n Guishard v General Sec. Ins. Co.,
2007 NY Slip Op 06581, the NY Court of Appeals issued a decision in a declaratory judgment action wherein the Petitioner sought an Order declaring that the Respondent insurance company was obligated to defend and indemnify the Petitioner in the underlying personal injury aciton. The plaintiff in the underlying action was riveting metal when he injured his eye while converting a van into a "Mr. Softee" ice cream truck.
The policy at issue excluded coverage for bodily injury "arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated by or rented or loaned to any insured." The insurer moved for summary judgment on the grounds that it was not obligated to defend or indemnify plaintiffs because the conversion work performed by the injured party constituted "maintenance."
The Court disagreed and concluded that:
The work performed by the injured plaintiff did not constitute "maintenance" of an auto. "Maintenance," as that term is used in an insurance policy, means performance of work on "an intrinsic part of the mechanism of the car and its overall function" (Farmers Fire Ins. Co. v Kingsbury, 105 AD2d 519, 520 [3d Dept 1984] [removing tire from rim constitutes maintenance] [citation omitted], lv denied 64 NY2d 607 ; see Pennsylvania Millers Mut. Ins. Co. v Manco, 63 NY2d 940, 942  [changing a tire constitutes maintenance]). Riveting metal to a van in furtherance of its conversion to an ice cream truck aids in transforming the auto's function, an activity distinct from "maintenance."
Seems to me a fairly obvious conclusion, which leads me to wonder whether the record on appeal reveal other thorny issues not revealed in this short decision.
This week's Legal Currents column, which is published in The Daily Record, is entitled "Dancing With the Devil in New York" The article is set forth in full below, and a pdf of the article can be found here.
“Guess·ti·mate: an estimate usually made without
— guess·ti·mate\transitive verb”
— Merriam Webster’s online dictionary
Last week, in a press release, the New
York State Board of Bar Examiners
announced that the essay scores of 47 candidates
who used laptops to take their bar exams this past July
could not be recovered.
“More than 5,000 candidates chose to take the essay portion of the July 2007 New York State bar examination on a
laptop computer. Some of these candidates experienced
technical problems with the software provided by a vendor but almost all of the candidates’ essay answers were
eventually retrieved for grading. However, one or more of
the essay answers for 47 candidates could not be recovered. Fifteen of these candidates passed the examination
based on their performance on the balance of the exami-
nation, with no credit being given for any missing essay.
Seventeen candidates failed the examination even when
attributed a perfect score on any missing essays. The
remaining 15 candidates were given estimated scores
based upon their performance on the balance of the examination, and their probability of passing was computed.
The Board worked with researchers at the National Conference of Bar Examiners to develop and apply this
methodology, which resulted in nine of the remaining 15
candidates passing and six failing the examination,” the
Or, as adeptly summed up by a commenterDavid Gottlieb when he commented on Eric
Turkewitz’s New York Personal Injury Law Blog: “So, some of the people failed because the nice
people at the bar were pretty sure that they
were going to fail after reading the essays that
[they] didn’t lose?”
Oh, how I wish I had Emily Post on speed
What exactly does one say to the unlucky
six on an occasion such as this? Better luck
next time? Prozac might help with your sudden onset of depression? Or perhaps: I hear
Burger King is hiring?
Although it pained me to do so, after hearing this news, I dredged up memories long
forgotten of the bar examination that I sat for
in July of 1995.
While I prefer to think that the solid preparation
received at my alma mater, Albany Law School, was the
sole reason that I passed the bar that summer, I must
admit that luck very likely had something to do with it.
While I’d never taken Corporations in law school, my
study partner and I extensively reviewed that particular
area of law during the week before the exam, since it was
an area of law with which we were both unfamiliar. By
chance, an entire essay was focused on that very topic and
I was able to scrape together an answer that was arguably
I had no difficulties with the New York Practice essay,
thanks to two semesters of excellent (and entertaining)
instruction from the King of New York Practice, Professor
David Siegel. However, had that essay been lost and had
there been a Trusts and Estates essay in lieu of the Criminal Law essay, I can only imagine what my score would
have been had it been “guesstimated,” as was done with
the unlucky six.
