Start preparing a few days early. About a week before “springing forward,” Dr. Walia recommends that you start going to bed 15 to 30 minutes earlier than your usual bedtime. Your body needs that bit of extra time to make up for the lost hour.
2. Stick to your schedule. Be consistent with eating, social, bed and exercise times during the transition to Daylight Saving Time. Exposing yourself to the bright light in the morning will also help you adjust, Dr. Walia says.
3. Don’t take long naps. Shutting your eyes mid-day is tempting, especially if you’re feeling sluggish. But avoiding naps is key for adjusting to the time change, as long daytime naps could make it harder for you to get a full night’s sleep. “If you have to take them, take them early and for no longer than 20 minutes,” Dr. Walia says.
4. Avoid coffee and alcohol. Put down coffee and caffeinated beverages four to six hours before bedtime. Alcohol also prohibits you from getting quality sleep, so avoid it late at night.

Remote Notarization in New York State

UPDATE: By Executive Order 202.60 dated September 4, 2020, Governor Cuomo has further extended his prior orders permitting the use of audio-visual technology for notarization and witnessing, as provided below, through October 4, 2020. Specifically, the Governor stated, “I hereby continue the declaration of the State Disaster Emergency effective March 7, 2020, as set forth in Executive Order 202.” Executive Orders 202.13, 202.14, 202.18, 202.28, 202.38, 202.48, and 202.55 previously extended the expiration dates for the applicable Orders described below.

22 NYCRR 202.17 Revisited

Just a brief update to begin revisiting my interest in blogging and in particular with regards to sharing experiences in civil litigation.  Recently I was confronted with an adversary who vehemently denied any duty to disclose the treating and/or examining medical providers in a bodily injury suit any more than thirty days before trial pursuant to CPLR 3101(d)(1)(i).  However, in Hamilton v. Miller, et al., (23 NY3d 592 [2014] the the Court of Appeals clarified the interplay between the Civil Practice Law & Rules and the Uniform Rules to the extent that the narrative reports by the treating and/or examining medical providers setting forth the injuries alleged, diagnostic testing that will be introduced at trial, and prognosis must be disclosed no fewer than 20 days before the independence physical examination to be held upon notice by the adverse party pursuant to CPLR 3121.  The judge’s law secretary entered the pertinent operative language from section 202.17 into the order and the dispute was resolved in the client’s favor.  So-Ordered.  

Form of Papers, Supreme Court, Kings County, Uniform Civil Term Rules

I was reviewing written submissions and waiting for the second call of the motion calendar on a multi-party Labor Law Article 7 and 10 suit that the firm was defending in Supreme Court, Kings County, IAS Part 41, when the attorney representing a third-party defendant returned to the bench seating in a particular fit of pique.  She exhorted that she had just schlepped back from - "you know, that room across from CCP where you go to file an Order to Show Cause" and the clerk had refused to accept the OTSC because it was not prepared with protruding exhibit tabs.  "Could you imagine?!?"  Furthermore, the attorney was more haughty that the clerk wouldn't provide any latitude on what was a manifestly picayune insistence on a trivial matter.  Right? 

 

Entirely to the contrary, it is rudimentary that the offending papers should never have been prepared as such or left the attorney's office in that condition on an ill-fated journey from Long Island to the Kings County Supreme Court.  CPLR 2101 provides the requirement for the form of papers and must also be read in conjunction with the Local Rules for the particular judicial district and county.  Kings County Supreme Court Uniform Civil Term Rules, Part A, provide in pertinent part that:   Motions, orders and other filed papers shall be indexed with protruding tabs. Clerks are required (emphasis mine) to reject papers that do not have protruding exhibit tabs, except papers in matrimonial cases and papers filed by pro se litigants.  The rule notwithstanding, it should seem patently obvious to the movant that, if that party indeed has the proof annexed to the application to warrant the adverse party to show cause why the application should not be granted, such proof should be indexed and easily identified with protruding tabs.     

