The Kiley Law Firm Blog

Wrongful Death:

PENDING THE GOVERNOR’S SIGNATURE – both houses of the NYS Legislature have passed a bill which dramatically changes the present Wrongful Death law.  The Grieving Family Act will expand the definition of a family member to include “close family members”, including but not limited to, spouses, domestic partners, children, parents, grandparents, stepparents and siblings.  Furthermore, families of wrongful death victims will now be able to recover non-economic or intangible damages, which might include: Grief and emotional anguish caused by the victim’s death, loss of love, support, protection, and guidance. 

Click Here to Take Action: Concerned citizens can reach out to Governor Hochul with their thoughts and opinions. Visit www.hopefornyfamilies.com and submit your letter to the governor, today.

Medicaid:

N Y State’s attempted implementation of a “lookback” for community Medicaid benefits that was supposed to become effective January 1, 2021, has now been postponed until March 31, 2024, at the earliest.

Matrimonial Law:

New York’s child support formula for determining the appropriate amount of child support to award in any given case requires the court to apply a statutory percentage based on the combined parental income of both parents. As of March 1st, 2022, the income cap has increased to $163,000.  However, consistent with prior precedent, the trial courts have discretion to base child support upon combined parental income in excess of $163,000.

Remedies for Survivors of Sexual Assault:

On May 24th, 2022, New York Governor Kathy Hochul signed the Adult Survivor’s Act into law, establishing a one-year window for survivors to bring claims against abusers without the limits of the statute of limitations.

Increase in the Minimum Wage:

The Minimum Wage Act (Article 19 of the New York State Labor Law) requires that all employees in New York State receive at least $14.20 an hour beginning December 31, 2022. Minimum wage rates differ based on industry and region. On Long Island and in Westchester, the rate went up to $15 per hour.

No More Styrofoam in New York: 

As of January 1, 2022, New York State bans any single-use disposable polystyrene foam food service containers including bowls, cartons, clamshells, cups, lids, plates and trays. Additionally, polystyrene packing peanuts are illegal.

Marijuana Sales

New York legalized recreational use of marijuana to adults over the age of 21 in March 2021; but is still in the process of licensing people to sell it. The cannabis board also advanced proposed regulations for the sale of marijuana, with a focus on public health, product quality and safety and preventing those under 21 from buying cannabis.  Contrary to popular belief, you can’t buy marijuana just anywhere! 

Sport Betting is Legal in New York:

As of January 8, 2022,  the New York gaming commission gave their approval to four operators to start taking online bets from anywhere in the State including from a person’s own living room a bar or from the street.

Landlord-Tenant and Foreclosure Law:

Effective January 15, 2022, Hardship Declarations related to Covid-19 which were previously submitted to the courts will no longer automatically stay eviction proceedings and no new Hardship Declarations may be filed.

Guns:

As of September 1, 2022, New York State made statutory changes in response to the U.S. Supreme Court’s decision declaring New York’s restrictions on carrying concealed weapons unconstitutional.  This law enacted requirements for individuals seeking to obtain concealed carry pistol permits.  These included firearm training, in-person interview, and social media review, among others.  Also, the law outlawed conceal carry in sensitive locations including times square, bars, libraries, schools, government buildings and hospitals.  It also requires permit recertification or renewal every three years 

Robocalls: 

In November 2021, two bills were signed into law addressing robocalls.  The first requires telecommunications providers to block calls from numbers that do not or cannot make outgoing calls. These types of numbers are indicative of ‘spoofing’ schemes in which the true caller identity is masked behind a fake, invalid number.”  The second requires that voice service providers implement the “STIR/SHAKEN” protocols to validate that calls are actually coming from the numbers displayed on the Caller ID.  The STIR/SHAKEN authentication protocol uses cryptography to validate that a call is really from the number it displays, preventing bad actors from illegally “spoofing” phone numbers.

Fake COVID-19 Vaccination Cards:

A bill signed into law on December 23, 2021 makes the falsification of COVID-19 vaccination cards a class A misdemeanor. It also creates a new E felony of third-degree computer tampering for “intentional entering, alteration or destruction of computer material regarding COVID-19 vaccine provisions.”

