Defense Association
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Amicus Briefs
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 Chair Brendan T. Fitzpatrick of Gerber Ciano Kelly Brady, LLP, Emeritus Chair Andrew J. Zajac, Rona L. Platt, 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, Matthew S. Lerner of Gerber Ciano Kelly Brady, LLP, and Lawrence Heisler / former Head of Torts and Tort-Appeals for NYC Transit Authority (now retired). DANY wishes to recognize Past President Mr. Zajac for leading this committee from 1997 to 2020.
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 Brendan Fitzpatrick at bfitzpatrick@gerberciano.com.
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:
Morrison v New York City Housing Authority (awaiting argument) Estate of Murphy v. New York City Housing Authority Greene v. Esplanade Venture Partnership Hewitt v. Palmer Veterinary Clinic P.C. He v. Troon Management, Inc. Fasolas v. Bobcat of New York, Inc. 33 N.Y.3d 421, 104 N.Y.S.3d 14 (2019). In a major victory for products liability defendants, the Court of Appeals refused to carve out an exclusion to the rule in cases involving strict products liability for design defects which absolves manufacturers of liability where the manufacturer offers a product with an optional safety device and the knowledgeable purchaser chooses not to obtain it. In this case, the plaintiff contended, and the lower courts agreed, that the exclusion from liability should not apply when the product came into the end user's hands through the rental market, rather than a purchase transaction. The Court of Appeals disagreed and held that no such "rental market" exception is appropriate. |
Forman v. Henkin30 N.Y.3d 656, 70 N.Y.S.3d 157 (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. Rodriguez v. City of New York(2017) The issue in this case involves plaintiffs moving for summary judgment on liability in negligence cases. Specifically, the Court of Appeals addressed 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. Yaniveth R. v. LTD Realty27 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. Newman v. RCPI Landmark Properties, LLC(2016) 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. Saint v. Syracuse Supply Co.(2014) Labor Law 240 - Whether changing the face of a billboard is an “alteration” within the meaning of the statute. Powers v. 31 E 31 LLC(2014) Foreseeability - Whether plaintiff’s fall from a setback ledge outside an apartment window was an unforeseeable event. Auqui v. Seven Thirty One Limited Partnership(2013) Collateral Estoppel - Effect of determination of the Workers’ Compensation Board Ramkumar v. Grand Style Transportation Enterprises(2013) Serious Injury Threshold - Sufficiency of plaintiff’s explanation for gap in treatment. DeVito v. Feliciano(2013) Missing Witness Charge at Trial. American Building Supply Corp. v. Petrocelli Group, Inc.(2012) Insurance Broker Liability - Alleged failure to obtain adequate insurance. Toledo v. Iglesia Ni Christo(2011) CPLR Article 50-B - Application in wrongful death cases. World Trade Center Bombing Litigation17 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. San Marco v. Village/Town of Mount KiscoPrior Written Notice – Alleged creation of icy condition by municipality. Runner v. New York Stock ExchangeLabor Law 240 - Liability for falling object 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 Railroad4 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. Ochs100 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. Henriquez100 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 Associates96 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. As of May 2019, this case had been cited nearly 400 times, and it remains the pre-eminent case on the issue of what constitutes a falling object within the meaning of Labor Law § 240. Trincere v. County of Suffolk90 N.Y.2d 976, 665 N.Y.S.2d 615 (1997) - This case, which is now more than 20 years old, was the first one in which DANY submitted an amicus brief. It resulted in a significant victory for defendants on the trivial defect defense. Here, 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. As of May 2019, it had been cited in over 400 cases, and continues to be cited to this day. |