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July 2006

Comedic Break

Here are a few more entertaining statements from insurance forms where a car's driver attempted to summarize the details of the accident using as few words as possible:

  • I was on my way to the doctor with rear end trouble when my universal joint gave way causing me to have an accident.
  • As I approached an intersection a sign suddenly appeared in a place where no stop sign had ever appeared before. I was unable to stop in time to avoid the accident.
  • To avoid hitting the bumper of the car in front, I struck the pedestrian.
  • My car was legally parked as it backed into the other vehicle.
  • I told the police that I was not injured, but upon removing my hat, found that I had a fractured skull.

Define That Term #119

Thursday's term was joint and severally liable, which is defined as:

joint and several adj. referring to a debt or a judgment for negligence, in which each debtor (one who owes) or each judgment defendant (one who has a judgment against him/her) is responsible (liable) for the entire amount of the debt or judgment. Thus, in drafting a promissory note for a debt, it is important to state that if there is more than one person owing the funds to be paid, the debt is joint and several, since then the person owed money (creditor, promisee) can collect the entire amount from any of the joint signers of the note, and not be limited to a share from each debtor. If a party injured in an accident sues several parties for causing his/her damages, the court may find that several people were "jointly" negligent and contributed to the damages. The entire judgment may be collected from any of the defendants found responsible, unless the court finds different amounts of negligence of each defendant contributed to the injury. Defense attorneys should require the trier of fact (jury or judge sitting without a jury) to break down the amount of negligence of each defendant and the plaintiff if there is contributory negligence. Often the court will refuse to do so, allowing the plaintiff to collect from whichever defendant has the "deep pocket" (lots of money), and letting the defendant who pays demand contributions from the other defendants. See also: comparative negligence contribution contributory negligence joint .

Slickdpdx got it right!

Today's term is:

comparative negligence.

Good luck, and no dictionaries, please.

 

Interesting Second Department Med. Mal. Decision

In Redmond v. Jamaica Hosp. Med. Ctr., 2006 NY Slip Op 03871, the Court did not look too kindly on the defendant's delay in responding to legitimate requests for medical records, to the ultimate detriment of the plaintiff, and found in the plaintiff's favor in addition to awarding the plaintiff a bill of costs.

In this case, the plaintiff initially requested medical records repeatedly for six months and ultimately was forced to file an order to show cause in order to obtain the records.  As a result, in order to avoid the expiration of the statute of limitations, the plaintiff filed suit against Jhon Doe #1 and 2, and thus, pursuant to CPLR 306-b(a), had 120 days from the date of filing to discover the identity of the unknown physicians.  The plaintiff ultimately sought an extension of the time in which to serve the defendants in the interests of justice.

The Court held that the extension was properly granted due to the defendant's lack of response to the plaintiff's repeated requests for information:

The plaintiff made diligent efforts to discover the identities of the physicians before and after filing to effectuate service. Her efforts culminated with two orders to show cause, one of which was withdrawn after finally receiving the records. Even when the hospital records were produced, on the last day the plaintiff had to timely serve, they were incomplete. One of the physicians never drafted an operative report. He finally completed it more than one month after the deadline for the plaintiff to serve, and 2½ years after the decedent's surgery. Under these circumstances, the plaintiff established good cause for the delay in service.

I'm not sure if the defendants were intentionally failing to respond to the plaintiffs, or if they were simply completely disorganized.  I found it surprising that the post-operative report was never completed.  That fact alone certainly points to dilatory tactics or at the very least, extreme disorganization bordering on carelessness.  If it was the latter, it certainly doesn't bode well for their defense of the lawsuit.


Define That Term #118

Tuesday's term was ad valorem, which is defined as:

adj. Latin for "based on value," which applies to property taxes based on a percentage of the county's assessment of the property's value. The assessed value is the standard basis for local real property taxes, although some place "caps" (maximums) on the percentage of value (as under Proposition 13 in California) or "parcel taxes" which establish a flat rate per parcel. See also: property tax.

No one guessed this time.

Today's term is:

joint and severally liable.

No dictionaries, please.

 

Yet Another Comedic Break

Hairspray for circa 1980s bangs:  $5

Bizarre aerobics class taught by freakishly happy Japanese women wearing cheesy leotards:  $25

Instructional video designed to teach Japanese speakers, via aerobics instructors, what to say when they are being robbed by two English-speaking men, one of whom is inexplicably wearing his bandanna backwards on his head:  Priceless

(Hat tip: Dave Barry's Blog).