Attorney Secure Pass Online Renewal

Since October 22, 2001, attorneys entering many facilities of the state court system have been required to pass through magnetometers as well as x-ray examination of any briefcases, bags, boxes or other containers.  In April 2002, the New York State Unified Court System began issuing an attorney identification card known as the "Secure Pass."  The Secure Pass permits attorneys to bypass the aforementioned security measures in certain state courts while a high level of court security is maintained.  Accordingly, the Secure Pass provides convenience to attorneys who may be entering the facilities on a daily basis while additionally reducing the burden on the state court officers.  Although based upon experience there are exceptions where the Secure Pass is not honored and the attorney must be subject to search such as in the federal courts, New York County Surrogate's Court, and the Appellate Divisions for the First and Second Departments.

 

Secure Pass cards were previously valid for two years and are now valid for five years.  The procedure for renewal has also been amended to permit electronic filing effective July 1, 2015.  Attorneys may now renew their Secure Pass through the state Unified Court System web site.  Further instructions and information can be found at http://www.nycourts.gov/attorneys/registration/securepass.shtml

Kings County Supreme Court CCP

The Centralized Compliance Part (CCP) of the Supreme Court, Kings County is where all civil litigation must pass.  Case conferences as well as discovery motions are heard in the Part which makes for two lengthy calendars, a crowded courtroom, and sometimes orders that are not issued until afternoon.  The mandatory calendar call is not held until 10:45, and the default calendar at 11:45.  If the parties cannot resolve a discovery dispute among themselves the matter will be heard by a court attorney referee who will ultimately refer the matter to the Individual Assignment Part judge if a resolution cannot be mediated.  In the event that the matter is referred to the IAS Part, it is unlikely that it will be heard and decided that day but will instead be sua sponte scheduled for an available return date in accordance with the given IAS Part calendar.      

The link to the Kings County Supreme Court, Civil Term Rules is provided below.  The rules for CCP are found within section E. 

https://www.nycourts.gov/courts/2jd/kings/civil/KingsCivilSupremeRules.shtml#CCP

      

Daylight Savings Time Ends

On Sunday, November 1, at 2:00 a.m., the clocks are turned back one hour for the end of Daylight Savings Time (DST).  However, there's rumored to be a movement gaining momentum within the legal profession to have DST end at 5:00 p.m., on the preceding Friday.  As with all things constructed by attorneys, there's a logical reason for this cause.  Having DST end during a workday would of course result in a gain of one billable hour; and, perhaps once and for all irrefutably prove to clients beyond a reasonable doubt that it is in fact possible for an attorney to verifiably bill 25 hours in one day. 😏

Expansion of Mandatory E-Filing in New York County

By Administrative Order mandatory e-filing in New York County was expanded on February 19, 2013.
  
http://www.nycourts.gov/courts/1jd/supctmanh/EF-Mandatory-Notice-5713.pdf

Third Department refuses to extend Labor Law 240 to object at ground level

In Oakes v. Wal-Mart Real Estate Bus. Trust 2012 NY Slip Op 05694, Decided on July 19, 2012, Appellate Division, Third Department, plaintiff sustained serious bodily injury when he was struck by a building truss at ground level.  Finding that plaintiff was exposed to the ordinary dangers of a construction site and not the extraordinary elevation risks, the appellate court refused to extend Labor Law section 240(1) to these facts.  Notwithstanding the substantial weight of the truss and the significant force generated as it fell due to the force of gravity, however, there was no elevation differential present here, let alone a "physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d at 603). The truss and plaintiff were both at ground level, and they were either approximately the same height or plaintiff was slightly taller than the truss. Plaintiff's injury occurred after the truss was rendered unstable by an object that hit it horizontally — the bar joist, which shifted sideways on the forklift and pushed the truss into plaintiff (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005], supra). Under these circumstances, plaintiff was exposed to "'the usual and ordinary dangers of a construction site, and [not] the extraordinary elevation risks envisioned by Labor Law § 240 (1)'" (Ortiz v Varsity Holdings, LLC, 18 NY3d at 339, quoting Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d at 843; accord Toefer v Long Is. R.R., 4 NY3d at 407; see Narducci v Manhasset Bay Assoc., 96 NY2d at 269-270; Melo v Consolidated Edison Co. of N.Y., 92 NY2d at 911; Davis v Wyeth Pharms., Inc., 86 AD3d at 908-910; Mueller v PSEG Power N.Y., Inc., 83 AD3d 1274, 1275 [2011]; cf. Kropp v Town of Shandaken, 91 AD3d 1087, 1089-1090 [2012]). Accordingly, Supreme Court properly dismissed plaintiffs' Labor Law § 240 (1) claim.

