Case by Case: Are Social Security Numbers Discoverable?

Case by Case: Are Social Security Numbers Discoverable?

A Social Security Number is discoverable in a personal injury case because it is reasonably calculated to lead to admissible evidence. Claims of privacy and concerns for identity theft will not bar discovery of a Social Security Number. Zbigniewiwcz v. Sebzda, 58 Misc 3d 1217(A), 94 NYS3d 541 (Erie County 2018). However, the request should properly be in the form of a discovery demand, preferably attached to a demand for authorizations, and not in a Bill of Particulars. The Courts have held that a demand for a Social Security Number in a Bill of Particulars is improper as it does not serve to amplify the pleadings and, instead, it is evidentiary in nature and, thus, more properly made in a discovery demand.  In Kupferberg v. State, 97 Misc. 2d 519 (Ct Cl 1978) the Court stated that the decedent’s Social Security Number was “not material to any element of the causes of action alleged, and would not serve to amplify any aspect of the pleadings. The primary usefulness of the decedent’s Social Security Number is as a tool for acquiring evidence. Since evidence itself is not the proper subject of a Bill of Particulars, a mere device for its acquisition is a fortiori inappropriately requested. Item 17 is therefore stricken.” That being said, it is clear that a claim of privacy cannot bar the discovery of Social Security Numbers in personal injury cases where defendants are able to show that they are necessary or indispensable for defendant to obtain relevant records such as medical records, perform prior claim searches, determine liens, etc.  Zbigniewiwcz v. Sebzda, 58 Misc 3d 1217(A), 94...
Case by Case: Balance of Power: “Liberal Governor” Vetoes Two Progressive Backed Drastic Tort Bills

Case by Case: Balance of Power: “Liberal Governor” Vetoes Two Progressive Backed Drastic Tort Bills

For many years, the balance of power in Albany in the Legislature was that the Democrats controlled the Assembly and the Republicans controlled the State Senate.  Although the Democrats tried many times, they could not get enough votes in the Republican Senate to pass many bills that they sought.  Over the years this was fairly standard.  The Republicans maintained a narrow majority in the Senate which blocked most of the Assembly’s bills where they could not garner Republican support.  Even when the Senate Republicans lost a straight majority, they managed to cobble together a majority by banding together with some breakaway conservative Democrats who were vilified by their own party for handing the balance of power again to the Republicans.  In 2018 that all changed when Democrats won a majority of the Senate seats thus ensuring that they would be able to pass whatever legislation they saw fit.  This past year, they passed two pieces of legislation which would have greatly impacted civil litigation in New York. General Obligations Law §15-108 The first bill would have amended § 15-108 of the General Obligations Law which sets forth how a settling defendant’s share of liability or payment is to be accounted for when there is a verdict.  As you may know, § 15-108 of the General Liability Law allows a non-settling defendant to reduce their liability to the plaintiff by the greater of the amount of the settlement or the equitable share of damages of the settlor by a verdict.  This calculation would be made after the verdict on damages was rendered against the non-settling defendant.  The new law would...
Case by Case: Balance of Power: “Liberal Governor” Vetoes Two Progressive Backed Drastic Tort Bills

Case by Case: Balance of Power: “Liberal Governor” Vetoes Two Progressive Backed Drastic Tort Bills

For many years, the balance of power in Albany in the Legislature was that the Democrats controlled the Assembly and the Republicans controlled the State Senate.  Although the Democrats tried many times, they could not get enough votes in the Republican Senate to pass many bills that they sought.  Over the years this was fairly standard.  The Republicans maintained a narrow majority in the Senate which blocked most of the Assembly’s bills where they could not garner Republican support.  Even when the Senate Republicans lost a straight majority, they managed to cobble together a majority by banding together with some breakaway conservative Democrats who were vilified by their own party for handing the balance of power again to the Republicans.  In 2018 that all changed when Democrats won a majority of the Senate seats thus ensuring that they would be able to pass whatever legislation they saw fit.  This past year, they passed two pieces of legislation which would have greatly impacted civil litigation in New York. General Obligations Law §15-108 The first bill would have amended § 15-108 of the General Obligations Law which sets forth how a settling defendant’s share of liability or payment is to be accounted for when there is a verdict.  As you may know, § 15-108 of the General Liability Law allows a non-settling defendant to reduce their liability to the plaintiff by the greater of the amount of the settlement or the equitable share of damages of the settlor by a verdict.  This calculation would be made after the verdict on damages was rendered against the non-settling defendant.  The new law would...
Case by Case: Our Clients Speak

