Thursday, June 18, 2009

Regular Seller. The plaintiff who was injured by a machine sought to sue the company that sold it to him under a theory of strict liability. In order for the seller, who had sold the machine, second hand, to be liable, he would have to be a regular seller. The defendant argued that it was only a casual or occassional seller of such machines, and the district court, agreeing, dismissed the action. The Second Circuit certified the question of whether the defendant was a regular seller of the machine to the New York Court of Appeals. The Court of Appeals held that the defendant was not a regular user and, based on that holding, the Second Circuit affirmed the decision of the District Court, dismissing the action.

The decision in Jaramillo v. Weyerhawuser Company can be found here.

Wednesday, June 17, 2009

Certified Question. The Second Circuit has certified two questions to the New York State Court of Appeals:

1. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into a pulley mechanism after a heavy object on the other side of a pulley repidly descends a small set of stairs, causing an injury to plainitiff's hand, is the injury (a) an "elevation related injury," and (b) directly caused by the effect of gravity, such that section 240(1) of New York's Labor Law applies?

2. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liabiity exist under section 240(1) of New York's Labor Law?

The decision in Runner v. New York Stock Exchange can be found here.
Answer to Certified Question. The Second Circuit had certified a question to the New York State Court of Appeal. The question, as modified by the Court of Appeals asked whether, under New York law, a non-custodial parent retains decision-making authority pertaining to the education of his child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree is silent as to the right to control such decisions. The District Court had dismissed the action, holding that the non-custodial parent lacked standing to challenge decisions made as to the special education of his child. The New York State Court of Appeals answered the question in the negative, and the Second Circuit affirmed the decision of the District Court.

The decision in Fuentes v. Board of Education of the City of New York can be found here.

Tuesday, June 09, 2009

Sanctions. The Second Circuit has said, "Enough is enough" to plaintiff Bernard P. Gollomp and his attorney, James Morgan, who have been litigating a case in various permutations for eleven years. In Gollomp v. Spitzer upheld an award of sanctions against the plaintiff and his attorney for their repeated "frivolous and vexatious" claims against the state.

The decision can be found here.