This video is not even remotely law-related, but it's just too funny to pass up.  Check it out.  I promise you won't regret it.


Comedic Break

Here are a few more entertaining statements from insurance forms where a car's driver attempted to summarize the details of the accident using as few words as possible:

  • I pulled away from the side of the road, glaced at my mother-in-law, and headed over an embankment.
  • In my attempt to kill a fly, I drove into a telephone poll.
  • I had been shopping for plants all day and was on my way home. As I reached an intersection, a hedge sprang up, obscuring my vision and I did not see the other car.
  • I had been driving for 40 years when I fell asleep at the wheel and had an accident.
  • The pedestrian had no idea which way to run, so I ran over him.

Wednesday's NY Legal News Round Up

Time for the New York legal news round up from the past week:


That Should Be Easy Enough

I'm sure that heroin addicts across the country are heeding the advice of the law enforcement officers quoted in this article, entitled "Drug users warned of deadly tainted heroin":

Heroin users should avoid the drug because some supplies have been tainted with a powerful painkiller blamed for hundreds of deaths nationwide since mid-April, law enforcement officials urged on Tuesday .  (Emphasis added.)

I wonder who the genius is that came up with that plan of action.  If anyone finds out, be sure and let him/her know that I've still got that bridge in Brooklyn up for sale.  I'm just dying to get that thing off of my hands and that mental giant could very well be dumb enough to buy it.


Court of Appeals: You've Been Adversely Possessed

UPDATE:  Welcome Loyola Law School visitors!  I'm not sure what brings you to my little corner of the world wide web, but welcome!  Take a look around and feel free to stop back soon.  (And, I'd love to know why you're all visiting.  I'd appreciate it if someone would be kind enough to leave a quick comment in order to assuage my curiousity!)

******

In honor of Sunday's term in the "Define That Term" post, I bring you the recent New York Court of  Appeal's decision, Walling v. Przybylo, 2006 NY Slip Op 04747, which is all about adverse possession.

In this case, the plaintiffs and defendants purchased undeveloped, adjacent lots in the late 1980s.  The plaintiffs developed the disputed portion of land, beginning in 1987, one year after they'd purchased the land.  Among other things, the plaintiffs laid PVC pipes on the land, installed an underground electric dog fence, installed a 10 foot post with a bird house on it, and continuously mowed, raked, graded, planted and watered the disputed land.

The defendants moved into their house on the land in 1994 and admitted that the lawn on the disputed area was partly cultivated when they arrived. 

In 2004, the defendants had the land surveyed and learned that they had title to the dispute land.  Shortly thereafter, the plaintiffs brought this action to quiet title on the basis of adverse possession.

In reaching its determination, the Court first set forth the relevant law:

Adverse possession must be proven by clear and convincing evidence...To establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period (Belotti v Bickhardt, 228 NY 296, 302 [1920]; see also Van Valkenburgh v Lutz, 304 NY 95, 99 [1952]; Spiegel v Ferraro, 73 NY2d 622, 624 [1989]; Ray v Beacon Hudson Mountain Corp., 88 NY2d at 159). Here the required period is at least ten years (see Ray, id.).

The Court rejected the defendants' contention that based on its prior decision in Van Valkenburgh v. Lutz, 304 NY 95 (1952), there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession.   The Court then applied the relevant factors and concluded that the defendants had acquired title to the disputed land through adverse possession:

Plaintiffs possessed the disputed parcel of land as early as 1986 in an open and notorious manner, hostile to the interests of the title owners and continuously for 20 years, ten of which occurred after defendants moved into their residence...It was not until April 21, 2004, close to ten years after moving into the house and almost fifteen years after purchasing the property, that defendants sought to assert their rights over the disputed parcel. The failure to assert their rights in a timely manner prevents defendants from prevailing on this appeal.

Whenever I read cases of this nature, I always wonder how large the parcel of land was and whether it was really worth the attorneys' fees paid to assert title to the land.  In this case, given the extensive nature of improvements, it probably was worth it. 

Which then leads me to wonder why it was even necessary to litigate this issue.  Couldn't the neighbors have been, well--neighborly and somehow worked it out?   You would think so, but apparently not.     Which is all well and good for us lawyers, right?