Recently in Injury & Tort Law Category

In an action claiming that defendant insurer was bound by the terms of an excess insurance policy it had issued to contribute to the satisfaction of a state-court judgment of liability in a personal injury action against two entities for whom the insured had been a contractor, summary judgment for plaintiffs is reversed where the district court erred in deciding that the state-court judgment established legal liability against the insured.

Read General Star Nat. Ins. Co. v. Universal Fabricators, Inc., No. 07-4443

Appellate Information

Argued: September 3, 2008

Decided: November 5, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

Christopher Bradley, Marshall, Conway, Wright & Bradley, P.C., New York, NY

For Appellees:

Patrick W. Brophy, McMahon, Martine & Gallagher, LLP, Brooklyn, NY

In an action for legal malpractice, summary judgment for defendants is affirmed where plaintiffs failed to show actual injury because, under German law, they would have only been entitled to 50% of the subject inheritance regardless of any malpractice on the part of their counsel.

Read Nordwind v. Rowland, No. 07-4862

Appellate Information

Argued: May 14, 2009

Decided: October 16, 2009

Judges

Opinion by Judge Miner

Counsel

For Appellants:

Ellen R. Werther and Bruce J. Ressler, Ressler & Ressler, New York, NY

For Appellee:

Andrew N. Krinsky and Debra Bodian Bernstein, Tarter Krinsky & Drogin LLP, New York, NY

In an action for misappropriation of trade secrets against credit reporting agencies engaged in the practice of permitting lenders competing with plaintiff to purchase pre-screened consumer reports containing "trigger leads" compiled by plaintiff, dismissal of the action is affirmed where: 1) the Fair Credit Reporting Act preempted state law claims based on pre-screened reports; and 2) plaintiff failed to identify the legal basis for defendants' alleged duty and obligation to maintain the confidentiality of trigger leads.

Read Premium Mortgage Corp. v. Equifax, Inc., No. 08-5317

Appellate Information

Argued: March 9, 2009

Decided: October 5, 2009

Judges

Per Curiam

Counsel

For Appellant:

Louis B. Cristo, Trevett Cristo Salzer & Andolina, P.C., Rochester, NY

For Appellees:

David Cooper, Jones Day, New York, NY

Christopher R. Lipsett and David Sapir Lesser, Wilmer Cutler Pickering Hale & Dorr LLP, New York, NY

In an action alleging that defendant participated in the Sudan government's violations of international law through genocide, war crimes, and crimes against humanity, the dismissal of the complaint is affirmed where plaintiffs failed to establish defendant's purposeful complicity in human rights abuses.

Read Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016

Appellate Information

Argued: January 12, 2009

Decided: October 2, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellants:

Paul L. Hoffman, Adrienne J. Quarry, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA

Carey D'Avino, Stephen Whinston, and Keino Robinson, Berger & Montague, P.C., Philadelphia, PA

For Appellee:

Marc J. Gottridge, Joseph P. Cyr, Scott W. Reynolds, and Andrew M. Behrman, Lovells LLP, New York, NY

In an action seeking abatement of defendants' ongoing contributions to the public nuisance of global warming, the dismissal of the complaint is vacated where: 1) plaintiffs' claims did not present non-justiciable political questions; 2) plaintiffs had Article III standing to bring their claims; 3) plaintiffs stated claims under the federal common law of nuisance; 4) plaintiffs' claims were not displaced by the Clean Air Act; and 5) the discretionary function exception did not provide defendant Tennessee Valley Authority with immunity from suit.

Read Connecticut v. Am. Elec. Power Co., No. 05-5104

Appellate Information

Argued: June 7, 2006

Decided: September 21, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellants:

Richard Blumenthal, Attorney General's Office, Hartford, CT

Peter Lehner, Bureau Chief, Environmental Protection Bureau of the State of New York, New York, NY

For Appellees:

Joseph R. Guerra, Angus Macbeth, and Thomas G. Echikson, Sidley Austin LLP, Washington, DC

In a product liability action against a drug manufacturer, dismissal of the action as untimely is affirmed where a prior dismissal of an identical action in state court for failure to appear at a court conference constituted a dismissal "for neglect to prosecute" such that plaintiff could not avail himself of a six-month tolling provision under New York Civil Practice Law and Rules section 205(a).