Case by Case: Our Clients Speak

Sage Advice and Constant Support We who are in this business of defending our clients when they have an accident can become somewhat immune to the reality that when there is an accident and the client is sued, this will be a very stressful, strange and likely long experience.  Here at Pillinger Miller Tarallo, LLP (“PMT”), our experienced lawyers never forget that our clients are just like us and our families who sometimes get thrust into unfortunate situations.  It is always in our uppermost mind to treat our clients with respect, dignity, care, and compassion. A recent case in which we were involved, where we achieved a very good result in a horrific accident, demonstrates how our clients come to rely upon us for sage advice and constant support.  The accident happened in March 2015 when our client was parking their vehicle and crashed through an AT&T store.  The client’s vehicle came to stop well within the confines of the store and in the process, three patrons inside the store were injured, one fatally.  The entire incident was captured on video from multiple angles. The first patron, plaintiff #1, was a woman in her 50’s who was behind the display, knocked over and dragged.  It wasn’t until the client’s vehicle came to a complete stop, that anyone even noticed that she was under the vehicle.  Some 16 patrons and bystanders picked up the vehicle and pulled her from under the vehicle.  She was writhing in pain, and unfortunately, succumbed to her injuries at the ER later that day. The second patron, plaintiff #2,  a woman in her 50’s and...
Case by Case: Winds of Change? Second Department Adopts Tougher View of Safe Place To Work

Case by Case: Winds of Change? Second Department Adopts Tougher View of Safe Place To Work

In November 2017, at Pillinger Miller Tarallo, LLP (“PMT”), we predicted that the Court of Appeals under Judge Janet DiFiore would begin to interpret the Labor Law more favorably for the construction industry and insurance industry. This would signal to the rest of the New York courts that Labor Law matters should be decided in a more even-handed fashion. A recent case from the Second Department demonstrates that this may indeed be occurring. In Ochoa-Hoenes v. Finkelstein, 173 A.D.2d 1080 (2d Dep’t, May 2019), the plaintiff was injured at a construction site which involved the erection of a modular home owned by the homeowners Finkelstein. The modular home components were manufactured by Signature Builders, Inc., and the defendant Vesta Development Group, an authorized representative of Signature Builders, Inc., was hired by the Finkelsteins to perform construction management services for the project. At the time of the accident, the plaintiff was employed by an electrical contractor hired by the Finkelsteins. The accident happened while the plaintiff was preparing for the installation of lights in the home’s basement. After noticing that a stack of plywood sheets that had been placed against the basement wall was resting on the electrical wires, the plaintiff attempted to move the stack himself, which caused it to tip over and strike his right ankle and foot. Plaintiff sued alleging common-law negligence against the defendants based upon their alleged failure to maintain the premises and to provide him with a safe place to work, which is the same standard as is codified in Labor Law §200. Notably, there were no Labor Law allegations pled against the defendants....
Case by Case: Court of Appeals Rules That Foreign Risk Retention Groups Are Not Subject To Insurance Law

Case by Case: Court of Appeals Rules That Foreign Risk Retention Groups Are Not Subject To Insurance Law

Requiring A Disclaimer As Soon As Reasonably Possible One of the linchpins of insurance coverage in New York is Insurance Law §3420(d)(2) which requires that a disclaimer be made as soon as reasonably possible.  This requirement applies to all insurance companies which are issuing or delivering liability policies in the State of New York, but does this apply to Risk Retention Groups who are not domiciled in New York, but are doing business in New York?  A recent Court of Appeals case clarified what is required by non-domiciliary Risk Retention Groups. By way of background, in 1988, the legislature amended Article 59 of the Insurance Law to provide for the formation and operation in New York of Risk Retention Groups.  A Risk Retention Group (“RRG”) is an issuer of insurance owned and operated by insureds who work in the same industry and are exposed to similar liability risks.  When the legislature authorized RRGs, it provided that non-domiciliary RRGs doing business in New York shall comply with the unfair claims of settlement practices provisions as set forth in §2601 of the Insurance Law.  Insurance Law §2601 lists acts by insurers which, if committed without just cause and performed with such frequency as to indicate a general business practice, shall constitute unfair settlement practices.  This included failing to promptly disclose insurance coverage pursuant to Insurance Law §3420(d). Insurance Law §3420(d) contains two paragraphs:  The first requires insurers to respond to requests for information by insureds or injured individuals, and mandates that insurers inform the requesting party within statutory deadlines whether the insured has a particular policy, the coverage limits of that...