Court Refuses to Extend Holding in Runner

Since the Court of Appeals decided Runner v. New York Stock Exchange in June 2009, plaintiffs have been seeking to expand the application of the extraordinary protections of Labor Law § 240(1) to facts and circumstances which involve any injury arising from the forces of gravity.      

New York Labor Law § 240(1) provides in pertinent part as follows:

Scaffolding and other devices for use of employees.

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.  McKinney's Labor Law § 240

In addition to falls from a height, Labor Law § 240(1) protects workers who are injured from certain types of falling objects. The types of falling object cases include objects being hoisted or lowered, as well as objects which need to be secured. Narducci v Manhasset Bay Associates, 96 NY2d 259 (2001); Ross v Curtis-Palmer Hydro-Elec. Co. 81 NY2d 494, 505, 601 NYS2d 49, 618 NE2d 82. However, the extraordinary protections are not unlimited and should be strictly construed because they are in derogation with common-law. Accordingly, not every falling object invokes § 240, but only those which were sufficiently elevated.

In DeGabriel v. Strong Place Realty, LLC, et al. 2010 NY Slip Op 20380 (Supreme, Kings County, 2010), (Saitta, J.), plaintiff allegedly sustained bodily injury when a steel I-beam fell on his leg. Plaintiff and his co-workers were allegedly moving wood beams by sliding them across steel I-beams which were staked on the floor. The aforesstated process caused one of the I-beams to become dislodged and fall onto plaintiff’s leg.  DeGabriel sought to invoke 240 in reliance upon the ratio deciendi of the Court of Appeals in the regard that the purported relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object.

Justice Wayne Saitta of the Supreme Court, Kings County, rejected plaintiff's argument, dismissed the § 240(1) cause of action and denied plaintiff’s motions for renewal and reargument. Judge Saitta held that the object which injured the plaintiff was not being lowered or hoisted, nor was it being moved at the time of the accident. It was a stationary object, allegedly in a stack, on the floor. Since the beam was not being hoisted or lowered, it comes within the line of cases governing when failure to secure an object which later falls constitutes a violation of §240(1). This turns on whether the beam was sufficiently elevated in relation to plaintiff that it constituted a hazard and therefore should have been secured. This Court held in its original decision that since the beam was not located above the plaintiff it was not sufficiently elevated that the failure to secure it violated §240(1). Citing, Schreiner v.Cremose Cheese Corp., supra, 202 AD2d 657, 609 NYS2d 322 (2nd Dept 1994); Lucas v Fulton Realty Partners, LLC, 60 AD3d 1004, 876 NYS2d 480 (2nd Dept 2009); Cruz v Neil Hospitality, LLC, 50 AD3d 619, 855 NYS2d 219 (2nd Dept 2008).



Attorney Registration Fee Increase

I haven't abandoned this blog, but I had to take a sabbatical because of an intensely busy work schedule over the last several months.  At this point I don't have enough time to devote to a review of recent court decisions that I believe to be of interest, but I wanted to share a development that all attorneys must address.  Toward that end, take note that section 468-a(4) of the Judiciary Law was amended to increase the Attorney Biennial Registration Fee to $375.00 as of September 1, 2010.  The New York State Office of Court Administration will implement the amended law to apply to all attorney registrations due on or after the aforestated date.  

The Nation's Best Law Schools

The official U.S. News 2011 Law School rankings were released today following a leaked list last Tuesday. Yale remains the best law school in the nation.  Follow the link for the official list.

High Level of "Pissivity" Leads to Arrest

The District of Columbia Court of Appeals today issued an order affirming a lower court decision in which Steven Tulin, a Walter Reed Hospital psychologist, was awarded $450,000 in damages for, amongst other things, false arrest.  According to the appellate court, which issued a 26 page opinion, what began as a minor motor vehicle collision quickly escalated into a situation where a Tulin was improperly arrested.