Mandatory Retirement Plans for Workers in Private Sector Businesses:

As of 2022, private sector businesses in New York must offer a retirement savings plan to their employees.  The new law requires private sector businesses that don’t currently provide their employees with a retirement plan to automatically enroll them in the state’s Secure Choice Savings Plan.

Homeowners’ Insurance and Pets:

A new law now prohibits insurers from refusing to issue or renew, cancel, or charge or impose an increased premium for certain policies based solely on the breed of dog owned.

Medicaid is federally and state-subsidized health insurance for eligible, low-income adults, children and pregnant woman, as well as elderly adults and people with disabilities.  It is administered by each state according to federal requirements.  New York’s Medicaid, believe it or not, provides some of the broadest coverage to individuals compared to other states, and in 2023, the updated budget will continue to recognize New Yorkers’ need to retain more assets and income while still benefiting from some public assistance for health benefits through Medicaid.  The following are some highlights of benefits that will further expand for NY Medicaid effective January 1, 2023[1]:

1. Increased Income[2] Levels – We will see a raise in the allowable amounts for Medicaid income eligibility level from 100% to 138% of the Federal Poverty Level Income:
   • Individuals – Will increase from $934.00 monthly in 2022 to an estimated $1,563.00 monthly allowance in 2023.
   • Couples – Will increase from $1,367.00 monthly in 2022 to an estimated $2,106.00 monthly allowance in 2023.
2. Increased Asset[3] Limits – Allowable asset maximum limits will increase for Community Medicaid Long Term Care recipients by 50% in 2023:
   • Individuals – From $16,800.00 in 2022 to an estimated $28,134.00 in 2023.
   • Couples – From $24,600.00 (combined) in 2022 to an estimated $37,908.00 (combined).

Additionally, since the country’s Public Health Emergency status currently continues through at least April 15, 2023, federal laws continue to prohibit any changes to current Medicaid beneficiaries’ benefits[4].  This means the ban on terminating or reducing Medicaid continues through (at least) April 2023.  In sum, NYS’ attempted implementation of a “lookback” for community Medicaid benefits that was supposed to become effective January 1, 2021, has now been postponed until March 31, 2024, at the earliest.[5] With every benefit generally comes a challenge or two.  For NYS’ Community Medicaid, this has been the newly implemented changes to medical eligibility determinations, following the assets and income eligibility determinations.  Applicants now must complete two (instead of one) medical assessments through the NY Independent Assessor contractor (formerly Maximus) in addition to long term care insurance company assessments.  These new assessments have tended to ultimately result in concerningly reduced care hour awards for community Medicaid recipients without advocacy support. 

If your eyes have glazed over trying to fully digest all in this update, the take-away we encourage is this: do not try to independently navigate the complex and constantly changing arena of Medicaid eligibility on your own.  If you or your loved one wants to plan ahead for or immediately needs financial assistance to planning or paying immediately for needed nursing or home care, call Kiley, Kiley & Kiley to help you.  Associate Attorney, Mary Beth Heiskell can’t wait to help you address your unique needs and goals around Medicaid eligibility, and our firms’ over 30 years of estates and trusts planning is also here to further assist.  Just call us!

Citations:

[1] This move to expand Medicaid eligibility is a result of the NYS Legislature and Governor reaching an agreement on the 2023 Fiscal Budget on April 8, 2022.

[2] Sources of income generally include social security, retirement account distributions, pension, income payable from a trust, and rental income.

[3] Assets generally include checking and savings accounts (including CD’s), non-qualified annuities, individual stocks, real estate (excepting one’s primary residence), and cash surrender value of life insurance. Tax-deferred retirement accounts, and traditional IRAs and 401ks, in payout status are generally not included as assets.

[4] See: https://health.ny.gov/health_care/medicaid/redesign/mrt2/proposals/30-month_lookback-final.htm.  See also: Maintenance of Effort requirements under Section 6008(b)(1) of the Families First Coronavirus Response Act (FFCRA), and the requirements for Home and Community Based Services under the American Rescue Plan Act.

