Defense Association of New York

DANY's Amicus Curiae Committee and Briefs

The Amicus Curiae Committee of the Defense Association of New York, Inc. (DANY) was founded in 1997 by John J. McDonough, who was President of DANY at the time.  Since then, the Committee 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.

The Committee is currently comprised of Andrew Zajac of McGaw, Alventosa & Zajac, who chairs the Committee, as well as Rona L. Platt of Enstar, Brendan T. Fitzpatrick of Goldberg Segalla, Jonathan Uejio / special counsel to Conway, Farrell, Curtin & Kelly, P.C., Lisa L. Gokhulsingh of Gannon, Rosenfarb & Drossman, Amanda L. Nelson of Cozen O'Connor, Caryn Lilling of Mauro Lilling Naparty LLP, Seth Weinberg of Mauro Lilling Naparty LLP, and Jessica L. Foscolo of Merchants Insurance Group in Buffalo, New York.  The members of the Committee provide their services on a voluntary basis, free of charge.  Printing costs have been borne by DANY.  Inquiries with respect to the Committee should be directed to Andrew Zajac at (516) 932-2832.

Many of DANY's Amicus Curiae Briefs are available below via the blue colored links.  Among the cases in which the Committee has filed amicus curiae briefs with the Court are the following:

Forman v. Henkin, ___ N.Y.3d ___, ___ N.Y.S.3d ___, 2018 NY Slip Op 01015 (2018).  In a much-anticipated decision concerning discoverability of plaintiff's Facebook account, the Court of Appeals agreed with the defense position that the Appellate Division improperly employed a heightened threshold for production of social media records.  The Court held that, instead, New York's usual liberal discovery rules should govern this issue.  Notably, the Court held that, under certain circumstances, plaintiff's private Facebook postings are discoverable.  This case significantly expands a defendant's ability to access a plaintiff's social media account in a personal injury case.  By virtue of this decision, detailed questioning at plaintiff's deposition, coupled with a carefully–crafted discovery request concerning plaintiff's social media account, may yield information which can be valuable in defending against plaintiff's claims of injuries and post-accident limitations.

Yaniveth R. v. LTD Realty, 27 N.Y.3d 186, 32 N.Y.S.3d 10 (2016).  This case represents a significant victory for defendants in lead paint litigation in New York City.  Here, the infant plaintiff resided with her parents in the Bronx.  The child’s grandmother lived nearby in an apartment owned by the defendant.  When the child was three months old, the grandmother began watching her during  the day while her parents were at work.  She was exposed to lead paint at the grandmother’s apartment.  The action was commenced under New York City’s Lead Paint Law which imposes a duty on landlords to abate lead paint in dwellings where children who are six years of age or under reside.  The plaintiff argued that because the child spent a significant amount of time in her grandmother’s apartment, she was a “resident” of that building for purposes of liability under New York City’s Lead Paint Law.  In our brief, we argued that application of sound principles of statutory construction should lead to a rejection of the expansive reading of the statute which was urged by the plaintiff.  The Court of Appeals agreed with contentions raised on behalf of the defense and held that this action was properly dismissed.  The Court's decision was the subject of a front-page, feature article in the New York Law Journal which contained a discussion of DANY's amicus brief, as well as a quotation from it.

Hutchinson v. Sheridan Hill House Corp.;  Zelichenko v. 301 Oriental Boulevard, LLC,
26 N.Y.3d 66, 19 N.Y.S.3d 802 (2015).  This is a major opinion on the trivial defect defense.  We submitted an amicus curiae brief to address plaintiff’s contention that the defense should be limited to municipal defendants or to cases involving sidewalks.  The Court agreed with our contention that the trivial defect defense should not be so limited.  The Court stated that the defense is equally applicable to private landlords and municipalities, and it applies to defects on stairways, including those that are inside privately-owned buildings.

World Trade Center Bombing Litigation, 17 N.Y.3d 428, 933 N.Y.S.2d 164 (2011).  In a landmark decision, the Court of Appeals absolved the Port Authority of liability for the 1993 terrorist bombing.

Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 880 N.Y.S.2d 879 (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).

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, which included a discussion of DANY's brief and the contentions that it raised on behalf of the defendant's position.

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."

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.

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.  The decision expanded the scope of the defense concerning the plaintiff's actions as being the sole proximate cause of the accident.

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.

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.

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.

Narducci v. Manhasset Bay Associates; 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.

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.

DANY's Amicus Curiae Briefs


August 22, 2017
Rodriguez v. City of New York
The issue in this case involves plaintiffs moving for summary judgment on liability in negligence cases.  Specifically, the Court of Appeals will address whether a plaintiff establishes entitlement to such relief merely by demonstrating that defendant was negligent, or whether plaintiff is also required to establish his or her freedom from comparative fault.

May 1, 2017
Forman v. Henkin
Discovery  -  The Court of Appeals has addressed, for the first time, the issue of discovery of content of a plaintiff's Facebook account.

March 1, 2016

Newman v. RCPI Landmark Properties, LLC
Whether the experienced plaintiff’s choice to descend from a loading dock by stepping on piled-up crates rather than using an available ladder was the sole proximate cause of the accident.

July 30, 2015

Yaniveth R. v. LTD Realty Co.
Lead Paint Liability  -  The infant plaintiff was allegedly lead poisoned in the building, not where she resided, but where her grandmother provided babysitting services for her.  The issue is whether the landlord of the grandmother’s building can be held liable under the New York City Lead Paint Law.


July 10, 2015

Zelichenko v. 301 Oriental Boulevard
Trivial Defects  -  Whether the plaintiff’s contention that the trivial defect defense should be limited to open-air areas owned by municipalities is without merit.


December 11, 2014

Saint v. Syracuse Supply Co.
Labor Law 240  -  Whether changing the face of a billboard is an “alteration” within the meaning of the statute.

May 15, 2014

Powers v. 31 E 31 LLC
Foreseeability  -  Whether plaintiff’s fall from a setback ledge outside an apartment window was an unforeseeable event.

September 30, 2013

Auqui v. Seven Thirty One Limited Partnership
Collateral Estoppel  -   Effect of determination of the Workers’ Compensation Board

April 17, 2013

Ramkumar v. Grand Style Transportation Enterprises
Serious Injury Threshold  -  Sufficiency of plaintiff’s explanation for gap in treatment.

April 8, 2013

DeVito v. Feliciano
Missing Witness Charge at Trial.

August 3, 2012

American Building Supply Corp. v. Petrocelli Group, Inc.
Insurance Broker Liability  -  Alleged failure to obtain adequate insurance.

September 21, 2011

Toledo v. Iglesia Ni Christo
CPLR Article 50-B  -  Application in wrongful death cases.

March 4, 2011

In Re World Trade Center Bombing Litigation

Whether the Port Authority could be held liable for the 1993 terrorist bombing.

February 8, 2010

San Marco v. Village/Town of Mount Kisco
Prior Written Notice – Alleged creation of icy condition by municipality.

October 8, 2009

Runner v. New York Stock Exchange
Labor Law 240  -  Liability for falling object

December 17, 2008

Ferluckaj v. Goldman, Sachs & Co.
Labor Law 240  -  Liability of lessee which did not hire the contractor that performed the work.

August 7, 1997

Trincere v. County of Suffolk
Seminal case on the trivial defect defense.

DANY has been serving New York's Defense Bar and legal community for over 50 years.  Historical materials, photographs, and announcements may be found throughout this website.

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