The case originates from an Oct. 22, 2004 incident in which Metropolitan Police Department Detective Barbara Rauf was involved in a rear-end collision with the vehicle operated by Tulin while driving her son to school.  According to opinion, the collision occurred after “some less than friendly looks and gestures by both drivers.” 

After the collision, the drivers had a “hostile interaction” in which both drivers were “extremely angry.” Rauf admitted in trial testimony that she was cursing and using profanity because her “level of pissitivity” was fairly high.  Rauf made two telephone calls to the police operator, requesting assistance for an officer in trouble.  When Officer Leticia McKoy, Sergeant Johnnie Lee McLean and Sergeant Jackson arrived at the location Rauf reported that Tulin had been aggressively stopping and starting his car and that it was his driving that caused the accident.

After interviewing Rauf, McKoy permitted her to leave.  As Rauf departed, she said to McKoy, “That’s an automatic lock-up, isn’t it?” Tulin was then handcuffed and arrested.  By way of a footnote, the appellate court states that Rauf’s husband was a captain in the same police command district where McKoy was assigned.

Tulin was held for 14 hours and charged with reckless driving.  Tulin was later found not guilty and thereafter prosecuted a civil suit against Rauf and McKoy for false arrest, malicious prosecution, and intentional infliction of emotional distress.  He also sued the District for negligent supervision.  At trial a jury dismissed the causes of action against McKoy.  However, the jury found Rauf was liable for intentional infliction of emotional distress and that the District liable for negligently supervising McKoy. The jury awarded Tulin $450,000.

On appeal, the assistant attorney general for the District of Columbia, argued that the jury issued an inconsistent verdict by ruling in McKoy’s favor on all of the allegations leveled against her yet still holding the District liable for negligent supervision.

To the contrary, the appellate court held that the arrest was improper for a number of reasons, including the fact that reckless driving is not an arrestable offense if it isn’t witnessed by an officer, and because neither McLean nor Jackson asked Rauf how fast she was going or how far her car was from Tulin’s car prior to the accident.  During cross examination of McLean, Tulin’s attorney was able to show that Sergeant McLean and Sergeant Jackson authorized Mr. Tulin’s warrantless arrest, which could be lawful only because Detective Rauf, the driver who had run into the car in front of her, was a police officer and was present when the accident occurred.

The attorney for the District also argued that Rauf shouldn’t be held liable for intentional infliction of emotional distress because she did not arrest Tulin and therefore didn’t inflict the emotional distress.  That argument was rejected by the appellate court which found that Rauf’s behavior, including the use of “foul and profane” language in front of her 9-year-old son, could be determined by a reasonable jury to have been intended to cause emotional distress.

Accordingly, the appeals court affirmed the Superior Court opinion in full.

MANDATORY ELECTRONIC FILING IN NY COUNTY

Pursuant to Chapter 416 of the Laws of 2009, mandatory electronic filing will be instituted in the Supreme Court, New York County, in certain commercial cases (“mandatory commercial cases”). The target date for commencement of this program is May 24, 2010.  A Uniform Rule is being drafted that will set forth the procedures for mandatory e-filing.  Although that Rule will control, the following are the key aspects of mandatory e-filing that the Court at present expects to implement. 

Any mandatory commercial case commenced on or after May 24 and any previously-commenced such case in which a Request for Judicial Intervention (“RJI”) is filed on or after that date must be electronically filed through the New York State Courts Electronic Filing System (“NYSCEF”), as must subsequent filings therein.  Mandatory e-filing also applies to Commercial Division cases commenced since June 15, 2008 in which no party has declined to consent to e-filing.  Mandatory commercial cases consist of commercial matters of the types set forth in Uniform Rule 202.70 (b) (excluding those listed in 202.70 (c)), irrespective of whether the cases have been or will be designated as Commercial Division actions, provided that the amount in controversy is over $100,000 (exclusive of interest, costs, disbursements, counsel fees, and punitive damages). However, in two categories of mandatory commercial cases there is no monetary threshold: corporate and other business dissolution proceedings and commercial arbitration matters (see Uniform Rule 202.70 (b) (11) and (12)).