[5] Note:  Nursing Home Medicaid continues to have a 60-month (or 5-year) lookback of all gifted asset transfers.

Divorce Mediation Doesn’t Work But Settlement Is Still a Worthwhile Goal

There’s a trend in matrimonial law toward using “divorce mediators.”  Here’s how one website describes it:

Mediation is one of the most frequently used methods of negotiating a divorce settlement. In divorce mediation, you and your spouse – or, in some cases, the two of you and your respective lawyers – hire a neutral third party, called a mediator, to meet with you in an effort to discuss and resolve the issues in your divorce. The mediator doesn’t make decisions for you, but serves as a facilitator to help you and your spouse figure out what’s best.

In theory, divorce mediation is a great idea.  Litigating the case and involving a judge is an expensive option.  Every court appearance requires the lawyers to drive to court and wait in the courtroom while a judge or law secretary handles a full calendar of cases.  Also, if the dispute involves minor children, the court will appoint a law guardian who becomes the attorney for the children.  In those cases, the litigants are generally obligated to share the cost and pay the law guardian. 

If the parties can settle their disputes out of court, they save money and both parties “win.”  But the process only works if both parties are equal combatants.  Frequently, that is not the case because of the nature of divorce disputes.  In most lawsuits, the parties are strangers and have no or little personal history.  However, married couples share a level of intimacy that is unique.  They each know the other’s physical, emotional, spiritual, financial and personal secrets.  Most times, one party or the other has a psychological edge that comes from knowing the other’s weaknesses.  This may be the case because one party is physically or emotionally abusive of the other.  Or it may be that one party was at “fault” having cheated on the other or having wronged the other by being financially irresponsible.  Or it just may be the nature of married couples who get divorce that one party is just dominant.  In those cases, the “weaker” party cannot effectively advocate for his or herself and the foundation for the mediation – that the parties are equal combatants – collapses. 

I am still a great advocate for attempting to negotiate and settle the issues.  But the parties are more likely to get a fair settlement when they retain attorneys who understand these basic truths:

∙                                   Nobody “wins” a divorce because the parties have to split their assets.  Although, “equitable” distribution doesn’t necessarily mean “equal” distribution, in many situations the parties split their assets evenly;

∙                                   Whatever money is paid to the lawyers, reduces what’s left over to split between the litigants.  It should be a goal (though not always an attainable one) to compromise.  If you leave it to a judge, he’ll usually split the baby anyway!

∙                                   The parties may despise each other, but if they have children, they will never know real peace unless they learn to tolerate each other.  Burning down the literal house by going to “war” with your spouse is a bad way to start the rest of your life.

∙                                   Judges will inevitably press the parties to settle “out of court,” because judicial resources are limited and the court’s dockets are loaded.  There are only so many cases that can be tried.  If you refuse to negotiate, you’ll likely feel pressed to settle at the “courthouse steps.”

∙                                   Divorce litigation is emotionally draining.  The end of a marriage is one of the most emotionally painful human experiences.  When a marriage ends, it’s not just the pain of losing love that you endure. There’s also the sadness at the loss of the dream of living happily ever after and the anger at being unable to trust any kind of permanence.  So, litigants would do well to retain attorneys who have an eye on the long game.  In the end, victory at trial is frequently “pyrrhic” – won at too great a cost to have been worthwhile for the victor.  As the Greek general, Pyrrhus, remarked after winning another costly battle, “another such victory over the Romans, and we are undone.”        

Consider Funeral Trusts as a Part of Your Estate Planning

If you are 65 or older, blind or disabled, and have the means to set aside some funds, we recommend that you consider setting up a pre-paid funeral trust with a reputable funeral home of your choice.  A funeral trust is an agreement with a funeral home or cemetery who utilizes a pooled income fund to hold assets you set aside to cover future funeral and burial costs.  You can fund the trust with cash, bonds, or life insurance.  The contract allows you to “lock in” future funeral or burial services costs, adjusted to the time when it is expected you will need the trust funds.  It allows you to alleviate any burden on your loved ones to decide upon and fund critical end of life decisions after you have passed, because you will have taken care of all of this already, according to your wishes.    