Read Doyle v. Am. Home Prods. Corp., No. 08-2149

Appellate Information

Argued: July 15, 2009

Decided: September 29, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Todd C. Bank, Kew Gardens, New York, for Appellant.

For Appellees:

Lauren J. Elliot and Daniel J. Thomasch, Orrick, Herrington & Sutcliffe LLP, New York, New York

In a personal injury action based on a fall aboard a ship, judgment for defendant is affirmed primarily as the district court had admiralty jurisdiction because the alleged tort occurred on navigable waters and the activity giving rise to the incident had a substantial relationship to traditional maritime activity, such that the incident had a potentially disruptive influence on maritime commerce.

Read Vasquez v. GMD Shipyard Corp., No. 08-4566

Appellate Information

Argued: August 26, 2009

Decided: September 15, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Wendy Fleishman, Lieff, Cabraser, Heimann & Bernstein LLP, New York, NY

For Appellee:

Joseph E. Donat, Herzfeld & Rubin, P.C., New York, NY

John F. Gaffney, Herzfeld & Rubin, P.C., New York, NY

In an action claiming medical indifference in violation of the Eighth Amendment, district court judgment is affirmed in part and vacated in part where: 1) the continuing violation doctrine can apply to Eighth Amendment claims of medical indifference brought under 42 U.S.C. sec. 1983 when the plaintiff shows an ongoing policy of deliberate indifference to his or her serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period; 2) the court properly granted plaintiff leave to amend his complaint in order to state timely Eighth Amendment claims based on the continuing violation doctrine; 3) the court properly dismissed plaintiff's claims with prejudice as to certain defendants; 4) plaintiff is granted leave to replead his claims against named and unnamed supervisors and replead his municipal liability claim against the City; and 5) plaintiff's ADA and Rehabilitation Act claims are remanded as the court did not address whether the continuing violation doctrine applied to plaintiff's disability discrimination claims.    

Read Shomo v. City of New York, No. 07-1208

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: April 1, 2009
Decided August 13, 2009

Judges
Before JACOBS, Chief Judge, and POOLER, Circuit Judge.
Opinion by POOLER, Circuit Judge.
Concurring Opinion by DENNIS JACOBS, Chief Judge. 

Counsel
For Plaintiff: LEE G. DUNST, Gibson Dunn & Crutcher LLP, New York, NY.

For Defendant: SUZANNE K. COLT, Assistant Corporation Counsel, New York, NY.

In a dispute involving fraudulent wire transfers, district court grant of summary judgment for defendant is affirmed where: 1) plaintiff's action is governed by the Uniform Commercial Code and thus its claim that defendant wrongfully debited its account is time-barred by the UCC's one-year statute of repose; and 2) plaintiff's common law negligence claim is precluded by U.C.C. Article 4A.    

Read ReAmerica, S.A. v. Wells Fargo Bank Int'l, No. 08-1927

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: May 6, 2009
Decided: August 11, 2009

Judges
Before WINTER and CABRANES, Circuit Judges.
Opinion by CABRANES, Circuit Judge

Counsel
For Plaintiff: JOSEPH A. KILBOURN, Cone & Kilbourn, Mount Kisco, NY.

For Defendant: EDWARD L. POWERS, Bingham McCutchen LLP, New York, NY. 

In a prisoner civil rights action brought under 42 U.S.C. 1983, summary judgment for defendant is vacated and remanded where: 1) plaintiff's appeal of the administrative hearing was sufficient to exhaust all available administrative remedies as required by the PLRA; and 2) there is a dispute of fact as to the conditions of plaintiff's confinement to administrative segregation, and the factual record is not fully developed as to the actual conditions of his confinement in comparison to ordinary prison conditions. 

Read Davis v. Barrett, No. 08-0479

Appellate Information
Appeal from the United States District Court for the Western District of New York.
Argued: June 23, 2009
Decided: August 7, 2009

Judges
Before PARKER and WESLEY, Circuit Judges, CEDARBAUM, District Judge.
Per Curium Opinion.

Counsel
For Plaintiff: KATHRINE A. GEHRING, Duane Morris, LLP, New York, NY.

For Defendant: MARTIN A. HOTVET, Assistant Solicitor General, Albany, NY.