The Court's flyer on the electronic filing can be found here.  Follow the New York County Web site for further information as the transition to mandatory electronic filing is made.  

Justice Stevens Announces Retirement

Thirty-four years after taking his position on the Supreme Court, Justice Stevens, who turns 90 years of age on April 20, has announced his retirement today.  The text of Justice Stevens' letter to the president follows below.

My dear Mr. President:


Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice, under the provisions of 28 D.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year. Most respectfully yours,

John Paul Stevens

Justice Stevens was appointed by President Nixon to the United States Court of Appeals for the Seventh Circuit in 1970.  When Justice William O. (Wild Bill) Douglas retired a year after suffering a debilitating stroke in 1974, Attorney General Edward Levi proposed Stevens' appointment to the Court.  President Ford acted on Levi's advice and the Senate confirmed Stevens' appointment without controversy.  Justice Stevens took his position on the bench on December 19, 1975.   

As a justice, Stevens avoided simple conservative or liberal characterizations.  However, Justice Stevens most often was in accordance with the court's liberal bloc in those cases involving abortion, criminal law, civil rights and church-state relations.  As the Court moved more toward the right during the Reagan and Bush presidencies, Stevens appeared more liberal relative to the composition of the Court.  After Chief Justice Roberts and Justice Samuel Alito took the bench, Stevens was more frequently among the four liberal justices in dissent. 

Justice Stevens' retirement will not change the court's conservative-liberal split, where the president is expected to name a liberal-leaning replacement.  Toward that end, the leading candidates at present are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, and Diane Wood, 59.

After Born Children Statute Not Extended to "After Known" Children

COURT RULES NON-MARITAL CHILDREN ARE NOT ENTITLED TO ANY RIGHTS UNDER AFTER-BORN LAW

In a January 25, 2010 entry in the New York Trusts and Estate Litigation blog, Farrell Fritz partner, Eric Penzer, Esq., reports on Matter of Gilmore, 1/19/2010 NYLJ 21 (col 1), a case in which I drafted opposition as the ward of an infant, to a motion by putative distributees to the decedent's estate.  The purported non-marital children sought a determination of their status and a distributiuon as "after known" or "after ackonwledged" children pursuant to a novel theory involving an expansion of the "after born" statute codified in EPTL 5-3.2.

The movants, Andrea and Malverick Hofler, alleged that after the decedent executed his will on June 24, 1996, he underwent DNA tests in 2005 and 2006 which revealed to him for the first time that he was their biological father.  Although the Hoflers were in fact born long before the execution of decedent's will, they claimed that non-marital children, only known or acknowledged by their father after execution of his will, should be accorded the same presumption of inadvertent disinheritance as an after-born child and extended the same rights.

In concluding that the movants did not have any rights pursuant to the after born statute, the Court stated that the statute itself speaks clearly of a "child born after the execution of a last will" (EPTL 5-3.2 [a]).  Nonetheless, the putative distributees argued that the meaning should have be extended to a non-marital child who is known or acknowledged by a decedent only after execution of his will.  To the contrary, the Court held that it is not at liberty to conjecture about, add to or subtract from words having a definite and plain meaning.  The Court stated in no uncertain terms that if it were to engraft exceptions where none exist it would constitute a trespasses by a court upon the legislative domain (City of Buffalo v. Lawley, 6 AD2d 66 [4th Dept 1958]; McKinney's Cons. Laws of NY Book 1, Statutes, §76).  When, as here, a statute is free from ambiguity and its sweep unburdened by qualification or exception, a court must apply the language as it is written (Zaldin v. Concord Hotel, 48 NY2d 107 [1979]; 2 A Sutherland, Statutory Construction [7th ed.] §46:1).

The 2007 amendment to EPTL 5-3.2 specifically restricts a non-marital child's entitlement to "a non-marital child, born after the execution of a last will."  Accordingly, the Court held that it may not ignore a statute's language in an effort to derive or construct a legislative intent that could easily have been articulated by the Legislature when it drafted the [amendment].  "'The court will not exceed its authority by reading the [claimant's] language into the statute‘" (New York State Crime Victims Bd. v. T.J.M. Productions Inc., 176 Misc 2d 777, 785 [Sup Ct, New York County 1998]; affd 265 AD2d 38 [1st Dept 2000]; see also 97 NY Jur 2d, Statutes, §104).  Accordingly, the Court concluded that the Hoflers were not entitled to any rights under the after-born statute (EPTL 5-3.2).