A funeral trust can be revocable (changed and revoked by the person who sets it up at any time) or irrevocable (generally you can’t get your money out except to pay for funeral services).  Because the funds you set aside go into a pooled income trust, they can accumulate some interest over time.  Another advantage of an irrevocable funeral trust is that it can help one qualify for Medicaid.  As an irrevocable trust, the funds put into it will no longer be deemed in a person’s name and will not create a past asset transfer that violates Medicaid’s “5-year look-back” rule.[1]  An irrevocable funeral trust is still very flexible, however.  An individual (or his/her legally responsible relative following one’s death) may change the choice of funeral home, funeral director, undertaker or cemetery following the execution of a funeral trust, but just may not revoke the agreement entirely.  We also recommend individuals select an independent trustee (other than the funeral home) at the time of setting up a trust to allow for auditing the actual funeral bill for reasonableness and pay any excess to the family, when the time comes. 

Yet another positive about funeral trusts that many people don’t know is that you may also establish a qualifying, irrevocable funeral trust for someone in your “immediate family” and still not create a penalizing asset transfer according to Medicaid eligibility rules.  Immediate family members have been defined to include:  parents, adoptive parents, a spouse, children (minors or adults, including adopted children and stepchildren), and brothers and sisters (including step-siblings and adopted siblings).  The spouse of each of these relatives is also included in this definition, provided the individual is still married to the relative at the time an individual applies for Medicaid.[2]

A few other details about funeral trusts desired to support Medicaid eligibility clarify the legitimate expenses of trust funds as follows:

• Burial space items to include: a casket, urn, mausoleum, vault, headstone, burial containers and headstone engraving, a burial plot or gravesite, the cost of cremation or the opening and closing of a gravesite, and the cost of a perpetual care contract for a gravesite.
• Non-burial space items to include: embalming/cosmetology and burial clothes, funeral transportation (hearse, limousine, out of town shipping), use of funeral home facilities (for services, visitation, or a wake), clergy services, death notices, and flowers.

Items which may not be included in a funeral trust for Medicaid eligibility purposes include: food, lodging or transportation expenses for family, friends or guests.  There is no limit on the cost of the items, but their cost must match the fair market value to qualify.

Kiley, Kiley & Kiley can assist you in your estate planning.  We can help calculate eligibility for Medicaid and suggest ways, like the use of funeral trusts to allocate excess resources, particularly should you wish to legally protect your hard-earned financial nest egg for your family members and retain the option to become Medicaid eligible when the time comes.  Please contact our office to assist you further.

[1] Kiley, Kiley & Kiley can gladly provide more information regarding resource and asset protection planning to also allow Medicaid eligibility.

[2] See N.Y. Social Services Law Section 141(6) and General Business Law Sect. 453 for the laws on funeral trusts. See also http://www.health.ny.gov/health_care/medicaid/publications/pub2011adm.htm for 11 OHIP/ADM-04-Treatment of Irrevocable Pre-Need Funeral Agreements (July 11, 2011) available at for the NYS Dept. of Health directive implementing and the NYS DOH Medicaid Reference Guide [MRG] section on funeral agreements and burial funds, available at http://www.health.ny.gov/health_care/medicaid/reference/mrg/index.htm.

By: Donald T. Kiley, Jr.

If you or someone you know was sexually abused in New York State when he or she was under the age of eighteen, a new law has extended the time for abused persons to seek justice.  Under the Child Victims Act, child sex abuse victims now can pursue criminal and civil remedies.

Under the NYS Criminal Procedure Law (CPL 30.10(3)f), the perpetrator can be prosecuted for  felony until the victim reaches the age of twenty-eight.  And if the acts occurred when the victim was younger than eleven years, there is usually no time limit for criminal charges.  See:  CPL 30.10(2)a.

The option to pursue civil penalties for money damages in civil cases for victims who were sexually abused as when they were younger than eighteen (18) has also been extended and expanded.  The old statute of limitations period was limited and started after the survivor turned eighteen (18). Now under the Civil Practice Laws and Rules (CPLR 214-g) victims can sue their abusers and/or the groups and organizations who supervised them until they reach the age of fifty-five (55) years.