In “Batman,” when Jack Nicholson as the Joker queries,
“Tell me something, my friend. You ever dance with the devil
by the pale moonlight?” he may as well have been speaking to the unlucky six who unwittingly gambled and lost.
It’s a sad state of affairs when the equivalent of a roll of
the dice determines whether a recent law school graduate
is qualified to practice law in the State of New York. The unlucky six deserved better.
As explained here at the NYSBA website, in November 3, 2007, the NYSBA House of Delegates voted to adopt revisions to the New York Lawyers Code of Professional Responsibility "which are intended to provide greater guidance to attorneys with respect to the attorney advertising rules adopted by the Appellate Division effective February 1, 2007."
The complete, revised code can be accessed here. The revised sections dealing with attorney advertising can be found on pages 16-22.
The following are provisions that I found to be particularly interesting, in part because I believe that some of the provisions appear to be in direct response to issues that I've raised on this blog.
Emphasis in the provisions was added by me, as were relevant past posts from my blog are listed in parentheses with red writing after some provisions:
EC 2-5 The "attorney advertising" label serves to dispel any confusion or concern that might be created when
nonlawyers receive letters or emails from lawyers. The label is not necessary for advertising in newspapers or on
television, or similar communications that are self-evidently advertisements, such as billboards or press releases
transmitted to news outlets, and as to which there is no risk of such confusion or concern. An advertisement in a
newspaper may nevertheless require the label if it is a paid article about a law firm adjacent to other articles written
by the newspaper where there is a reasonable risk that readers will confuse the two. The ultimate purpose of the
label is to inform readers where they might otherwise be confused (p. 16). (See this prior post)
a) Not all communications made by lawyers about the lawyer or the law firm’s services are advertising...non-commercial communications motivated by a not-for-profit organization’s
interest in political expression and association are generally not considered advertising.
(b)...Likewise, communications to other lawyers, including those made in bar
association publications and other publications targeted primarily to lawyers, are excluded from the special
rules governing lawyer advertising even if their purpose is the retention of the lawyer or law firm.
c) Topical newsletters, client alerts, or blogs intended to educate recipients about new developments in the law are
generally not considered advertising. However a newsletter, client alert, or blog that provides information or
news primarily about the lawyer or law firm (e.g., the lawyer or law firm’s cases, personnel, clients or
achievements) generally would be considered advertising... (See this prior post).
d) Communications such as proposed retainer agreements or ordinary correspondence with a prospective client
who has expressed interest in, and requested information about, a lawyer’s services are not advertising.
Accordingly, the special restrictions on advertising and solicitation would not apply to a lawyer’s response to a
prospective client who has asked the lawyer to outline his or her qualifications to undertake a proposed
retention or the terms of a potential retention. (See this prior post).
f) Some communications by a law firm that may constitute marketing or branding are not necessarily
advertisements. For example, pencils, legal pads, greeting cards, coffee mugs, T-shirts or the like with the law
firm name, logo, and contact information printed on them do not constitute "advertisements" within the
definition if their primary purpose is general awareness and branding, rather than the retention of the law firm
for a particular matter.
n. a bank account deposited in the name of the depositor "in trust for" someone else, which is a tentative trust until the death of the depositor since the money can be withdrawn at any time.
See also: trust.
Last February I posted about a Fourth Department decision that raised interesting issues regarding foreseeability and duty of care. The Fourth Department's decision was appealed and last week, the New York Court of Appeals issued its decision in Haymon v Pettit,
2007 NY Slip Op 09071.
In Haymon, the defendant owned and operated a stadium and had a policy in which two free tickets to a baseball game were given to anyone that returned a foul ball. The plaintiff in this case was a mother who brought suit on behalf of her son, a young boy that had been standing outside the stadium waiting for foul balls and was hit by a vehicle when he ran into the street after a foul ball.