The Preliminary Conference

Almost every action filed in state court becomes the subject of a preliminary conference, which is commonly known as a "PC."  The preliminary conference is governed by Uniform Trial Court Rule section 202.12.  That rule states, in pertinent part, that the matters to be considered at the preliminary conference include: a) where appropriate, simplification and limitation of factual and legal issues; b) establishment of a timetable for completion of disclosure consistent with the requirements of Differentiated Case Management (unless otherwise shortened or lengthened by the court); c) addition of other necessary parties; d) removal to a lower court where appropriate and e) other matters that the court may deem relevant such as a date for filing a Note of Issue, and a closure date for dispositive motions.  Finally, at that time the court will schedule a compliance conference at which time the parties are to return to court.

A preliminary conference can be scheduled by the court at any time sua sponte.  but it is most often scheduled at the request of a party upon the filing of such request along with a request for judicial intervention ("RJI"), in a case which has not previously been assigned to an IAS judge.  Pursuant to subdivision (b), the conference shall be scheduled not more than 45 days from the date the request for judicial intervention is filed, unless the court orders otherwise.

The initiation of motion practice concerning discovery in unassigned cases was the impetus for the writing of this entry.  The most frequent scenario invloves a plaintiff that fails to serve discovery and/or a bill of particulars in response to demands that accompany a defendant's answer.  In which case, the apparently uninformed defendant ultimately resorts to a motion to compel a response under CPLR 3124 and/or 3042(c).  The foregoing motion practice is an imprudent use of both the attorney's time and client's resources.  Pursuant to Trial Court Rule 202.8(f), the aforestated motion will be procedurally converted into a preliminary conference which, in accordacne with section 202.12, must be scheduled for a date no more than 45 days after the chosen motion return date.

Accordingly, where the motion is propounded instead of the service and fliling of a request for a PC and RJI, the attorneys for the moving defendant will have advanced plaintiff's cause by incurring the cost of the RJI, in addition to an unnecessary motion filing fee.       

Daylight saving time returns Sunday

Don't forget to advance the time on your clocks one hour before going to bed tonight. The idea behind daylight saving time is to save energy and lightbulb hours by allowing the sun to appear an hour later in the morning when most are asleep anyway.  As warmer weather is in the near future, daylight saving time benefits us by stretching daylight later into the evening.  You'll have more daylight at the end of your workday, but there are some statistics which suggest that the change is not without  serious negative effects.  

According to a letter to the editor of the New England Journal of Medicine, the change has health consequences demonstrated by the number of serious heart attacks increasing by as much as 10 percent during the first three workdays after the start of daylight saving time.  The effects of transitions were consistently more pronounced for people under 65 years of age than for those 65 years of age or older.  According to an  article in the Los Angeles Times, traffic accidents spike by as much as 11 percent on the first Monday after the clocks are sprung forward.  On Wall Street, economists say sleep-deprived traders often produce large negative returns on that following Monday, once estimated at $31 billion. 

The most plausible explanation for the findings is the adverse effect of sleep deprivation on cardiovascular health. According to the authors of the journal letter, their data suggests that vulnerable people might benefit from avoiding sudden changes in their biologic rhythms.  Ordinarily, Monday is the day of the week associated with the highest risk of acute myocardial infarction (heart attack), with the mental stress of starting a new workweek.  The further deprivation of sleep can be the cause of the increased activity seen.  Accordingly, doctors suggest taking it easy this weekend and making sure that you're well rested before the change officially occurs at 2 a.m. on Sunday, March 14.  

Irrespective, entirely to the dismay of law firm management everywhere, the greatest concern is not that attorneys will lose an hour of sleep this weekend - but a precious billable hour. 