Under the new law, private and public organizations such as schools, hospitals, churches, employers and other institutions can be held responsible for the actions of the men and women who worked and volunteered for them.  This is frequently the crux of the statute, as proving your case against an indigent offender will not provide relief.

The law further opened the legal forum for victims who were older than 55, as it provided that only until August 13, 2020, a child sex abuse victim can start a civil case no matter how old he or she was at the time the case was instituted.  This is true:

            – no matter how old the victim is;

            – no matter how long ago the abuse took place;

– no matter that the case had previously been time-barred under the previous law;

– no matter that the case against the abuser had been previously dismissed under the old    statute of limitations; and,

– no matter (in cases against a municipality) that the victim had failed to file a Notice of    Claim under the Municipal law.

Cases brought under the new law are referenced as “revived CPLR 214-g” cases.  And special Rules apply. Recent decisions enable plaintiffs to pursue their legal remedies without their names being attached to the caption.  And when the case is ready for trial, it receives preferential treatment by moving ahead of other cases on the courts’ dockets.

The change in the law reflects the reality that survivors of child sexual abuse must overcome baseless shame and, unwittingly, forgive themselves for having been victimized.  So many are only able to come to terms with the trauma after many years.

If you, a relative or a friend was sexually victimized as a child, call Kiley, Kiley & Kiley.  We have already obtained legal satisfaction for victims of similar assaults and we are ready, willing and able to zealously fight for your rights.  

Almira Gulch a/k/a the Wicked Witch of the West, as Executor of the Estate of the Wicked Witch of the East, deceased v. Dorothy Gale

United States District Court of Kansas

Index No.: 20154-1939

Hon. L. Frank Baum, U.S.D.C. Senior Judge Presiding

Plaintiff counsel: Margaret Hamilton, Esq., Hamilton, Walshe & Lewis, LLP

Defense counsel: Raymond Bulger, Esq., Bulger, Haley & Lahr, Esqs.

MEMORANDUM AND ORDER

History

The plaintiff, who was the decedent’s sister, qualified and was appointed as Executor for the decedent’s estate pursuant to the decedent’s Last Will and Testament.  Thereafter she brought an action for conversion of property and wrongful death in the Supreme Court of the Magical Land of Oz.  Defendant answered and made a motion to remove the case to this court, the District Court of the United States for the State of Kansas.  Removal was granted based upon federal diversity jurisdiction as enumerated in 28 U.S. Code § 1441, titled “Removal of Civil Actions.”

The case comes before the court on two motions.   The first, by the plaintiff, is to dismiss the action based upon a claim of  forum non conveniens.  The second, by the defendant, is for summary judgment on the wrongful death claim on the grounds that, as a matter of law, she is not civilly liable for the death of the decedent.

Facts

On July 23, 1939, the defendant, Gale, finding herself suddenly engulfed by a tornado and unable to reach the safety of her family’s storm cellar, sought safety with her dog, Toto, in their residence.  Thereafter, the storm became one of such great magnitude and extraordinary power, that it lifted the residence off its foundation and propelled it into the air and thus into the eye of the storm.  The residence came to rest in Munchkinland in the Magical Land of Oz with great force and struck the plaintiff’s decedent causing her to sustain serious personal injuries and to die.  The defendant (and her little dog, too) survived the crash.

The defendant may have been disoriented by the crash, as her description of its locale, its inhabitants, and her recitation of the subsequent course of events is fanciful and less than credible.  There is evidence that she may have suffered a concussion upon landing.  Alternatively, she may have been under the influence of hallucinogenic drugs, as she testified that at one point she fell asleep in a field of poppies.

Although the defendant’s tale is farcical, her counsel contends that it is supported by an independent witness.   The plaintiff alleged that the man was brainless.  Nevertheless he very articulately and intelligently testified at deposition that the defendant’s description of the location was accurate and that Munchkinland is a real place in the land of Oz.  Furthermore, he testified that it is the beginning of a Yellow Brick Road that he and the defendant later traveled intending to meet someone named “the Wizard.”