The Fourth Department concluded that the defendant owed no duty to the injured child. I, on the other hand, found myself agreeing with the dissent and explained that:
In this case, the possibility of an accident should have been clear to the defendant. The risk of a child running into the street after a foul ball was reasonably perceived and thus a duty to the child was readily apparent.
At least, that's the way I see it.
But, as we all know, reasonable minds can differ. Foreseeability, like reasonableness, is in the eye of the beholder and you never really know where the court will fall on this issue. I don't think that the Fourth Department was necessarily wrong on this one--I just tend to agree with the dissent.
Lo and behold, reasonable minds can differ, as evidenced by the New York Court of Appeal's holding in this case. The court upheld the Fourth Department's decision and concluded that no duty existed:
The Court is mindful that, in this case — unlike Darby — the Ball Club rewarded participants of its promotion with tickets. Important to our resolution, however, is that under the circumstances of this case, like Darby, there are inherent risks associated with crossing the street. Those risks are multiplied when doing so indiscriminately. Moreover, we do not view the Ball Club's promotion as contributing to a dangerous condition, for it only rewarded the retrieval of foul balls. We must assume that adults, and children of Leonard's age, will act prudently in doing so...
Under these circumstances, it is difficult to imagine what steps the stadium operator could have taken that would have sufficed to meet a duty. Thus, we are constrained from imposing a requirement that the stadium exercise control over non-patron, third persons outside its premises over whom it has no actual authority to do so.
After reading this decision, I'm all the more convinced that my original instinct was correct.
To assume that children will act prudently when attempting to win a prize is one heck of an assumption. Kids are prone to imprudent behavior under normal conditions, but when excited and caught up in the moment, tend to throw all caution to the wind. Any adult who has ever been around children knows this to be true.
Likewise, the defendants should have foreseen that given that the stadium was situated near a busy street and that balls were frequently hit out of that stadium, people, especially young children, could easily be injured when excitedly chasing after a rapidly moving foul ball near a busy road.
That being said, the lone footnote in this case makes me wonder if this case is an example of bad facts leading to bad law:
Footnote 1: There is scant evidence in the record on this motion for summary judgment indicating whether or not Leonard even engaged in this activity for the purpose of receiving free tickets pursuant to the Ball Club's promotion. Leonard's sister testified that he left the house to go to the stadium, that he had money but "didn't want to spend it," and that he did not have a ticket but that "he had his glove with him" to try "to catch a [foul] ball." The sister added that Leonard "saved baseballs." Even viewing the evidence in a light most favorable to the non-moving party and giving the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96 ), it is unclear whether plaintiff has succeeded in raising an issue of fact. Nevertheless, this becomes academic in light of our holding.
I'd like to introduce you to Elizabeth Randisi, a Rochester, New York attorney associated with the law firm WeinsteinMurphy. Her practice focuses on Trusts and Estates and elder law.
Elizabeth will be a frequent guest blogger on Sui Generis and, not surprisingly, will be posting about trusts and
estates, and Medicaid and elder law issues.
Her first post follows:
Here is the outline of a current case that all you practitioners can use as a horror story to scare your clients into completing their estate plan (or your colleagues; we all know how few attorneys actually have a current estate or business succession plan in place).
We represented a husband and wife, who had a living trust. Both spouses died in the past year, and the successor trustee was their only son. Because they had a trust, the administration of their estates went smoothly, and the son transferred all the assets to himself pursuant to the trust.
All that remained was for us to file trust income tax returns when the son suddenly died. The next named trustee was a niece of the grantors, so the trust administration could still be completed without much trouble.
However, not only did the son not have his own trust, he didn’t even have a will. Despite numerous entreaties from our firm, the son had never completed any sort of estate plan. He just didn’t want to think about planning for his own death.