NYC Agrees to $657 Million Settlement For WTC Rescue Worker Suits

According to The New York Times, the Ground Zero injury settlement was announced yesterday by WTC Captive Insurance Company.  The Captive Insurance Company an entity created with a $1 billion federal grant that provides insurance coverage to the City of New York and its debris-removal contractors.  The Ground Zero injury settlment agreement in the sum of 657.5 million dollars is scheduled to be presented to Southern District Court Judge Alvin Hellerstein in Manhattan today for approval.  According to Associated Press reports, Judge Hellerstein has said that he favored a settlement, but planned to analyze it carefully to make certain that is fair. 

I believe that it goes without saying that the settlement must be fair and equitable before the Court issues an Order approving the terms.   

California Court Holds That Non-Party Witness Statements Are Not Privileged

Although this blog was primarily intended to discuss New York civil litigation, in this entry I'm discussing a California appellate decision because I find that it has a profound impact on discovery rules and could be persuasive authority for a further broading of pre-trial discovery in other jurisdictions.

In Coito v. Superior Court, 10 C.D.O.S. 2697, a divided California appellate court ruled on Thursday that non-party witness statements which are either recorded or documented in writing by attorneys or their representatives aren't privileged work product and, therefore, are subject to pre-trial discovery. 

In the lower court, Stanislaus County Superior Court Judge William Mayhew relied on a decision by the Third District appeallate court in Nacht & Lewis Architects Inc. v. Superior Court (McCormick), 47 Cal.App.4th 214, as authority to deny plaintiff's attorney's demand for the recorded statements of four juveniles who witnessed the drowning death of a 13-year-old boy in 2007.

Contrary to the holding in Nacht & Lewis, the majority in Thursday's ruling held that the "weight of authority" states that written and recorded statements taken by attorneys aren't work product, but rather "classic" evidentiary material.  "They can be admitted at trial as prior inconsistent statements, prior consistent statements or past recollections recorded," Justice Betty Dawson wrote in Coito.  "Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use."  Justcie Dawson referred to the decision in Nacht & Lewis as "cursory."  "It contains no analysis to support [its] language and fails entirely to acknowledge the long line of contrary precedent," Justice Dawson wrote.  "Neither does it consider nor weigh the purposes of the work-product privilege and the Civil Discovery Act."

In dissent, Justice Stephen Kane argued that he felt witness statements recorded by attorneys constitute "qualified" work product, which remains undiscoverable unless a court determines that denial of discovery unfairly prejudices the party seeking it.  However, Justice Kane wrote that, "a per se rule of absolute protection goes too far."  Accordingly, Justice Kane would have preferred to remand the case to give the trial court judge an opportunity to consider whether discovery was warranted under the qualified work-product privilege.  "Requiring such a showing strikes a fair balance between the competing statutory policies of protecting work product and allowing liberal discovery," Kane wrote.  Justice Kane noted that the California Supreme Court, the state's highest court, has not weighed in on the issue in this case and therefore urged it to do so.  "Clarifying the scope of the work-product privilege in this context," he wrote, "is important for legal practitioners and in propria persona litigants (those representing themselves in court without assistance of an attorney, at least "on the record."  Often abbreviatd to "in pro per").

The majority, concurring and dissenting opinions all require more analysis and discussion.  However, the general rule in New York is that non-party statements are materials prepared in anticipation of litigation and therefore not subject to disclosure.  See, DeGourney v. Mulzac, 287 A.D.2d 680, 732 N.Y.S.2d 97 (2d Dep't 2001); Volpicelli v. Westchester County, 102 A.D.2d 853, 476 N.Y.S.2d 623 (2d Dep't 1984); Bush v. E. H. Cottrell, Inc., 33 A.D.2d 983, 307 N.Y.S.2d 284 (4th Dep't 1970).  The apparent rationale has been that a party should not be required to disclose that which they obtained through the investment of their own time, effort and money.  Unless these non-party witnesses have become unavailable, there is no reason why the party seeking the statements can't contact the witnesses and perform their own investigation.  If the non-party witnesses evade or refuse to cooperate, a reasonable inference can be drawn that their testimony will not be favorable to that party.  Even in the instance of evasiveness or refusal, the non-party subpoeana remains as that party's device to obtain the testimony sought.  Moreover, the subpoena on notice is arguably more just and equitable given that the adverse party has an opportunity to cross-examine the witness.