Plaintiff’s counsel claims that the witness’ testimony is irrelevant and that defendant’s  counsel offers it as a “straw man argument” which has no relevance to the issue of whether the defendant was  negligent or committed an intentional tort.   In other words, counsel claims that the witness’confirmation of the defendant’s description actually refutes an argument that is not germane to the plaintiff’s claims.

Two other witnesses were subpoenaed to appear at deposition.  One, a recent heart transplant recipient, was excused for medical reasons.  The other apparently fled the jurisdiction rather than testify – a cowardly act, by any measure.

By the wrongful death claim, the plaintiff pled liability based upon alternative theories of intentional tort and negligence.  Upon information and belief, the Munchinland  District Attorney investigated the accident but refused to prosecute for manslaughter,  as there was no evidence that the defendant intended to crash the house in which she was flying.  The defendant had no prior contact with the decedent nor is she known to be a member of any extremist terrorist organization.   The plaintiff subsequently amended her pleading to withdraw the allegation of an intentional tort and, now, relies soley upon the negligence claim.  The defendant has denied all allegations of negligence and it is this issue that lies before the court.

The plaintiff seeks compensation for (1) the decedent’s conscious pain and suffering, (2) the value of support and services the deceased provided to her family, and (3) burial expenses.

In her defense, the defendant argues that the decedent died upon impact, or, alternatively, was immediately rendered unconscious.  Therefore, she did not suffer conscious pain.  Although there were no emergency medical personnel who attended to the decedent at the scene of the accident, there were several witnesses including members of a candy merchant’s guild and employees of a local sleep clinic.  All of these testified that the decedent did not appear to be breathing after she was struck by the house.  Their opinions were confirmed by the local coroner who quoted, “As coroner I must aver, I thoroughly examined her.  And she’s not only merely dead, she’s really most sincerely dead.”   To date, the plaintiff has offered no competent medical evidence that the decedent survived the crash for any length of time, but that issue is yet to be resolved and the court reserves judgment.

The decedent was unmarried and childless.  The plaintiff alleges that her sister supported her, but the defendant disputes this and claims that the plaintiff is independently wealthy.  She asserts that the plaintiff lives in a castle and employs a fleet of Flying Monkeys and Winkie Guards.  The source of the plaintiff’s wealth is under investigation by Ozian Federal Authorities  who suspect that the Witch, the Monkeys and the Guards have derived income, directly or indirectly, from a pattern of racketeering activity including kidnap for ransom, menacing and extortion.  Although formal charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act, have not been brought against this group, the allegations, if accurate will likely disprove the plaintiff’s claim that she was supported by the decedent.

The defendant also challenges the plaintiff’s claim to have incurred burial costs.  After the coroner declared her dead, a torrential rainstorm prevented Munchkins from retrieving the body.  Later they recovered the decedent’s hat, dress and coat piled in a heap, but the  decedent’s body was not found and seemed to have melted away.

Nevertheless, for the purposes of this motion, I will presume the plaintiff’s damages under the wrongful death claim to be genuine.

The plaintiff also asserts that after the crash, the defendant absconded with the decedent’s personal property – to wit: a pair of Ruby Slippers, value unproven, but alleged to have magical powers.  The plaintiff claims that the defendant unlawfully appropriated the slippers.  The plaintiff claims that they were gifted to her by one of the decedent’s distant relatives who glued them to her feet.

In any event, the conversion claim is not the subject of the plaintiff’s summary judgment motion.

Legal Analysis

The common-law doctrine of forum non conveniens provides a federal district court with the discretion to decline to accept jurisdiction over an action in favor of a more convenient venue where the interests of justice indicate that the action should be tried in another forum. See, e.g., Sinochem Int’l. Co. Ltd. v. Malaysia Int’l. Shipping Corp., 549 U.S. 422, 429 (2007); Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir. 2003).  Under the doctrine, a district court has the inherent power to decline to exercise jurisdiction even where venue is proper.  The defendant believes that, as a witch, she cannot get a fair trial inasmuch as Kansans are by reputation, conservative and bible-thumping Christians.  While the court is sympathetic to the defendant’s concerns, she is not likely to find a more sympathetic jury in any other jurisdiction.  The plaintiff’s motion is denied.