Now we had an intestate probate estate containing all of the assets of the parents that, through the planning we had done, had just bypassed probate entirely. Worse, we didn’t know who would, or even could be appointed to administer the son’s estate. He was an only child.
The father was an only child. And the mother had some distant siblings, only one of whom was living, and some nieces and nephews.
The niece who had been named as successor trustee of the parents’ trust agreed to handle the son’s estate and petitioned to be appointed administrator. She was the daughter of the mother’s surviving sister, and therefore, not a distributee who was eligible to be appointed pursuant to the statute (S.C.P.A. §1001(1)). However, if her mother and surviving cousins (only about half of whom had been located) consented to her appointment, the surrogate’s court could grant her petition (S.C.P.A. §1001(6)). And then her mother died…
Stay tuned to find out if we locate the missing cousins, whether we have to hold money in trust for them, and whether we need to probate the aunt’s will so that the niece can make distributions from the estate to herself.
This week's Legal Currents column, which is published in The Daily Record, is entitled "Technology and the attorney-client privilege" The article is set forth in full below, and a pdf of the article can be found here.
The U.S. Supreme Court recently granted
certiorari in a capital habeas corpus case
arising from the U.S. Court of Appeals
for the Ninth Circuit, Arave v. Hoffman, 07-110.
The primary issue to be decided, as framed
by the Supreme Court, is: “What, if any, remedy
should be provided for ineffective assistance of
counsel during plea bargain negotiations if the defendant
was later convicted and sentenced pursuant to a fair trial?”
While the underlying facts and procedural history of
Arave are unusually complicated, the facts relevant to the
issue raised in the appeal are fairly simple. The defendant
was advised by defense counsel to reject the State of Idaho’s
offer to plead guilty in exchange for a life sentence.
His attorney’s recommendation was based on his mistaken
belief that, even if Arave received the death sentence
following a conviction, Ninth Circuit precedent would
result in his sentence being overturned on constitutional
The Ninth Circuit case relied on by defense counsel,
Adamson v. Ricketts, 865 F2d 1011 (Ninth Cir. 1988), struck
down Arizona’s death penalty statute, which was virtually
identical to Idaho’s death penalty statute. Unfortunately for
Arave, subsequent to his conviction after trial the Arizona
and Idaho supreme courts disagreed as to whether the two
statutes were substantially similar, and the U.S. Supreme
Court ultimately resolved the split by upholding the constitutionality
of the Idaho statute.
Arave appealed his conviction, alleging he received ineffective
assistance of counsel because his trial lawyer failed
to consider that the Adamson case could be overturned on
In light of the way in which the high court framed the
issue when it granted certiorari, I am inclined to
think the court will conclude that, since Arave
had a fair trial, the fact that his attorney may
have been ineffective during plea bargaining is
irrelevant. In other words, guilty is as guilty
Nothing could be further from the truth.
It should not be forgotten that guilt after a
“fair” trial does not constitute absolute proof of
guilt. To find support for this assertion, look no
further than the numerous overturned convictions
of those on death row following discovery
of exonerating DNA evidence.
When a potentially innocent man’s life is at
stake, that the trial appeared to be “fair” but was in fact anything
but, is of little consolation after a defendant has been
unceremoniously executed. It is for this reason Arave’s guilt
or innocence should be of no moment when determining
whether he was deprived of counsel at a critical stage in the
In the hospital emergency room, when a patient’s life
hangs in the balance, there is a reason why the condition is
referred to as “critical.”
Likewise, the decision of whether to accept a plea bargain
when facing a death sentence is no less critical. An error at
this stage of the proceeding could very well determine
whether the defendant lives or dies. If the plea bargaining
process in a capital case is not a critical stage of the proceeding,
then what is?
The U.S. Supreme Court’s decision in this case is equally
critical. In a perfect world, Arave would be given the opportunity
to reconsider whether to accept the original plea bargain.
I fear, however, that in the imperfect world in which
we live, simplistic Forrest Gump-like aphorisms may well