Previously, the plaintiff moved pursuant to 28 U.S.C. §144 demanding that this Court recuse itself.  She claimed that this Court was unable to perform its judicial duties impartially, competently and diligently because she is green and the Court is Caucasian.  The Court denied her motion.  As no sitting federal district court judge is green, the “rule of necessity” as enunciated by Chief Justice Burger in United States v. Will, 449 U.S. 200 (1980) Trumps the plaintiff’s objection.

Apparently, the Munchkins are not a litigious people and there is little or no case law regarding negligence claims in the history of Munchinland jurisprudence.  Citing an obscure choice of law clause in the purchase agreement for the Ruby Slippers, the defendant claims that the case should be decided under New York law.  This court agrees.

As previously stated, the plaintiff’s claim for wrongful death is predicated on a claim of  negligence.  Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same situation.  See: Gray v Gouz, Inc., 204 A.D.2d 390, 611 N.Y.S.2d 637 (1994); It is not a fixed concept, but is shaped by “time, place and circumstance” (Sadowski v Long Island R.R. Co., 292 N.Y. 448, 455, (1944).

In her defense, the defendant has asserted a defense based upon the common-law emergency doctrines which recognizes that, faced with an emergency, even a reasonable person might choose a course of action which, in hindsight, proves to have been mistaken or ill-advised.  It holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency.  See: Caristo v Sanzone, 96 N.Y.2d 172, 174 (2001); Rivera v New York City Tr. Auth., 77 N.Y.2d 322, 327 (1991).

The essence of the emergency doctrine is that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances.  See: Amaro v City of New York, 40 N.Y.2d 30, 36 (1976).

Although the existence of an emergency and the reasonableness of a party’s response to it will ordinarily present questions of fact.  See: Morgan v Ski Roundtop, 290 A.D.2d 618 (2002), they may in appropriate circumstances be determined as a matter of law.  See:  Huggins v Figueroa, 305 A.D.2d 460 (2003).  Here, invoking the emergency doctrine, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that her emergency landing of the house in which she was traveling was made only when the tornado, an act of God, forced her to make an emergency landing.  Apparently, the defendant’s house was not equipped with any brakes or steering mechanism.  Given these circumstances, it is apparent that the defendant had no other course of action but to land the house emergently in the place where the accident occurred.

Although negligence actions are not normally the subject of summary judgment motions, the factual circumstances of this case will lead this Court to the conclusion that summary judgment is appropriate.  Summary judgment is proper to eliminate unnecessary expense to litigants where no issue of material fact is present to justify a trial.  See: Axelrod v. Armitstead, 36 A.D.2d 593 (1st Dept. 1971); Donlon v. Pugliese, 27 A.D.2d 786 (3d Dept. 1967).  In Morowitz v Norton, 150 A.D.2D 536, 51 N.Y.S.2d 122 (2d Dept. 1989), the Court ruled that, “although negligence cases do not generally lend themselves to resolution by a motion for summary judgment, the Court will grant such a motion where, as here, the facts clearly point to the negligence of one party without any culpable conduct from the other.”  While summary judgment is granted infrequently in negligence actions, the remedy should be granted where there is no triable issue of fact. The Court of Appeals in Hartford Acc. & Ind. v. Wesolowski, 33 N.Y.2d 169 (1973), indicated that “the test on a motion for summary judgment is whether there are issues of fact properly to be resolved by a jury (CPLR § 3232(b)).

Accordingly, the defendant’s motion for summary judgment is granted and the plaintiff’s cause of action for wrongful death and personal injury is dismissed. The plaintiff’s motion to dismiss the action based upon a claim of forum non conveniens is denied.  This is a non-final disposition of the case.  The plaintiff’s cause of action for conversion is not affected by this order.

Dated:  January 4, 1941

Hon. L. Frank Baum, U.S.D.C. Senior Judge

© 2016 Donald T. Kiley, Jr. –  dkiley@kileylawfirm.com All Rights Reserved

Recently, I received one of those “pass-it-on” emails about the 2015 Stella Awards presented for personal injury cases where plaintiffs are supposedly, the beneficiaries of outrageous verdicts and settlements.  See:  http://forum.cakewalk.com/2015-Stella-Awards-m3227858.aspx.  If you don’t wish to waste the time following the link, I’ll summarize.  The cases include a lady who was injured after placing her Winnebago on cruise control and leaving the wheel, and the woman who tripped over her son in a furniture store, and the teenager who was injured when his hand was run over as he tried to steal the car’s hubcaps.  All of these stories are apocryphal urban legends.  They never happened.  Someone(s) made them up. See:  http://www.snopes.com/autos/techno/cruise.asp.

The awards were so named in honor of Stella Liebeck, a plaintiff who was burned after buying McDonald’s coffee.  The “McDonald’s Case” as it is more commonly called, is one that all defense attorneys hope potential jurors have heard.  It’s a true case.  See Liebeck v. McDonald’s Restaurants, No. CV-93-02419, 1995 (N.M. Dist., Aug. 18, 1994).  Unfortunately, the story that is most widely circulated has the facts all wrong.  As it is told, Mrs. Liebeck bought a cup of McDonald’s coffee passing through the drive-thru.  She attempted to add sugar to the cup as it was on her lap and burned herself when it spilled.  In truth, McDonald’s knew that its coffee, which they intentionally served at 185 degrees, was likely to cause 3rd degree burns if spilled.  They had repeatedly been warned about the danger of serving its coffee at this temperature AND purposefully ignored these admonitions – because they make money selling really hot coffee to desperate caffeine addicts.  They also knew that customers buying coffee from a drive-thru had no alternative but to add sugar while sitting in their cars.  Mrs. Liebeck, who was 79 years-old, sustained full thickness third-degree burns over six (6%) percent of her body including her inner thighs and genitals.  After leaving the hospital, she asked McDonald’s to reimburse her for her medical bills,  about $11,000.00.   McDonald’s refused to be “extorted,” and offered to pay her $800.00 to go away.  Having no alternative, Mrs. Liebeck brought a lawsuit.  After lengthy discovery and a delayed trial, the jury awarded Ms. Liebeck $200,000 in compensatory damages for her injuries and medical bills, but reduced the award to $160,000 finding that she was also partially at fault for spilling the coffee in the first place. However, the jurors, infuriated by McDonald’s flagrant and callous disregard for the welfare of its customers decided that the company should pay $2.7 Mill. in punitive damages.

The purpose of a punitive damages award is to punish a defendant for purposeful cold-hearted actions and to deter future bad conduct.  Of course the justice system (which the Stella Award people love to malign) has appellate courts, which serve to sever emotion from justice.  The court drastically reduced the punitive damages award.  McDonald’s and Mrs. Liebeck finally settled out of court.  But only on McDonald’s insistence the final settlement was sealed so that it would never be disclosed.

Was Mrs. Liebeck a greedy money-grubbing plaintiff who hit the lottery.  I think not, as I’m sure this elderly woman would gladly have traded the money she was awarded in exchange for the severe pain and permanent damages she lived with for the rest of her life.

The Stella Award committee ignores the many, many cases involving plaintiffs who were terribly injured and appropriately aggrieved, but wrongly denied justice.  I’m sure that the wretched prevaricators (so much a nicer word than “liars”) who sit on the committee would happily resign their seats, hire a personal injury attorney and “sue the bastards” if they were seriously injured as a result of the negligent or purposeful acts of others.

Sir Winston Churchill once said that “democracy is the worst system in the world, except for all the others.” The same is true for our American civil justice system. But we have not yet devised  a better way to resolve these serious claims.

By the way, everybody hates lawyers until they need one.

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New legislation is expected to significantly expand the provisions of the New York City Earned Sick Time Act (Act). The Act, which takes effect on April 1, 2014, requires most private employers to provide up to 40 hours of paid or unpaid sick leave per year to employees working in New York City.  The proposed amendments to the Act will expand the Act’s paid sick leave requirements to cover employers with between five and fifteen employees, expand the definition of “family member,” and increase employers’ notice and record keeping requirements.